High Court of Australia Judgments – Summary Notes

• SZBYR v Minister for Immigration and Citizenship [2007] HCA 26
• AJS v The Queen [2007] HCA 27
• John Fairfax Publications Pty Ltd v Gacic [2007] HCA 28
• White v Director of Military Prosecutions [2007] HCA 29
• Libke v The Queen [2007] HCA 30
• Black v Garnock [2007] HCA 31
• New South Wales v Corbett [2007] HCA 32
• Thomas v Mowbray [2007] HCA 33
• Attorney-General for the Northern Territory v Chaffey; Santos Limited v Chaffey [2007] HCA 34
• SZFDE v Minister for Immigration and Citizenship [2007] HCA 35

SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 (13 June 2007) A family quarrel was not sufficient basis for a well-founded fear of persecution which would enable asylum seekers to be granted refugee status, the High Court of Australia has held.

Indian husband and wife, SZBYR and SZBYS, arrived in Australia in 2002. They are Ismaili Muslims and followers of the Aga Khan, the sect’s leader. SZBYR was previously married to a woman named Salima whose family were Muslims of a different sect and a higher social status and were influential in the city of Hyderabad. Despite her family’s disapproval, Salima married SZBYR in 1997. He claims to have been falsely arrested and imprisoned by police on a number of occasions between 1997 and 2001 at the corrupt instigation of Salima’s family, and suffered other forms of harassment from them, including assault. In 1999, SZBYR agreed to Salima’s father’s request to divorce her. He married SZBYS in 2000. Salima later allegedly committed suicide. The couple moved to Mumbai where they were charged with murdering Salima and jailed for 15 days until released on bail. They left for Australia using their own passports, despite the charge relating to Salima’s death. They say they fear that if returned to India they will be imprisoned due to the outstanding charge and will suffer continued animus from Salima’s family.

The couple applied for a protection visa which was refused. They claimed to have a well-founded fear of persecution for reasons of religion within the meaning of the Convention relating to the Status of Refugees. The Immigration Department concluded that the couple’s difficulties arose out of SZBYR’s relationship with Salima and her family which was a private matter outside the scope of the Convention. The Refugee Review Tribunal refused their applications for review, the Federal Magistrates Court rejected an application for judicial review of the RRT’s refusal, and the Federal Court of Australia dismissed an appeal by the couple. The RRT did not consider SZYBR to be a reliable witness. SZBYR and SZBYS appealed to the High Court.

The Court upheld the RRT’s finding that the claims lacked any nexus with the Convention. The couple also argued that the RRT had not complied with section 424A of the Migration Act which provides that the RRT must give the applicant written particulars of any information that it considers would be the reason, or part of the reason, for affirming a decision under review. This argument was rejected. The Court unanimously dismissed the appeal.

AJS v The Queen [2007] HCA 27 (13 June 2007) AJS was entitled to be acquitted of a charge of incest and should face a trial on the alternative charge of committing an indecent act, the High Court of Australia has held.

In 2004 AJS was convicted of incest by digital penetration of his 13-year-old granddaughter. The Victorian Court of Appeal held that that verdict was not open on the evidence and ordered that the conviction be quashed and a new trial held. If the jury had found AJS not guilty of incest they could have considered the alternative charge of committing an indecent act with a child under 16. AJS appealed to the High Court, arguing that the Court of Appeal should have entered a verdict of acquittal on the charge of incest and ordered a new trial on the indecency charge.

The High Court unanimously allowed the appeal. It ordered his acquittal on the incest charge and ordered a new trial on the indecency charge. The Court held that a new trial would not be a second or subsequent prosecution but would be the continuation of so much of the original prosecution as remained alive after the Court of Appeal’s determination of the appeal. While the charge of incest has been resolved in AJS’s favour, the other lesser alternative offence remains unresolved. The Court held that no question of double jeopardy arises. Entering a verdict of acquittal on the incest charge does not found a plea that AJS has already been acquitted of the indecent dealing charge, just as a jury verdict of not guilty on the incest count would not have precluded the jury from going on to consider this alternative offence. The power to order a new trial extends to ordering a new trial for an offence for which AJS could have been convicted at the first trial.

John Fairfax Publications Pty Ltd v Gacic [2007] HCA 28 (14 June 2007) The jury in proceedings in a defamation action found that a newspaper had published in a review of the Coco Roco restaurant that its food was unpalatable and the service sometimes bad. However the jury found that the review did not have the tendency to injure the restaurant owners’ business reputation. The NSW Court of Appeal found that the jury’s decision was unreasonable and directed an answer in favour of the restaurant owners on the question put to the jury. The High Court of Australia has upheld the Court of Appeal’s decision.

The Coco Roco restaurant complex — comprising the fine dining Coco and the Roco bistro — opened at King Street Wharf at Darling Harbour in Sydney in 2003 after a $3 million fitout. After two dinners at Coco, Sydney Morning Herald restaurant critic Matthew Evans gave it a score of nine out of 20 and said Coco was expensive, with many unpalatable flavours, a menu flawed in concept and execution, and good and bad service, and that the best thing was the view. Coco Roco subsequently closed. The owners sued The Sydney Morning Herald’s publisher, John Fairfax Publications, and Mr Evans for defamation. Before the trial of any issue by a jury, the NSW Supreme Court ruled that four imputations could be drawn from the review and they were reasonable capable of bearing a defamatory meaning: (a) Coco Roco’s owners sell unpalatable food; (b) they charge excessive prices; (c) they provide some bad service; and (d) they are incompetent as restaurant owners because they employ a chef who makes poor-quality food.

At the trial, the jury found that imputations (a) and (c) were conveyed but were not defamatory and (b) and (d) were not conveyed. The restaurant owners appealed to the Court of Appeal in respect of the findings on imputations (a), (c) and (d), arguing that the jury’s answers were unreasonable. The Court of Appeal upheld the appeal, finding for the owners on (a) and (c) and remitting (d) for reconsideration by a jury. Fairfax and Mr Evans appealed to the High Court in relation to imputations (a) and (c), arguing that the Court of Appeal exceeded its powers under section 108(3) of the Supreme Court Act. This provides that where it appears to the Court of Appeal that upon the evidence a party is entitled as a matter of law to a verdict in the proceedings the Court may direct a verdict and give judgment accordingly. The Court of Appeal concluded that no reasonable jury, properly instructed, could find that imputations (a) and (c) were not defamatory.

The High Court, by a 6-1 majority, dismissed the appeal and upheld the decision of the Court of Appeal. It held that the Court of Appeal properly exercised the power conferred by section 108(3) of the Act to correct unreasonable jury verdicts. ` As well as the defamatory nature of imputation (d), further litigation will determine any defences available to Fairfax and Mr Evans and questions of damages.

White v Director of Military Prosecutions [2007] HCA 29 (19 June 2007) Offences committed by Australian Defence Force personnel can be tried by Defence disciplinary bodies rather than by civilian courts, the High Court of Australia has held.

Ms White is a chief petty officer in the Royal Australian Navy, serving on HMAS Manoora. At a house and then a hotel at Williamtown in Victoria in June 2005, she allegedly engaged in acts of indecency, or assaults, against five other navy women. The women were all off duty and not in uniform and the incidents did not occur on Commonwealth property. Ms White has been charged under the Defence Force Discipline Act. She denies the charges.

Before the charges could be heard, Ms White brought a challenge in the High Court to the Act’s provisions which create the offences and lay down the procedure for trial and punishment of such offences. She asked the High Court to overrule three previous decisions. Ms White seeks an order prohibiting the Director of Military Prosecutions from proceeding with the charges, a declaration that she may only be tried by a federal court exercising the judicial power of the Commonwealth under Chapter III of the Constitution, and a declaration that provisions of the Act purporting to confer jurisdiction on courts martial and defence force magistrates are invalid because they are not courts invested with federal jurisdiction in accordance with section 71 of the Constitution.

Ms White argued that trial and punishment involve an exercise of the judicial power of the Commonwealth and may occur only within the limits of Chapter III. She claimed that this is because the defence power conferred by section 51(vi) of the Constitution is subject to Chapter III and the separation of powers inherent in the Constitution. Secondly, she argued that only exclusive disciplinary offences could be dealt with by the military justice system. These are offences which have no civilian equivalent, pertain to service discipline, and involve no exposure to imprisonment. Ms White said that even if accepted that military tribunals do not exercise the judicial power of the Commonwealth, this only applies when such tribunals deal with disciplinary offences.

The Court unanimously rejected Ms White’s first argument, rejected the second by a 6-1 majority and declined to overrule any earlier decisions. In respect of the first argument, the Court held that the defence power authorises Parliament to grant disciplinary powers to be exercised judicially by officers of the armed forces. The power exercised is not the judicial power of the Commonwealth but is supported solely by section 51(vi) to maintain or enforce discipline. In relation to the second argument, the majority held that the distinction between exclusive disciplinary offences and other offences is not feasible. Whether an offence is to be regarded as an offence against military discipline or a breach of civil order will often depend, not upon the elements of the offence, but upon the circumstances in which it is committed. Proceedings may be brought for a service offence in a tribunal established outside Chapter III if those proceedings can reasonably be regarded as substantially serving the purpose of maintaining or enforcing service discipline.

Libke v The Queen [2007] HCA 30 (20 June 2007) A Brisbane man convicted of sexual offences against an intellectually disabled woman was not disadvantaged by the trial judge’s directions to the jury about the woman’s capacity to give consent and his trial was not unfair, the High Court of Australia has held.

The woman was 18 at the time but had a mental age of eight to 10 with an IQ of 61. Mr Libke, 43, was charged with three counts of rape, one count of indecent dealing with an intellectually impaired person, and one count of sodomy of an intellectually impaired person in 2002. The first count of rape arose from an incident in a park where he first met the woman while walking their dogs. Mr Libke allegedly digitally penetrated the woman. Some days later he telephoned the woman and arranged to come to her house where they had sex. Mr Libke denied any anal penetration and denied being aware that she was intellectually impaired.

At the trial in the Queensland District Court, the main issues concerned consent and whether he reasonably believed the woman was not intellectually impaired. Mr Libke was convicted of the count of rape involving digital penetration. He was acquitted of the other counts of rape, and the counts of sodomy and indecent dealing, but was found guilty of three alternative lesser offences: two of unlawful carnal knowledge with an intellectually impaired person and an offence of exposing such a person to an indecent act. Mr Libke was sentenced to eight years’ imprisonment. The Court of Appeal cut the sentence to five years but dismissed the appeal against conviction.

Mr Libke appealed to the High Court, alleging that the prosecutor’s cross-examination was unfair and that Judge Milton Griffin gave incorrect and insufficient directions to the jury. He said many of the cross-examiner’s questions were confusing, harassing, oppressive and repetitive and that the prosecutor expressed inappropriate comment about his answers. Mr Libke said Judge Griffin failed to give adequate directions on consent as it related to cognitive capacity and intellectual impairment; that he failed to tell the jury that if Mr Libke honestly and reasonably believed that the woman’s capacity for communication, social interaction and learning was not substantially reduced, or that he believed that she did not need support, he was entitled to be acquitted; and that flow charts given to the jury as part of Judge Griffin’s directions were inadequate.

The High Court, by a 3-2 majority, dismissed the appeal. It held that the prosecutor’s conduct did not result in an unfair trial. The Court held that Judge Griffin did not make errors in his directions. In particular, he adequately instructed the jury about the defences available to Mr Libke.

Black v Garnock [2007] HCA 31 (1 August 2007)

The sale of a farm in southern New South Wales was blocked by the registration of a judgment debt two hours before settlement, the High Court of Australia has held.

Ms Smith and her husband Peter Smith owned “Wanaka”, a 1600-acre property at Bukalong near Bombala. In September 2004, the judgment creditors (Mr Black, Mr Chapman and Mr Carter) obtained judgment in the NSW District Court for $228,000 against the Smiths. On 15 July 2005, the Garnocks and the Luffs agreed to buy Wanaka from the Smiths for $1 million with a deposit of $100,000. Settlement was due to take place at 2pm on 24 August 2005. The day before settlement, the judgment creditors obtained a writ of execution from the District Court. That writ was recorded in the Torrens register at 11.53am on 24 August. In due course, the recording of the writ would entitle the Sheriff to sell the property to pay the judgment debt. Settlement proceeded at 2pm but the transfer could not be registered due to the writ.

The Garnocks and Luffs began proceedings in the NSW Supreme Court to stop the judgment creditors and the Sheriff from executing the writ and selling the land. Justice Joseph Campbell granted an interlocutory injunction restraining the execution the writ but in December 2005, Acting Justice David Lloyd dismissed the proceedings. The Court of Appeal allowed the purchasers’ appeal by majority and granted an injunction. The judgment creditors then appealed to the High Court. Neither the Sheriff nor Ms Smith played an active part in the appeal.

By a 3-2 majority, the High Court allowed the appeal. It held that the injunction granted by the Court of Appeal was inconsistent with the statutory scheme in the NSW Real Property Act and the system of title registration — including the recording of writs — that the Act created. The writ took priority because it was recorded before the attempted registration of the sale to the purchasers and it was irrelevant that the actual date that contracts were exchanged preceded the issue of the writ.

New South Wales v Corbett [2007] HCA 32 (1 August 2007)

The citation of a repealed statute on an application for a search warrant did not render the application or the search warrant invalid, the High Court of Australia has held.

Mr Corbett is a former NSW police officer who had attended traumatic events such as the Hilton Hotel bombing and the Granville rail disaster. During the 1990s, he suffered from emotional and mental problems. While working in police communications Mr Corbett developed a rural radio network which gave police 24-hour radio contact. In 1997 the police decided to replace his system with one operated in conjunction with a mobile phone provider. Mr Corbett became concerned that police safety would be jeopardised by the new system. On 28 May 1998, while attending a communications conference in Wollongong, he attempted suicide and was hospitalised. A suicide note included the words “police will die”. The Court of Appeal later observed that this related to his concerns about the new communications regime, but police at first took it as a threat. Goulburn police suspended his shooter’s licence and applied for a warrant to search the Corbetts’ property for firearms. On 4 June 1998, while Mr Corbett was still in hospital, police entered and searched the property. No firearms were found.

The Corbetts commenced proceedings seeking damages for trespass on the basis that the search warrant was invalid and did not authorise police to enter their property. They contended that the application for the search warrant failed to specify an offence because the pro forma application referred to the 1989 Firearms Act which had been repealed and replaced by the 1996 Firearms Act. At the time, the Search Warrants Act still referred to the 1989 Firearms Act. The Search Warrants Act provided that a search warrant is not invalidated by a defect unless it affects the substance of the warrant. Equivalent sections in the 1989 and 1996 Firearm Acts both prohibited the possession or use of a firearm without a licence or a permit. The definition of “firearm” differed only slightly between the two Acts but the substance of each offence was the same. The Corbetts also contended that the officer who applied for the search warrant did not have a reasonable belief that Mr Corbett had any firearms in his possession.

The NSW District Court determined that the defects in the search warrant did not render it invalid, therefore the search warrant provided a defence to the Corbetts’ action for trespass. The Court of Appeal found that the search warrant was invalid due to the reference to the 1989 Firearms Act, but rejected the submission that the officer seeking the search warrant did not have reasonable grounds for a belief relating to the possession of firearms by Mr Corbett. The State then appealed to the High Court on the issue of the validity of the search warrant.

The High Court unanimously allowed the appeal. It held that it was an accurate statement of the offence (possession of a firearm) which was critical, not the reference to a repealed Act. This was surplusage and did not detract from the statement of the nature of the offence or render the description of the object of the search unintelligible or ambiguous. Furthermore, the 1996 Firearms Act contains a transitional provision which stated that a reference in any instrument to any provision of the 1989 Act is to be read as referring to the corresponding provision of the 1996 Act. Accordingly, the statutory requirements were complied with and the application and the search warrant were valid, so no trespass to the Corbetts’ property was committed. The Court also upheld the Court of Appeal’s conclusion that police believed on reasonable grounds that there would be firearms on the property.

Thomas v Mowbray [2007] HCA 33 (2 August 2007)

The High Court of Australia has upheld the constitutional validity of that part of the anti-terrorism laws under which an interim control order was made in respect of Mr Thomas.

Mr Thomas allegedly undertook paramilitary training, including in the use of firearms and explosives, at Al Qa’ida’s Al Farooq training camp in Afghanistan in 2001. He was arrested in Pakistan in 2003 and in 2004 was charged in Australia with terrorism-related and passport offences. Mr Thomas was convicted in the Victorian Supreme Court of intentionally receiving funds from a terrorist organisation and of possession of a false passport. The Victorian Court of Appeal set aside the convictions in August 2006 and last December ordered a retrial which has yet to be held. After the convictions were quashed, the AFP applied, with the consent of the federal Attorney-General, for an interim control order (ICO) under Division 104 of the Criminal Code Act. At a hearing on 27 August 2006, Federal Magistrate Mowbray issued the ICO on grounds that related to allegations concerning Mr Thomas’s Al Qa’ida training and his links to extremists. The ICO imposed conditions which include a midnight to 5am curfew, reporting to police three times a week, and prohibitions from contacting particular individuals and from using certain communications technology.

A Federal Magistrates Court hearing to determine whether the ICO should be confirmed for a specified period was listed for 1 September 2006 but was postponed until after Mr Thomas’s challenge to the validity of Division 104 was heard by the High Court. The questions agreed by the parties for determination by the Court were whether Division 104 is invalid because it confers on a federal court non-judicial power contrary to Chapter III of the Constitution, whether it is invalid because in so far as it confers judicial power on a federal court it authorises the power to be exercised in a manner contrary to Chapter III; and whether it is invalid because it is not supported by one or more express or implied heads of legislative power under the Constitution.

By a 5-2 majority, the High Court held that Subdivision B of Division 104 is valid. It held that the subdivision is supported by at least the defence power. The Court held that the defence power is not limited to external threats or to war between nations but extends to protecting the public from terrorist acts. Mr Thomas contended that Subdivision B invalidly confers non-judicial power on federal courts. This contention was rejected. The functions exercised in making ICOs, and the standards according to which they are to be exercised, are such that they involve an exercise of judicial power and thus may be conferred upon the federal judiciary.

Attorney-General for the Northern Territory v Chaffey; Santos Limited v Chaffey [2007] HCA 34 (2 August 2007)

Northern Territory legislation providing that employers’ superannuation contributions were not to be treated as part of earnings for compensation paid to an injured worker was constitutionally valid and did not amount to an acquisition of property, the High Court of Australia has held.

Mr Chaffey was injured in September 2003 while working for Santos as a maintenance operator at Mereenie Gasfield, 200km west of Alice Springs. Santos accepted liability to pay compensation pursuant to section 53 of the Work Health Act. During Mr Chaffey’s employment, Santos made superannuation contributions on his behalf of 10 per cent of salary, but did not continue to make these as part of his compensation payments. In 2004 the Full Court of the NT Supreme Court held in Hastings Deering (Australia) v Smith (No. 2) that “remuneration” included employers’ superannuation contributions. The Act was then amended to exclude these contributions from the definition of “normal weekly earnings”, backdated to 1 January 1987.

Justice Dean Mildren referred two questions to the Full Court of the Supreme Court for determination. These were whether before and whether after the commencement of the amendment, 26 January 2005, it constituted an acquisition of Mr Chaffey’s property inconsistent with section 50 of the Commonwealth Northern Territory (Self-Government) Act. Section 50 provides that the legislative power of the NT Assembly does not extend to the making of laws for the acquisition of property other than on just terms. By majority, the Full Court answered Yes to both questions. The NT Attorney-General intervened in the Full Court proceeding and instituted its own appeal to the High Court. Santos also appealed.

The High Court unanimously allowed both appeals. It held that section 53 of the Work Health Act, which imposes obligations upon employers to make payments to injured workers, is subject to the rest of the compensation scheme set out in the Act’s Part V, as amended from time to time. The method prescribed for quantifying the amount of compensation payable by an employer had not been fixed in permanent form at the date of Mr Chaffey’s injury and was always subject to change. Therefore, there was no acquisition of property and section 50 of the NT (Self-Government) Act had no application to the change made to the Work Health Act. The Court held that both questions should be answered No.

SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 (2 August 2007)

A Lebanese family seeking asylum in Australia should have their case reconsidered by the Refugee Review Tribunal after they were defrauded into not appearing before the RRT, the High Court of Australia has held.

The family arrived in Australia in February 2002. The wife, SZFDE, claimed a well-founded fear of persecution by reason of her published views questioning the position of women in the Islamic tradition. The Immigration Department refused to grant the family protection visas and they sought a review by the RRT. According to the family, Fahmi Hussain represented himself to be a solicitor and licensed migration agent. In fact, the Council of the Law Society of New South Wales had cancelled his practising certificate in December 2001 and the Migration Agents Registration Authority had cancelled his registration in March 2002. He was struck off the Roll of Legal Practitioners in NSW in February 2005. SZFDE paid Mr Hussain $8,400 for him to act for the family and lent him another $5,000. She followed his advice not to accept the RRT’s invitation to attend a hearing. Mr Hussain told her he would instead write to the Minister and that if she appeared at the hearing she may say something conflicting with what he wrote. He also told SZFDE that she would be refused anyway as no visa applications were being accepted. Mr Hussain wrote to the Minister seeking a favourable decision but his requests were rejected.

In October 2003, the RRT affirmed the Immigration Department decision. It noted that SZFDE had not appeared before it and there were matters the RRT would have wished to explore with her. In December 2005, the Federal Magistrates Court upheld the family’s application for judicial review and found that the family had been dissuaded from appearing before the RRT by Mr Hussain’s fraud. It quashed the RRT’s decision and remitted the matter for reconsideration. In October 2006, the Full Court of the Federal Court, by a 2-1 majority, allowed an appeal by the Minister. The family then appealed to the High Court.

The Court unanimously allowed the appeal. It held that on the evidence fraud had been perpetrated on the RRT as well as upon the family. Therefore, the jurisdiction of the RRT remained unexercised and the Federal Magistrates Court was correct to grant the writ of certiorari to quash the RRT’s decision and the writ of mandamus to compel the RRT to redetermine the review of the Immigration Department’s refusal of the family’s visa applications. The High Court held that Mr Hussain’s conduct had the effect of stultifying the operation of the legislative scheme for the review of refugee decisions and denying the family natural justice. The RRT’s redetermination would include a fresh invitation to the family to appear before it.