Hearsay ... the Journal of the Bar Association of Queensland
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Issue 80 - Sept 2017
High Court of Australia Judgment Summary Notes Print E-mail

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The following summary notes of recent decisions of the High Court of Australia provide a brief overview of each case. For more detailed information, please consult the Reasons for Judgment which may be downloaded by clicking on the case name.

Commissioner of Taxation v Jayasinghe [2017] HCA 26 (9 August 2017)

Today the High Court unanimously allowed an appeal from the Full Court of the Federal Court of Australia. The High Court held that the taxpayer, Mr Jayasinghe, was not entitled to exemption from taxation in the income years ended 30 June 2010 and 30 June 2011, as he was not a person who held an office in an international organisation within the meaning of s 6(1)(d)(i) of the International Organisations (Privileges and Immunities) Act 1963 (Cth) ("the IOPI Act"), and that the Commissioner of Taxation ("the Commissioner") was not bound to exempt Mr Jayasinghe from taxation by reason of s 357-60(1) of Sched 1 to the Taxation Administration Act 1953 (Cth) and Taxation Determination TD 92/153.

Mr Jayasinghe was a qualified civil engineer. During the relevant income years, he was engaged by the United Nations Office for Project Services ("UNOPS"), an operational arm of the United Nations ("the UN"), as a "project manager" to build a 190 kilometre gravel road in Sudan. Mr Jayasinghe was engaged under an "Individual Contractor Agreement" to perform "specialist services" in recognition of his "skills and expertise". Under that agreement, he had the legal status of an independent contractor of UNOPS, had no authority or other right to enter into any legal or financial commitments or incur any obligations on behalf of UNOPS, was responsible for paying any tax levied by the Australian Government on his UNOPS earnings, and did not have the status of an official of the UN for the purposes of the Convention on the Privileges and Immunities of the United Nations [1949] ATS 3 ("the 1946 UN Convention"). From at least 1 May 2010, he was considered an expert on mission for the UN within the terms of s 22 in Art VI of the 1946 UN Convention.

The Commissioner disallowed an objection lodged by Mr Jayasinghe to notices of amended assessment issued to him for his earnings from UNOPS. The Administrative Appeals Tribunal set aside the Commissioner's decision, concluding that the substance of the relationship between Mr Jayasinghe and UNOPS, and the obligations created and implemented in carrying out the project, were such that he held an office within the meaning of s 6(1)(d)(i) of the IOPI Act, and that he was an employee and entitled to the benefit of TD 92/153. A majority of the Full Court of the Federal Court dismissed an appeal by the Commissioner.

Allowing the Commissioner's appeal, the plurality held that the phrase "a person who holds an office in an international organisation" in s 6(1)(d)(i) directed attention to the structure of the organisation and the person's place within it and was concerned with the incidents of the relationship between a person and an international organisation; which incidents depended on the substance of the terms upon which a person was engaged. The incidents of the relationship between Mr Jayasinghe and the UN were such that he did not "hold an office" within the meaning of s 6(1)(d)(i). Further, as Mr Jayasinghe was engaged by UNOPS as an expert, the Court unanimously held that he fell outside the scope of the phrase "person who holds an office" and that the Commissioner was not bound by TD 92/153 to exempt him from taxation.

IL v The Queen [2017] HCA 27 (9 August 2017)

Today the High Court, by majority, allowed an appeal from a decision of the Court of Criminal Appeal of the Supreme Court of New South Wales.

The appellant was tried in the Supreme Court of New South Wales. Count 1 on the indictment charged the appellant with manufacturing a large commercial quantity of a prohibited drug, namely methylamphetamine. Count 2 charged the appellant with murder, or alternatively manslaughter, pursuant to s 18(1) of the Crimes Act 1900 (NSW).

At trial, the Crown alleged that the appellant had committed the offence in Count 1 by participating with the deceased in a joint criminal enterprise to manufacture a large commercial quantity of methylamphetamine. The Crown case on Count 2 was that the appellant was guilty of "felony" or "constructive" murder, or alternatively manslaughter, because the act which caused the deceased's death was committed in the course of the joint criminal enterprise to manufacture a large commercial quantity of methylamphetamine, an offence punishable by imprisonment for life. The act causing death was the lighting of a gas ring burner in a small and inadequately ventilated bathroom, which caused a fire. Although the Crown could not exclude the possibility that the deceased had lit the gas ring burner himself and so was killed accidently as a result of his own act, the Crown argued that, because the appellant participated with the deceased in the joint criminal enterprise, the appellant was criminally liable for all acts committed in the course of carrying out that enterprise for the purposes of s 18(1) of the Crimes Act.

At the close of the Crown case, the appellant moved for directed verdicts of not guilty in respect of each of the alternative counts in Count 2. The trial judge acceded to that application and directed the jury accordingly. On appeal, the Court of Criminal Appeal held that the trial judge was incorrect to direct a verdict of acquittal on each of the alternative counts.

By grant of special leave, the appellant appealed to the High Court. By majority, the Court allowed the appeal. Three Justices allowed the appeal on the basis that s 18(1) of the Crimes Act is not engaged if a person kills himself or herself. Two Justices allowed the appeal on the basis that it is not open to attribute criminal liability to one participant in a joint criminal enterprise for an act committed by another participant in the course of carrying out that enterprise unless the act is, or is part of, the actus reus of a crime. Assuming the deceased lit the gas ring burner, that act was not the actus reus of the crime of murder or manslaughter. The appeal was therefore allowed, and the verdicts of acquittal on Count 2 reinstated.

Ramsay Health Care Australia Pty Ltd v Compton [2017] HCA 28 (17 August 2017)

Today the High Court published reasons for dismissing an appeal on 4 May 2017 from a decision of the Full Court of the Federal Court of Australia. The appeal concerned the circumstances in which a Bankruptcy Court may “go behind” a judgment in order to be satisfied that the debt relied upon by the petitioning creditor is truly owing. A majority of the High Court held that where a creditor’s petition is based upon a judgment debt resulting from a contested hearing, yet there are substantial reasons for questioning whether behind that judgment there was in truth and reality a debt due to the petitioner, the Bankruptcy Court has a discretion to “go behind” the judgment to investigate whether the debt relied upon is truly owing.

In November 2012, Ramsay Health Care Australia Pty Ltd (“Ramsay”) entered into an agreement with Compton Fellers Pty Ltd (trading as Medichoice), of which Adrian Compton was a director, for the importation and distribution of medical products. The agreement expired on 30 June 2013 and Medichoice subsequently went into liquidation. Ramsay commenced proceedings in the Supreme Court of New South Wales against Mr Compton, claiming that $9,810,312.33 was owing to it under the agreement. Mr Compton raised a defence disputing liability, but not the quantum of his indebtedness. The defence was unsuccessful, and the Court entered judgment for the amount claimed. Ramsay served a bankruptcy notice on Mr Compton requiring that he pay the judgment debt. He did not comply.

On 4 June 2015, Ramsay presented a creditor’s petition in reliance upon Mr Compton’s failure to comply with the bankruptcy notice. Mr Compton applied for a separate determination of the question of whether the Bankruptcy Court should exercise its discretion to go behind the judgment to investigate the debt. Mr Compton adduced evidence suggesting that it was in fact Ramsay that owed money to Medichoice and not vice versa. The primary judge in the Federal Court declined to go behind the judgment, noting that Mr Compton’s counsel before the Supreme Court had made a forensic decision not to dispute quantum. Mr Compton appealed to the Full Court, which unanimously allowed his appeal, holding that the primary judge had erred by focussing on the way in which Mr Compton had conducted his case in the Supreme Court, rather than on the central issue of whether reason was shown for questioning whether the debt was truly owing to Ramsay, which the Court found there was.

By grant of special leave, Ramsay appealed to the High Court, arguing that the power to go behind a judgment after a contested hearing exists only in the event of “fraud, collusion or miscarriage of justice” and that “miscarriage of justice” here refers only to matters impeaching the judgment such that it should never have been obtained (there being no suggestion of fraud or collusion in this case). A majority of the Court rejected that argument, relying on Wren v Mahony (1972) 126 CLR 212 as authority for the propositions that: first, the fact that a judgment was obtained without collusion or fraud after a contested hearing does not preclude the possibility of there being sufficient reason for questioning the underlying debt; and second, that “miscarriage of justice” is not limited to cases where the judgment is so tainted that it may be set aside. The Court emphasised that s 52(1) of the Bankruptcy Act 1966 (Cth) imposes an obligation on the Bankruptcy Court to be satisfied that the debt on which the petitioning creditor relies is still owing. The majority held that, in light of the evidence adduced by Mr Compton, the Full Court was correct to conclude that the Bankruptcy Court should proceed to investigate the question of whether the debt relied upon by Ramsay was owing.

Knight v Victoria [2017] HCA 29 (17 August 2017)

Today the High Court unanimously held, in answer to a question posed in a special case, that s 74AA of the Corrections Act 1986 (Vic) ("the Act") is not invalid on the ground that it is contrary to Ch III of the Constitution.

In 1988, the plaintiff pleaded guilty to seven counts of murder and 46 counts of attempted murder. The Supreme Court of Victoria sentenced him to imprisonment for life for each count of murder and imprisonment for 10 years for each count of attempted murder, and fixed a non-parole period of 27 years. The plaintiff's non-parole period expired on or about 8 May 2014. On 2 April 2014, the Victorian Parliament inserted into the Act a new s 74AA, headed "Conditions for making a parole order for Julian Knight". The effect of s 74AA is to prevent the Adult Parole Board ("the Board") from ordering that the plaintiff be released on parole unless satisfied, amongst other things, that he is in imminent danger of dying or is seriously incapacitated and that, as a result, he no longer has the physical ability to do harm to any person.

On 11 March 2016, the plaintiff lodged an application for a parole order with the secretary of the Board. On 27 July 2016, a division of the Board consisting of a retired Judge of the County Court of Victoria and two non-judicial members decided to require certain reports, including a report from the Secretary to the Department of Justice and Regulation under s 74AA(3). Those reports have not yet been received and the Board has taken no further steps to progress the plaintiff's application.

The plaintiff brought proceedings in the original jurisdiction of the High Court seeking a declaration that s 74AA is invalid on the ground that it is contrary to Ch III of the Constitution. Invoking the principle associated with Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; [1996] HCA 24, the plaintiff submitted first, that s 74AA interferes with the sentences imposed by the Supreme Court in a manner which substantially impairs the institutional integrity of the Supreme Court, and second, that s 74AA enlists judicial officers who are members of the Board in a function that is incompatible with the exercise of federal jurisdiction by the courts of which those judicial officers are members.

The High Court held that s 74AA did not interfere with the sentences imposed by the Supreme Court. Whether or not the plaintiff would be released on parole at the expiration of the non-parole period was outside the scope of the exercise of judicial power constituted by imposition of the sentences. The High Court also held that, because the Board has not in fact been constituted, and does not need to be constituted, to include a current judicial officer, it was unnecessary and inappropriate to determine whether s 74AA would be invalid in circumstances in which the function conferred by s 74AA might be sought to be exercised by a division of the Board which included a judicial officer.

Forrest & Forrest Pty Ltd v Wilson & Ors [2017] HCA 30

Today the High Court allowed an appeal from a decision of the Court of Appeal of the Supreme Court of Western Australia. A majority of the High Court held that the requirement in s 74(1)(ca)(ii) of the Mining Act 1978 (WA) ("the Act") that an application for a mining lease shall be accompanied by a mineralisation report imposed a condition precedent to the exercise of the powers conferred on various statutory officers under ss 74A(1) and 75(4), and on the Minister under s 75(6), to progress the application through to a grant.

On 28 July 2011, Yarri Mining Pty Ltd and Onslow Resources Ltd (the second and fourth respondents respectively) lodged applications for mining leases over land near Onslow in the Pilbara region of Western Australia. The land lay within the boundaries of a pastoral lease held by Forrest & Forrest Pty Ltd ("Forrest"). On 1 September 2011, Forrest lodged objections to those applications. The applications were not accompanied by either a mining proposal (as required by s 74(1)(ca)(i) of the Act) or a mineralisation report (as required, in the alternative, by s 74(1)(ca)(ii) of the Act). A few months after the applications were lodged, a mineralisation report for each application was lodged. On 31 January 2014, purportedly pursuant to s 75(4), the warden (the first respondent) determined that he had jurisdiction to hear the contested applications, and proceeded to make a recommendation to the Minister that the leases be granted.

Forrest applied for judicial review of that decision, arguing that the warden made a jurisdictional error in determining that he could hear the applications, on the ground that that jurisdiction could be enlivened only if the applicant had complied with the requirement in s 74(1)(ca)(ii). The primary judge concluded that the warden's hearing of the applications did not involve a jurisdictional error. Forrest appealed against that decision to the Court of Appeal of the Supreme Court of Western Australia. The Court unanimously dismissed the appeal, holding that, although s 74(1)(ca)(ii) did require a mineralisation report to be lodged contemporaneously with an application, that requirement was not a condition precedent to the hearing by, and recommendation of, the warden, with the result that the application could progress provided that a mineralisation report was lodged at some later point in time.

By grant of special leave, Forrest appealed to the High Court. A majority of the Court held that compliance with s 74(1)(ca)(ii) was a condition precedent to the exercise of the powers under ss 74A(1), 75(4) and 75(6) of the Act. Applying Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, a consideration of the language of the statute, its subject matter and objects, and the consequences for the parties of holding void acts done in breach of the Act conveyed an intention not to countenance any degree of non ‑ compliance with s 74(1)(ca)(ii). This interpretation was consistent with authority establishing that where a statutory regime confers power on the executive government of a State to grant exclusive rights to exploit the resources of the State, compliance with the requirements of the regime will ordinarily be regarded as essential to the making of a valid grant. Accordingly, the appeal was allowed.

Plaintiff S195-2016 v Minister for Immigration and Border Protection [2017] HCA 31 (17 August 2017)

Today the High Court unanimously held that certain past and potential future actions of the Commonwealth, its officers, and the Minister for Immigration and Border Protection ("the Minister") were not invalid or precluded under the Constitution or under the Migration Act 1958 (Cth) ("the Act") by reason of the decision of the Supreme Court of Papua New Guinea in Namah v Pato (2016) SC1497 ("the Namah decision").

On 9 October 2012, the Minister designated Papua New Guinea ("PNG") a "regional processing country" under the Act ("the Ministerial Designation"). The plaintiff is an Iranian national who arrived in Australia at Christmas Island on 24 July 2013. As an "unauthorised maritime arrival" ("UMA"), he was taken to PNG on 26 August 2013 pursuant to a direction made by the Minister ("the Ministerial Direction"). The plaintiff has since resided at the Manus Regional Processing Centre ("the Manus RPC"), which has at all relevant times been operated by Broadspectrum (Australia) Pty Ltd ("Broadspectrum") in accordance with an agreement between Broadspectrum and the Commonwealth ("the Broadspectrum contract"). Following an unsuccessful application by the plaintiff to be recognised as a refugee under PNG law, the relevant PNG Minister ordered the plaintiff's removal from PNG and the plaintiff remains in custody pending removal.

On 26 April 2016, the Supreme Court of PNG delivered the Namah decision, finding that treatment of UMAs at the Manus RPC contravened provisions of the PNG Constitution and was unsupported by PNG law.

In the High Court, the parties stated questions of law in the form of a special case, asking whether certain actions of the Commonwealth, its officers, and the Minister were invalid or precluded in light of the Namah decision. Those actions included: the making of the Ministerial Designation; the entry by the Commonwealth into a "Regional Resettlement Arrangement" and associated agreements with PNG, including a Memorandum of Understanding ("MOU") regarding the transfer, processing and resettlement of UMAs; the entry by the Commonwealth into the Broadspectrum contract; the making of the Ministerial Direction; the taking of the plaintiff to PNG; and future actions the Commonwealth and its officers might take to assist PNG in removing the plaintiff from PNG and keeping him in custody pending removal. The parties also stated a more general question as to whether the Commonwealth's authority under s 198AHA of the Act to undertake conduct in respect of regional processing arrangements in PNG depended upon whether those arrangements were lawful under the law of PNG.

The plaintiff submitted that the Constitution denies to the Commonwealth any legislative or executive power to authorise or take part in activity in another country which is unlawful according to the domestic law of that country. The plaintiff also submitted that the effect of the Namah decision was to deny to the MOU and the Regional Resettlement Arrangement the character of an "arrangement" within the meaning of s 198AHA of the Act, with the result that the Commonwealth's actions were not supported by s 198AHA.

The High Court held that neither the legislative nor the executive power of the Commonwealth is constitutionally limited by any need to conform to the domestic law of another country and that the past and future actions challenged by the plaintiff were not invalid or precluded. The Court also held that, even if the MOU and the Regional Resettlement Arrangement were beyond the power of PNG under its Constitution, each remained an "arrangement" within the scope of s 198AHA because the authority conferred by that section does not depend upon the lawfulness of government action under the law of a foreign country. The Court answered the questions stated in the special case adversely to the plaintiff.

Transport Accident Commission v Katanas [2017] HCA 32

Today the High Court unanimously dismissed an appeal from the Court of Appeal of the Supreme Court of Victoria concerning the narrative test of serious injury under s 93(17) of the Transport Accident Act 1986 (Vic) ("the narrative test") laid down in Humphries v Poljak [1992] 2 VR 129.

The respondent was involved in a motor vehicle accident in July 2010. Following the accident, she suffered a range of psychological symptoms including lowered mood, nightmares and daytime thoughts of the accident. She also reported restrictions in her social pursuits and difficulties in concentration. The respondent received psychological treatment, and, in April 2013, she was prescribed anti ‑ depressant medication and began to attend on a psychiatrist. Medical evidence indicated that the respondent had suffered a post-traumatic stress disorder and either a major depressive disorder or an adjustment disorder which was substantially related to the accident.

On 16 April 2013, the respondent filed an originating motion in the County Court of Victoria seeking leave to commence common law proceedings for a serious injury under s 93(4) of the Transport Accident Act. The primary judge refused leave, holding that, although the respondent had received considerable treatment and medication, she had not been an inpatient in any psychiatric institution "nor suffered the more extreme symptoms of psychological trauma".

The respondent appealed to the Court of Appeal contending, inter alia, that the primary judge misdirected himself as to the objective assessment of the severity of her mental disorder by conceiving of severity solely in terms of the extent of treatment necessitated by the disorder. The majority of the Court of Appeal held that although the extent of treatment may cast light on whether the disorder was "severe", it was only one among a range of considerations that needed to be taken into account.

By grant of special leave, the appellant appealed to the High Court on the ground that the majority of the Court of Appeal displaced the part of the narrative test from Humphries v Poljak concerning the evaluation of the instant case against the range or spectrum of comparable cases. The High Court unanimously held that the majority of the Court of Appeal did not err in holding that the range as formulated by the primary judge was incomplete because it had regard only to one criterion of the comparative severity of a mental disorder, namely, the extent of treatment. The majority of the Court of Appeal rightly emphasised that, in assessing severity by comparison to the range of comparable cases, a judge must identify and bring to account all of the relevant factors. Accordingly, the majority of the Court of Appeal had not departed from the narrative test. The High Court declined to entertain an alternative contention put by the appellant that the majority of the Court of Appeal had misunderstood the primary judge's formulation of the range.


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