Judgments this week in the High Court of Australia

On Wednesday, 18 December 2013 the High Court will end the year by delivering judgment in four cases.

The first is Clark v Macourt.  In this case Clark and a company known as St George Fertility Clinic Pty Ltd carried on business providing assisted reproduction technology services in Sydney.  The appellant and St George entered into a deed in which the appellant purchased the business carried on by St George, along with various assets of the business.  Macourt was a party to the deed as guarantor of the obligations of St George.  The assets of the business that were sold to Clark included frozen sperm.  Of the 3,513 straws of sperm only 504 were useable.  Because of her inability to use the majority of the sperm supplied by St George, Clark ceased making payments due under the deed.  St George commenced proceedings for the balance of the purchase price, and Clark cross-claimed for damages for breach of contract relating to the unsuitability of the sperm sold by St George. St George (and Macourt) ultimately conceded the breach of contract.  At issue in the proceedings is how damages are to be assessed. This raises important issues as to the relevance of the regulatory regime in which assisted reproductive technology services are provided, whether damages are to be assessed by reference to the cost of replacement sperm or alternatively the value of the St George sperm had she been able to use it, and the extent to which payments made by patients mitigated her loss.

Next is Reeves v The Queen.  Reeves was infamously dubbed “The Butcher of Bega” by the press.  The main issue on appeal arises out of his conviction for the offence of maliciously inflicting grievous bodily harm with intent, contrary to section 33 of the Crimes Act 1900 (NSW). This charge arose out of the performance of a vulvectomy.  The applicant had been prosecuted for the offence of female genital mutilation (section 45) but the jury had been unable to reach a verdict.  The alternative charge gave rise to the issue of whether or not the patient had consented to the operation (or more accurately, whether the applicant did not have an honest belief that the patient had so consented).  One question on the appeal is what is the correct test for consent in a criminal medical assault case, and in particular does it involve any of the ingredients of “informed consent” as applied in civil cases.  There is also a question of whether the CCA erred in applying the proviso, as well as a challenge to the sentence imposed by the CCA.

Judgment will also be delivered in Unions NSW v State of New South Wales. This is a challenge to laws enacted by the O’Farrell Government restricting funding and expenditure of political parties, candidates for and members of the NSW Parliament, and third party campaigners.  Section 96D of the Election Funding, Expenditure and Disclosures Act 1981 (NSW) now prohibits any such person or body from accepting political donations unless the donor is an individual who is enrolled to vote (previously, political donations could also be made by any entity with an Australian Business Number). Section 95F prescribes caps on the amounts of “electoral communication expenditure” that can be made by parties, candidates and third party campaigners for a State election campaign.  Where the expenditure of a party is less than or equal to the cap, section 95G operates to add any electoral communication expenditure made by “affiliated organisations”, namely bodies authorized by a party’s rules to participate in the pre-selection of candidates, or to appoint delegates to the party’s governing body. The vast majority (in dollar terms) of political donations made to the major parties in NSW have been made by organisations and associations rather than by individuals. The party with the highest proportion of non-individual donations is the NSW branch of the ALP.  The plaintiff in these proceedings challenges the validity of the new funding provisions on the grounds that they impermissibly burden the implied freedom of communication on governmental and political matters, or a freedom of association, contrary to the Commonwealth Constitution, or alternatively contrary to the NSW Constitution.

Finally, judgment will be delivered 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.