4 minute read
Supreme Court
from Balance 1-21
CAMERON FORD
BARRISTER, ARBITRATOR, ADJUDICATOR, MEDIATOR www.cameron-ford.com
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Supreme Court judgments
Civil procedure
Abuse of process – relitigating issues finally determined
In DO v Attorney-General (Cth) & Ors [2021] NTSC 5, Brownhill J dismissed an application for habeas corps as an abuse of process because it sought to relitigate issues finally determined in the Federal Circuit Court, the Full Court of the Family Court and the High court, there was ample opportunity to raise the arguments there that were raised here, the orders were final and binding on the plaintiff, the essentials issues were the same, there was no plea of fresh evidence, it would be oppressive and unfair to the defendant, the principle of finality would be undermined, and the balance of justice supported dismissing the proceeding.
Costs
Differential and indemnity orders
In Young & Conway v Chief Executive Officer, Housing (Costs) [2021] NTSC 8, Blokland J declined to make an differential costs order based on success on individual issues, saying the background, context and facts had relevance to most issues a that the appellant was substantially, although not overwhelmingly, more successful than the respondent. Her Honour said it would be unfair to order each party to bear its own costs on the basis the matter had been remitted to NTCAT to determine according to law as this was contrary to practice and would discourage appeals on questions of law. Her Honour declined to award indemnity basis sought because a party conceded an issue. Her Honour said that, although the issue should have been conceded earlier, it was appropriate to take time to consider.
Criminal procedure
In Whittens Pty Ltd v Judge Fong Lim & Anor [2021] NTSC 9, Brownhill J dismissed an application for judicial review of the Local Court’s holding a complaint was valid. Her Honour held that that it is jurisdictional error not to dismiss an invalid complaint, just as it is to dismiss a valid complaint. A reference to ‘workers’ in the complaint referred to, in the context, workers of the accused employer and was not ambiguous. A complaint alleging breach of a duty in failing to take reasonably practicable measures must state what measures should have been taken but need not specify the detailed actions which it was reasonably practicable for the accused to take. It is proper to charge an accused with a breach of its health and safety duty by reference to the acts or omissions of its employees.
Intentional cultivation and taking part
In R v Paton [2020] NTSC 82, Barr J held that the offence under s 6(1) of the Misuse of Drugs Act 1990 (NT) that a ‘person intentionally cultivates, or takes part in the cultivation of, a plant’ requires intention for both cultivation and taking part in cultivation. The word ‘intentionally’ qualifies ‘cultivates’ and ‘takes part in the cultivation’. Even if that is not the case, intention is required for taking part in cultivation because s43AM(1) of the Criminal Code 1983 (NT) state that intention is the fault element where no fault element is specified.
Crime
Serious sex offenders
In The Attorney-General of the Northern Territory v GJM (No 1) [2020] NTSC 76, confirmed on review in The Attorney-General of the Northern Territory v GJM (No 2) [2020] NTSC 77, Kelly J made a final continuing detention order pursuant to s31(1) of the Serious Sex Offenders Act 2013 (NT) in respect of a man of advanced age with a history of repeated sexual offending typically accompanied by aggression, and with an inability to grasp the central tenants of sex offender treatment. He would be a serious danger to the community if released, and there were not the resources to provide sufficient supervision. Verdict unsafe – tasing unnecessary
In Mangurra v Rigby [2021] NTSC 6, Kelly J set aside a conviction for assault police on the basis the trial judge should have had a reasonable doubt that the force used by the officers in tasing the appellant was, objectively, ‘not unreasonable’ and therefore whether they were acting in the execution of their duty.
Sentencing
Assault police
In Rigby v Nawia [2020] NTSC 78, Riley AJ upheld a sentence of three months, suspended after three days, for one bite to the shin of an officer through trousers and abrasions to another officer, saying that it was important to support police and that imprisonment might be generally be expected in some cases including in the case of a deliberate assault in order to impede police from performing their work. This was a lower level, unplanned assault by someone of otherwise reasonable standing. Proof beneficiary aware
In the Estate of Baguley [2021] NTSC 4, Blokland J granted letters of probate to the daughter of the deceased after being satisfied that the estranged but not divorced wife was aware of her potential interest in the claim, and that an equitable interest in the property were properly included in the assets.
Work health
See Criminal procedure – valdity of complaint – ambiguity, specificity, duplicity.
