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.