As the 2017 working year begins in earnest, many lawyers will be looking back at the previous year’s landmark cases with pride, dismay, or bewilderment. Indeed, it was a varied 12 months for Australian law – the balance between Church and State was weighed, a game-changing precedent was set for big banks, and a concerning number of defendants claimed “stupidity” as a legal defence.
To help set a bar for the upcoming year, Insights has compiled a list of some of the biggest, strangest, and most significant Australian court cases to be tried in 2016.
National Australia Bank v Rose
For businessman John Rose, it was a victory worth $3.8 million. For the banking sector, it was a landmark loss that could change the manner in which consumer banking is conducted.
In National Australia Bank v Rose, the bank attempted to sue Rose – an entrepreneur responsible for the Stackhat safety helmet – for defaulting on the remainder of an $8 million loan for which he was guarantor.
For his part, Rose launched a counter-suit, claiming he had believed that he had only signed as guarantor for 50% (or $4 million) of the loan. Further, his lawyers argued NAB had failed to adequately inform Rose of the details of the bank guarantee, and had thereby breached the industry code of practice.
In July, the Supreme Court of Victoria upheld a ruling that Rose would not be required to repay the remaining $3.8 million debt. While no doubt a relief for Rose, the decision could have an even more significant impact on the banking industry, setting a precedent which could legally require them to adhere to the heretofore voluntary code of practice.
R v Paul McCauley; R v Christopher Johnston
Drug prosecutions are unfortunately not uncommon in Australia. However, R v Paul McCauley; R v Christopher Johnston highlights a growing trend amongst criminal lawyers: ineptitude as a defence.
In 2014, McCauley and Johnston were charged with importing nearly 50 grams of cocaine, which they had attempted to mail to McCauley’s grandmother’s house. With the evidence beyond dispute, McCauley and Johnston’s lawyers sought to challenge the definition of “marketable quantity” by arguing the defendants had imported the cocaine for personal use.
Johnston’s lawyer, Steve Whybrow, told the jury: “These coke heads found a new way to get coke. You saw [Johnston] in the witness box – he was a terrible coke addict.”
McCauley’s lawyer James Lawton took a similar approach.
“These two are pretty much amateurs at importing cocaine,” he told the court.
“What they did is snort everything they had.”
The matter has yet to be resolved in court, but should the pair beat the charges, they will have some explaining to do to their employers.
Bell Group NV (in liquidation) v Western Australia
It is the case that has spanned over two decades and four nations: Between 1991 and 1993, Alan Bond’s Bell Group of companies went into liquidation, and creditors and professional litigation funders spent the next 23 years vying for control.
Last year, however, the case that refused to end took a turn for the political when Attorney-General George Brandis was accused of striking a clandestine deal with the WA State Government.
Brandis, who has vehemently denied the claims, is accused of agreeing to scuttle a High Court challenge to WA legislation that, if shot down, would allow the State to pursue the nearly $1 billion it was owed from the Bell Group’s demise. Justin Gleeson, who has since resigned as Solicitor-General, claims he was instructed by Brandis not to “run a particular argument” against the legislation.
In response, Gleeson wrote an eviscerating letter to the High Court on behalf of the Australian Tax Office – whose separate attempts to recoup $300 million could have been dashed had the legislation been run dead.
The furor ended with Gleeson’s resignation, claiming his relationship with Brandis was “irretrievably broken”, and with the Labor Party calling for Brandis to be sacked.
In a case which has almost become part of the background of the nation’s legal landscape, Bell Group NV (in liquidation) v Western Australia yielded its share of surprises in 2016.
Elzahed v Cth and NSW
This case saw religion and court protocol clash in a manner that some NSW lawyers have described as an Australia-first.
Moutia Elzahed, wife of convicted Islamic State recruiter Hamdi Alqudsi, unsuccessfully sued both the Federal and NSW Police for assault, false imprisonment, claiming she was punched by police during a terror raid on her Revesby home in September 2014.
However, when asked to testify in her own case, she refused to remove her niqab – a full-face veil – once she took the stand. Her lawyer Clive Evatt cited religious reasons, telling NSW District Court Judge Audrey Balla that Elzahed could not expose he face to any male outside her family. Judge Balla offered to close the court during Elzahed’s testimony, or allow her to provide evidence via video link, however Elzahed refused on the basis of the mostly male legal counsels who would see her face.
With both options rejected, Judge Balla did not allow Elzahed to take the stand while she wore her veil.
The trial also drew controversy when Elzahed refused to stand for Judge Balla on her entry to the court. Evatt explained that, under strict Muslim law, Elzahed is not allowed to stand for anyone other than Allah. In response, NSW Attorney-General Gabrielle Upton has pushed for Elzahed to be the first person charged under the newly minted Courts Legislation Amendment (Disrespectful Behaviour) Bill 2016, which was passed by NSW Parliament in September last year.
Should Elzahed be charged, she could receive a $1,100 fine or up to 14 days in jail.