High Court of Australia Judgment Summary Notes

Taylor v The Owners – Strata Plan No 11564 [2014] HCA 9

Today the High Court, by majority, allowed an appeal brought by Susan Joy Taylor from a decision of the Court of Appeal of the Supreme Court of New South Wales.  The Court of Appeal had found, by majority, that section 12(2) of the Civil Liability Act 2002 (NSW) (“the CLA”) applied to and limited awards of damages under sections 3 and 4 of the Compensation to Relatives Act 1897 (NSW) (“the CRA”).

Mrs Taylor is the widow of the late Mr Taylor.  Mr Taylor died when an awning outside a shop collapsed on him in 2007.  Mrs Taylor commenced proceedings in the Supreme Court of New South Wales claiming damages pursuant to sections 3 and 4 of the CRA against some of the respondents.  The proceedings were brought for the benefit of Mrs Taylor and children of the late Mr Taylor.  A preliminary question arose before the primary judge for separate determination as to whether any award of damages claimed by the plaintiffs pursuant to sections 3 and 4 of the CRA would be limited by the operation of section 12(2) of the CLA.   Section 12(2) of the CLA directs a court when awarding damages to disregard the amount (if any) by which a claimant’s gross weekly earnings would, but for the injury or death, have exceeded three times the average weekly earnings at the date of the award.  The limitation invoked by section 12(2) applies to specified heads of damages, including, relevantly, for the loss of expectation of financial support. 

The primary judge held that insofar as the damages claimed included damages for the loss of expectation of financial support, the court is to disregard the amount (if any) by which the deceased’s gross weekly earnings would (but for his death) have exceeded three times the average weekly earnings at the date of the award.  An appeal to the Court of Appeal of the Supreme Court of New South Wales was dismissed by majority. 

By special leave, Mrs Taylor appealed to the High Court.  The issue on appeal was whether in the case of an award of damages for the loss of expectation of financial support, the limitation in section 12(2) ought to be construed as applying to the deceased’s gross weekly earnings.  The High Court, allowing Mrs Taylor’s appeal by majority, held that on no view could the word “claimant” as it is used in section 12(2) of the CLA be read as referring to the gross weekly earnings of the deceased.  That construction, which was adopted by the primary judge and the majority of the Court of Appeal, could not be reconciled with the language of the statute as enacted by Parliament.  The High Court held that the court is not required to disregard the amount by which the gross weekly earnings of Mr Taylor, but for his death, would have exceeded three times the average weekly earnings.

Achurch v The Queen [2014] HCA 10

Today the High Court unanimously dismissed an appeal from a decision of the Court of Criminal Appeal of the Supreme Court of New South Wales, which had dismissed Brian William Achurch’s application under s 43 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Sentencing Act”) to re-open proceedings in that Court in which he had been re-sentenced after a successful Crown appeal.

Mr Achurch was convicted after a trial by jury in the District Court of New South Wales of three counts of supplying prohibited drugs contrary to s 25 of the Drug Misuse and Trafficking Act 1985 (NSW).  He was sentenced on each of the counts to a term of imprisonment.  A Crown appeal to the Court of Criminal Appeal against the inadequacy of the sentences, individually and collectively, was allowed.  The Court re-sentenced the appellant.  It was not in dispute that in re-sentencing Mr Achurch and fixing non-parole periods, the Court applied an approach which was subsequently held by the High Court in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 to have been incorrect.

Mr Achurch applied to the Court of Criminal Appeal to re-open the proceedings on the Crown appeal.  He invoked ss 43(1)(a) and 43(2)(a) of the Sentencing Act, which authorise a court to re-open criminal proceedings, including proceedings on appeal, in which the court has “imposed a penalty that is contrary to law”, and “impose a penalty that is in accordance with the law”.

The Court of Criminal Appeal, sitting a bench of five, dismissed the application.  By special leave, Mr Achurch appealed to the High Court.  The question in this appeal was whether s 43 of the Sentencing Act authorised the re-opening of proceedings in which a sentence open at law was reached by a process of reasoning involving an error of law.

Dismissing the appeal, the High Court held that a penalty is not “contrary to law” for the purposes of s 43 of the Sentencing Act only because it is reached by a process of erroneous reasoning or factual error.  Correction of errors of that type is principally available by way of appeal.  The sentences imposed on Mr Achurch were open at law and, therefore, were not “contrary to law” for the purposes of s 43.  

NSW Registrar of Births, Deaths and Marriages v Norrie [2014] HCA 11

Today the High Court unanimously held that the Births, Deaths and Marriages Registration Act 1995 (NSW) permits the Registrar to register that a person’s sex is “non specific”.

Norrie, who had undergone a “sex affirmation procedure”, applied to the Registrar under the Act to register both a change of sex to “non specific” and a change of name.

The Registrar issued Norrie a Change of Sex certificate and a Change of Name certificate, both of which recorded Norrie’s sex as “not specified”.  Later, the Registrar advised Norrie that the Change of Sex certificate was invalid, and re-issued a Change of Name certificate which recorded Norrie’s sex as “not stated”.

Norrie lodged an application for review of the Registrar’s decision in the Administrative Decisions Tribunal (NSW).  The Tribunal rejected Norrie’s application, holding that it was not open to the Registrar to record Norrie’s sex as “non specific”.  The appeal panel of the Tribunal dismissed an appeal against that decision.  Norrie’s appeal to the Court of Appeal was upheld.

By special leave, the Registrar appealed to the High Court.  The issue was whether it was within the Registrar’s power to record the sex of a person as “non specific”. 

The High Court decided that the Act recognises that a person may be neither male nor female, and so permits the registration of a person’s sex as “non specific”.  The High Court ordered that Norrie’s applications be remitted to the Registrar for determination in accordance with its reasons and otherwise dismissed the appeal.

Thiess v Collector of Customs [2014] HCA 12

Today the High Court dismissed an appeal from a decision of the Court of Appeal of the Supreme Court of Queensland.  The High Court held that s 167(4) of the Customs Act 1901 (Cth) (“the Act”) operates to bar all actions for the recovery of duty paid to Customs, irrespective of whether a dispute as to the amount or rate of duty payable arises at the time of payment, subject only to two statutory exceptions.

The appellant, Mr Alan Thiess, imported a yacht into Australia for home consumption.  On      15 December 2004, Mr Thiess’ customs agent transmitted a computer import entry on his behalf.  The customs agent mistakenly believed that the gross weight of the yacht was 108 tonnes, when in fact it was 160 tonnes.  The effect of this error was that Customs’ COMPILE computer system automatically calculated that the customs duty payable was $494,472, with an additional $49,447 payable as GST.  In fact, yachts exceeding 150 tonnes were duty free.  Upon payment by the customs agent, Customs authorised delivery of the yacht.  Mr Thiess only discovered the mistake after the expiration of the statutorily prescribed period for making an application for a refund.  On 15 December 2010, he brought proceedings in the trial division of the Supreme Court of Queensland seeking to recover the amount of $543,919 as money had and received, relying on the money having been paid under a mistake of fact, and in the alternative as a claim for restitution in equity or equitable compensation.  Questions of law were reserved for the consideration of the Court of Appeal.

The Court of Appeal held that the Collector of Customs and the Commonwealth had lawful defences to Mr Thiess’ claim:  by s 167(4) of the Act, in so far as the claim was to recover the amount paid as customs duty; and under s 36 of the Taxation Administration Act 1953 (Cth), in so far as the claim was to recover the GST paid.  Mr Thiess sought to argue that s 167(4) had no application because no “demand” had been made and hence no “dispute” had arisen within the meaning of s 167(1) at the time of payment.  The Court of Appeal rejected this argument, finding that a demand had been made.  By special leave, Mr Thiess appealed to the High Court.

The High Court unanimously held that irrespective of whether a dispute has arisen at the time of payment within the meaning of s 167(1) of the Act, s 167(4) operates to bar all actions for the recovery of duty paid to Customs, subject only to either a statutory action for recovery under      s 167(2) of the Act, or any action to enforce a right or to compel the exercise of powers under    s 163 of the Act.  It followed that because the appellant could not recover the amount paid as customs duty, he could not recover the amount paid as GST.

Attorney-General (NT) v Emmerson [2014] HCA 13

Today the High Court, by majority, held that a statutory scheme for the forfeiture of property, effected by the combined operation of s 36A of the Misuse of Drugs Act (NT) and s 94 of the Criminal Property Forfeiture Act (NT), was within the legislative power of the Northern Territory Legislative Assembly and was valid. 

Section 36A of the Misuse of Drugs Act provides that the Supreme Court of the Northern Territory can declare that a person who, within a 10 year period, has been convicted three or more times of certain offences is a “drug trafficker”.  Section 94(1) of the Criminal Property Forfeiture Act provides for the forfeiture to the Northern Territory of property owned, effectively controlled or given away by that person without the need for a further court order.

The Director of Public Prosecutions applied successfully to the Supreme Court for a declaration that Mr Emmerson was a drug trafficker.  The Court of Appeal of the Northern Territory, by majority, allowed Mr Emmerson’s appeal and set aside the primary judge’s declaration.  The majority concluded that the statutory scheme was invalid because it required the Supreme Court to act in a manner incompatible with the proper discharge of the Court’s function as a repository of federal jurisdiction and with its institutional integrity.  All members of the Court of Appeal rejected Mr Emmerson’s submission that the statutory scheme effected an acquisition of property otherwise than on just terms, within the meaning of s 50(1) of the Northern Territory (Self Government) Act 1978 (Cth), and rejected his purported construction of s 52(3) of the Criminal Property Forfeiture Act.  By special leave, the Attorney-General for the Northern Territory appealed to the High Court.

The High Court, by majority, allowed the appeal and held that s 36A of the Misuse of Drugs Act and s 94(1) of the Criminal Property Forfeiture Act were compatible with the limits imposed on State and Territory legislative power by Ch III of the Constitution.  The impugned provisions did not operate to deny the Supreme Court such independence and impartiality as is compatible with its constitutional role as a repository of federal jurisdiction.  The Court held that ss 36A and 94(1) did not effect an acquisition of property otherwise than on just terms.  Further, the Court held that s 52(3) of the Criminal Property Forfeiture Act did not contain any temporal limitation on restraining orders imposed under that Act.