Next week in the High Court of Australia

Next week the High Court of Australia will hear argument in four cases.

First up on Tuesday, 27 March 2012 is Crump v State of NSW which will address the validity of section 154A of the Crimes (Administration of Sentences) Act 1999.  In 1974 Crump and a co-offender were sentenced to life imprisonment for murdering Ian Lamb, and for conspiring to murder Virginia Morse.  Justice Taylor recommended that Crump never be released.  As a result of subsequent amendments to the sentencing regime in NSW Crump applied for, and eventually succeeded in obtaining, a re-determination of his sentence so that he was required to serve a minimum sentence of 30 years in prison and thereafter became eligible for parole.  Following that re-determination, however, section 154A was enacted.  This section provides the Parole Authority with the power to release a prisoner the subject of a not for release recommendation, but only if the prisoner lacks the physical ability to harm any person, or is in imminent danger of dying, and in addition poses no risk to the community.  Crump does not satisfy these conditions.  Whereas according to the re-determination of his sentence he was now eligible for parole, section 154A had the effect that he could not be released, except in limited circumstances that did not apply to him.  At issue is whether the Parliament of a State has the power to pass a law such as section 154A that has the effect of varying or altering the operation of judgment of the Supreme Court of that State.  It therefore raises, yet again, an opportunity for the High Court to opine on the operation and limits of the so-called Kable doctrine.

The next case is The Honourable Brendan O'Connor Commonwealth Minister for Home Affairs v Zentai, to be heard on Wednesday, 28 March 2012.  This is yet another step in protracted attempts to extradite Charles Zentai to Hungary in order to face trial in respect of alleged war crimes.  At issue in the proceedings is whether or not extradition is precluded where the specific offence for which extradition is sought  was not an offence under Hungarian law at the relevant time (the conduct having occurred in 1944, and the war crime offence not having been enacted until 1945), even though the conduct constituted another offence (ie murder) at the relevant time.

On Thursday, 29 March 2012 the Court will hear argument in Board of Bendigo Regional Institute of Technical and Further Education v Barclay.  Barclay is a senior teacher employed by BRIT, and is also the sub-branch president at BRIT of the Australian Education Union. Barclay, in his AEU capacity, forwarded an email to AEU members employed at BRIT, in relation to an upcoming re-accreditation audit, in which he said he was aware of reports of misconduct by unnamed persons in BRIT.  The CEO of BRIT wrote to Barclay requiring him to show cause why he should not be disciplined for failing to report the misconduct alleged in his email to senior managers. Barclay was suspended on full pay, had his internet access suspended and was not required to attend BRIT during the suspension period.  At issue is whether or not the “adverse action” taken against Barclay by the CEO was taken because of a “proscribed reason” (in this case because of his membership of, or role in, the AEU or because he had been engaged in industrial activity).  Importantly, the case raises the question of whether, in answering that question, one is applying a subjective test and inquiring into the decision-maker’s actual state of mind, or whether one is applying an objective test so that it is sufficient to establish contravention that Barclay’s conduct was undertaken in his capacity as a union official, and that conduct has resulted in the adverse action taken.

Finally, on Friday 30 March 2012 the High Court will hear the continuation of argument in Forrest v Australian Securities and Investments Commission.  

Grants of Special Leave to Appeal in the High Court

On Friday, 9 March 2012 the High Court heard applications for special leave in Sydney and in Melbourne.

Only one case received a grant of special leave.  This was in Likiardoloulos v R, an appeal from the Victorian Court of Appeal in Likiardoupulos v R [2010] VSCA 344.  This case will examine the elements of the offence of murder where the offender does not physically cause the death of the victim, but is alleged to be part of a “joint criminal enterprise” that result sin the victim’s death.  In particular, it will examine the issue of whether it is open to the Crown to argue that the offender “counselled or procured” others to commit murder, in circumstances where the Crown had accepted pleas of guilty to manslaughter by the principal offenders.

In one other case, Sweeney v Thornton, the application for special leave was referred to the full bench, to be argued in full as on appeal.  This is an appeal from the NSW Court of Appeal in Thornton v Sweeney [2011] NSWCA 244 which concerns the content of the duty of care owed by a voluntary supervisor (not an instructor) to a learner driver.  

ALH Group Holdings v Chief Commissioner of State Revenue [2012] HCA 6

On 5 November 2003 Oakland Glen Pty Ltd entered into a contract with Trust Company Fiduciary Services Ltd (then known as Permanent Trustee Co Ltd), as trustee of the ALE Direct Property Trust. Under the contract Oakland agreed to sell a parcel of land to Trust Company.  No duty was charged on the 2003 contract, Revenue Commissioner having approved the transaction for the purposes of section 281 of the Duties Act 1997 (NSW), which concerns transactions in the nature of corporate reconstructions.

On 27 June 2008 Oakland, Trust Company and ALH Group Property Holdings Pty Ltd executed a document entitled "Deed of Consent and Assignment" under which, in essence: Trust Company agreed to assign its rights under the 2003 contract to ALH; Oakland consented to the assignment; ALH promised Oakland that it would perform Trust Company’s obligations under the 2003 contract; and Oakland released and discharged Trust Company from all liability under the 2003 contract.

In 2008 a further deed executed by ALH and Oakland cancelled the deed of Consent and Assignment.  The effect of this cancellation was that duty was not payable on the Deed of Consent and Assignment, but only if the Deed of Consent and Assignment was “an agreement for the sale or transfer of dutiable property” within the meaning of section 8(1)(b) of the Duties Act 1997.  That was the issue for resolution in the High Court.

In its judgment in ALH Group Property Holdings Pty Ltd v Chief Commissioner of State Revenue [2012] HCA 6 the High Court held that the Deed of Consent and Assignment, despite its title, operated as more than a mere assignment by Trustee Company to ALH of Trust Company’s rights under the 2003 Contract.  The obligations of the parties emanated from the Deed of Consent and Assignment, and not from the 2003 Contract.  The obligation to convey land requires identification of the person to whom it is to be conveyed.  The obligation of Oakland to transfer land to ALH, in place of the Trust Company, emanated from the Deed of Consent and Assignment and not from the 2003 Contract.  The Deed of Consent and Assignment was therefore an agreement for the sale and transfer of the land.  It having been cancelled, no duty was payable.

Strong v Woolworths Ltd [2012] HCA 5

I have previously said that the judgment in Strong v Woolworths Ltd [2012] HCA 5, which the High Court of Australia delivered today, would either be an important case about the law of causation in negligence cases following the enactment of the Civil Liability Act 2002, or a mundane fizzer about what inferences can be drawn as to whether or not an adequate cleaning system would have prevented the plaintiff’s crutches from slipping on a potato chip on the floor of a shopping centre.

Unfortunately it was the latter.  None of the judges in the majority (French CJ, Gummow, Crennan or Bell JJ) or in dissent (Heydon J – again) had anything much to say in relation to various issues that arise under the Civil Liability Act 2002.

Specifically, the Court declined to deal with the question of whether or not the statutory formulation of causation may produce a different conclusion to the conclusion yielded by applying the common law. 

Nor did it address questions of how cases of “causal over-determination” are to be accommodated under the statutory provision, although the majority seem to have subtly suggested that the authors of the Ipp Report (upon whose recommendations the present statutory causation formulation is based) may have misunderstood the House of Lords decision in Bonnington Castings Ltd v Wardlaw.

Apart from an interesting discussion by Heydon J (unaffected by the fact that his Honour dissented in the result) about the different meanings of the expression “evidential burden” (at [50]-[64]) there is really nothing of interest at all in the judgment.

Further High Court judgments to be delivered this week

The High Court has now listed a further case for delivery of judgment this week, so the (now) three judgments to be delivered are as follows:

On Wednesday, 7 March 2012 at 10:15am is the decision in Strong v Woolworths Ltd.  This is either an important case about the law of causation in negligence cases following the enactment of the Civil Liability Act 2002, or a mundane fizzer about what inferences can be drawn as to whether or not an adequate cleaning system would have prevented the plaintiff’s crutches from slipping on a potato chip on the floor of a shopping centre.  

On Thursday, 8 March 2012 at 10am is the decision in ALH Group Property Holdings Pty Limited v Chief Commissioner of State Revenue.  This case was only heard a few weeks ago, and addresses issues relating to the operation of the NSW Duties Act 1997, and whether or not a Deed of Consent an Assignment constituted an assignment of the benefit of a contract for the sale of land, or a novation of that contract.

On Thursday at 2:15pm is the decision in Equuscorp Pty Ltd (formerly Equus Financial Services Ltd) v. Haxton, in which the consequences of a failure to comply with the prescribed investment scheme requirements of the old Companies Code.  All you crazy restitution enthusiasts may be in for a little treat.

New identification requirements for affidavits and statutory declarations

The Identification Legislation Amendment Act 2011 (NSW) amends the Oaths Act 1900 (NSW) to require a witness to identify a deponent prior to witnessing an affidavit, and to certify on the affidavit that this has occurred. These requirements commence on 30 April 2012.  In this post, references to sections are to the Oaths Act 1900 as amended, and references to regulations are to the Oaths Regulation 2011.  Although couched in terms of affidavits, the same requirements apply in relation to statutory declarations.

A witness must either “know” the person who makes an affidavit or confirm their identity by sighting an identification document before witnessing the affidavit: section 34(1)(b). A person is deemed not to be known to a witness unless the witness has “known” the deponent for a period of at least 12 months: regulation 5.

The words “know” and “known” are not defined in the legislation.  However, analogous caselaw indicates that the degree of familiarity to satisfy the test for knowledge need only be slight and need not be based on a pre-existing personal acquaintance with the deponent (see, for example, Ratcliffe v Watters (1969) 89 WN (Pt 1) (NSW) 497 and Grgic v ANZ Banking Group (1994) 33 NSWLR 202).  Regardless, a prudent approach would be for a witness to require identification if there is any doubt as to whether they have “known” the deponent for a period of at least 12 months.

If an identification document is required, it must be one prescribed by the regulations: section 34(1)(b).  The following are acceptable forms of identification documents (what follows is a combination of the provisions of the Oaths Regulation 2011, and incorporated provisions of the Real Property Regulation 2008):

Australian passports: an Australian passport that is either current or has been expired for less than 2 years.

Non-Australian passports: a current passport issued by a foreign government or the UN for the purposes of international travel that contains a photograph and the signature of the person in whose name the document is issued.

Driver’s licences: a current licence or permit issued under a law of a State or Territory or equivalent authority of a foreign country for the purpose of driving a vehicle that contains a photograph of the person in whose name the licence or permit is issued.

Entitlement cards: current Medicare cards, pensioner concession cards, Department of Veterans’ Affairs entitlement cards or other entitlement cards issued by the Commonwealth or a State Government.

Photo cards or national identity cards as follows:

a Photo Card issued under the Photo Card Act 2005 (NSW);

a card issued under a law of the Commonwealth or another State or Territory for the purpose of proving the person’s age which contains a photograph of the person in whose name the card is issued; or

a national identity card issued for the purpose of identification that is issued by a foreign government, the United Nations or an agency of the United Nations and contains a photograph and the signature of the person in whose name the document is issued. 

Birth certificates and citizenship certificates as follows:

a birth certificate or birth extract issued by a State or Territory;

a birth certificate issued by a foreign government, the United Nations or an agency of the United Nations;

a citizenship certificate issued by the Commonwealth or by a foreign government.

Credit card or account passbook from a bank, building society or credit union (or a credit card or statement of account less than 1 year old).

Electoral enrolment card that is less than 2 years old.

Student identity card, or a certificate or statement of enrolment, from an educational institution that is less than 2 years old.

Except in the case of a Driver’s Licence, a document in a language other than English, must be accompanied by a document purporting to contain an English translation of the document.

In every case the identification document sighted must be the original document or a certified copy (which may only be certified by someone authorised to take and receive statutory declarations, and may not be the authorised witness), and must not have been cancelled or expired (other than an Australia Passport which may be up to 2 years past expiry).

Where verification of identity is required this must be done before the affidavit is witnessed: regulation 6(1).

You must see the face of the deponent making the affidavit: section 34(1)(a).  In this context “face” is defined to be the deponent’s face from the top of the forehead to the bottom of the chin and between (but not including) the ears (section 3 of the Law Enforcement (Powers and Responsibilities) Act 2002).

If the deponent has a “face covering” (which means “an item of clothing, helmet, mask or any other thing that is worn by a person and prevents the person’s face from being seen (whether wholly or partly)”) you may ask them to remove it.  Curiously, although you must not take and receive an affidavit if they do not remove a face covering, the failure to comply with the section does not affect the validity of the affidavit: section 34(4).

A witness is exempted from the requirement to see the person’s face if and only if the witness is satisfied that the deponent has a legitimate medical reason for not removing the face covering (this is the effect of the combination of regulations 3 and 4, and section 19B of the Law Enforcement (Powers and Responsibilities) Act 2002).

The affidavit must include a certificate that certifies the following:

• that the authorised witness either saw the face of the person, or did not see the face of the person because of a face covering, but is satisfied that the person had a special justification for not removing the covering;
• that the authorised witness either knows the person, or does not know the person, but has confirmed the person’s identity based on an identification document presented to the authorised witness;
• if the authorised witness has relied on an identification document to confirm the identity of the person—that the document that the authorised witness relied on is the document that is specified by the authorised witness in the certificate.

Finally, a big shout-out for the brains behind highheelsdaily.com for his assistance in the preparation of this post (follow on Twitter @highheelsdaily).

Next week in the High Court of Australia

Next week the High Court will deliver judgments in two cases in which it is currently reserved.

The first, to be delivered on Wednesday, 7 March 2012 is the decision in Strong v Woolworths Ltd.  This is either an important case about the law of causation in negligence cases following the enactment of the Civil Liability Act 2002, or a mundane fizzer about what inferences can be drawn as to whether or not an adequate cleaning system would have prevented the plaintiff’s crutches from slipping on a potato chip on the floor of a shopping centre.  

The second, to be delivered on Thursday, 8 March 2012 is the decision in ALH Group Property Holdings Pty Limited v Chief Commissioner of State Revenue.  This case was only heard a few weeks ago, and addresses issues relating to the operation of the NSW Duties Act 1997, and whether or not a Deed of Consent an Assignment constituted an assignment of the benefit of a contract for the sale of land, or a novation of that contract.

Argument next week commences on Monday, 5 March 2012 with the further submissions in Harbour Radio Pty Ltd v Trad, which was adjourned after the original estimate proved to be insufficient.

On Tuesday and Wednesday, 6 and 7 March 2012 the Court will hear argument in a series of related cases that will either be reported as National Competition Council v Hamersley Iron Pty Ltd or as Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal.  This case involves Part IIIA of the Competition and Consumer Act 2010.  Part IIIA provides a regime whereby certain pieces of privately-owned infrastructure that cannot be economically duplicated can be “declared”, with the consequence that they must be made available for use by competitors. Upon an application by Fortescue Metals Group, privately-owned railway facilities in the Pilbara used by Hamersley Iron and Robe River Mining to transport iron ore were declared for a period of 20 years.  At issue in this appeal is which of two different methods (the “social cost approach” or the “private profitability approach”) should be used in determining whether or not “it would be uneconomical for anyone to develop another facility”.

Finally, on Thursday 8 March 2012, R v Getachew raises for consideration the burden of proof in relation to the mental element for the offence of rape where the complainant was asleep at the time of penetration, and the evidence is silent as to whether or not the accused knew the complainant was asleep, ought to have known the complainant was asleep, or thought the complainant was awake.