Friday, May 11, 2012

Grants of Special Leave to Appeal in the High Court of Australia

Today the High Court granted Special Leave to appeal in four cases, and in a fifth case granted an application for removal into the High Court.  The description of what the cases involves based upon my reading of the decision from which the appeal has been taken.  They may not necessarily reflect the issues that will ultimately arise in the appeal before the High Court.
In Attorney-General for the State of South Australia v Corporation of the City of Adelaide the High Court granted special leave in a case which raises the validity of a local government by-law prohibiting preaching, canvassing or haranguing or the distribution of leaflets in Rundle Mall, and in particular whether the by-law contravenes any constitutionally-implied freedom of communication.
In Douglass v The Queen the High Court granted special leave in a case which raises the important question of the application and discharge of the burden of proof where the prosecution case depends solely on an out of court statement and unsworn evidence of a young child contradicted in court by the accused’s sworn evidence where that sworn evidence is not rejected by the trial judge.*
In Andrews v Australian and New Zealand Banking Group Limited the High Court has removed proceedings pending in the Federal Court in a class action by customers of the ANZ Bank alleging it charged excessive fees for overdrafts, overdrawn accounts, dishonour fees and over-the-limit credit card accounts.
In Public Service Association and Professional Officers’ Association Amalgamated of NSW v Director of Public Employment the High Court granted special leave to appeal from the Industrial Court of NSW in a case that raises the question of whether a provision in the NSW Industrial Relations Act 1996 that requires the Industrial Relations Commission to give effect to certain aspects of government policy on public sector employment contravenes the so-called  Kable principle.
In Cooper v The Queen the High Court granted special leave in a case that, in the intermediate appeal, raised two issues: first, whether there was a miscarriage of justice by reason of the inadequate representation of the accused at trial (it being asserted that medical evidence should have been led that would have established that the deceased was mentally ill at the time the accused asserted he was acting in self-defence); the second relating to the adequacy of the directions given in relation to the law of joint criminal enterprise.
A notable omission from the grants of special leave was the application in the long-running class action against Merck in which it was alleged that Vioxx had caused the plaintiff’s heart attack.  The Full Federal Court had ruled against the plaintiff on the issue of causation, the evidence being insufficient to exclude any number of other possible causes of the heart attack.  Having regard to the findings of fact made by the Full Federal Court which were not challenged on appeal, the High Court determined that it was not an appropriate vehicle in which to address the matters of principle that might otherwise have arisen, and in particular whether an increase in risk of an adverse event was sufficient to establish causation, and whether some special rule of causation ought be developed to address the difficulty of proving causation in such cases.

* An earlier version of this post recorded the case of Douglass v The Queen as being an "appeal against the severity of a 3 year custodial sentence imposed upon a 55 year old male who indecently assaulted his three year old granddaughter (described as “a single touching of the penis in the context of urination”).  The basis upon which it is said to be manifestly excessive seems to arise out of the role the appellant plays in looking after his mother and his partner, both of whom are in poor health, and his own poor health."  This description was based upon the High Court's listing of the Special Leave results indicating it was an appeal from [2011] SASCFC 6.  Having read the transcript it appears to be an appeal from [2010] SASCFC 66.  Thank you to Jeremy Gans for alerting me to this.


  1. Based on the special leave transcript, the appeal in Douglass actually seems to be about guilt (specifically the safety of a conviction based on a child's testimony), not sentence.

  2. Attorney-General for the State of South Australia v Corporation of the City of Adelaide the High Court sounds like an interesting one. When is the full judgment expected?