Thursday, August 26, 2010

Settled: Heperu Pty Ltd v Perpetual Trustees Australia Ltd

In the February special leave run down, I posted about a case which was given leave regarding fraud on bank cheques. The High Court was set to hand down their decision in this matter today, but the parties settled the matter yesterday for a reported $3 million. There were some whispers early on that there might be a settlement, but this is pretty last minute.

The case concerned a fraud which had been perpetrated against a number of individuals including high profile doctor, Dr Barry Landa. Perpetual trustee was a financial institution which was not cognisant of the fraud, but was pursued by Dr Landa for negligence, and conversion or restitution of the cheques. Dr Landa and the other appellants were successful at first instance but this was set aside by the Full Court in the decision of Perpetual Trustees Australia Ltd v Heperu Pty Ltd [2009] NSWCA 84.

Just think of all that restitution jurisprudence being put in the shredder today. Now we'll never know.

Wednesday, August 25, 2010

New HCA Judgment

The High Court handed down one new judgment today:

Cadia Holdings Pty Ltd v State of New South Wales [2010] HCA 27

The High Court allowed an appeal from the Full Court of New South Wales regarding the royalties which are payable upon the mining of copper. The Mining Act 1992 (Cth) provides for different treatment in terms of royalties between “privately owned” and “publically owned” minerals. In England, the Case of Mines (1568) 1 Plowden 310 [75 ER 472] had held that ownership of mined gold was within the royal prerogative. The Appellant in this case mined copper and gold which was commixed in a manner that did not allow for separation until after mining had occurred. The question was whether the prerogative in the Case of Mines has survived in such away that would attach it to the commixed copper being mined. The Court found that the s 3 of the Royal Mines Act 1688 (Imp) 1 Wm & Mar c 30 had displaced the prerogative in a manner that allowed for the copper to be treated as a “privately owned” mineral for the purposes of the Mining Act.

The case is interesting historically, but also contains some contemporarily relevant discussion of the nature of the prerogative and its displacement.

Thursday, August 19, 2010

No Niqāb in the Witness Box

For those following the controversy in Western Australia, District Court Judge Deane today ruled that a woman must remove her Niqāb (Burqa) while giving evidence. The woman had previously requested to wear the Niqāb in evidence because she would feel uneasy being seen without it and she was concerned that this may affect her evidence.

The case relates to the fraud charges against Anwar Sayed, who is alleged to have falsified documents at an Islamic school in order to get increased government grants.

Whether or not a court will permit a person to give evidence with their face covered is always going to be an issue which is dealt with differently by different judges and which to a large degree will turn on its facts. But it would still be interesting to read the reasons. An interlocutory ruling such as this does not usually make its way on to Austlii but hopefully they will make an exception because of the media attention. Although the District Court of WA website says ‘No criminal decisions are available online, due to the risk of publication impacting on an upcoming trial.’

If anyone comes across the reasons please email them through to me.

Wednesday, August 18, 2010

Update: KPMG v Commonwealth

I posted a while ago on this case when it was first before the High Court back in June. It concerns the validity of s 50 of the Australian Securities and Investment Commission Act 2001 (Cth). Without having any precise knowledge of the nature of the dispute I gave some preliminary thoughts on the case. The matter was back in Court on Wednesday last ([2010] HCA 210) and was referred to the Full Court for a November or later hearing.

The transcript doesn’t provide for any better indication of the arguments except that there must be a lot of them. Apparently, the Statement of Claim is 600 pages long and doesn’t quite fit into 6 folders. In the words of Hayne J, “the statement of claim, I think, is properly described as not short”.

Tuesday, August 17, 2010

Electronic Voter Enrolment: Getup Ltd v Electoral Commissioner

Following their victory in the High Court two weeks ago (in Rowe v Electoral Commissioner), which secured the ability of an estimated 100,000 Australians to vote, GetUp! have had another victory. This time the number is not so grand. It’s just one. But it is an important one.

As a part of its policy to foster greater representative democracy, GetUp! created a website called The website allowed people to enroll to vote online using an electronic signature (say, using a touchpad). But earlier this year the Electoral Commissioner told GetUp! that this website would not fly because enrolments had to be signed by hand.

Following this, GetUp! took the ingenious step of shutting down the site from public access and orchestrating a carefully planned test case. 19 year old Sophie Trevitt was handed a laptop and a digital pen in the foyer of the Westin Hotel in Sydney. With a Macquarie Banker watching over to authenticate her signature, Sophie used the digital pen and the Ozenrol site to enrol to vote.

Of course the Commissioner duly denied her registration. But last week in the case of Getup Ltd v Electoral Commissioner [2010] FCA 869, Perram J in the Federal Court set aside that decision and found that her application for registration was “in order”.

His Honour found that the Electronic Transactions Act 1999 (Cth) applied to the Commonwealth Electoral Act 1918 (Cth) and that therefore enrolling on the website was a perfectly acceptable manner of registration.

So in the span of two weeks GetUp! have not only secured a protection for Australians to get more than one day to enrol after an election is announced, but also for us to do it online.

I wonder how wise the High Court were to the fact that electronic enrolment is a possibility when they made their determination that the legislation in Rowe was not “reasonably appropriate or adapted”.

The High Court was told in submissions in Rowe that the second plaintiff, Douglas Thompson, “had tried to enrol online and had been denied”. So they may have assumed that electronic registration was an impossibility (though one would have hoped that one of the parties mentioned the other litigation in their written submissions). It will be interesting to see whether the issue of electronic enrolment gets a mention when the decision in Rowe is handed down.

So, subject to appeals and amendments, we will be looking forward to the site being up and running next election. In any event, it seems the Electoral Commission is still losing its fight with GetUp! to prevent all those pesky Australians from voting.

Tuesday, August 10, 2010

Mathematics News: P ≠ NP

So I’m getting seriously off topic here, but if this verified, this is big news. There are murmurs around the internet that a proof has been found for the P versus NP problem in computer science.

Apparently, P ≠ NP.

This is one of the millennium prize problems so we are dealing with seriously ground breaking stuff. (Here is a pretty basic explanation of the issue.)

And this time it hasn’t been solved by some eccentric Russian recluse (who refused the $1 million prize money) but by a humble HP employee, Vinay Deolalikar.

I imagine that he got some legal advice before sending around the proof because he says in the cover letter: “This work was pursued independently of my duties as a HP Labs researcher...” I hope this is right, because this is definitely not copyright that you want to lose to your employer.

We’ll find out pretty soon whether the proof is verified but in the mean time, some people aren’t convinced.

[UPDATE: The irony of this proof has just occurred to me; whilst it took quite some time for this proof to be computed it may be verified relatively quickly: QED.]

SKA v The Queen transcript

I often think that it must be anticlimactic when you are briefed by a respondent to resist an application for special leave to appeal and the High Court dismisses the application without calling on you. At least, though, you walk home with a win.

But last week in the special leave rundown, I mentioned that the High Court had referred the application for leave to appeal in SKA v The Queen [2009] NSWCCA 186 to an enlarged court. Looking at the transcript reveals that the Court referred the application to the Full Court without calling on the respondent. That’s got to be frustrating.

Some highlights from the transcript ([2010] HCATrans 198):

This exchange between Gummow and Heydon JJ and Tim Game SC brilliantly displays how evidence law can lead you straight down the rabbit hole.

GUMMOW J: [discussing evidence of a video] Are you saying the evidence is therefore more than what was said?

MR GAME: The evidence is more than what was said, yes. The evidence is what was said and what was seen.

GUMMOW J: So there is real evidence, in other words. Is that the idea?

MR GAME: Yes, your Honour, it is - - -

HEYDON J: Technically, the video is the evidence and the transcript is merely an aid to understanding.

MR GAME: That is right, yes. Even the video is not evidence. It is the sounds and pictures that you see.

HEYDON J: It is the experience of looking at it.

And – I know I’m immature but – either there is a transcription error or Gummow J thinks Tim Game is a woman:

GUMMOW J: Yes, Ms Game.

MR GAME: If the Court pleases…

The phrase “if the Court pleases” takes on a whole new meaning.

Monday, August 9, 2010

Catchwords return

As quietly as they left, the catchwords have returned to the two latest judgments handed down on Wednesday. I like to think that the CJ was influenced by the intense political pressure of my blog post back in July.

[hat tip to Patrick.]

Friday, August 6, 2010

Sycophantism Will Get You Everywhere

Following the decision in Rowe this afternoon, I guess this wasn't enough to get Mr Solicitor over the line. From Rowe v Electoral Commissioner [2010] HCATrans 204:

MR STEPHEN GAGELER SC: That was a point well made by your Honour Justice Hayne in Roach itself at paragraph 172 in dissent, but no worse for that.

HAYNE J: I am not sure that is right, Mr Solicitor. You can flatter one of us, but you have got to flatter all seven of us simultaneously.

MR GAGELER: I am working my way through the list, your Honour.

Electoral Act Provisions Invalid: Rowe v Electoral Commissioner

This post could be called “Electoral Act Provisions Invalid: I was wrong”. This morning I predicted that the restrictions on the enrolment to vote presented by the Howard era amendments to the Electoral Act would not be sufficient to invalidate the legislation as an unconstitutional limitation on the democratic process required by the Constitution.

Apparently, I was wrong. The High Court today found by majority that the legislative provisions are invalid (reserving their reasons). This means that the reasons, when they are published, will be far more interesting than I expected. This is because, whereas in Roach v Electoral Commissioner the Court considered the extent to which Parliament may prevent people from voting, this decision will need to articulate more precisely the extent to which Parliament may make it difficult for a person to vote. It will have to be a very interesting decision.

(Hopefully this is not the beginning of a “(colon) I was wrong” string of posts.)

Decision in Rowe v Electoral Commissioner Expected Today

As I predicted last week, the High Court has indicated that it will make orders regarding the validity of the impugned provisions of the Electoral Act by Midday today. Obviously they will reserve their reasons for whatever ruling they make.

For what its worth I would be surprised if the challenge were successful. Drawing on Roach v Electoral Commissioner, determining the validity of legislation which inhibits the constitutional requirement for democratic elections requires a balancing process to determine the appropriateness of the restriction. The principal problem in Roach was that even people with relatively minor crimes might be prevented from voting. This made the restriction somewhat arbitrary, as the restriction was not sufficiently connected to the seriousness of misconduct.

But here we have a regime which makes it difficult (and perhaps in some cases practically impossible) for a person to register to vote after an election has been called, due to the tight timeline for registration. The chief problem as I see it is that, to some extent, this primarily affects those people who have left registration till the last minute (whilst there are no doubt many people who celebrate their 18th birthday on the day that the writs for the election are issued, those people would still have been able to register to vote from the time they were 17).

There is little doubt that the Court will find that there is a limit to the restrictions that the Parliament can put on registration for voting - so much can be garnered from Roach - but given that prudent citizens can ensure their registration under this regime I don't think this is a case where the Court will find the restriction to be unconstitutional.

[[UPDATE: 5/8/10 I was wrong. See post here.]]

Thursday, August 5, 2010

Protest in the High Court

So I am away from my desk for one day and the High court has its most interesting day in months.

In addition to the two judgments handed down, the Court had its first day of hearing in Rowe v Electoral Commissioner. But before the matter was called on for hearing, apparently a protester got up and began yelling about the injustice of it all; jumping from bar table to bench before being dragged out by court staff. Papers are saying the man was wearing a "Liberal shirt" but it is unclear whether he was associated with GetUp!, who are supporting the challenge.

Too bad it didn't get on the transcript.

[[UPDATE: 5/8/10: Decision Handed Down. See post here.]]

New HCA Judgments

The High Court handed down two new judgments yesterday (sorry for the late post):

Aktas v Westpac Banking Corporation Limited [2010] HCA 25

This was a defamation action against Westpac who had erroneously returned 30 of the appellant’s cheques to the bearers as dishonoured. Westpac had succeeded in the courts below on the defence of qualified privilege. French CJ, Gummow and Hayne JJ (Heydon and Kiefel JJ dissenting) allowed the appeal holding that there was not the requisite reciprocal interest in the subject matter to make out a defence of qualified privilege. The case emphasises the importance of the interest of the receiver of the defamatory imputation in determining reciprocity of interest.

CGU Insurance Limited v One.Tel Limited (In Liquidation) [2010] HCA 26

The insurer of one of the former directors of the collapsed One.Tel Limited, sought to avoid an insurance policy by which they may be liable to indemnify a $20m settlement against the former director.
This case deals with whether a cause of action which has been assigned under a Part X Bankruptcy Agreement, can continue to be enforced by the assignee after the Part X Agreement has been terminated (by expiry of time). The Court unanimously allowed the appeal and held that the assignee had a continuing right to maintain the action which subsisted outside of the Part X Agreement.
There is also consideration of whether it could be said that the insured has actually suffered “loss” (capable of indemnity by the insurer) when the settlement is the subject of a moratorium under the Part X agreement.

Tuesday, August 3, 2010

Deadlines in the High Court

Rowe v Electoral Commissioner [2010] HCATrans 182

HAYNE J: Now, I know that timetable is very tight, but I think if the matter is to be prepared properly, there is nothing for it but to begin the timetable on the Friday. Now, that would mean that 4.00 pm Friday would be an absolute drop dead deadline for your side’s submissions. Can that be done?

MR MERKEL QC: Yes, your Honour. The words “drop dead” have a certain incentive about it to make sure that it is done, your Honour.

HIS HONOUR: That is the intention, Mr Merkel.

Sunday, August 1, 2010

July Special Leave Rundown

Eight cases were given special leave to appeal (or referred to the Full Court) on Friday, they were:

Minister for Immigration & Citizenship v SZGUR [2010] FCA 171

This case relates to the rejection by the Refugee Review Tribunal of an application for a protection visa by a Nepalese national. The principal dispute is whether the Tribunal gave sufficient consideration to a serious request by the appellant for a medical examination, in order to show that inconsistencies in the appellant’s evidence can be explained by depression and bipolar disorder.

SKA v The Queen [2009] NSWCCA 186
(The case was referred to an enlarged court for hearing of the leave application with the appeal.)

The appellant was convicted of charges relating to sexual acts against a child. Before the Court of Criminal Appeal, the issues related to the regard that an appeal court should have to evidence of a complainant given by video, as apposed to the transcript of that evidence. There was also consideration of general approaches to sentencing.

R v Glyn Jones; R v Anthony Hili [2010] NSWCCA 108
(The case was referred to an enlarged court for hearing of the leave application with the appeal.)

This is another case arising from the ‘Project Wickenby’ crack down on an offshore tax rort (see also Hogan v ACC). Two men who pleaded guilty to involvement in the scheme had their sentences increased by the CCA as inadequate. The case raises sentencing principles specific to white-collar “revenue offences”, including the relevance of cooperating with authorities.

Jeffrey Braysich v The Queen [2009] WASCA 178

This appeal is brought by former stockbroker Jeffrey Braysich who was notoriously charged for wash trading in Western Australia. The case considers the relevant mental element that must be satisfied for an offence of creating a false or misleading appearance of active trading in securities.

Derryn Hinch v Detective Senior Constable Hogan

I posted on this case when it was first foreshadowed. Derryn Hinch is, again, going to the High Court in order to avoid contempt proceedings. This time, Hinch’s contempt charges relate to the breaching of suppression orders in relation to sex offenders. Hinch argues that the legislation providing for the suppression of sex offenders is an unconstitutional restriction on the open court and principles of open justice.

The Queen v Nguyen [2010] VSCA 23
(The case was referred to an enlarged court for hearing of the leave application with the appeal.)

The appellant had his convictions for murder and attempted murder quashed and an acquittal entered by the Court of Appeal on the ground that no jury, acting reasonably, could have been satisfied of his guilt. The case raises consideration of the elements of aiding and abetting a crime.

Stubley v The State of Western Australia [2010] WASCA 36

The appellant is a psychologists who was charged with rape of two patients with whom he had sexual encounters at his practice over several years. There is no evidence of threats of violence and the defence case was that the fact that the patients continued to return and engage in the sexual acts displayed tacit consent. The appeal considers whether the trial Judge erred by allowing evidence of other patients who, although not the subject of the charge, alleged similar activities against the accused. Hopefully this case will provide greater certainty to uncharged acts than that provided by the epic decision of HML v The Queen.

Kuhl v Zurich Financial Services Australia Ltd [2010] WASCA 50

This is a case of an industrial accident in which the appellant lost his arm. The case raises issues of duty of care and reasonable foreseeability in situations in which there are employees of several companies (including contractors and subcontractors) working on a particular site. The primary issue deals with whether a labour hire company who provided workers to the site, owed a duty of care to an employee of another company on the site.
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