The following summary notes of recent decisions of the Supreme Court of Queensland 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.

• • R v Freeman [2019] QCA 150
  • Radiology Partners Pty Ltd v Commissioner of State Revenue [2019] QSC 192

R v Freeman [2019] QCA 150

The applicant pleaded guilty to counts 1 and 2 on a three-count indictment on the eve of his trial. At issue on appeal was whether insufficient weight had been attached to his plea, which he contended was entered at the first reasonable opportunity. The applicant was sentenced to four years and six months’ imprisonment on count 1 and a concurrent term of six months’ imprisonment on count 2, for possession of a marketable quantity of a border controlled drug and failing to comply with an order to assist access. The third count, importing a marketable quantity of a border controlled drug, had been discontinued by the prosecution when the applicant offered his plea. The court found that in pleading guilty the appellant had “accepted the inevitable” and in all the circumstances he had not entered a plea at the earliest possible opportunity.

Fraser JA and Applegarth and Bradley JJ 2 August 2019

In examining the timing of the plea, the court undertook a detailed consideration of the case law in this area. It noted that the indictment charging the relevant offences was presented on 5 October 2016, [43], and the applicant entered his plea on 17 October 2018. [2]. In the interim, it was plainly the case that the applicant “had many opportunities to indicate his preparedness to plead, or to actually plead, to counts 1 and 2”. [43]. Instead, the applicant determined to plead to those counts only after the Crown accepted his offer to do so on the grounds that count 3 would be dropped and certain matters omitted from the statement of facts. [44].

In that regard, the court distinguished the matter from Cameron v The Queen (2002) 209 CLR 339, 345—346 [20]—[25], observing that it was not the case that the initial reasonable opportunity to enter a plea had only presented itself after the charges were correctly formulated. [45]. Applegarth J (Fraser JA and Bradley J concurring) also distinguished the matter from one in which a late plea is entered to remaining charges after the Crown concedes that it is unable to prove other, more serious counts and withdraws them due to lack of evidence: see for example Atholwood v The Queen (1999) 109 A Crim R 465. [46]. The court stressed that due to these nuances, the issue of whether an offender pleaded, or offered to plead, guilty at the first reasonable opportunity is more complex than simply examining the charges: see Cameron v The Queen (2002) 209 CLR 339, 345 [20]; Maybus v The Queen [2017] VSCA 125, [46].

In that regard, the court isolated the following relevant circumstances which might have a bearing upon the issue of whether a plea was entered at the first reasonable opportunity:

• Where there is a strong incentive for an offender who acknowledges his guilt on certain counts to continue in a not guilty plea to all counts, mindful of “the forensic prejudice that the offender would have suffered were he to have pleaded guilty to counts persisted in by the prosecution while others (that were subsequently withdrawn) remained pending against him”: see Atholwood v The Queen (1999) 109 A Crim R 465, 468 per Ipp J, cited in Cameron v The Queen at 345 [21]. In that scenario, the court noted “it should not be assumed, mechanically”, that the offender has delayed pleading guilty due to an absence of remorse, or that he has not pleaded guilty at the earliest possible opportunity.
• Where the offender sought to negotiate a plea: see Rinaldi v The State of Western Australia [2017] WASCA 48, [42], [51]. In that event, a delay in pleading guilty might be the result of the time expended on attempting to have other charges withdrawn.

In the court’s view, “[i]n this case, an offer to plead guilty to counts 1 and 2 would have been to accept the inevitable” [54], and the applicant had not demonstrated why his pleas were not reasonably available to him at an earlier junction than the eve of his “much-delayed trial”. [56]. In the court’s view, it appeared, based upon the available evidence and chronology of events, that the applicant had resolved to contest all counts until required to go to trial, and had only considered a resolution of the three counts he was facing on the eve of his imminent trial. That course of action afforded him the opportunity of remaining in the community for more than three years after he was charged and more than two years after an indictment was presented. Whilst the court acknowledged that he ought not to be penalised for taking that course, in its view, it equally disentitled him from obtaining the benefit of an early or timely plea. Accordingly, the court rejected the submission that his guilty pleas were made at the first reasonable opportunity. [57].

Radiology Partners Pty Ltd v Commissioner of State Revenue [2019] QSC 192

In this case, Wilson J was asked to adjudicate on the proper construction of s 30 of the Duties Act 2001 as it applied to the restructuring of the unitholders of the appellant’s unit trust. Essentially, the question was whether the fifteen dutiable transactions undertaken should be aggregated under s 30. In adjudicating on this point, her Honour engaged with an interesting and important discussion first on the nature of statutory appeals under the Tax Administration Act 2001 to the Supreme Court, and secondly on the proper construction of s 30 of the Duties Act 2001.

Wilson J 9 August 2019

The Trust, of which the (statutory) appellant is trustee, holds dutiable property valued at over $2 million. [4]. It is a unit trust. Prior to 15 May 2015, the Trust had six unit holders, each of whom was either a company or a natural person which held 1,000 units in the Trust as trustee for six family trusts. [4]. On 15 May 2015, the appellant and the six then-unitholders attended a meeting, where it was unanimously voted that all their units be redeemed, effective from 15 May 2015 (“the redemptions”). [5], [7]. It was then resolved that 1,000 units be distributed to each of nine new entities, each of which was trustee for a self-managed superannuation fund (“the acquisitions”). [7]. The ultimate beneficiaries of each of the six original unitholders were the ultimate beneficiaries of six of the nine new unitholders. [8].

On 9 June 2016, the Commissioner issued the appellant with an assessment on the basis that, pursuant to s 30 of the Duties Act 2001, the redemptions were aggregated and treated as a single dutiable transaction [10]. A separate assessment was made, applying s 30 to the acquisitions. [10]. The appellant objected to these assessments, but the Commissioner did not amend her assessments. [11], [15]. The appellant appealed from this decision under s 69 of the Taxation Administration Act 2001 (“TAA”). [1]. The following issues arose before Wilson J: [17]

1. What is the nature of an appeal under s 69?
2. What is the proper construction of s 30, and on what basis should any aggregation occur?

The Nature of the Appeal

On this question, Wilson J — and the parties — ultimately relied on the judgment of Bowskill J in Wakefield v Commissioner of State Revenue [2019] QSC 85. [18]. Several points of note arise: [19]

• the court “exercises its original jurisdiction to make such judgment as it considers ought to have been given, on the facts and the law, at the time of the hearing”;
• the court must give the Commissioner the opportunity to reconsider the objection if it is to admit new evidence;
• the scope of the court’s powers on appeal differs, depending on whether the decision being appealed related to a state of satisfaction being formed by the Commissioner, or cases where the law is applied to objective conclusions of fact. In the latter cases — such as the instant one — the exercise of the court’s powers is not dependent upon the demonstration of an error by the decision-maker; and
• where the question involves the Commissioner forming a state of satisfaction, the appellant will need to show an error of principle was made by the Commissioner; it is not for the court to “re-exercise any discretionary power conferred upon the Commissioner”. This differs from review by QCAT, which does involve the Tribunal standing in the shoes of the Commissioner and re-exercising the discretion.

The Proper Construction of Section 30

Wilson J identified a number of guiding principles which shape the court’s approach to the aggregation of transactions pursuant to s 30: [32]

1. it is a question of law as to whether the transactions satisfy s 30;
2. the factors considered by the respondent will involve a consideration of the conduct of the parties. The transferee(s)’ conduct will, therefore, be of primary significance;
3. in deciding whether the circumstances amount substantially to one arrangement, the respondent is required to “have regard to all relevant factors” and there will be “questions of degree involved”;
4. one must look at the whole facts of the situation, and the enquiry is not limited to the circumstances of the transactions themselves;
5. the substance of the transactions must be examined in order to determine whether they are “in substance” one transaction. Which is to say that the subject transactions need not be one arrangement, they only need to be substantially so; and
6. there must be an “integral and not [merely] fortuitous” relationship between the transactions before they will be viewed as being substantially the same. Looked at in the negative, to avoid aggregation, the transactions must be “separate and independent [and] unconnected with the others”.

On top of these principles, her Honour noted that there must be some unifying feature bringing the dutiable transactions within the section. [36]. In this context, “arrangement” “is a word of wide, but not unlimited meaning”, and refers not merely to contracts but to understandings or plans which may not be enforceable. [38]—[39]. Further, the court must look to the substance, not the form, of the arrangement. [41]. Ultimately, the determination under s 30(1) is a question of fact which takes into account “all relevant circumstances”, including the “objectives, actions or conduct” of the transferees. [42]—[44].

Having regard to these points, and the parties’ submissions, Wilson J noted that although, as “a matter of form, the acquisitions and redemptions may appear as separate transactions”, “the substance of the arrangement … shows there was some essential unity” between the transactions. [107]—[108]. Crucial to this finding were the Minutes of the meeting of 15 May 2015, which “evidence an arrangement between the parties”, with certain desired outcomes. [110]. This arrangement was “to restructure the unit trust” by transferring the units into self-managed superannuation funds for the existing unit holders, and to introduce three new unitholders. [115]. The restructure was effected by a single resolution with a “unity of purpose in the subject transactions”. [116]—[117]. It followed that the redemptions and the acquisitions should each be treated as substantially one arrangement under s 30. [118]. In the event, the statutory appeal was dismissed. [119].

Maneesha Prakash

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.

• • Masson v Parsons [2019] HCA 21
  • Northern Territory v Sangare [2019] HCA 25
  • Glencore International AG v Commissioner of Taxation [2019] HCA 26

Masson v Parsons [2019] HCA 21

In this case, the question before the High Court was whether, in circumstances of a unique family structure and an artificially-conceived child, New South Wales legislation could be invoked by s 79(1) Judiciary Act 1903 (Cth) to help determine whether the appellant, being the contributor of semen for the purpose of artificial insemination, was a parent for the purposes of Pt VII of the Family Law Act 1975 (Cth). Ultimately, the Court found that it could not, and the relevant provisions of the State law were inoperative by operation of s 109 of the Constitution.

Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ 19 June 2019

Background

The appellant and the first respondent were, for many years, close friends. [3]. In 2006, the first respondent, who wanted a child, asked the appellant to provide her with his semen so that she could artificially inseminate herself. [3]. The appellant duly did this, and the first respondent ultimately gave birth to a child. The first respondent and the second respondent, her female partner, have primary care over the child. [3]. However, the appellant is named on the child’s birth certificate as her father, and he has maintained a presence in her life, including by supporting her financially. [3]. In 2015, the first and second respondents decided to move to New Zealand with the child. [4]. The appellant consequently commenced proceedings in the Family Court, seeking, among other things, orders conferring shared parental responsibility and restraining the relocation of the child. [4].

Statutory regime

At the heart of this appeal lay the Commonwealth and New South Wales statutory regimes for determining the parents of children, and the question of whether the New South Wales regime is picked up by s 79(1) of the Judiciary Act 1903 (Cth) and applied to applications for parenting orders under the Family Law Act 1975 (Cth). [1]. The respondents relied upon ss 14(2) and 14(4) of the Status of Children Act 1996 (NSW). [1]. These provisions establish an irrebuttable presumption with respect to the use of fertilisation procedures that:

“If a woman (whether married or unmarried) becomes pregnant by means of a fertilisation procedure using any sperm obtained from a man who is not her husband, that man is presumed not to be the father of any child born as a result of the pregnancy.”

Part VII of the Family Law Act 1975 (Cth) allows for parenting orders to be made. [5]. Of particular relevance is s 60H, which sets out some presumptions as to the parentage of an artificially-conceived child. [10]. However, under s 69U, these presumptions are “rebuttable by proof on a balance of probabilities”. [14]. The majority found that s 60H does not exhaustively define who can be a parent of an artificially-conceived child. [26]. Ultimately, the question of who is a parent under the Family Law Act 1975 (Cth) is one “of fact and degree to be determined according to the ordinary, contemporary Australian understanding of ‘parent’ and the relevant circumstances of the case at hand”. [29].

Finally, s 79(1) of the Judiciary Act 1903 (Cth) provides:

“The laws of each State or Territory, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable.”

The purpose of s 79(1) is “to fill a gap in the laws which regulate matters coming before courts exercising federal jurisdiction by providing those courts with powers necessary for the hearing and determination of those matters”. [30].

The majority’s consideration

The majority, comprising of Kiefel CJ and Bell, Gageler, Keane, Nettle and Gordon JJ, began a discussion of the issues by examining the presumptions created by ss 14(2) and 14(4). [32]. Critically, their Honours found that the presumption those provisions create “are ‘irrebuttable’ rules determinative of a status to which rights and duties are attached”. [34]. Consequently, even though the presumption was not able to be relied upon in criminal prosecutions, it was not “procedural”. [35]. Nor was it in fact rebuttable. [36]—[37]. Thus, ss 14(2) and 14(4) did not constitute “a law relating to evidence or otherwise regulating the exercise of jurisdiction. It is a conditional rule of law determinative of the parental status of the persons to whom it applies which operates independently of anything done by a court or other tribunal”. [39]. Therefore, s 79(1) of the Judiciary Act 1903 (Cth) does not pick them up.

While this was enough to dispose of the appeal, the majority also sought to deal with the appellant’s submission that, in any event, s 14(2) cannot be picked up “because the Family Law Act has ‘otherwise provided’.” [40]—[41]. Their Honours described the regime established in Pt VII of the Family Law Act 1975 (Cth) as beginning with the plain English meaning of “parent”, but expanding it in certain respects, particularly via s 60H. [44]. Consequently, Pt VII is “complete upon its face” and so is not liable to be picked up by s 79(1). [45]. Further, the “evident purpose” of Pt VII is for the Commonwealth to “have sole control of the provisions that will be determinative of parentage” under the Family Law Act 1975 (Cth). [48]. Thus, s 79(1) would also be prevented from picking up ss 14(2) and 14(4). [48]. It also follows that there is an inconsistency between Pt VII of the Family Law Act 1975 (Cth) and ss 14(2) and 14(4) of the Status of Children Act 1996 (NSW). [51]. The majority found that, to the extent of the inconsistency, Pt VII prevails by operation of s 109 of the Constitution. [52]. Thus, “that means that the whole of ss 14(2) and 14(4) are excluded”. [52].

Finally, the majority turned its attention to an alternate argument raised by the first and second respondents: that the ordinary English meaning of “parent” excludes a “sperm donor”. [53]. Their Honours relied on the finding that the interpretation of “parent” relied both upon the understanding of the word “and the relevant facts and circumstances of the case at hand.” [54]. The interpretation proposed by the respondents simply did not accord with the facts as found by the primary judge. [54]. Thus, this argument, too, failed. [55].

Edelman J’s reasons

Although Edelman J agreed with the majority’s orders, his Honour wrote separately to expand upon his Honour’s interpretation of s 79(1) in Rizeq v Western Australia (2017) 262 CLR 1. In his Honour’s view, “laws that confer powers upon a court to make substantive orders in relation to the rights, powers, duties, and liabilities of persons” are not “laws that regulate or govern the federal authority to decide”. [60]. Together, ss 14(2) and 14(4) constitute “a rule of substantive law”. [69]. Further, it is “inseparable from the court’s substantive powers to determine and declare who is a parent”. [71]. Regardless of which of these two characterisations is preferred, Edelman J was of the view that it is apparent that s 14(2) “is a law that applies of its own force” and so is not picked up by s 79(1). [72]. While that may be the case, his Honour agreed with the majority’s reasons regarding the inconsistency between ss 14(2) and 14(4) of the Status of Children Act 1996 (NSW) and Pt VII of the Family Law Act 1975 (Cth). [72]. It followed that his Honour agreed with the orders proposed by the majority. [73].

Disposition

In the event, the High Court allowed the appeal. [56], [73].

Northern Territory v Sangare [2019] HCA 25

In this appeal, the High Court unanimously confirmed that the impecuniosity of an unsuccessful party, generally speaking, is not a consideration relevant to the exercise of the discretion to award costs. Accordingly, the Court of Appeal had erred in finding that the impecuniosity of the unsuccessful party, without more, was a sufficient ground upon which to deny the successful party an award of costs.

Kiefel CJ, Bell, Gageler, Keane, and Nettle JJ 14 August 2019

The respondent, a citizen of Guinea, had commenced proceedings in the Northern Territory against the appellant seeking damages in the sum of $5 million for defamation. [8]. The respondent alleged that a briefing note, provided by the Chief Executive of the Northern Territory Department of Infrastructure to the Minister for Immigration and Citizenship in relation to the respondent’s application for a temporary work visa, was defamatory of him. [7].

The action was dismissed at first instance and on appeal. The Court of Appeal described the appeal against the decision at first instance as “without merit” and “doomed to fail”. [9]—[10], [16]. Notwithstanding this, the Court of Appeal refused to make the usual order for costs because such an order would (on its view) be futile due to the respondent’s impecuniosity. [20].

The appellant obtained special leave to appeal against the decision of the Court of Appeal on the ground that the discretion of the Court had miscarried in point of principle. [21]. The appellant argued that the impecuniosity of an unsuccessful party was not, without more, sufficient to justify a decision to deny the successful party its costs. [1], [21].

The High Court unanimously allowed the appeal. In a joint judgment their Honours explained that the consideration of the respondent’s impecuniosity was not relevant to the proper exercise of the Court’s discretion as to costs. [36]. Their Honours added that “[w]hether a party is rich or poor has, generally speaking, no relevant connection with the litigation”. [32]. In addition, their Honours held that the Court of Appeal was wrong to consider that such an order would be futile. [34]. It could not be assumed that the creation of a debt by an order was of no benefit to a creditor, or that the respondent would never have the means to pay it in whole or in part. [35].

Glencore International AG v Commissioner of Taxation [2019] HCA 26

This case involved an application by Glencore to restrain the Australian Taxation Office from using documents leaked as part of the “Paradise Papers”. The documents were subject to legal professional privilege. However, the High Court held that legal professional privilege operates only as an immunity (from being required to produce documents in certain circumstances), and was not a right that could found a cause in action (such as to support an injunction, or an order for delivery up of the documents). Further, there was no basis for extending the law to allow the privilege to be used as a right; firstly, because the present state of the law already struck a balance between competing public interests; secondly, because doing so would be inconsistent with how the common law develops — through the application of settled principles to new circumstances, not through abrupt change (as the plaintiffs’ case required).

Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon, and Edelman JJ 14 August 2019

Background

The plaintiffs — companies in the Glencore group — sought orders against the Australian Taxation Office (“ATO”) and its officers, restraining them from making use of certain documents, and for delivery up of those documents (the “Glencore documents”). The Glencore documents had been created for the sole or dominant purpose of providing legal advice by the law firm Appleby. They had been stolen from Appleby’s electronic filing system and provided to the International Consortium of Investigative Journalists, as part of the so-called “Paradise Papers”. [1]— [2].

It was not in dispute that the Glencore documents were the subject of legal professional privilege. [5]. However, the defendants demurred to the plaintiff’s statement of claim, on the ground that no cause of action was disclosed by which the plaintiffs were entitled to the relief sought. [4]. The plaintiffs’ claim for relief was premised entirely on legal professional privilege. [7]. In substance, the question was whether legal professional privilege provided a right capable of being enforced, or whether it operated only as an immunity from providing documents. [5].

Did legal professional privilege afford a right to obtain relief against the ATO?

The plaintiffs contended that the scope of the privilege should reflect its policy rationale (being to further the administration of justice “through the fostering of trust and candour in the relationship between lawyer and client”). That policy rationale would be advanced through recognition of an actionable right to restrain the use of privileged documents. [10]. They argued that for equity to only provide relief where documents retained their confidential character (as with the equitable duty of confidence), revealed a “gap in the law”. Also, they submitted that decisions in other common law jurisdictions had recognised a right to relief in these circumstances. [11].

The High Court unanimously, in a joint judgment, rejected the plaintiffs’ contentions, and upheld the defendants’ demurrer (that there was no basis for the relief sought). [12]. The key reason for doing so was that the plaintiffs’ arguments assumed that “legal professional privilege is a right capable of being enforced”. Instead, their Honours said that the privilege is “only an immunity from the exercise of powers which would otherwise compel the disclosure of privileged communications”. [12]. Such a characterisation was consistent with the history of how the privilege had developed historically, and was reflected in other decisions of the High Court — most notably in Daniels Corporation (2002) 213 CLR 543, where it was described as being an “important common law immunity” (per Gleeson CJ, Gaudron, Gummow and Hayne JJ). [23].

As to whether policy reasons would justify recognition of a right to relief, their Honours said that, in the development of the privilege, courts had “struck a balance” between competing public interests. [29]. It was the “policy of the law that the public administration of justice is sufficiently secured by the grant of the immunity from disclosure”. [32]. Further, the submission that common law courts elsewhere had provided for relief on the basis contended for was “incorrect”. [37]. The English cases referred to were based on the equitable doctrine of confidence, not legal professional privilege. [37]—[39]. Lastly, their Honours said that, for the plaintiffs to succeed, there would have to be the creation of a “new, actionable right respecting privileged documents”. [40]. But this is “not how the common law develops. The law develops by applying settled principles to new circumstances”, and so policy considerations “could not justify an abrupt change”, as sought by the plaintiffs. [40]—[41].

Accordingly, the defendants’ demurrer was upheld, and the plaintiffs’ proceeding was dismissed with costs. [43].

Maneesha Prakash