Monday, October 21, 2013

Grants of Special Leave in the High Court of Australia

On 11 October 2013 the High Court granted Special Leave to Appeal in four cases.
In Thiess v Collector of Customs the appellant imported a yacht into Australia. For reasons not entirely apparent to the casual observer, because this yacht had a gross construction tonnage exceeding 150 tons, no duty was payable upon its importation.  However, due to a mistake made by the appellant’s customs broker who believed the vessel to be only 108 tons, the yacht was entered under the incorrect tariff classification and import duty was assessed in the amount of almost $500,000 (along with almost $50,000 in GST payable in respect of the import duty).  Section 167 of the Customs Act 1901 provides a procedure by which a dispute as to the amount or rate at which duty is payable may be resolved.  That procedure calls for the full amount to be paid under protest, and for proceedings challenging that amount or rate to be commenced within 6 months.  As no such proceedings for the recovery of the duty had been commenced within that time period, Customs argued that the appellant was not entitled to a refund of the duty paid.  The appellant argued that section 167 only applied where there had been a demand for payment of duty, because until such time there could be no dispute or payment made under protest.  This construction issue is the issue that is the subject of the grant of special leave.  Special Leave was refused in relation to a constitutional argument to the effect that the extinguishment of rights to repayment of overpaid (or mistakenly paid) duty effected an acquisition of property on other than just terms.
In Moseley v Director of Public Prosecutions (NT) the appellant was convicted of the aggravated armed robbery of a KFC outlet in Coconut Grove, Darwin.  He was one of two persons alleged to have been involved in the robbery, the other being a man named Tippett.  Following his conviction, another man named Da Silva confessed to being the person who had accompanied Tippett in the robbery.  Tippett subsequently corroborated this confession.  As a result, the appellant successfully appealed to the NT Court of Criminal Appeal and his conviction was set aside, ostensibly on the basis that there had been a miscarriage of justice resulting from the absence at his trial of the evidence of Da Silva.  The Court of criminal Appeal ordered a re-trial.  Thereafter, Da Silva recanted his confession.  If Da Silva’s initial confession was in fact false, then the appellant’s appeal was predicated upon a fabrication.  The DPP then commenced proceedings to set aside the Court of Criminal Appeal’s judgment on the grounds of fraud.  The issue in the High Court is whether or not there is power to set aside the judgment, and if so whether the power should be exercised.
In A-G (NT) v Emmerson the Court will again be called upon to rule on the validity of criminal asset forfeiture laws, this time in the Northern Territory.  The challenge raises a number of interesting issues.  One is the argument that a statute requiring a court to declare someone to be a “drug trafficker” in respect of offences that would not commonly be considered drug trafficking, said to be a consequence inconsistent with the institutional integrity of the Supreme Court.  Another is whether the forfeiture of the assets, in circumstances where the “declared person” has already been convicted of the offences that give rise to the declaration, amounts to an additional punishment at the request of the executive contrary to the institutional integrity of the Supreme Court. A further argument is to the effect that the forfeiture amounts to an acquisition of property on other than just terms.
In ADCO Constructions Pty Ltd v Goudappel the Court will consider an appeal from the NSW Court of Appeal in relation to the transitional operation of certain amendments to the Workers Compensation Act 1987.  Its general importance is difficult to divine, although it may have something interesting to say about provisions in an Act authorizing the making of regulations that have a transitional operation and otherwise amend the operation of the Act itself.

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