High Court of Australia Judgment Summary Notes

Pike v Tighe [2018] HCA 9 (14 March 2018)

Today the High Court unanimously allowed an appeal from the Court of Appeal of the Supreme Court of Queensland. The Court held that s 245 of the Sustainable Planning Act 2009 (Q) (“the Act”) obliges a successor in title to ownership of a parcel of land created by the reconfiguration of a larger parcel to comply with a condition of the approval for the reconfiguration that should have been, but was not, satisfied by the original owner prior to completion of the reconfiguration.

The Townsville City Council (“the Council”) approved an application by the then registered proprietors of land for development by way of reconfiguration of an existing lot into two lots. The approval was subject to certain conditions, including a condition (“condition 2”) that required that an easement be provided over lot 1 for the benefit of lot 2. The schedule to the approval provided that, unless explicitly stated elsewhere in the approval, all conditions had to be satisfied prior to the Council signing the survey plan. The registered proprietors of the original lot executed an easement in terms which did not reflect condition 2. Despite this omission, the Council approved the relevant survey plan to give effect to the reconfiguration. The registered proprietors later executed a second easement that was relevantly identical to the first easement. Subsequently, the titles for lots 1 and 2 were created and the second easement was registered in relation to each title. The first respondents, the Tighes, were later registered as the owners of lot 1 and the appellants, the Pikes, were registered as the owners of lot 2.

In the Planning and Environment Court of Queensland, the Pikes sought a declaration that condition 2 of the development approval had been contravened and an enforcement order directing the Tighes to comply with that condition. The primary judge granted the Pikes’ application, holding that s 245 of the Act had the effect that the conditions stipulated in the development approval ran with the land. His Honour held that the Tighes had committed a development offence which warranted the making of an enforcement order to provide the Pikes with an easement conforming to condition 2. The Court of Appeal allowed the Tighes’ appeal, holding that s 245 binds only the person permitted by the approval to carry out the subdivision of the original lot.

By grant of special leave, the Pikes appealed to the High Court. The Court held that s 245(1) of the Act expressly gives the conditions of a development approval the character of personal obligations capable of enduring in their effect beyond the completion of the development which the development approval authorised. It was held that the land to which the development approval attaches is all the land the subject of the development application. The Court held that, by failing to provide the easement required by condition 2 after being requested to do so, the Tighes contravened s 580 of the Act. Consequently, the Planning and Environment Court could make an enforcement order under ss 601, 604 and 605 requiring the Tighes to fulfil the condition. The High Court therefore allowed the appeal and remitted the matter to the primary judge for the making of final orders.

Irwin v The Queen [2018] HCA 8

Today, the High Court unanimously dismissed an appeal from a decision of the Court of Appeal of the Supreme Court of Queensland that the jury’s verdict that the appellant was guilty of one count of unlawfully doing grievous bodily harm was not unreasonable or unsupported by the evidence.

The appellant’s conviction arose from a confrontation between the appellant and the complainant which resulted in the complainant’s left hip breaking in three places. The appellant’s account of the confrontation was that he had pushed the complainant in the chest, causing the complainant to stumble back three or four metres and fall “reasonably hard” onto the ground. That account was consistent with medical evidence that the complainant’s hip injury was a high-energy fracture. The fracture required a high degree of force and was consistent with the complainant being pushed and then falling directly onto his left side on a hard surface with some speed. The complainant gave a different account of the confrontation. Parts of the complainant’s account were inconsistent with the medical evidence and the evidence of an independent witness, and that account was very likely to have been rejected.

Section 23(1) of the Criminal Code (Q) provides that a person is not criminally responsible for an event that the person does not intend or foresee as a possible consequence, and that an ordinary person would not reasonably foresee as a possible consequence. The appellant accepted that the trial judge had correctly directed the jury as to the effect of s 23(1). The appellant appealed his conviction to the Court of Appeal, however, on the basis that the jury could not rationally have excluded the possibility that an ordinary person in the appellant’s position would not reasonably have foreseen the possibility of an injury of the kind sustained by the complainant as a possible consequence of pushing the complainant in the manner described by the appellant. The Court of Appeal dismissed the appeal, stating that an ordinary person in the appellant’s position “could have foreseen” that the complainant might suffer a serious injury such as a fractured hip from a push involving “a considerable degree of force”.

By grant of special leave, the appellant appealed to the High Court on grounds including that the Court of Appeal had erred by applying the test of whether an ordinary person could, rather than would, have foreseen the possibility of the kind of injury suffered by the complainant. The High Court held that there is a difference between what an ordinary person would and could reasonably foresee: the former involves a degree of probability whereas the latter is a matter more akin to mere possibility. Therefore, the Court of Appeal should not have expressed the test in the terms it did. The High Court held, however, that there was no reason to doubt that the jury had adhered to the trial judge’s proper directions as to the effect of s 23(1), and no cause to doubt the reasonableness of the verdict. The High Court further held that the Court of Appeal had not erred by stating that the appellant had pushed the complainant with “a considerable degree of force”, or by its observation that there were “equally open” interpretations of the evidence before the jury. Accordingly, the appeal was dismissed.

Kalbasi v Western Australia [2018] HCA 7 (14 March 2018)

Today the High Court, by majority, dismissed an appeal from the Court of Appeal of the Supreme Court of Western Australia.

The appellant was convicted, following a re-trial before judge and jury in the District Court of Western Australia, of attempting to possess a prohibited drug with intent to sell or supply to another, contrary to ss 6(1)(a) and 33(1) of the Misuse of Drugs Act 1981 (WA) (“the MDA”). It was the prosecution case that the appellant had attempted to possess a consignment of 4.981 kg of 84% pure methylamphetamine. The police had removed the drugs and replaced them with rock salt prior to the collection of the consignment. The consignment note recorded a mobile telephone number to be contacted for collection. Evidence linked the appellant to that number. The consignment was collected by a man named Lothian, who was known to the appellant. The appellant was present at Lothian’s premises when the “drugs” were unpacked. Mixing bowls, digital scales, disposable gloves and a substance used to cut methylamphetamine were found in the premises shortly after the appellant’s arrest. The appellant’s DNA was found on the inside of one of the disposable gloves. The sole issue at trial was whether the appellant was in possession (whether jointly with Lothian or otherwise) of the “drugs” during the period that he was inside Lothian’s premises.

Under s 11 of the MDA, a person who is in possession of more than 2 g of methylamphetamine is deemed to possess it with intent to sell or supply to another subject to proof to the contrary. In Krakouer v The Queen (1998) 194 CLR 202, the High Court held that s 11 does not apply to the prosecution of a charge of attempted possession of a prohibited drug with intent to sell or supply to another. The appellant’s trial was conducted on the common, mistaken, assumption by the parties and the trial judge that s 11 was engaged. The jury was directed that, in the event it was satisfied that the appellant was in possession of the “drugs”, his intention to sell or supply them to another would be proved beyond reasonable doubt. The appellant appealed against his conviction to the Court of Appeal of the Supreme Court of Western Australia. The State conceded that the trial judge’s direction concerning proof of the element of intention was wrong. The Court of Appeal upheld the State’s submission that the appeal should nonetheless be dismissed under s 30(4) of the Criminal Appeals Act 2004 (WA), which provides that the Court of Appeal may dismiss the appeal if it considers that “no substantial miscarriage of justice has occurred” (“the proviso”).

By grant of special leave, the appellant appealed to the High Court on the ground that the Court of Appeal erred in applying the proviso. The High Court declined to re-open the principles governing the proviso stated in Weiss v The Queen (2005) 224 CLR 300. The majority rejected the appellant’s contention that he was “not in reality tried for the offences for which he was indicted”. The majority found that there was no basis in the evidence, or in the way the appellant’s case had been run, that left open that the appellant may have been in possession of a lesser quantity of the “drugs” with a view to purchase for his own use, or that he possessed the “drugs” without intent to sell or supply to another. Rather, the sole issue at trial was whether he was in possession of the whole of the substitute “drugs”. In the circumstances, the majority held that the Court of Appeal was correct to reason that proof of the attempt to possess nearly 5 kg of 84% pure methylamphetamine compelled the conclusion that it was the appellant’s intention to sell or supply the drugs to another. Therefore, the majority held that the Court of Appeal was correct in concluding that the misdirection did not result in a substantial miscarriage of justice.

Re Lambie [2018] HCA 6 (14 March 2018)

Today the High Court published reasons for orders it made on 6 February 2018. Those orders were that Mr Steven Martin is not incapable of being chosen or of sitting as a senator by reason of s 44(iv) of the Constitution.

On 8 December 2017 the High Court, sitting as the Court of Disputed Returns, answered questions referred to it by the Senate under s 376 of the Commonwealth Electoral Act 1918 (Cth) (“the Act”) concerning Ms Jacqui Lambie. The answers given by the Court included that, by reason of s 44(i) of the Constitution, there was a vacancy in the representation of Tasmania in the Senate for the place for which Ms Lambie was returned at the federal election held on 2 July 2016, and that the vacancy should be filled by a special count of the ballot papers.

The special count that was conducted identified Mr Martin as one of the candidates who would be elected as a senator for Tasmania as a result of the special count. On 13 December 2017, Nettle J stated for the consideration of the Full Court the question of whether Mr Martin is incapable of being chosen or of sitting as a senator by reason of s 44(iv) of the Constitution.

Mr Martin has at all relevant times held the elected offices of mayor and of councillor of Devonport City Council, a local government corporation established under the Local Government Act 1993 (Tas) (“the Local Government Act”). In respect of each office, Mr Martin has a statutory entitlement to be paid a substantial annual allowance by the Council. There was no dispute that the positions which Mr Martin held answered the description of “offices of profit”. The issue before the Court was whether the positions were offices of profit “under the Crown” within the meaning of s 44(iv), which would render Mr Martin “incapable of being chosen or of sitting” as a senator.

The Court unanimously held that the offices of mayor and of councillor held by Mr Martin are not offices of profit “under the Crown” within the meaning of s 44(iv). A majority of the Court held that the particular conflict to which s 44(iv) is addressed is that which would arise from a member of Parliament holding at the will of an executive government an office in respect of which he or she receives a financial gain. The majority held that the Local Government Act did not confer on the executive government of Tasmania effective control over the holding of or profiting from the office of mayor or of councillor. The Court unanimously held that Mr Martin is not incapable of being chosen or of sitting as a senator by reason of s 44(iv) of the Constitution.