8 landmark decisions that made headlines in 2017
The year 2017 saw important constitutional questions tried, a divergence in the law settled, old principles reaffirmed and a record defamation damages decision, Alexander Ross Davis writes.
These are eight of the best cases 2017 had to offer:
Uber BV v Howarth  NSWSC 54
Taking the law into his own hands didn’t pay off for Russell Howarth. Mr Howarth made it his mission to arrest Uber drivers. As part of his Arresting Uber campaign, Mr Howarth tailgated and intimidated an Uber driver across the Anzac Bridge in Sydney’s Inner West. At an intersection, the frightened Uber driver asked Mr Howarth “Are you right mate?”. Mr Howarth responded “But are you right mate?” in an aggressive, menacing and intimidating manner.
The court granted a permanent injunction restraining Mr Howarth from intimidating and arresting Uber’s employees. He attempted to justify his arrests on the basis of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 100 – commonly known as the citizen’s arrest power. The court held that Mr Howarth hadn’t exercised the power of arrest in circumstances in which it was necessary, and that he hadn’t exercised the power for the purposes of commencing criminal proceedings.
Wilson v Bauer Media Pty Ltd  VSC 521
The Wilson case dropped a bomb on defamation law in Australia. Rebel Wilson walked away with judgment in her name for approximately $4.5 million. Bauer Media’s publications - Woman's Day, Australian Women's Weekly, New Weekly and OK Magazine - alleged that Ms Wilson was a serial liar. The jury wasn’t impressed. The court held that the defendants engaged in a “campaign to ‘takedown’ the plaintiff, timed to coincide with the release of Pitch Perfect 2 in order to maximise [the] benefit for [their] commercial motives”. Bauer Media has appealed the decision. This will be one to watch in 2018.
Re Canavan & Ors  HCA 45
The High Court of Australia was asked to decide whether the “Citizenship Seven” were eligible to sit in the Senate and House of Representatives. The court held that Joyce, Ludlam, Nash, Roberts and Waters were subject to some kind of foreign allegiance. The standout being the Deputy Prime Minister, who was held to have acquired citizenship of New Zealand from his father. By operation of section 44(i) of the Constitution, they were all deemed to have been “incapable of being chosen or of sitting as a senator or a member of the House of Representatives”.
Despite the government’s confidence that the court would take a liberal approach to interpreting the text of section 44(i), the court preferred a strictly textual construction. The court pointedly held that “[p]roof of a candidate’s knowledge of his or her foreign citizenship status isn’t necessary to bring about the disqualifying operation of s 44(i)”. The citizenship saga is likely to return for further consideration next year.
Wilkie v Commonwealth  HCA 40
The jubilation that greeted the announcement of the result of the same-sex marriage postal survey on 15 November had its roots in the High Court. The decision in Wilkie was predominantly about funding – although, realistically, it will probably go down in legal history as the Same-Sex Marriage Case.
Mr Wilkie, member for the electorate of Denison, advocated the position that the postal survey was a waste of time and money, and that Parliament should instead hold a conscience vote. When it seemed unlikely that the government would adopt that position, Mr Wilkie sought to litigate in the High Court.
The court held that Parliament didn’t impermissibly give up its power to the Finance Minister and the conditions for an advance to the Finance Minister for the purposes of the Appropriation Act (No 1) 2017-2018 (Cth), ss 10 & 12, had been met. This decision allowed the survey to proceed as planned.
Hughes v the Queen  HCA 20
Robert Hughes was charged with 11 counts of sexual offences committed against underage girls. The jury returned a verdict of guilty on 10 of the 11 counts. Under consideration on appeal was the degree of similarity needed to satisfy “sufficient probative value” within the meaning of the Evidence Act 1995 (NSW), s 97(1)(b).
The decision settled a division that was beginning to arise between New South Wales and Victoria regarding the admission of tendency evidence. The High Court positioned itself adverse to the line of case law in Victoria, and held that it wasn’t necessary for the evidence to possess sufficient common features with the conduct in the charge so as to demonstrate a pattern that increases the likelihood of that conduct. Victorian case law had taken a more restrictive approach to the admission of tendency evidence.
Clurname Pty Ltd v McGraw-Hill Financial, Inc  FCA 1319
Justice Wigney granted the representative applicants in Clurname leave to further amend their originating application and statement of claim under the Federal Court Rules 2011 (Cth). The applicants sought to introduce a new cause of action in the tort of deceit.
The proposed amendments were sought in order to “lay the groundwork for a response to [the respondents'] limitation defence to the existing claims”. The proceedings allege that group members sustained losses arising from their investment in synthetic collateralised debt obligations assigned credit ratings by the respondents around the time of the global financial crisis.
Justice Wigney conclusively restated the principle that “[a] person can be said to have relevantly discovered a fraud if they know the facts capable of proving a prima facie case” and accepted the evidence of the applicants that they had no reasonable basis to plead a tort of deceit case until August 2017. The trial will begin in March 2018.
Re 4-Yearly Review of Modern Awards — Penalty Rates  FWCFB 1001
The decision with arguably the most extensive impact in 2017 was the Penalty Rates decision of the Fair Work Commission. The commission considered the penalty rates applicable to a range of workers in the retail and hospitality industries. The commission held that a number of awards didn’t meet the modern awards objective.
The commission stated that while the Fair Work Act 2009 (Cth), s 134(1)(a), is a consideration against the reduction of Sunday penalty rates, the “primary purpose of such penalty rates is to compensate employees for the disutility associated with working on Sundays, it is not designed to address the needs of the low paid”, and that “the extent of the disutility is much less than in times past”. Penalty rates will reduce gradually for those impacted by the decision.
Australian Competition and Consumer Commission v Australian Competition Tribunal  FCAFC 150
Finally, the Federal Court referred the matter of the proposed acquisition of Tatts Group Ltd's (Tatts) by Tabcorp Holding Ltd (Tabcorp) back to the Australian Competition Tribunal for “further consideration”.
Tabcorp and Tatts, possibly understanding the difficulties the proposed merger faced in the Australian Competition and Consumer Commission’s (ACCC) review process, bypassed the ACCC and went straight to the Australian Competition Tribunal for its authorisation. In referring the matter back for further consideration, the court stated “[o]ne way of characterising the legal error is that the Tribunal failed to carry out its task and made a jurisdictional error by omitting to deal with a central issue raised by the ACCC in Tabcorp’s application to the Tribunal”. Perhaps frustratingly for the ACCC the merger was again granted authorisation by the Tribunal.
The year of law in 2017 was a year for the record books. Tim Pollard, general manager of Thomson Reuters’ Australian Legal Portfolio, said: “It’s been a busy year in courts across Australia, and the eight decisions we’re pleased to highlight here reflect only a very small fraction of the remarkable cases produced by the courts. In 2017, our in-house legal editors read and analysed more than 15,000 cases. We look forward to staying on top of further trends in 2018.”
Alexander Ross Davis, senior legal editor, Thomson Reuters Legal Australia