High Court of Australia Judgment Summary Notes

Saeed v Minister for Immigration and Citizenship [2010] HCA 23 (23 June 2010)

The High Court has held that, in the case of offshore visa applicants, s 51A of the Migration Act 1958 (Cth) does not exclude the Minister’s obligation, imposed by law, to afford an applicant the opportunity to comment on information before the Minister that is adverse to the applicant, prior to a decision on the application being made.

The appellant is a Pakistani citizen who applied for a Skilled — Independent Visa (Subclass 175). One of the eligibility requirements for the visa was employment in a skilled occupation for at least 12 months in the 24-month period before lodging the application. The appellant had provided documents to demonstrate that she had been employed as a cook in Pakistan. Australian immigration officers in Pakistan had investigated the appellant’s claims. They discovered that no employee records were kept at the restaurant and were told that no woman had ever worked in the kitchen (“the adverse information”). On the basis of the adverse information, on 16 July 2008, a delegate of the Minister for Immigration and Citizenship refused the application because she could not be satisfied that the appellant had met the eligibility criteria.The appellant was not made aware of the adverse information until it was outlined in a letter refusing her application. 

Subdivision AB of Part 2 of the Migration Act is entitled “Code of procedure for dealing fairly, efficiently and quickly with visa applications”. It sets out procedures for dealing with visa applications after they are lodged and before a decision is made. Section 57(2), which is in subdivision AB, provides that certain “relevant information” received by the Minister must be provided to a visa applicant for comment. Section 57(3) provides, however, that this obligation does not arise unless the visa can be granted when the applicant is in the Australian migration zone; and unless the Migration Act provides, under Parts 5 or 7, for review of a decision to refuse to grant the visa. In the appellant’s case, neither condition in s 57(3) was met. The particular visa could only be granted while the appellant was offshore and no avenue of review was provided for under Parts 5 or 7 of the Act. The Minister was therefore not obliged to follow the procedure in s 57 to give the appellant an opportunity to comment on the adverse information.

The appellant sought judicial review of the delegate’s decision in the Federal Magistrates Court of Australia. She claimed that she had been denied procedural fairness because she was not given an opportunity to comment on the adverse information prior to the delegate’s decision. Because the procedural obligation under s 57 did not apply, she relied upon the natural justice hearing rule at common law. In a case such as this, that rule requires that a person be given an opportunity to comment on adverse information that is credible, relevant and significant to the decision to be made.

On 2 December 2008, Federal Magistrate Emmett dismissed the application on the basis that the common law natural justice hearing rule was excluded by the operation of s 51A of the Migration Act. Section 51A provides that subdivision AB is “taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with”. The Full Court of the Federal Court of Australia dismissed the appellant’s appeal. On 3 November 2009, the appellant was granted special leave to appeal to the High Court.

The appellant submitted that s 51A did not exclude the application of the natural justice hearing rule in this case. The Court noted that the statement in s 51A is qualified by the words “in relation to the matters it deals with”. It held that the “matter” with which s 57 deals is the provision of relevant information for comment to the persons to whom the information is required to be provided. The terms of s 57(3) limit the beneficiaries of the statutory procedure to onshore visa applicants. Therefore, the provision of information to offshore visa applicants, such as the appellant, is not a “matter” dealt with by the section. The Court concluded that the application of the natural justice hearing rule was not, in the appellant’s case, excluded by s 51A. The Minister was obliged to provide the appellant with an opportunity to respond to the adverse material. This conclusion made it unnecessary for the Court to consider the appellant’s alternative argument that s 51A was constitutionally invalid.

The Court allowed the appeal, quashed the decision of the Minister’s delegate and ordered that the Minister consider and determine the appellant’s application in accordance with the Court’s reasons.

Osland v Secretary to the Department of Justice [2010] HCA 24 (23 June 2010)

The High Court has upheld an order of the Victorian Civil and Administrative Tribunal granting Heather Osland access to documents relating to her petition for mercy.   In 1996, Mrs Osland was convicted of the murder of her husband and sentenced to 14½ years imprisonment. She submitted a petition for mercy in July 1999 to the Victorian Attorney-General and, in September 2001, the Attorney-General issued a press release announcing that the petition had been refused. The press release referred to a memorandum of joint advice from a panel of three senior counsel that recommended that the petition be denied. The Attorney-General, however, had received advice from several other sources as well. Mrs Osland applied under the Freedom of Information Act 1982 (Vic) for access to all documents relating to the consideration of her petition. Access was refused by the Victorian Department of Justice. Mrs Osland sought a review of the refusal in the Victorian Civil and Administrative Tribunal, which set aside the decision and ordered access to be granted to the documents because the Tribunal was of the opinion that, notwithstanding that the documents were privileged, the public interest required access to be granted. In doing so, it was acting pursuant to s 50(4) of the Freedom of Information Act. On appeal to the Victorian Court of Appeal, the Tribunal’s decision was reversed.   The High Court granted special leave to appeal against the Court of Appeal’s decision on 14 December 2007. On 7 August 2008, the Court allowed the appeal. It did so because the Court of Appeal had not considered the Tribunal’s advertence, in its reasons for decision, to the possible existence of differences between the joint advice and other advice received by the Attorney- General in relation to Mrs Osland’s petition. On that basis, it was not possible for the Court of Appeal, without inspecting the documents, to conclude that the Tribunal had erred in granting access to those documents. The High Court set aside the orders of the Court of Appeal and remitted the matter to that Court to enable it to inspect the documents.   On 7 April 2009, the Court of Appeal, having inspected the documents, again reversed the Tribunal’s decision. It did so despite finding that there were relevant and substantive differences between some of the advices received by the Attorney-General. On 12 February 2010, the High Court granted special leave to appeal from this second decision of the Court of Appeal.   The High Court today unanimously held that the Court of Appeal’s decision on the remitter should be set aside and that the Tribunal’s decision granting Mrs Osland access to the documents be upheld. The Court held that the Court of Appeal did not do what was required of it on the remitter.   Chief Justice French and Justices Gummow and Bell considered that the Court of Appeal’s reasoning was logically independent of the actual contents of the documents to which Mrs Osland sought access. Their Honours held that the Court of Appeal was really addressing the question of law whether the evaluation of differences of any kind or degree between the advices received could attract the operation of the s 50(4). That question was precluded by the terms of the remitter from the High Court on the first appeal. The Court of Appeal should have first determined the question of law whether the actual differences between the advice provided to the Attorney-General could support the formation of an opinion that the public interest required access to be granted. If the formation of such an opinion was supportable, then the Court should have either remitted the matter to the Tribunal for further hearing or, having regard to the protracted nature of the proceedings, considered the public interest question for itself.   Justices Hayne and Kiefel (with whom Justice Heydon agreed on this point) considered that, on the remitter, the Court of Appeal was required to consider whether the Tribunal’s reasoning about the requirements of the public interest manifested an error of law. Their Honours held that the Court of Appeal had misconceived the limited scope of its jurisdiction on the appeal from the Tribunal, which was in the nature of judicial review and not a rehearing. It did not review what the Tribunal had done for error of law but impermissibly assumed the role of the Tribunal and substituted its own decision.

Aktas v Westpac Banking Corporation Limited [2010] HCA 25 (4 August 2010)

In December 1997, Westpac Banking Corporation Limited (“Westpac”) dishonoured 30 cheques drawn by Homewise Realty Pty Ltd (“Homewise”), of which Mr Aktas was sole shareholder and sometime director. The cheques were returned to the payees or collecting banks stamped “Refer to Drawer”. The dishonour was the result of Westpac’s mistake and Mr Aktas and Homewise sued it for defamation. The High Court today held that the communications were not protected by the common law defence of qualified privilege.   Homewise carried on a real estate agency under the name of “Century 21 Homewise Realty”. It maintained three accounts with Westpac, including two trust accounts. In late 1997, default judgment was entered against Homewise in respect of a money claim. A garnishee order applicable to Homewise’s accounts with Westpac was issued to Westpac. By law, however, the order could not apply to the two trust accounts. Nevertheless, on 1 December 1997, a Westpac employee acted on a mistaken understanding of the effect of the order and changed the status of all three of Homewise’s accounts to “PCO” (standing for “post credits only”). The effect of this status was that customer initiated debits were not to be honoured.   On the same day, a Homewise employee drew 30 cheques on one of the trust accounts which were then forwarded to Homewise clients or deposited in their bank accounts. On 2 December 1997, the Westpac employee was made aware of the error regarding Homewise’s two trust accounts and removed their PCO status. However, in correspondence dated 3 December 1997, Westpac returned the cheques to the payee or the collecting bank, each endorsed with the words “Refer to Drawer”. The trial judge found that the return of the cheques had occurred because the reversal of the trust accounts’ PCO status had not been notified to the department responsible for correspondence.   Mr Aktas and Homewise brought proceedings against Westpac in the Supreme Court of New South Wales, including a claim for damages for defamation. A jury determined that Westpac had, by the words “Refer to Drawer”, published defamatory imputations in respect of Mr Aktas and Homewise. The trial judge, however, held that Westpac had established the common law defence of qualified privilege. Her Honour held that the relationship Westpac had with each of the payees justified the communication of information about its attitude to the presentation of the cheques, even though that information was based on a mistake. Absent the defence, her Honour would have awarded Mr Aktas $50,000 and Homewise $117,000 in damages. Mr Aktas and Homewise appealed to the Court of Appeal of the Supreme Court of New South Wales. That part of the appeal concerning the defamation claim was dismissed.   Mr Aktas was granted special leave to appeal to the High Court on 11 December 2009. Mr Aktas’s sole ground of appeal was that the Court of Appeal had erred in holding that the defamatory material was published on an occasion of qualified privilege.

A majority of the Court agreed. The relevant question, in determining whether an occasion for qualified privilege arose, was whether the relationship between Westpac and the payees of the cheques was one in which the advantages to be had from free communication outweighed the importance of the accuracy of the defamatory imputation. One supposed advantage identified by the Court of Appeal was prompt advice to the payee that the cheque had not been honoured. While recognising the importance of prompt advice, the High Court considered that this end was achieved by ss 67 and 69 of the Cheques Act 1986 (Cth) (which oblige the drawee bank to pay to the holder a cheque duly presented for payment, or to dishonour the cheque “as soon as is reasonably practicable”).

The absence of a public interest in protecting the communication was demonstrated by the absence of any reciprocity of interest between bank and payee. The bank has an interest in communicating because it refuses to pay. But the payee has no interest in receiving a communication of refusal to pay a cheque which is regular on its face in a case where the drawer has funds sufficient to meet its payment. For the payee, there is no need for any communication from the bank about the fate of the cheque, if it is met on presentation. Further, to hold that giving a notice of dishonour is an occasion of qualified privilege is not conducive to maintaining accuracy in the decisions banks must make about paying cheques.   The Court allowed the appeal and ordered that the verdict of the trial judge be replaced by a verdict and judgment for Mr Aktas with damages in the amount of $50,000 with interest.

CGU Insurance Limited v One.Tel Limited (In Liquidation) [2010] HCA 26 (4 August 2010)

In September 2004, Mr John Greaves was ordered to pay $20 million in compensation to One.Tel Limited (“One.Tel”). Mr Greaves had been a director of One.Tel and was insured under a directors and officers liability policy, issued by CGU Insurance Limited (“CGU”). The High Court has held that the termination of a deed of arrangement, pursuant to which Mr Greaves had assigned his rights under the policy to a trustee, did not prevent the trustee from commencing an action on the policy in respect of the $20 million.   Mr Greaves (the third respondent) was, in 1995 and from 1997 to 2001, a director of One.Tel (the first respondent). He was insured under a directors and officers liability policy of insurance, issued by CGU (the appellant). In December 2001, after the collapse of One.Tel, the Australian Securities and Investments Commission (“ASIC”) (the fourth respondent) sued Mr Greaves in the Supreme Court of New South Wales for breaches of the Corporations Act 2001 (Cth). In September 2004, by consent of the parties, the Supreme Court ordered Mr Greaves to pay compensation to One.Tel in the sum of $20 million and to pay $350,000 to ASIC.   In November 2004, Mr Greaves entered into a deed of arrangement pursuant to Part X of the Bankruptcy Act 1966 (Cth). Mr David Watson was the trustee of the deed. Under the deed, Mr Greaves was to assign to Mr Watson, as trustee, all the property described in Schedule A to the deed, including Mr Greaves’s rights under the policy with CGU. The deed provided that the trustee should “get in and realise” that property “as soon as reasonably practicable”. It also provided that the trustee should apply any amount received under the insurance policy in payment of any liability Mr Greaves might have to ASIC and One.Tel. Immediately after the trustee had completed or settled any claim under the policy (or had decided not to pursue a claim under the policy), the trustee was to issue a certificate. Once that certificate had been executed, Mr Greaves would be absolutely released and discharged from all liability in respect of the orders made by the Supreme Court in September 2004. Prior to the execution of that certificate, the deed prevented the trustee or any creditor from enforcing those orders. Finally, the deed stipulated that it was to terminate three years from the date of its execution unless the creditors resolved to extend its operation.   On October 2006, the trustee commenced proceedings against CGU in the Supreme Court of New South Wales, pursuing Mr Greaves’s cause of action on the policy in respect of the $20 million compensation order. In November 2007, the deed terminated — three years having passed since its execution. The primary issue for determination by the trial judge was whether the trustee’s right to pursue an action under the policy survived the termination of the deed. His Honour held that, once the deed terminated, the trustee had no power to continue the proceedings. The Court of Appeal allowed the appeal. On 12 March 2010, CGU was granted special leave to appeal to the High Court.   CGU advanced two central contentions before the Court. The first was that, even if the assignment to the trustee of the chose in action (that is, the right to pursue proceedings under the policy) was a valid legal or equitable assignment, neither the Bankruptcy Act nor the deed itself gave the trustee the power to continue the proceedings after termination. The second was that Mr Greaves had suffered no “loss” within the meaning of the policy, because even after the deed had terminated it continued to prevent anyone from enforcing the orders of September 2004 against him.   On the first issue, the Court noted CGU’s concession that, once the deed had terminated, the trustee remained a trustee; but instead of holding the chose in action on the trusts under the deed, he held the property on trust for Mr Greaves. The Court accepted that concession as correct. It noted, however, that one obligation of a trustee which exists by virtue of the very office is the obligation to protect the trust property and vindicate the rights attaching to it. That obligation exists even if no provision of any statute or trust instrument creates it, and unless it is negated by any such provision. Here, no provision of the Bankruptcy Act or the deed negated it. Even after termination of the deed, the trustee remained a trustee and continued to have an obligation to comply with the duty to vindicate the rights associated with the trust property. The trustee was not disentitled from continuing the proceedings against CGU.   On the second issue, the Court rejected CGU’s submission that the clause preventing the trustee and creditors from enforcing the September 2004 orders survived the termination of the deed.  It further held that, even if the stay continued in force, Mr Greaves had still suffered a “loss” within the meaning of the policy.   The Court allowed the appeal in part, as its answers to some of the questions reserved for the consideration of the trial judge differed from those given by the Court of Appeal. The appeal was otherwise dismissed and CGU was ordered to pay One.Tel’s costs.