Cases being heard this week in the High Court of Australia

There are five cases listed for hearing this week in the High Court of Australia.

The first, commencing on Tuesday, 26 November 2013 is the case of The Ship Go Star v Daebo International Shipping Co Ltd.  In this case the ship MV Go Star was the subject of a chain of time charterparties.  The ship was ultimately let to Daebo Shipping Company Ld, who let it to Nanyuan Shipping Co Ltd. When the ship was delivered by Daebo to Nanyuan it had substantial fuel bunkers on board.  Daebo invoiced Nanyuan for the hire of the ship and for the value of the fuel bunkers at the time of delivery.  The Go Star then sailed from Shanghai to Fangcheng to load cargo, on the instructions of Nanyuan.  Nanyuan purported to cancel or withdraw from the subcharter with Daebo.  The shipowners then withdrew the Go Star under the terms of the head charterparty.  At the time of the withdrawal, the Go Star was still at Fangcheng, within the territorial waters of the People’s Republic of China. Daebo claimed that the shipowners were liable for the tort of procuring Nanyuan to breach its contractual obligation to Daebo under the sub-charterparty to pay hire and to pay for the value of the bunkers transferred to it.  This claim failed at trial because the trial judge held that the applicable law was the law of China, and there was no such tort known to the law of China.  On appeal, it was held that the applicable law was the law of Singapore, on the basis that the interference with contractual relations was effected by email communications sent from China to Singapore, and intended to be and were in fact acted upon in Singapore. As there was no evidence led as to the law of Singapore, Australia law was applied to determine whether there had been any interference with contractual obligations.  The question that arises on appeal is as follows:  where a corporation is induced to breach its contractual obligations, is the place of the wrong the location of the individual who causes the corporation to breach its contract at the time when that individual is induced to breach the contract, or is it the location where the breach in fact occurs?

On Wednesday, 27 November 2013 the High Court will hear argument in two related appeals:  Barbaro v The Queen and Zirilli v The Queen.  In each case the appellants pleaded guilty to various drug-related offences under the Commonwealth Criminal Code.  The appellants had entered into a plea agreement with the Crown.  The Crown had provided an indicative sentencing range to the appellants’ legal representatives.  A practice had developed in Victoria to prepare such an indicative sentencing range in order to make it available to the Court is requested by the court, or if the prosecutor believed there was a significant risk the court would fall into error if a submission as to range was not made.  The sentencing judge made it plain that she did not want to hear submissions as to range from anyone, and would not take them into account.  The sentencing judge proceeded to impose sentences outside the prosecution’s indicative sentencing range.  At issue in the appeal is the extent to which the sentencing court is required to have regard to the prosecution’s indicative sentencing range, and the circumstances in which that indicative sentencing range should be taken into consideration.

On Thursday, 28 November 2013 the Court will hear argument in Commonwealth Minister for Justice v Adamas.  This case considers the interaction between the extradition treaty with Indonesia, and the Extradition Act 1988 (Cth).  In particular, it will consider the proper role of a court undertaking judicial review of the decision of the Attorney-General to determine that it would not be “unjust, oppressive or incompatible with humanitarian considerations” to surrender the respondent to Indonesia. 

On Friday, 29 November 2013 the Court will hear argument in Smith v State of Western Australia.  In that case the appellant was convicted on two counts of indecent dealing with a girl under the age of 13 years.  Following the return of the verdicts, an envelope was found in the jury room addressed to the trial judge.  The envelope contained a note that said:  “I have been physically coerced by a fellow juror to change my plea to be aligned with the majority vote.  This has made my ability to perform my duty as a juror on this panel.”  The appellant sought an inquiry into the circumstances of the juror’s note, an application that was refused by the Court of Appeal.  At issue in the appeal is the extent to which a so-called “exclusionary rule” that makes evidence of jurors’ deliberations inadmissible could operate to exclude evidence of the note.