This week in the High Court of Australia

Welcome back to the High Court in 2013.  This week, following a ceremonial sitting to welcome new silk this afternoon, the High Court will hear argument in four cases.

First cab off the rank on Tuesday, 5 February 2013 is an appeal from the NSW Court of Appeal in Beckett v State of New South Wales.  The plaintiff was formerly known as Roseanne Catt.  In 1991 a jury found her guilty of various offences relating to assaults on her husband by the plaintiff, and a number of offences of soliciting a Mr Morris and a Mr Taylor to murder her husband.  She was acquitted of a further offence of encouraging a Mr O’Brien to murder her husband, an offence for which the magistrate had refused to commit her to stand trial, but in respect of which the DPP had presented an ex officio indictment.  She was sentenced to 12 years imprisonment. An appeal to the Court of Criminal Appeal was dismissed.  In early 2001 the plaintiff petitioned the Governor for a review of her convictions (under s474B of the Crimes Act 1900) and at the completion of the procedure laid down for such a review in August 2005 the Court of Criminal Appeal quashed certain of the convictions and ordered a re-trial in respect of them.  In September 2005 the DPP directed that there be no further proceedings against the plaintiff in relation to those charges.  The plaintiff in August 2008 commenced proceedings against the State of NSW for malicious prosecution.  Separate Questions were stated for determination which raise the issue of whether or not the plaintiff, in her claim for damages for malicious prosecution, had to positively establish her innocence and whether proof of her innocence was a necessary element of the cause of action for malicious prosecution. A subsidiary question is whether the statutory power of the DPP to direct that there be no further proceedings is equivalent to entering a nolle prosequi at common law.  

On Wednesday, 6 February 2013 is an appeal from three decisions of the NSW Court of Appeal in Castle Constructions Pty Ltd v Sahab HoldingsPty Ltd.  These appeals address the issue of whether or not the intentional (but incorrect) removal of an easement from a land title by the Registrar-General amounts to an “omission” for the purposes of the exception to indefeasibility of title under section 42(1)(a1) of the Real Property Act 1900 as well as for the purposes of the provisions empowering the Supreme Court to order the reinstatement of the easement to the Register.

On Thursday, 7 February 2013 is an appeal from the Full Court of the Federal Court of Australia in Minister for Immigration and Citizenship vLi.  In general terms this case considers the content of the procedural fairness requirements in appeals to the Migration Review Tribunal.  More particularly, it considers whether or not a refusal by the MRT to adjourn a hearing to enable the applicant time in which to satisfy a criterion for the grant of a visa, a criterion that the applicant did not then satisfy, amounts to a denial of procedural fairness.

Finally on Friday, 8 February 2013 is the Special Case in M79/2012 vMinister for Immigration and Citizenship.  The plaintiff is a Sri Lankan citizen who arrived at Christmas Island in February 2010.  He was therefore an “offshore entry person” and was unable to make a valid application for a visa (including a Protection Visa) by virtue of section 46A(1), unless the Minister exercised his power under section 46A(2) to “lift the bar” on the making of such an application.  The plaintiff had access to the administrative systems of Refugee Status Assessment and Independent Merits Review (the systems by which if a person is found to be a refugee, the Minister may then exercise the power to “lift the bar” under section 46A(2)).  Those processes were completed on 17 May 2011 with a recommendation to the Minister that the plaintiff not be recognised as a refugee (ie not a person to whom Australia has protection obligations).  An application for judicial review in the Federal Magistrates Court has been heard, with judgment reserved.  The plaintiff had been held in immigration detention since his arrival on Christmas Island.  However, he was released on 12 April 2012 pursuant to a policy announced on 25 November 2011 that “irregular maritime arrivals” such as the plaintiff would be released from immigration detention and placed in the community on bridging visas.  He was released because he was granted a Temporary Safe Haven Visa (permitting a stay of 7 days) and a Bridging Visa (permitting a stay of 6 months).  The submission signed by the Minister approving the exercise of his intervention power under section 195A noted that the purpose of granting the Temporary Safe Haven Visa was to bar the plaintiff from lodging further onshore visa applications.  A subsequent application for a protection visa was rejected as not being a valid application (because of section 46A(1)).  Upon the expiry of the Bridging E visa the plaintiff was detained before being again released into the community by the grant of a further Bridging E visa.  The plaintiff challenges the grant of the Temporary Safe Haven Visa on two grounds.  The first is that such a visa cannot be granted under the ministerial intervention power in section 195A.  The second is that having been made for an improper purpose (ie to prevent the making of a valid application for a protection visa once lawfully released into the community under the Bridging E Visa) the grant of the Temporary Safe Haven Visa was invalid.

This week in the High Court of Australia

There are two cases to be heard in the High Court of Australia this week.

First up on Tuesday, 11 December 2012 is Maloney v The Queen, an appeal from a decision of the Queensland Court of Appeal upholding the validity of certain provisions of the Liquor Act 1992 (Qld) prohibiting the possession of alcohol on Palm Island as not being inconsistent with the Racial Discrimination Act 1975 (Cth).

Then on Wednesday, 12 December 2012 is Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd, which will give the High Court its first opportunity to consider the proportionate liability provisions enacted in more or less uniform terms throughout Australia as part of the civil liability reforms in the early 2000s, and in particular what wrongdoers are “concurrent wrongdoers” for the purposes of those provisions.

Forthcoming judgments in the High Court of Australia

On Wednesday, 5 December 2012 the High Court will deliver three judgments.

The first is in Papaconstuntinos v Holmes a Court.  This case arises out of the bid made by Holmes a Court and Russell Crowe in 20005 to inject money into the South Sydney Rugby League Club, a bid that was bitterly opposed by the appellant.  In the course of the antagonistic machinations prior to the Extraordinary General Meeting that approved the bid, Holmes a Court wrote a letter to Andrew Fergusson (state secretary of the CFMEU, of which the appellant was a member) accusing the appellant of making misleading statements about the bid, and making allegation of a misuse of Souths’ funds a few years earlier at a time when the appellant’s son was employed by Souths.  The letter was found to be defamatory.  At issue is whether or not Holmes a Court was entitled to succeed on a defence of qualified privilege at common law.

Next is Westfield Management Ltd v AMP Capital Property Nominees Ltd, an appeal from the NSW Court of Appeal arising out of a dispute between UniSuper and Westfield whether to wind-up their joint venture investment scheme in the Karrinyup Regional Shopping Centre in Perth.  At issue is whether or not the Unitholders’ and Joint Venture Agreement properly construed has the effect that UniSuper cannot vote to wind-up the scheme under section 601NB of the Corporations Act without the prior written consent of Westfield, and if so whether the Agreement is to that extent unenforceable as being contrary to the public interest.

Finally, judgment will be delivered in Commissioner of Taxation v Consolidated Media Holdings Ltd.  This case considers the proper constructions of section 159GZZZP of the Income Tax Assessment Act 1936 and its application to a buy-back of 29% of Consolidated Media’s shareholding in Crown Melbourne Ltd at a price of $1 billion. At issue is whether this should properly be treated as a capital gain, or whether it should be treated as a dividend (and therefore entitled to a rebate).

This week in the High Court of Australia

There are three cases to be heard in the High Court of Australia this week.

First up on Tuesday, 4 December 2012 is Assistant Commissioner Michael James Condon v Pompano Pty Ltd, in which the Court will consider the constitutional validity of the Queensland  Criminal Organisation Act 2009 in an application by Queensland Police for a declaration that the Finks Motorcycle Club was a “criminal organisation” and that the respondent company Pompano Pty Ltd was a “part” of that organisation.

Commencing on Wednesday 5 December 2012 is Huynh v The Queen, a series of three appeals arising out of a murder by stabbing in the course of a brawl at the end of an 18th birthday party.  The appeals raise for consideration the extent to which a jury must be directed as to the element of “participation” in a joint enterprise liability for murder (ie where the accused is not alleged to have been the stabber, but was a party to an arrangement or understanding to kill the victim).

Commencing on Friday, 7 December 2012  is Tahiri v MIAC, a Special Case stated for determination by the High Court that will consider the requirements of Public Interest Criteria 4015 in its application to the children of a displaced Afghani Hazara woman who had lived, illegally, in Pakistan since 2003.  In particular, it will consider: whether the “home country” for the purposes of PIC 4015 is Afghanistan or Pakistan; whether the father of the children (who has not been seen since 2003) should be presumed to be dead for the purposes of establishing who has lawful authority to determine where the children should live; and finally whether the mother was afforded natural justice in establishing that her husband should be presumed to be dead.

Grants of Special Leave to Appeal to the High Court

On Friday, 16 November 2012 the High Court granted special leave to appeal in two cases, and referred another three to a full bench for further argument as if on appeal.

Special leave was granted in Minister for Immigration & Citizenship v Li, and appeal from a decision of the Full Court of the Federal Court of Australia.  This decision considered whether the Migration Review Tribunal’s (MRT) refusal to adjourn proceedings before it so as to enable the visa applicant to address procedural errors on the part of a body called Trades Recognition Australia in undertaking a “skills assessment” critical to the applicant meeting the visa criteria, was a refusal reasonably open to the MRT.  It also considered whether the MRT’s refusal constituted a failure to discharge the statutory review function on the footing that the refusal to grant the adjournment deprived the applicant of a meaningful hearing thus depriving the applicant of procedural fairness, and whether an unreasonable refusal to adjourn the proceeding, in circumstances where the applicant’s application for review was thereby doomed to failure, gave rise to jurisdictional error as a denial of procedural fairness and a failure by the MRT to discharge its core statutory function of review.

Special leave was also granted in SZOQQ v Minister for Immigration & Citizenship, on appeal from the Full Court of the Federal Court of Australia.  This case raises the question of whether, in deciding that Australia does not owe protection obligations under the Refugees Convention because the applicant is a “danger to the community” relying on Article 33(2) of the Convention, the Minister is required to balance that danger against the consequences to the applicant of his return to the country from which he is fleeing persecution.

Applications for special leave in two cases involving Aristocrat Technologies referred to a full bench for further argument as if on appeal.  The applications arise out of proceedings commenced by Aristocrat Technologies and associated companies seeking damages for copyright and trademark infringement in relation to the supply of refurbished gaming machines in Latin America (principally Peru) pursuant to a joint venture arrangement.  The issue in the appeal seems to be (or at least to include) the evidentiary use that could be made of certain emails which were said to demonstrate a tendency on the part of the respondents to engage in infringing transactions.

The application for special leave in Yates v The Queen was also referred to a full bench for further argument as if on appeal.  This appeal rises out of the imposition in 1987 of an indeterminate sentence of imprisonment “at the Governor’s pleasure” on the basis that the prisoner posed a danger to the community under section 662 of the Western Australia Criminal Code.