It was another good year for high profile cases reported in the media in 2016. The seven cases chosen below range from cases with important legal ramifications, to some that haven’t changed the law much, but have seized the public imagination – and indignation. From solicitors’ duties to money-grabbing politicians, the legal landscape in 2016 enlightened and entertained us.
1. Intending to be reckless? Best to be reckless without any intention
In Zaburoni v The Queen (2016) 256 CLR 482 the High Court has emphasised the importance of distinguishing between reckless behaviour and behaviour involving intention to transmit HIV.
The appellant, Mr Zaburoni, was found guilty of unlawfully transmitting a serious disease with intent to transmit the disease contrary to the Criminal Code (Qld), s 317(b).
Mr Zaburoni knew not to engage in sexual intercourse without taking protective measures, however he persuaded the complainant to engage in unprotected sex over a protracted period and after the complainant was diagnosed as HIV positive, the appellant told a number of lies both to her and to the police which suggested consciousness of guilt.
The High Court held that common law concepts of foreseeability, likelihood and probability are not relevant to proof of the element of intention for the offence created by the Criminal Code, s 317(b).
Where proof of the intention to produce a particular result is an element of liability for an offence under the Code, the prosecution is required to establish that the accused meant to produce that result by his or her conduct. Knowledge or foresight of the result, whether possible, probable or certain, is not a substitute in law for proof of a specific intent under the Code. Proof of the s 317(b) offence required the prosecution to establish beyond reasonable doubt that, at the time the appellant engaged in unprotected sexual intercourse with the complainant, he had as a purpose the transmission of HIV to her.
A rational inference open on the evidence was that the appellant was reckless of the risk of transmitting HIV to the complainant. Such an inference made it less easy to reach a conclusion that the appellant intended to transmit the disease through frequent unprotected sexual intercourse. The evidence also fell well short of proving that the appellant believed that it was virtually certain that he would transmit HIV by regular unprotected sexual intercourse.
2. Advocates still immune in court – but it’s settled they can be sued for negligent settlements
In Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 90 ALJR 572 the High Court was again asked an important question about the extent and continued existence of the advocate’s immunity from suit, especially in the context of settlement agreements.
The High Court declined to reconsider previous decisions that held that the advocate’s immunity is attracted by the participation of the advocate, as an officer of the court, in the quelling of controversies by the exercise of judicial power. Because of this, immunity does not extend to acts or advice of the advocate that do not move litigation towards a determination by a court, being most commonly settlement agreements.
The settlement agreement and the substantive content of the rights and obligations established in them are determined by the parties themselves without any determination by the court. As such, there is no advocate’s immunity from suit where negligent advice is given as to the settlement of cases.
3. Where there’s a will, should one warn there could be a family member finding a way?
In Badenach v Calvert (2016) 90 ALJR 610 the High Court provided some important clarification on the nature and scope of a solicitor’s duty to exercise reasonable care and skill, particularly in respect of third parties.
The appellant solicitor, Mr Badenach, was retained by a client, Mr Doddridge, to prepare a will in which the latter proposed to give his whole estate to the beneficiary, Mr Calvert. Mr Badenach neglected to ask Mr Doddridge whether there were any family members who might possibly make family provision claims. After Mr Doddridge died, an estranged daughter, Patrice, successfully claimed provision, as a result of which the estate available to Mr Calvert was significantly depleted. Mr Calvert sued Mr Badenach, and his firm, for professional negligence, claiming that, had the solicitor made the appropriate inquiry, he ought to have advised Mr Doddridge as to the means of defeating the family provision claim that in fact eventuated. The loss claimed was expressed as the loss of an opportunity or prospect that Mr Doddridge might have given instructions to take steps to protect Mr Calvert’s position.
The High Court held that a solicitor’s duty of care is limited to a person whom the testator actually intends to benefit from the will and is confined to requiring the solicitor to take reasonable steps to benefit that person in the manner and to the extent identified in the solicitor’s instructions. In this case, Mr Badenach’s omission to warn Mr Doddridge of the risk that his daughter might claim against the estate was not an omission to take steps integral to carrying out instructions that the estate be given to the respondent. In the absence of further instructions, which would necessarily have expanded the scope of the retainer, it could not be concluded that there was any omission of Mr Badenach falling within the scope of the duty of care owed by him to Mr Calvert.
4. The High Court dismisses our collective gasps
Many people who have forgotten to make their credit card payment in time have gasped at the late payment fee that is imposed. In Paciocco v Australia and New Zealand Banking Group Ltd (2016) 90 ALJR 835, the High Court was asked to hear our collective gasps. They heard, but weren’t impressed.
The appellant, a business owner and head of the representative proceeding, argued that various late payment fees were penalties and/or unconscionable or unfair and contrary to various provisions of the Australian Securities and Investments Commission Act 2001 (Cth), the Australian Consumer Law and the National Consumer Credit Protection Act 2009 (Cth).
However, the High Court found that the appellants had failed to establish that the late payment fees were a penalty and that the relevant test is whether a provision for the payment of a sum of money on default is out of all proportion to the interests of the party intended to be protected by that provision. A sum stipulated for payment on default is a penalty if it bears no relation to the possible damage to or interest of the innocent party. Here, ANZ Bank had an interest in receiving timely payment of the credit extended to its customers. Late payment impacted the bank’s interests through operational costs, loss provisioning and increases in regulatory capital costs.
It was also noted that Mr Paciocco had chosen to pay late and incur late payment fees as a matter of his own convenience. Given that ANZ Bank was not distinguished in this case from other banks in the marketplace, it was unlikely the bank took advantage of him in a way that met the statutory descriptions of “unconscionable conduct”, “unjust transactions” or “unfair terms”.
5. No need to follow the Brits, it’s fine to be over-criminalised
Miller v The Queen (2016) 90 ALJR 918 gave the High Court an opportunity to decide whether to follow a high profile decision of the Supreme Court of the United Kingdom and Privy Council by similarly holding that that the common law took a “wrong turn” and that there is no place for extended joint criminal enterprise liability in the common law.
Here, two of the four appellants had been drinking when they became involved in an altercation with two other men. The two appellants then left the scene and returned home, telling the other two appellants of the incident. All of the men then decided to re-visit the victims and violence ensued. One of the appellants, Betts, stabbed the deceased. Each appellant was charged with murder in relation to one victim and aggravated assault in relation to both victims.
Although Betts was the only man which the Crown contended knowingly committed the murder, the three other men were convicted of murder via “extended joint criminal enterprise”. This doctrine from McAuliffe v The Queen (1995) 183 CLR 108 was found to be satisfied if each man intended to commit an assault but foresaw the possibility that one of the other men might kill or inflict serious injury.
On appeal to the High Court of Australia, the appellants invited the court to abandon or confine the doctrine enunciated in McAuliffe v The Queen in light of the decision of the Supreme Court of the United Kingdom and Privy Council in R v Jogee  2 WLR 681. In Jogee, the court held that the doctrine of extended joint criminal enterprise, where there was a “possibility” of a more serious crime being committed, was an over-criminalisation and extended liability too far.
However, the High Court held that the principle of extended joint criminal enterprise liability stated in McAuliffe v The Queen remains part of the common law of Australia notwithstanding R v Jogee.
6. Choose your jury foreperson wisely – or at least pay attention
In NH v Director of Public Prosecutions (SA) (2016) 90 ALJR 978 the High Court was asked to decide whether the Supreme Court of South Australia has an inherent power to amend or set aside a verdict delivered by a jury foreperson.
In this interesting case, four appellants were acquitted of murder but convicted of the alternative offence of manslaughter. When delivering the jury’s verdicts, the foreperson, in the sight and hearing of the other jurors and without any dissent or action by them, informed the court that the required majority of at least 10 jurors had agreed on verdicts of not guilty of murder in relation to each appellant.
After the jury had been discharged, the foreperson informed a court officer that he had made a mistake. In fact, there had not been a majority of 10 or more in favour of a verdict of not guilty of murder in relation to any of the appellants.
The Supreme Court of South Australia (Full Court) quashed both the murder and manslaughter verdicts and directed a new trial on the charge of murder. The Full Court found that the verdicts of not guilty of murder were unlawful, as the required majority had not been reached. It characterised the unlawful verdicts as giving rise to an abuse of process that enlivened an inherent power to quash the unlawful acquittals.
However, the High Court held that neither an innocent error by a jury foreperson in delivering a verdict nor acquiescence by other members of the jury constitutes an abuse of process. As such, the Supreme Court of South Australia does not have inherent power to amend or set aside a verdict delivered by a jury foreperson in the sight and hearing of the other jurors and where no dissent or correction had been made by them and which has been translated by the trial judge into a perfected judgment of acquittal or conviction.
7. Grasping for a Gold Card – politicians try ‘The Castle’ defence to get their ‘property’ back
In Cunningham v Commonwealth (2016) 90 ALJR 1138 the High Court was asked to decide whether four retired politicians had had their property acquired otherwise than on just terms when their travel benefits were removed.
The challenge, under the Constitution, s 51(xxxi), drew comparisons with the popular 1997 Australian film ‘The Castle’, where that section of the Constitution was used to stop a family home being acquired to extend an airport runway.
The four retired MPs challenged the validity of various provisions of statutes that related to their retirement allowances and travel benefits (‘Life Gold Passes’) for former parliamentarians and also of the powers of the Remuneration Tribunal. The plaintiffs contended that those allowances amounted to property rights within the meaning of the Constitution, s 51(xxxi), and that changes to those provisions and the connected tribunal determinations constituted or authorised the acquisition of their property otherwise than on just terms.
The High Court held that neither the sections under challenge nor the determinations contravened the requirements of s 51(xxxi) as the rights to retirement allowance under the Parliamentary Contributory Superannuation Act 1984 (Cth) were inherently liable to variation, being dependent on the ambulatory will of the Commonwealth Parliament. For the same reasons, amendments to the Members of Parliament (Life Gold Pass) Act 2002 (Cth), reducing the number of free domestic trips annually available to former parliamentarians were not laws with respect to the acquisition of property.