Cases to be heard next week in the High Court of Australia

The High Court of Australia will hear four cases next week.

On Tuesday, 4 March 2014 the High Court will hear argument in NSW Registrar of Births, Deaths and Marriages v Norrie.  Section 32DA of the Births, Deaths and Marriages Registration Act 1995 (NSW) enables certain persons who have undergone a “sex affirmation procedure” to apply to the Registrar “for the registration of the person’s sex” in the Register.  A “sex affirmation procedure” is defined to mean a surgical procedure involving the alteration of a person’s reproductive organs carried out for the purpose of assisting a person to be considered to be a member of the opposite sex, or to correct or eliminate ambiguities relating to the sex of the person.  Section 32DC requires the Registrar to either register, or refuse to register, the person’s change of sex. In this case Norrie was born with male sex characteristics, but never identified as male and in the 1980s underwent sex affirmation surgery. Following this Norrie did not identify with either the male or female gender, nor was Norrie physically unambiguously male or female. Norrie applied to for a Recognised Details Certificate (Norrie wasn’t born in NSW) recording the sex as “non specific” rather than male. At the same time, Norrie also registered for a Change of Name certificate, also recording the sex as “non specific”.  The issue that arises in this case is whether section 32DC permits the registration of a person’s sex as anything other than “male” or “female”.

On Wednesday, 5 March 2014 the High Court will hear argument in Thiess v Collector of Customs.  In this case the appellant imported a yacht into Australia. For reasons not entirely apparent to the casual observer, because this yacht had a gross construction tonnage exceeding 150 tons, no duty was payable upon its importation.  However, due to a mistake made by the appellant’s customs broker who believed the vessel to be only 108 tons, the yacht was entered under the incorrect tariff classification and import duty was assessed in the amount of almost $500,000 (along with almost $50,000 in GST payable in respect of the import duty).  Section 167 of the Customs Act 1901 provides a procedure by which a dispute as to the amount or rate at which duty is payable may be resolved.  That procedure calls for the full amount to be paid under protest, and for proceedings challenging that amount or rate to be commenced within 6 months.  The position of Customs is that as no such proceedings for the recovery of the duty had been commenced within the 6 month period, the appellant was not entitled to a refund of the duty paid.  The appellant, on the other hand, argues that section 167 only applies where there had been a demand for payment of duty, because until such time there could be no dispute or payment made under protest. 

On Thursday, 6 March 2014 the High Court will hear argument in Stewart v Atco Controls Pty Ltd (in liquidation).  This a factually complex case, but in essence the liquidator of a company in liquidation commenced proceedings (in the name of the company) against the company’s secured creditor and receivers appointed to the company under the security.  The proceedings claimed damages, as well as relief setting aside the security.  The proceedings failed but, in order to avoid the risks of an appeal, the receivers ultimately paid a settlement sum to the company.  The settlement sum was captured by the security and would ordinarily, therefore, have been available for the benefit of the secured creditor.  However, the liquidator claimed priority over the settlement sum pursuant to the liquidator’s equitable lien for costs, expenses and remuneration incurred in the care, preservation and realization of company assets.  The practical question for determination by the High Court is which of the liquidator and the secured creditor has priority over the settlement sum.

On Friday, 7 March 2014 the High Court will hear argument in two proceedings commenced in the Court’s original jurisdiction challenging the validity of regulations made by the Commonwealth with respect to protection visas.  The cases are brought by Plaintiff S297/2013 and Plaintiff M150/2013.  On 18 October 2013 the newly-elected Abbott Government introduced a new subclass of protection visa, the Subclass 785 temporary protection visa.  The Migration Amendment (Temporary Protection Visa) Regulation 2013 inserted clause 866.222 which had the effect that “unauthorized maritime arrivals” could only obtain a temporary protection visa, not a permanent protection visa.  This regulation was disallowed by the Senate on 2 December 2013.  On 16 December 2013 the Government made Migration Amendment (Unauthorised Maritime Arrival) Regulation 2013 which again inserted a clause 866.222 which had the effect that a permanent protection visa could not be granted to an unauthorized maritime arrival.  In each case the plaintiffs claim that the second regulation is invalid, on the grounds that it is substantially the same as the earlier regulation that had within the previous 6 months been disallowed by the Senate (thereby invalid under section 48 of the Legislative Instruments Act 2003).  They also claim it is invalid because, to the extent it deprives them of eligibility for a protection visa, it is inconsistent with section 36(2) of the Migration Act 1958.