High Court of Australia Judgment Summary Notes

AK v The State of Western Australia [2008] HCA 8 (26 March 2008)

The High Court of Australia has ordered a retrial for a boy charged with indecently dealing with a child after the trial judge sitting without a jury gave insufficient reasons for his decision to convict.

In February 2002, AK, then aged 13, allegedly dealt indecently with his 15-year-old female cousin as they slept on a double mattress with his brother, R, aged 14, and her sister, aged 16. AK’s family had visited the cousin’s family in Geraldton, Western Australia, when the two families decided to travel to Tardun and spend the night in a caravan. During the night AK allegedly touched his cousin’s breasts and vagina and placed her hand on his penis. In March 2003, the cousin became pregnant and subsequently had an abortion. She told other family members and the police that AK was the father.

In 2004, AK was charged in the WA Children’s Court with three counts of indecent dealing with a child aged between 13 and 16. These charges related to the alleged incident of February 2002. He was also charged with rape and indecent assault of the cousin in early 2003. In cross-examination of the cousin, an issue of identification was raised and the suggestion was put to her that R could have been the one who touched her in 2002. She was adamant it was AK, not R, but could not say how in the darkness she knew. After a trial in July 2005 before Judge Henry Wisbey sitting alone, AK was convicted of the counts of indecent dealing but acquitted of the other two charges. He was sentenced to a six-month intensive youth supervision order and is subject to seven-and-a-half years of reporting conditions. AK, now aged 19, appealed against his convictions for indecent dealing.

Section 120(2) of the WA Criminal Procedure Act provides that the judgment of the judge in a trial by judge alone must include the principles of law they have applied and the findings of fact on which they have relied. The Court of Appeal unanimously held that Judge Wisbey’s reasons for judgment were inadequate because they did not identify and address the issue which arose at trial as the identity of the offender. However, by majority, the Court dismissed the appeal, applying the proviso that no substantial miscarriage of justice had occurred. AK appealed to the High Court.

The High Court agreed that Judge Wisbey erred in law in failing to give adequate reasons for his decision to convict AK, only stating his satisfaction beyond reasonable doubt that all elements of indecent dealing had been established. The Court held that Judge Wisbey was obliged to say why and how he resolved the question of identification in favour of the prosecution. However, the Court, by a 3-2 majority, held that the Court of Appeal erred in applying the proviso. The majority held that the complete failure to meet the mandatory requirements of section 120(2) of the Act with respect to the central issue of identification was a substantial miscarriage of justice. The High Court ordered that AK’s convictions be quashed and directed that a new trial be held.

Aussie Vic Plant Hire Pty Ltd v Esanda Finance Corporation Limited [2008] HCA 9 (26 March 2008)

A court could not extend the time for compliance with a statutory demand under the Corporations Act if the time fixed by the Act had already expired, the High Court of Australia has held.

Esanda served a statutory demand on Aussie Vic Plant Hire when Aussie Vic owed Esanda more than $400,000 under several hiring and chattel mortgage contracts. A statutory demand is a demand served on a company under section 459E of the Corporations Act to pay a debt or debts within 21 days. Section 459F(2) provides that if the company applies pursuant to section 459G for an order to set aside the demand, a court may extend the period for compliance, and if no extension is ordered the period ends seven days after the application under section 459G is finally determined.

Aussie Vic applied to the Victorian Supreme Court for an order setting the demand aside. On 20 June 2006, Master John Efthim dismissed the application to set aside the demand but ordered that the time for compliance be extended to 4 July 2006. Aussie Vic was entitled to appeal to a single judge of the trial division of the Supreme Court. After the extension fixed by Master Efthim had expired but before the appeal to a single judge had come on for hearing, Aussie Vic applied for another extension of time for compliance. The application and the appeal were heard by Justice Simon Whelan who dismissed both. He held that he could make no order to extend time due to section 459F(1) of the Act, which provided that the company was taken to fail to comply with the demand if the period for compliance had ended. Aussie Vic then appealed to the Victorian Court of Appeal, which sat with five Justices. On the issue of whether the time for compliance with a statutory demand could be extended after it had expired, two members of the Court held that it could, two members held that the preferable construction of the Act was that it could but that earlier contrary decisions should still apply, and the fifth member held that it could not. The Court of Appeal dismissed the appeal and Aussie Vic appealed to the High Court.

The High Court, by a 4-1 majority, dismissed the appeal and held that an order could be not be made to extend the period of compliance with a statutory demand after that period had expired. Generally the Act allowed a period for compliance to be extended even if the period has ended, unless the contrary intention appeared. The Court held that such a contrary intention did appear in Part 5.4 of the Act, entitled “Winding up in insolvency”, which included sections 459E, 459F and 459G. It held that the evident purposes of Part 5.4 included speedy resolution of applications to wind up insolvent companies. Section 459F(1) provides that if at the end of the period for compliance with a statutory demand the demand is still in effect and the company has not complied with it, the company is taken to fail to comply with the demand. The Court held that the demand was in force and the time had expired so the company had not complied with the demand. It said that Aussie Vic’s argument that an order extending the time for compliance can be made after the period has expired was not supported by section 459(2). It pointed out that denying the power to extend the time to comply with a statutory demand after the time had already expired did not affect the determination of the rights or liabilities of the company or of the party making the demand. Non-compliance with a demand merely creates a rebuttable presumption of insolvency.

Gumland Property Holdings Pty Limited v Duffy Bros Fruit Market (Campbelltown) Pty Limited [2008] HCA 10 (27 March 2008)

A commercial lease was validly terminated on account of the lessee’s failure to pay rent and the lessor was entitled to damages as well as unpaid rent and outgoings, the High Court of Australia has held.

In 1993, Duffy Bros leased almost 20 per cent of the Marketfair Campbelltown shopping centre for 15 years from Transit Management Pty Ltd to operate a fruit, vegetable and meat market. The base rent was $245,343 per annum, subject to Consumer Price Index increases and five-yearly reviews, plus almost 20 per cent of Transit’s outgoings. In 1994, the Pisciuneris entered into a guarantee to pay all costs for occupation of the premises or arising out of any breach of the lease agreement. By 1999, Duffy Bros was experiencing difficult trading conditions and had fallen into arrears with rent and outgoings. Duffy Bros and Transit entered a deed which reduced the rent to $156,000 per annum and allowed the creation of a sub-lease over part of the premises. Duffy Bros sub-leased the portion of the premises to Austie Nominees Pty Ltd which in 2001 transferred its interest to Woolworths Ltd. Transit sold the shopping centre to Gumland Property Holdings in 2001 and transferred all its rights under the lease and the 1999 deed to Gumland.

The sub-lease expired in 2002 and Woolworths told Duffy Bros that it did not wish to renew. However it remained in occupation while opting unilaterally to pay only half the rent. This put Duffy Bros into breach of the deed since it did not pay the shortfall itself. Gumland served notice on Duffy Bros stating that the shortfall in rent was a breach entitling it to terminate the lease. It demanded payment of $57,893.55. Duffy Bros did not pay and on 1 August 2003 Gumland gave notice terminating the lease. In 2004, Gumland began proceedings seeking arrears of rent up to the date of termination, loss of bargain damages for the rest of the 15-year term, expiring on 29 March 2008, and reinstatement damages (the costs of reletting the premises). It also sued the Pisciuneris as guarantors of Duffy Bros’ obligations under the lease.

In the NSW Supreme Court, Associate Justice Richard Macready held that the lease was validly terminated due to the failure to pay rent. The failure to make up the shortfall in Woolworths’ rent gave rise to a right to loss of bargain damages as well as rent arrears. Associate Justice Macready gave judgment for Gumland of $2,096,514, including interest, made up of the Woolworths’ shortfall ($78,635); arrears of rent and outgoings ($283,597); loss of bargain damages — the difference between rent and outgoings payable between 1 August 2003 and 29 March 2008 and that paid by new tenants ($1,624,737); and reinstatement damages ($109,545). The Court of Appeal held that Gumland was not entitled to terminate the lease because Duffy Bros’ failure to pay the shortfall was only a breach of the deed, not a breach of an essential term in the lease. Therefore Gumland was not entitled to loss of bargain damages or reinstatement damages, reducing the judgment to $362,232. Gumland appealed to the High Court.

The High Court unanimously allowed the appeal and restored the judgment sum awarded by Associate Justice Macready. It held that Duffy Bros had breached the deed and that Gumland had a clear right of action under the deed against Duffy Bros for rent not paid by Woolworths. Once part of the store was sub-leased, Duffy Bros was liable for the rent and outgoings under any sub-lease. The deed was not a side agreement to the lease or a suspension of the lease, but a variation of it. Hence the failure to pay these amounts was a failure to comply with the lease covenant to pay all rent and outgoings. The lease covenant was an essential term and breach of an essential term entitled Gumland to terminate the lease and obtain an award of loss of bargain damages.

Betfair Pty Limited v Western Australia [2008] HCA 11 (27 March 2008)

Western Australian legislation outlawing the operation of betting exchanges was unconstitutional because it imposed protectionist burdens on interstate trade and therefore contravened section 92 of the Constitution, the High Court of Australia has held.

Since January 2006 Befair has held a licence under Tasmanian law to operate a betting exchange, by which bets may be laid on a horse or a team losing as well as winning. Customers from all over Australia can place bets by telephone or internet. Betfair matches bets from customers with opposing bets from other customers. Between 28 August 2006 and 24 January 2007, Mr Erceg, who lived in WA, used the internet to place bets with Betfair on horse and greyhound races and other sporting events in WA and elsewhere. Provisions of WA’s Betting and Racing Legislation Amendment Act, which came into effect on 29 January 2007, made betting with a betting exchange an offence. In all other States, Betfair was authorised to conduct its operations by its being licensed in one State (Tasmania). Betfair and Mr Erceg, with the support of Tasmania, began proceedings in the High Court to challenge the validity of the WA amendments, which they claimed were contrary to section 92 of the Constitution which provides that trade, commerce and intercourse among the States shall be absolutely free.

In particular, Betfair and Mr Erceg challenged two provisions introduced into the Betting Control Act. Section 24(1aa) stated that a person who bets through a betting exchange commits an offence attracting a penalty of $10,000 or two years’ imprisonment or both. Section 27D(1) provided that publishing or making available a WA race field without approval attracted a fine of $5000. As at 26 October 2007, of the 115 applications to use WA race fields, 110 had been approved, four awaited determination, and only one — Betfair — had been refused.

The Court unanimously upheld the challenge to the validity of the legislation. It held that section 24(1aa) was invalid to the extent that it applied to a person who made or accepted offers to bet through the use of Betfair’s betting exchange by telephone or internet between WA and Betfair’s Hobart premises. Section 27D(1) was invalid to the extent that it would apply to Betfair’s publishing or making available WA race fields by telephone or internet between Tasmania and another State. The Court held that the two sections contravened section 92 of the Constitution as they imposed discriminatory and protectionist burdens on interstate trade and were inconsistent with the absolute freedom of interstate trade and commerce guaranteed by that provision.

MW v Director-General, Department of Community Services [2008] HCA 12 (28 March 2008)

A New Zealand father had not established that he and the mother of his son had been de facto partners at the time of the child’s birth so an order for the boy to be sent back to NZ after the mother had removed him to Australia should be quashed, the High Court of Australia has held today.

MW was born in Poland in 1977 and moved to New Zealand with her parents. In 1996 she gave birth to a son, K. The father, born in 1964, is a New Zealander. MW and the father were not married and at least since shortly after the birth they have not lived together. K spent every second weekend and half the school holidays with his father under an access order made in 2000. Relations between the couple deteriorated. In 2006, without telling the father, MW departed with K for Sydney, where her parents now lived. The Director-General of the NSW Department of Community Services, as the State Central Authority acting on behalf of its NZ counterpart under the Hague Convention on the Civil Aspects of International Child Abduction, successfully applied to the Family Court of Australia for orders for the return of K to NZ. The application stated that the father had custody rights because he had the access order and because, as he was living with K’s mother when the boy was born, he was a joint guardian. Evidence was by way of affidavits from the parents and others which were not the subject of cross-examination. The Full Court of the Family Court, by majority, dismissed an appeal by MW, who then appealed to the High Court.

The Court, by a 3-2 majority, allowed the appeal and dismissed the application to the Family Court. The Authority argued that the appeal should be dismissed on three grounds: that the access order conferred rights upon the father including the right to determine K’s place of residence; that removal breached the rights of custody held by the New Zealand Family Court which had made the access order; and that the father had rights of custody as he was K’s joint guardian. The High Court, by a 4-1 majority, rejected the first two grounds. It held that the father’s access order gave no right of veto over K’s removal from NZ. The Authority failed in its reliance upon the access order as the source of the father’s custodial rights including a right to determine K’s place of residence. As to the second ground, the Court held that Australia’s Family Law (Child Abduction Convention) Regulations did not support a Convention application by a parent asserting breach of the rights of custody vested in a NZ court.

The NZ Care of Children Act provided that a mother was a child’s sole guardian if she were neither married to nor living with the father as a de facto partner when the child was born. However, K’s parents disputed whether or not they were living as de facto partners when K was born. In MW’s first affidavit she said verbal and physical abuse started during her pregnancy and that when K was two months old she moved out and went to live with her parents. In her second affidavit she said she did not live with the father when K was born, but that after about a month and a half she stayed with the father for three nights a week for about six weeks to see if he could be a father to K. She said at no time was she the father’s de facto partner. The High Court, by a 3-2 majority, held that the Full Court of the Family Court erred in concluding that the Authority had discharged its onus of establishing that K’s removal from NZ was wrongful on this third ground. It held that the affidavit material was insufficient to found an inference that the parents had lived together as a couple in the nature of a marriage or civil union. The Authority had failed to establish its case that the father was a guardian who could thus determine K’s place of residence.

Dwyer v Calco Timbers Pty Ltd [2008] HCA 13 (16 April 2008)

The Victorian Court of Appeal failed to exercise its jurisdiction under section 134AD of the Victorian Accident Compensation Act to decide for itself whether an injured worker met the definition of “serious injury”, the High Court of Australia has held.

Mr Dwyer was injured on 27 March 2000 by a crane mounted on the back of a semitrailer with which he delivered timber products. One arm of the crane became disengaged and fell on Mr Dwyer’s right arm. The rights he had against his employer, Calco Timbers, were limited by the Accident Compensation Act which provided that a worker in Mr Dwyer’s position may recover damages for a serious injury. “Serious injury” was defined as including “permanent serious disfigurement” and “permanent serious impairment or loss of body function”. If the degree of impairment was assessed as less than 30 per cent, as was the case with Mr Dwyer, the worker could not bring legal proceedings for damages unless the County Court had given leave under section 134AB(16) of the Act to bring the proceedings. The Court was obliged not to give leave unless satisfied on the balance of probabilities that the injury was a “serious injury”.

In the County Court, Judge Frances Millane held that the impairment and loss of function in Mr Dwyer’s right arm and his disfigurement were not a “serious injury” within the meaning of the Act. Accordingly on 1 December 2005 she refused him leave to bring proceedings to recover damages. Section 134AD of the Act stated that on applications made under section 134AB(16) the Court of Appeal shall decide for itself whether the injury is a serious injury on the evidence before the judge who heard the application and on any other evidence which the Court of Appeal may receive. On 8 September 2006, the Court of Appeal dismissed Mr Dwyer’s appeal. Mr Dwyer appealed to the High Court on the ground that the Court of Appeal had erred in its approach to the nature of the appeal provided under the Act and consequently failed to exercise its jurisdiction.

The High Court unanimously allowed the appeal and held that the Court of Appeal erred in its construction of the provisions providing for the appeal from the County Court. The Court of Appeal’s emphasis on the importance of demonstration by Mr Dwyer of specific error by Judge Millane when deciding whether there was “serious injury” distracted attention from the terms of section 134AD, which required the Court of Appeal to decide for itself whether an injury was a “serious injury”. The High Court ordered that the appeal to the Court of Appeal be reheard.

O\’Donoghue v Ireland; Zentai v Republic of Hungary; Williams v United States of America [2008] HCA 14

Commonwealth laws conferring jurisdiction on State magistrates in relation to extradition applications were valid, the High Court of Australia has held.

Ireland has sought the extradition of Mr O’Donoghue on fraud charges, Hungary has sought the extradition of Mr Zentai in relation to his alleged involvement in the murder of a Jewish teenager in Budapest in 1944, and the United States has sought the extradition of Mr Williams on tax charges. In each case, pursuant to section 19 of the Extradition Act, they were brought before a magistrate to determine their eligibility for surrender in relation to the extradition offences. Section 46 of the Act provides that the Governor-General may arrange with the Governor of a State for the performance by magistrates of functions under the Act.

All three men asserted that section 19 of the Extradition Act was invalid because it involved a constitutionally impermissible attempt by the Commonwealth Parliament to impose a duty upon magistrates as holders of a State statutory office. They argued that Commonwealth Parliament lacked the power, without State legislative approval, to impose upon the holder of a State statutory office an enforceable administrative duty where the functions and incidents of that office were exhaustively defined by State legislation.

They all applied to the Federal Court of Australia to restrain the further pursuit of extradition proceedings by Western Australian magistrates, in the cases of Mr O’Donoghue and Mr Zentai, and by New South Wales magistrates, in the case of Mr Williams. Mr O’Donoghue and Mr Zentai had their applications dismissed and they lost appeals to the Full Court of the Federal Court. They appealed to the High Court. Mr Williams’s application was dismissed by the Full Court of the Federal Court in its original jurisdiction. His application for special leave to appeal to the High Court was heard with the two appeals.

The High Court, by a 6-1 majority, dismissed the appeals. The application for special leave to appeal was granted, and the appeal treated as heard immediately but dismissed. The Court held that section 19 of the Extradition Act was valid. Section 19 did not impose a duty on State magistrates. It conferred a power which, under the Crimes Act, the State magistrates were not obliged to accept.

Adams v The Queen [2008] HCA 15 (23 April 2008)

There was no legal or factual basis for a shorter sentence for a person convicted of possessing a commercial quantity of ecstasy on the ground that ecstasy was less harmful than heroin, the High Court of Australia has held.

Mr Adams, an American citizen, was convicted in the Victorian County Court in 2004 of possessing prohibited imports, which were almost 20kg of a mixture containing almost 9kg of MDMA, or ecstasy. He was charged under the Customs Act following the interception of containers shipped from overseas. The trafficable quantity of MDMA was 0.5 grams; that of heroin or cocaine was two grams. The commercial quantity of MDMA was 0.5kg; that of heroin was 1.5kg; that of cocaine 2kg. Offences involving a trafficable quantity of any form of narcotic carry a penalty of up to 25 years’ jail and/or a fine of $500,000. Offences involving commercial quantities carry a maximum penalty of life imprisonment and/or a fine of $750,000. Mr Adams was sentenced to nine years’ jail, on top of 260 days already in custody, with a non-parole period of seven years.

In sentencing Mr Adams, Judge Anthony Duckett said that the courts treat ecstasy, for sentencing purposes, as being similar to heroin. Mr Adams argued that this was an error and that he should have been sentenced on the basis that MDMA was less harmful than heroin. He appealed unsuccessfully to the Victorian Court of Appeal. He then appealed to the High Court.

Four Justices of the Court dismissed his appeal and the fifth Justice would have revoked special leave to appeal. The Court held that generalisations seeking to differentiate between the evils of the illegal trade in heroin and MDMA could not be sustained by evidence. Furthermore, the Customs Act fixed the penalties for drug importation offences and the courts could not apply a harm-based gradation of penalties that cut across the legislative scheme. There was nothing in the Act, or the evidence, or the available knowledge or opinion which required or permitted a court to sentence on the basis that possessing a commercial quantity of MDMA was in some way less anti-social than possessing a commercial quantity of heroin. The Court held that Mr Adams had failed to demonstrate either a legal or a factual foundation for the contention that he should have been sentenced on the basis that MDMA was less harmful than heroin.

HML v The Queen; SB v The Queen; OAE v The Queen [2008] HCA 16 (24 April 2008) 

Evidence of sexual misconduct against a complainant, other than the subject of the charges brought against the alleged offender, may be given in sexual assault trials for limited purposes and with appropriate directions from trial judges, the High Court of Australia has held.

Such evidence was subject to a requirement to exclude it if necessary standards concerning probative value and prejudicial effect were not met.

HML was convicted in 2006 of two counts of unlawful sexual intercourse by fellatio and sodomy with his nine-year-old daughter. He and his wife separated when the girl was a baby and he did not see her for several years. The daughter, who lived in South Australia, began access visits to her father, who lived a short distance away in Victoria. The offences allegedly occurred in 1999 when she accompanied HML to Adelaide for eye surgery. HML allegedly said after the anal penetration: “Why isn’t it working? It’s worked before.” When the allegations came to police attention in 2003, HML was questioned by a Victorian detective in Mount Gambier about incidents in Victoria. He has not been charged in Victoria but some of these “uncharged acts” (which were not necessarily criminal) were adduced at his trial in SA.

SB was convicted in 2006 of three counts of indecent assault and two counts of incest involving his daughter in 1983 when she was 13 or 14 and in 1986 when she was 17 and visiting. Evidence of other “uncharged acts” was received.

OAE was charged with indecently assaulting his sister’s foster daughter in mid-1999 when she was 12 and of digitally penetrating her in 2003. He was convicted of the latter offence only. OAE owned a horse stud and his sister lived on the adjoining property. The foster daughter often helped OAE with his horses. Evidence of “uncharged acts” was allowed at trial.

HML and SB appealed to the High Court. OAE’s application for special leave to appeal was heard with the two appeals and was argued as on appeal. The Court unanimously dismissed the appeals by HML and SB. OAE’s application for special leave to appeal was granted unanimously, but the appeal was dismissed by a 4-3 majority. The Court in HML and SB and the majority in OAE held that the “uncharged acts” evidence in each case was admissible and that the judges’ directions to the juries, including warnings against the use of propensity reasoning, were sufficient.

Alinta LGA Limited (Formerly The Australian Gas Light Company) v Mine Subsidence Board [2008] HCA 17 (24 April 2008)

Alinta had no right of appeal to the Land and Environment Court (LEC) against the refusal of the NSW Mine Subsidence Board to entertain its claim to compensation for mine subsidence, the High Court of Australia has held.

Alinta owns the natural gas pipeline running from Wilton, south of Sydney, to Horsley Park, in Sydney’s west. The pipeline passes through the Appin Mine Subsidence District, south of Sydney. Alinta alleged that coal mining between May 1998 and July 2003 caused subsidence that required works costing almost $2.4 million to prevent damage to the pipeline. The Mine Subsidence Compensation Act established a scheme whereby claims could be made to the Board for payment of compensation from a statutory fund for damage caused by subsidence or the expense of preventing or mitigating such damage. Alinta made a claim to the Board in September 2004 for costs incurred to protect the pipeline. The Board rejected the claim in 2005.

Under the Act, erecting any “improvement” (including a pipeline) in a subsidence district without Board approval was an offence. In the event of a contravention, the Act provided that the Board could not entertain a compensation claim unless a certificate was issued under section 15B(3A). Certificates could be granted if the Board was satisfied that an improvement would have complied with the Act had approval been obtained earlier, and that it was appropriate to issue the certificate. Alinta applied for a certificate under section 15B(3A) in April 2003. In July 2005, the Board advised Alinta that the certificate was refused because of Alinta’s failure to obtain approval for the pipeline at the time of construction (around 1975), delay in applying for certification, and the Board’s belief that issue of a certificate would allow a compensation claim to be entertained. In October 2005, the Board advised Alinta that, without a certificate, Alinta’s claim to compensation could not be entertained.

Alinta sought to appeal to the LEC under section 12B of the Act. This provided a right of appeal to the LEC on a compensation claim under sections 12 or 12A against the Board’s decision as to whether damage had arisen from subsidence or could reasonably have been anticipated or as to the amount of payment from the fund. The Board argued that the LEC lacked jurisdiction to hear the appeal as the Board’s decision to refuse to entertain the claim was not a decision under sections 12 or 12A nor a decision as to the matters in section 12B. Justice Peter Biscoe held that the LEC did have jurisdiction. On appeal by the Board, the Court of Appeal, by majority, held that it did not. Alinta appealed to the High Court. This appeal did not concern the merits of Alinta’s compensation claim or the correctness of the Board’s decision. Alinta has never conceded that its pipeline was constructed without the Board’s approval. However, the sole question for the High Court was whether the LEC had jurisdiction to hear Alinta’s appeal under section 12B.

The High Court unanimously dismissed the appeal. It held that the right of appeal to the LEC was restricted to appeals against decisions of the Board as to the subject matter in section 12B. The Court rejected Alinta’s submission that the Board had made an appealable decision under section 12B as to the amount of payment from the fund. No such decision had been made. Rather, the Board had found the pipeline to be erected without its approval and applied the statutory requirement that no claim be entertained in the absence of a certificate. It followed that Alinta had no right of appeal against the Board’s decision to the LEC.