From private prosecutions to convict cardinals and senators gone wild, in 2019 the judiciary asserted its dominance with shock and awe.
Justice White of the Federal Court had a field day awarding Senator Hanson-Young $120,000 in defamation damages stemming from then-Senator Leyonhjelm’s call for Senator Hanson-Young to “stop shagging men”. Meanwhile, the Victorian Court of Appeal let Jesus take the wheel, speeding down the highway to judicial and technological purgatory with a partially live-streamed 2:1 decision in the convict Cardinal’s conviction appeal.
Throw off your cassock, kick your feet up, and pray for rain; these seven cases are some of the most shocking from the legal year 2019.
Stop right there, “criminal”! – Taylor v Attorney-General (Cth) [2019] HCA 30
In 2017, one rhetorically-blessed Sydneysider purported to citizen’s arrest Uber drivers. Not to be outdone, in 2018 a Melbournite attempted to privately prosecute Aung San Suu Kyi, State Counsellor of Burma, in the Melbourne Magistrates’ Court. Attempting to prosecute a foreign politician is always going to be a sticky affair…
In 2018, Taylor attended the Magistrates’ Court with a charge-sheet and draft summons alleging that Counsellor Suu Kyi had contravened section 268.11 of the Criminal Code (Cth) (Code) and had committed crimes against humanity, specifically the deportation or forcible transfer of Burma’s Rohingya. Maximum sentence: 17 years.
Luck was not on Taylor’s side. Magistrates’ Court policy for private prosecutions delays filing charge-sheets and the issue of summonses until review by a Magistrate. Concurrently, Taylor also emailed the Attorney-General of the Commonwealth (AG) requesting consent to the private prosecution under section 268.121(1) of the Code.
The AG – unsurprisingly – did not consent. So, we end up in the High Court with Taylor seeking to quash the decision and force reconsideration. By special case on stated questions we then arrive before a full court.
At issue was the intersection of section 13 of the Crimes Act 1914 (Cth) (permitting private prosecutions) and section 268.121 of the Code (requiring the AG’s consent). It was the end for Taylor, with the majority eventually holding: “[t]he decision in fact made by the [AG] not to consent … was the only decision legally open”.
While our unlucky punter may have jumped the gun attempting to snare Suu Kyi in an Australian jurisdiction, the State Counsellor appeared at the ICJ on 10 & 11 December to respond to allegations of genocide on a case brought by Gambia. The ICC has also approved an investigation into genocide perpetrated by the Burmese state.
Make love not war – Hanson‑Young v Leyonhjelm (No 4) [2019] FCA 1981
While we’re on politicians (mostly so we can move past them), our own best and brightest continued their pattern of blatant disregard for any form of moral or legal propriety. When they aren’t running off with staffers, some of our political leaders also throw sexual innuendo at their colleagues. Well played, Canberra.
Senator Hanson-Young alleged that four publications by then-Senator Leyonhjelm conveyed defamatory meanings: (i) that she was a hypocrite for claiming all men were rapists but sleeping with them; (ii) that she had made the claim all men are rapists, and; (iii) that she was a misandrist in publicly claiming all men are rapists.
The so-called “promiscuity imputation” was not separately pursued by Senator Hanson-Young beyond her Concerns Notice, where it was put that there was an imputation by the respondent that the Senator “is a slut, shagging men indiscriminately”. However, while dropped, Justice White considered the promiscuity imputation “… intrinsically linked, and forms part of, the imputation that the applicant is a hypocrite”.
In descending into that rabbit hole, counsel for the respondent put a foot in it with some unreservedly withdrawn off-colour questioning: “Well, you say that everyone knows what slut‑shaming means. Would you agree with the proposition that the expression “fat‑shaming” is only capable of being used in respect of a person who is fat?”.
Senator Hanson-Young walked away to the tune of $120,000 damages for non-economic loss…which may go some way to easing the sting of the imputations, but suspicions are the “w” meant more than the money.
Love or hate Senator Hanson-Young, she should not have to endure sexually charged insults on the floor of the Senate; broadly repeated across Australia’s media landscape. The saga between then-Senator Leyonhjelm and Senator Hanson-Young prompted some soul searching over who we’d voted in.
Did we cost this? – Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29
From one group of heavy hitters to another; while criminal barrister Nicola Gobbo may have dominated bar-related headlines for the wrong reasons throughout 2019, it was a NSW barrister’s mission to get paid that caused the biggest legal splash. In Pentelow the High Court obliterated the Chorley exception – for everyone.
Legal costs, eponymously, may only be obtained by legal professionals. A self-represented litigant is not, usually, also a legal professional and may not recover “recompense for the value of [their] time spent in litigation”. The Chorley exception (from London Scottish Benefit Society v Chorley (1884) 13 QBD 872) had allowed solicitor self-represented litigants to recover legal costs in recompense for their time spent in litigation. So far, so easy.
The essential question in Bell Lawyers Pty Ltd v Pentelow was whether the Chorley exception should be extended to barristers. At issue was one barrister seeking recovery of legal costs in recompense for the time she spent assisting solicitors and senior counsel in her own matter against Bell Lawyers Pty Ltd for unpaid fees.
Not only was the High Court unanimously not convinced that it should extend Chorley to barristers, but a majority (6:1) considered that the Chorley exception should be abolished entirely. Kiefel CJ, Bell, Keane and Gordon JJ joined together in their condemnation, stating: “it is an affront to the fundamental value of equality of all persons before the law” and “it should not be recognised as a part of the common law of Australia”.
Word on the street is that drinks were on Bell Lawyers that Wednesday.
Stairway to… the High Court – Pell v the Queen [2019] VSCA 186
Speaking of drinking, the technology team at the VSCA may have needed a few after what must have been a Scottish-hogsheads’ (large, potentially even obscene) volume of traffic hit the Court website for the Pell decision.
The shock value of the Cardinal’s appeal was grounded in the media ado over the dissent of Justice Weinberg. For legal watchers though, dissent is part and parcel. On the Cardinal’s offending, Weinberg JA considered: “there is, to my mind, a ‘significant possibility’ that the applicant in this case may not have committed these offences”.
Weinberg JA upheld the appeal on the Cardinal’s first of three grounds – that the verdicts were unreasonable and couldn’t be supported by the evidence – stating: “in my respectful opinion, these convictions cannot be permitted to stand. The only order that can properly be made is that the applicant be acquitted on each charge.”
His Honour did not strictly need to deal with grounds two and three of the appeal, which related to the conduct of the trial generally. However, invoking Jones v the Queen for the principle a criminal appeal court should duly exercise its full jurisdiction when invoked unless a ground of appeal is clearly untenable, or the party is successful on another ground, Weinberg JA joined Ferguson CJ and Maxwell P in refusing leave on grounds two and three.
Unsurprisingly, the convict cardinal’s crack creative collective made an application for special leave to the High Court – at which point Australia’s media tied itself in knots trying to interpret exactly what was happening when Gordon and Edelman JJ ordered the application before a Full Court as on an appeal in [2019] HCATrans 217.
How we casually detonated an entire industry – BMW Australia Ltd v Brewster [2019] HCA 45
From the clergical to the clerical, book build in class action litigation is due to phoenix itself from the ashes of BMW Australia Ltd v Brewster after the HCA dropped a Christmas bombshell on the litigation funding industry.
If you missed the biggest legal news of December, the HC held that sections 33ZF of the Federal Court of Australia Act 1976 (Cth), and 183 of the Civil Procedure Act 2005 (NSW) did not extend to permitting the making of an order “in favour of a third party with a view to encouraging it to support the pursuit of [a] proceeding”. Big oops.
This was, as put by Kiefel CJ, Bell and Keane JJ, markedly different from the – admittedly broad – power contained within the sections allowing a court to make orders to “ensure that the proceeding is brought fairly and effectively to a just outcome”. Common fund orders (CFOs) had assured a particular level of return on funder’s investments.
Prior to CFOs, funders were required to book build; a process where funders would canvass interest and assess the viability of a proceeding. CFOs relieved many commercial anxieties by fixing a funder’s return as a proportion of money recovered on success, proportioning share between members, and prioritising the funder’s liability.
The plurality was not amused: “there is no warrant to supplement the legislative scheme by judicial involvement to ease the commercial anxieties of litigation funders or to relieve them of the need to make their decisions”.
Merry Christmas, litigation funders.
Playing doctor – R v A2; R v Magennis; R v Vaziri [2019] HCA 35
Briefly back on criminal law, the HC was also busy with a raft of cases under section 45 of the Crimes Act 1900 (NSW); aka the prohibition of female genital mutilation. A2 also featured in 2018 as it went through the NSWCCA.
Not only was there a construction issue related to the word “mutilate” and the permanency of resulting injury, in 2019 the legal industry is apparently still playing pin the tail on the donkey with female anatomy. In allowing the appeals, the HC accepted the trial judge’s broad construction, and not the NSWCCA’s narrow one.
The trial judge “construed ‘clitoris’ broadly, having regard to the context and purpose of s 45(1)”; a construction ultimately preferred by Kiefel CJ and Keane J. In doing so, His Honour rejected the precision delineation of specific anatomy between the clitoris and its surrounding tissues subsequently upheld in the NSWCCA. The NSWCCA stated at the time “[g]iven that this is a penal statute, precision in identifying the relevant body part is important“.
Nettle and Gordon JJ, joining with Kiefel CJ and Keane J (and writing with admirable judicial restraint), considered that the words “any part of” indicated a legislative intension to protect against any kind of invasive contact.
The pair additionally considered that the NSWCCA, in importing a requirement for permanency of injury, “created an additional hurdle which not only is not sourced in the text of s 45 but also fails to have regard to the nature and function of the labia majora, the labia minora and the clitoris”. Back to the textbooks, NSW.
Where’d you get these? – Glencore International AG v Commissioner of Taxation [2019] HCA 26
Legal professional privilege is an odd choice on which to finish an article on the most shocking cases of 2019, but there’s nothing better than a case that involves the Paradise Papers, Bermudan law firms, and a daring electronic heist.
In the High Court’s original jurisdiction, the eponymous Glencore attempted to obtain an injunction restraining the defendants from using documents related to the corporate restructure of Australian Glencore group companies prepared by incorporated firm Appleby (Bermuda) Ltd and stolen from their file management system.
The documents appeared in the public domain after being given to the International Consortium of Investigative Journalists. There was no issue of the documents being the subject of legal professional privilege. The defendants demurred to Glencore’s amended statement of claim on the ground that it did not disclose an actionable cause.
Which, according to the Court, it did not. In the words of the plurality, Glencore sought to “transform the nature of the privilege from an immunity into an ill-defined cause of action which may be brought against anyone with respect to documents which may be in the public domain”. Just paying tax honestly seems easier at this point…
The legal year 2019 saw lawyers in the media spotlight for a multitude of reasons – good and not-so-good. The complexity of the legal issues in play never seems to get easier, but each year we seem to walk away a little more enlightened. The shockers here are just a taste of the many sure to rear their heads throughout the year 2020.
