Thursday, October 2, 2014

Forthcoming judgments in the High Court of Australia

Next week the High Court will deliver judgment in three cases.
On Wednesday, 8 October 2014 the Court will deliver judgment in Tajjour v State of New South Wales, which comprises three challenges brought to section 93X of the NSW Crimes Act 1900.  This section was introduced by the Crimes Amendment (Consorting and Organised Crime) Act 2012.  It provides that a person who “habitually consorts with convicted offenders” and who in fact consorts with those convicted offenders after being given an official warning in relation to each of those convicted offenders, is guilty of an offence.  Consorting may occur in person, or by any other form of communication, including electronically.  A “convicted offender” is any person convicted of any indictable offence.  There are various defences available where a Court is satisfied that the consorting was reasonable in the circumstances, such as consorting with family members, or in the course of employment, or training and education, or in the provision of health or legal services. The plaintiffs in the three sets of proceedings challenge the laws on the grounds that they impermissibly burden the implied freedom of communication on governmental and political matters contrary to the Commonwealth Constitution.  They also raise the question of whether the Constitution contains an implied freedom of association, independently of the implied freedom of communication.  A challenge is also made on the independent ground that the provisions contravene the International Covenant on Civil and Political Rights. which, so it is alleged, places a limitation upon the legislative power of the State of New South Wales.
The Court will also deliver judgment on Wednesday in Brookfield Multiplex Pty Ltd v Owners Corporation Strata Plan 61288.  This case arose out of the construction by Brookfield of a high-rise apartment building on land owned by a company known as Chelsea Apartments Pty Ltd.  The apartments were completed in 1999 and the strata plan for the apartments was registered, creating the Owners Corporation.  In 2008 the Owners Corporation sued Brookfield in negligence for the cost of rectifying defects in the building.  The question that arises is whether or not a duty was owed by Brookfield to the Owners Corporation to take reasonable care in the construction of the building so as to avoid causing the Owners Corporation harm in the form of pure economic loss resulting from latent defects in the common property.

Then on Thursday, 9 October 2014 the Court will deliver judgment in Kentwell v The Queen and O’Grady v The Queen.  These cases raise an important procedural issue in relation to appeals in the criminal jurisdiction in NSW.  In each case the appellants commenced an appeal against sentence in the NSW Court of Criminal Appeal, but required an extension of time within which to bring that appeal.  The same panel of judges heard each of the applications, and in each case it was found that the sentencing judge had erred by making a so-called Muldrock error (named after the High Court decision that held that a standard non-parole period was not the starting point from which sentencing courts depart by applying aggravating or mitigating factors, but was simply one of the factors in determining the appropriate sentence).  Nonetheless, in each case the Court of Criminal Appeal held that the error had not resulted in any substantial injustice and therefore refused the extension of time within which to appeal.  The appellants’ complaint is two-fold: firstly, the CCA should not have imposed a “no substantial injustice” test to the exercise of the discretion to extend time, and secondly that in doing so they effectively determined the merits of the appeal in a “summary fashion”.

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