Tuesday, February 11, 2014

This week in the High Court of Australia

Apologies to everyone…having been on holidays I missed the beginning of the High Court’s law term.  I will shortly post details of the cases heard last week.
This week there are three cases being argued in the High Court of Australia.
First cab off the rank, on Tuesday 11 February 2014, is the case of Australian Financial Services and Leasing Pty Ltd v Hills Industries Ltd, an appeal from the NSW Court of Appeal.  In this case a rogue and his companies were heavily indebted to Hills Industries and another company, Bosch Security.  The rogue generated fake invoices for the purchase of non-existent equipment from Hills and Bosch.  Using these invoices he raised funds from AFSL.  AFSL thought it was purchasing goods from Hills and Bosch and leasing them back to the rogue.  The funds were paid by AFSL to Hills and Bosch by electronic transfer.  The rogue told Hills and Bosch the moneys were partial repayment of the debts he owed to them.  As a result of that partial repayment, Hills desisted from taking proceedings against the rogue’s companies to recover the debts, and Bosch agreed to setting aside various default judgments and abandoning other proceedings that were currently on foot. Ultimately, the fraud was discovered, and AFSL commenced proceedings seeking the restitution of the funds paid to them.  At first instance Einstein J ordered Hills to pay restitution to AFSL, but dismissed AFSL’s claim as against Bosch.  Einstein J found that Hills had given no consideration for the moneys it had received from AFSL.  Nor had Hills suffered detriment arising out of a (speculative) change of its position after receiving those moneys. Einstein J upheld Bosch’s defence of “change of position”, as Bosch had incurred a detriment by extinguishing its legal claims against AFSL.  The Court of Appeal unanimously dismissed an appeal by AFSL and allowed an appeal by Hills.  Their Honours held that the “change of position” defence was made out by both Bosch and Hills.  This was because, by discharging the debts owed to them by TCP, they had each given up an opportunity to enforce payment of those debts by TCP.  The Court of Appeal found that in such circumstances it would be unjust for either Bosch or Hills to be required to pay restitution to AFSL.  At issue in the High Court is whether or not Hills and Bosch were required to demonstrate actual expenditure or financial commitment or loss in order to make out the defence of change of position in a claim for payment by mistake.  Also at issue is whether in any event Hills and Bosch had a defence to the claim for restitution because the receipt and application of funds by Hills and Bosch was a bond fide discharge of the indebtedness of the rogue’s companies.
On Wednesday, 12 February 2014 the Court will hear argument in State of Western Australia v Brown.  This case arises out of a joint venture established in 1960 to develop the iron ore deposits at Mount Goldsworthy in the Pilbara region of Western Australia. The State of Western Australia and the joint venturers executed an agreement, the operative form of which was given effect to by the Iron Ore (Mount Goldsworthy) Agreement Act 1964 (WA).  In the context of proceedings for the determination of native title in relation to land in the Pilbara region, an order was made to determine as a separate question whether the Mount Goldsworthy mineral leases were subject to the native title rights and interests of the Ngarla People or whether the rights granted to the joint venturers extinguished those native title rights and interests. At first instance, Bennett J found that the Mount Goldsworthy mineral leases did not confer exclusive possession on the joint venturers so as to extinguish wholly the native title rights and interests of the Ngarla People, but found that the rights granted under those mineral leases and the underlying agreement were inconsistent with the native title rights and interests continuing to exist in the area where the mines, town sites and associated infrastructure were constructed, but not in the undeveloped areas.  As a consequence of this inconsistency, her Honour held that the Ngarla People’s native title rights and interests were wholly extinguished in the developed areas of the mineral leases.  Brown, on behalf of the Ngarla People, appealed.  The State of Western Australia and the joint venturers cross-appealed, arguing that the trial judge should have found that the Ngarla People’s native title rights and interests were wholly extinguished across the whole of the area which was subject to the mineral leases. The Full Court of the Federal Court of Australia allowed the appeal and dismissed the cross-appeal.  Greenwood J found that the native title rights of the Ngarla people were not extinguished by the grant, but that the exercise of the granted rights by the mining companies would prevent the exercise of each of the native title rights (over the whole land) for so long as the mining companies carried on the activities contemplated by the agreement.  The Full Court concluded that the Ngarla people were prevented from exercising their native title rights over the whole land while the joint adventurers continued to hold their rights as granted.
On Thursday, 13 February 2014 the Court will hear argument in Achurch v The Queen. Achurch was convicted of three offences relating to the supply of prohibited drugs.  He was sentenced to 14 years imprisonment with a non-parole period of 6 years.  The Crown appealed on the grounds that the sentencing judge had failed to sentence Achurch in accordance with the NSW Crimes (Sentencing Procedure) Act 1999 because the second and third offences attracted a standard non-parole period of 10 and 15 years respectively.  The NSW Court of Criminal Appeal upheld the appeal, sentencing Achurch to 18 years imprisonment with a non-parole period of 13 years. The High Court subsequently delivered judgment in Muldrock v The Queen [2011] HCA 39 in which it held that the Sentencing Act id not require the Court to commence by asking whether there were reasons for not imposing the standard non-parole period, but simply required the Court to the court to take into account the full range of factors in determining the appropriate sentence for the offence, while being mindful of two legislative guideposts: the maximum sentence and the standard non-parole period.  Achurch then applied for leave to have his appeal re-opened, arguing that the effect of Muldrock was that his original sentencing did not proceed according to law.  This application was rejected by an enlarged bench of the NSW Court of Criminal Appeal, which held that not only should the Crown appeal have been allowed, but that no lesser sentence was warranted.  In the High Court, Achurch challenges both the construction of the sentencing Act by the (second) Court of Criminal Appeal, and also the decision not to reopen the appeal on the grounds that the sentence could, in accordance with correct principle, have been lawfully imposed.

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