Jacka v Australian Capital Territory & Anor - [2015] HCATrans 81

[2015] HCATrans 081

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Canberra No C7 of 2014

B e t w e e n -
MITCHELL JACKA
Applicant
and
AUSTRALIAN CAPITAL TERRITORY
First Respondent
CHIEF EXECUTIVE, DEPARTMENT OF JUSTICE AND COMMUNITY SAFETY
Second Respondent
Application for special leave to appeal

KIEFEL J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 17 APRIL 2015, AT 9.29 AM

MR J.S. STELLIOS: May it please the Court, I appear for the applicant. (instructed by Ken Cush & Associates)

MR P.J.F. GARRISSON, SC: May it please the Court, I appear with my friend, MS H. YOUNAN, on behalf of the respondents. (instructed by ACT Government Solicitor)

KIEFEL J: Yes, Mr Stellios.

MR STELLIOS: Your Honours, the application concerns the validity of section 68(2)(f) of the Crimes (Sentence Administration) Act (ACT) authorising an administrative body, the Sentence Administration Board, to cancel the periodic detention of an offender, the result of which is that the offender must serve the sentence on a fulltime basis rather than periodically.

The applicant contends that the provisions are invalid on two independent bases. The first basis has two steps in it. The first step is that the cancellation order involves an exclusive exercise of judicial power. The second step under the first ground is that Chapter III of the Constitution prevents the ACT Legislative Assembly from conferring judicial power on a body that is not a court.

The second independent ground is a Kable ground, your Honours. The argument is that the cancellation order contravenes the requirements of the Kable principle. The ACT Court of Appeal rejected the first step in our argument under the first ground but did not consider the second step, and the Court of Appeal also rejected the second ground. Your Honours, I will leave the second step of the first ground to our written submissions and in oral submissions I will focus on the first step in the first ground and the second ground ‑ ‑ ‑

KIEFEL J: That is not the least because you do not get to the second ground unless you establish the first, so your special leave point either inheres in there or it does not.

MR STELLIOS: That is correct, your Honour, and we do not get to the second step if we are successful on the second ground. Your Honours, before I move to our substantive submissions, it is put against us that the periodic detention provisions are being phased out and consequently the question is of limited operation or application.

Your Honours, to demonstrate the impact the scheme has had on the liberty of a considerable number of people, we have handed up a table of statistics in relation to periodic detention over the last five years. The figures are drawn from the annual reports of the relevant ACT Government department.

Now, just some caveats about the figures, your Honours - there was some inconsistency…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] HCATrans 81
Decision Date

CaseChat Overview and Summary

The High Court of Australia heard an appeal from the Supreme Court of the Australian Capital Territory in a dispute between the appellant, Jacka, and the respondents, the Australian Capital Territory and the Commonwealth of Australia. The proceedings concerned the appellant's claim for damages arising from alleged breaches of duty of care by the respondents in relation to the management of the appellant's financial affairs.

The central legal issue before the High Court was whether the respondents owed the appellant a duty of care in the management of his financial affairs, and if so, whether that duty had been breached. This involved considering the scope of any such duty and the circumstances under which it might arise, particularly in the context of government agencies interacting with individuals regarding financial matters.

The High Court determined that the respondents did not owe the appellant a duty of care in the manner alleged. Their Honours found that the relationship between the appellant and the respondents was not one that attracted a duty of care in negligence. The Court reasoned that the actions of the respondents, as described, did not establish the necessary proximity or assumption of responsibility required to impose such a duty. Consequently, the appeal was dismissed.

Orders