Issue 78 - April 2017
High Court of Australia Judgment Summary Notes

highcourtintro.jpgThe 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.

Bondelmonte v Bondelmonte [2017] HCA 8 (1 March 2017)

Today the High Court published its reasons for dismissing an appeal with costs on 13 December 2016. The appeal concerned interim parenting orders made for the return of two children to Australia from New York and for their living arrangements upon their return. The High Court unanimously held that the primary judge, Watts J, did not err in exercising his discretion to make such orders.

The appellant and first respondent, respectively the father and mother of two boys and a girl, separated in 2010. Parenting orders were made on 25 June 2014 providing that the parents were to have equal shared parental responsibility for the children and, relevantly, that a parent could take the children on an overseas holiday subject to certain conditions being met. In 2015, further orders were made requiring the children to engage in a Child Responsive Program and the parents to be interviewed by a family consultant. On 14 January 2016, the two boys were flown to New York for a holiday with the father. On 29 January 2016, the father informed the mother that he had decided to live indefinitely in the United States and that the boys would remain with him. As a result, the process established by the 2015 orders was not completed.

The mother filed an application under the Family Law Act 1975 (Cth) to secure the boys' return. In deciding whether to make parenting orders, s 60CA requires the court to have regard to "the best interests of the child as the paramount consideration". In determining what is in the child's best interests, s 60CC(2)(a) provides that a primary consideration is "the benefit to the child of having a meaningful relationship with both of the child's parents". Section 60CC(3) provides for "[a]dditional considerations" including, in par (a), "any views expressed by the child and any factors ... that the court thinks are relevant to the weight it should give to the child's views".

Watts J ordered the return of the boys to Australia. His Honour considered that determining the "best interests" of the children involved consideration of the children's relationships with their parents and each other, which were matters best dealt with in Australia via the mechanism established by the 2015 orders. Although accepting evidence that the boys wished to remain living with the father in New York, Watts J considered the weight of those views to be "weakened by the circumstances which have been contrived by the father". Watts J also ordered that, if the father did not return to Australia and the boys did not wish to live with the mother, they could live either in accommodation with supervision paid for by the father or separately with the mothers of respective friends of the boys' ("the alternative living arrangements"). The father appealed to the Full Court of the Family Court. The appeal was dismissed (Ryan and Aldridge JJ, Le Poer Trench J dissenting).

By grant of special leave, the father appealed to the High Court. The High Court rejected the father's contention that Watts J erred in discounting the boys' expressed preferences to remain in New York because his Honour formed an adverse view of the father's actions. The extent to which the boys' views had been influenced by the father was relevant to the weight to be given to those views. The High Court also rejected the argument that Watts J was required to ascertain the boys' views as to the alternative living arrangements. Section 60CC(3)(a) only requires that the views which have been "expressed" by a child be considered; ascertaining the boys' views was not statutorily mandated. Further, as s 64C permits parenting orders to be made in favour of a parent of a child "or some other person", the orders for the alternative living arrangements could be made in favour of the mothers of the boys' respective friends.

Perara-Cathcart v The Queen [2017] HCA 9 (1 March 2017)

Today the High Court, by majority, dismissed an appeal from the Full Court of the Supreme Court of South Australia. Following a trial in the District Court of South Australia, the appellant was convicted of one count of rape and one count of threaten to kill. He appealed against the convictions to the Full Court, sitting as the Court of Criminal Appeal, on grounds including that the trial judge erred in directing the jury under s 34R of the Evidence Act 1929 (SA) ("the Evidence Act") as to the permissible and impermissible uses of discreditable conduct evidence admitted under s 34P. The discreditable conduct evidence was that the appellant was in possession of an amount of cannabis, less than an ounce, which the police had found at his home seven days after the alleged offending ("the cannabis evidence").

The Full Court (Kourakis CJ, Gray and Stanley JJ) unanimously held that the cannabis evidence was admissible pursuant to s 34P of the Evidence Act. As to the sufficiency of the trial judge's directions to the jury, Kourakis CJ concluded that the directions did not comply with s 34R as to the permissible and impermissible use of the cannabis evidence. Kourakis CJ would have allowed the appeal, holding that it was not open in the circumstances of the case to apply the proviso; Gray J considered that the directions complied with s 34R and, accordingly, would have dismissed the appeal; and Stanley J held that the directions given by the trial judge did not meet the requirements of s 34R but was satisfied that no substantial miscarriage of justice had actually occurred, and so would have dismissed the appeal. In the result, the appeal to the Full Court was dismissed.

Special leave to appeal to the High Court was granted on the question whether the order of the Full Court dismissing the appeal could not be sustained by s 353(1) of the Criminal Law Consolidation Act 1935 (SA) ("the CLC Act"), given the conclusion of a majority of the Court that the verdict was attended by an error of law and the absence of a conclusion by a majority of the Court that no substantial miscarriage of justice had occurred. By way of notice of contention, the respondent argued that the trial judge's directions to the jury met the requirements of s 34R(1) of the Evidence Act.

The High Court held, by majority, that the appeal should be dismissed on the basis of the respondent's notice of contention. The trial judge's directions to the jury were sufficient to identify the permissible and impermissible uses of the cannabis evidence for the purposes of s 34R(1) of the Evidence Act. The verdict at trial was therefore not attended by an error of law. A majority of the High Court also considered that, under s 353(1) of the CLC Act, two questions arose for determination before the Full Court: whether the Full Court thought that the verdict of the jury should be set aside on any one or more of the three grounds there stated; and whether the Full Court considered that no substantial miscarriage of justice had actually occurred. By virtue of s 349 of the CLC Act, each of these questions was to be determined according to the opinion of the majority of the members of the Court hearing the case. In the result, the appeal was dismissed.

Prior v Mole [2017] HCA 10 (8 March 2017)

Today the High Court, by majority, dismissed an appeal from a decision of the Court of Appeal of the Supreme Court of the Northern Territory. The High Court held that the apprehension of the appellant, Mr Prior, pursuant to s 128(1) of the Police Administration Act (NT) ("the PAA"), was not unlawful, because it was open for a court to find that the apprehending officer had reasonable grounds to believe Mr Prior was likely to commit an offence.

Section 128(1) of the PAA, relevantly, allows a member of the Police Force of the Northern Territory to apprehend without warrant a person who the member has reasonable grounds for believing is intoxicated, is in a public place, and that, because of the person's intoxication, the person may intimidate, alarm or cause substantial annoyance to others, or is likely to commit an offence. Before his apprehension, Mr Prior was drinking liquor with two other men on a footpath in front of a set of shops, including two shops selling liquor. He was intoxicated. When a police car, driven by Constables Fuss and Blansjaar, drove by he made an offensive gesture and shouted abuse. The officers parked the car in front of the men and asked Mr Prior to speak to them. Mr Prior was belligerent and aggressive. Mr Prior was apprehended by Constable Blansjaar pursuant to s 128(1) of the PAA because Constable Blansjaar believed that, because of Mr Prior's intoxication, he might intimidate, alarm or cause substantial annoyance to people, and that it was likely he would commit the offence of drinking in a regulated place contrary to s 101U of the Liquor Act (NT) ("the Liquor Act offence").

After being taken into custody, Mr Prior engaged in conduct which led to him being charged with assaulting a police officer in the execution of duty and public indecency. He was convicted of those offences upon a trial in the Court of Summary Jurisdiction. That Court found Mr Prior had been lawfully apprehended pursuant to s 128(1) of the PAA. On appeal to the Supreme Court, Southwood J was satisfied beyond reasonable doubt that there were reasonable grounds for Constable Blansjaar's belief that, because of his intoxication, Mr Prior was likely to commit the Liquor Act offence. Mr Prior's convictions were, however, set aside by Southwood J, and subsequently restored by the Court of Appeal, on grounds not subject of appeal to the High Court. The Court of Appeal upheld Southwood J's conclusion that Constable Blansjaar had reasonable grounds for believing that it was likely Mr Prior would commit the Liquor Act offence.

By grant of special leave, Mr Prior appealed to the High Court, arguing the Court of Appeal erred in holding Constable Blansjaar was entitled to rely on his policing experience in deciding that he had reasonable grounds for believing that Mr Prior would commit the Liquor Act offence. The High Court held, by majority, that the lack of precise particularisation of Constable Blansjaar's experience did not deprive the Court of Appeal of its capacity to assess the reasonableness of his belief. It was fair for the Court of Appeal to infer that Constable Blansjaar's belief about how Mr Prior was likely to behave was informed at least in part by Constable Blansjaar's experience in dealing with other intoxicated people, and it was open to hold that, based on Constable Blansjaar's experience, it was reasonable for him to believe that Mr Prior was likely to continue drinking liquor in a regulated place. The High Court also rejected a separate argument that the apprehension of Mr Prior exceeded the limits of the s 128(1) power.

Minister for Immigration and Border Protection v Kumar [2017] HCA 11 (8 March 2017)

Today the High Court, by majority, allowed an appeal from a decision of the Federal Court of Australia. The High Court held that the Federal Court erred in holding that s 36(2) of the Acts Interpretation Act 1901 (Cth) ("the AIA") operated to allow the first respondent's application for a Subclass 572 (Vocational Education and Training Sector) visa ("572 visa") to be assessed as if it had been made before the expiry of his Subclass 485 (Temporary Graduate) visa ("485 visa").

The first respondent applied for a 572 visa. The application was received at an office of the Department of Immigration and Border Protection on Monday 13 January 2014. Clause 572.211 of Schedule 2 to the Migration Regulations 1994 (Cth) specified criteria that had to be satisfied at the time of the making of an application for a 572 visa. The first respondent would have met those criteria if he held a valid 485 visa at the time of the making of his application for a 572 visa. The first respondent's 485 visa had expired on Sunday 12 January 2014.

In May 2014, a delegate of the Minister for Immigration and Border Protection refused to grant the 572 visa because, at the date the application was made, the first respondent did not meet the criteria in cl 572.211 in that, as of Monday 13 January 2014, he was not the holder of a 485 visa. The Migration Review Tribunal affirmed that decision, agreeing that the first respondent did not satisfy the criteria in cl 572.211.

The first respondent sought judicial review in the Federal Circuit Court of Australia, arguing that s 36(2) of the AIA operated so that the first respondent continued to meet the requirements of cl 572.211 on Monday 13 January 2014. Section 36(2) provides that if an Act "requires or allows a thing to be done" and "the last day" for the doing of the thing is a Saturday, Sunday or holiday, then the thing may be done on the next day that is not a Saturday, Sunday or holiday. The Federal Circuit Court, in dismissing the application, held that, because cl 572.211(2) identified a state of affairs that must exist as a criterion for the making of an application, rather than prescribed or allowed a thing to be done, s 36(2) of the AIA had no operation. On appeal, the Federal Court of Australia quashed that decision. The Federal Court held that, because the last day for the first respondent to apply for the 572 visa was, as a matter of fact, Sunday 12 January 2014, s 36(2) operated to allow the application to be made on Monday 13 January 2014.

By grant of special leave, the Minister appealed to the High Court. The Court held, by majority, that s 36(2) of the AIA, properly construed, was not engaged. This was because no time limit is imposed expressly, or by implication, under the Migration Act 1958 (Cth) and the Migration Regulations on the making of an application for a 572 visa. Section 36(2) could not deem a thing to be done as if it were done on the earlier date, nor could it deem a state of affairs that existed on the earlier date to exist on the later date. As the first respondent did not meet the criteria for the grant of the 572 visa at the date of his application, the Court made orders effecting a reinstatement of the orders of the Federal Circuit Court.

Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd [2017] HCA 12 (29 March 2017)

Today the High Court, by majority, allowed an appeal from a decision of the Court of Appeal of the Supreme Court of Victoria. The High Court held that a clause in an unusual lease obliged the lessee to pay all rates, taxes, assessments and outgoings in respect of the leased land, and not merely those imposts levied on the lessee in its capacity as tenant.

The original lessor and lessee recorded their agreement in a standard form printed farm lease to which they made amendments. Due to planning restrictions affecting subdivision, the owner of the land the subject of the lease could not sell it to the lessee. Clause 13 provided that:

The parties acknowledge that it was the intention of the Lessor to sell and the Lessee to purchase the land and improvements hereby leased for the consideration of $70,000.00 and as a result thereof the parties have agreed to enter into this Lease for a term of ninety-nine years in respect of which the total rental thereof is the sum of $70,000.00 which sum is hereby acknowledged to have been paid in full.

As amended, cl 4 imposed an obligation on the lessee in these terms:

AND also will pay all rates taxes assessments and outgoings whatsoever excepting land tax which during the said term shall be payable by the Landlord or tenant in respect of the said premises (but a proportionate part to be adjusted between Landlord and Tenant if the case so requires).

In 2013, the lessor commenced proceedings in the Supreme Court of Victoria seeking a declaration that the lease requires the lessee to pay all rates, taxes, assessments and outgoings in respect of the land. The primary judge made the declaration sought. The Court of Appeal, by majority, allowed an appeal by the lessee and set aside the orders of the primary judge.

By grant of special leave, the lessor appealed to the High Court. The lessor argued that cl 4 obliged the lessee to pay all rates, taxes, assessments and outgoings in respect of the land. The lessee argued that cl 4 obliged it to pay only those imposts that are levied on the lessee in its capacity as tenant, leaving the lessor to pay those imposts that may be levied on it as owner of the land. It was not in issue on the appeal that cl 4 is ambiguous and that, in the circumstances, the Court could have regard to words struck out in the standard form document, and which remained legible on the face of the document, as an aid to construction.

Allowing the appeal, the majority in the High Court held that the lessor's construction of cl 4 is to be preferred. The Court approached the question of the proper construction of cl 4 on the basis that the parties were to be understood as having intended to produce a result consistent with the commercial object of the agreement. The majority said that the parties' intended to recreate, as far as possible, in a lease, the conditions which would have existed following a sale. The majority held that it made no commercial sense, having regard to that objective, for the lessor to remain liable for the payment of rates, taxes and other outgoings over the term of the lease. The orders of the Court of Appeal were set aside, with the effect that the declaration of the primary judge was reinstated.

Kendirjian v Lepore [2017] HCA 13 (29 March 2017)

Today the High Court unanimously allowed an appeal from the Court of Appeal of the Supreme Court of New South Wales in relation to the second respondent to the appeal. The High Court held that advocates' immunity from suit does not extend to negligent advice not to compromise a proceeding which then proceeds to a judicial decision.

In November 1999, the appellant was injured in a car accident. In 2004, he commenced legal proceedings in the District Court of New South Wales against the other driver involved in the accident, who admitted liability. On the first day of the trial on quantum, the other driver's legal representatives made a settlement offer to the appellant's solicitor (the first respondent) and barrister (the second respondent) of $600,000 plus costs. The settlement offer was not accepted so the trial proceeded. Ultimately, the appellant obtained judgment for $308,432.75 plus costs. An appeal to the Court of Appeal in relation to quantum was dismissed.

In 2012, the appellant brought a claim in the District Court against the respondents. The appellant alleged that the respondents were negligent in advising him in relation to the settlement offer. Central to his claim were allegations that the respondents did not advise him of the amount of the settlement offer, "but merely of the fact that an offer had been made". The appellant also pleaded that the respondents rejected the settlement offer, "absent any express instructions" from him, because the offer was "too low". The respondents successfully brought an application in the District Court for summary judgment. The District Court held that the respondents' conduct was covered by advocates' immunity. This conclusion was upheld by the Court of Appeal.

By grant of special leave, the appellant appealed to the High Court. In November 2016, the Court made orders by consent allowing the appeal in relation to the first respondent. Today, the Court unanimously allowed the appeal in relation to the second respondent. The Court held that advocates' immunity did not extend to the advice given in relation to the settlement offer because the advice did not affect the judicial determination of the case. The Court declined to distinguish or reopen its most recent decision on advocates' immunity, Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 90 ALJR 572; 331 ALR 1; [2016] HCA 16.

Re Day [No 2] [2017] HCA 14 (5 April 2017)

Today the High Court, sitting as the Court of Disputed Returns, unanimously held that Mr Robert John Day AO was a person who had an "indirect pecuniary interest" in an agreement with the Public Service of the Commonwealth prior to and at the time of the 2016 federal election, and was therefore incapable of being chosen or of sitting as a senator by reason of s 44(v) of the Constitution.

On 9 May 2016, the 44th Parliament of the Commonwealth was dissolved and a general election was subsequently held. Mr Day's nomination for the 2016 federal election was declared on 10 June 2016. On 4 August 2016, he was declared re-elected as a senator for South Australia.

On 1 December 2015, the Commonwealth entered into a lease agreement with Fullarton Investments Pty Ltd ("Fullarton Investments"), the registered proprietor of premises at 77 Fullarton Road, Kent Town in South Australia ("the Fullarton Road property"), for use by Mr Day as his electorate office. The commencement date of the lease was 1 July 2015. Under the lease, Fullarton Investments was entitled to direct the Commonwealth to pay rent to any person. On 26 February 2016, it directed that rental payments be made to a bank account owned by Mr Day.

The Fullarton Road property was previously owned by B & B Day Pty Ltd ("B & B Day") as trustee for the Day Family Trust, a discretionary trust of which Mr Day and his wife were beneficiaries. On 24 April 2014, Fullarton Investments purchased the Fullarton Road property from B & B Day on a vendor finance basis. Fullarton Investments was the trustee of the Fullarton Road Trust, a discretionary trust of which the Day Family Trust was a beneficiary. There was also a loan facility provided by a bank to B & B Day, and loan facilities provided to companies associated with Mr Day. Each loan facility was secured by, among other things, a guarantee given by Mr Day and a mortgage over the Fullarton Road property. Payment of rent by the Commonwealth would facilitate repayment of the purchase price of the Fullarton Road property by Fullarton Investments to B & B Day, which would in turn facilitate repayment by B & B Day of the loan facility, thereby reducing the extent of Mr Day's contingent liability to the bank as guarantor. If the Commonwealth did not pay rent, Fullarton Investments had no other significant source of revenue.

On 8 November 2016, the President of the Senate referred five questions to the Court of Disputed Returns. The principal question was whether Mr Day was incapable of being chosen or of sitting as a senator by reason of s 44(v) of the Constitution. The Senate's reference also asked how the resulting vacancy should be filled if Mr Day were found to have been incapable of being chosen or of sitting as a senator.

The Court held by majority that there was no requirement that a "pecuniary interest" be a legally enforceable interest, and it was unanimously held that the financial benefit which Mr Day stood to obtain from the Commonwealth performing its obligations to pay rent pursuant to the lease constituted an "indirect pecuniary interest" within the meaning of s 44(v) of the Constitution. By virtue of the direction that the rent be paid into a bank account owned by him, Mr Day was to receive rent directly from the Commonwealth. Therefore he had an expectation of a pecuniary benefit from the lease. A majority of the Court held he was incapable of being chosen or of sitting as a senator from no later than 26 February 2016, when the direction was made. The Court unanimously held that the resulting vacancy should be filled by a special count of the ballot papers.


Adrian Duffy
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