High Court of Australia Judgment Summary Notes

SZOQQ v Minister for Immigration and Citizenship [2013] HCA 12

Today the High Court unanimously allowed an appeal from a decision of the Full Court of the Federal Court of Australia, which held that the appellant was not a person to whom Australia owed “protection obligations” for the purposes of the Migration Act 1958 (Cth) (“the Migration Act”).

The appellant is an Indonesian national from Irian Jaya who was active in the Free Papua Movement.  In 1973 he was detained and tortured by Indonesian officials and, in 1975, he was seriously injured after being shot by Indonesian soldiers.  The appellant was granted temporary entry into Australia in June 1985 and was granted a protection visa in January 1996.  While travelling to Indonesia to visit his father in September 1996, the appellant was detained and assaulted by members of the Indonesian military.  The appellant escaped and returned to Australia.

Back in Australia, the appellant pleaded guilty to a charge of manslaughter for which he was sentenced in September 2001 to seven years’ imprisonment with a non-parole period of two years and six months.  The Minister cancelled the appellant’s protection visa in March 2003, in accordance with the “character test” provisions of the Migration Act.  In December 2008, the Minister determined that it was in the public interest to allow the appellant to make a further application for a protection visa.

A delegate of the Minister considered the application and determined that, although the appellant had a well-founded fear of political persecution should he be returned to Indonesia, Australia owed him no “protection obligations” under the Migration Act because he constituted a danger to the community, having been convicted of a “particularly serious crime”.  The delegate’s determination was affirmed by the Administrative Appeals Tribunal (“AAT”), the Federal Court and the Full Court of the Federal Court.

The determination made by the Minister’s delegate and the decisions of the AAT and the courts below proceeded on the footing that because the appellant had been convicted of a “particularly serious crime”, Australia owed him no “protection obligations” for the purposes of s 36 of the Migration Act.  That was contrary to the 2005 decision of the High Court in NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 222 CLR 161; [2005] HCA 6.  The Court unanimously held that the proceedings in the courts below miscarried. It ordered the AAT to review, according to law, the original decision of the Minister’s delegate to refuse the appellant a protection visa.

Castle Constructions Pty Limited v Sahab Holdings Pty Ltd [2013] HCA 11  

Today the High Court unanimously allowed an appeal from a decision of the Court of Appeal of the Supreme Court of New South Wales requiring the Registrar-General to restore to the Register an easement which the Registrar-General had deliberately removed.  A majority of the Court held that the deliberate removal of an easement from the Register by the Registrar-General was not an “omission” of an easement within the meaning of s 42(1)(a1) of the Real Property Act 1900 (NSW) (“the Act”).  That provision provides that, subject to some exceptions, a registered proprietor of land holds title free from all other estates and interests.  One exception is in the case of the “omission” of an easement.

In 1921, a parcel of land was subdivided and sold.  As part of the transaction, an easement of way was created.  The easement was in favour of what was to become known as the “Strathallen land”, and burdened land that became known as the “Sailors Bay land”.  In 2001, the appellant, Castle Constructions, became the registered proprietor of the Sailors Bay land and requested that the Registrar-General remove the easement over its land from the Register.  The Registrar-General notified the then registered proprietors of the Strathallen land that he intended to remove the easement from the Register.  The registered proprietors did not object and, in November 2001, the Registrar-General removed the easement from the Register. 

In April 2007, the first respondent, Sahab, became the registered proprietor of the Strathallen land and in September 2008, it asked the Registrar-General to restore the easement to the Register.  When the Registrar-General refused to do so, Sahab brought proceedings against the Registrar General in the Supreme Court of New South Wales, seeking to have the easement restored.

At first instance, the Supreme Court refused to compel the Registrar-General to restore the easement to the Register.  Sahab appealed to the Court of Appeal, which allowed the appeal.  The Court of Appeal held that the easement had been omitted from the Register within the meaning of s 42(1)(a1) of the Act because “omission” in that section meant simply that the easement was “not there”.  The Court of Appeal made orders requiring the Registrar-General to restore the easement to the Register.  By special leave, Castle Constructions appealed to the High Court.

The High Court allowed the appeal.  A majority of the Court held that the easement had not been omitted from the Register because it had been deliberately removed by the Registrar-General.  Because this was not a case of the omission of an easement within the meaning of the exception to indefeasibility in s 42(1)(a1) of the Act, Castle Constructions’ title to the Sailors Bay land was not subject to the easement.

Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd [2013] HCA 10

Today a majority of the High Court allowed an appeal from a decision of the Court of Appeal of the Supreme Court of New South Wales, which held that the loss caused to the first and second respondents (together “Mitchell Morgan”) by the negligent drafting of a mortgage by the appellant (“Hunt & Hunt”) was distinct from the loss caused by two fraudsters who induced Mitchell Morgan to advance money on the security of the mortgage.

On the basis of a fraudulently obtained certificate of title and forged documentation presented by the fraudsters, Mitchell Morgan advanced a sum of money to a bank account. The money was advanced on the security of a mortgage over a property. One of the fraudsters withdrew the money using forged cheques and then closed the account. Hunt & Hunt, a firm of lawyers, acted for Mitchell Morgan on the transaction and drafted the mortgage.

Mitchell Morgan sought compensation from Hunt & Hunt. In the Supreme Court of New South Wales, Hunt & Hunt was held to have drafted the mortgage negligently, causing the loss claimed by Mitchell Morgan. However, the primary judge held that the conduct of each of the fraudsters was also a cause of that loss. Hunt & Hunt, together with each of the fraudsters, was therefore a concurrent wrongdoer and, under s 35(1) of the Civil Liability Act 2002 (NSW), the loss was apportioned between them according to what the primary judge considered was just.

The Court of Appeal allowed Mitchell Morgan’s appeal from that decision and held that Hunt & Hunt was wholly responsible for Mitchell Morgan’s loss. The Court held that the loss suffered by Mitchell Morgan due to Hunt & Hunt’s negligence was different from the loss suffered due to the fraudsters’ conduct. Therefore, the fraudsters did not cause the loss claimed by Mitchell Morgan against Hunt & Hunt and they were not liable as concurrent wrongdoers in respect of it. By special leave, Hunt & Hunt appealed to the High Court.

A majority of the High Court held that the loss suffered by Mitchell Morgan was its inability to recover the money advanced. While Hunt & Hunt’s negligent drafting of the mortgage was a cause of that loss, Mitchell Morgan would never have needed to take a mortgage had it not been induced by the fraudsters to enter into the transaction. The fraudsters’ conduct was a material cause of the loss Mitchell Morgan suffered. The majority reinstated the primary judge’s conclusion on apportioning loss between the concurrent wrongdoers.