Hearsay ... the Journal of the Bar Association of Queensland
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Issue 54
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.

The following Judgments are summarised in this issue. The summary notes follow after this list:

  • Roslyn Edwina Waller v Hargraves Secured Investments Limited [2012] HCA 4
  • Australian Education Union v Department of Education and Children's Services [2012] HCA 3
  • Lex Patrick Wotton v The State of Queensland & Anor [2011] HCA 2
  • Bui v Director of Public Prosecutions (Cth) [2012] HCA 1  
  • Amaca Pty Ltd v Booth; Amaba Pty Ltd v Booth [2011] HCA 53
  • Handlen v The Queen; Paddison v The Queen [2011] HCA 51  

Roslyn Edwina Waller v Hargraves Secured Investments Limited [2012] HCA 4

contracts_blue2.jpgToday the High Court allowed an appeal from the Court of Appeal of the Supreme Court of New South Wales, which had upheld an enforcement action under a farm mortgage by Hargraves Secured Investments Limited ("HSI") against Roslyn Edwina Waller. The High Court held that the Farm Debt Mediation Act 1994 (NSW) ("the Act") barred HSI from obtaining a money judgment against Ms Waller or possession of Ms Waller's farm.

Section 8(1) of the Act conditions a creditor's ability to take "enforcement action" in respect of a "farm mortgage" upon 21 days' prior written notice to the debtor farmer, in response to which the farmer may request mediation under s 9 of the Act. Enforcement action taken by a creditor to whom the Act applies, otherwise than in accordance with the Act, is void. Section 11 provides for the issue by the New South Wales Rural Assistance Authority ("the Authority") of a certificate that the Act does not apply to a farm mortgage if the farmer is in default and, relevantly, the Authority is satisfied that satisfactory mediation has taken place "in respect of the farm debt involved".

Ms Waller borrowed $450,000 from HSI under a loan agreement ("the First Loan Agreement") secured by an "all monies" registered first mortgage over her farm ("the Registered Mortgage"). The Registered Mortgage, read with the First Loan Agreement, created a "farm mortgage" within the meaning of the Act. In October 2004 HSI gave Ms Waller a notice under the Act that she was in default and that HSI intended to take enforcement action. The parties took part in a mediation, as a result of which they entered into a further loan agreement ("the Second Loan Agreement"). In August 2006, after further default, the parties entered into another loan agreement ("the Third Loan Agreement"). In October 2006 the Authority issued HSI a s 11 certificate. It was common ground that the certificate was issued on the basis that a satisfactory mediation had taken place.

Following Ms Waller's default under the Third Loan Agreement, HSI brought a successful claim in the Common Law Division of the Supreme Court of New South Wales for possession of Ms Waller's farm and judgment for the outstanding borrowings. By majority the Court of Appeal of the Supreme Court of New South Wales dismissed Ms Waller's appeal. Ms Waller appealed by special leave to the High Court.

The primary issue on appeal to the High Court was whether the proceedings instituted by HSI concerned the same "farm mortgage" as that in respect of which the s 11 certificate had been issued. The Court held unanimously that they did not. The Court of Appeal had held that each of the Second and Third Loan Agreements discharged the preceding Loan Agreement. This meant that at the date of the proceedings the only obligations secured by the Registered Mortgage were under the Third Loan Agreement. The High Court held that the Third Loan Agreement, read with the Registered Mortgage, had created a new "farm mortgage". The subject of the mediation, and the certificate, was the debt owed under the First rather than the Third Loan Agreement. At the time of the proceedings there was therefore no certificate in force in respect of the farm mortgage. HSI was barred from taking any enforcement action against Ms Waller except in accordance with the Act. The definition of "enforcement action" in the Act included both the claim for possession and the claim for a money judgment.

Australian Education Union v Department of Education and Children's Services [2012] HCA 3

students.jpgToday the High Court allowed an appeal from the Full Court of the Supreme Court of South Australia, which had held that the Minister of Education was empowered to appoint temporary "contract teachers" under s 9(4) of the Education Act 1972 (SA) ("the Act"). The High Court held that the Minister was empowered to appoint teachers only under s 15 of the Act.

In South Australia, the Minister could appoint persons as "officers of the teaching service" under s 15(1) of the Act. For many years, the Minister also purported to appoint persons as temporary "contract teachers" under s 9(4) of the Act. Section 9(4) provided for the appointment of "such officers and employees (in addition to ... the teaching service)" as the Minister considered necessary "for the proper administration of this Act or for the welfare of the students of any school". Long service leave entitlements of officers and employees appointed under s 9(4) were less favourable than the entitlements enjoyed by officers of the teaching service appointed under s 15. In 2005, the Department of Education and Children's Services advised the South Australian Branch of the Australian Education Union ("the AEU") that contract teachers would, in the future, be appointed under s 15 of the Act, and in 2007, s 9(4) was repealed. However, the parties continued to dispute the long service leave entitlements of persons who had purportedly been appointed under s 9(4) prior to the repeal of that section.

In March 2007, the AEU notified the Industrial Relations Commission of South Australia ("the Commission") of the dispute, asserting that the Minister's power to appoint teachers stemmed from s 15 of the Act, and that all temporary or contract teachers, being officers of the teaching service, were entitled to long service leave entitlements as persons appointed under s 15. The Commission referred two questions of law to the Industrial Relations Court of South Australia ("the IRC"):

1. Did s 9(4) of the Act, at the time that it was in force, authorise the Minister to appoint officers to be engaged as teachers, or did s 15 provide exclusively for the appointment of teachers?

2. In consequence of the answer to question one, are the long service leave entitlements of any teachers purportedly appointed pursuant to s 9(4) governed by the provisions of the Public Sector Management Act 1995 (SA), or Division 3 of Part 3 of the Act?

The Full Court of the IRC concluded that s 9(4) had authorised the Minister to appoint officers to be engaged as teachers independently of s 15. An appeal to the Full Court of the Supreme Court was dismissed. The AEU appealed, by special leave, to the High Court of Australia.

The High Court allowed the appeal, but remitted question two to the Full Court of the IRC for further consideration. In answer to question one, the High Court held that, at the time it was in force, s 9(4) of the Act did not authorise the Minister to appoint officers to be engaged as teachers, and s 15 provided exclusively for the appointment of teachers. The High Court rejected a submission that the words "in addition to" in s 9(4) meant "as well as" and should be read as supplementary or expansionary, holding that they were words of limitation, used in the sense of "apart from". The High Court held that even if it were possible to characterise the power conferred by s 15 as a specific power carved out of a more general power conferred by s 9(4), the general power should be read as not applying to the subject matter of the specific power.

Lex Patrick Wotton v The State of Queensland & Anor [2012] HCA 2

razor_wire.jpg Today the High Court held that ss 132(1)(a) and 200(2) of the Corrective Services Act 2006 (Q) ("the Act") are not invalid, in their application to prisoners on parole, for impermissibly burdening the implied constitutional freedom of communication about government and political matters. The Court considered that both sections were reasonably appropriate and adapted to serve a legitimate end in a manner compatible with the maintenance of the constitutionally prescribed system of representative government.

The plaintiff is an Aboriginal person who was born on Palm Island and has resided there for a substantial part of his life. On 26 November 2004 the plaintiff participated in a riot on Palm Island following the death of an Aboriginal man, Mr Mulrunji Doomadgee, in police custody. The plaintiff was convicted of rioting causing destruction contrary to ss 61 and 65 of the Criminal Code (Q) ("the Code") and sentenced to six years' imprisonment with a parole eligibility date after two years served.

The second defendant ("the Parole Board") is a regional parole board established pursuant to ss 230-240 of the Act. One of its functions is to decide applications for parole orders. Under s 180(1) of the Act a prisoner may apply for a parole order if the prisoner has reached the applicable parole eligibility date. Section 200(2) of the Act provides that a parole order may contain conditions the board reasonably considers necessary to "ensure the prisoner's good conduct" or "stop the prisoner committing an offence."

The Parole Board directed that the plaintiff be released on parole, upon 22 conditions identified in the Parole Order as (a)-(v). Conditions (t) and (v) were to be supported as an exercise of the power conferred by s 200(2), and prohibited the plaintiff from attending public meetings on Palm Island without the prior approval of the corrective services officer and from receiving any direct or indirect payment or benefit from the media.

Condition (g) of the Parole Order required that the plaintiff "not commit an offence". Section 132(1)(a) of the Act makes it an offence for a person to "interview a prisoner, or obtain a written or recorded statement from a prisoner" including a prisoner released on parole. Section 132(2)(d), however, provides that a person does not commit an offence against s 132(1) if the person has the chief executive's written approval to carry out the relevant activity. Section 7 of the Code deems a person who, among other things, does any act for the purpose of enabling or aiding another to commit an offence, to have taken part in the commission of an offence. If the plaintiff were liable for an offence by the application of s 7, he would breach condition (g) of the Parole Order.

The plaintiff brought proceedings in the original jurisdiction of the High Court challenging the constitutional validity of ss 132(1)(a) and 200(2) of the Act, as they apply to prisoners on parole, on the basis that they impermissibly burden the implied constitutional freedom of communication about government and political matters. The plaintiff also challenged conditions (t) and (v) of the Parole Order on the same basis.

The Court held unanimously that both s 132(1)(a), as qualified by s 132(2)(d), and s 200(2), comply with this constitutional limitation upon the legislative power of the State. A majority held that both sections effectively burden freedom of communication about government or political matters, but that the sections are nevertheless each reasonably appropriate and adapted to serve a legitimate end in a manner compatible with the maintenance of the constitutionally prescribed system of government. The legitimate end of s 132(1)(a), as qualified by s 132(2)(d), is community safety and crime prevention through humane containment, supervision and rehabilitation of offenders. The legitimate end of s 200(2) is the imposition of conditions the Parole Board considers reasonably necessary to ensure good conduct and to stop the parolee committing an offence. In light of the validity of s 200(2), the validity of conditions (t) and (v) then depends on whether, in implementing them, the Parole Board exceeded the authority conferred upon it by s 200(2). That question did not arise in this proceeding.

Bui v Director of Public Prosecutions (Cth) [2012] HCA 1 

heroin.jpgToday the High Court dismissed an appeal from the Court of Appeal of the Supreme Court of Victoria, which held that "double jeopardy" was not to be considered upon an appeal by the Commonwealth Director of Public Prosecutions ("DPP") under the Crimes Act 1914 (Cth) ("Crimes Act").

The appellant, Kieu Thi Bui, is an Australian citizen who carried drugs into Australia from Vietnam, contrary to the Criminal Code (Cth). She was apprehended by the Australian Federal Police on 11 February 2009, and was subsequently found to be concealing four pellets containing heroin within her body. After the drugs were discovered, the appellant co-operated with the police and undertook to assist law enforcement agencies. She pleaded guilty to importing a marketable quantity of a border controlled drug. The sentencing judge did not order a term of immediate imprisonment, on the basis that the appellant had co-operated, and undertook to continue cooperating, with law enforcement agencies, the danger attending her co-operation, and the risk of hardship to the appellant's infant twins. Her Honour sentenced the appellant to three years' imprisonment with an immediate release, upon giving security of $5000 to comply with the condition that the appellant be of good behaviour for three years. The DPP appealed against the sentence on the ground that it was manifestly inadequate.

On appeal, the Court of Appeal identified errors in the sentencing judge's reasons by reference to s 16A of the Crimes Act. Under s 16A(1) of the Crimes Act, a court must impose a sentence that is of an appropriate severity in all the circumstances of the offence. Section 16A(2) specifies matters which must be taken into account if relevant and known to the court, including the probable effect of any sentence on the person's family or dependants and the person's "mental condition". The Court of Appeal held that the provisions of the Criminal Procedure Act 2009 (Vic) ("Criminal Procedure Act") required it to not take into account any element of double jeopardy involved in the appellant being re-sentenced. The Court of Appeal ordered a new sentence of four years' imprisonment, with a non-parole period of two years. The appellant appealed, by special leave, to the High Court of Australia.

The High Court dismissed the appeal, with the result that the sentence ordered by the Court of Appeal stands. The High Court held that the provisions of the Criminal Procedure Act on which the Court of Appeal relied do not apply to appeals by the DPP for re-sentencing under the Crimes Act. The High Court rejected a submission that s 80 of the Judiciary Act 1903 (Cth) imported double jeopardy into the sentencing considerations under s 16A of the Crimes Act. There was no gap or omission in Commonwealth statute law such as to bring s 80 into operation. The High Court also held that there was no warrant for interpreting s 16A of the Crimes Act as incorporating concepts addressed only to an appellate court, such as notions derived from the rule against double jeopardy.

Further, the High Court held that s 16A(2) of the Crimes Act does not refer to the stress and
anxiety presumed to be suffered by convicted persons facing re-sentencing, but to such a mental
condition which is demonstrated to exist in fact.

Amaca Pty Ltd v Booth; Amaba Pty Ltd v Booth [2011] HCA 53

brake.jpgToday the High Court held that there was sufficient evidence to justify a finding by the Dust Diseases Tribunal of New South Wales that brake linings containing asbestos manufactured by Amaca Pty Ltd and Amaba Pty Ltd caused Mr John Booth's malignant pleural mesothelioma.

Mr John Booth is a retired motor and brake mechanic suffering from malignant pleural mesothelioma. This disease is caused by the inhalation of asbestos fibres. Mr Booth had three brief exposures to asbestos between 1943 and 1959, two as a child and youth when helping his father with home renovations and another when he spent about 20 minutes loading bags containing asbestos onto a truck in 1959. In addition, Mr Booth was exposed to asbestos in brake linings during his career as a motor and brake mechanic between 1953 and 1983 with a three-year interregnum. His work included the replacement of brake linings made from asbestos. The frequency of the replacement tasks varied from twice a month to three times a week.

Amaca manufactured brake linings containing asbestos between 1953 and 1962. Amaba manufactured brake linings containing asbestos from 1962 to 1982. Seventy per cent of the asbestos fibres to which Mr Booth was exposed occupationally were released from brake linings manufactured by Amaca and Amaba.

In July 2008, Mr Booth commenced proceedings in the Dust Diseases Tribunal of New South Wales against Amaca and Amaba in negligence. Mr Booth alleged that Amaca and Amaba had failed to warn about the dangers of use of their brake linings. The primary judge held that exposure to asbestos dust liberated from brake linings manufactured by Amaca and Amaba materially contributed to Mr Booth's contraction of mesothelioma. The Court of Appeal of the Supreme Court of New South Wales dismissed Amaca and Amaba's appeals.

Amaca and Amaba appealed to the High Court by special leave. Special leave was limited, in effect, to the question of the sufficiency of the evidence to support the primary judge's finding that exposures to asbestos in the brake linings manufactured by Amaca and Amaba had each been a cause of Mr Booth's mesothelioma.

The High Court held by majority that the evidence was sufficient to support the Tribunal's conclusion that Amaca's and Amaba's products were a cause of Mr Booth's mesothelioma.

Handlen v The Queen; Paddison v The Queen [2011] HCA 51

cocain.jpgToday the High Court allowed appeals by Dale Christopher Handlen and Dennis Paul Paddison against the decision of the Court of Appeal of the Supreme Court of Queensland, which had upheld each appellant's convictions for several drug-related offences under the Criminal Code (Cth) ("the Code").

The appellants were each charged with multiple drug-related offences under the Code, including two counts of importing a commercial quantity of border controlled drugs into Australia contrary to s 307.1 of the Code. At trial, the appellants were each convicted of the charged offences. The trial was conducted on the mistaken assumption, shared by the parties and the trial judge, that guilt of the importation offences could be established by proof that the appellants were parties to a joint criminal enterprise or "group exercise" to import the drugs into Australia. At the date of the appellants' trial, participation in a joint criminal enterprise was not a basis for the attachment of criminal responsibility respecting a substantive offence under the laws of the Commonwealth. The only basis upon which criminal responsibility could be fixed on the appellants for the importations was under s 11.2 of the Code for aiding, abetting, counselling or procuring the offences of Matthew Reed, who had pleaded guilty and been convicted in relation to the same importations before the appellants' trial.

The appellants appealed against their convictions to the Court of Appeal. The Court of Appeal found that the jury had been misdirected as to the basis of the appellants' liability for the importation offences, but that the misdirection had not involved a fundamental departure from a trial according to law. The Court of Appeal was satisfied that the appellants' guilt had been established beyond reasonable doubt, which was a necessary although not sufficient condition for the application of the proviso in s 668E(1A) of the Criminal Code (Q). Section 668E(1A) provides that the Court of Appeal may dismiss an appeal, notwithstanding that it is of the opinion that the point or points raised by the appeal might be decided in the appellant's favour, if it considers that "no substantial miscarriage of justice has actually occurred". The appeals were dismissed under the proviso.

The appellants appealed to the High Court upon a single ground challenging the application of the proviso. The appellants submitted that s 80 of the Constitution, which requires a "trial by jury" for Commonwealth offences tried on indictment, is inconsistent with the exercise by an appeal court of the power under the proviso in a case in which there has been a misdirection as to the elements of liability.

By majority, the High Court upheld each of the appellants' appeals against conviction, and ordered a new trial. The Court considered that the prosecution of the appellants for the importation offences upon a basis that was not known to law was a fundamental departure from the proper conduct of the trial, which denied application of the proviso. The verdicts on the importation counts reflected the jury's satisfaction that each appellant was a party to the "group exercise", but it did not follow that the jury must have been satisfied of the facts necessary to establish the appellants' guilt on the basis of their having aided, abetted, counselled or procured Mr Reed's offences. Consequently, the Court found it unnecessary to address the appellants' constitutional arguments.
 


 

 


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