Noelene Margaret Edwards & Ors v Santos Limited & Ors [2011] HCA 8
Today the High Court issued a writ of certiorari to quash decisions of the Federal Court of Australia which had dismissed proceedings instituted by registered native title claimants arising out of negotiations for an Indigenous Land Use Agreement (“ILUA”) under the Native Title Act 1993 (Cth) (“the NTA”).
The plaintiffs are members of the Wongkumara People. The land the subject of their native title claim is in Queensland and New South Wales. Two of the defendants hold an authority to prospect in respect of land in Queensland falling within the boundaries of the claimed land (“the petroleum defendants”). The authority to prospect was granted by the second defendant, the State of Queensland, under the Petroleum Act 1923 (Q). Section 40 of the Petroleum Act entitled the holder of an authority to prospect to the lease of land for petroleum exploration (a “production lease”).
The Wongkumara People and the petroleum defendants negotiated entry into an ILUA in relation to future grants which might be “future acts” within the meaning of the NTA. The petroleum defendants asserted that the authority to prospect which they held pre-dated the NTA and that any production leases emanating from the authority to prospect would be “pre-existing rights based acts” and not subject to the “right to negotiate” under the NTA. The plaintiffs took issue with the contention that the production leases would be pre-existing rights based acts and instituted proceedings in the Federal Court seeking declaratory and injunctive relief.
The plaintiffs’ claim was summarily dismissed under s 31A(2) of the Federal Court of Australia Act 1976 (Cth) on the ground that the application had no reasonable prospect of success and that the Federal Court did not have jurisdiction to hear the application. The Full Federal Court refused leave to appeal from the orders of the primary judge.
Section 33(4B)(a) of the Federal Court of Australia Act precluded the plaintiffs from seeking special leave to appeal to the High Court against the Full Court’s decision. Accordingly, the plaintiffs applied, in the High Court’s original jurisdiction, for the issue of writs pursuant to s 75(v) of the Constitution in relation to the Federal Court decisions.
The High Court held that the Federal Court had jurisdiction to hear and determine the plaintiffs’ application because there had been a “matter” arising under a federal enactment, namely, the NTA, the plaintiffs had not sought an advisory opinion and the plaintiffs had standing to seek declaratory and injunctive relief. The Federal Court had wrongfully denied its jurisdiction and thereby fell into jurisdictional error attracting a writ of certiorari to quash its decisions.
A majority of the High Court additionally considered that an order in favour of the plaintiffs should be made for the costs of the Federal Court proceedings under the High Court’s power in s 32 of the Judiciary Act 1903 (Cth) to grant remedies in the cause or matter before it to completely and finally determine so far as is possible all matters in controversy between the parties.
Stubley v The State Of Western Australia [2011] HCA 7
On 20 October 2010, at the conclusion of the hearing of oral argument on the appeal, the High Court ordered that the appeal of Dr Alan John Stubley against his conviction for various sexual offences be allowed, that his convictions be set aside and that a new trial be held. Today the High Court published its reasons for the making of those orders.
Dr Stubley, a psychiatrist, was charged under the Criminal Code (WA) with 14 offences which included rape, attempting to commit rape, and unlawful and indecent assault, relating to sexual activity with two women who were his patients, JG and CL. The charges were founded on incidents alleged by JG and CL to have occurred between 1975 and 1978 during treatment sessions with Dr Stubley. At trial, Dr Stubley stated that he had been sexually intimate with the two women, however he maintained that JG and CL had consented on each occasion. Following the trial in the Supreme Court of Western Australia, Dr Stubley was found guilty of 10 offences. An appeal to the Court of Appeal against his conviction was unsuccessful.
At issue in the appeal to the High Court was whether the prosecution was entitled to adduce the evidence of three other women who each alleged that Dr Stubley had engaged in sexual activity with them while they were his patients. These allegations were not the subject of the charges against Dr Stubley, however the prosecution at trial successfully submitted that the evidence was admissible against him as “propensity evidence” or “relationship evidence” within the meaning of s 31A of the Evidence Act 1906 (WA).
However, by majority, the High Court held that the evidence of the three other women did not have significant probative value as propensity evidence or relationship evidence, and therefore that it should not have been admitted at the trial. This was because the only issue at the trial was whether the sexual activity between Dr Stubley and JG and CL was consensual, and the evidence of the three other women could not have probative value with respect to whether JG or CL consented to the sexual activity.
Hogan v Hinch [2011] HCA 4
Today the High Court rejected a challenge by Mr Derryn Hinch to the validity of a provision which permitted suppression orders to be made in proceedings under the Serious Sex Offenders Monitoring Act 2005 (Vic) (“the Act”), and which made publication of material contravening those orders an offence.
In 2008, Mr Hinch was charged with contravening orders made by the Victorian County Court under s 42 of the Act. The Act has since been repealed and replaced by the Serious Sex Offenders (Detention and Supervision) Act 2009 (Vic). Those orders prohibited publication of any information that might enable certain convicted sex offenders, made the subject of extended supervision orders, to be identified. The terms of the suppression orders reflected the words of s 42(1)(c) of the Act, a provision which empowered the courts to make such orders where it was satisfied that it was “in the public interest” to do so. Section 42(3) created an offence of publication of material in contravention of a suppression order made under s 42(1). The charges arose out of alleged publications made by Mr Hinch on the website “HINCH.net” and at a public protest rally in Melbourne. On 30 July 2010, so much of the cause as concerned the validity of s 42 was removed into the High Court.
In the High Court, Mr Hinch alleged that the section was invalid on three grounds. The first two grounds were based on implications sought to be drawn from Chapter III of the Constitution, namely, that s 42 impermissibly diminished the institutional integrity of the courts of Victoria and, secondly, that suppression orders made pursuant to s 42 were contrary to an implication to be derived from Chapter III that all State and federal court proceedings must be conducted in public. The third ground was that s 42 was invalid because it infringed the implied constitutional freedom of political communication. The Court today declared that s 42 was not invalid upon any of those grounds.
The Court, noting that the requirement that justice be administered publicly is not an absolute rule, unanimously held that the power under the Act to make suppression orders was not contrary to any implication arising out of Chapter III of the Constitution. The requirement of s 42 that courts have reference to the “public interest” when deciding whether to make a suppression order ensured that the power did not render the relevant courts inappropriate repositories of federal judicial power under Chapter III. Although the Court accepted that s 42(3) did burden freedom of communication about government or political matters, it held that the law operated in support of the broader scheme embodied in the Act, namely, the protection of the community by the effective monitoring of released sex offenders. Properly construed, it was reasonably appropriate and adapted to serve a legitimate end in a manner compatible with the maintenance of the constitutionally prescribed system of government, and therefore was not invalid on this ground.
The focus of s 42 was upon the conduct of proceedings under the Act, not upon naming a particular person as having committed or having been convicted of an offence. Whether publishing a person’s name was to publish information which might enable an offender or another person who has appeared or given evidence in the proceeding under the Act to be identified would be a question of fact to be decided by reference to the whole of the publication and any other relevant evidence.
Leonilda Marcolongo v Yu Po Chen & Anor [2011] HCA 3
Today the High Court allowed an appeal from the New South Wales Court of Appeal and set aside a registered transfer of land from Lym International Pty Limited (“Lym”) to Mr Chen by application of s 37A of the Conveyancing Act 1919 (NSW). Section 37A(1) provides that, except for certain specified exceptions, every alienation of property made with the intent to defraud creditors shall be voidable at the instance of any person thereby prejudiced.
Mrs Marcolongo owned and lived on a property adjacent to a property development project in which Lym was involved. Mrs Marcolongo sued Lym in the New South Wales District Court for damages for the removal of support during the building operations. During 2004 and 2005 the solicitors for Mrs Marcolongo and Lym corresponded concerning Mrs Marcolongo’s desire to obtain a property preservation order over a second property development project, in which Lym was also involved, so as to protect Mrs Marcolongo’s position in her District Court action against Lym.
Later in 2005, the second property development project was valued with the result that the expected proceeds of sale would not exceed Lym’s liabilities. In 2006, Lym transferred the property comprising the second project to Mr Chen to hinder Mrs Marcolongo’s claim.
On 26 November 2009, Mrs Marcolongo recovered a judgment against Lym for the damage caused to her property for $388,643.62 with costs. In a Supreme Court action against Lym and Mr Chen, Mrs Marcolongo relied upon s 37A to have the contract declared voidable at her instance and to require Mr Chen to transfer the property back to Lym. The result would be Lym retaining a substantial asset to meet any order for damages. The trial judge found in favour of Mrs Marcolongo. The Court of Appeal reversed the trial judge’s decision on the basis that Lym had not been dishonest, and the transfer was not “predominantly” motivated by the intent to defeat the claim of Mrs Marcolongo as a creditor.
French CJ, Gummow, Crennan and Bell JJ considered that s 37A should receive a liberal construction in accordance with the provenance of the provision. Their Honours held that “defraud” includes the hindering or delaying of creditors in the exercise of their legal remedies. The plurality further held that s 37A requires a finding of intent to achieve the proscribed prejudice. French CJ, Gummow, Crennan and Bell JJ held that s 37A is not qualified by a notion of constructive fraud, does not require an element of dishonesty and does not require a predominant or sole intent to defraud.
Heydon J held that whatever the precise test called for by s 37A, the intent underlying Lym’s conduct was enough to satisfy it. The intent was as “actual” and “dishonest” as it is possible to have.
The High Court held that s 37A applied despite the transferor having formed the proscribed intent by reason of the misconduct of another. The Court also held that Mr Chen was not within an exception to s 37A for purchasers in good faith not having, at the time of the alienation, notice of the intent to defraud creditors.
