High Court of Australia Judgment Summary Notes

The Commonwealth v Australian Capital Territory [2013] HCA 55

Today the High Court decided unanimously that the Marriage Equality (Same Sex) Act 2013, enacted by the Legislative Assembly for the Australian Capital Territory, cannot operate concurrently with the federal Marriage Act 1961.  The Court held that the federal Parliament has power under the Australian Constitution to legislate with respect to same sex marriage, and that under the Constitution and federal law as it now stands, whether same sex marriage should be provided for by law is a matter for the federal Parliament.

The Court held that “marriage” in s 51(xxi) of the Constitution refers to a consensual union formed between natural persons in accordance with legally prescribed requirements which is not only a union the law recognises as intended to endure and be terminable only in accordance with law but also a union to which the law accords a status affecting and defining mutual rights and obligations.  “Marriage” in s 51(xxi) includes a marriage between persons of the same sex.

The Marriage Act does not now provide for the formation or recognition of marriage between same sex couples.  The Marriage Act provides that a marriage can be solemnised in Australia only between a man and a woman and that a union solemnised in a foreign country between a same sex couple must not be recognised as a marriage in Australia.  That Act is a comprehensive and exhaustive statement of the law of marriage. 

The Court held that the object of the ACT Act is to provide for marriage equality for same sex couples and not for some form of legally recognised relationship which is relevantly different from the relationship of marriage which federal law provides for and recognises.  Accordingly, the ACT Act cannot operate concurrently with the federal Act.

Because the ACT Act does not validly provide for the formation of same sex marriages, its provisions about the rights of parties to such marriages and the dissolution of such marriages cannot have separate operation and are also of no effect.

The Court held that the whole of the ACT Act is of no effect.

Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2013] HCA 54

Today a majority of the High Court allowed an appeal from a decision of the Full Court of the Federal Court of Australia, holding that TPG Internet Pty Ltd (“TPG”) engaged in misleading and deceptive conduct under the Trade Practices Act 1974 (Cth) (“the TPA”) and the Australian Consumer Law in Schedule 2 of the Competition and Consumer Act 2010 (Cth) (“the ACL”). 

Between 2010 and 2011, TPG deployed a multi media advertising campaign.  The advertisements displayed a prominent offer of unlimited ADSL2+ service for $29.99 per month.  Much less prominently, the advertisements displayed the requirement that consumers bundle that service with a home telephone service provided by TPG for an additional $30 per month for a minimum of six months.  Further, a setup fee of $129.95 and a $20 deposit for telephone charges also applied. 

The Australian Competition and Consumer Commission (“the ACCC”) claimed that the advertisements were misleading and deceptive contrary to s 52 of the TPA and s 18 of the ACL by reason of the disparity between the prominent headline offer and the less prominent terms qualifying that offer.  The ACCC also claimed that some of the advertisements contravened s 53C(1)(c) of the TPA by failing to specify, in a prominent way and as a single figure, the single price for the package of services offered.  The primary judge upheld the ACCC’s claims and imposed a pecuniary penalty of $2 million. 

TPG appealed to the Full Court which set aside all but three of the primary judge’s findings.  The pecuniary penalty was reduced to a total of $50,000. 

In the High Court, the ACCC argued that it was not open to the Full Court, in the proper exercise of its appellate function, to hold that the advertisements were not misleading.  Further, the ACCC contended that the penalty imposed by the primary judge should be restored, given the circumstances of TPG’s offending and the need for the penalty to reflect the important considerations of general and specific deterrence.  A majority of the High Court held that the Full Court erred, first, in holding that the primary judge was wrong to regard the “dominant message” of the advertisements as critically important; and secondly, in failing to appreciate that the tendency of TPG’s advertisements to mislead was not neutralised by the Full Court’s attribution to members of the target audience of knowledge that ADSL2+ services may be offered as a “bundle”.  A majority held that these errors, reflecting differences in point of principle with the approach taken by the primary judge, led the Full Court into error in the performance of its appellate function.  The pecuniary penalty of $2 million imposed by the primary judge was reinstated.

Plaintiff M76-2013 v Minister for Immigration, Multicultural Affairs and Citizenship [2013] HCA 53

Today the High Court unanimously declared that an error of law affected the exercise of power by the Minister for Immigration, Multicultural Affairs and Citizenship to determine whether to permit the plaintiff to make a valid application for a visa.  The error of law was that an officer of the Commonwealth, in deciding not to refer the plaintiff’s case to the Minister, acted upon an incorrect view of the law by considering an invalid regulation to be relevant to the decision.

 The plaintiff arrived in Australia at Christmas Island by boat in 2010 without a visa.  She is a Sri Lankan national of Tamil ethnic origin and had been a member of the Liberation Tigers of Tamil Eelam.  Because the plaintiff arrived at Christmas Island without a visa, the Migration Act 1958 (Cth) prevented her from making a valid application for a visa unless the Minister exercised his power under the Act to permit her to do so.  In order to consider whether to exercise that power, the Minister had in place processes by which his department assessed whether the plaintiff was a person in respect of whom Australia owed protection obligations under the Refugees Convention.  The plaintiff was assessed to be such a person.

The plaintiff was also the subject of an adverse security assessment made by the Australian Security Intelligence Organisation.  The Minister’s department took that adverse security assessment to mean that the plaintiff could not satisfy a criterion for the grant of a visa (public interest criterion 4002).  On that basis, it did not refer the plaintiff’s case to the Minister for his consideration.  Subsequently, in Plaintiff M47/2012 v Director-General of Security (2012) 86 ALJR 1372; 292 ALR 243; [2012] HCA 46, the High Court held that public interest criterion 4002 was invalid.

 The plaintiff is currently in immigration detention.  Due to her refugee status, she cannot be returned to Sri Lanka.  Approaches to third countries for her resettlement have been unsuccessful.

 In the original jurisdiction of the High Court, the plaintiff sought habeas corpus and declaratory relief, claiming on both statutory and constitutional grounds that her detention is unauthorised.  She invited the High Court to re-open and overrule its decision in Al-Kateb v Godwin (2004) 219 CLR 562; [2004] HCA 37.  A special case stated questions of law for the determination of the Court.

 The High Court unanimously held that the exercise of the Minister’s power was affected by an error of law, in that the Minister’s department acted upon an invalid regulation in deciding not to refer the plaintiff’s case to the Minister.  The Court held that, because the Minister, as a result of the error of law, has yet to complete his consideration of whether to permit the plaintiff to make a valid application for a visa, the plaintiff’s present detention, being for the purpose of allowing that consideration to be completed according to law, is authorised by the Act.  A majority of the Court found that it was therefore unnecessary to decide the plaintiff’s constitutional claim or whether Al-Kateb v Godwin should be re-opened.

Kline v Official Secretary to the Governor General [2013] HCA 52

Today the High Court unanimously dismissed an appeal from a decision of the Full Court of the Federal Court of Australia, which held that documents relating to nominations of a person to the Order of Australia were not subject to disclosure under s 6A(1) of the Freedom of Information Act 1982 (Cth) (“the Act”). 

The appellant made a request under the Act for access to certain categories of documents held by the first respondent, the Official Secretary to the Governor-General of the Commonwealth of Australia (“the Official Secretary”).  The categories of documents requested related to two nominations of a person to the Order of Australia, submitted by the appellant.  Section 6A(1) of the Act provides that the Act does not apply to any request for access to a document of the Official Secretary, unless the document “relates to matters of an administrative nature”.  By letter, the Official Secretary refused the appellant’s request, informing her that no documents relating to matters of an administrative nature had been identified, although she could be provided with copies of her two nomination forms.

The appellant applied for review of the Official Secretary’s decision by the Australian Information Commissioner, who affirmed the decision to refuse the appellant access to the balance of documents requested.  The appellant appealed to the second respondent, the Administrative Appeals Tribunal (“the Tribunal”), which affirmed the decision of the Official Secretary.  On appeal, the Full Court of the Federal Court upheld the Tribunal’s decision.

By special leave, the appellant appealed to the High Court.  The High Court held that documents relating to the Governor-General’s substantive powers and functions were excluded from disclosure by operation of s 6A(1) of the Act.  The exception of a class of documents which related to “matters of an administrative nature” referred to documents concerning the management and administration of the office resources of the Official Secretary, or the provision of logistical support, which the Official Secretary was required to disclose.

The High Court held that the documents sought by the appellant were excluded from disclosure by s 6A(1) of the Act. Relevant criteria for the making of awards in the Order were already available to the public.  Further, the Official Secretary accepted that any documents relating to review processes, if such documents existed, would be publicly available without recourse to the Act.

 Willmott Growers Group Inc v Willmott Forests Limited (Receivers and Managers Appointed) (In Liquidation) [2013] HCA 51

Today the High Court, by majority, held that the liquidators of a company had power under Div 7A of Pt 5.6 of the Corporations Act 2001 (Cth) to disclaim leases granted by the company to investors.  It also held that disclaimer terminated the landlord’s obligations and the tenants’ correlative rights arising under the leases.  The Court dismissed the appeal from the Court of Appeal of the Supreme Court of Victoria.

Willmott Forests Limited (the first respondent) was the manager of forestry investment schemes associated with a group of companies known as the Willmott group.   Willmott Forests (or its predecessor) leased to participants in those schemes portions of land which Willmott Forests owned or leased. 

In September 2010, Willmott Forests (and other companies in the Willmott group) went into voluntary administration.  Receivers and managers were also appointed to property which companies in the group had charged.  In March 2011, the creditors of Willmott Forests resolved that the company should be wound up.  They appointed the second and third respondents as liquidators of the company.  The liquidators concluded that the schemes could not continue to operate and, in conjunction with the receivers and managers, sought to sell the assets of Willmott Forests.  No one expressed interest in purchasing any of the assets encumbered by the schemes or in becoming the responsible entity or manager of any of the schemes.  When sale contracts were concluded, each contract provided that title to the assets the subject of the contract was to pass to the purchaser free from the encumbrances arising out of the schemes. 

The liquidators applied to the Supreme Court of Victoria for directions and orders about the sales that had been negotiated.  Willmott Growers Group Inc (the appellant) acted as a contradictor of the arguments advanced by the liquidators.  Relevantly, s 568(1) of the Corporations Act gave the liquidator of a company power to disclaim certain property of the company, including property consisting of a contract.  Section 568D(1) provided that a disclaimer was taken to terminate, from the effective date of the disclaimer, the company’s rights, interests, liabilities and property in or in respect of the disclaimer property.  The Supreme Court held that those provisions did not empower the liquidators to disclaim the leases with the effect of extinguishing the tenants’ estates or interests in the land.  The Court of Appeal reversed this decision, finding that it was necessary to extinguish the tenants’ rights under the leases in order to release Willmott Forests from liability.

By special leave, Willmott Growers Group appealed to the High Court.  A majority of the Court held that s 568(1) of the Corporations Act gave the liquidator of a company power to disclaim a lease granted by the company to a tenant.  A lease granted by the company to a tenant was “a contract” within the meaning of that provision.  The effect of s 568D(1) was that, from the effective date of the disclaimer, the tenant’s rights arising under the lease were terminated and the tenant’s estate or interest in the land was brought to an end.  As such, the liquidators had the power to disclaim the leases to investors with the effect of terminating the tenants’ estates or interests in the land.

Apotex Pty Ltd v Sanofi-Aventis Australia Pty Ltd [2013] HCA 50

Today the High Court, by majority, held that methods of medical treatment of the human body are patentable inventions within the meaning of s 18(1) of the Patents Act 1990 (Cth). 

Sanofi-Aventis Deutschland GmbH, the second respondent, was the registered owner of a patent which claimed a method of preventing or treating psoriasis by the administration of the compound leflunomide.  Apotex Pty Ltd, the appellant, intended to supply leflunomide in Australia, under the trade name “Apo-Leflunomide”, for the treatment of rheumatoid arthritis and psoriatic arthritis.  Almost every person with psoriatic arthritis has or will develop psoriasis.

The respondents commenced proceedings in the Federal Court of Australia claiming, among other things, that the appellant would infringe the patent by supplying Apo-Leflunomide to treat psoriatic arthritis.  By cross-claim, the appellant sought to have the patent revoked as it did not claim a patentable invention under s 18(1) of the Patents Act.  The primary judge found that the patent was valid.  The Full Court of the Federal Court dismissed the appellant’s appeal concerning the validity of the patent.

By special leave, the appellant appealed to the High Court.  The High Court, by majority, held that the patent claimed a “manner of manufacture” within the meaning of s 18(1) of the Patents Act and thus a patentable invention.