Hearsay ... the Journal of the Bar Association of Queensland
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Issue 72 - Mar 2015
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:


CPCF v Minister for Border Protection & Anor [2015] HCA 1

On 28 January 2015 the High Court, by majority, held that a claim for damages for false imprisonment arising out of the plaintiff's detention at sea on a Commonwealth vessel should be dismissed. The majority of the Court held that s 72(4) of the Maritime Powers Act 2013 (Cth) authorised a maritime officer to detain the plaintiff for the purpose of taking him from Australia's contiguous zone to a place outside Australia, being India. Section 72(4) states that a maritime officer may detain a person on a detained vessel and take the person, or cause the person to be taken, to a place outside Australia.

The plaintiff and 156 other passengers were on board an Indian flagged vessel which left India and was intercepted by an Australian border protection vessel in the Indian Ocean within Australia's contiguous zone. The plaintiff is a Sri Lankan national of Tamil ethnicity, who claims to be a refugee on the basis of having a well-founded fear of persecution in Sri Lanka. He did not have a visa entitling him to enter Australia. The Indian vessel and its passengers were detained by officers of the Commonwealth. After the Indian vessel became unseaworthy, the passengers were transferred to the Australian vessel. The plaintiff was not asked whether he claimed to be a person in respect of whom Australia owed non-refoulement obligations.

The Australian vessel sailed to India pursuant to a decision made by the National Security Committee of Cabinet, which included the Minister for Immigration and Border Protection. At this time, there was no agreement with India under which the plaintiff would be permitted to disembark there. After reaching the vicinity of India, the passengers were detained for a further period until the Minister decided that it was not practicable to discharge the plaintiff and his companions in India within a reasonable time and instructed the vessel to sail to the Australian Territory of the Cocos (Keeling) Islands. Upon their arrival, the plaintiff and the other passengers were taken into immigration detention.

The plaintiff brought proceedings in the original jurisdiction of the High Court, alleging that his detention on the Australian vessel was unlawful and claiming damages for wrongful imprisonment. A special case stated questions of law for determination by the Full Court.

The Court held, by majority, that the detention was lawful under s 72(4) of the Maritime Powers Act and that the power under s 72(4) was not subject to an obligation to afford the plaintiff procedural fairness. The detention was lawful even though the maritime officer detained the plaintiff in implementation of a decision by the Australian Government, and without independent consideration of whether the detention should have taken place. The detention was also lawful even though, prior to the commencement of the taking of the plaintiff to India, no arrangement existed between Australia and India concerning the reception of the plaintiff in India. The majority found it unnecessary to determine whether the detention could have been authorised by the non-statutory executive power of the Commonwealth.

Cassegrain v Gerard Cassegrain & Co Pty Ltd [2015] HCA 2

On 4 February 2015 the High Court, by majority, allowed in part an appeal from a decision of the Court of Appeal of the Supreme Court of New South Wales. The Court held that the appellant's title to land as joint tenant was not defeasible on account of the fraud of her husband, who was also a joint tenant, but that the interest as tenant in common as to half which the appellant subsequently derived from her husband was defeasible and could be recovered by the respondent company.

The registered proprietor of Torrens system land, Gerard Cassegrain & Co Pty Ltd ("the company"), transferred the land to a wife and husband, Felicity Cassegrain ("Felicity") and Claude Cassegrain ("Claude"), as joint tenants for consideration to be satisfied by debiting Claude's loan account with the company. Claude was a director of the company and knew that the company did not owe him the amount recorded in the loan account. Claude subsequently transferred his interest in the land to Felicity for a nominal consideration. The company sought to recover title as sole registered proprietor of the land from Felicity.

Section 42(1) of the Real Property Act 1900 (NSW) provides that the estate of a registered proprietor is paramount "except in case of fraud". The company alleged that Claude's fraud was brought home to Felicity because he was her agent. Section 118(1)(d) of the Act provides that proceedings for the possession or recovery of land do not lie against the registered proprietor of the land, except proceedings brought by a person deprived of land by fraud against (i) a person who has been registered as proprietor of the land through fraud, or (ii) a person deriving (otherwise than as a transferee bona fide for valuable consideration) from or through a person registered as proprietor of the land through fraud. Section 100(1) of the Act provides that two or more persons registered as joint proprietors of an estate or interest in land shall be deemed to be entitled to the same as joint tenants.

The primary judge concluded that Claude had acted fraudulently but dismissed the company's proceedings against Felicity. The Court of Appeal allowed the company's appeal. By special leave, Felicity appealed to the High Court. It was not alleged in any court that Felicity was a participant in, or had notice of, Claude's fraud at the time the land passed to them as joint tenants.

The High Court, by majority, allowed Felicity's appeal in part. It held that Felicity's title as joint tenant was not defeasible on account of Claude's fraud, because Claude was not her "agent" in any relevant sense. Claude's fraud was not within the scope of any authority Felicity had, or appeared to have, given to him. Nor did registration as joint tenant mean that Felicity's title was defeasible: s 100(1) does not require that the fraud of one of the persons registered as joint proprietors denies all persons registered as joint proprietors the protection otherwise given by s 42(1). The fraud must be brought home to the person whose title is impeached, and Claude's fraud was not brought home to Felicity. The Court also held that because Felicity was not a bona fide purchaser for value of Claude's interest in the land, s 118(1)(d)(ii) was engaged so that the company could recover the interest which Felicity derived from or through Claude (an interest as tenant in common as to half).

Plaintiff S297/2013 v Minister for Immigration and Border Protection & Anor [2015] HCA 3

On 11 February 2015 the High Court unanimously held that a decision made by the Minister for Immigration and Border Protection in July 2014 to refuse to grant the plaintiff a permanent protection visa was not made according to law and that the plaintiff was entitled to have that visa granted.

The plaintiff, a Pakistani national, entered Australia by sea at Christmas Island in May 2012. He did not have a visa and was, therefore, an "unlawful non-citizen" within the meaning of the Migration Act 1958 (Cth). By later amendments to the Act he became an "unauthorised maritime arrival". In September 2012, the Minister permitted the plaintiff to make a valid application for a permanent protection visa. The plaintiff made an application for a protection visa which was refused by a delegate of the Minister. The plaintiff sought review of that decision by the Refugee Review Tribunal. The Tribunal remitted the plaintiff's application to the Minister for reconsideration because the plaintiff was found to be a refugee. The Minister did not decide the plaintiff's application. The plaintiff initiated proceedings in the High Court claiming that various regulatory and other steps which were thought to permit the Minister not to decide the plaintiff's application were invalid or ineffective. In June 2014, the High Court held in favour of the plaintiff and ordered that the Minister consider and determine the plaintiff's application for a permanent protection visa according to law.

In July 2014, the Minister decided to refuse to grant the plaintiff a protection visa. The only reason for the refusal was that the Minister was not satisfied that the grant of a protection visa to the plaintiff "is in the national interest" because he was an unauthorised maritime arrival. The plaintiff challenged the validity of the "national interest" criterion on which the Minister relied and asked for orders directing the Minister to grant the plaintiff a permanent protection visa. The plaintiff also alleged that amendments made to the Act in late 2014 did not affect his right to a grant of that visa.

The High Court unanimously found that the decision made by the Minister to refuse to grant the plaintiff a protection visa was not made according to law. The Court found that the Migration Act 1958 (Cth) stated exhaustively what visa consequences attached to being an unauthorised maritime arrival, and the Minister could not refuse an application for a visa only because the applicant was an unauthorised maritime arrival. The Court also held that the amendments to the Act did not affect the plaintiff's right to obtain a permanent protection visa. It was not necessary for the Court to address the validity of the "national interest" criterion upon which the Minister relied in refusing the plaintiff's application.

Immediately following the Full Court making its orders answering the questions reserved for its opinion, French CJ made an order commanding the Minister to grant the plaintiff a permanent protection visa.

Lavin & Anor v Toppi & Ors [2015] HCA 4

On 11 February 2015 the High Court unanimously dismissed an appeal from a decision of the Court of Appeal of the Supreme Court of New South Wales, which had held that the first and second respondents ("the respondents"), being sureties who paid a creditor a disproportionate amount of a guaranteed debt, were entitled to recover contribution from their co ‑ sureties, the appellants, notwithstanding that the creditor had covenanted not to sue the appellants for payment of the guaranteed debt.

In 2008, the National Australia Bank ("the Bank") consolidated various loans into one loan to Luxe Studios Pty Ltd. The consolidated loan was guaranteed by, among others, the appellants and the respondents. In 2010, the Bank made demands upon each of the guarantors for payment of the balance of the loan debt. When those demands were not met, the Bank commenced proceedings against all of the guarantors to enforce the guarantee. The appellants and the Bank entered into a deed of release and settlement whereby the Bank covenanted not to sue the appellants if the first appellant paid, relevantly, a minor portion of the guaranteed debt. The first appellant paid that portion and the Bank's covenant not to sue took effect. Thereafter, the respondents paid the remaining major portion of the guaranteed debt.

The respondents commenced proceedings in the Supreme Court of New South Wales claiming contribution from the appellants in respect of the amount of their payment in excess of their proportionate share of the guaranteed debt. The appellants resisted the respondents' claim on the basis that the appellants and respondents were not under "coordinate liabilities" because, by reason of the Bank's covenant not to sue, the respondents' liability under the guarantee was enforceable while the appellants' liability was not. The primary judge rejected that argument and gave judgment for the respondents.

The Court of Appeal dismissed the appellants' appeal. The Court of Appeal held that the Bank's covenant not to sue did not alter the appellants' liability under the guarantee and, as a result, the appellants and the respondents continued to share "coordinate liabilities" of the same nature and extent so as to entitle the respondents to recover contribution. By grant of special leave, the appellants appealed to the High Court.

The High Court unanimously dismissed the appellants' appeal. The Court held that the Court of Appeal was correct in holding that the Bank's covenant not to sue did not extinguish the appellants' liability under the guarantee. Further, the respondents, subject to proving their readiness and ability to perform their own obligations under the guarantee, were entitled in equity to contribution from the time the appellants and the respondents were called upon to satisfy the guarantee. That entitlement could not be defeated by the Bank giving the appellants a covenant not to sue.

Commissioner of Australian Federal Police & Ors v Zhao & Anor [2015] HCA 5

On 12 February 2015 the High Court unanimously dismissed an appeal from a decision of the Court of Appeal of the Supreme Court of Victoria, which had stayed proceedings brought by the appellant for the forfeiture of property of the respondents as proceeds of crime, pursuant to s 49 of the Proceeds of Crime Act 2002 (Cth) ("the Act"), until the determination of a criminal charge against the second respondent.

The second respondent was charged that he aided and abetted another to deal with money or property that was the proceeds of crime and worth $100,000 or more, contrary to ss 11.2 and 400.4 of the Criminal Code (Cth). He has been committed to stand trial for that offence. The first respondent is the second respondent's wife, and has not been charged with any offence, but is registered as the proprietor of a residential property which is a subject of the forfeiture proceedings.

On the application of the appellant, the County Court of Victoria made an order under s 19 of the Act restraining the disposition of certain property owned by the respondents on the basis that it was the proceeds of crime. Later, the appellant applied for forfeiture of this property pursuant to s 49 of the Act. In the proceedings for the restraining order and the forfeiture order, it was alleged that the property sought to be forfeited is the proceeds of the same offence as that for which the second respondent is to be prosecuted in the criminal proceedings, save that in the criminal proceedings the offence is stated with respect to a particular period.

The respondents filed applications commencing proceedings for the exclusion of certain property from the restraining order and from forfeiture. Thereafter, they made an application for a stay of the forfeiture proceedings and the exclusion proceedings until the completion of the criminal proceedings against the second respondent.

The High Court unanimously found that the Court of Appeal was correct to order a stay of the forfeiture proceedings and the exclusion proceedings. The Court held that the issue, offences and circumstances in the forfeiture proceedings and in the criminal proceedings were substantially identical. It was not necessary for the second respondent to say any more than he did on the application for a stay in order to identify the risk of prejudice to him in the criminal proceedings. The Court found that the interests of justice were not served by requiring the second respondent to defend the forfeiture proceedings or pursue the exclusion proceedings before his criminal proceedings were finalised, especially since the appellant would suffer no relevant prejudice from a delay in the continuation of the forfeiture proceedings.

pine_trees.jpgKorda & Ors v Australian Executor Trustees (SA) Limited [2015] HCA 6

On 4 March 2015 the High Court unanimously allowed an appeal from a decision of the Court of Appeal of the Supreme Court of Victoria. The Court held that the proceeds of the sale of timber and scheme land, which were payable to the operators of a timber plantation investment scheme, were not subject to an express trust in favour of the scheme investors.

The third appellant, "the Forest Company", planted pine trees on land it owned or leased. When the trees were mature, they were felled and the logs were sold by the fourth appellant, "the Milling Company". After making certain allowances and deductions, the Milling Company was to pay the residue of the proceeds of sale of the timber to the Forest Company by instalments.

Prospectuses were issued seeking investment in the scheme. The scheme investors, "Covenantholders", entered into "Covenants" with the Forest Company. Each Covenant recorded that it entitled the Covenantholder to "the net proceeds from the timber apportionable" to a specified portion of the area planted by the Forest Company in the year stated in the Covenantholder's application.

As the relevant legislation required, the Forest Company also made a deed with the respondent, "the Trustee Company", as trustee for the Covenantholders. Upon receiving the proceeds of sale of the timber from the Milling Company, the Forest Company was to retain specified expenses and then pay the balance of the proceeds to the Trustee Company for distribution to Covenantholders. The Trust Deed imposed numerous obligations on the Forest Company, but contained no provision expressly declaring or providing that the Forest Company was, or was to act as, a trustee.

In September 2012, the first and second appellants were appointed as the receivers and managers over the Forest Company and Milling Company. The Trustee Company claimed on behalf of the Covenantholders that the proceeds of a sale of timber which was payable to the Milling Company, and the proceeds of a sale of land on which timber was grown which was payable to the Forest Company, were subject to an express trust in the hands of the Forest Company or the Milling Company in favour of the Covenantholders, and thus not available to the receivers and managers.

The Trustee Company succeeded in the Supreme Court of Victoria and declarations were made that it was beneficially entitled to the tree sale proceeds and a proportion of the land sale proceeds. An appeal to the Court of Appeal of the Supreme Court of Victoria was dismissed by majority. By special leave, the receivers and managers and others appealed to the High Court.

The High Court held that the scheme documentation did not support the existence of a trust or trusts over the proceeds in the hands of the Forest Company and Milling Company.

mic.jpgAustralian Communications and Media Authority v Today FM (Sydney) Pty Ltd [2015] HCA 7

On 4 March 2014 the High Court unanimously held that the Australian Communications and Media Authority has power to make an administrative finding or express an opinion that a person has committed a criminal offence for the purpose of determining whether the holder of a commercial radio broadcasting licence ("a licensee") has breached the licence condition prescribed by cl 8(1)(g) of Sched 2 to the Broadcasting Services Act 1992 (Cth) ("the BSA"). That condition requires that a licensee not use its broadcasting service in the commission of an offence against a Commonwealth Act (other than the BSA) or a law of a State or Territory.

In December 2012, Today FM (Sydney) Pty Ltd, a licensee, recorded a telephone call between two presenters of one of its radio programs and two members of the staff of the King Edward VII Hospital in London, at which the Duchess of Cambridge was an in-patient. Today FM did not obtain the consent of either of the hospital staff to the recording. The recording was broadcast during the program some hours later and re-broadcast the following day.

The Authority initiated an investigation into the broadcast under the BSA and produced a preliminary investigation report, a copy of which was provided to Today FM. The report contained a preliminary finding that, in broadcasting the recording, Today FM had committed an offence under s 11 of the Surveillance Devices Act 2007 (NSW) ("the SDA") (which, relevantly, prohibits the communication of a private conversation obtained, without the consent of the principal parties to that conversation, through the use of a listening device) and, consequently, had breached the cl 8(1)(g) licence condition. The Authority later finalised its report and determined that Today FM had breached the cl 8(1)(g) licence condition.

In June 2013, Today FM commenced proceedings in the Federal Court of Australia seeking declaratory and injunctive relief. It contended, first, that the Authority was not authorised to find that it had breached the cl 8(1)(g) licence condition unless and until a competent court adjudicated that it had committed the SDA offence. In the alternative, Today FM argued that, if the Authority was so authorised, the authorising legislative provisions are invalid because they are inconsistent with the separation of executive and judicial power under the Constitution.

At first instance, the Federal Court rejected both of Today FM's arguments and dismissed the proceedings but, on appeal, the Full Court of the Federal Court accepted Today FM's first argument and set aside the Authority's determination. By grant of special leave, the Authority appealed to the High Court. In allowing the appeal, the Court held that the Authority does have power to make an administrative determination that a licensee has committed a criminal offence as a preliminary to taking enforcement action under the BSA, notwithstanding that there has been no finding by a court exercising criminal jurisdiction that the offence has been proven. This is because, in making such a determination, the Authority is not adjudging and punishing criminal guilt. The Court also held that, in making a determination, the Authority is not exercising judicial power.

Grant Samuel Corporate Finance Pty Limited v Fletcher & Ors; JP Morgan Chase Bank, National Association & Anor v Fletcher & Ors [2015] HCA 8

On 11 March 2015 the High Court unanimously held that the rules of courts of the States and Territories cannot apply so as to vary the time dictated by s 588FF(3) of the Corporations Act 2001 (Cth) for the bringing of proceedings for orders with respect to voidable transactions.

The first respondents in these appeals are the liquidators of the second and third respondents. Section 588FF(1) of the Corporations Act provides that a court, on the application of a company's liquidator, may make certain orders where the court is satisfied that a transaction of the company is voidable because of s 588FE. Section 588FF(3) provides that an application under s 588FF(1) "may only be made" during a period of limitation set out in par (a) ("the par (a) period") or "within such longer period as the Court orders" on an application made by the liquidator during the par (a) period. The effect of s 588FF(3) was to require an application under s 588FF(1) to be made by the liquidators of the second respondents by 4 June 2011, unless the court ordered that an application could be made within a longer period under s 588FF(3)(b).

On 10 May 2011, the liquidators applied for an order extending the period within which they might bring proceedings under s 588FF(1). On 30 May 2011, the Supreme Court of New South Wales extended that period to 3 October 2011 ("the extension order"). A further application was made to the Supreme Court within the period of that extension, but after the par (a) period had expired. On 19 September 2011, the Supreme Court made an order on that application, under r 36.16(2)(b) of the Uniform Civil Procedure Rules 2005 (NSW) ("the UCPR"), varying the extension order by changing the date by which the liquidators could make an application under s 588FF(1) to 3 April 2012 ("the variation order"). Under s 79(1) of the Judiciary Act 1903 (Cth), the UCPR is binding on all courts exercising federal jurisdiction in New South Wales, "except as otherwise provided by the Constitution or the laws of the Commonwealth". The appellants' applications to set aside the variation order were dismissed by the Supreme Court and appeals from that decision were dismissed by a majority of the Court of Appeal. By grant of special leave, the appellants appealed to the High Court.

The High Court unanimously allowed the appeals. The Court held that the bringing of an application within the time required by s 588FF(3) is a precondition to the court's jurisdiction under s 588FF(1), and that the only power given to a court to vary the par (a) period is that given by s 588FF(3)(b). The Court concluded that, once the par (a) period had elapsed, the UCPR could not be utilised to further extend the time within which proceedings under s 588FF(1) could be brought, because s 588FF(3) "otherwise provided".

CMB v Attorney General for New South Wales [2015] HCA 9

On 11 March 2015 the High Court unanimously allowed an appeal against a decision of the Court of Criminal Appeal of the Supreme Court of New South Wales ("the CCA") that imposed a sentence of imprisonment on the appellant, and remitted the matter to be re-determined by the CCA.

In 2011, following disclosures by the victim, the appellant was charged with sexual offences against his daughter, who was under the age of 16 at the time of the incidents. In accordance with the provisions of a regulation made under the Pre-Trial Diversion of Offenders Act 1985 (NSW), the appellant was referred to a treatment program administered by the Department of Health known as the Cedar Cottage Program ("the Program").

As part of his assessment for entry into the Program, the appellant was encouraged to make additional disclosures as a sign of a positive commitment to change. The appellant admitted to further sexual offences against his daughter, committed over the same period as the earlier charges, but of which his daughter had no memory. The repeal of the relevant regulation before these disclosures meant that these further offences could not be dealt with as part of the Program.

The appellant was charged and, following his guilty plea, was sentenced in relation to these further offences. The District Court of New South Wales deferred sentence upon the appellant entering good behaviour bonds conditioned on completion of the Program. The Director of Public Prosecutions supported the imposition of non-custodial sentences in the unusual circumstances.

The Director of Public Prosecutions publicly announced his decision not to appeal against the sentences in light of the "unique history" of the matter. Subsequently, the Attorney General for New South Wales appealed to the CCA against the inadequacy of the sentences. The CCA allowed the appeal and re-sentenced the appellant to an aggregate sentence of five years and six months' imprisonment with a non-parole period of three years.

By grant of special leave, the appellant then appealed to the High Court. The appeal was limited to two grounds: first, that the CCA erred by placing the onus on the appellant to demonstrate that the prosecution appeal should be dismissed; second, that the CCA erred in its application of the law concerning the leniency that may be extended in the case of a guilty plea resulting from an offender's voluntary disclosure of otherwise unknown guilt of an offence.

In relation to the first ground, the High Court unanimously allowed the appellant's appeal. The Court held that before the CCA can allow an appeal by the prosecution against sentence, the prosecution must demonstrate both an appellable error in the sentencing judge's discretionary decision and negate any reason why the residual discretion of the CCA not to interfere should be exercised. The High Court allowed the appeal on the second ground by majority, holding that the CCA failed to consider whether it had been open to the District Court to determine that non-custodial sentences were not unreasonably disproportionate to the nature and circumstances of the offences.

scales.jpgFortress Credit Corporation (Australia) II Pty Limited & Anor v William John Fletcher and Katherine Barnet as liquidators of Octaviar Limited (Receiver and Manager Appointed)(in liquidation) and Octaviar Administration Pty Limited & Anor [2015] HCA 10

On 11 March 2015, the High Court unanimously dismissed an appeal from a decision of the Court of Appeal of the Supreme Court of New South Wales and held that a court can make an order under s 588FF(3) of the Corporations Act 2001 (Cth) ("the Act") to extend the time within which a company's liquidator may apply for orders in relation to voidable transactions entered into by the company, in circumstances where those transactions cannot be identified at the time of the order. Such orders are known as "shelf orders".

Section 588FF(1) of the Act empowers a court, on the application of a company's liquidator, to make a number of orders in relation to voidable transactions. Section 588FF(3), as it stood at the date of the order giving rise to this appeal, provided that an application for orders under s 588FF(1) had to be made: (a) during a specified period ("the paragraph (a) period"); or (b) "within such longer period as the Court orders on an application under this paragraph made by the liquidator during the paragraph (a) period".

The first respondents are the liquidators of the second and third respondents, Octaviar Limited and Octaviar Administration Pty Limited. The paragraph (a) period in relation to the third respondent expired on 3 October 2011. Before that date, the first respondents applied for an order under s 588FF(3)(b) extending the time for making an application under s 588FF(1) in relation to the third respondent to 3 April 2012. On 19 September 2011, the order sought was granted, expressed without reference to an identified transaction. On 3 April 2012, the first respondents commenced proceedings against the appellants for orders under s 588FF(1).

The primary judge in the Supreme Court of New South Wales dismissed an application by the appellants to set aside the extension of time order, and the Court of Appeal dismissed the appellants' appeal. Both the primary judge and the Court of Appeal followed the earlier decision of the Court of Appeal in BP Australia v Brown (2003) 58 NSWLR 322. By grant of special leave, the appellants appealed to the High Court, submitting that the extension of time order was required to specify the particular transactions in respect of which the order was made.

The High Court unanimously dismissed the appeal, holding that a court can make an order extending time under s 588F(3)(b) without identifying the particular transaction or transactions to which it would apply. That construction is consistent with the evident purpose of s 588F(3)(b), to allow the court to mitigate the strictness of the time limits imposed by s 588FF(3)(a) in an appropriate case. The re-enactment of s 588FF(3), which took place after the holding in BP Australia v Brown that a court could make an order granting an extension of time in general terms, may be taken to support that construction.


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