This week in the High Court of Australia

The High Court of Australia will hear argument in three cases this week.

The first argument is in Commissioner of Taxation v MBI Properties Pty Ltd.  Argument in this case commenced on 11 September 2014 but was adjourned when counsel for the Commissioner became ill during the course of submissions. It raises a short question of statutory construction under the GST legislation, and in particular whether or not there is a supply to a lessee by the purchaser of the reversionary interest under the lease who continues to receive rent.

The second argument is in Commissioner of State Revenue v Lend Lease Development Pty Ltd.  This case raises a question of general importance as to whether or not payments made by a developer to a statutory authority for infrastructure and construction works carried out as part of a large urban renewal project form part of the consideration paid for the sale of parcels of land from the authority to the developer.

The third argument is in Korda v Australian Executor Trustees (SA) Ltd.  This case raises a question of general important as to whether the intention necessary to create a trust by investors in an investment scheme is to be determined by reference solely to the terms of the transaction documents executed by them, or more generally by reference to the commercial setting in which the investment was made.

Forthcoming judgments in the High Court of Australia

The High Court will deliver two judgments next week on Wednesday, 5 November 2014.

The first is in the case of Alphapharm Pty Ltd v H Lundbeck A/S, a challenge to a decision by the Commissioner of Patents (upheld by the AAT and the Full Federal Court) to extend the time within which Lundbeck could make an application to extend the term of the Patent held for an anti-depressant drug marketed by Lundbeck in various forms under the names Cipramil and Lexapro.  At its heart is an argument about the proper construction of the Patents Act and the regulations made thereunder.  But it has profound commercial significance for Lundbeck and its competitors (who had already placed generic versions of the drugs on the market prior to the extension) as well as for the public health budget.

The second is the case of Wellington Capital Limited v ASIC.  This case addresses the relationship between provisions commonly found in the Constitution of managed investment schemes to the effect that the Responsible Entity has all powers legally possible for a corporation as if it were the absolute owner of the scheme property and acting in its personal capacity, conferring power to dispose of and deal with the scheme property as if it were the beneficial owner of the property, and the provisions of section 601FC of the Corporations Act 2001, which provides that a Responsible Entity holds scheme property on trust for the scheme members.

Constitutional age of senility of the current High Court of Australia

By reason of section 72 of the Constitution, the retirement age of judges appointed to the High Court of Australia and other federal courts is 70.

The current members of the High Court will reach that age on the following dates: 

Hayne	5 June 2015
Crennan	1 July 2015
French	9 March 2017
Bell	7 March 2021
Keane	26 October 2022
Keifel	17 January 2024
Gageler	5 July 2028

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.