FEATURE ARTICLE -
Case Notes, Issue 84: Sept 2019
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.
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
