High Court of Australia Judgment Summary Notes

Mahmood v State of Western Australia [2008] HCA 1 (30 January 2008)

A judge in a murder trial failed to give a jury appropriate instruction in response to a prosecutor’s argument as to the use that could be made of certain evidence, the High Court of Australia has held.

In February 2006, Mr Mahmood was convicted in the WA Supreme Court of the wilful murder of his wife, Chnar Dabag, on 4 July 2004 at their restaurant, the Kebabistan Restaurant, in Mt Lawley in Perth. Mr Mahmood testified that he was cleaning when Ms Dabag visited the toilet. When she did not return he went to find her. She was lying in a passageway bleeding. Her throat had been cut. Mr Mahmood picked his wife up but she was not breathing. He went outside to see if the person responsible was still there but saw no-one. In a distressed state, he called an ambulance. A police record of interview was videotaped that same day. A week later Mr Mahmood did a walk-through of the events for police which was also videotaped. No weapon was ever found.

The case against Mr Mahmood was circumstantial, based on his belief that Ms Dabag had been unfaithful. Defence counsel sought to tender a brief extract — showing Mr Mahmood demonstrating how he knelt down and lifted his wife’s body on to his knee — from the video recording. Defence counsel expressed willingness to tender the whole video. The prosecutor did not consent. He told the jury that in the portion of the video tendered, Mr Mahmood’s reaction and demeanour were cold-blooded and clinical. Defence counsel applied to re-open the defence case to tender additional parts of the video to counter that impression. Justice Lindy Jenkins refused the application. Instead she told the jury they would be unwise to draw any adverse view of Mr Mahmood’s demeanour in the walk-through as they had seen only a small portion of the video which was made a week after the murder.

The Court of Appeal dismissed an appeal against conviction. Mr Mahmood appealed to the High Court over the treatment of the video recording and the significance of blood stains on his clothes. The Court unanimously allowed the appeal on the first ground and remitted the matter to the Court of Appeal to consider whether or not there had been a substantial miscarriage of justice. It held that while a sufficiently firm direction to the jury may have overcome the prejudicial effects of the prosecutor’s remarks about Mr Mahmood’s demeanour, Justice Jenkins had merely given comment. The Court held that the jury should have been directed unequivocally that they knew so little of the context of the video segment that they should ignore the prosecutor’s remarks.

A scientific report referred to the presence of Ms Dabag’s blood in Mr Mahmood’s trouser pocket but expert witnesses were not asked whether this was consistent with a knife being in the pocket. Mr Mahmood denied in cross-examination that he had put the knife in his pocket before disposing of it outside. The High Court held that Mr Mahmood had had the opportunity to explain the presence of blood in his pocket but did not do so. Justice Jenkins’s directions conveyed to the jury that they could not draw the inference suggested by the prosecution so this ground of appeal failed.

Attorney-General (Cth) v Alinta Limited [2008] HCA 2 (31 January 2008)

The Takeovers Panel’s role in declaring circumstances relating to the affairs of a company to be unacceptable circumstances constituting contraventions of the Corporations Act was not a judicial function and was validly conferred, the High Court of Australia has held.

On 13 December 2007, the Court allowed the appeal by the Attorney-General and made a declaration that section 657A(2)(b) of the Act was not invalid for purporting to confer the judicial power of the Commonwealth on the Takeovers Panel. The Court published its reasons today.

In April 2006, Alinta and the Australian Gas Light Company (AGL) agreed to merge their assets. The assets included units held by AGL in the Australian Pipeline Trust (APT), a listed managed investment scheme. AGL held 30 per cent of the issued units in APT. Trewas, a subsidiary of Alinta, acquired a further 10.25 per cent of the issued units in APT during August 2006. On the application of Australian Pipeline Limited the Takeovers Panel made a declaration of unacceptable circumstances in relation to these acquisitions. Section 606 of the Act prohibits acquisitions which increase a person’s voting power in a company to more than 20 per cent and prohibits any increase if the starting point is between 20 and 90 per cent. If, as was later argued in Federal Court of Australia proceedings, the agreement gave Alinta a relevant interest in AGL’s units in APT, Alinta’s later purchases of units in APT was a contravention of section 606. The Takeovers Panel made orders vesting the additional units acquired by Alinta in the Australian Securities and Investments Commission on trust for sale, with proceeds remitted to Alinta.

Alinta applied to the Federal Court for review, contending that the Panel’s declaration and orders were invalid because in making them the Panel exercised the judicial power of the Commonwealth. Justice Arthur Emmett rejected the contention. The Full Court of the Federal Court, by majority, allowed Alinta’s appeal and declared section 657A(2)(b) of the Act invalid. The High Court granted the Attorney-General special leave to appeal against the orders made by the Full Court. Other parties discontinued proceedings in the High Court as the underlying commercial controversy was resolved and the disputed APT units disposed of. The Attorney-General arranged for counsel to appear as amici curiae to provide contrary argument.

The High Court unanimously allowed the appeal and held that Takeover Panel does not exercise the judicial power of the Commonwealth when discharging its functions under section 657A(2)(b) of the Act. The Panel’s making of a declaration of unacceptable circumstances under that section does not involve resolution of a controversy about a legal obligation. Instead the Panel undertakes the nonjudicial function of considering policy considerations relevant to the public interest. It makes orders about the process to be undertaken with respect to a takeover and what the rights of the parties should be. The Panel’s task is the creation of new rights and obligations rather than adjudicating a dispute about a contravention of the Corporations Act. It lacks power to compel compliance with its orders. An order of a court is necessary for enforcement of compliance with the Panel’s orders. A court may make any order that it considers appropriate where a contravention has occurred.

International Air Transport Association v Ansett Australia Holdings Limited [2008] HCA 3 (6 February 2008)

The High Court of Australia upheld IATA’s claims as to the effect of its Clearing House system in relation to the insolvency of Ansett Australia.

Ansett collapsed on 12 September 2001 and administrators were appointed. It was then a member of the IATA Clearing House, which pays out airlines for services provided to other airlines in accordance with agreements between IATA and the airlines, including Ansett. International airlines regularly carry passengers and goods on behalf of other airlines. The Clearing House avoids the necessity for the airlines to make and receive numerous payments for such operations. Each month, airlines with a net credit balance receive a payment from the Clearing House while those with a net debit balance are obliged to pay funds into the Clearing House. The agreements between IATA and the airlines provided that settlement of amounts payable would be in accordance with IATA’s Regulations. IATA claimed to be a creditor of Ansett and alleged that Ansett had a net debit balance of $US4,370,989 outstanding as at December 2001. Ansett’s creditors resolved that Ansett execute a Deed of Company Arrangement on 27 March 2002, which bound Ansett, its officers, certain creditors and the administrators, Mr Korda and Mr Mentha. The Deed barred creditors bound by it from taking any action to seek to recover their claim other than pursuant to the Deed. Ansett and the administrators submitted that the Deed and the insolvency provisions of the Corporations Act operated upon Ansett’s property as it existed on 12 September 2001 so other airlines’ claims against Ansett at that date needed to be proved in accordance with the Deed rather than with the IATA Regulations. After execution of the deed in May 2002, the administrators demanded payment from 13 airlines, all Clearing House members, for alleged net indebtedness for the months from August 2001 to March 2002 of more than $US11 million. Further action by Ansett on these demands is on hold, pending the outcome of this litigation.

Both IATA and Ansett brought proceedings in the Victorian Supreme Court. IATA challenged decisions of Mr Korda and Mr Mentha. Ansett sought declarations about the application of the IATA Regulations. Justice Philip Mandie heard the two actions together. He made declarations that, notwithstanding the appointment of administrators, the Clearing House arrangements continued to apply with contractual force between IATA, Ansett and the other Clearing House members, and that IATA was a creditor of Ansett. Ansett and the administrators successfully appealed to the Court of Appeal, which held, by majority, that IATA was not a creditor, the Clearing House arrangements did not apply, and Ansett was a debtor of carrying airlines and a creditor of issuing airlines. IATA appealed to the High Court.

The High Court, by a 6-1 majority, allowed each appeal and upheld the declarations made by Justice Mandie. IATA Regulation 9 provided that no liability for payment and no right of action to recover payment accrued between Clearing House members and that members instead had liabilities to or rights of action against the Clearing House. The Court held that the effect of the IATA Regulations was that no liability for payment arose between airlines and that the only debt or credit which arose was that between IATA and member airlines in relation to the final balance each month. It followed that IATA was a creditor of Ansett to the exclusion of the member airlines. Ansett submitted that the Regulations operated to circumvent the Deed and the Corporations Act. The Court held that there was no contracting out of the operation of the Deed or the Act and no repugnancy between the Deed and the Clearing House arrangements. It also rejected Ansett’s submission that the IATA Regulations were ineffective or void by reason of public policy.

Gypsy Jokers Motorcycle Club Incorporated v Commissioner of Police [2008] HCA 4 (7 February 2008)

The High Court of Australia upheld the validity of Western Australian legislation concerning judicial review of fortification removal notices.

The Gypsy Jokers owns a clubhouse in an industrial area of Maddington in Perth. The clubhouse had a concrete front wall, surveillance cameras, steel doors and modified timber doors. In 2004, the Western Australian Police Commissioner applied to the Corruption and Crime Commission (CCC) for a fortification warning notice in respect of the clubhouse. The notice, issued on 31 March 2004, said the CCC was satisfied that there were reasonable grounds for believing that the clubhouse was “heavily fortified” and was “habitually used as a place of resort by members of a class of people a significant number of whom may reasonably be suspected to be involved in organised crime”. The Gypsy Jokers’ solicitors wrote back explaining that the fortifications were necessary because the area had high rates of burglary and car theft, 10 valuable customised Harley Davidson Big Twin motorcycles were stored there, and the fortifications had received necessary approvals. The letter did not address the CCC’s belief that people involved in organised crime used the clubhouse. On 5 May 2004, the Commissioner issued a fortification removal notice listing for removal the concrete wall, the gates attached to the wall, surveillance cameras and monitors and an internal door.

The Gypsy Jokers applied pursuant to section 76(1) of the Corruption and Crime Commission Act to the WA Supreme Court for review of the fortification removal notice. Section 76(2) provided that the Police Commissioner may identify information as confidential if its disclosure might prejudice police operations and such information would then be for the Court’s use only and not disclosed in any way. The Gypsy Jokers received only an edited version of an affidavit provided by the Commissioner to the Court. The affidavit listed 59 members, all but one of whom the Commissioner alleged had criminal records, and 130 charges with which the Commissioner alleged members or associates had been charged. The Gypsy Jokers challenged the validity of section 76(2) and Justice Peter Blaxell referred the issue to the Court of Appeal. The review of the fortification removal notice has yet to be adjudicated. The Court of Appeal, by majority, upheld the validity of section 76(2). The Gypsy Jokers appealed to the High Court, arguing that section 76(2) purported to exercise an impermissible form of control over the exercise by the Supreme Court of its jurisdiction and constituted a denial of procedural fairness.

The High Court, by a 6-1 majority, dismissed the appeal. The Court held that it was for the Supreme Court, not for the Police Commissioner, to determine whether disclosure of information provided by the Commissioner might prejudice police operations. Section 76(2) of the CCC Act did not render unexaminable by the Supreme Court the decision of the Commissioner. It did not direct the Supreme Court how to exercise its jurisdiction so as to impair the character of the Court as independent and impartial. The High Court held that without section 76(2), a public interest immunity could apply, which meant that the Supreme Court could not consider information subject to the immunity and consequently could not exercise its review function.