British American Tobacco Australia Services Limited v Laurie & Ors [2011] HCA 2
Today the High Court prohibited a judge from hearing proceedings on the basis of a reasonable apprehension of bias, in circumstances where in earlier, unrelated, proceedings, that judge had made findings adverse to one party on an issue that was also likely to arise in the later proceedings.
Mr Donald Laurie commenced negligence proceedings against British American Tobacco Australia Services Limited (“BATAS”). After his death from lung cancer in May 2006, the claim was continued by his widow, Mrs Claudia Laurie, who also brought negligence proceedings on her own behalf as his dependant. The claim alleged that Mr Laurie had smoked BATAS tobacco products for a number of years and that throughout this period BATAS knew, or ought to have known, that smoking tobacco products could cause lung cancer. A significant issue in the proceedings was whether BATAS had adopted and implemented a document management policy for the purpose of destroying documents adverse to its interests. The claim was listed before Judge Curtis in the New South Wales Dust Diseases Tribunal.
In earlier, unrelated, proceedings involving BATAS (“the Mowbray proceedings”), Judge Curtis found that BATAS drafted or adopted a document management policy for the purpose of a fraud. The finding was an interlocutory finding made for the purpose of determining whether the evidence of Mr Gulson, a former in-house counsel and company secretary of BATAS, was admissible in those proceedings. Judge Curtis noted in his reasons that the application was only interlocutory and that whether the document management policy was implemented for the purpose of destroying prejudicial documents remained a live issue for trial. However, the Mowbray proceedings did not proceed to trial. It was likely that Mr Gulson would also be called in Mrs Laurie’s proceedings to prove the allegations concerning the document management policy.
BATAS made an application to Judge Curtis asking that he disqualify himself from hearing Mrs Laurie’s claim on the ground that his findings in the Mowbray proceedings gave rise to a reasonable apprehension of bias. Its application relied on a principle requiring that a judge not sit to hear a case if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question that the judge is required to decide. Judge Curtis refused the application. BATAS sought leave to appeal to the New South Wales Court of Appeal, and also commenced proceedings in that Court seeking an order prohibiting Judge Curtis from hearing or determining Mrs Laurie’s claim. The Court of Appeal dismissed both summonses.
The High Court by majority allowed the appeal, and made an order prohibiting Judge Curtis from further hearing or determining Mrs Laurie’s claim. The impression created by reading the judgment from the Mowbray proceedings was that the clear views there stated might influence Judge Curtis’s determination of the same issue in Mrs Laurie’s claim. Although Judge Curtis acknowledged in the Mowbray proceedings that different evidence could be led at trial, the High Court considered that his findings were otherwise expressed to be without qualification or doubt, and indicated extreme scepticism about BATAS’s denials and strong doubt about the possibility of different materials leading to a different outcome. The Court held that, in the circumstances, a reasonable observer might apprehend that Judge Curtis would not bring an impartial mind to the question in Mrs Laurie’s proceedings, even if different materials were presented.
Pursuant to an undertaking given to the Court, BATAS was ordered to pay Mrs Laurie’s costs.
Minister for Immigration & Citizenship v SZGUR & Anor [2011] HCA 1
The Refugee Review Tribunal (“RRT”) made adverse credibility findings against SZGUR, an applicant for a protection visa. The RRT sent SZGUR a letter inviting him to comment on or respond to inconsistencies and contradictions in information provided by him during the application and review process. In response, SZGUR’s migration agent suggested that the inconsistencies and contradictions may have been related to SZGUR’s alleged mental health problems, and requested that the RRT “arrange independent assessment of [SZGUR’s] mental health, if required”. Section 427(1)(d) of the Migration Act 1958 (Cth) relevantly empowered the RRT to require the Secretary to arrange for a medical examination. The RRT did not request the arranging of any such examination, and refused SZGUR’s visa application. An application to the Federal Magistrates Court for judicial review was dismissed. On appeal to the Federal Court, Rares J held that the RRT failed to consider the agent’s request, and that this failure constituted a constructive failure to exercise jurisdiction.
Today the High Court allowed an appeal by the Minister against the decision of the Federal Court. It held that there was insufficient evidence to indicate that the RRT had failed to consider the agent’s request. The Court also took the view that the relevant provisions of the Act did not create any general obligation on the RRT to consider whether to exercise the power in s 427(1)(d). Pursuant to an undertaking given to the Court, the Minister was ordered to pay SZGUR’s costs.
TEC Desert Pty Ltd & Anor v Commissioner of State Revenue [2010] HCA 49
The High Court of Australia today unanimously held that an agreement divesting WMC Resources Ltd (“WMC”) of responsibility for power generation for its mining operations in Western Australia did not transfer any interest in land and so was not subject to stamp duty under the Stamp Act 1921 (WA). The Court of Appeal of the Supreme Court of Western Australia had previously determined that the stamp duty payable by the purchasers, TEC Desert Pty Ltd and AGL Power Generation (WA) Pty Ltd, was in excess of $11 million.
In 1998, WMC entered into an agreement to sell its power generation assets to the purchasers (“Sale Agreement”). The assets of WMC dealt with by the Sale Agreement included power stations, generators, electrical wires, and transmission and distribution equipment. The Sale Agreement provided for the sale of those of WMC’s assets that were chattels or personal property, but not those that were “Fixtures”, for approximately $190 million. The term “Fixtures” was defined in the Sale Agreement as items “affixed to land, and an estate or interest in which is therefore an estate or interest in land”. The Sale Agreement required WMC to grant licences to the purchasers. The licences allowed the purchasers to use the power generation assets that were “Fixtures” and the areas of land on which they were located for 15 years. WMC could require prepayment of the licence fees, totalling almost $40 million, on completion of the Sale Agreement. If the licences terminated, the purchasers were required to acquire the “Fixtures” from WMC.
The Commissioner of State Revenue assessed the Sale Agreement to stamp duty of approximately $9 million on the basis that the chattels sold to the purchasers were mostly fixtures, in the technical sense, and so the Sale Agreement was an agreement to transfer interests in both land and chattels. Agreements of that kind are caught by s 70(2) of the Stamp Act, and duty is payable on the value of both the land and the chattels. The purchasers successfully appealed to a single judge of the Supreme Court, but that decision was overturned by the Court of Appeal. The Court of Appeal determined that s 70(2) applied to the Sale Agreement. It further held that the stamp duty payable should be increased to approximately $11 million, as the licences required to be granted under the Sale Agreement also transferred interests in land.
By special leave, the purchasers appealed to the High Court. Most of WMC’s power generation assets were on land not owned by WMC. WMC held mining leases and other mining tenements, under Western Australia’s mining legislation, over those lands. The High Court held that the interests of WMC in mining tenements were not interests in land; they were personal property, limited to rights to work mines and take away minerals recovered. Thus, interests in the power generation assets affixed to such land were also personal property and not interests in land. As for the remanning assets located on land owned by WMC in freehold, the parties had made an agreed assumption in the Sale Agreement that WMC had title to the “Fixtures” separate and distinct from its title to the land. Accordingly, no interest in land was transferred. The High Court held further that terms in the licences requiring the purchasers to rehabilitate the area the subject of the licences, and preventing WMC assigning its freehold without the assignee being bound by the licences, were contractual rights and obligations and did not grant any interests in land.
The High Court allowed the appeal and reinstated the decision of the Supreme Court at first instance that no duty was payable. The Commissioner was ordered to pay the purchasers’ costs.
Minister for Immigration & Citizenship v SZJSS & Ors [2010] HCA 48
In reviewing the unsuccessful protection visa application of a Nepalese citizen (“SZJSS”), the Refugee Review Tribunal (“RRT”) chose to give “no weight” to certain letters provided by SZJSS which appeared to corroborate some of the assertions made by him in support of his application. The RRT also described the giving of certain oral evidence by him as a “baseless tactic”.
An application by SZJSS and his wife for judicial review of the decision was dismissed by the Federal Magistrates Court on 11 September 2009. However, the Federal Court allowed an appeal from that decision, and quashed the decision of the RRT. It found that the RRT had fallen into jurisdictional error by failing to give “proper, genuine and realistic consideration” to the letters, and by referring to the giving of certain evidence as a “baseless tactic”. The Federal Court also found that the reasons of the RRT gave rise to a reasonable apprehension of bias, by reason of prejudgment.
The High Court today unanimously upheld an appeal by the Minister against the decision of the Federal Court. It found that the weight to be placed on the letters was a matter on which reasonable minds might come to different conclusions, and that the RRT’s preference for other evidence could not be said to entail a jurisdictional error. It held further that the RRT’s use of the expression “baseless tactic” did not, in the circumstances, give rise to any jurisdictional error. On the question of apprehended bias, the Court found that the RRT’s use of the expression “baseless tactic” did not provide any foundation for a contention that the RRT pre-judged a central but contestable issue in the matter.
Pursuant to an undertaking given to the Court, the Minister was ordered to pay the costs of the visa applicants.
Rowe & Anor v Electoral Commissioner & Anor [2010] HCA 46
On 6 August 2010, the High Court declared, by majority, that certain provisions that amended the Commonwealth Electoral Act 1918 (Cth) were invalid. Today, the Court published the reasons for its decision.
The provisions that were declared invalid related to the cut-off dates for consideration of claims for enrolment and for transfer of enrolment as an elector. The provisions prevented the Electoral Commissioner from considering claims for enrolment lodged after 8 pm on the date of the issue of writs for an election for the House of Representatives or the Senate until after the close of polling. They also prevented consideration of claims for transfer of enrolment from one divisional roll to another from 8 pm on the third working day after the date of the issue of the writs until after the close of polling.
In separate judgments, Chief Justice French, Justices Gummow and Bell, and Justice Crennan held that these provisions contravened the requirement, contained in ss 7 and 24 of the Constitution, that members of both Houses of the Commonwealth Parliament be “directly chosen by the people”. The Chief Justice considered that the adverse legal and practical effect of the challenged provisions upon the exercise of the entitlement to vote was disproportionate to their advancement of the requirement of direct choice by the people. Justices Gummow and Bell, with whom Justice Crennan broadly agreed, held that the provisions operated to achieve a disqualification from the entitlement to vote and that the disqualification was not reasonably appropriate and adapted to serve an end compatible with the maintenance of the system of government prescribed by the Constitution. Justice Crennan held that the democratic right to vote is supported and protected by the Constitution.
In separate dissenting judgments, Justices Hayne, Heydon and Kiefel each held that theprovisions did not contravene any limitation imposed by the Constitution on the legislative power of the Commonwealth to fix the date and time after which claims for enrolment or transfer of enrolment may not be considered before an election. Their Honours considered that the requirement of direct choice by the people was not infringed by the provisions challenged.
Anthony Joseph Luis Hili v The Queen; Glyn Morgan Jones v The Queen [2010] HCA 45
Today the High Court unanimously dismissed appeals by two individuals against the sentences imposed on them by the Court of Criminal Appeal of New South Wales in respect of tax evasion offences prosecuted as part of Project Wickenby. It held that there is no judicially determined norm or starting point for the period of imprisonment that a federal offender should actually serve in prison before release on a recognizance release order.
Anthony Hili and Glyn Jones were convicted of federal offences under the Criminal Code (Cth) and the Crimes Act 1914 (Cth) (“the Crimes Act”) in respect of tax evasion covering over $750,000 of income tax. In the New South Wales District Court, Morgan DCJ sentenced each offender to 18 months’ total imprisonment, with a recognizance release order to take effect after seven months. On appeal by the prosecution, the Court of Criminal Appeal held that the sentences imposed were manifestly inadequate, and sentenced each accused to a total of three years’ imprisonment with a recognizance release order to take effect after 18 months. The Court of Criminal Appeal noted the submission put by the prosecution that there was an appropriate ratio between a non-parole period and the head sentence, and that the non-parole period should be between 60 and 66% of the total sentence. It was argued before the High Court that there ought to be no “norm or starting point, expressed as a percentage” for the period of imprisonment that a federal offender should actually serve prior to release on a recognizance release order, and that the Court of Criminal Appeal had given insufficient reasons for its conclusion that the sentences imposed by Morgan DCJ were manifestly inadequate.
The High Court held that there neither is, nor should be, a judicially determined norm or starting point for the period of imprisonment that a federal offender should actually serve in prison before release on a recognizance release order. The Court held that the applicable provisions of Part IB of the Crimes Act, which govern the sentencing of federal offenders, made no provision fixing any relationship between the head sentence and a recognizance release order, and that the sentencing court had power to fix a recognizance release order to take effect at any time during the period of the head sentence. The Court considered that the Court of Criminal Appeal was incorrect in saying that the “norm” for a period of mandatory imprisonment under the Crimes Act is between 60 and 66%, but that the Court of Criminal Appeal was correct in concluding that the sentences imposed by Morgan DCJ were manifestly inadequate.
Port of Portland Pty Ltd v State of Victoria [2010] HCA 44
In 1996, the State of Victoria entered into an agreement with two companies to sell the assets and business of the Port of Portland Authority. The appellant, in which each company owned a halfshare, was nominated as the purchaser. Clause 11.4 of the agreement concerned the appellant’s liability to pay land tax in respect of the land forming part of the purchase. Paragraph (a) of the clause provided that the State agreed to amend legislation governing the assessment and imposition of land tax to ensure that when the appellant was assessed for land tax the unimproved site value used as the basis for the assessment would not include the value of buildings, breakwaters, berths, wharfs, aprons, canals or associated works relating to a port. Paragraph (b) of the clause concerned the possibility that the legislative amendments did not become law and that the appellant was assessed to land tax at a higher rate than would have been the case if the amendments were law. In such a situation, the State would refund or allow to the appellant the difference between the two amounts.
Legislation was passed to amend the definition of “improvements” in the Valuation of Land Act 1960 (Vic). The amendments came into effect some months after the date of the agreement. The last general valuation of the land before the agreement was in June 1993, and no subsequent general valuation occurred until January 2000. Supplementary valuations were made in the intervening period. The general valuation made in 2000 was significantly less than the supplementary valuations. The appellant attributed the reduction to the proper exclusion of the works specified in cl 11.4. It considered that those works had not been excluded from the value of the land used by the Commissioner of State Revenue to calculate the amount of land tax payable between 1997 and 2001.
The appellant brought proceedings in the Supreme Court of Victoria seeking to enforce the agreement. The State successfully argued at trial and on appeal to the Court of Appeal that cl 11.4 constituted an executive act that purported to bind the Parliament and was thus beyond the State’s power and void. On appeal to the High Court, the appellant placed its case on paragraph (b) of cl 11.4, which the High Court held was not a dispensation by the executive from the land tax legislation, as there was a statutory backing to its inclusion in the agreement. The appellant’s principal argument was that the State had not ensured that the value of the land used to calculate the amount of land tax payable excluded the relevant works specified in paragraph (a) of cl 11.4 and was obliged by paragraph (b) to bear the extra land tax that the appellant claimed it had been assessed to pay.
The High Court accepted the appellant’s argument, holding that the State’s obligation under cl 11.4 was not fulfilled by the mere passage of the amending legislation. The Court considered that, to meet the State’s obligation, the amendments had to have enabled the exclusion of the specified works from the valuation used to calculate the land tax payable between 1997 and 2001. The Court held that no supplementary valuation could take into account the amendments to the Valuation of Land Act effected in 1996. It also held that the objection procedures available to the appellant to challenge a land tax assessment could not have resulted in an adjustment to the valuation to take into account those amendments. The State was therefore in breach of its obligation under cl 11.4.
The Court allowed the appeal and remitted the matter to the Supreme Court of Victoria to determine the amount the appellant is entitled to recover from the State.
