Tuesday, February 23, 2010

What starts to happen when retirement approaches…

Last week I posted on Kirk (here and here).

I really didn’t mention much of Heydon J’s separate reasons. And for good reason. Besides the disagreement on the proper orders, they don’t really add any to the law. But they do provide some relatively well written (though lengthy) meanderings on ‘pet peeves’ of Heydon J, which read like a CPD entitled ‘Advocacy: Tips for Young Players’. I thought I’d reproduce the relevant paragraphs because it gives an interesting window into what’s happening inside Heydon J’s head. There were three main topics: evidence in chief; the meaning of ‘forum shopping’; and the problem with specialised tribunals. (Warning: they are lengthy.)

1. First, on the importance of evidence in chief (at [117]):

It would be wrong to do what the prosecution in this Court did not do – to treat the fact that Mr Kirk was called by the prosecution as a mere technicality of which the appellants have been able to take an adventitious and unmeritorious advantage at a late stage in these proceedings. The credibility of a witness in the position of Mr Kirk in relation to the defence under s 53 of the Occupational Health and Safety Act 1983 (NSW) ("the OH&S Act") is capable of being affected by the manner in which the testimony is elicited. The law grants considerable power to a cross-examiner to employ leading questions and otherwise to operate free from some of the constraints on an advocate examining in chief. It does so for particular reasons. In New South Wales at least, normally in a criminal case an advocate cross-examining an accused person will have had no contact with the witness being cross-examined before the trial, and will have no instructions about what that witness will say, apart from whatever the witness said to investigating officials acting on behalf of the State or to other persons to be called as witnesses in the prosecution case or in documents to be tendered in that case. But a cross-examiner's ordinary powers are, in a practical sense, much diminished when the witness being cross-examined is the client of the advocate conducting the cross-examination. The cross-examiner who persistently asks leading questions of a witness in total sympathy with the interests of the cross-examiner's client is employing a radically flawed technique. The technique is the more flawed when the witness is not merely in total sympathy with the client, but actually is the client. For an inevitable appearance of collusion between an advocate and a client who had many opportunities for pre-trial conferences is suggested by the persistent use of leading questions in these circumstances. It is an appearance which is likely to be ineradicable, and which is likely to cause the value of the evidence to be severely discounted. This risk is avoided if the client is giving the evidence in chief rather than under cross-examination, for the client's advocate is severely restricted in the capacity to ask leading questions in chief. Judging the credibility of a witness in the box can depend on the trier of fact making an assessment of that witness's whole character. It is a process assisted by knowing as much about the witness's character as possible. The credibility of testimony is often enhanced, and the assessment of credibility is assisted, when the testimony is given in answer to non-leading questions. Testimony given in answer to non-leading questions is the witness's own testimony, resting on the witness's own perceptions, and moulded by the witness's own values. It is not something created by the narrow, specific and carefully crafted leading questions of an advocate concerned to shield the witness's character as much as possible. On some issues in the trial in this case the prosecution bore the legal burden of proof, but on the vital s 53 issue Mr Kirk and the Kirk company bore the legal burden of proof. It would have been asking too much of human nature to have expected counsel for the prosecution to have elicited evidence from Mr Kirk on issues exclusive to the s 53 defence. That task thus lay with counsel for Mr Kirk and the Kirk company. It is a task one would expect to have been more satisfactorily accomplished from the defendants' point of view if it were done by an advocate not able to make extensive use of leading questions.

2. Secondly, if you ever wanted the legal definition of ‘forum shopping’ (at [121]):

One ground which the Full Bench assigned for not making a wider grant of leave was that the appellants' first application to the Court of Appeal, which caused the delay in the application to the Full Bench, was "forum shopping". That is an expression which the Full Bench used several times and which it borrowed from the submissions of counsel for the prosecution. The expression "forum shopping" is commonly used to describe the conduct of litigants who seek to choose among different jurisdictions, whether the courts of different nations (for example, France or New Zealand) or different states or provinces (for example, New South Wales or Victoria) or different law-districts (for example, England or Scotland) or, in a federation, a federal court exercising federal jurisdiction rather than a State court exercising State jurisdiction (for example, the Federal Court of Australia or a State court). It seems inappropriate so to describe the conduct of litigants who, aggrieved by the decision of a court of New South Wales, attempted to remedy their grievance by making an application to the highest courts in New South Wales, the Court of Appeal and the Court of Criminal Appeal. Provided there was not in place any valid legislation precluding that application, the course does not seem to be correctly describable as "forum shopping". To describe it as "forum shopping" is to treat the Court of Appeal as if it were akin to a weak early feudal monarch whose writ does not run to the demesne of a powerful territorial magnate, and to treat the Full Bench as that magnate. It is to treat the Full Bench as if it were the only proper forum, and to treat the Court of Appeal as a court which, if it has jurisdiction at all, is a most unworthy receptacle of it. It approaches an assertion of exclusive dominion over the fields within its jurisdiction. A court below the Court of Appeal in the appellate hierarchy of New South Wales courts is not in a different "forum" from the Court of Appeal. Nor is a court controllable by that Court through orders in the nature of prohibition, mandamus and certiorari on grounds of jurisdictional error.

The Full Bench thus appears to have operated, or accepted submissions which operated, under a misconception about the structure of the courts which sit in New South Wales. For just as this Court sits at the pinnacle of a single integrated system of courts, the Court of Appeal (or, depending on the subject-matter, the Court of Criminal Appeal) sits at the pinnacle of the system of courts in New South Wales. This misconception in relation to "forum shopping" underlies the expressions that the Full Bench employed when it spoke of the appellants' attack on s 179 of the IR Act as "merely a device to circumvent the likelihood of the Court of Appeal declining to hear the [appellants] from the outset" and when it said the appellants "felt" that "they had a better chance in another forum." The Full Bench also gave as a ground for its refusal to extend time the "settled" nature of the case law in the Industrial Court applied by the trial judge. Whether settled in that Court or not, an attempt to have a court with power to control the Industrial Court examine its merits should not have been the subject of pejorative language. The attempt was not appropriately described as "forum shopping", or as tainted by the use of "devices", or as an appeal to "chances".

3. And finally, a critique of specialised tribunals ,which is really a thinly veiled twist of the knife to the Industrial Court (at [122]):

Our legal system has often had to balance the advantages of creating specialisation over the disadvantages of doing so. It is commonly thought better, for example, that allegations of crimes be tried by judges expert in criminal law and procedure. The same is true, mutatis mutandis, of company work, bankruptcy, personal injury claims, planning law and many other categories of litigation. Sometimes the legislature elects to create separate courts for the particular litigation. Sometimes it creates separate divisions within a court. Sometimes it leaves it to the courts themselves to create appropriate lists, the precise nature of which may readily be changed from time to time. A writer in the late 20th century said:
"History teaches us to be suspicious of specialist courts and tribunals of all descriptions. They are usually established precisely because proceedings conducted in accordance with normal judicial standards of fairness are not producing the outcomes that the government wants. From the Court of Star Chamber to the multitude of military courts and revolutionary tribunals in our own century, this lesson has been repeated time and time again."
However that may be, the appellants referred in submissions to the danger of conferring jurisdiction to hear criminal proceedings on courts the practitioners in which are unfamiliar with all the relevant rules. There is a related danger in that course in that the courts on which the jurisdiction has been conferred, while in some sense specialist, are not familiar with all the relevant rules. Thus a major difficulty in setting up a particular court, like the Industrial Court, to deal with specific categories of work, one of which is a criminal jurisdiction in relation to a very important matter like industrial safety, is that the separate court tends to lose touch with the traditions, standards and mores of the wider profession and judiciary. It thus forgets fundamental matters like the incapacity of the prosecution to call the accused as a witness even if the accused consents. Another difficulty in setting up specialist courts is that they tend to become over-enthusiastic about vindicating the purposes for which they were set up. Medical students usually detect in themselves at a particular time symptoms of the diseases they happen to be studying at that time. Academic lawyers interested in a particular doctrine can too often see it as almost universally operative. So too courts set up for the purpose of dealing with a particular mischief can tend to exalt that purpose above all other considerations, and pursue it in too absolute a way. They tend to feel that they are not fulfilling their duty unless all, or almost all, complaints that that mischief has arisen are accepted. Courts which are "preoccupied with special problems", like tribunals or administrative bodies of that kind, are "likely to develop distorted positions." … It may be that something like this underlay the process by which the Industrial Court adopted the construction of ss 15, 16 and 53 of the OH&S Act which the majority have rejected, and failed to notice the closely related difficulty of the unsatisfactory way the charges were pleaded.

Ouch, Heydon J, a simple “appeal allowed” would have sufficed.

Monday, February 22, 2010

Arnold v Minister Administering the Water Management Act 2000

Arnold v Minister Administering the Water Management Act 2000 [2010] HCA 3
Majority: French CJ, Gummow, Hayne, Crennan, Kiefel
and Bell JJ
Dissent: Heydon J
Decision: Appeal dismissed

Commonwealth provided a State with a financial grant which required the State to pass legislation cancelling licenses for access to bore water held by the appellant. Appellants argued that both the Cth legislation and the funding agreement were invalid because they abridged the appellants’ right to “reasonable use of the waters of rivers” under s 100 of the Constitution. The Court found that there was no invalidity because bore water did not meet the definition of “waters of rivers” under the Constitution.

The appellants held bore licences in the Lower Murray in New South Wales under the Water Act 1912 (NSW) that were superseded with aquifer access licences under the Water Management Act 2000 (NSW). The appellants’ entitlements were less under the new aquifer access licences.

Under the Water Act the appellants’ bore licences were subject to change from the time they were granted. The Water Management Act provided for the Minister to determine water management policies and allowed the Minister to convert previous water licences to new licences under new terms as provided for under the Act.

In 2004 the Commonwealth and the each of the States and Territories (except Western Australia) entered the Intergovernmental Agreement on a National Water Initiative which providing for the creation of a National Water Commission. The agreement included objectives relating to water management in the Murray-Darling Basin. As a result of this and corresponding agreements, the NSW Government accepted Commonwealth funding ($55 million) to reduce the allocations of groundwater licences in the Lower Murray region using the powers of the Water Management Act. The Commonwealth funding was intended to help assist the NSW Government in offsetting the impact to licence holders. Commonwealth funding was administered through the National Water Commission under the National Water Commission Act 2004 (Cth).

The appellants challenged the removal and replacement of their licences on the basis that:
  • The replacement of their water licences by the Government of NSW as the result of funding by the Commonwealth, was an acquisition of property not on just terms in breach of s 51(xxxi) of the Constitution.

51 Legislative powers of the Parliament

The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:
(xxxi) the acquisition of property on just terms from any State or person
for any purpose in respect of which the Parliament has power to make laws;

  • The funding by the Commonwealth is a “regulation of trade or commerce” which is in breach of s 100 of the Constitution.
100 Nor abridge right to use water

The Commonwealth shall not, by any law or regulation of trade or commerce, abridge the right of a State or of the residents therein to the reasonable use of the waters of rivers for conservation or irrigation.
Note: Arnold was heard immediately after ICM Agriculture Pty Ltd v The Commonwealth [2009] HCA 51. ICM revolved around an analogous factual situation to those in by Arnold. In ICM the High Court (6:1) ruled that the cancellation of bore licences and issuing of aquifer access licences with a reduced quota (under the same federal funding scheme), did not constitute an acquisition of property within the meaning of s 51 (xxxi).



s 51(xxxi)

The majority summarily dismissed the appellants claims that there had been an acquisition of property that fell within the confines of s 51(xxxi), referring directly and without further comment to the reasoning in ICM: at [3] per French CJ; at [48] per Gummow and Crennan JJ; at [72] per Hayne, Kiefel and Bell JJ.

s 100

The majority granted special leave but dismissed the appeal. The majority chose not to reassess the law in Morgan v Commonwealth [1947] HCA 6, namely that s 99 and s 100 of the Constitution applies only to laws being made under s 51(i). There was no need however for the Court to be pulled into an assessment of Morgan, given that the matter could be decided narrowly under the interpretation of ‘waters of rivers’ as per s 100. The majority determined that the Commonwealth law pertained to underground water only, rather than ‘waters of rivers’ and was therefore not within the scope of s 100: at [29] per French CJ; at [55] per Gummow and Crennan JJ; at [75] per Hayne, Kiefel and Bell JJ.


Justice Heydon, as he had in ICM, found that the substitution of bore licences for aquifer access licences was invalid. In ICM Heydon J found that the bore licences were proprietary in nature and attracted the protections of s 51(xxxi); and as such the National Water Commission Act 2004 (Cth) was invalid as it allowed the acquisition of property by NSW on other than just terms. Justice Heydon referred solely to his reasons in ICM in his judgment in favour of the appellants: at [81]. His Honour found no reason to explore the merits of the appeal concerning s 100 because doing so would ‘not result in substantive orders more favourable than [restoring the original bore licences]’: at [83]


The Court has shown no interest in expanding upon their 2009 decision in ICM concerning s 51(xxxi). Given the Courts ruling in ICM it seems unlikely that Arnold would have been allowed special leave if the appellants sought to rely solely on s 51(xxxi). As Arnold was intended to be read in conjunction with ICM I will endeavour to post a summary shortly as it contains some interesting law.
It is unclear to me whether the French Court would be inclined to re-examine Morgan given another, better suited opportunity. From my reading the French Court is not eager to do so, but that said, not necessarily opposed to it either.

Arnold contains several important policy and political consequences. To my mind, if the appeal were to have been allowed, it would diminish the ability of the Commonwealth Government to take steps, through the provision of funds to the States and Territories, to attempt to alleviate the pressures on water resources. I make no comment as to the desirability of such a policy. Rather I only acknowledge that water resource management, especially in the Murray-Darling is a contemporary political and environmental issue.

Thursday, February 18, 2010

State Privative Clauses, Certiorari and Kirk

I posted about Kirk yesterday. In the interests of brevity I couldn’t go into the important issue of state privative clauses as much as I would like but I thought I would reproduce the following paragraph of the majority's reasons as it summarises the Court’s decision in relation to the administrative law questions quite well. In summary, certiori was ordered because (at [55]):
(a) Both errors of law appear in the reasons of Walton J.

(b) Both errors therefore appear "on the face of the record" as that expression must be understood in the light of s 69(3) and (4) of the Supreme Court Act 1970 (NSW).

(c) Both errors are jurisdictional errors.

(d) Chapter III of the Constitution requires that there be a body fitting the description "the Supreme Court of a State".

(e) It is beyond the legislative power of a State so to alter the constitution or character of its Supreme Court that it ceases to meet the constitutional description.

(f) A defining characteristic of State Supreme Courts is the power to confine inferior courts and tribunals within the limits of their authority to decide by granting relief in the nature of prohibition and mandamus, and, as explained further in these reasons, also certiorari, directed to inferior courts and tribunals on grounds of jurisdictional error.

(g) If a court has limited powers and authority to decide issues of an identified kind, a privative provision does not negate those limits on that court's authority.

(h) A privative provision in State legislation, which purports to strip the Supreme Court of the State of its authority to confine inferior courts within the limits of their jurisdiction by granting relief on the ground of jurisdictional error, is beyond the powers of the State legislature. It is beyond power because it purports to remove a defining characteristic of the Supreme Court of the State.

(i) Construed against this constitutional background, s 179 of the IR Act does not (and could not validly) exclude the jurisdiction of the Supreme Court of New South Wales to grant relief in the nature of prohibition, certiorari or mandamus directed to the Industrial Court for the purposes of enforcing the limits on that Court's statutory authority. In particular, the privative provisions of s 179 do not, on their proper construction, exclude certiorari for jurisdictional error.

(j) In determining whether the errors of law that were made by Walton J permitted the grant of relief in the nature of certiorari, statutory identification of the Industrial Court as a "superior court of record" is irrelevant.

Wednesday, February 17, 2010

Kirk v Industrial Relations Commission

Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1

Majority: French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ (Heydon J concurred but dissented on the form of the orders)
Decision: Appeal allowed.

An employee was killed in an accident on a farm, owned and operated by the defendants. The defendants, as the employer of the deceased, were charged and convicted in the Industrial Court (IC) with failing to “ensure the health, safety and welfare” of its employees under the (old) NSW OH&S legislation. The Court found that two errors were made by the Industrial Court:
1. the IC erred in recording a conviction because the charge failed to adequately set out what steps the defendant should have taken to avoid injury;
2. the IC erred in recording a conviction because the defendant had been called as a witness for the prosecution.
The Court found that both of these errors were ‘jurisdictional errors’ and ‘errors on the face of the record’. Accordingly, the Court made orders in the nature of certiorari quashing the decision in the IC. The Court found that State legislation cannot validly prevent the Supreme Court from reviewing a decision for jurisdictional error as to do so would be attempting to prevent the Supreme Court from acting as a superior state court as protected in the Constitution.

Mr Kirk, through his company, owned a farm on which an employee died in an accident. The accident occurred when the employee, for reasons unknown, took an ATV off the usual road and down a hill.

The company and Mr Kirk (the Appellants) were charged and convicted in the Industrial Court (IC) under the NSW OH&S legislation (the Act) for failing to “ensure the health, safety and welfare at work of all the employer's employees”. By agreement between the defendant and the prosecution, Mr Kirk was called as a witness for the prosecution at trial.

The Appellants sought orders in the nature of certiorari quashing the orders of the IC.

Section 179 of the Industrial Relations Act 1996 (NSW) contained a privative clause which prevented any appeal or review of a decision of the IC.

Inadequacies of the Charges

The Defendants were charged under the (now repealed) ss 15 and 16 of the Act. Section 15 referred to the employer having a “duty” to “ensure the health, safety and welfare at work of all the employer's employees”. Section 16 conferred on the employer a duty to “ensure that persons not in the employer's employment are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they are at the employer's place of work.”

There was a defence to these charges in s 53 if the employer could show that “it was not reasonably practicable for the person to comply with the provision of [the Act] the breach of which constituted the offence”.

As has been the practice of such prosecutions for many years, the charges that were laid, although some particulars were provided, generally merely repeated the language of the statutory duty and alleged a breach (at [22] and [24]). That is, the charges alleged a failure to “ensure” the safety of particular individuals, but did not state any particular measure that the defendants should have taken in order to ensure that safety.

The Court found that this was not adequate. They repeated the warnings on the formulation of charges, saying (at [14]) “[a] statement of an offence must identify the act or omission said to constitute a contravention of s 15 or s 16.”

Ultimately, the Court said that the prosecution cannot merely allege a breach of duty for this offence, it has to state what steps should have been taken in order to satisfy the duty. The Court concluded:
[27] The statements of the offences as particularised do not identify what measures the Kirk company could have taken but did not take. … Needless to say, the appellants could not have known what measures they were required to prove were not reasonably practicable. …
[38] A consequence of the matter proceeding to conviction on the charges as stated, absent the identification of measures the Kirk company should have taken, was that it was denied the opportunity to properly put a defence under s 53(a).
Accordingly, the charges were defective.

Calling of Mr Kirk

Section 17 of the Evidence Act 1995 (NSW) provides that the defendant is not competent as a witness for the prosecution, and this cannot be waived by the parties (at [51]). Accordingly, the Court also found that allowing the defendant to be called as a prosecution witness was an error.

Grounds for Certiorari

The Court said that the NSW Court of Appeal should have made an order in the nature of certiorari as there was either a “jurisdictional error” or an “error on the face of the record”.

Jurisdictional Error

The Court found that both the error regarding the charges and the error regarding the calling of Mr Kirk were jurisdictional errors.

The Court said that the IC had no jurisdiction to convict and sentence the defendants on the charges as there had not been any articulation, “at any point”, of the particular act or omission that was the subject of any charge. The IC cannot make an order recording a conviction when an offence under the Act has not been proved (at [74]-[75]).

In relation to the error regarding the calling of the defendant, the Court indicated that the IC only had jurisdiction to order a conviction following proof in a trial which is conducted according to the rules of evidence. It said that not all evidentiary errors will amount to a jurisdictional error, because the parties can generally be seen as having impliedly permitted departure from the rules of evidence. However, the parties could not waive the rule that the defendant cannot be called as a witness for the prosecution, and the IC therefore has no power to permit that to occur. Accordingly the IC fell into jurisdictional error by ordering a conviction in the absence of a trial conducted according to the rules of evidence (at [53] and [76]).

Justice Heydon did not even commit to the view that all departures from the rules of evidence that cannot be waived will be a jurisdictional error (at [114]).

Error on the Face of the Record

NSW legislation provided for the Supreme Court to make orders in the nature of certiorari for “errors on the face of the record” and specifically extended the “record” for that purpose to include reasons for decision. Accordingly, the Court said, “[t]he decision in Craig confining the extent of the record of an inferior court does not apply”. That meant that the reasons for decision of the IC were part of the record and, because the two errors above appeared in those reasons, each was an error on the face of the record.

State Privative Clauses

The Court found that the legislation which sought to prevent any review of a decision of the IC did not extend to prevent the Supreme Court from making an order in the nature of certiorari for a jurisdictional error.

The Court considered the role of the Supreme Court in the context of its inclusion in Ch III of the Constitution. It said that the role of the Supreme Court as a supervisor of the exercise of state power is guaranteed under the Constitution and accordingly, it is not within the power of a state legislature to pass a law which restricts the Supreme Court’s ability to order certiorari for a jurisdictional error (at [100]).

In any event the relevant legislation in this case was interpreted, on a proper construction, as not extending to purported decisions of the IC, in the sense of decisions which are outside jurisdiction (see [103]-[104]).

Accordingly, the privative clause did not prevent an order in the nature of certiorari for the errors of the IC. The Court quashed the orders of the IC.


Some blawgs and newspapers have tended to concentrate on the way this case affects OHS&W prosecutions. For me, although this case is a good example of the difficulties in charging criminal omissions (rather than acts), by far the most interesting discussion in this case relates to the availability of an order in the nature of certiorari.

It is difficult to briefly state all the issues that are raised here so I will just set out a few matters that struck me in particular.

The Court confirmed the distinction between the two bases for certiorari of “error on the face of the record” and “jurisdictional error” (at [80]). The relationship between these two errors was considered and it was concluded (at [56]):
The decided cases reveal a degree of uncertainty about both what is the "record" on the face of which error must appear, and what is meant by "jurisdictional error". Moreover, allowing the one remedy on two different bases may suggest the existence of some singular unifying principle underpinning both grounds. But no principle can readily be identified that would unify or explain both grounds.
The difficulties in defining and identifying jurisdiction error were conceded by the Court and it declined to give any definitive test for what is a jurisdictional error. The Court seemed to prefer an approach that incorporates the public policy which governs the concept of jurisdiction in this context, whilst observing that jurisdiction of a body is always to be determined by reference to the statute that establishes it (at [72]). Indeed, the Court seemed to approve of the view that the determination of what is a jurisdictional error may be determined by reference to matters such as the seriousness of the error, rather than the type of error.

So why is this important? Because the Court said that it is these enigmatic notions of jurisdiction that draw the contours of the legislative power of our state parliaments to restrict review of decisions (at [100]):
This is not to say that there can be no legislation affecting the availability of judicial review in the State Supreme Courts. It is not to say that no privative provision is valid. Rather, the observations made about the constitutional significance of the supervisory jurisdiction of the State Supreme Courts point to the continued need for, and utility of, the distinction between jurisdictional and non-jurisdictional error in the Australian constitutional context. The distinction marks the relevant limit on State legislative power. Legislation which would take from a State Supreme Court power to grant relief on account of jurisdictional error is beyond State legislative power. Legislation which denies the availability of relief for non-jurisdictional error of law appearing on the face of the record is not beyond power.
This decision is, in my opinion, a further example of what the French Court (no doubt with some strong encouragement from Gummow J) perceives to be the role of the Supreme Courts in the Australian Constitutional system. The confirmation and expansion of notions that the Constitution expands below the Federal level and that it permeates all operations of law in Australia are traits for which I think this court will be remembered.

Monday, February 15, 2010

Mandurah Enterprises Pty Ltd v Western Australian Planning Commission

Mandurah Enterprises Pty Ltd v Western Australian Planning Commission [2010] HCA 2 (3 February 2010)


Majority: French CJ, Gummow, Crennan and Bell JJ

Separate judgment: Hayne J (differed on question of relief granted)

Decision: Appeal allowed in part.

Appellants submitted that the compulsory acquisition of certain lots of land by the Western Australian Planning Commission (“WAPC”) was invalid and of no effect because the relevant taking order was made ultra vires. The WAPC argued that the taking order was a valid exercise of power under the Land Administration Act 1997 (“Land Act”) and the Planning and Development Act 1928 (“Planning Act”). The majority held that the taking order was valid in respect of the reserved portions and invalid in respect of the zoned portions. Though not deciding the issue, the Court suggested that the common law principles of severance may be applied to executive orders which purport to effect certain acquisitions, some of which are valid and some of which are invalid.


The Appellants owned four lots of land the subject of compulsory acquisition by the WAPC. WAPC acquired the land as a result of a taking order issued under s 177 of the Land Act. The taking order identified the purpose for which the lots were taken as “Railways” and “Primary Regional Roads” [6] with the intention to develop the South-West Metropolitan Railway over portions of each of the Appellant’s lots, two of which were to become landlocked and lack access by public road and thus require the installation of crossings as a result of the construction of the railway [38].

The lots in dispute were each located in the Peel Regional Scheme (“PRS”) and, to varying degrees, were reserved for primary regional roads. Lots 7, 8, and 30 were partially reserved and the whole of lot 49 was reserved. “Reserved land” under the PRS is land reserved for a public purpose, which includes, relevantly, primary regional roads and railways [23]. The unreserved portions of lots 7 and 8 were zoned “urban” and the unreserved portion of lot 30 was zoned “industrial”.

In the Court of Appeal (WA), it was held that the taking order as it related to the zoned portion of lot 30 was invalid as it was taken on the mistaken belief that the railway to be constructed would prevent access to the unreserved portion via a public road and thus require the construction of level crossings. Further, it was held the zoned portion of lot 30 was incapable of being used for the purpose for which it was taken (i.e., railway purposes). These findings were not in dispute at the High Court. As such, the issues to be decided in these proceedings with respect to lot 30 related solely to the issue of severance, which is discussed below.


The two main issues for the Court to decide centred on whether WAPC lawfully exercised its power to acquire the lots and whether an invalid taking was capable of being severed from valid takings under the same taking order without infecting the validity of the order in its totality.


The Court held that the Planning Act was the source of power of the taking order as it purported to cover the parts of the lots that were reserved under the PRS. [41]

Further, the Court decided that the taking of the reserved portions of lots 7, 8 and 30 and the whole of lot 49 was valid under s 13 of the Planning Act and the taking of the zoned portions of lots 7, 8 and 30 was invalid and not authorised by the Planning Act or the Land Act. [41]

In regard to the lots reserved under the PRS for “Primary Regional Roads”, the Court held that s 13 of the Planning Act clearly permitted the taking of land “for the purpose of a town planning scheme”. Finding that the PRS was a town planning scheme for the purposes of the Planning Act, the Court held that the compulsory acquisition of lot 49 and the reserved portions of lots 7, 8 and 30 were for the purpose of the PRS and therefore within the power conferred by s 13 of the Planning Act. [34]

However, the Court held that the taking of the zoned (unreserved) portions of lots 7, 8 and 30 was invalid and the taking order was not authorised by the s 13(1)(b) of the Planning Act or s 161 of the Land Act. The Court reasoned that the compulsory acquisition of the zoned portions of lots 7, 8 and 30 was not for the purposes of the PRS and therefore the taking of them was beyond the power granted under s 13(1)(b) of the Planning Act.

Further, the Court accepted the appellants’ submission that the taking of the zoned portions of lots 7, 8, and 30 was not for railway purposes, but simply to avoid the statutory duty under s 102 of the Public Works Act 1902 to construct rail crossings: “Acquiring land for the purpose of avoiding the construction of a level crossing is patently not acquiring land for the purpose of a railway or for purposes incidental to the undertaking of, construction or provision of a railway”. [40]


In regard to “severance”, the Court decided that in light of the relief ordered in its findings it was unnecessary to determine this issue finally. [48] However, the Court did indicate that the principle of severance might be applied in cases of the compulsory acquisition of lands where there were different lots.

Hayne J:

Hayne J agreed generally with the majority but disagreed as to the relief that should be granted. In particular, his Honour did not accept that the taking order should be described as being “valid” or “invalid” as to part of the order [58]. In other words, the taking order could be “valid” or “invalid”, not partially valid as it related to the reserved portions of the lots and partially invalid as it related to the unreserved parts of the lots. Using these terms in this way, his Honour considered, presented “no little danger that the use of the language of validity and invalidity may mislead” [61].

Accordingly, his Honour made orders that the appeal be allowed in its entirety.


At first glance, this case is simply one of statutory interpretation. However, in the interpretation of statutes there is the common law presumption against interfering with property rights that one must contend with (see, e.g., French CJ in R & R Fazzolari Pty Limited v Parramatta City Council; Mac's Pty Limited v Parramatta City Council [2009] HCA 12 (2 April 2009)). In this case it appears the High Court was more prepared than the WA Court of Appeal to interpret the relevant statutes under the light of this presumption.

Clearly, the advice the WAPC received regarding acquiring the entire lots so as to avoid the expense of constructing rail crossings was not viewed favourably by the Court. Nonetheless, I suggest the facts of this case paint a circumstance whereby perfectly reasonable minds may differ as to the disposition of the claim, and for that reason I am surprised it was granted special leave. The fact that only partial costs were awarded to the Appellants, although they substantially prevailed, indicates to me that the Court may have had a bit of heartburn over why this case made it this far. Further, the reticence of the Court to discuss or render a decision with respect to the principle of severance (arguably the only interesting thing about this case) likely positions this case into one of little precedential value.

February special leave rundown

Here are the cases that received special leave on Friday:

Cyril Henschke Pty Ltd v Commissioner of State Taxation [2009] SASC 148

Chiefly, regarding the nature of property rights in a partnership interest. The question is whether stamp duty ought to be paid when a partner leaves the partnership.

Totani v State of South Australia [2009] SASC 301

Validity of control orders under the Serious and Organised Crime (Control) Act 2008 (SA) (i.e the bikie legislation). Whether legislation invalid by application of Kable.

Secretary, Department of Justice v Osland (No 2) [2009] VSCA 69
Marjorie Osland is back in the High Court. She is still seeking documents under FOI legislation that relate to her petition for mercy. It must be like Christmas over at Open and Shut. [UPDATE 23/2/2010: Peter Timmins at O&S has a better summary of the grant of leave.]

R v Dupas (No 3) [2009] VSCA 202

The epic trial against Peter Dupas continues. The question for the High Court will be whether a stay of proceedings ought to have been ordered by the trial judge by virtue of the pre trial media coverage of the case.

Perpetual Trustees Australia Ltd v Heperu Pty Ltd [2009] NSWCA 84

The case concerns the receipt by a third party of a cheque which has earlier been obtained by fraud by another person. It reads like a law school exam regarding agency and BFPFVWN.

Snedden v Republic of Croatia [2009] FCAFC 111

Croatia is appealing an order of the Federal Court rejecting an application for extradition of ‘Captain Dragan’ for war crimes in Croatia on the grounds that he may be punished or imprisoned on return to Croatia by reason of his nationality or political opinions.

Sheehan v State Rail Authority; Wicks v SRA [2009] NSWCA 261

Relates to the 2003 Waterfall Rail disaster, and concerns whether liability in negligence for nervous shock suffered by the witness of an accident under the Civil Liability Act 2002 (NSW) extends to rescue workers.

One notable case for which Leave was not granted was University of Western Australia v Gray [2009] FCAFC 116. That case put the Academia profession into a spin when it was found that a university may not own the inventions made by its academic staff. And the trial judge? None other than former Federal Court judge and current High Court Chief Justice Bob French.

[UPDATE 18/2/2010: transcripts for these leave applications are now up]

Friday, February 12, 2010

Special Leave update

So far as South Australia is concerned, there have been appeals given leave. As I (and every one else) predicted Totani was given leave. [UPDATE 18/2/2010: the SG was not even called on, they were, as Gummow J would say, pushing at an open door.]

Leave was also given in Henschke, a very interesting case regarding the nature of property rights in a partnership interest, and, not-so-interestingly, the tax implications thereof. I didn't expect this one: it's a pretty strong court, the Chief Justice wrote the leading judgment and, for what it's worth, I think he was right.

Anyone know what else has got leave today?

Thursday, February 11, 2010

Special leave applications tomorrow

This month's special leave applications kick off tomorrow. I'll update with the outcomes but the one to watch, I think, will be State of South Australia v Totani.

That's the case where the SA Supreme Court struck down a section of the Serious and Organised Crime (Control) Act 2008 (SA) (i.e the bikie legislation) which provided for control orders on members of certain prescribed organisations.

The Court (by majority) found invalidity through application of the Kable doctrine. At the time that Totani was handed down the High Court had been loath to apply Kable, but late last year in International Finance Trust Company Limited v NSW Crime Commission [2009] HCA 49 the High Court uncharacteristically applied it, and endorsed it.

Perhaps we will see a resurgence of the relevance of Kable under the French Court.

New Federal Court CJ

Following the announcement of the end of Black CJ's epic innings as Chief Justice of the Federal Court, it has recently been announced that the new Chief Justice will be Queensland Court of Appeal's Justice of Appeal Pat Keane.

I don't think there are too many concerns with Keane JA's intellectual capacity to take on the job. Though this article suggests that the limited "breadth of work" at the Court of Appeal will be a concern. Seems like a strange criticism seeing as the Federal Court tends to only ever open the Corporations Act, the Trade Practices Act and the AAT Act.

I understand that the hand over will occur on 22 March.

Wednesday, February 10, 2010

New HCA Judgment

We'll have the summary up soon but for now:

Arnold v Minister Administering the Water Management Act 2000 [2010] HCA 3

It's basically part two of the interesting case of ICM that was handed down last year (i.e. same legislative regime). The main difference is that it concentrates on s 100 of the Constitution (the right to use water).  We'll have a summary for this soon but it seems to fail on one ground of appeal for the same reason that ICM did so we also hope to get a summary for ICM out at some point in order to be thorough with this issue.

[UPDATE 25/2/10: A lamp post summary of the case can now be found here.]

Thursday, February 4, 2010

iiNet and 'Land Down Under'

For those who haven't already seen this, the Federal Court handed down two interesting cases today.

Cowdroy J finally handed down the long anticipated decision in iiNet. I won't bother talking about it too much because we will be looking at it in due course when it inevitably gets to the High Court. The issue was whether iiNet (the ISP) were liable for authorising copyright infringement because they failed to prevent their users from downloading movies. His Honour found that iiNet was not liable. Here's Cowdroy J's summary of his summary (i.e. it is not part of the official judgment):

In summary, in this proceeding, the key question is: Did iiNet authorise copyright infringement? The Court answers such question in the negative for three reasons: first because the copyright infringements occurred directly as a result of the use of the BitTorrent system, not the use of the internet, and the respondent did not create and does not control the BitTorrent system; second because the respondent did not have a relevant power to prevent those infringements occurring; and third because the respondent did not sanction, approve or countenance copyright infringement.
Men at Work got slammed for their use of 'Kookaburra Sits in the Old Gum Tree' in their song (Land) 'Down Under'.  Verdict: it is a material part.

I won't comment on the law in this post but I will say that (1) makes me happy as a computer geek and closet IP anarchist, and (2) makes me sad as a lover of 80's Australian anthems.

Wednesday, February 3, 2010

New HCA Judgments

Two new decisions were handed down today. The first for 2010. We'll have the summaries up soon but for now:

Kirk v Industrial Relations Commission [2010] HCA 1.
This was ostensibly a matter of statutory interpretation on the OH & S legislation in NSW but there are a myriad of other issues that came up as well. The appeal was allowed, largely unanimously, except for one discrete point on which Heydon J dissented.

[UPDATE 25/2/10: A lamp post summary of the case can now be found here.]

Mandurah Enterprises Pty Ltd v Western Australian Planning Commission [2010] HCA 2.
This was a matter of compulsory acquisition of property by the Western Australian Planning Commission. The appeal was allowed in part.

[UPDATE 25/2/10: A lamp post summary of the case can now be found here.]
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