Proctor : April 2017
44 PROCTOR | April 2017 High Court and Federal Court casenotes High Court Electoral law – parliamentary elections – disqualification under the Constitution In Re Culleton [No.2]  HCA 4 (3 February 2017) the High Court (sitting as the Court of Disputed Returns) held that Senator Rodney Culleton was incapable of being chosen as a senator at the 2016 federal election. Senator Culleton was convicted of larceny by the NSW Local Court, in his absence, prior to the election. However, under the Crimes (Sentencing Procedure) Act 1999 (NSW), a sentence of imprisonment cannot be imposed on an offender in their absence. The offence for which Senator Culleton was convicted carried a possible jail term of up to two years. A warrant for his arrest was therefore issued. Before the warrant could be executed, Senator Culleton stood for election as a Senator for Western Australia and was elected. After the election, the warrant was executed and Senator Culleton was brought before the local court. The court annulled the conviction and re-tried the matter. The court dismissed the charge without conviction, but ordered Senator Culleton to pay compensation. The question was whether, at the time of the election, s44(ii) of the Constitution applied. That section renders a person incapable of being elected if they have been convicted and are under sentence, or subject to be sentenced, for an offence with a penalty of one year’s imprisonment or more. The High Court held that s44(ii) applied. The annulment operated only prospectively, meaning that at the time of the election, Senator Culleton had been convicted and was subject to sentence. That was so even though the conviction was in his absence. The Senate vacancy thus created was to be filled by a special count of the ballot papers and votes distributed accordingly. Kiefel, Bell, Gageler and Keane JJ jointly; Nettle J separately concurring. Answers given to questions referred. Tax law – land tax – amendments and refunds for overpayments In Commissioner of State Revenue v ACN 005 057 349 Pty Ltd  HCA 6 (8 February 2017) the respondent had overpaid land tax between 1990 and 2002 because a property had been assessed twice by an error on the part of the commissioner. The respondent had paid the tax as assessed. The error was discovered in 2012 and the respondent sought to have the commissioner amend the tax returns and issue a refund. The commissioner refused, on the basis that the power to amend was discretionary and there was no utility in the amendments, because the respondent could not get the relief sought, because the Land Tax Act 1958 (Vic.) precluded proceedings for refunds more than three years after the payments. The respondent brought judicial review proceedings (for mandamus) to compel the commissioner to amend the assessments and provide the refund. That was refused at first instance but granted by the Court of Appeal. The High Court allowed the appeal. It held that the amounts paid were properly ‘tax paid’: assessments made at the time imposed a legal obligation to pay, which had been fulfilled. The objection and appeal provisions in the Act were a ‘code’ that did not allow for refunds or recovery of payments outside that regime. The taxpayer here had lodged no objections to the assessments, and was out of time to apply for the refund. There was no other basis for appeal or review. That reading of the refund provision was also supported by extrinsic materials and the purpose of the Act – to provide certainty in revenue for the state. Further, the commissioner had a discretion, but not a duty, to exercise the power to amend the assessments. Given that the refund could not be granted, there was no utility in the commissioner granting the amendments. It was within power to refuse to do so. For that reason, there was also no basis for the Court of Appeal to describe the actions of the commissioner as “conscious maladministration”. Bell and Gordon JJ jointly; Kiefel and Keane JJ, and Gageler J separately concurring. Appeal from the Supreme Court (Vic.) allowed. Constitutional law – Ch.III judicial power – ‘matter’ under the Constitution – corporations law In Palmer v Ayres; Ferguson v Ayres  HCA 5 (10 November 2016 (orders) and 8 February 2017 (reasons)) the High Court upheld the constitutional validity of s596A of the Corporations Act 2001 (Cth). Section 596A allows a court, on application by an “eligible applicant” (here a liquidator), to order that an officer or provisional liquidator of a corporation be summonsed for examination about the corporation’s examinable affairs. Clive Palmer and Ian Ferguson were summonsed to be examined about the affairs of Queensland Nickel. After the examinations took place, Mr Palmer and Mr Ferguson sought a declaration from the High Court that s596A was invalid because it conferred non-judicial power on a federal court. It was sufficient for the plurality dealt with two aspects of that argument. First, the plurality held that conferral of jurisdiction under s596A involved a ‘matter’ because that term included controversies that might come before the court in the future. Section 596A gave a right to examine a person, to establish and then enforce potential rights to relief against potential wrongdoers. Further, an order for examination had an immediate effect on the rights and liabilities of the parties to the order. Second, the plurality held that examination was a procedure directed at the future exercise of judicial power, in aid of anticipated adversarial proceeding, analogous to other pre-trial procedures. That was sufficient to bring the section within a conferral of judicial power. Other arguments of the plaintiff did not need to be addressed. Kiefel, Keane, Nettle and Gordon JJ jointly; and Gageler J separately concurring. Answers to questions reserved given. Town planning – statutory interpretation – compensation – land reserve for public purposes In Western Australian Planning Commission v Southregal Pty Ltd; Western Australian Planning Commission v Leith  HCA 7 (8 February 2017) the High Court held that compensation payable under the Planning and Development Act 2005 (WA) was payable only to the person who owned land affected by a reservation, and not to a subsequent owner. Under a planning scheme made under the Act, land was reserved for public purposes. At the time, people other than the respondents owned parts of the lands reserved. The respondents subsequently bought the land and applied to develop it. The applications were refused, because of the reservation. The respondents sought compensation under s173 of the Act. However, s177(1) provided that compensation was not payable until the first sale of the land after the reservation, the refusal of an application for development or the approval of a development on unacceptable conditions. Section 177(2) provided that compensation was payable only once, to the owner of the land at the date of reservation where the claim was on first sale or the owner of the land at the date of the application where the claim concerned a development application. The question was whether compensation could be claimed by a subsequent owner of the land or only the owner at the time of the reservation. A majority of the High Court held that only the original owner was entitled to claim compensation. That followed from the language of the sections and the Part as a whole; analysis of an earlier decision relating to very similar provisions, in Western Australian Planning Commission v Temwood Holdings Pty Ltd (2004) 221 CLR 30; extrinsic materials; and the purpose of the section. Compensation was payable only once, on the trigger set out in s177(1). Here, because the first sale had taken place, the occurrence of one of the other events in s177 (1) could not trigger a further compensation claim. Kiefel and Bell JJ jointly; Gageler and Nettle JJ jointly concurring; Keane J dissenting. Appeal from the Court of Appeal (WA) allowed. Andrew Yuile is a Victorian barrister, ph (03) 9225 7222, email firstname.lastname@example.org. The full version of these judgments can be found at austlii.edu.au. Numbers in square brackets refer to paragraph numbers in the judgment.