High Court of Australia Judgment Summary Notes

Western Australia v Brown [2014] HCA 8

Today the High Court unanimously held that certain native title rights and interests held by the Ngarla People in respect of land in the Pilbara region of Western Australia were not extinguished by the grant of two mineral leases to some joint venturers for the mining of iron ore at Mount Goldsworthy. The Court held that the mineral leases did not grant the joint venturers a right to exclude any and everyone from access to the land the subject of the mineral leases.

In 1964, the State of Western Australia made an agreement with some joint venturers about the development and exploitation of iron ore deposits at Mount Goldsworthy. Pursuant to the agreement, the State granted mineral leases for iron ore to the joint venturers. The agreement required the joint venturers to allow the State and third parties access over the land the subject of the mineral leases provided that such access did not unduly prejudice or interfere with the joint venturers’ operations. In accordance with the agreement, the joint venturers developed the Mount Goldsworthy iron ore project. A mine, a town and associated works were constructed. The mine subsequently closed in 1982 and the town closed in 1992.

Alexander Brown and others (on behalf of the Ngarla People) applied to the Federal Court of Australia for native title determinations in respect of land and waters in the Pilbara region of Western Australia. The claimed areas included the areas the subject of the mineral leases. The native title rights and interests claimed were the non exclusive rights to access and camp on the land, to take certain traditional resources (excluding minerals) from the land, to engage in ritual and ceremony on the land, and to care for, maintain and protect from physical harm particular sites and areas of significance. It was agreed that, subject to the question of whether they had been extinguished, the claimed native title rights and interests existed in the land the subject of the mineral leases.

The Federal Court concluded that the claimed native title rights and interests had been extinguished in the area where the mine, the town and the associated works had been constructed. On appeal, the Full Court of the Federal Court of Australia concluded that the native title rights and interests had not been extinguished on the land the subject of the mineral leases but that those rights and interests could not be exercised for so long as the joint venturers continued to hold rights under the mineral leases. By special leave, the State appealed to the High Court.

The High Court held that the grant of the mineral leases did not extinguish the claimed native title rights and interests. Although the joint venturers could prevent others from using the land for mining purposes and could use any part of the land for the extraction of iron ore, the joint venturers did not have an unqualified right to exclude any and everyone from access to the land. The Court held that the joint venturers’ rights under the mineral leases were not inconsistent with the claimed native title rights and interests over the land.

Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7

Today the High Court, by majority, held that Woodside Energy Ltd and other gas suppliers in Western Australia (“the Sellers”) did not breach their obligation to use “reasonable endeavours” to make a certain quantity of gas available to Electricity Generation Corporation t/as Verve Energy (“Verve”) under a long term gas supply agreement. The High Court dismissed Verve’s appeal against a decision of the Court of Appeal of the Supreme Court of Western Australia and allowed an appeal from that decision brought by the Sellers.

Verve, a statutory corporation, is the major generator and supplier of electricity to a large area in the southwest of Western Australia, including Perth. Verve purchased natural gas from the Sellers for use in its power stations. Under cl 3.3(a) of the agreement, the Sellers were obliged to use “reasonable endeavours” to make available to Verve a supplemental maximum daily quantity of gas (“SMDQ”), in addition to the gas they were ordinarily required to supply to Verve each day. In determining whether they were able to supply SMDQ, cl 3.3(b) provided that the Sellers could take into account “all relevant commercial, economic and operational matters”.

On 3 June 2008, an explosion occurred at a gas plant on Varanus Island in Western Australia. That explosion caused the cessation of gas production at the plant and effected a temporary reduction in the supply of natural gas to the Western Australian market, which led to demand exceeding supply. After the explosion, the Sellers informed Verve that they would not supply SMDQ to Verve under the agreement between June and September 2008. However, the Sellers offered to supply Verve with an equivalent quantity of gas for the period at a price higher than that applicable to SMDQ, which they were offering to other customers in the Western Australian market. Under protest, Verve agreed to purchase gas from the Sellers at the higher price, which was the prevailing market price. Verve commenced proceedings against the Sellers in the Supreme Court of Western Australia, arguing that the Sellers had breached their obligation to use “reasonable endeavours” to supply SMDQ to Verve.

The primary judge found that the Sellers had not breached their obligation to use “reasonable endeavours” to supply SMDQ to Verve between June and September 2008. His Honour found that cl 3.3(b) of the agreement allowed the Sellers to take into account commercial matters, including the sale of gas to other customers and the profitability of such sales, in determining whether they were able to supply SMDQ to Verve. Verve successfully appealed to the Court of Appeal, which held, amongst other things, that the Sellers had breached their obligation under cl 3.3. By special leave, both Verve and the Sellers appealed to the High Court.

The High Court, by majority, held that contractual obligations to use “reasonable endeavours” are not absolute, but are conditioned by what is reasonable in the circumstances. What was a “reasonable” standard of endeavours obliged by cl 3.3(a) of the agreement was conditioned by the Sellers’ responsibilities to Verve in respect of SMDQ, as well as their express entitlement to take into account “relevant commercial, economic and operational matters”. The Court held that the Sellers were not obliged to forego or sacrifice their business interests when using reasonable endeavours to make SMDQ available for delivery to Verve. Accordingly, cl 3.3 did not oblige the Sellers to supply SMDQ to Verve when the explosion at Varanus Island occasioned business conditions which led to a conflict between the Sellers’ business interests and Verve’s interest in obtaining SMDQ at the price stipulated in the agreement. As the Sellers’ construction of the agreement was accepted by the Court, it was unnecessary to consider other issues raised by the appeals.

James v The Queen [2014] HCA 6

Today the High Court, by majority, dismissed an appeal from a decision of the Court of Appeal of the Supreme Court of Victoria upholding the conviction of Samuel James. Mr James was convicted following trial in the Supreme Court of Victoria of intentionally causing serious injury to Khadr Sleiman. Mr Sleiman suffered multiple injuries as the result of being struck by a vehicle driven by Mr James.

The prosecution’s case at trial was that Mr James deliberately struck Mr Sleiman intending to cause him serious injury. In the alternative, the prosecution charged that Mr James recklessly caused serious injury to Mr Sleiman. The defence case was that Mr Sleiman was struck accidently as Mr James manoeuvred his vehicle in reverse.

While the jury was deliberating the prosecutor raised, for the first time, the question of whether the jury should be instructed of the availability of a further alternative verdict that Mr James intentionally caused injury, as opposed to serious injury, to Mr Sleiman. The trial judge declined to do so because the prosecution had not run its case on that basis and because the introduction of an alternative verdict might have deprived Mr James of the possibility of acquittal. Mr James’ counsel at trial made no submission on that issue and for this reason was taken to have agreed with the trial judge.

Mr James appealed against his conviction to the Court of Appeal contending that the trial judge’s failure to instruct the jury of the availability of alternative verdicts had occasioned a substantial miscarriage of justice. The Court of Appeal dismissed Mr James’ appeal.

Mr James was granted special leave to appeal to the High Court. By majority, the High Court held that the trial judge’s duty with respect to leaving to the jury alternative verdicts is to be understood as part of the duty to secure a fair trial to the accused. The question of whether the failure to leave an alternative verdict had occasioned a miscarriage of justice is answered by consideration of what justice to the accused required in the circumstances of the particular case. This consideration takes into account the real issues at the trial and the forensic choices made by trial counsel.

The High Court held that the central issue at the trial was whether the prosecution had excluded the reasonable possibility that Mr James had struck Mr Sleiman inadvertently. To have instructed the jury about lesser alternative offences which had not been relied upon by the prosecution or the defence might have blurred that central issue and jeopardised Mr James’ chances of acquittal. The Court held that fairness to Mr James did not require that the trial judge direct the jury on the uncharged alternative verdicts.