Forthcoming judgments in the High Court of Australia

Today the High Court of Australia will deliver judgments in three cases.

The first is Daly v Thiering, in which the High Court will rule on whether section 130A of the Motor Accidents Compensation Act 1999 entitles a plaintiff to recover damages against a negligent driver (and his third party insurer) for the past attendant care services provided to him, gratuitously, by his mother.

The second is Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd in which the Court will rule on the circumstances in which a claim for legal professional privilege over a document may be waived where the document has been provided to another party in the course of discovery, as a result of a mistake or as a result of inadvertence.  It will rule on whether the recipient of such a document may be restrained from using the document, notwithstanding the waiver.

The third is Karpany v Dietman, in which the Court will rule on whether or not the native title rights and interests of the Narrunga People in South Australia to fish for Greenlip Abalone were extinguished by operation of the Fisheries Act 1971 (SA).

Cases being heard this week in the High Court of Australia

There are two cases listed for hearing in the High Court of Australia this week.

On Tuesday, 5 November 2013 the Court will hear argument in Unions NSW v State of NSW, a challenge to laws enacted by the O’Farrell Government restricting funding and expenditure of political parties, candidates for and members of the NSW Parliament, and third party campaigners.  Section 96D of the Election Funding, Expenditure and Disclosures Act 1981 (NSW) now prohibits any such person or body from accepting political donations unless the donor is an individual who is enrolled to vote (previously, political donations could also be made by any entity with an Australian Business Number). Section 95F prescribes caps on the amounts of “electoral communication expenditure” that can be made by parties, candidates and third party campaigners for a State election campaign.  Where the expenditure of a party is less than or equal to the cap, section 95G operates to add any electoral communication expenditure made by “affiliated organisations”, namely bodies authorized by a party’s rules to participate in the pre-selection of candidates, or to appoint delegates to the party’s governing body. The vast majority (in dollar terms) of political donations made to the major parties in NSW have been made by organisations and associations rather than by individuals. The party with the highest proportion of non-individual donations is the NSW branch of the ALP.  The plaintiff in these proceedings challenges the validity of the new funding provisions on the grounds that they impermissibly burden the implied freedom of communication on governmental and political matters, or a freedom of association, contrary to the Commonwealth Constitution, or alternatively contrary to the NSW Constitution.

On Thursday, 7 November 2013 the Court will hear argument in James v The Queen. James was charged with one count of intentionally causing serious injury and an alternative count of recklessly causing serious injury.  The victim suffered serious injury when he was struck by a vehicle driven by James.  At his trial, James contended that he did not intend to cause serious injury. Alternatively, he claimed that he acted in self-defence, because he was fearful that the victim wanted to try and stab him with a knife. James was convicted on the count of intentionally causing serious injury.  On appeal, James contended that a miscarriage of justice resulted from the trial judge’s failure to leave to the jury possible alternative verdicts of intentionally, or recklessly, causing injury (as opposed to serious injury). In rejecting that contention, the majority of the Court of Appeal noted that the issue in controversy in the trial as to intention did not concern the severity of the injury intended: rather, it concerned whether any injury was intended. The issue was whether the impact between the vehicle and the victim was deliberate or not. It was never suggested that it might be open to conclude that James had struck the victim deliberately with an intention of causing injury, rather than serious injury. Defence counsel throughout the trial had implicitly accepted that, if James had struck the victim deliberately, the requisite state of mind in terms of serious injury must follow. It was obvious that defence counsel had, for forensic reasons, deliberately decided not to ask the judge to direct the jury about the lesser alternatives. The question for consideration by the High Court is whether or not a trial judge has a duty to leave lesser alternative verdicts for consideration by the jury (where they are realistically or fairly open on the evidence) where that would be inconsistent with the forensic position adopted by trial counsel.

No compensation for sex off the job

Today the High Court held that a Commonwealth government employee who suffered injuries whilst engaging in sexual intercourse in a motel room, booked by her employer while she stayed overnight in a country town, could not recover compensation for her injuries.

In Comcare v PVYW the respondent had been required by her employer to work for two consecutive days in a regional town away from her ordinary place of residence.  She stayed in a motel which booked by her employer.  There, she engaged in sexual intercourse with an acquaintance.  In that process, a glass light fitting above the bed was pulled from its mount and struck her on the face, causing her physical injuries and a subsequent psychological injury.  She sought compensation from Comcare, arguing that her injuries were suffered "in the course of" her employment and that she was, therefore, entitled to compensation.

By majority, the High Court held that in order for an injury sustained in an interval or interlude during an overall period of work to be in the course of an employee's employment, the circumstances in which the employee was injured must be connected to an inducement or encouragement by the employer.  If the employee is injured whilst engaged in an activity at a certain place, that connection does not exist merely because of an inducement or encouragement to be at that place.  When the circumstances of an injury involve the employee engaging in an activity at the time of the injury, the relevant question is: did the employer induce or encourage the employee to engage in that activity?  On the facts of the case, the majority held that the answer to that question was 'no'.

This week in the High Court of Australia

This week the High Court will hear argument in four cases.

On Tuesday, 29 October 2013 the Court will hear argument in Reeves v The Queen, an application for special leave to appeal referred to the full court for argument as if on appeal.  The applicant was infamously dubbed “The Butcher of Bega” by the press.  The main issue on appeal arises out of his conviction for the offence of maliciously inflicting grievous bodily harm with intent, contrary to section 33 of the Crimes Act 1900 (NSW). This charge arose out of the performance of a vulvectomy.  The applicant had been prosecuted for the offence of female genital mutilation (section 45) but the jury had been unable to reach a verdict.  The alternative charge gave rise to the issue of whether or not the patient had consented to the operation (or more accurately, whether the applicant did not have an honest belief that the patient had so consented).  One question on the appeal is what is the correct test for consent in a criminal medical assault case, and in particular does it involve any of the ingredients of “informed consent” as applied in civil cases.  There is also a question of whether the CCA erred in applying the proviso, as well as a challenge to the sentence imposed by the CCA.

On Wednesday, 30 October 2013, the Court will hear argument in Kline v Official secretary to the Governor General, an appeal from the Full Court of the Federal Court of Australia.  Kline had twice nominated a person for appointment to the Order of Australia.  Those nominations had been unsuccessful.  Kline made an application under the Freedom of Information Act 1982 for access to documents relating to those nominations (including documents of a more general nature relating to such nominations, such as working manuals and policy guidelines).  At issue in the appeal is whether or not the documents sought related to “matters of an administrative nature” (in which case the FOI Act required access to be granted) or whether they related to the exercise of a substantive power and function of the Governor-General (ie the administration of the Order of Australia) in which case they were exempt from production.

On Thursday, 31 October 2013 the court will hear argument in Li v Chief of the Army, an appeal from the Full Court of the Federal Court of Australia.  The appellant was charged that he “created a disturbance by causing a confrontation” contrary to section 33(b) of the Defence Force Discipline Act 1982.  That section makes it an offence where a defence member “creates a disturbance or takes part in creating a disturbance or continuing a disturbance.” At issue in the appeal is whether or not the offence as charged is an offence created by section 33(b) (ie whether the words “causing a confrontation” were merely particulars of the charge rather than a substantive element of the offence).  Also at issue is whether the prosecution is required to prove an intention to engage in conduct that in fact creates a disturbance, or whether the prosecution must prove an intention to create a disturbance.

On Friday, 1 November 2013 the court will hear argument in ACCC v TPG Internet Pty Ltd, an appeal from the Full Court of the Federal Court of Australia. In this case TPG was prosecuted for various contraventions of the Trade Practices Act 1974 arising out of advertisements for ADSL2+ access.  The advertisements prominently promoted pricing such as “$29.99pm”, but included in smaller print other statements such as the fact that there was a minimum charge of $509.89, and that the pricing was available only if bundled with a home phone line rental.  At issue, in general terms, is the efficacy of the fine print in defending what would otherwise be a misleading “dominant headline”, as well as the extent to which awareness of the industry practice of bundling and set-up costs to arrive at a minimum price may be assumed for the purposes of assessing whether an advertisement is misleading.

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.

This week in the High Court of Australia

There are three cases listed for hearing this week in the High Court of Australia.

On Wednesday, 2 October 2013 the Court will hear argument in BCM v The Queen.  In substance this is an appeal in respect of a verdict alleged to have been unreasonable and unsupported by the evidence.  However, it raises an important question of law, namely, the adequacy of the reasons given by the Queensland Court of Appeal in finding that the verdict was not unreasonable, and the obligation of an intermediate appellate court to explain its own independent assessment of the evidence.  In this case, in which the appellant was charged with three counts of indecent assault against his granddaughter and in which there were numerous inconsistencies in the versions of events given by her to her mother and to police, the Queensland Court of Appeal discussed the evidence in only 11 paragraphs.

On Thursday the Court will hear argument in Daly v Thiering.  This case raises a question of statutory construction of considerable financial interest to the compulsory third party motor vehicle insurance industry in NSW, but is otherwise of no apparent general importance.  Mr Thiering was rendered a tetraplegic in a motor vehicle accident caused by Mr Daley.  Although a participant in the Lifetime Care and Support Scheme, his mother provides a significant amount of Mr Thiering’s care.  She does this gratuitously and without compensation from the Lifetime Care and Support Authority even though the services she is providing, if not provided by her, would be provided commercially at the expense of the Authority.  At common law Mr Thiering would be entitled to recover from Mr Daley the value of the services provided by his mother, even though they are provided gratuitously. The issue in the High Court is whether on the proper construction of section 130A of the Motor Accidents Compensation Act 1999 Mr Thiering continues to be entitled to recover damages against Mr Daley (and his third party insurer) for the past attendant care services provided to him, gratuitously, by his mother.

On Friday the Court will hear argument in Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd.  In this case the Court will consider the circumstances in which a claim for legal professional privilege over a document may be waived where the document has been provided to another party in the course of discovery, as a result of a mistake or as a result of inadvertence.  It will also consider whether the recipient of such a document may be restrained from using the document, notwithstanding the waiver.