Case Summaries

Full Court Matters

(Other than Applications for Special Leave to Appeal)

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS v KHAWAR & ORS (S128/2001)

Court appealed from: Full Court of the Federal Court of Australia

Date of judgment: 23 August 2000

Date of grant of special leave: 1 June 2001

Mrs Khawar ("the Respondent") and her three children are Pakistani citizens who arrived in Australia on 17 June 1997. On 16 September 1997 they applied for Protection Visas. The Respondent claimed that she was the target of domestic violence at the hands of her husband, his brother and to a limited extent, their family. She claimed that she went to the Pakistani police on four occasions and on each occasion the authorities took no action against her husband. On 4 February 1998 a departmental delegate refused her application, as did the Refugee Review Tribunal ("RRT") on 11 January 1999. The RRT found that the conduct that the Respondent feared was not for reasons of her membership of any particular social group, nor was it for any other Convention related reason. It found that the Respondent’s problems were related solely to the fact that she married her husband against the wishes of her husband’s family.

On 5 November 1999 Branson J set aside the RRT’s decision and on 23 August 2000 the Full Federal Court (Mathews and Lindgren JJ, Hill J dissenting) dismissed an appeal by the Minister. The majority found that the critical issue was; "whether the RRT erred in its view that the absence of state protection for any particular group of which Mrs Khawar might have been a member was, as the RRT considered, irrelevant to the causal link demanded by the words ‘for reasons of’ in the Convention definition of ‘refugee’." The majority answered that question affirmatively, firstly by finding that the state’s conduct constituted persecution and secondly, by finding that the combination of the husband’s conduct and the state’s conduct also constituted persecution.

Justice Hill however found that there was no causal link between the persecutory conduct and the Respondent’s membership of a social group. This was because mere inaction by a state could not, without more, constitute persecution. As a corollary, his Honour found that the only possible relevant social group, Pakistani women with abusive alcoholic husbands, was defined by reference to the persecutory conduct itself.

The grounds of appeal are:

• The majority erred in law in holding that persecution may consist of the effect of the conduct of two or more persons, only one of whom may be moved by a Convention reason.
  
• The majority erred in law in holding that the RRT in the circumstances of the case erred by reaching a conclusion on the question of whether the Respondent’s fear of persecution was for reason of her membership of a particular social group without first identifying such a group, if any, of which she was a member.
  
• The majority erred in law by holding that a state’s systemic failure to protect the members of a particular social group who were subject to domestic violence could constitute persecution ‘by reason of’ the victim’s membership of the group, even though the perpetrator of the violence was not motivated by a Convention reason to inflict the violence.
  
• The majority erred by holding that the causal nexus required by the words ‘by reason of’ could be established if domestic violence, perpetrated for a non-Convention reason, was inflicted in the knowledge that state protection would not be provided to the victim by reason of her membership of a particular social group.
  
• The majority ought to have held that the primary judge erred in finding that the RRT had erred in law in the manner comprehended by section 476(1)(e) of the Migration Act 1958.

GERLACH v. CLIFTON BRICKS PTY LIMITED (S43/2001)

Court appealed from: New South Wales Court of Appeal

Date of Judgment: 28 April 2000

Date of grant of special leave: 16 February 2001

The appellant commenced proceedings in the Supreme Court in July 1989, seeking damages against the respondent for injuries for an industrial accident. Years later the proceedings were remitted to the District Court. At the appropriate stage, while the action was pending in the Supreme Court, the appellant had requisitioned for trial by jury. It was accepted that this requisition remained effective after the transfer of the proceedings to the District Court so as to require the action to be tried with a jury unless it was dispensed with.

On the second last working day before the trial the appellant obtained an order to dispense with the jury. The respondent opposed the making of such order. Christie DCJ exercised the discretion conferred by Section 79A of the District Court Act 1973 which provides: "In any action the court may order, despite sections 77, 78 and 79, that all or any questions of fact be tried without a jury". In the exercise of his discretion, Christie DCJ considered the number of witnesses who would have to be called from different parts of the country and said that the appellant would be put to significant financial burden in calling an expert witness in addition to providing accommodation for the lay witnesses while they waited to be called before the jury.

The hearing of the appellant’s case proceeded before Morrison ADCJ. The appellant was awarded $390,000 damages.

The respondent appealed, challenging not only the trial judge’s decision on liability and damages, but also challenging the interlocutory order of Christie DCJ.

The Court of Appeal held that the respondent could challenge the interlocutory order to dispense with the jury on an appeal against the final judgment. The Court held that the cost of witnesses was not a relevant consideration in the exercise of the judge’s discretion and therefore that the order to dispense with the jury should not have been made. The Court further held that the respondent was entitled to a retrial.

The appellant has filed a notice of motion seeking leave to amend the grounds of appeal.

The proposed amended grounds of appeal include:

• The Court of Appeal was wrong in setting aside the decision of the District Court under s79A of the District Court Act 1973 to dispense with the jury previously requisitioned in the proceedings;
• The Court of Appeal erred in applying a restriction upon the discretion vested in the District Court by s79A as propounded by the Court of Appeal in Pambula Public Hospital v. Herriman (1988) 14 NSWLR 387 and applied in subsequent decisions;
• The Court of Appeal ought not to have followed its earlier decision in Pambula, it being wrongly decided, and the discretion of s79A being general and unfettered; and
• The Court of Appeal failed to apply the decision and reasoning of the High Court in Patton v. Buchanan Borehole Collieries Pty Limited (1993) 178 CLR 14 in relation to the discretion conferred by s79A.

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS v RAJAMANIKKAM & ANOR (S122/2001)

Court appealed from: Full Court of the Federal Court of Australia

Date of judgment: 3 August 2000

Date of grant of special leave: 1 June 2001

This appeal involves the construction of s.476(1)(g) and s.476(4) of the Migration Act 1958 (Cth) ("the Act").

The Respondents are a retired Sri Lankan doctor who suffers from dementia and his wife. On 24 May 1996 they arrived in Australia and shortly afterwards they lodged combined applications for a Protection Visa. Only Mr Rajamanikkam ("the Respondent husband") made specific claims to be a refugee, with Mrs Rajamanikkam being named as a member of the family unit. The Respondent husband claimed that he feared persecution from both the Sri Lankan authorities and the Liberation Tigers of Tamil Eelam ("LTTE" ). He claimed that the authorities perceived him to be associated with the LTTE. He also claimed that the LTTE perceived him to be a moderate Tamil who had not paid them extortion money.

On 20 March 1997 a departmental delegate refused the Respondents’ application, as did the Refugee Review Tribunal ("RRT") on 29 September 1998. The RRT found that the Respondent husband was not a credible witness and it identified eight specific evidentiary inconsistencies which led it to that conclusion.

On 19 November 1999 Einfeld J set aside the RRT’s decision and on 3 August 2000 the Full Federal Court (Kiefel, North and Mansfield JJ) unanimously dismissed an appeal by the Minister. Their Honours found that there was no evidence to support the RRT’s conclusion in respect of two of the eight evidentiary inconsistencies upon which it had based its adverse credibility finding. Specifically, those inconsistencies related to whether Point Pedro was under government control and whether the Respondent husband was considered a "newcomer" to Trincomalee. Their Honours found that these were critical links in the RRT’s overall chain of reasoning in the sense discussed in Curragh Queensland Mining Limited v Daniel (1992) 34 FCR 212.

The grounds of appeal are:

• The Full Court erred in upholding the decision of the primary Judge setting aside the decision of the RRT on the basis that the ground identified in paragraphs 476(1)(g) and 476(b) of the Act had been made out because:
  • two out of eight factors relied upon by the RRT for rejecting the Respondent husband’s evidence constituted particular facts for the purposes of paragraph 476(4)(b); and
    
  • those facts were ‘critical’ in the sense referred to by Mason CJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 357-358.
    
• The Full Court erred in failing to hold that:
  • inferences drawn by the RRT in relation to answers given by the Respondent husband in an interview, could not constitute ‘particular facts’ for the purposes of paragraphs 476(1)(g) and (4)(b) of the Act; and
    
  • the ‘no evidence’ ground contained in paragraph 476(1)(g) was not available in relation to a decision that the RRT was ‘not satisfied’ as to the statutory pre-condition for the grant of a Protection Visa.

   

SHERGOLD v TANNER (M63/01)

Court appealed from: Full Court of the Federal Court of Australia

Date of judgment: 10 October 2000

Date special leave granted: 22 June 2001

This appeal concerns a challenge by the respondent, under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act) and s39B of the Judiciary Act 1903 (Cth), to the decision of the appellant to issue two conclusive certificates pursuant to s36(3) and s33A(2) of the Freedom of Information Act 1982 (Cth) (the FOI Act).

The conclusive certificates were issued in respect of certain documents sought under the FOI Act in December 1997 by the respondent from the Department of Workplace Relations and Small Business, now the Department of Employment, Workplace Relations and Small Business (the Department). The appellant is the Secretary of the Department and the delegate of Peter Reith the Minister for Employment, Workplace Relations and Small Business for the purposes of the FOI Act. The respondent is a Member of Parliament who was the Shadow Minister for Transport at the time he made the FOI request. The respondent had sought access to reports arising from certain consultancies on waterfront reform and had been refused. The conclusive certificate stated that disclosure of the documents would be contrary to the public interest.

The respondent instituted proceedings in the Federal Court seeking judicial review. None of the grounds of the respondent’s challenge involve a challenge to the certificates based on a defect apparent on the face of the certificate. Each of the grounds of review is directed to some alleged defect in the decision-making process by which the appellant determined to issue the conclusive certificate. The grounds relied on are traditional administrative review grounds (including an alleged denial of natural justice), which would ordinarily be subject to review under the ADJR Act. The appellant contended that access to relief under the ADJR Act has been relevantly curtailed by the FOI Act. The respondent contended that the FOI Act deals with the question of merits review in respect of the issuing of a conclusive certificate, but does not foreclose judicial review of the actual decision to issue a certificate.

Marshall J reserved a preliminary question for determination as follows:

"whether the alleged decisions referred to in paragraphs 1 and 3 of the proposed further amended application for an order for review dated 2 December 1999 (the "amended application") are amenable to review by the Court as sought in the amended application."

His Honour answered that question in the affirmative.

The Full Court by majority (Black CJ and Finkelstein J; Burchett J dissenting) dismissed the appellant’s appeal.

The ground of appeal is:

• The separate question ought to have been answered "no" as the decisions of the appellant to issue the certificates issued under s33A(2) and s36(3) of the Freedom of Information Act 1982 (Cth) (the Act) are not decisions reviewable under s5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) or s39B of the Judiciary Act 1903 (Cth) on grounds other than grounds going to defects apparent on the face of the certificates, because of the effect of the words "establishes conclusively" in ss33A(2A) and 36(3) of the Act in the context of the Act as a whole.

HARWOOD v. THE QUEEN (B49/2001)

Court Appealed from: Court of Appeal of the Supreme Court of Queensland

Date of Judgment: 30 May 1995

Date Special Leave granted: 27 June 2001

The appellant was tried jointly with Gary Hind and on 15 September 1994 both were convicted of murder and sentenced to life imprisonment.

The evidence at trial was that at about 11:00pm on 16 February 1994, the appellant and Hind went to a bus depot in Bundaberg where they intended to rob the cafeteria. Hind was armed with a sawn-off .22 calibre rifle. The appellant knew that Hind had the weapon but did not know whether or not it was loaded. The victim was sitting outside the cafeteria. Hind sat behind him and told him to move on and then pointed the rifle at him. The victim did not move as directed and was shot and killed.

The prosecution case against the appellant for murder was put on 2 bases:–

That Hind shot the deceased intending to cause death or grievous bodily harm and that this was the probable consequence of the prosecution of the common intention to prosecute the unlawful purpose of armed robbery, the offence of murder arising pursuant to a combination of ss. 8 and 302(1)(a) of the Criminal Code (Qld); and

That the death was caused by means of an act done in the prosecution of an unlawful purpose which act was of such a nature as to be likely to endanger human life and that the killing of the victim in this way was the probable consequence of the prosecution of the common unlawful purpose of robbery, the offence of murder arising pursuant to a combination of ss. 8 and 302(1)(b) of the Criminal Code.

In the appellant’s case, the offence of manslaughter was available and depended upon a combination of the criminal negligence provision in the Code and s.8 of the Code.

In summing up, the trial judge did not instruct the jury that a manslaughter verdict was also available against the appellant in the event that a conclusion was reached that an unlawful killing by the co-accused was a probable consequence of the prosecution of the common unlawful purpose.

The appellant’s appeal to the Court of Appeal was dismissed. The majority of the Court overruled an earlier decision in R v. Jervis [1993] 1 QdR 643, which found that a verdict of manslaughter was available in a situation where an unlawful killing by a co-accused was a probable consequence of the prosecution of a common unlawful purpose. The Court of Appeal held that if the co-accused was convicted of murder, the appellant could not be convicted of manslaughter and that Jervis should not be followed. The judgment of the Court of Appeal in the appellant’s case was subsequently overruled in R v. Barlow (1997) 188 CLR 1, which confirmed the correctness of Jervis.

The ground of appeal is:

• The Court of Appeal erred in holding that the appellant could not be convicted of manslaughter in the event that the co-accused, Hind, was convicted of murder, in consequence whereof the appellant was denied a fair trial in that a possible basis for conviction of manslaughter was not put to the jury.

I & L SECURITIES PTY LTD v. HTW VALUERS (BRISBANE) PTY LTD (B48/2001)

Court Appealed from: Court of Appeal of the Supreme Court of Queensland

Date of Judgment: 22 September 2000

Date Special Leave Granted: 27 June 2001

This appeal relates to a claim made by the appellant under s.52 of the Trade Practices Act 1974 (Cth) ("the Act") against the respondent (a valuer), who gave a wrong valuation of real property upon which the appellant relied to its detriment.

The trial judge found that the wrong valuation was a cause of the appellant making a loan, on which loan the appellant lost a substantial amount of money.

The trial judge also found that there was another cause of the loss, that being the appellant’s failure to making sufficient enquiries in relation to the capacity of the borrower to make repayments under the loan. The borrower never had any realistic opportunity of meeting the interest payments and made default 5 weeks after the loan was made. The trial judge found that this information would have been readily ascertainable by the appellant with reasonable inquiries.

As result of the trial judge finding that there were two independent causes of loss, damages were awarded based on an assessment of the respective parties’ responsibilities for the loss, resulting in the appellant recovering only two thirds of the total loss on the loan.

On appeal (by the appellant), the Court of Appeal (sitting a bench of 5 judges) considered the interrelation of s.82 and s.87(1) of the Act. S.87(1) reads as follows:

"…where, in a proceeding instituted under, or for an offence against, this Part, the Court finds that a person who is a party to the proceeding has suffered, or is likely to suffer, loss or damage by conduct of another person that was engaged in…in contravention of a provision of Part IV, IVA or V, the Court may, whether or not it grants an injunction under section 80 or makes an order under section 80A or 82, make such order or orders as it thinks appropriate against the person who engaged in the conduct or a person who was involved in the contravention (including all or any of the orders mentioned in sub-section (2) of this section) if the Court considers that the order or orders concerned will compensate the first mentioned person in whole or in part for the loss or damage or will prevent or reduce the loss or damage".

Section 87(2)(d) reads as follows:

"an order directing a person who engaged in the conduct or a person who was involved in the contravention constituted by the conduct to pay to the person who suffered the loss or damage the amount of the loss or damage".

The appellant submitted that the Court of Appeal should take a narrow view of section 87(1) and that it could not be used to make an order where there were two independent causes of loss of which a plaintiff complains, one cause being the responsibility of the plaintiff. Alternatively the appellant submitted that under section 82(1), a plaintiff that had proved that one of the causes of loss was a breach of section 52 of the Act, was entitled by virtue of that section to an award of the whole of the loss and that section 87(1) could not be used to reduce that.

The respondent submitted that section 82(1) did not embody an "all or nothing" rule.

The Court of Appeal dismissed the appellant’s appeal supporting a broad reading of section 87(1). This Court has subsequently delivered its decision in Henville and Anor v Walker and Anor (2001) 182 ALR 37, allowing an appeal by plaintiffs who suffered loss in similar circumstances to the appellant in this case.

The ground of appeal is:

• The Court of Appeal erred in construing section 87 of the Trade Practices Act 1974 (Cth) as conferring upon the Courts a general discretion to reduce the measure of damages otherwise recoverable by the Plaintiff pursuant to section 82 of the Trade Practices Act 1974 (Cth).

CAMERON v. THE QUEEN (P59/2001)

Court Appealed from: Court of Criminal Appeal of the Supreme Court of Western Australia

Date of Judgment: 3 October 2000

Date Special Leave granted: 25 October 2001

The appellant pleaded guilty to an indictment alleging that he had in his possession a quantity of methylamphetamine with intent to sell or supply it to another. He was sentenced to 10 years’ imprisonment.

The facts found by the sentencing judge were that on 22 April 1999, the appellant was spoken to by police and searched after alighting from an aircraft in Perth that had come from the eastern states. He was found to be in possession of a plastic package that contained over 5,000 tablets, which were found to be 3-4% pure.

The appellant participated in a record of interview but made no admissions. The appellant had a previous record of offending. The sentencing judge referred to personal circumstances of the appellant but concluded that no mitigation would apply in respect of that as the offence was so serious that personal circumstances should pay little part. The sentencing judge imposed a term of 10 years’ imprisonment but reduced that to 9 years to take into account the plea of guilty.

The appellant applied for leave to appeal against the sentence on the ground that the sentencing judge had given insufficient credit for the early plea of guilty. The circumstances relating to the plea were that the appellant appeared shortly after his arrest in the Court of Petty Sessions in April 1999 and was charged there on a complaint that he had in his possession ecstasy, the incorrect substance. The certificates of analysis showing the correct substance to be methylamphetamine, were produced on 28 June 1999, although it is not clear when these were provided to the appellant’s lawyers.

The appellant appeared before the court on 4 June, and on 2 July elected a preliminary hearing. On 30 July there was a further remand to 31 August followed by a further 5 remands. On 10 November the appellant’s solicitors communicated to the prosecution that the appellant wished to enter a plea of guilty to the charge of "possession of a prohibited drug with intent to sell or supply" and asked that the matter be listed on 16 November for the entering of that plea. They also requested that the charge be amended to methylamphetamine. This occurred.

On appeal, it was submitted to the Court that it was not possible for the appellant to enter a plea until the charge had been amended. This submission was rejected by the Court of Criminal Appeal who accepted the sentencing judge’s conclusions in relation to the reduction of sentence for a plea of guilty.

The ground of appeal is:

• The Court of Criminal Appeal erred in finding that the learned sentencing Judge had not erred in the exercise of his discretion, when sentencing the appellant to a term of 9 years imprisonment, finding that the learned sentencing Judge gave sufficient credit (1 year or 10%) for the appellant’s fast track plea of guilty.