New HCA Judgments: Port of Portland and Hili & Jones

Two new judgments handed down in the High Court today. They were:

Port of Portland Pty Ltd v Victoria [2010] HCA 44

The High Court has unanimously allowed this appeal against a decision of the Court of Appeal of the Supreme Court of Victoria.

The appellant was a private company that purchased the land and operations of a government owned port as part of a privatisation move by the Government of Victoria. The Treasurer, on behalf of the Government was a party to the contract. Under the contract the Government agreed to (a) pass legislation in certain terms (the effect of which it was hoped would allow the appellant to avoid tax which would otherwise be payable), and (b) if it failed to pass such legislation to pay the tax for the appellant. Certain legislation was passed but it failed to avoid altogether the tax of the appellant and the appellant sought recovery of the tax. The Government argued that the clause was void as a clause attempting to bind the state to pass legislation and therefore fetter the legislative role.

The High Court considered that the only role of obligation (a) in the circumstances was to determine in what circumstances the Government would be liable under obligation (b). Accordingly, it was unnecessary to consider whether obligation (a) was validand enforceable in its terms. Obligation (b) was therefore operative as it merely required the Government to pay a certain sum upon a certain event. The Court then determined that the legislation which was passed did not meet the requirement in obligation (a) and remitted the matter to a trial judge to quantify the amount due.

Hili v The Queen; Jones v The Queen [2010] HCA 45

The High Court (Heydon J dissenting on one point) has dismissed this appeal against a decision of the Court of Criminal Appeal of New South Wales.

The appellants pleaded guilty to a number of charges relating to a tax evasion scheme, which was the subject of the ‘Project Wickenby’ crack down. On an appeal against sentence the Court of Criminal Appeal increased the sentence on the ground of manifest inadequacy. In doing so they said that the 'norm' for a non-parole period is between 60 and 66% of the head sentence for federal crimes.

Although the High Court ultimately dismissed the appeal, finding that the Appeal Court was correct to increase the sentences, their Honours gave some important rearticulations of sentencing principles. Their Honours said that the Appeal Court was wrong to have regard to a mathematical percentage as the 'norm' for setting a non-parole period. Their Honours said (at [18]):

[T]he consistency that is sought [in sentencing] is consistency in the application of the relevant legal principles, not some numerical or mathematical equivalence. Consistency in sentencing federal offenders is achieved by the proper application of the relevant statutory provisions, having proper regard not just to what has been done in other cases but why it was done, and by the work of the intermediate courts of appeal.

Their Honours also rejected an argument that the Court of Appeal had given insufficient reasons for determining an aspect of the appeal.