52 Cards in the Deck: High Court of Australia 2014 Review
With the end of the year upon us, we thought we’d take the opportunity to look back on some of the judgments handed down by the High Court of Australia this year. All up, the Court delivered 52 judgments in appeals and original jurisdiction matters in 2014. Some of these decisions were unanimous, while others were not.
For all the Full Court decisions that were handed down during 2014, it was perhaps an early single Justice decision that attracted the most publicity this year. That decision, of course, related to the validity of the 2013 election for senators for the State of Western Australia. Following the loss of 1,370 ballot papers during an official recount, petitions disputing the election result were filed. Hayne J, sitting in the Court of Disputed Returns, found that the electors represented by the lost ballot papers were prevented from voting in the election, and that, given the very narrow margin involved at the relevant exclusion point, the loss probably affected the result of the election: see Australian Electoral Commission v Johnston  HCA 5; 251 CLR 463; 88 ALJR 408. Hayne J subsequently made orders declaring the election of all six senators absolutely void (see Australian Electoral Commission v Johnston  HCATrans 32), and Western Australian voters went back to the polls on 7 April 2014. In the end, five of the six senators elected in the voided election were again elected in the 2014 special election; however the Sports Party’s Wayne Dropulich, who was the fifth elected senator in the 2013 poll, was not elected again, his place being taken by the Palmer United Party’s Zhenya Wang.
Another case to attract significant publicity in 2014 was a second battle over the validity of Commonwealth funding of school chaplains. Following the striking down of the chaplaincy program’s funding arrangements in 2012 (see Williams v Commonwealth  HCA 23; 248 CLR 156; 86 ALJR 713), legislation was enacted for the purpose of giving retrospective support to the program. Mr Williams commenced further proceedings challenging the validity of the new funding arrangement. The Court held, in Williams v Commonwealth  HCA 23; 88 ALJR 701, that the legislation authorising the funding of the National School Chaplaincy and Student Welfare Program was not a law with respect to “benefits for students”. The legislation was held to be not valid in its relevant operation, striking down the funding of school chaplains for a second time.
A case on gender also attracted wide interest this year. The case related to a person named Norrie, who was born male, had gender reassignment surgery and now no longer identifies as specifically male or female. Norrie sought to be registered as being of “non-specific” gender, an application that was rejected by the Registrar of Births, Deaths and Marriages. However, in NSW Registrar of Births, Deaths v Marriages v Norrie  HCA 11; 250 CLR 490; 88 ALJR 506, the Court affirmed a decision of the New South Wales Court of Appeal, holding that it was open to the Registrar to record the applicant’s gender as non-specific.
The Court also delivered a much-awaited employment law decision in 2014 in relation to an asserted implied duty of mutual trust and confidence in employment contracts. An executive manager who was made redundant by the appellant bank contended that his employment contract included an implied term of mutual trust and confidence, such that neither party would, without reasonable cause, conduct itself in a manner likely to destroy or seriously weaken the relationship of trust and confidence between them. However, the Court, in Commonwealth Bank of Australia v Barker  HCA 32; 88 ALJR 814, disagreed with the employee, rejecting the contention that a term of mutual trust and confidence is to be implied by law in all employment contracts.
Remaining in the field of employment and industrial law, the Court, in Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd  HCA 41; 88 ALJR 980, held that the termination of an employee who had been holding up and waving a sign reading “No principles SCABS No guts” at a lawful protest was not contrary to the Fair Work Act 2009 (Cth), s 346(b). The employee’s dismissal was not “because” of his participation in a lawful protest; rather, the reasons for dismissal related to his conduct and what it represented to the employer about him as an employee.
Criminal appeals again made up a large share of the Court’s workload in 2014. In Barbaro v The Queen  HCA 2; 88 ALJR 372, the Court considered the role of a prosecutor’s submissions as to the available range of sentences, holding that the practice, common in Victoria, of prosecuting counsel providing a submission about the bounds of the available range was wrong in principle. The Court overruled R v MacNeil-Brown (2008) 20 VR 677 to the extent that it supported such a practice. Correctly viewed, a prosecutor’s conclusion about the bounds of an available range of sentence is a statement of opinion; it is not a submission of law that a sentencing judge should take into account when fixing the sentence to be imposed.
Smith v Western Australia  HCA 3; 250 CLR 473; 88 ALJR 384 saw the court enter the sanctity of the jury room to consider whether the post-verdict discovery in the jury room of a note addressed to the trial judge was capable of giving rise to a reasonable suspicion that a juror had not discharged his or her task where the note stated that its unidentified author had been physically coerced by a fellow juror into changing his or her verdict. The Court held that evidence by a juror that unlawful pressure or influence had been applied to him or her by another juror in relation to his or her verdict was outside the scope of the rule that ordinarily prevents evidence being received about jury deliberations. The note was capable of establishing a miscarriage of justice, if an inquiry into the matter was unable to dispel the shadow of injustice cast upon the verdict.
In Achurch v The Queen  HCA 10; 88 ALJR 490, the Court dismissed a contention that a sentence infected with Muldrock error was a penalty that was “contrary to law” that enlivened the sentencing court’s statutory power to reopen the sentencing proceedings, while in Gillard v The Queen  HCA 16; 88 ALJR 606, it held that recklessness as to a circumstance negating consent in relation to sexual assaults (relevantly, knowledge that consent was caused by abuse of a position of authority) does not establish the mental element of knowledge of, or recklessness as to, a lack of consent. In Lee v The Queen  HCA 20; 88 ALJR 656, the Court held that the appellant had been denied a fair trial where the prosecution was in wrongful possession of evidence given under compulsion to the NSW Crime Commission, while in Honeysett v The Queen  HCA 29; 88 ALJR 786, it held that an anatomist’s comparison of the anatomical characteristics of the offender captured in CCTV footage and the accused was not properly admitted as identification evidence.
The duties of a trial judge with respect to leaving alternative verdicts to the jury were considered in James v The Queen  HCA 6; 88 ALJR 427, while in Milne v The Queen  HCA 4; 88 ALJR 395, the Court considered what amounts to an intention to use property as an “instrument of crime”. In Fitzgerald v The Queen  HCA 28; 88 ALJR 779, the Court set aside a conviction in a circumstantial case where a reasonable hypothesis consistent with innocence (namely, secondary transfer of DNA to a didgeridoo found at the crime scene) was not excluded. And, in Kentwell v The Queen  HCA 37; 88 ALJR 947 and O’Grady v The Queen  HCA 38; 88 ALJR 960, the Court held that a court, in determining an application for extension of time to appeal against sentence, is not required to consider whether refusal of the extension would result in substantial injustice.
The validity of a number of law and order and criminal confiscation provisions also came before the court in 2014. In Kuczborski v Queensland  HCA 46; 89 ALJR 59, the longest judgment of 2014, the Court held that various offences relating to participants in criminal organisation did not offend the Kable principle. In Attorney-General (NT) v Emmerson  HCA 13; 88 ALJR 522, the Court held that a statutory scheme for the forfeiture of declared drug traffickers’ property did not involve an acquisition of property without just terms; nor did it offend the Kable principle. Likewise, the Kable principle was found not to be offended by Queensland legislation permitting the indefinite detention of certain sexual offenders in Pollentine v Bleijie  HCA 30; 88 ALJR 796. In Tajjour v New South Wales  HCA 35; 88 ALJR 860, the Court rejected a contention that there was an implied freedom of association (distinct from the implied freedom of political communication) in the Constitution, and held that New South Wales laws prohibiting habitual consorting with convicted offenders did not infringe the implied freedom of political communication. And, just this week, the Court held, in Henderson v Queensland  HCA 52, that the appellant had not discharged his onus of proving that almost $600,000 in cash found in his possession was “not illegally acquired”, exposing the appellant to forfeiture of that property.
Moving away from the criminal law sphere, the Court handed down judgments in four revenue cases. In Thiess v Collector of Customs  HCA 12; 250 CLR 664; 88 ALJR 514, the Court held that recovery of duty mistakenly paid on the importation of a yacht as a result of an error by the importer’s customs agent was statute-barred. In Howard v Federal Commissioner of Taxation  HCA 21; 88 ALJR 667, the Court dismissed a contention by the taxpayer that he had received an award of equitable compensation on constructive trust for a company of which he was a director. The Court found that, at the time that the taxpayer obtained or became entitled to that amount, there was no actual conflict, or real possibility of conflict, between his personal interests and his duty as a director, and, accordingly, the sum was correctly included in his assessable income. Towards the end of the year, the Court, in Federal Commissioner of Taxation v MBI Properties Pty Ltd  HCA 49, held that the purchaser of premises that were subject to an ongoing lease to a hotel operator was liable to assessment for GST under the increasing adjustment provisions, while in Commissioner of State Revenue (Vic) v Lend Lease Development Pty Ltd  HCA 51 it held that the purchase price for parcels of land that formed part of the Melbourne Docklands redevelopment was only part of the consideration for a dutiable transaction. The balance of the consideration was found in various other payments due to the vendor after the developed land was sold.
As in previous years, the Court also dealt with a number of immigration cases in 2014. In Plaintiff S156/2013 v Minister for Immigration and Border Protection  HCA 22; 88 ALJR 690, the Court upheld the constitutionality of removal of unauthorised maritime arrivals to Manus Island. However, in Plaintiff S297/2013 v Minister for Immigration and Border Protection  HCA 24; 88 ALJR 722 and Plaintiff M150 of 2013 v Minister for Immigration and Border Protection  HCA 25; 88 ALJR 735, the Minister’s determination to limit the number of protection visas granted in a specified financial year was held to be invalid. In Plaintiff S4/2014 v Minister for Immigration and Border Protection  HCA 34; 88 ALJR 847, the Court held that the Minister, having decided to consider to whether to exercise his power under the Migration Act 1958 (Cth), s 46A(2), to lift the bar that precludes an offshore entry person from making a valid application for a visa, could not, of his own motion, grant temporary safe haven and temporary humanitarian concern visas to the applicant where the grant of those visas foreclosed the Minister’s consideration of whether to lift the bar.
In FTZK v Minister for Immigration and Border Protection  HCA 26; 88 ALJR 754, the Court held that the Refugee Review Tribunal fell into jurisdictional error by relying on factors that were not logically probative in determining that there were “serious reasons for considering” that the applicant, a Chinese national, had committed serious non-political crimes (kidnapping and murder) in China, hence excluding him from protection under the Refugees Convention. Likewise, in Minister for Immigration and Border Protection v SZSCA  HCA 45; 89 ALJR 47 the Court held that the Tribunal failed to properly address whether the applicant had a well-founded fear of persecution by failing to address whether it would be reasonable to expect the respondent to remain in Kabul and not expose himself to Taliban persecution by driving trucks outside it.
The Court also looked at a number of compensation, damages and torts cases in 2014. In Brookfield Multiplex Ltd v Owners – Strata Plan No 61288  HCA 36; 88 ALJR 911 the Court held that the builder of a commercial strata block for a developer did not owe a duty of care to the subsequent owners corporation to avoid pure economic loss, while in Hunter and New England Local Health District v McKenna  HCA 44; 89 ALJR 39, it held that the appellant health authority did not owe a duty of care to the relatives of a man killed by a mentally ill patient who had been discharged from hospital into the man’s care. Statutory provisions, including those mandating the minimum of interference with the liberty of a mentally ill person, were inconsistent with the common law duty alleged.
In Taylor v Owners – Strata Plan No 11564  HCA 9; 88 ALJR 473, the Court held that provisions in the Civil Liability Act 2002 (NSW) limiting damages for loss of earnings did not apply to a claim for damages under the Compensation to Relatives Act 1897 (NSW) by a widow whose husband was killed by a falling shop awning. And in Gray v Richards  HCA 40; 88 ALJR 968, it held that the plaintiff, who had sustained a traumatic brain injury as a result of a motor vehicle accident and who was incapable of managing her own affairs, was entitled to recover, as a component of a damages award, an amount in respect of the costs associated with managing the fund management damages, but was not entitled to recover an amount in respect of the cost of managing the fund’s predicted future income. Retrospective changes to NSW workers’ compensation legislation were held to affect the right to claim a lump sum in ADCO Constructions Pty Ltd v Goudappel  HCA 18; 88 ALJR 624.
Moving to intellectual property, in Alphapharm Pty Ltd v H Lundbeck A/S  HCA 42; 89 ALJR 1, a slender majority held that the Patents Act 1990 (Cth), s 71(2), imposes two cumulative time requirements for applications for an extension of the term of a patent, and that s 223(2) empowered the Commissioner to extend the second time requirement (but not the first). In its only other intellectual property decision of the year, the Court held, in Cantarella Bros Pty Ltd v Modena Trading Pty Ltd  HCA 48, that the appellant’s registered trade marks (“ORO” and “CINQUE STELLE”) were “inherently adapted to distinguish” the appellant’s brands of coffee, notwithstanding that, in the Italian language, they were merely descriptive.
In the corporations law field, a liquidator was found, in Stewart v Atco Controls Pty Ltd (in liq)  HCA 15; 88 ALJR 594, a to have an equitable lien over a settlement sum with respect to the costs and expenses incurred in litigation to recover money on behalf of the company in liquidation. In Wellington Capital Ltd v Australian Securities and Investments Commission  HCA 43; 89 ALJR 24, the Court held that the responsible entity of a managed investment scheme had exceeded its powers by distributing scheme property in specie to unit holders, while in MacarthurCook Fund Management Ltd v TFML Ltd  HCA 17; 88 ALJR 616, it was held that redemption of units in a managed investment scheme by the responsible entity pursuant to the terms of issue did not amount to ‘withdrawal’ from the scheme by the unit holder within the meaning of the Corporations Act 2001 (Cth), Pt 5C.6.
Proof of detrimental reliance in a proprietary estoppel claim was considered in Sidhu v Van Dyke  HCA 19; 251 CLR 505; 88 ALJR 640, in which the Court held that the appellant was precluded from departing from his assurances that he would transfer a cottage to the appellant following her detrimental reliance on that promise. The defence of change of position to an action in restitution for recovery of money paid under mistake was at issue in Australian Financial Services and Leasing Pty Ltd v Hills Industries  HCA 14; 88 ALJR 552.
In Maxwell v Highway Hauliers Pty Ltd  HCA 33; 88 ALJR 841, the Court considered the Insurance Contracts Act 1984 (Cth), s 54(1), and the circumstances in which an insurer was prevented from refusing to pay a claim by reason of some “act” of the insured occurring after the contract was entered into. The Court held that the insurers in that case were prevented from refusing to pay claims for indemnity made by the insured, in circumstances where the insured failed to comply with an endorsement forming part of the contract of insurance (namely, that drivers of its vehicles had passed a certain psychological test). In Electricity Generation Corporation (t/as Verve Energy) v Woodside Energy Ltd  HCA 7; 251 CLR 640; 88 ALJR 447, the Court considered the seller’s obligations, under a long-term gas supply contract, to use “reasonable endeavours” to supply gas over and above the purchaser’s “take or pay” requirements, finding that the obligations had not been breached.
In Argos Pty Ltd v Minister for the Environment and Sustainable Development  HCA 50, the Court held that the operators of two supermarket businesses were persons whose interests were adversely affected by the Minister’s decision to approve a nearby commercial development, which was to include a supermarket and specialty shops, and that they therefore were “persons aggrieved” by the decision within the meaning of the Administrative Decisions (Judicial Review) Act 1989 (ACT), s 5(1). However, the holder of a Crown lease, upon which one of the aggrieved supermarket operators held a sublease, was not itself a person aggrieved.
The Court dealt with only one native title case this year, holding, in Western Australia v Brown  HCA 8; 88 ALJR 461, that native title had not been extinguished by certain long term mineral leases.
2014 was a year of stability for the Court, with no change to the composition of the bench during the year. However, 2015 will bring at least two changes, with the Hon Geoffrey Nettle replacing Crennan J early in the new year, and Hayne J reaching retirement age in June. Another exciting year of High Court output no doubt awaits us in 2015.
On behalf of the local FirstPoint team, which also brings you Australian Law Journal Reports headnotes for High Court decisions, we wish you a safe and happy festive period. We look forward to what 2015 delivers.