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High Court Highlights

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ALJR Editors John Carroll and Colleen Tognetti return with another instalment of our popular High Court roundup.

On 8 September, a majority of the court affirmed a decision of the New South Wales Court of Appeal to the effect that certain media outlets were “publishers” of defamatory comments made by third-party users after the outlets had posted news stories about the plaintiff on their Facebook pages. The media outlets’ acts of facilitating, encouraging and thereby assisting the posting of those comments was enough to render them liable as publishers of the defamatory matter. There was a substantial overlap in the approaches taken by Edelman J and Steward J in separate dissents, with each detailing the degree of connection with the third-party comments that is necessary to establish the publication element of the cause of action. (Fairfax Media Publications Pty Ltd & Ors v Voller [2021] HCA 27; (2021) 95 ALJR 767).


Edwards v The Queen [2021] HCA 28, decided on 6 October, concerned the extent of the Crown’s duty of pre-trial disclosure in criminal matters.  Mr Edwards was charged with a number of sexual offences alleged to have been committed at a public park near Newcastle, New South Wales. He denied knowing where the park was when interviewed by police.  Police seized his mobile telephone and obtained a download of data from it.  The existence of the download was disclosed in an Index to Brief provided by the prosecution solicitors, but at first its contents were not.  Shortly before Mr Edwards’ trial was fixed to commence, the prosecution obtained a statement from a witness linking him to the park in question.  The witness had been identified from information gleaned from the download but this was also not disclosed to the defence.  Following his conviction Mr Edwards appealed on the basis that a fuller disclosure of the existence of the download and what could be gleaned from it would have alerted him to the fact that his telephone could be mined for information potentially useful to his defence.  The NSW Court of Criminal Appeal rejected the proposition that the Crown’s duty of disclosure extended that far, and consequently no miscarriage of justice had occurred.  Mr Edwards appealed to the High Court which dismissed his appeal, agreeing with the court below that while the Crown should have provided the defence with a copy of the download, at least as a matter of good prosecutorial practice, it was not established that the failure to do so in the circumstances had worked a miscarriage of justice by depriving Mr Edwards of a forensic advantage at his trial.


In Charisteas v Charisteas [2021] HCA 29, also handed down on 6 October, the court unanimously decided that family law property settlement orders should be set aside on the ground of a reasonable apprehension of bias arising from private communications between the trial judge and the barrister who had appeared for the wife.  There was no suggestion of actual bias and the barrister stated that the communications did not concern "the substance of the ... case”.  While the communications were halted while evidence was taken, they resumed before final submissions and continued over the lengthy period of 17 months while written reasons for judgment were reserved.  The lack of disclosure was considered particularly troubling. A fair‑minded lay observer, understanding ordinary judicial practice, or what might be described in the context of the case as the most basic of judicial practice, would reasonably have apprehended that the trial judge might not have brought an impartial mind to the resolution of the questions to be decided.

In August 2020 the Western Australian Parliament passed the Iron Ore Processing (Mineralogy Pty Ltd) Agreement Amendment Act 2020 (WA), the avowed effect of which was to block any attempt by Mr Clive Palmer or his company Mineralogy Pty Ltd from recovering any damages arising out of a failure by the State government to approve certain plans for Mineralogy and associated companies to develop iron ore tenements in the Pilbara. This barred claims that could have equalled the State’s entire budget in magnitude.  Both Mr Palmer and Mineralogy issued Writs of Summons in the original jurisdiction of the High Court, seeking to challenge the validity of the Act and/or certain operative provisions of it on various constitutional grounds.  On 8 April Gageler J gave leave to refer a series of questions by way of a Special Case for consideration of the Full Court, which heard argument over four days in June.


In two judgments delivered on 13 October (Mineralogy Pty Ltd v Western Australia [2021] HCA 30 and Palmer v Western Australia [2021] HCA 31), the Full Court unanimously held that the Act was valid in its entirety.  Specifically, the amendments effected by the Act to an earlier statute did not offend the Australia Act 1986 (Cth), s 6 in the manner and form of their enactment by reason of their effect on the amendment of a private agreement embodied in a schedule to the earlier statute, and in barring access to the courts of the State the amendments did not threaten the institutional integrity of those courts or purport to be an exercise of judicial power contrary to the Constitution, Ch III.  In shutting down arbitrations on foot in Western Australia the amendments did not affect the operation of interstate legislation or the recognition of arbitral awards by interstate courts contrary to the “full faith and credit” provision in the Constitution, s 118 either.  Regarding Mr Palmer himself, the Act did not contravene the Constitution, s 117 by subjecting him to any disability or discrimination by virtue of his being a resident of Queensland.  A further argument that the Act operated as a “bill of pains and penalties” contrary to Ch III was succinctly rejected because none of its provisions was concerned with criminal guilt or punishment.


Of perhaps broader interest, the court’s judgments included some reflections on the use – and misuse – of the Special Case procedure as a means of settling justiciable controversies.  Since a Special Case proceeds on a series of agreed facts and documents, it is necessary to identify these with precision: as the plurality in Mineralogy observed, the adjudicative facts to be stated in a Special Case should be framed with the same precision as is necessary when pleading facts in a demurrer.  Further, since the function of the court is strictly adjudicatory and not advisory, the Special Case should address a live issue, not one which may never arise, or one that can be resolved by other processes.  The plurality noted that the parties to the proceeding did not frame their Special Case “with sufficient attention to relevant principles”.


Finally, in Ridd v James Cook University [2021] HCA 32, also delivered on 13 October 2021, the court explored the scope of the protection of intellectual freedom embodied in the respondent University’s enterprise agreement.  Another clause in the agreement imposed confidentiality requirements concerning the University disciplinary processes, which had been invoked in response to the appellant’s public criticism of research published by his colleagues.  The High Court concluded that constraints contained in the University’s Code of Conduct did not restrict the intellectual freedom preserved by the enterprise agreement except to the extent that those constraints were adopted within the particular provision itself.  The intellectual freedom protected by the enterprise agreement was not a general freedom of speech and any expression of disagreement with the University’s decisions or decision‑making processes had to follow the applicable processes, including adhering to obligations of confidentiality.  The court accordingly upheld the University’s decision to terminate the appellant’s employment.

By Colleen Tognetti
Senior Legal Editor, Cases

Colleen Tognetti is a senior legal editor in Thomson Reuters ANZ Cases Team. She is a co-editor of the Australian Law Journal Reports.

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