Minister for Immigration and Citizenship v SZMDS [2010] HCA 16
A Pakistani national sought a protection Visa in Australia claiming he feared persecution in Pakistan by virtue of his homosexuality. The Tribunal rejected the application. He sought judicial review of that decision on the ground that "the Tribunal's conclusion that [he] was not a homosexual was based squarely on an illogical process of reasoning". The Court allowed the appeal against the Federal Court and affirmed the Tribunal’s decision to deny the Visa. There is considerable discussion of the concept of jurisdictional error and the degree to which irrational or (Wednesbury) unreasonableness may result in a jurisdictional error.
[UPDATE 25/2/10: A lamp post summary of the case can now be found here.]
The Queen v LK; The Queen v RK [2010] HCA 17
This case raises the fault elements necessary to prove the offence of conspiracy to deal with money that is proceeds of crime under the Criminal Code 1995 (Cth). The case also raised the interesting issue of whether legislation allowing appeals against a directed verdict of acquittal can apply to indictable Commonwealth offences, without contravening the Constitutional protection of trial by jury under s 80 of the Constitution. This required determination of whether the finality of an acquittal is a fundamental aspect of a jury trial. The Chief Justice (with whom the rest of the Court agreed) found that it is not.
Ansari v The Queen; Ansari v The Queen [2010] HCA 18One ground of appeal in this case was the same as that raised in The Queen v LK (above) in relation to the elements of conspiracy to deal with money that is proceeds of crime. That ground was dismissed on the grounds set out in LK. In addition the appellants argued a more technical argument that if the argument in LK failed, the charges are “bad in law” because there is an “inconsistency inherent in proving that an accused conspirator intended that a circumstance will exist (a physical element of the offence that is the object of the conspiracy) and intended that, at that time, he or she would be reckless as to the existence of that circumstance”. This appeal was also dismissed.
John Alexander's Clubs Pty Limited v White City Tennis Club Limited; Walker Corporation Pty Limited v White City Tennis Club Limited [2010] HCA 19This case provides a discussion of the circumstances in which a fiduciary duty will exist between parties to a joint venture. The Court allowed the appeal from the Full Court which had found a constructive trust over land by virtue of a fiduciary relationship. The Court also discussed the status of an unregistered mortgage over that land had the constructive trust been found to exist.
I've been waiting to see what was going to happen in SZMDS for a while now. Unfortunately I think it's difficult to argue with the logic of Crennan and Bell JJ's reasoning. Once you are considering irrationality or illogicality to a degree where you say that a decision was reasonably open but was nonetheless illogical, you're clearly talking about a matter of preference on the evidence which is firmly within the merits. I think it's difficult to go much beyond Wednesbury and maintain a fact law distinction, much less any jurisdictional / non-jurisdictional error distinction.
ReplyDeleteUnfortunately the upshot is that courts have insufficient scope in remedying the injustices of biased government tribunals such as the RRT. SOP - epic fail.
Look forward to the lamppost's views.
- AJM