Sunday, April 29, 2012

Recent Criminal & Civil Law Cases - April 2012


Constitutional Law - Implied right to communicate - prisoners

In Wotton v Queensland [2012] HCA 2 [29 February 2012] W was an aboriginal person who had been a councillor of the Palm Island Aboriginal Shire Council. In 2008 he was sentenced to imprisonment for involvement in a 2004 riot at the island. In July 2010 the Parole Board granted W parole. By s132(1)(a) of the Corrective Services Act 2006 (Qld) it is an offence to interview a person on parole without the permission of the chief executive of the parole authority. By s200(2) the Act authorised parole conditions to ensure good conduct by the prisoner. Relying on ss132(1)(a) and 200(2) the Parole Board imposed conditions on the parole that prevented W attending meetings on the island without permission or interacting with the media. W commenced proceedings in the original jurisdiction of the High Court claiming s132(1)(a) was unconstitutional for impermissibly burdening the freedom of communication on political matters, contrary to the freedom recognised in cases such as Lange v ABC [1997] HCA 25; Aid/watch Incorporated v FCT [2010] HCA 42. The High Court concluded that while the provisions authorised a burden on W’s right to communicate that may be revealed as unconstitutional in state judicial review proceedings, it was not unconstitutional on its face: French CJ, Hayne, Crennan, Bell JJ; Heydon J; Kiefel J. Questions answered to the effect that the provisions were not invalid.

Restitution - Loss on investing in illegal enterprise – assignment of rights in the investment – whether assignee can claim money had and received

In Equuscorp Pty Ltd v Haxton [2012] HCA 7 (8 March 2012) the Court reviewed the policy considerations raised where a party (R) claimed it had the right to seek restitution of funds it advanced under an illegal tax driven investment and where, after R assigned all its rights in the investment to an arm’s length financier (E), restitution was sought from the recipient of the funds by E. The High Court generally concluded that R did not have a right to claim for money had and received and that the loss lay where it fell. The Court concluded a right to claim money had and received could generally be assigned, but that the assignment in question had not done so: French CJ, Crennan J, Kiefel J; Gummow with Bell JJ; contra Heydon J. Appeal from Victorian Court of Appeal dismissed.

Negligence - Causation – whether negligence a “necessary condition” for the occurrence – Civil Liability Act 2002 (NSW)
In Strong v Woolworths Ltd [2012] HCA 5 (7 March 2012) it was accepted that Woolworths owed S a duty of care and did not have any system for cleaning the sidewalk on which S slipped on a potato chip, causing her spinal injuries and the primary judge to award $580,299 in damages. The NSW Court of Appeal concluded S had not proved that Woolworths’ negligence was a cause of the injury. The appeal by S to the High Court was allowed by majority: French CJ, Gummow, Crennan, Bell JJ; contra Heydon J. The majority concluded the Court of Appeal had not confined the causation provisions in s5D of the Civil Liability Act 2002 (NSW) but had erred in inferring that it was not open to infer the chip had been on the ground long enough to be removed by a competent cleaning system. Appeal allowed.


Statutes - application granted after statute repealed

In Elders Rural Services Australia Ltd v Registrar of Plant Breeder’s Rights [2012]  FCAFC 14 (29 February 2012) a Full Court considered the operation of transitional provisions on an application lodged under the Plant Variety Rights Act 1987 (Cth) but granted after the repeal of that Act by the Plant Variety Rights Act 1994 (Cth). The Court concluded the appellant had been granted rights under the new Act and the contrary conclusion of the primary judge was in error. Appeal allowed.

AAT - Appeal to Federal Court of Australia – need to identify the “question of law”
In Hudson v Minister for Immigration and Citizenship [2012] FCAFC 23 (13 March 2012) a Full Court observed that an order dismissing an appeal from the Administrative Appeals Tribunal (AAT) as incompetent was interlocutory and leave to appeal was required and that as the appellant was 14 a litigation representative was required. The Court concluded the finding the AAT had made that a person was not a “parent” of the appellant for the Citizenship Act 1948 (Cth) was a finding of fact.

Migration - Judicial review – extension of time to commence application “in relation to a migration decision” - application for quia timet injunction
In SZQDZ v Minister for Immigration and Citizenship [2012] FCAFC 26 (13 March 2012) a Full Court concluded the 35 day time limit for applications to the Federal Magistrates Court (FMC) in s477 of the Migration Act 1958 (Cth) did not apply to applications to challenge recommendations of an Independent Merits Reviewer under s46A(2) because the recommendation was not a “migration decision”. The Court concluded that notwithstanding s467A(3)(a), it did have jurisdiction to hear an appeal from the FMC that determined the 35 day time limit applied and dismissed the proceeding. The Court observed the FMC had dismissed the proceeding in a summary way. The Court concluded such a decision to dismiss the proceeding was not the decision to refuse to extend time. Questions answered accordingly.

(*From the Thomas Hurley Case Notes)

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