This week in the High Court of Australia

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

On Tuesday, 14 October 2014 the High Court will hear CPFC v Minister for Immigration and Border Protection, a challenge to the power of the Commonwealth to remove Tamil Sri Lankan asylum seekers intercepted outside of Australia’s territorial waters but within its contiguous zone. Section 72 of the Maritime Powers Act 2013 (Cth) makes provision for the detention and movement of persons on a vessel detained by maritime officers (which include members of the Australian Defence Force and Customs officers).  It provides that a maritime officer may take such persons to a place in the migration zone, or outside the migration including to a place outside of Australia. On 1 July 2014 the National Security Committee of Cabinet decided that the detainees should all be taken to India.  This was in accordance with a government policy of intercepting and removing from Australian waters any person without a visa who attempts to enter Australia by boat.  The detainees remained aboard the Australian vessel while it travelled through international waters and later waited near India while diplomatic negotiations took place.  The Minister then decided to take the detainees into Australia’s migration zone instead of to India.  The detainees remained aboard the Australian vessel until 27 July 2014, when they were taken to the Cocos (Keeling) Islands where they were detained under s 189(3) of the Migration Act 1958 (Cth). The plaintiff challenges the lawfulness of his detention outside of Australia and Australia’s contiguous zone, and seeks damages for wrongful imprisonment.  One important aspect of the challenge is whether or not the Commonwealth has the power to detain for the purposes of removal to another country in contravention of Australia’s international law obligation of non-refoulement, an issue the Federal Government is seeking to render moot by proposed amendments to the Maritime Powers Act.

On Thursday, 16 October 2014 the High Court will hear argument in Henderson v State of Queensland.  In April 2002, police searched a motel room at which the appellant was staying and found illegal drugs in the possession of acquaintances of the appellant’s who were the focus of the search.  Police also searched a car hirted by the appellant in which they found a small quantity of cannabis, along with almost $600,000 cash.  The appellant claimed to have obtained the money by selling a collection of antique jewellery inherited from his father.  Police obtained a restraining order against the money under the Criminal Proceeds Confiscation Act 2002 (Qld), having satisfied the Supreme Court that they had reasonably suspected that the money was property of a person who had engaged in an activity that constituted a serious criminal offence.  In subsequent proceedings to avoid forfeiture of the cash to the State, the appellant had to establish under s 68(2)(b) of the Act that the money had probably not been illegally acquired.  The appellant’s evidence was that his father gave him a boxful of jewellery and told him to use it to look after his siblings.  The appellant and three of his siblings all gave evidence that their father had told them that he had a collection of jewellery that had been given to an ancestor of his as a reward for services provided to Russian nobles (this would have occurred din the late 1800s or early 1900s).  After his father’s death the appellant obtained a valuation of the jewellery, which estimated it to be worth between $600,000 and $700,000 wholesale or $1 million retail.  The appellant then sold the jewellery for $620,000 cash to a man who was later untraceable, as his details had been written only on a $50 note which had since been exchanged (either by the appellant or by the police when the money was banked).  The valuer named by the appellant was unfit to give evidence, but sketches of the jewellery made by him were examined by a valuer called by the State, who gave evidence that the jewellery in those sketches would have been made after 1950. Justice Lyons held that the appellant had failed to prove that the jewellery had not been illegally acquired, as he was unable to establish how his father had come to possess it. The Queensland Court of Appeal dismissed an appeal, holding that the appellant could not succeed by raising an absence of evidence as to how his father had acquired the jewellery, as the Act cast the onus on the appellant to prove that relevant property had not been illegally acquired.  He therefore had to prove both that the jewellery was from an era when it had allegedly come into the family and that his father had not unlawfully acquired it. 

The smouldering saga of Queen's Counsel

Today I received a missive through the DX commending and enclosing what was described as an “excellent” article supporting the case for the reintroduction of Queen’s Counsel.  Such is the enthusiasm of the sender of this article that rather than waste their letterhead they simply photocopied a form letter to their “Dear Colleague”. But I digress.

The “excellent article” appeared in the May 2013 edition of Quadrant, and is so full of spurious conjecture that it cannot be allowed to go unchallenged, having been disinterred for the purposes of the debate now smouldering in NSW.

It begins with the unreferenced assertion that “most lay people in Australia do not know what an SC is.” Let’s assume for one moment that is so (has there been a survey?) it really begs a number of questions.  Do most lay people know what a QC is? Does it matter what lay people think given that, in practical terms, the decision who to brief is substantially made by non-lay people who do know what an SC is? To the extent lay people are choosing a barrister, would it make a difference to their decision if they had it explained to them what an SC is?

There is then the hubris of invoking the “globalisation of law”.  Such recognised experts as the Reverend Fred Nile are quoted as authority for the difficulty Australian senior counsel will have in being chosen to oppose a British Barrister in Singapore if they have SC rather than QC after their name? 

The “legal export industry” of England is then invoked. Somehow calling senior counsel SC rather than QC will impede Australia from becoming “lawyer to the region” in the way that England is “lawyer to the world”.  There are surely much larger impediments to Australia fulfilling that function:  the regular invocation of English law as the law governing contracts and disputes has nothing to do with the choice of post-nominals, but it is the significant reason why major Asian commercial disputes will continue to be fought out by those schooled in English law.  The fact that most of these combatants will have some existing connection to lawyers and advisors in Singapore and Hong Kong is another major structural impediment to the export of Australian legal service into the Asian market. Even the fact that the Singapore International Arbitration Centre has its own smartphone app must be much more of an impediment to Australia attracting legal work than the fact that our post-nominals do not include a royal reference.

It is then acknowledged that a change to QC will not result in Australia being chosen as a seat of arbitration more often than Singapore.  But it is then asserted that it will help “by indicating an understanding of what the international legal market wants and a maturity and level of engagement with that market.”  One wonders how all of the American and European arbitration advocates ever managed to get any work without QC (or SC, or anything else for that matter) after their names.  And one might be forgiven for thinking that actual engagement in the market rather that (post) nominal lip-service might be a much more important factor in a decision about who to brief as advocate, or who to appoint as arbitrator.

Let’s be clear.  The sort of work that is being promoted as a justification for replacing SC with QC is work that is conducted by sophisticated law firms, on behalf of sophisticated clients.  In the absence of some hard evidence (not idle speculation from Fred Nile or Jarrod Bleijie) that barristers with suitable reputation and eminence are missing out on work because they are SC rather than QC, let sleeping dogs lie.

Cases to be heard next week in the High Court of Australia

Next week the High Court will hear argument in three cases.

On Wednesday, 8 October 2014 the Court will hear argument in Hunter and New England Local Health District v McKenna.  This case considers the liability of mental health practitioners for negligence in the exercise of powers of compulsory detention under the (then) Mental Health Act 1990.  On 20 July 2004 Mr Stephen Rose arranged for his friend, Mr William Pettigrove, to be admitted to the Manning Base Hospital in Taree due to concerns he had over Mr Pettigrove’s mental health.  Pursuant to the Mental Health Act 1990 (NSW), Mr Pettigrove was compulsorily detained overnight.  He was however released into Mr Rose’s care the next day following a subsequent psychiatric assessment by the Hospital’s psychiatrist, Dr Coombes.  Mr Pettigrove was released to enable both men to travel by car to Victoria which is where Mr Pettigrove's mother lived.  After stopping en route near Dubbo, Mr Pettigrove strangled Mr Rose to death.  Mr Pettigrove later told police that he had acted on a revenge impulse, apparently believing that Mr Rose had killed him in a past life.  Mr Pettigrove himself subsequently committed suicide.  The issues for detemrinaiton by the High Court are numerous, and include whether or not the Hospital owed a duty of care to Mr Rose and/or Mr Rose’s family, the operation of section 5O of the Civil Liabiltiy Act 2002 (relating to the standard of care owed by professionals) and sections 43 and 43A of that Act (relating to the liability of public authorities for breach of statutory duty and failure to exercise special statutory powers).

On Thursday, 9 October 2014 the Court will hear argument in Minister for Immigration and Border Protection v SZSCA.  In that case the respondent is an Afghani citizen of Hazara ethnicity who claimed to fear persecution due to his membership of a particular social group, namely “truck drivers who transported goods for foreign agencies”.  He also claimed to fear persecution based upon political opinions imputed to him by the Taliban.  He unsuccessfully applied for a protection visa.  On appeal to the RRT, the RRT accepted the plausibility of the threats made against him, but concluded that he could avoid persecution if he returned to Kabul and changed his occupation.  Successive appeals to the Federal Court resulted in a determination that the RRT had erred in limiting itself to what the respondent could reasonably do upon return to Afghanistan rather than what he would do. 

On Friday, 10 October 2014 the Court will hear argument in Argos Pty Ltd v Simon Corbell, Minister for the 
Environment and Sustainable Development.  This case considers the extent to which mere economic interests are sufficient to ground standing as a “person aggrieved” under section 5(1) of the Administrative Decision (Judicial Review) Act 1989.  In essence, the appellants were the operators of IGS Supermarkets in two suburbs of Canberra.  The second and third respondents sought and were granted planning approval for a shopping centre development (including a supermarket) in a third Canberra suburb.  The appellants sought to challenge that approval, claiming to be “persons aggrieved” by reason of the impact upon their trading if the shopping centre development went ahead.

Welcome to New Chambers

A big shout out to New Chambers, Sydney's just-launched set of barristers.

The foundation members of New Chambers were previously members of Seven Wentworth, one of Australia's most respected barristers' chambers. 

It is presently constituted by 11 senior counsel and 10 junior counsel.  From 1 February 2015, New Chambers will welcome 14 new members, together with 6 new licensees.  This follows their expansion from Level 34 and part of Level 33, into the remainder of Level 33 and the physical integration of the two floors over the Summer Vacation.

Head on over to check them out at www.newchambers.com.au

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”.