This week in the High Court of Australia

The High Court of Australia will hear argument in three cases this week, the High Court's last sitting week for the year.

On Tuesday, 9 December 2014 the Court will hear the latest chapter in the ongoing saga of Plaintiff S297/2013 v Minister for Immigration and Border Protection.  The Plaintiff is a national of Pakistan who arrived in Australia by sea in May 2012 without a visa, whereupon he was placed in detention.  Initially prevented from lodging a valid application for a protection visa by s46A(1) of the Migration Act 1958 (Cth), he was later permitted to lodge such an application after a determination by the Minister under s46A(2) of the Act.  The Plaintiff’s application however was refused by a delegate of the Minister in February 2013. Upon a review of that refusal, the Refugee Review Tribunal remitted the Plaintiff’s visa application to the Minister for reconsideration, having found that the Plaintiff satisfied the visa criterion prescribed by s36(2)(a) of the Act. On 4 March 2014 the Minister made a determination under s85 of the Act that the maximum number of protection visas that could be granted in the 2013-2014 financial year was 2,773.  When that figure came to be reached (on 24 March 2014), the Plaintiff’s visa application still had not been determined and the Plaintiff remained in immigration detention.  On 20 June 2014, in Plaintiff S297/2013 v Minister for Immigration and Border Protection [2014] HCA 24 the High Court held the limit imposed on the number of protection visas was invalid. A writ of mandamus was issued to the Minister, commanding him to determine the Plaintiff’s application for a protection visa according to law.  On 17 July 2014 the Minister refused the Plaintiff’s application, on the ground that he did not satisfy the criterion imposed upon a grant of a protection visa in clause 866.226 of the Regulations, which provides “[t]he Minister is satisfied that the grant of the visa is in the national interest.”  Although the Minister refused to grant a protection visa, he immediately granted the Plaintiff a seven-day safe haven visa and a three-year humanitarian visa (both under s 195A(2) of the Act) and released him from detention.  The Minister then filed a notice certifying his compliance with the writ of mandamus. The Plaintiff now challenges the sufficiency of the Minister’s compliance with the writ of mandamus.  The Plaintiff contends that clause 866.226 is invalid, on the basis that it is inconsistent with ss501(3) and 501C of the Act.  An alternative basis of the alleged invalidity of clause 866.226 is that it departs from the scheme of protection visas provided for by various provisions of the Act, including ss36 and 501.

On Wednesday, 10 December 2014 the Court will hear argument in Lavin v Toppi, an appeal from the NSW Court of Appeal Lavin and Toppi were directors and equal shareholders of Luxe Studios Pty Ltd which had a loan from the National Australia Bank. By written guarantee each of Lavin, Toppi and others associated with them became guarantors of Luxe’s obligation to repay that loan.  When Luxe defaulted, the Bank sued the guarantors. Lavin reached an agreement with the Bank, which was set out in a “Deed of Release and Settlement”.  Under the Deed, Lavin paid the Bank an amount that was less than half of the balance owed to it by Luxe under the loan.  The Bank in return covenanted not to continue its claim against Lavin or to make a new claim against her.  Its claim against Lavin was then dismissed by consent. Toppi subsequently paid out the rest of Luxe’s debt to the Bank.  She then sued Lavin for an equitable contribution to the difference between the amounts they had each paid to the Bank. Lavin contended that the Deed had limited her liability as a co-surety such that her liability to the Bank was no longer co-ordinate with Toppi’s.  At first instance Rein J ordered Lavin to pay Toppi equitable compensation of $726,000, being half of the difference between the amount of Lavin’s payment to the Bank and the amount paid by Toppi.. The NSW Court of Appeal unanimously dismissed Lavin’s appeal, finding that none of the terms of the Deed amounted to a release of Lavin from her liability to the Bank.  There was merely a promise not to sue, which in no way constrained the rights of other guarantors as against Lavin.  Toppi was therefore entitled to equitable contribution from Lavin as a co‑surety.  The appeal raises a question of whether or not co-sureties are subject to co‑ordinate liabilities where one co-surety receives from the creditor a covenant not to sue, and the proceedings brought by the creditor against that co-surety are dismissed.  It also raises a question of whether equitable compensation is available where the co-surety derives no practical benefit from the payment made to the creditor because, by reason of the covenant not to sue, they could not be required to satisfy any remaining liability to the Bank.

On Thursday, 11 December 2014, the Court will hear argument in Fortress Credit Corporation (Australia) II Pty Ltd v Fletcher.  Fletcher is one of the liquidators of the Octaviar group of companies. In the winding up of one of the companies (Octaviar Administration Pty Ltd), the relation-back day is 3 October 2008.  The liquidators faced a three-year time limit from that date, under s588FF(3)(a) of the Corporations Act 2001 (Cth) (“the Act”), in which to apply for orders under s588FF(1) of the Act in respect of any voidable transactions made by Octaviar Administration.  The liquidators applied for an order under s588FF(3)(b) of the Act to extend the time in which they could make any application under s588FF(1) from 3 October 2011 to 3 April 2012.  In doing so, the Liquidators identified certain entities which may have been parties to voidable transactions with Octaviar Administration.  Those entities did not include the Appellants.  On 19 September 2011 Ward J in the Supreme court of NSW made the order sought (“the extension order”).  On 3 April 2012 the liquidators commenced proceedings against the Appellants that included an application under s588FF(1).  The liquidators also applied to vary the extension order such that it would expressly permit the claim against the Appellants.  The Appellants meanwhile applied to set aside or vary the extension order such that the claim against them would not be permitted.  The question for determination by the High Court is does the power under s588FF(3)(b) to extend time for the making of an application under s588FF(1) with respect to voidable transactions only extend to transactions (or categories of transactions) that are identified as the subject of the proposed application.

This week in the High Court of Australia

The High Court of Australia will hear argument in three cases this week.

Starting Tuesday, 2 December 2014 the High Court will hear argument in State of Queensland v Congoo.  The case involves a native title application made by the Bar Barrum people in relation to land on the Atherton Tableland in Far North Queensland.  During the Second World War, extensive portions of that land were subject to five successive military orders made pursuant to the National Security Act 1939 (Cth) and its Regulations. The issue for determination is the effect of these orders on the Bar Barrum peoples’ claim to native title.

On Thursday, 4 December 2014 the Court will hear argument in Commissioner of the Australian Federal Police v Zhao.  The respondents in this case are husband and wife.  They husband has been charged with various offences relating to dealing with cash taken from illegal sex workers.  The wife has not been charged with any offence. Orders were made on the application of the AFP Commissioner to restrain the disposal of properties and other personal items owned by the respondents under the Proceeds of Crime Act 2002 (Cth).  The AFP Commissioner then sought orders for the forfeiture of the property.  The respondents sought a stay of the forfeiture proceedings ending the determination of the charges against the husband.  This was refused at first instance but granted on appeal.  At issue in the appeal is the effect of the earlier decision of the High Court in Lee v The NSW Crime Commission (2013) 302 ALR 363 and in Lee v The Queen (2014) 308 ALR 252 on the circumstances in which it is appropriate to stay forfeiture proceedings pending determination of criminal charges.

On Friday, 5 December 2014 the Court will hear argument in CMB v Attorney General for New South Wales.  This case considers who bears the onus of proof in an application under section 5D of the Criminal Appeal Act 1912 (NSW).  That section provides that the Attorney-General may appeal to the Court of Criminal Appeal against sentence, and that the Court of Criminal Appeal may in its discretion vary the sentence and impose such sentence as may seem proper.  The Court of Criminal Appeal held that it was the offender who bore the onus of establishing that the discretion should be exercised not to re-sentence him.

Judgments this week in the High Court of Australia

On Wednesday, 3 December 2014 the High Court of Australia will deliver judgment in two cases.

The first judgment is in Cantarella Bros Pty Limited v Modena Trading Pty Limited, which raises important issues relating to the use of foreign descriptive words as trade marks in Australia. Cantarella produces coffee in Australia from imported beans.  It promotes and sells its coffees using various registered trade marks including “Vittoria”, “Oro” and “Cinque Stelle”.  Cantarella widely promoted its Oro branded coffee through supermarkets, and its Cinque Stelle coffee was served in many restaurants and by Qantas. Modena imports and markets coffee supplied by an Italian company, Caffè Molinari SpA (“Molinari”).  Molinari’s coffees include blends named “Oro” and “Cinque Stelle”, which are sold in Italy and are exported to many countries.  Many other producers and importers of coffee also use the word “Oro” in their brands in Australia.  In Italian, “Oro” means gold, and “Cinque Stelle” means five stars.  Cantarella sued Modena for infringement of its registered trade marks.  Modena cross-claimed, seeking the cancellation of each trade mark’s registration.  At first instance Justice Emmett declared that Modena had infringed Cantarella’s trade marks.  His Honour held that the words “Oro” and “Cinque Stelle” were sufficiently distinctive because only a small minority of people in Australia would understand the meaning of the words, and thus the allusions to quality made by them.
The Full Court of the Federal Court unanimously allowed Modena’s appeal. Their Honours held that instead of focusing on the knowledge of the general population, the focus ought to have been on the knowledge of traders in coffee.   Italian was so commonly used in relation to coffee in Australia that traders other than Cantarella would readily understand, and indeed had long used, the words “Oro” and “Cinque Stelle” to signify quality of goods.  The Full Court ordered that the registration of the trade marks of those words be cancelled.

The second judgment is in Commissioner of Taxation v MBI Properties Pty Ltd, which raises a short question of statutory construction under the GST legislation, and in particular whether or not there is a supply to a lessee by the purchaser of the reversionary interest under the lease who continues to receive rent.

This week in the High Court of Australia

The High court will hear argument in three cases this week.

On Tuesday, 11 November 2014 the Court will hear argument in Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd.  The case arises out of the prank phone call made by two morning radio presents who, posing as Queen Elizabeth II and Prince Charles, recorded a telephone call with two hospital staff at King Edward VII Hospital in London, where the Duchess of Cambridge was an inpatient, being treated for acute morning sickness.  Notoriously, one of the hospital staff involved subsequently committed suicide.  ACMA investigated the incident and found that Today FM, in broadcasting the recording of the private conversation (which was made in contravention of section 7(1) of the Surveillance Devices Act 2007 (NSW)), had contravened section 11(1) of that Act, and had therefore contravened a condition of its broadcasting licence which provides that “the licensee will not use the broadcasting service or services in the commission of an offence against another Act or a law of a State or Territory”.  At issue is whether or not ACMA has the power to investigate and make a determination that a licensee has committed a criminal offence.

On Wednesday, 12 November 2014 the Court will hear argument in Grant Samuel Corporate Finance Pty Ltd v Fletcher, an appeal from a decision of the NSW Court of Appeal  which raises an important issue in relation to the commencement of proceedings by liquidators in relation to voidable transactions.  Section 588FF(3)(a) provides that such applications be brought within 3 years of the relevant relation-back date.  Section 588FF(3)(b) authorises a Court to extend that period, although an application for extension must be brought within the original 3-year period.  In this case an extension application was made ex parte within the 3-year period and granted by Hammerschlag J.  A further application was brought outside of the initial 3-year period, but within the original extended period, for a further extension of time within which to commence proceedings.  This application was granted by Ward J, relying upon the power under UCPR 36.16 to vary orders made in the absence of a party.

On Thursday, 13 November 2014 the Court will hear argument in Cassegrain v Cassegrain & Co Pty Ltd.  The case arises out of the fraudulent conduct of a husband in which funds and property were diverted from a family company into the names of the husband and wife.  At issue is whether or not the wife is to be fixed with her husband’s fraud on the grounds that he was acting as her agent, and what are the consequences of the husband’s fraud for the purposes of indefeasible title under the Torrens system of land title by registration.

Judgments this week in the High Court of Australia

This week the High Court will deliver judgment in three cases.

On Wednesday, 12 November 2014 the High Court will deliver judgment in Hunter and New England Local Health District v McKenna. On 20 July 2004 Mr Stephen Rose arranged for his friend, Mr William Pettigrove, to be admitted to the Manning Base Hospital in Taree due to concerns he had over Mr Pettigrove’s mental health.  Pursuant to the Mental Health Act 1990 (NSW), Mr Pettigrove was compulsorily detained overnight.  He was however released into Mr Rose’s care the next day following a subsequent psychiatric assessment by the Hospital’s psychiatrist, Dr Coombes.  Mr Pettigrove was released to enable both men to travel by car to Victoria which is where Mr Pettigrove's mother lived.  After stopping en route near Dubbo, Mr Pettigrove strangled Mr Rose to death.  Mr Pettigrove later told police that he had acted on a revenge impulse, apparently believing that Mr Rose had killed him in a past life.  Mr Pettigrove himself subsequently committed suicide.  The issues raised by the appeal for determination by the High Court are numerous, and include whether or not the Hospital owed a duty of care to Mr Rose and/or Mr Rose’s family, the operation of section 5O of the Civil Liabiltiy Act 2002 (relating to the standard of care owed by professionals) and sections 43 and 43A of that Act (relating to the liability of public authorities for breach of statutory duty and failure to exercise special statutory powers).  However, when the matter was called on for hearing the High Court heard argument only in relation to the duty of care question, and it seems likely that the Court will allow the appeal on the basis that the Hospital did not relevantly owe a duty of care.

The High Court will also on Wednesday deliver judgment in Minister for Immigration and Border Protection v SZSCA.  In that case the respondent is an Afghani citizen of Hazara ethnicity who claimed to fear persecution due to his membership of a particular social group, namely “truck drivers who transported goods for foreign agencies”.  He also claimed to fear persecution based upon political opinions imputed to him by the Taliban.  He unsuccessfully applied for a protection visa.  On appeal to the RRT, the RRT accepted the plausibility of the threats made against him, but concluded that he could avoid persecution if he returned to Kabul and changed his occupation.  Successive appeals to the Federal Court resulted in a determination that the RRT had erred in limiting itself to what the respondent could reasonably do upon return to Afghanistan rather than what he would do.  This case will be an important one if only because this is one of the areas in which it is claimed by Senator Brandis that the Courts have misinterpreted the Refugee Convention, prompting the introduction into Parliament of the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 which “codifies” or “clarifies” what are said to be “Australia’s international law obligations” by re-defining what is meant by “well-founded fear of persecution” in a way that may or may not actually reflect Australia’s international law obligations.

Then on Friday, 14 November 2014 the High Court will deliver judgment in Kuczborski v The State of Queensland.  In this case the plaintiff challenges the validity of the Vicious Lawless Association Disestablishment Act 2013, and amendments made by the Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 and the Tattoo Parlours Act 2013.  These Acts are yet another attempt by a State government to address law and order issues arising out of the activities of motorcycle gangs.  The challenge gives rise firstly to a question of standing, with the State of Queensland disputing (with a few minor exceptions) that the impugned laws have any operation at all in relation to the plaintiff.  The declarations of invalidity sought, therefore, are said to be hypothetical only. Beyond that, the plaintiff invokes the Kable principle to impugn the laws n the basis that they, in effect, operate to impose more severe criminal consequences upon a person because of their association with a particular group deemed by the Executive to be a criminal organisation.