Monday, September 3, 2012

Judgments this week in the High Court of Australia

This week the High Court will deliver judgment in seven cases.
On Thursday, the Court will deliver judgment in Andrews v ANZ Banking Group Ltd, a group proceeding challenging the validity of various exception fees charged on overdraft account, dishonour fees, overdrawn credit card accounts etc.  The issues in the High Court include whether the jurisdiction of the courts in relation to penalties is available only at law or whether it is still alive in equity, and whether a party can only be relieved against a penalty where it becomes payable for a breach of contract (that limitation having been imposed by the House of Lords in Expert Credit Guarantee Department v Universal Oil Products Co).  This case was only heard on 14 August and so judgment has been turned around very rapidly.
On Friday, 7 September 2012 the Court will deliver judgment at 9:30am in four migration cases: Plaintiffs S10/2011, S49/2011 and S51/2011 andKaur.  Common to each of the cases is the question of whether or not (and if so, to what extent) the Department of Immigration and Citizenship is required to afford procedural fairness in inviting comment on internal DIAC advice to the Minister where applications have been made to the Minister to exercise certain non-compellable powers, either to allow a person refused a protection visa to make a further application (under s48B), to substitute a more favourable decision than a decision made by either the Migration Review Tribunal (under s351) or the Refugee Review Tribunal (under section 417).  More importantly, the cases may test the boundaries of the High Court’s decision in Plaintiff M61/2010E which dealt a fatal blow to the government’s processing scheme for offshore asylum seekers.
The Court will at the same time deliver judgment 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, Friday will also see judgment in PT Garuda Indonesia Ltd v Australian Competition and Consumer Commission.  This case arises out of proceedings commenced by the ACC against Garuda and Malaysian Airlines alleging that each was a party to price fixing, market sharing and anti-competitive cartels contrary to section 45 of the Trade Practices Act 1974.  Garuda claimed that it was entitled to immunity from the jurisdiction of Australian courts under the Foreign States Immunities Act 1985.  Garuda is owned as to 95.5% by the Indonesian Government, and 4 out of 5 members of its Board of Commissioners were at the relevant time senior Indonesian government officials.  As such, Garuda would ordinarily be entitled to the immunity from the jurisdiction of Australian courts conferred on foreign states by section 9 (applying by virtue of section 22) of the Act.  There are exceptions to this general immunity, and question for determination is whether or not the proceedings “concern a commercial transaction” for the purposes of section 11 of the Act, with the consequence that the immunity from the jurisdiction of Australian courts does not apply.