Upcoming judgments this week in the High Court of Australia

The High Court will deliver judgment in three cases this week.

On Wednesday, 11 February 2015 the Court will deliver judgment in 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.

The court will also deliver judgment 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.

Then on Thursday, 12 February 2015 the Court will deliver judgment 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.