High Court Year in Review 2015
As we settle down into a new year, we thought we’d take the opportunity to look back on some of the judgments handed down by the High Court of Australia in 2015. In total, the High Court delivered 53 judgments with HCA media-neutral citations in 2015, including four single-Justice decisions and one costs judgment, an increase of one judgment compared to 2014.
Unlike 2014, 2015 saw changes to the composition of the bench. We said goodbye to Justices Susan Crennan and Kenneth Hayne, and welcomed the Hon Geoffrey Nettle and the Hon Michelle Gordon as Justices of the High Court.
Starting off this review with one of the quirkier outcomes of the year, the Court in Queensland v Congoo  HCA 17; 89 ALJR 538 was split 3:3 as to whether native title had been extinguished by military orders that allowed certain land to be used as an artillery and live fire manoeuvre range. Consequently, the decision of the Full Court of the Federal Court (Congoo v Queensland  FCAFC 9; 218 FCR 358, which held that native title was not extinguished) was affirmed by operation of the Judiciary Act 1903 (Cth), s 23(2)(a).
In one of the most publicised cases of the year, D’Arcy v Myriad Genetics Inc  HCA 35; 89 ALJR 924, the Court held that a claim in respect of an isolated nucleic acid (in this case, one that indicated susceptibility to breast and ovarian cancer) was not patentable as it did not fall within the concept of “manner of manufacture”. In another patents decision, AstraZeneca AB v Apotex Pty Ltd  HCA 30; 89 ALJR 798, the Court held that a patent which disclosed a method of treating high blood cholesterol was invalid because it lacked an inventive step.
Another case to attract widespread attention in 2015 involved New South Wales Senior Deputy Crown Prosecutor Margaret Cunneen SC, who was said to have counselled a person to pretend to have chest pains in order to prevent police gathering evidence of that person’s blood alcohol content at the scene of a motor accident. The High Court held, in Independent Commission Against Corruption v Cunneen  HCA 14; 89 ALJR 475, that the alleged conduct was not “corrupt conduct” within the meaning of the Independent Commission Against Corruption Act 1988 (NSW), s 8(2), and therefore that the Independent Commission Against Corruption had no power to conduct an inquiry. The Court held that the words “adversely affect” in the relevant definition of “corrupt conduct” refer to conduct that affects (or could affect) the probity of the exercise of an official function by a public official, and that conduct that affects (or could affect) merely the efficacy of the exercise of such a function was not within the definition.
Following on from the decision in Cunneen, the New South Wales Parliament enacted the Independent Commission Against Corruption Amendment (Validation) Act 2015 (NSW), which relevantly inserted Pt 13 into the Independent Commission Against Corruption Act, Sch 4. Part 13 deemed those acts done by the Commission prior to the decision in Cunneen to be valid to the extent that they would have been valid if the definition of “corrupt conduct” in s 8(2) encompassed conduct which adversely affected the efficacy, but not the probity, of the exercise of official functions. The Court, in Duncan v Independent Commission Against Corruption  HCA 32; 89 ALJR 835, held that Pt 13 was not invalid. The applicant in that case had, prior to the decision in Cunneen, been found by the Commission to have engaged in “corrupt conduct” that did not affect the probity of the exercise of a public official’s functions.
The Commission report that came under challenge in Duncan v Independent Commission Against Corruption was central to the proceedings in Duncan v New South Wales  HCA 13; 89 ALJR 462 as well. After considering reports containing findings that a number of individuals had engaged in corrupt conduct in relation to the grant of coal exploration licences, the New South Wales Parliament enacted the Mining Amendment (ICAC Operations Jasper and Acacia) Act 2014 (NSW), which inserted Sch 6A into the Mining Act 1992 (NSW). Schedule 6A purported to cancel, without compensation, three specified licences. The High Court held that the relevant provisions of Sch 6A were within the competence of the New South Wales Parliament, did not involve the exercise of judicial power, and did not bear the characteristics of a bill of pains and penalties.
Yet another significant decision of 2015 was also related to the theme of corruption under New South Wales law. The decision concerned the constitutional implied freedom of political communication and the validity of the Election Funding, Expenditure and Disclosures Act 1981 (NSW), which imposed caps on political donations, prohibited property developers from making such donations, and restricted indirect campaign constitutions. In McCloy v New South Wales  HCA 34; 89 ALJR 857, the Court upheld the validity of relevant provisions of the Act. Although the laws indirectly burdened political communication by restricting the funds available to political parties and candidates, the provisions were a legitimate means of pursuing the legitimate objective of removing the risk and perception of corruption and undue influence in New South Wales politics.
A phone call to the King Edward VII hospital in London also made its way to the High Court in 2015. In a much publicised prank, two radio presenters recorded a conversation with hospital staff in which the presenters, pretending to be Queen Elizabeth II and Prince Charles, solicited information about the condition of the Duchess of Cambridge, who was an in-patient of the hospital. The Australian Communications and Media Authority commenced an inquiry into the broadcaster and found that it had breached a licence condition prescribed by the Broadcasting Services Act 1992 (Cth), Sch 2, cl 8(1)(g), by committing an offence against a law of a State (namely, the Surveillance Devices Act 2007 (NSW), s 11). In Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd  HCA 7; 89 ALJR 382, the Court held that the Authority did have the power to make an administrative determination that a licensee had committed a criminal offence as a prelude to taking enforcement action, notwithstanding that there had been no finding of guilt by a criminal court.
Another case of some interest in 2015 concerned Izzy the Staffordshire terrier, who was saved from death row by the Court in Isbester v Knox City Council  HCA 20; 89 ALJR 609. The issue in that case concerned reasonable apprehension of bias on the part of an administrative official. The Court found that a fair-minded observer might reasonably have apprehended that a person who took part in the decision to order the destruction of Izzy might not have brought an impartial mind to the decision in circumstances where the person was also substantially involved in an earlier decision to prosecute Izzy’s owner for being the owner of a dog that had attacked a person causing serious injury. The official’s role in the criminal proceedings gave her an interest which was incompatible with her involvement in the decision to destroy Izzy.
Unsurprisingly, the High Court dealt with numerous migration cases in 2015. In fact, the Court kicked off 2015 with CPCF v Minister for Immigration and Border Protection  HCA 1; 89 ALJR 207, which also turned out to be the longest judgment of the year. A majority in that case dismissed a claim for damages for false imprisonment by a plaintiff who had been detained at sea on a Commonwealth vessel after being intercepted by border protection officials in Australia’s contiguous zone. The Court held that the plaintiff’s detention was authorised by the Maritime Powers Act 2013 (Cth), s 72(4), and that the power under that section was not subject to an obligation to afford the plaintiff procedural fairness.
In other refugee, protection and humanitarian visa decisions, the Court held in Minister for Immigration and Border Protection v WZAPN  HCA 22; 89 ALJR 639 that the likelihood of temporary detention for a reason mentioned in the Refugees Convention was not of itself a threat to liberty within the meaning of the Migration Act 1958 (Cth), s 91R(2)(a). In Minister for Immigration and Border Protection v WZARH  HCA 40; 90 ALJR 25, the Court held that the respondent was denied procedural fairness when he was not told that the person conducting the independent merits review of his Refugee Status Assessment had been substituted. In Plaintiff S297/2013 v Minister for Immigration and Border Protection  HCA 3; 89 ALJR 292, the Court held that the Minister could not refuse a visa application only because the applicant was an unauthorised maritime arrival. Significantly, the Court also took the step of issuing a peremptory writ of mandamus, commanding the Minister to grant the plaintiff a protection visa forthwith. In Plaintiff M64/2015 v Minister for Immigration and Border Protection  HCA 50, the Court found that there was no jurisdictional error in refusing global special humanitarian visas to the plaintiff’s family. The capacity of the Australian community to permanently settle all such applicants and the limited number of places in the relevant program were factors that could be taken into account by the Minister.
In Wei v Minister for Immigration and Border Protection  HCA 51, the Court found jurisdictional error where a student visa was cancelled on the basis of incorrect enrolment information recorded in an electronic database, while in Uelese v Minister for Immigration and Border Protection  HCA 15; 89 ALJR 498 jurisdictional error was found where the Administrative Appeals Tribunal erred in its application of the Migration Act, s 500(6H), by failing to consider information adduced during the cross-examination of a witness.
The High Court also dealt with a number of criminal matters in 2015, both in relation to convictions and sentences and sentencing. In R v Pham  HCA 39; 90 ALJR 13, it held that in sentencing offenders for federal offences, courts must have regard to sentencing practices across the country. The Victorian Court of Appeal had erred in sentencing in accordance with current practices in Victorian courts, rather than in accordance with sentencing practices across the entire country. In CMB v The Queen  HCA 9; 89 ALJR 407, the Court held, in respect of a prosecution appeal against sentence, that the prosecution must demonstrate appellable error and negate any reason why the residual discretion not to interfere with the sentence should be exercised.
The partial defence of provocation was considered in both Lindsay v The Queen  HCA 16; 89 ALJR 518 and Filippou v The Queen  HCA 29; 89 ALJR 776, although with very different outcomes for the two appellants. In the former case, where the deceased had made repeated advances for homosexual sex to the appellant, in the appellant’s house and in the presence of his wife, the High Court ordered a new trial, holding that flawed directions on the issue of provocation resulted in a miscarriage of justice. However, in the latter case, where there was a dispute as to who brought a gun to the scene of the crime, the High Court unanimously dismissed the appeal.
In Smith v The Queen  HCA 27; 89 ALJR 698, the trial judge had been informed of the jury’s interim votes before permitting the jury to return a majority verdict. The High Court found that the trial judge had not denied procedural fairness to the accused by not disclosing the voting patterns to counsel, such information not being relevant to any issue before the court. In Police v Dunstall  HCA 26; 89 ALJR 677, the Court held that it was not relevantly unfair to admit evidence of a breath analysis in a drink driving prosecution where a blood analysis was not available because a medical practitioner had failed to take a sufficient sample of blood. And in Commissioner of the Australian Federal Police v Zhao  HCA 5; 89 ALJR 331, the Court held that forfeiture proceedings should be stayed until the determination of criminal charges against the second respondent, where the issues in both the forfeiture and criminal proceedings would be substantially identical.
In the field of civil penalty provisions, Commonwealth v Director, Fair Work Building Industry Inspectorate  HCA 46 held that courts are not precluded from imposing penalties that are agreed between the parties because the principle in Barbaro v The Queen  HCA 2; 253 CLR 58; 88 ALJR 372 does not apply to civil penalty proceedings. In R v Beckett  HCA 38; 90 ALJR 1, the Court held that acts done before the commencement of judicial proceedings may constitute the offence of perverting the course of justice where they are done with intent to frustrate or deflect the course of potential judicial proceedings, while in North Australian Aboriginal Justice Agency Ltd v Northern Territory  HCA 41; 90 ALJR 38 it held that relevant provisions in the Police Administration Act (NT), Pt VII, Div 4AA, which provide certain powers to detain persons arrested without a warrant, were not penal or punitive in character; nor did they impair the institutional integrity of the Northern Territory courts.
A number of revenue cases were also dealt with in 2015. In AusNet Transmission Group Pty Ltd v Federal Commissioner of Taxation  HCA 25; 89 ALJR 707, the Court held that certain statutory charges imposed on the holder of an electricity transmission licence were of a capital nature and therefore not tax deductible. In Macoun v Federal Commissioner of Taxation  HCA 44; 90 ALJR 93, the Court held that monthly pension payments received by a former officer of the International Bank for Reconstruction and Development were not exempt from taxation, while in Federal Commissioner of Taxation v Australian Building Systems Pty Ltd (in liq)  HCA 48, it held that the retention obligation imposed on agents and trustees by the Income Tax Assessment Act 1936 (Cth), s 254(1)(d), only arises after an assessment or deemed assessment has been made in respect of the relevant income, profits or gains.
The Court also considered the Corporations Act 2001 (Cth) in a number of decisions in 2015. In Grant Samuel Corporate Finance Pty Ltd v Fletcher  HCA 8; 254 CLR 477; 89 ALJR 401, the Court held that rules of court of the States and Territories cannot apply so as to vary the time dictated by s 588FF(3) for the bringing of proceedings for orders with respect to voidable transactions. Fortress Credit Corporation (Australia) II Pty Ltd v Fletcher  HCA 10; 254 CLR 489; 89 ALJR 425, another case involving s 588FF(3), held that a court can make an order extending time where the voidable transactions cannot be identified at the time of the order (a so-called “shelf order”). And in Selig v Wealthsure Pty Ltd  HCA 18; 89 ALJR 572, the Court held that the proportionate liability regime in Pt 7.10, Div 2A applies only to claims of misleading or deceptive conduct based upon a contravention of s 1041H and does not extend to claims based upon conduct of a different kind.
In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Queensland Rail  HCA 11; 89 ALJR 434, the Court held that Queensland Rail is a trading corporation within the meaning of the Constitution, s 51(xx), and therefore subject to the Fair Work Act 2009 (Cth) rather than Queensland industrial relations law. Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd  HCA 45; 90 ALJR 107, held that s 357(1) prohibited the misrepresentation of an employment contract as a contract for services with a third party. In that case the respondent was found to have contravened s 357(1) by representing to two housekeepers that their contracts of employment were contracts for services under which they performed work as independent contractors.
In Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd  HCA 21; 89 ALJR 622, the Court held that the appellant could be ordered to make discovery of particular documents in proceedings brought to punish it for civil contempt. In PT Bayan Resources TBK v BCBC Singapore Pte Ltd  HCA 36; 89 ALJR 975, the Court held that it was within the inherent power of the Supreme Court of Western Australia to make a freezing order in relation to an anticipated judgment of a foreign court which, when delivered, would be registrable by order of the court under the Foreign Judgments Act 1991 (Cth). And in Firebird Global Master Fund II Ltd v Republic of Nauru  HCA 43, another judgment relating to that Act, it was held that while the appellant could register a foreign judgment against the respondent, the respondent was nonetheless immune from execution over certain property that it held in Australia.
The court also considered a number of cases involving negligence and awards of damages in 2015. Fuller-Lyons v New South Wales  HCA 31; 89 ALJR 824 concerned an eight-year-old boy who fell from a train. There was no direct evidence of the circumstances of the fall. The Court restored the plaintiff’s award of $1,536,954.55 damages, holding that the New South Wales Court of Appeal erred in overturning the primary judge’s ultimate factual finding about the circumstances of the accident. In King v Philcox  HCA 19; 89 ALJR 582, the Court considered the meaning of “present at the scene of the accident when the accident occurred” within the meaning of the Civil Liability Act 1936 (SA), s 53(1). The Court held that a person who had driven past the scene of an accident several times was not present at the scene “when the accident occurred” and was precluded from recovering damages for mental harm by s 53. In another South Australian appeal, the Court held, in Allen v Chadwick  HCA 47, that the plaintiff was not contributorily negligent under s 47 for travelling in a car driven by an intoxicated driver, but that she was contributorily negligent under s 49 for failing to wear a seatbelt. And in Alcan Gove Pty Ltd v Zabic  HCA 33; 89 ALJR 845, the Court held that the respondent was not statute-barred from suing the appellant in negligence in respect of work-related mesothelioma, as his cause of action in negligence arose before the relevant cut-off date in the Workers Rehabilitation and Compensation Act (NT).
In Cassegrain v Gerard Cassegrain & Co Pty Ltd  HCA 2; 254 CLR 425; 89 ALJR 312, the Court considered the fraud exception to indefeasibility of title in the Real Property Act 1900 (NSW), s 42(1). The Court held that the appellant’s husband’s fraud could not be sheeted home to her, with the consequence that her title to certain land as joint tenant was not defeasible on account of his fraud. However, the appellant’s interest as tenant in common as to half which she subsequently derived from her husband was defeasible by virtue of s 118(1)(d)(ii), as she was not a bona fide purchaser for value of that interest. In another property-related judgment, Gnych v Polish Club Ltd  HCA 23; 89 ALJR 658, the Court held that a lease granted in contravention of the Liquor Act 2007 (NSW), s 92(1)(d), was not void and unenforceable.
Issue estoppel was considered in Tomlinson v Ramsey Food Processing Pty Ltd  HCA 28; 89 ALJR 750, where the Court held that declarations made by the Federal Court in proceedings commenced by the Fair Work Ombudsman against the respondent did not create an issue estoppel precluding the appellant from asserting that the respondent was not his employer in a subsequent proceeding. In Korda v Australian Executor Trustees (SA) Ltd  HCA 6; 89 ALJR 340, the Court held that the proceeds of asset sales which were payable to the operators of a timber plantation investment scheme were not subject to an express trust in favour of scheme investors becasue the scheme documentation did not support the existence of such a trust. Finally, Lavin v Toppi  HCA 4; 254 CLR 459; 89 ALJR 302 held that a bank’s covenant not to sue one co-surety (which paid a relatively minor portion of the guaranteed debt to the bank) did not prevent the other co-sureties (who had paid a disproportionate amount of the debt) from recovering contribution.
The Court returns from its summer recess on 1 February 2016. The FirstPoint team, which also brings you the Australian Law Journal Reports headnotes, looks forward to reporting another year of interesting High Court case law in 2016.