diff --git "a/AUS/train.tgt.txt" "b/AUS/train.tgt.txt"
new file mode 100644--- /dev/null
+++ "b/AUS/train.tgt.txt"
@@ -0,0 +1,815 @@
+HIGH COURT OF AUSTRALIA 2 March 2016 STATE OF VICTORIA v TATTS GROUP LIMITED [2016] HCA 5 Today the High Court unanimously allowed an appeal from the Court of Appeal of the Supreme Court of Victoria. The High Court held that Tatts Group Limited ("Tatts") was not entitled to payment by the State of Victoria ("the State") under an agreement between them because a "new gaming operator's licence" was never issued. The appeal was heard concurrently with the appeal in Tabcorp Holdings Ltd v Victoria [2016] HCA 4. In 1992, Tatts was granted a "gaming operator's licence" under Pt 3 of the Gaming Machine Control Act 1991 (Vic) ("the 1991 Act"). That licence was to expire in 2012 and authorised Tatts to conduct gaming on gaming machines at approved venues in Victoria until that time. In 1995, the State and Tatts entered into an agreement ("the 1995 Agreement"). Clause 7 provided for a terminal payment to be paid to Tatts "[i]f the Gaming Operator's Licence expires without a new gaming operator's licence having issued to [Tatts]" but for no amount to be payable if a new gaming operator's licence was not issued at all, or was issued to Tatts or a related entity of Tatts. In 2003, multiple pieces of legislation in Victoria regulating gambling in its various forms, including the 1991 Act, were re-enacted and consolidated into the Gambling Regulation Act 2003 (Vic) ("the 2003 Act"). Tatts retained the authority to carry on gaming operations under its gaming operator's licence on substantially the same terms as under the 1991 Act. In 2008, the Premier of Victoria announced that Tatts' gaming operator's licence would not be renewed upon its expiry. In 2009, the 2003 Act was amended so that no further gaming operator's licences could be issued. The amendments also provided for a new authority called a "gaming machine entitlement" ("GME"). A GME permitted the holder to conduct gaming on an approved gaming machine. 27,500 GMEs were created. They came into effect on 16 August 2012, being the day after Tatts' gaming operator's licence expired. Tatts did not apply for, or receive, any GMEs. The result was that the gaming operations which Tatts conducted under its gaming operator's licence ceased and were then carried on by the holders of GMEs. Tatts claimed it was entitled to payment under cl 7 of the 1995 Agreement. The primary judge found in Tatts' favour, concluding that the reference in cl 7 of the 1995 Agreement to the issue of a "new gaming operator's licence" would have been understood by a reasonable businessperson as the issue of any licence or authority of substantially the same kind as Tatts' existing gaming operator's licence. The Court of Appeal upheld that conclusion. By grant of special leave, the State appealed to the High Court. The High Court allowed the State's appeal and unanimously held that the phrase "new gaming operator's licence" in cl 7 of the 1995 Agreement referred to a gaming operator's licence granted under Pt 3 of the 1991 Act (as it might be amended, re-enacted or replaced from time to time). As a "new gaming operator's licence" was never issued, Tatts was not entitled to payment under cl 7 of the 1995 Agreement.
+HIGH COURT OF AUSTRALIA 15 August 2012 [2012] HCA 27 Today the High Court dismissed an appeal by Khalid Baker against his conviction for murder. The Court held that out-of-court confessional statements of the appellant's co-accused, LM, were inadmissible in the appellant's trial. In 2005, the appellant was involved in an altercation at a party in Brunswick, Victoria. In the course of the altercation, a young man crashed through a window and fell to his death. The appellant and LM were charged with murder. On the Crown case, the appellant and LM were acting in concert, or one was aiding and abetting the other. The precise circumstances of the fall were unknown. A push or punch may have projected the deceased through the window, or the window may have shattered as he backed away from the altercation. On either view, the act or acts of the appellant and LM were capable of being the legal cause of death. On the evening of the incident, LM admitted in a police interview that he had pushed the deceased. LM also made statements to witnesses which were capable of being viewed as an admission of responsibility for the deceased's fall. The appellant and LM were jointly tried in the Supreme Court of Victoria. Witnesses gave different versions of the altercation. The appellant sought to rely on LM's out-of-court statements as evidence exculpating himself. Subject to some exceptions, the rule against hearsay precludes the admission of an out-of-court statement as evidence of the fact asserted in that statement. The trial judge ruled that LM's out-of-court statements were inadmissible in the appellant's trial. The jury found the appellant guilty and LM not guilty. The appellant appealed against his conviction to the Court of Appeal of the Supreme Court of Victoria on grounds including that LM's out-of-court statements were wrongly excluded. The Court of Appeal dismissed the appeal. By special leave, the appellant appealed to the High Court on the basis that LM's out-of-court statements were wrongly excluded. The appellant's principal contention was that a limited exception to the hearsay rule should be allowed for joint trials where a co-accused’s admission is reliable. The appellant argued that LM's admissions were reliable because they were made against LM's penal interest. The appellant's broad contention was that it was appropriate to recognise a new exception to the hearsay rule for third party confessions in order to bring the common law into line with the uniform Evidence Act provisions governing the reception of hearsay evidence when a witness is unavailable. The High Court dismissed the appeal. The Court held that the exclusion of the out-of-court statements was not unfair and did not occasion a miscarriage of justice in the appellant's trial. The appellant had intended to rely on LM's statements as an admission that LM had caused the fall of the deceased. However, the Court found that LM had not made such an admission: he admitted to pushing the deceased, but did not admit sole guilt. Further, LM's assertions which conveyed that the appellant was not involved in the assault on the deceased before his fall were not evidently against LM's penal interest. The admissions were also consistent with the Crown case.
+HIGH COURT OF AUSTRALIA 10 September 2014 COMMONWEALTH BANK OF AUSTRALIA v BARKER [2014] HCA 32 Today the High Court unanimously allowed an appeal from a decision of the Full Court of the Federal Court of Australia and held that a term of mutual trust and confidence should not be implied by law in employment contracts. Stephen Barker’s employment with the Commonwealth Bank of Australia (“the Bank”) was terminated by reason of redundancy on 9 April 2009. On 2 March 2009, Mr Barker was told that his position was to be made redundant and that if he was not redeployed within the Bank, which was the Bank’s preference, his employment would be terminated approximately four weeks thereafter. Having been deprived of access to his Bank email account and voicemail, Mr Barker was not informed about an alternative position within the Bank until 26 March 2009. He was not contacted by the recruitment consultant involved in facilitating the recruitment process for that position, nor was the possibility of retraining for that role discussed with him. Mr Barker commenced proceedings against the Bank in the Federal Court of Australia. He alleged that the conduct of the Bank was in breach of an implied term of mutual trust and confidence and resulted in him being denied the opportunity of redeployment. The primary judge held that there was a term of mutual trust and confidence implied in the agreement between Mr Barker and the Bank and that the Bank’s serious breach of its own redeployment policy amounted to a breach of that implied term. The Full Court, by majority, agreed that a term of mutual trust and confidence was implied by law into the agreement, but held that the primary judge erred in treating the term as co-extensive with an obligation to observe the redeployment policy. The majority held that the implied term required that the Bank take positive steps to consult with Mr Barker about alternative positions within the Bank and give him the opportunity to apply for them. By failing to make contact with him for a period which the primary judge had found to be unreasonable, the term had been breached. By grant of special leave, the Bank appealed to the High Court. The question in the appeal was whether employment contracts contain a term of mutual trust and confidence implied by law that the parties will not, without reasonable cause, conduct themselves in a manner likely to destroy or seriously damage the relationship of trust and confidence between them. Allowing the appeal, the Court held that the proposed term was not necessary in the sense that would justify implying it by law into all employment contracts.
+HIGH COURT OF AUSTRALIA 16 May 2016 BELL GROUP N.V. (IN LIQUIDATION) v WESTERN AUSTRALIA; W.A. GLENDINNING & ASSOCIATES PTY LTD v WESTERN AUSTRALIA; MARANOA TRANSPORT PTY LTD (IN LIQ) v WESTERN AUSTRALIA [2016] HCA 21 Today the High Court unanimously held that the Bell Group Companies (Finalisation of Matters and Distribution of Proceeds) Act 2015 (WA) ("the Bell Act") is invalid in its entirety by the operation of s 109 of the Constitution because of inconsistency between its provisions and provisions of the Income Tax Assessment Act 1936 (Cth) and the Taxation Administration Act 1953 (Cth) (collectively, "the Tax Acts"). In November 2015, the Parliament of Western Australia enacted the Bell Act "to provide a legislative framework for the dissolution, and administration of the property, of The Bell Group Ltd ACN 008 666 993 (In Liquidation) and certain of its subsidiaries and for related purposes". The Bell Act was enacted to deal with a list of companies, each defined in the Bell Act as a "WA Bell Company" and each either in liquidation or deregistered. The Commonwealth is a substantial creditor of a number of WA Bell Companies in respect of taxation liabilities. The purported legal operation and practical effect of the Bell Act is that the State of Western Australia ("the State") collects, pools, and vests in a State authority, the property of each WA Bell Company. The State then determines in its "absolute discretion" who is paid an amount or has property transferred to or vested in them out of the pooled property (if anyone). To the extent that the State chooses not to distribute the pooled property of the WA Bell Companies, the surplus vests in the State. In each proceeding, the parties stated a special case and questions of law arising for the opinion of the Full Court. The questions of law include whether the Bell Act (or certain provisions of the Bell Act) is invalid by the operation of s 109 of the Constitution because of inconsistency with one or more provisions of the Tax Acts. By majority, the High Court held that the Bell Act purports to create a scheme under which Commonwealth tax debts are stripped of the characteristics ascribed to them by the Tax Acts as to their existence, their quantification, their enforceability and their recovery. The rights and obligations which arose and had accrued to the Commonwealth as a creditor of the WA Bell Companies in liquidation, and to the Commissioner of Taxation, under a law of the Commonwealth prior to the commencement of the Bell Act are altered, impaired or detracted from by the Bell Act. That alteration or impairment of, or detraction from, the Tax Acts engages s 109 of the Constitution which operates to render the offending provisions of the Bell Act invalid. It was not possible to read down offending aspects of the Bell Act nor were the offending provisions able to be severed from the rest of the Bell Act. The Court held, therefore, that the Bell Act is invalid in its entirety. That being so, the Court found it unnecessary to consider other challenges to the validity of the Bell Act.
+HIGH COURT OF AUSTRALIA 4 May 2011 ROACH v THE QUEEN [2011] HCA 12 Mr Roach was convicted by a jury of assault occasioning bodily harm, arising out of an alleged incident with the complainant, a woman with whom he had been in an intermittent relationship for two and a half years. Mr Roach had telephoned the complainant asking if he could visit her. Shortly thereafter he arrived at the complainant's house, and immediately went to get a drink from the refrigerator. When the complainant suggested that he ought not to help himself before being invited to do so, Mr Roach allegedly punched her face and arms, then pulled on her left arm, which he had previously injured. He then spoke aggressively to her, before punching her another eight times. At Mr Roach's trial in the District Court of Queensland, the trial judge admitted evidence of other assaults by Mr Roach upon the complainant in the course of their relationship. Section 132B of the Evidence Act 1977 (Qld) ("the Act") applies, inter alia, to proceedings for assault occasioning bodily harm and states that "[r]elevant evidence of the history of the domestic relationship between the defendant and the person against whom the offence was committed is admissible in evidence in the proceeding." In the Court of Appeal Mr Roach argued that, in considering whether to admit such evidence under s 132B, the trial judge ought not to admit that evidence if, in the context of the prosecution case, there was a reasonable view of that evidence consistent with innocence ("the rule in Pfennig"). The rule in Pfennig recognises the prejudicial effect of evidence used to prove a propensity of the accused ("propensity evidence"), and applies at common law to propensity evidence as a measure of the probative force of that evidence. Mr Roach contended alternatively that if the evidence were admitted, the jury ought to have been directed that they could not rely upon it unless satisfied of its truth beyond reasonable doubt. The Court of Appeal rejected both arguments and dismissed the appeal. It held that the sole test for admissibility under s 132B of the Act is relevance, and that the rule in Pfennig had no application. In the High Court, Mr Roach advanced the same arguments. He argued further, and in the alternative, that the rule in Pfennig ought to be considered and applied in connection with s 130 of the Act. Section 130 provides that nothing in the Act "derogates from the power of the court in a criminal proceeding to exclude evidence if the court is satisfied that it would be unfair to the person charged to admit that evidence." Today the High Court dismissed the appeal. It observed that s 132B has a potentially wide operation not restricted to similar fact evidence tendered to prove propensity on the part of the accused, and that the sole test of admissibility for evidence of domestic violence in the history of a relationship is relevance. The Court observed that, while the rule in Pfennig addressed the same factors as are relevant to a court's discretion to exclude evidence on the basis of unfairness, the rule in Pfennig was of the nature of an exclusionary rule of law rather than a discretion. Therefore the rule could not be imported into the power referred to in s 130, which is discretionary in nature. In relation to the adequacy of the directions to the jury, the High Court held that the directions explaining the limited use to which the evidence of the history of the relationship between Mr Roach and the complainant may be put were sufficient, and that it was neither necessary nor appropriate for any direction to be given about the standard of proof to be applied to that evidence. Contrary to the view taken in the Court of Appeal, the High Court observed that there was a dual purpose for which the evidence was tendered: evidence both of the alleged offence and as "relationship" evidence.
+HIGH COURT OF AUSTRALIA 14 August 2019 PALMER & ORS v AUSTRALIAN ELECTORAL COMMISSION & ORS [2019] HCA 24 Today the High Court published its reasons for orders made on 7 May 2019 dismissing a challenge to a practice of the Australian Electoral Commission ("the Commission"). The Court unanimously held that the Commission could publish information about an indicative two-candidate preferred count ("the Indicative TCP Count") for a Division of the House of Representatives as soon as polls closed in that Division. Since 1992, s 274(2A)-(2C) of the Commonwealth Electoral Act 1918 (Cth) ("the Electoral Act") has required the scrutiny of votes in an election for each Division to include the Indicative TCP Count. It is a count of preference votes (other than first preference votes) on the ballot papers that, in the opinion of the Australian Electoral Officer, will best provide an indication of the candidate most likely to be elected for the Division. The Commission's established practice is that, from the close of polls in a Division, or shortly thereafter, the Commission's website, "The Tally Room", displays the identity of the candidates in respect of whom the Indicative TCP Count will be undertaken and, in most cases, a "matched polling place projection" based on progressive results of the Indicative TCP Count. The plaintiffs were endorsed and nominated by the United Australia Party as candidates in a Division of the House of Representatives or for the Senate in the federal election held on 18 May 2019. Prior to that election, the plaintiffs filed an application for a constitutional or other writ in the original jurisdiction of the Court seeking to challenge the practice of the first defendant, the Commission, in making public, while polls remained open in some parts of Australia, one or both of the identity of the candidates selected by the Commission for the purpose of the Indicative TCP Count in a Division and the progressive results of any of those indicative counts (collectively, "the TCP Information"). The plaintiffs submitted that publishing the TCP Information after polls closed in the relevant Division but before the polls closed in all parts of the nation is not authorised by the Electoral Act. In particular, they submitted that by publishing that information, the Commission would not be impartial or avoid the appearance of favouring one or more of the candidates. They also submitted that by publishing that information while the polls remained open in any part of the nation, the Commission "would impermissibly distort the voting system in a manner that would compromise the representative nature of a future Parliament", contrary to ss 7 and 24 of the Constitution. The High Court unanimously held that the plaintiffs' contentions about the Indicative TCP Count process, which underpinned both their statutory and constitutional challenges, lacked a factual foundation. The selection of candidates for the Indicative TCP Count was not shown to be inaccurate or misleading, and publication of the TCP Information does not constitute the Commission giving any imprimatur to any particular candidate or outcome. Accordingly, s 7(3) of the Electoral Act, which provides that "[t]he Commission may do all things necessary or convenient to be done for or in connection with the performance of its functions", empowers the Commission to publish the TCP Information as soon as the polls close in the relevant Division.
+HIGH COURT OF AUSTRALIA Public Information Officer 5 September, 2003 CHIEF EXECUTIVE OFFICER OF CUSTOMS v LABRADOR LIQUOR WHOLESALE PTY LIMITED, LAWRENCE ERIC WRIGHT AND JEFFREY ANDREW JOHN BRYCE The standard of proof for prosecutions for customs and excise offences was proof beyond reasonable doubt, the High Court of Australia held today, even where those prosecutions are framed as civil actions. This was a higher standard than the alternative, on the balance of probabilities. Labrador Liquor and its two directors allegedly unlawfully failed to pay certain customs and excise duties due on alcohol and cigarettes by falsely claiming that the goods had been exported to the Solomon Islands and Fiji in 1996. The Queensland Supreme Court held that the standard of proof was the civil standard, on the balance of probabilities, and that the customs and excise prosecutions were not criminal proceedings. The Court of Appeal held, by majority, that the criminal standard of proof, beyond reasonable doubt, applied and that the prosecutions were criminal proceedings for the purposes of the Queensland Evidence Act. Customs appealed to the High Court, seeking to have the civil standard of proof apply. The High Court allowed the appeal in part. It unanimously held that to obtain a conviction for any of the particular offences under the Customs Act and the Excise Act, the elements of the offence must be established beyond reasonable doubt. However, the provisions of the Evidence Act which would be applied by the Queensland Supreme Court in civil cases, in particular the admissibility of documentary evidence, are to be applied.
+HIGH COURT OF AUSTRALIA 10 August 2005 JURE JACK RONCEVICH v REPATRIATION COMMISSION A soldier who injured his knee when he fell from a window after drinking a large quantity of beer may be entitled to compensation, the High Court of Australia held today. Mr Roncevich was a non-commissioned officer (NCO) in the Australian Army from 1974 to 1998, rising to warrant officer (class 1) at the time of his voluntary discharge. On 27 February 1986, Mr Roncevich, then a sergeant, attended drinks and dinner for a visiting senior officer at the Sergeants’ Mess at Holsworthy Military Barracks in Sydney where he was stationed. NCOs on base were expected to attend such functions for distinguished visitors. Mr Roncevich had drunk six to eight cans of full-strength beer before excusing himself to change into civilian clothes and to iron his uniform for the next day. In his room, on the second floor of the barracks, he opened his window and stood on a trunk beneath the window to lean out to spit. He overbalanced and fell to the ground, causing an internal derangement of his left knee. On his retirement from the Army, Mr Roncevich made a claim under the Veterans’ Entitlements Act seeking compensation for various injuries he suffered during his service, including the knee injury. The Repatriation Commission rejected the claim for the knee, a decision upheld by the Administrative Appeals Tribunal (AAT). The Federal Court of Australia held that the AAT’s decision was affected by error of law and the matter was remitted to the AAT for a fresh hearing. The AAT again rejected Mr Roncevich’s claim, holding that his injury was caused by intoxication and did not occur in the course of his defence service. The Federal Court and the Full Court of the Federal Court, by majority, upheld this decision. Mr Roncevich appealed to the High Court. The Court unanimously allowed the appeal. It held that the AAT, in asking itself whether Mr Roncevich’s intoxication was caused by, or arose out of, a task that he had to do as a soldier, it posed the wrong question. Under section 70(5) of the Act, the question the AAT should have asked was whether the injury arose out of, or was attributable to, any defence service by Mr Roncevich. Evidence in the case showed a requirement and an expectation of attendance at the Mess and the consumption of alcoholic drinks. Mr Roncevich’s need to return to his quarters to prepare his uniform for the next day was also capable of being seen to have arisen out of, or to have been attributable to, his defence service. On the remaining question whether climbing on to the box and falling through the window because he was intoxicated was also related to his defence service, the Court held that it was relevant that there was no suggestion of misconduct or a breach of discipline, and that the inebriation and the accident while performing the duty of preparing a uniform occurred on base. The Court also held that the terms “arising out of” and “attributable” gave “defence- caused” a broad meaning. It held that it was not appropriate for the High Court or the Federal Court to decide the ultimate question whether Mr Roncevich’s injury was defence-caused, and remitted the case to the AAT to be determined according to law.
+HIGH COURT OF AUSTRALIA 9 August 2017 IL v THE QUEEN [2017] HCA 27 Today the High Court, by majority, allowed an appeal from a decision of the Court of Criminal Appeal of the Supreme Court of New South Wales. The appellant was tried in the Supreme Court of New South Wales. Count 1 on the indictment charged the appellant with manufacturing a large commercial quantity of a prohibited drug, namely methylamphetamine. Count 2 charged the appellant with murder, or alternatively manslaughter, pursuant to s 18(1) of the Crimes Act 1900 (NSW). At trial, the Crown alleged that the appellant had committed the offence in Count 1 by participating with the deceased in a joint criminal enterprise to manufacture a large commercial quantity of methylamphetamine. The Crown case on Count 2 was that the appellant was guilty of "felony" or "constructive" murder, or alternatively manslaughter, because the act which caused the deceased's death was committed in the course of the joint criminal enterprise to manufacture a large commercial quantity of methylamphetamine, an offence punishable by imprisonment for life. The act causing death was the lighting of a gas ring burner in a small and inadequately ventilated bathroom, which caused a fire. Although the Crown could not exclude the possibility that the deceased had lit the gas ring burner himself and so was killed accidently as a result of his own act, the Crown argued that, because the appellant participated with the deceased in the joint criminal enterprise, the appellant was criminally liable for all acts committed in the course of carrying out that enterprise for the purposes of s 18(1) of the Crimes Act. At the close of the Crown case, the appellant moved for directed verdicts of not guilty in respect of each of the alternative counts in Count 2. The trial judge acceded to that application and directed the jury accordingly. On appeal, the Court of Criminal Appeal held that the trial judge was incorrect to direct a verdict of acquittal on each of the alternative counts. By grant of special leave, the appellant appealed to the High Court. By majority, the Court allowed the appeal. Three Justices allowed the appeal on the basis that s 18(1) of the Crimes Act is not engaged if a person kills himself or herself. Two Justices allowed the appeal on the basis that it is not open to attribute criminal liability to one participant in a joint criminal enterprise for an act committed by another participant in the course of carrying out that enterprise unless the act is, or is part of, the actus reus of a crime. Assuming the deceased lit the gas ring burner, that act was not the actus reus of the crime of murder or manslaughter. The appeal was therefore allowed, and the verdicts of acquittal on Count 2 reinstated.
+HIGH COURT OF AUSTRALIA 11 September 2012 RAYMOND HOWARD LYLE DOUGLASS v THE QUEEN [2012] HCA 34 On 16 August 2012, the High Court allowed an appeal by the appellant against his conviction for the aggravated indecent assault of his granddaughter, CD, and directed that his conviction be quashed and a verdict of acquittal be entered. Today the High Court published its reasons for allowing the appeal. The appellant was alleged to have persuaded CD to hold his penis on an occasion when the two were alone in a shed. CD was aged three years at the time of the alleged offence. The appellant was tried by a judge without a jury in the District Court of South Australia. The only evidence of the offence came from CD in unsworn statements made by her in an interview with a psychologist which took place a few weeks after CD's fourth birthday. The limited detail of CD's allegation in the interview was given in response to leading questions and only after she had failed to recall the incident on three occasions. Subsequently, CD had given inconsistent accounts of the scene of the alleged offence. It was also at least possible that CD could not recall the day of the alleged offence by the time she gave evidence 22 months later. The appellant gave sworn evidence denying the allegation against him. He was convicted and sentenced to three years' imprisonment with a non- parole period of 18 months. The appellant appealed to the Court of Criminal Appeal of the Supreme Court of South Australia on two grounds. The first ground of appeal was that the trial judge had failed to give sufficient reasons for the verdict. The appellant complained that the judge had arrived at a conclusion of guilt without rejecting his sworn denial of the offence. The second ground of appeal was that CD's evidence was insufficient to establish proof of the offence beyond reasonable doubt. The appeal was dismissed. In the High Court, the appellant was successful on both grounds. On the first ground, the Court found that the trial judge's failure to record any finding respecting the appellant's evidence left as one possibility that the judge simply preferred CD's evidence and convicted upon it applying less than the standard of proof beyond reasonable doubt. The absence of reasons sufficient to exclude that possibility constituted legal error. On the second ground, the High Court observed that the trial judge's finding was of satisfaction beyond reasonable doubt of the truthfulness of CD's evidence and that he had not addressed the distinct question of the reliability of CD's evidence to establish the commission of the offence beyond reasonable doubt. The problems with CD's evidence meant that it was not sufficient to support a conclusion beyond reasonable doubt that the offence that the appellant was charged with had occurred. Success on the second ground required that the appellant's conviction be quashed and a verdict of acquittal be entered.
+HIGH COURT OF AUSTRALIA 21 March 2018 [2018] HCA 11 the High Court unanimously held (Parliamentary Today Disqualifications) Act 1975 (Cth) ("the Common Informers Act") does not confer jurisdiction upon the Court to decide whether a person is a person declared by the Constitution to be incapable of sitting as a senator or as a member of the House of Representatives. the Common Informers that On 20 July 2016 Dr David Gillespie was declared elected as a member of the House of Representatives. On 7 July 2017, Mr Peter Alley commenced proceedings against Dr Gillespie under the Common Informers Act claiming the imposition of penalties on the basis that Dr Gillespie was incapable of being chosen and of sitting as a member of the House of Representatives pursuant to s 44(v) of the Constitution. Section 44(v) relevantly provides that "[a]ny person who ... has any direct or indirect pecuniary interest in any agreement with the Public Service of the Commonwealth ... shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives." Mr Alley alleges that Dr Gillespie had a direct or indirect pecuniary interest in a lease agreement between a company in which Dr Gillespie holds shares and Australia Post. Whether Dr Gillespie is liable to a penalty under the Common Informers Act requires an anterior determination as to whether he has been or is incapable of sitting as a member of the House of Representatives. On 29 September 2017, Bell J referred the question of whether the High Court has jurisdiction to decide Dr Gillespie's eligibility to the Full Court. Section 46 of the Constitution provides that "[u]ntil the Parliament otherwise provides, any person declared by this Constitution to be incapable of sitting as a senator or as a member of the House of Representatives shall, for every day on which he so sits, be liable to pay the sum of one hundred pounds to any person who sues for it in any court of competent jurisdiction." The Parliament otherwise provided by enacting the Common Informers Act, which limits the amount a person might have to pay by way of penalty. Section 47 of the Constitution relevantly provides that "[u]ntil the Parliament otherwise provides, any question respecting the qualification of a senator or of a member of the House of Representatives ... shall be determined by the House in which the question arises." The Parliament has also otherwise provided with respect to s 47. Section 376 of the Commonwealth Electoral Act 1918 (Cth) ("the Electoral Act") provides that either House may refer any question concerning the qualification of a senator or member of the House of Representatives to the Court of Disputed Returns. The High Court unanimously held that while s 46 of the Constitution allows for the imposition and recovery of a penalty in a common informer action, the anterior question of liability is to be determined by the means provided by s 47. The Court ordered that the proceeding under the Common Informers Act be stayed until the question of whether Dr Gillespie is incapable of sitting as a member of the House of Representatives is determined pursuant to s 47 of the Constitution or s 376 of the Electoral Act.
+HIGH COURT OF AUSTRALIA 18 June 2014 PLANTIFF S156/2013 v MINISTER FOR IMMIGRATION AND BORDER PROTECTION & ANOR [2014] HCA 22 Today the High Court unanimously upheld the validity of two provisions in subdiv B of Div 8 of Pt 2 of the Migration Act 1958 (Cth) ("the Act"), as well as two decisions made under those provisions by the Minister for Immigration and Border Protection ("the Minister"). The plaintiff, a citizen of the Islamic Republic of Iran, entered Australia's migration zone by sea at Christmas Island on 23 July 2013. His method of entry into Australia qualified him as an "unauthorised maritime arrival" ("UMA") under s 5AA of the Act. After arriving at Christmas Island, the plaintiff was detained by an officer of the Department of Immigration and Border Protection and subsequently removed to an assessment centre on Manus Island in the Independent State of Papua New Guinea ("PNG"). The plaintiff commenced proceedings in the original jurisdiction of the High Court, challenging the validity of ss 198AB and 198AD of the Act on the ground that neither provision is supported by any head of power in s 51 of the Constitution. Section 198AB provides that the Minister may designate that a country is a regional processing country. Section 198AD provides that UMAs must be taken from Australia to a regional processing country. Where there are two or more regional processing countries, s 198AD(5) provides that the Minister must give a written direction to take a UMA, or a class of UMAs, to the regional processing country specified in the direction. The plaintiff also challenged the validity of the Minister's decision of 9 October 2012 to designate PNG as a regional processing country under s 198AB ("the designation decision") and the Minister's decision of 29 July 2013 to give a written direction under s 198AD(5) to take UMAs to PNG or to the Republic of Nauru ("the direction decision"). On 13 February 2014, a case was stated and questions reserved for the consideration of the Full Court. The High Court unanimously held that ss 198AB and 198AD are valid under the aliens power conferred by s 51(xix) of the Constitution. The provisions operate to effect the removal of UMAs from Australia and are therefore laws with respect to a class of aliens. The Court also upheld the validity of the designation decision and the direction decision. It held that there is nothing in the text or scope of subdiv B to support the plaintiff's argument that there were relevant considerations which the Minister was obliged to, but did not, take into account in making the designation decision. The Court dismissed the plaintiff's other grounds for challenging the decisions and held that the proceedings are otherwise able to be remitted to the Federal Circuit Court of Australia.
+HIGH COURT OF AUSTRALIA 23 June 2005 DIANE McGRATH FINGLETON v THE QUEEN The High Court of Australia today unanimously allowed an appeal by Ms Fingleton, the former Chief Magistrate of Queensland, and quashed her conviction for unlawful retaliation against a witness, holding that the conduct that led to the charge was protected by the immunity against criminal prosecution conferred by the Magistrates Act. Section 30 of Queensland’s Criminal Code provides: “Except as expressly provided by this Code, a judicial officer is not criminally responsible for anything done or omitted to be done by the judicial officer in the exercise of the officer’s judicial functions, although the act done is in excess of the officer’s judicial authority, or although the officer is bound to do the act omitted to be done.” Section 21A of the Magistrates Act provides: “A magistrate has, in the performance or exercise of an administrative function or power conferred on the magistrate under an Act, the same protection and immunity as a magistrate has in a judicial proceeding in a Magistrates Court.” The Chief Magistrate’s responsibilities included assigning magistrates to locations throughout Queensland. Postings had been a source of tension between Chief Magistrates and the Magistrates Association. The Magistrates Act established a judicial committee to review grievances about a Chief Magistrate’s determinations. In July 2002, Ms Fingleton decided to transfer Anne Thacker from Brisbane to Townsville. Ms Thacker applied for a review by the committee and wrote to the Magistrates Association seeking information about other transfers. Association vice-president and the coordinating magistrate for Beenleigh, Basil Gribbin, provided an affidavit in support of Ms Thacker in the review proceedings. Ms Fingleton provided an affidavit in reply. Friction between her and Mr Gribbin arose regarding an item he was circulating for the agenda for a meeting of coordinating magistrates without discussing it with Ms Fingleton. The day before the meeting, she emailed Mr Gribbin a letter asking him to show cause why she should not exercise her power to remove him from the position of coordinating magistrate. She obtained legal advice before sending the letter. She objected to him providing an affidavit for Ms Thacker as he had never discussed transfers with her and she accused him of disloyalty for circulating the proposed agenda item. Ms Fingleton was charged with causing or threatening harm without reasonable cause in retaliation for something lawfully done in a judicial proceeding, an offence under section 119B of the Criminal Code. She denied sending the letter as payback for Mr Gribbin’s support of Ms Thacker and said she sent it as his conduct showed she did not have his confidence and loyalty. Ms Fingleton was convicted in a second trial in the Queensland Supreme Court after the first trial resulted in a jury disagreement. Because she was found guilty of this charge, the jury was not required to return a verdict upon an alternative charge of attempting to pervert the course of justice. The Court of Appeal dismissed an appeal against conviction but it suspended her sentence of 12 months’ imprisonment for two years after she served six months in jail. The sole ground of appeal to the Court of Appeal was that no reasonable jury could have found beyond reasonable doubt an absence of reasonable cause in Ms Fingleton’s conduct. Neither section 21A of the Act nor section 30 of the Code were raised either at her trial or in the Court of Appeal. Those provisions were first raised by the High Court when considering Ms Fingleton’s application for special leave to appeal, and were the basis of the primary ground of appeal. If she had available a point of law which was a complete answer to the charges against her, the point could be raised for the first time in the High Court. The Court held that Ms Fingleton should not have been held criminally responsible for her conduct. She was entitled under the Act and the Code to an immunity that was wrongly denied to her. Ms Fingleton’s conduct in calling upon Mr Gribbin to show cause why he should not be removed was conduct in the exercise of an administrative power conferred on her by section 10(2) of the Act.
+HIGH COURT OF AUSTRALIA 11 November 2015 NORTH AUSTRALIAN ABORIGINAL JUSTICE AGENCY LIMITED & ANOR v NORTHERN TERRITORY OF AUSTRALIA [2015] HCA 41 Today the High Court, by majority, dismissed an application for a declaration that Div 4AA of Pt VII of the Police Administration Act (NT) ("the Act") is invalid. Section 133AB(1) of the Act, which appears in Div 4AA, provides that the section applies if a member of the Police Force has arrested a person without a warrant in accordance with s 123 because the member believed on reasonable grounds that the person had committed, was committing or was about to commit an infringement notice offence. Section 133AB(2) provides that the member may take the person into custody and hold him or her for a period of up to four hours or, if the person is intoxicated, until the member reasonably believes that the person is no longer intoxicated. Section 133AB(3) provides that at the expiry of the relevant period in sub-s (2), the member may release the person unconditionally, with an infringement notice or on bail, or may bring the person before a justice of the peace or court. The first plaintiff provides legal services to Aboriginal and Torres Strait Islander persons in the Northern Territory. The second plaintiff, an Aboriginal person resident in the Northern Territory, was arrested by members of the Northern Territory Police Force in Katherine on 19 March 2015 and was detained pursuant to Div 4AA for a period of close to 12 hours. The first plaintiff commenced proceedings in the original jurisdiction of the High Court, joined by the second plaintiff. The plaintiffs sought a declaration that Div 4AA is invalid. The plaintiffs contended that Div 4AA is invalid because it confers powers on the Northern Territory Executive which are penal or punitive in character, and that this is beyond the legislative power of the Northern Territory because that power is subject to the same doctrine of the separation of judicial power which limits the legislative power of the Commonwealth. The plaintiffs also contended that Div 4AA is invalid because it confers powers on the Northern Territory Executive which undermine or interfere with the institutional integrity of the Northern Territory courts. The parties agreed a special case which asked the Court to determine whether Div 4AA of Pt VII is invalid. The High Court, by majority, held that Div 4AA is valid. A majority of the Court held that, upon the proper construction of Div 4AA, the powers it confers on members of the Police Force are not penal or punitive in character and do not impair, undermine or detract from the institutional integrity of the Northern Territory courts. Div 4AA, properly construed, does not authorise members of the Police Force to detain a person for longer than is reasonably practicable for them to make a determination about which one of the options under s 133AB(3) is to be exercised. The Court ordered that the matter be referred to a single Justice for further directions. This statement is not intended to be a substitute for the reasons of the High Court or to be used in any later consideration of the Court’s reasons.
+HIGH COURT OF AUSTRALIA 15 November 2012 STANFORD v STANFORD [2012] HCA 52 Today the High Court unanimously allowed an appeal from two decisions of the Full Court of the Family Court of Australia concerning the settlement of property owned by a husband and wife. The High Court held that there was no basis to conclude that it was just and equitable to make an order altering interests in the marital property between them. The husband and wife married in 1971. In December 2008, the wife suffered a stroke and moved into full time residential care. She was later diagnosed with dementia. The husband continued to provide for her care and set aside money in a bank account to meet the costs of her medical needs or requirements. He continued to live in the matrimonial home. In 2009, the wife (by one of her daughters as case guardian) applied to the Family Court for orders altering interests in the marital property between the wife and her husband. Under the Family Law Act 1975 (Cth), a court can make a property settlement order if it is "just and equitable" to do so. At first instance, a magistrate ordered that the husband pay his wife $612,931, which represented the amount assessed as her contribution to the matrimonial assets. The husband appealed to the Full Court of the Family Court. After the appeal had been heard but before judgment was delivered, the wife died and her daughters continued the proceedings as her legal personal representatives. Under the Family Law Act, if a party dies before the conclusion of proceedings, a court may make a property settlement order if it would have made an order had the party been alive and if it is still appropriate despite the party's death to make an order. In its first judgment, the Full Court allowed the husband's appeal, holding that the magistrate erred in considering whether it was just and equitable to make a property settlement order. In a second judgment, the Full Court ordered that $612,931 be paid to the wife's legal personal representatives upon the husband's death to reflect her contributions to the marriage and the husband's moral obligations to her. By special leave, the husband appealed to the High Court. The High Court unanimously allowed the appeal. The Court held that there was no basis to conclude that it would have been just and equitable to make a property settlement order had the wife been alive. She had not expressed a wish to divide the property, a property settlement order would require the husband to sell the matrimonial home, in which he still lived, and the Full Court had found, on the material before the magistrate, that her needs were being met or could be met by a maintenance order. The bare fact of physical separation, when involuntary, does not without more show that it is just and equitable to make a property settlement order.
+HIGH COURT OF AUSTRALIA 11 March 2015 FORTRESS CREDIT CORPORATION (AUSTRALIA) II PTY LIMITED & ANOR v WILLIAM JOHN FLETCHER AND KATHERINE BARNET AS LIQUIDATORS OF OCTAVIAR LIMITED (RECEIVER AND MANAGERS APPOINTED) (IN LIQUIDATION) AND OCTAVIAR ADMINISTRATION PTY LIMITED & ORS [2015] HCA 10 Today, the High Court unanimously dismissed an appeal from a decision of the Court of Appeal of the Supreme Court of New South Wales and held that a court can make an order under s 588FF(3) of the Corporations Act 2001 (Cth) ("the Act") to extend the time within which a company's liquidator may apply for orders in relation to voidable transactions entered into by the company, in circumstances where those transactions cannot be identified at the time of the order. Such orders are known as "shelf orders". Section 588FF(1) of the Act empowers a court, on the application of a company's liquidator, to make a number of orders in relation to voidable transactions. Section 588FF(3), as it stood at the date of the order giving rise to this appeal, provided that an application for orders under s 588FF(1) had to be made: (a) during a specified period ("the paragraph (a) period"); or (b) "within such longer period as the Court orders on an application under this paragraph made by the liquidator during the paragraph (a) period". The first respondents are the liquidators of the second and third respondents, Octaviar Limited and Octaviar Administration Pty Limited. The paragraph (a) period in relation to the third respondent expired on 3 October 2011. Before that date, the first respondents applied for an order under s 588FF(3)(b) extending the time for making an application under s 588FF(1) in relation to the third respondent to 3 April 2012. On 19 September 2011, the order sought was granted, expressed without reference to an identified transaction. On 3 April 2012, the first respondents commenced proceedings against the appellants for orders under s 588FF(1). The primary judge in the Supreme Court of New South Wales dismissed an application by the appellants to set aside the extension of time order, and the Court of Appeal dismissed the appellants' appeal. Both the primary judge and the Court of Appeal followed the earlier decision of the Court of Appeal in BP Australia v Brown (2003) 58 NSWLR 322. By grant of special leave, the appellants appealed to the High Court, submitting that the extension of time order was required to specify the particular transactions in respect of which the order was made. The High Court unanimously dismissed the appeal, holding that a court can make an order extending time under s 588F(3)(b) without identifying the particular transaction or transactions to which it would apply. That construction is consistent with the evident purpose of s 588F(3)(b), to allow the court to mitigate the strictness of the time limits imposed by s 588FF(3)(a) in an appropriate case. The re- enactment of s 588FF(3), which took place after the holding in BP Australia v Brown that a court could make an order granting an extension of time in general terms, may be taken to support that construction.
+HIGH COURT OF AUSTRALIA 11 October 2017 THE DIRECTOR OF PUBLIC PROSECUTIONS v CHARLIE DALGLIESH (A PSEUDONYM) [2017] HCA 41 Today the High Court unanimously allowed an appeal from the Court of Appeal of the Supreme Court of Victoria. The High Court held that the Court of Appeal erred in concluding that, although the range of sentences indicated by current sentencing practices for the offence of incest was so low as to reveal error in principle, the sentence the subject of appeal before that Court was within that range and so ought not be disturbed. Mr Dalgliesh was convicted on his plea of guilty of one act of incest (charge 1) and one act of sexual penetration of a child under 16 (charge 4) upon complainant A, and one act of incest (charge 2) and one act of indecent assault (charge 3) upon complainant B. At the time of the offending, A was aged between nine and 13 years and B was aged between 15 and 16 years. A and B are sisters, and their mother was, at the time of the offending the subject of charges 1 to 3, Mr Dalgliesh's de facto spouse. As a result of Mr Dalgliesh's act of incest upon A, she fell pregnant, and the pregnancy was later terminated. In respect of charge 1, the sentencing judge sentenced Mr Dalgliesh to three years and six months' imprisonment. The Director of Public Prosecutions appealed, relevantly, on the ground that the sentence imposed on charge 1 was manifestly inadequate. Prior to the hearing, the Deputy Registrar of the Court of Appeal, at the request of that Court, wrote to the parties seeking submissions on the adequacy of "current sentencing practices" for the offence of incest, which is a matter to which sentencing courts in Victoria must have regard by virtue of s 5(2)(b) of the Sentencing Act 1991 (Vic). The Deputy Registrar advised the parties that the Court's "decision on the general question [would] not, of course, affect the outcome of the appeal". In Part A of its reasons, the Court of Appeal assessed the adequacy of Mr Dalgliesh's sentence by reference to current sentencing practices for the offence of incest, and concluded that the sentence, "though extremely lenient, was not wholly outside the permissible range". In Part B, the Court reviewed the sentencing information provided to it and concluded that "current sentencing does not reflect the objective gravity of such offending or the moral culpability of the offender". By grant of special leave, the Director appealed to the High Court, arguing that the Court of Appeal erred in elevating the significance of current sentencing practices so that they were determinative of the adequacy of the sentence imposed on charge 1. The High Court held that, having reached the conclusion that current sentences were so manifestly disproportionate to the gravity of the offending and the moral culpability of the offender as to bespeak an error of principle, the Court of Appeal should have corrected the effect of the error of principle which it recognised. It was held that s 5(2) contemplates that current sentencing practices must be taken into account, but only as one factor, and not the controlling factor, in the fixing of a just sentence. Therefore the High Court allowed the appeal.
+HIGH COURT OF AUSTRALIA 14 November 2012 NIGEL CUNNINGHAM SWIFT MANSFIELD v THE QUEEN & ANOR JOHN KIZON v THE QUEEN & ANOR [2012] HCA 49 Today the High Court unanimously held that a person can contravene the prohibitions on insider trading by trading in securities while in possession of "inside information" as described in the Corporations Act 2001 (Cth) even if that information proves to be false. It was alleged that the managing director of AdultShop.com Limited, a listed public company, told each of the appellants, Mr Nigel Mansfield and Mr John Kizon, information about AdultShop's prospects and that Mr Mansfield and Mr Kizon shared that information with each other. It was alleged that, armed with this "inside information", Mr Mansfield and Mr Kizon bought or procured the purchase of shares in AdultShop. The appellants were charged with committing or conspiring to commit numerous offences against the insider trading provisions of the Corporations Act. In the District Court of Western Australia, the prosecution conceded that a jury could not be satisfied beyond reasonable doubt that the information about AdultShop's prospects allegedly in the possession of Mr Mansfield and Mr Kizon was true. The trial judge held that a person could generally only commit insider trading if he or she possessed information that was factually correct and therefore entered judgments of acquittal on the AdultShop counts. A majority of the Court of Appeal of the Supreme Court of Western Australia disagreed, allowed the prosecution's appeal and ordered that there be a new trial. By special leave, Mr Mansfield and Mr Kizon appealed to the High Court. They submitted that a person cannot be guilty of insider trading by buying or procuring the purchase of shares while in possession of information that is objectively false. The High Court unanimously dismissed the appeal. The Court held that a person can contravene the insider trading provisions of the Corporations Act even if the information he or she possesses is false, as long as the statutory criteria for insider trading are met.
+HIGH COURT OF AUSTRALIA 21 March 2018 CLONE PTY LTD V PLAYERS PTY LTD (IN LIQUIDATION) (RECEIVERS & MANAGERS APPOINTED) & ORS [2018] HCA 12 Today the High Court unanimously allowed two appeals from the Full Court of the Supreme Court of South Australia. The Court held that the equitable power of the Supreme Court to set aside its own perfected judgment required actual fraud by the party who succeeded at trial and did not extend to misconduct not amounting to fraud. The Court also held that it was not a precondition to the exercise of the power that the party seeking to set aside the judgment exercised reasonable diligence to discover the fraud. In 1994, the first respondent ("Players") negotiated an agreement to lease premises from the appellant ("Clone"). The premises would become the Planet Hotel, a licensed hotel and gaming premises. Clause 11(i) of the agreement to lease provided that "[t]he Lessee will upon expiration or early determination of the Lease transfer to the Lessor any Liquor Licences or gaming machine Licences held in respect of the premises for NIL consideration". In 1995, Players took possession of the premises and the parties executed a memorandum of lease which contained clauses consistent with In 2004 Clone commenced a proceeding against Players in the Supreme Court. Players alleged, among other things, that it struck through the word "NIL" when three of its directors executed the agreement to lease, with the result that consideration was payable to it by Clone under the agreement to lease. It sought rectification of the memorandum of lease. The original agreement to lease was not in evidence at the trial but Clone and Players each discovered and tendered a copy. Each copy showed the word "NIL" with a faint line through the letters "NI" and over the top of the word "for". Clone argued that the line had been made accidentally or mechanically. Clone called evidence that it could not locate any other copies and its senior counsel made calls for Players to produce copies of the agreement. During the trial, Clone's instructing solicitor asked an employee of the Liquor and Gambling Commissioner to search the Commissioner's files for any copies of the agreement to lease. The employee advised that she had located a copy ("the third copy") on a different file to the "Planet Hotel premises file". Upon inspection of that copy, Clone's junior counsel noticed a line through the word "NIL". He did not photocopy it, to avoid it becoming discoverable, and asked the Commissioner's employee to inform him of any inspection by Players' solicitors. The Commissioner's employee complied with that request when Players' solicitors subsequently inspected the Commissioner's files but only requested, and were shown, the Planet Hotel premises file. Clone's principal solicitor then gave a notice to the Commissioner to produce all "Planet files" in the Commissioner's possession, which the solicitor advised required production of the Planet Hotel premises file only. Nonetheless, another file was also produced to the Court, which included a fourth copy of the agreement to lease. Clone was successful at trial on almost all issues. Relevantly, the trial judge held that Clone was not obliged to pay reasonable consideration for the licences, in part on the basis of her Honour's conclusion that the word "NIL" had not been struck through in the agreement to lease. Players appealed to the Full Court, which upheld this conclusion. After the proceedings concluded, Players learned that Clone knew about the third copy and that the fourth copy had been contained in a file produced to the Court, but was not called upon by Clone. In 2010, Players brought two applications to set aside the judgment against it and obtain an order for a new trial: one application in the original proceeding, and one fresh application. Players alleged that the judgment could be set aside on the basis of Clone's malpractice, which malpractice it alleged on three grounds. Both the primary judge and a majority of the Full Court held that Clone had engaged in malpractice and that its misconduct was a sufficient basis to enliven the Court's discretionary power to set aside the judgment. A new trial was ordered. By grant of special leave, Clone appealed to the High Court on two grounds: (i) that the Supreme Court's equitable power to set aside perfected orders is limited to fraud and does not extend to malpractice; and (ii) that the Supreme Court's power to set aside its perfected judgment on the ground of malpractice was conditional upon proof that, absent the malpractice, the judgment would probably have been different, and the party applying to set aside the judgment exercised reasonable diligence. The Court allowed the appeal on the first ground. The Court held that the equitable power in this case was limited to actual fraud, although there are other discrete grounds to set aside a perfected judgment which were not in issue. Fraud must be clearly pleaded and proved, which had not occurred in these proceedings. The Court also stated that the proper application by Clone was a fresh action to rescind the perfected orders, rather than an application in the original proceeding. In the result, the appeal was allowed with costs.
+HIGH COURT OF AUSTRALIA 14 November 2018 SAS TRUSTEE CORPORATION v PETER MILES [2018] HCA 55 Today the High Court of Australia unanimously allowed an appeal from a judgment of the Court of Appeal of the Supreme Court of New South Wales regarding the interpretation of s 10(1A)(b)(ii) of the Police Regulation (Superannuation) Act 1906 (NSW) ("the Act"). The Act established a Police Superannuation Fund controlled by SAS Trustee Corporation ("STC"). In 2003, Mr Miles was certified by STC as being incapable of discharging the duties of his office as a police officer, as a result of four specified infirmities of an orthopaedic nature. The Commissioner of Police determined that these infirmities were caused by Mr Miles being hurt on duty. Mr Miles satisfied the criteria of a "disabled member of the police force" in s 10(1) of the Act and, in accordance with s 10(1A)(a), he received an annual superannuation allowance equal to 72.75 per cent of his attributed salary of office, which in 2004 was increased to 82.55 per cent. Section 10(1A)(b)(ii) of the Act provided that the annual superannuation allowance for a disabled member of the police force may increase by an additional amount that is commensurate with the member's "incapacity for work outside the police force". In 2013, Mr Miles applied to STC under that provision for an additional amount of annual superannuation allowance arising from an infirmity of post-traumatic stress disorder ("PTSD") which increased his incapacity for work outside the police force. STC rejected that application. Mr Miles applied to the District Court of New South Wales as a person aggrieved by STC's decision. The primary judge held that, notwithstanding that the PTSD had increased Mr Miles' incapacity for work outside the police force, the PTSD could not be taken into account, as it was a supervening incapacity and not one arising from the four specified infirmities certified by STC. Mr Miles appealed to the Court of Appeal, contending that once a person had met the definition of a disabled member of the police force, as he had, the incapacity for work outside the police force in s 10(1A)(b)(ii) may be an incapacity that arises at any time and from any source, and could in this case arise from the PTSD. STC contended that the incapacity for work outside the police force must arise from a specified infirmity the subject of STC's certification and determined by the Commissioner of Police to have been caused by the member being hurt on duty, and must in this case arise from the specified infirmities of an orthopaedic nature. A majority of the Court of Appeal allowed Mr Miles' appeal holding that there was no reason to restrict s 10(1A)(b)(ii) to an incapacity for work outside the police force caused by the member having been hurt on duty. By grant of special leave, STC appealed to the High Court. The Court held that the context and purpose of s 10(1A)(b)(ii) favoured the conclusion that a disabled member of the police force was not entitled to an additional amount of annual superannuation allowance under s 10(1A)(b)(ii) unless the member's incapacity for work outside the police force was attributable to a specified infirmity determined to have been caused by the member being hurt on duty.
+HIGH COURT OF AUSTRALIA 13 October 2021 [2021] HCA 32 Today, the High Court unanimously dismissed an appeal from a judgment of the Full Court of the Federal Court of Australia. The appeal concerned the scope of the intellectual freedom protected by a clause of an enterprise agreement of a university. Dr Ridd was employed by James Cook University for 27 years. From 2016, the University took various disciplinary actions against Dr Ridd for conduct that it concluded breached the University Code of Conduct and constituted misconduct and serious misconduct under the University's Enterprise Agreement. Dr Ridd was issued with two censures ("the 2016 Censure" and "the Final Censure") and, on 2 May 2018, his employment was terminated for serious misconduct under the Enterprise Agreement. Dr Ridd brought proceedings against the University alleging that its actions and the termination of his employment contravened the Enterprise Agreement and s 50 of the Fair Work Act 2009 (Cth) ("the Act"). Dr Ridd did not dispute that the conduct occurred and that it would be misconduct or serious misconduct. He submitted that all of his conduct was an exercise of the intellectual freedom protected by cl 14 of the Enterprise Agreement and could not be a serious breach of the Code of Conduct. The primary judge: concluded that 13 actions taken by the University were contrary to cl 14 of the Enterprise Agreement; made a declaration of 13 contraventions of s 50 of the Act; and ordered the payment of compensation and pecuniary penalties. A majority of the Full Court allowed an appeal and concluded that none of the actions of the University were contrary to the Enterprise Agreement. The High Court unanimously dismissed the appeal. The Court held that the intellectual freedom protected by cl 14 of the Enterprise Agreement was not a general freedom of speech. The exercise of intellectual freedom was subject to constraints contained in cl 14, including some adopted from the Code of Conduct. These constraints upon exercise included respect for the legal rights of others, and required that an expression of disagreement with University decision-making be in accordance with applicable processes, including confidentiality obligations. The exercise of intellectual freedom was not constrained by other Code of Conduct undertakings, such as respect or courtesy. The 2016 Censure and part of the basis of the Final Censure were unjustified because they related to the expression of honestly held views by Dr Ridd within his academic expertise. The Final Censure was justified only insofar as it relied upon expressions of opinion unrelated to Dr Ridd's academic expertise, and findings that he repeatedly failed to comply with his confidentiality obligations. Since Dr Ridd ran his case on an all-or-nothing basis, the termination decision was justified in its reliance upon conduct of Dr Ridd which was the subject of 18 findings of serious misconduct which were not protected by cl 14.
+HIGH COURT OF AUSTRALIA 7 October 2015 D'ARCY v MYRIAD GENETICS INC & ANOR [2015] HCA 35 Today the High Court unanimously allowed an appeal from a decision of the Full Court of the Federal Court of Australia. The High Court held that an isolated nucleic acid, coding for a BRCA1 protein, with specific variations from the norm that are indicative of susceptibility to breast cancer and ovarian cancer, was not a "patentable invention" within the meaning of s 18(1)(a) of the Patents Act 1990 (Cth) ("the Act"). The term "nucleic acid" includes two kinds of molecules, deoxyribonucleic acid (DNA) and ribonucleic acid (RNA), which are found inside a human cell. A gene is a functional unit of DNA which encodes a particular protein produced by the cell. The protein produced depends on the sequence of nucleotides. The BRCA1 gene codes for the production of a protein called BRCA1. The first respondent filed a patent which contained 30 claims. Relevantly, Claims 1 to 3 concerned a nucleic acid coding for a BRCA1 protein, and with one or more specified variations from the norm in its nucleotide sequence, isolated from its cellular environment. Those specified variations, characterised as mutations or polymorphisms, are indicative of susceptibility to breast cancer and ovarian cancer. Section 18(1)(a) of the Act requires that, for an invention to be patentable, it must be "a manner of manufacture" within the meaning of s 6 of the Statute of Monopolies. The appellant commenced proceedings in the Federal Court of Australia challenging the validity of Claims 1 to 3 on the basis that the invention claimed did not meet the requirement of s 18(1)(a). The primary judge dismissed the appellant's challenge, holding that the invention fell within the concept of a "manner of manufacture". The Full Court dismissed an appeal from that decision. The Full Court held that an isolated nucleic acid was chemically, structurally and functionally different from a nucleic acid inside a human cell. The invention was a manner of manufacture because an isolated nucleic acid with the characteristics specified in Claims 1 to 3 resulted in an artificially created state of affairs for economic benefit. By grant of special leave, the appellant appealed to the High Court. The Court unanimously allowed the appeal, holding that the invention claimed did not fall within the concept of a manner of manufacture. The Court held that, having regard to the relevant factors, an isolated nucleic acid, coding for the BRCA1 protein, with specified variations, is not a manner of manufacture. While the invention claimed might be, in a formal sense, a product of human action, it was the existence of the information stored in the relevant sequences that was an essential element of the invention as claimed. A plurality of the Court considered that to attribute patentability to the invention as claimed would involve an extension of the concept of a manner of manufacture which was not appropriate for judicial determination.
+HIGH COURT OF AUSTRALIA 30 March 2004 The Western Australian Court of Criminal Appeal made errors in reviewing the prison sentence of a convicted drug courier, the High Court of Australia held today. Mr Johnson’s co-accused, Jurgen Helmut Schwarz, was apprehended as he arrived in Perth in November 2000 carrying 5,533 ecstasy tablets and almost 1.5kg of cocaine. He agreed to participate in a controlled delivery of material substituted for the confiscated drugs. Mr Schwarz checked into a hotel in the suburb of Como and by arrangement Mr Johnson arrived to collect the supposed drugs. The Australian Federal Police arrested him as he left the hotel room and arrested Phillip David Smart who was waiting with $10,688 in Mr Johnson’s sister’s car outside the hotel. Mr Johnson was charged with attempting to obtain a commercial quantity of ecstasy (more than 500 grams) and attempting to obtain a trafficable quantity of cocaine (between two grams and 2kg). Mr Johnson pleaded guilty in the WA Supreme Court. Justice Graeme Scott said the appropriate sentence for the first count was 10 years’ jail and for the second count five years’ jail, to be served cumulatively. The sentence for the second count was reduced on account of the totality principle. The total sentence of 15 years was reduced by a further 3½ years for Mr Johnson’s guilty plea to 11½ years, with a 5½-year non-parole period. Mr Johnson’s appeal against his sentence was rejected by the CCA. He contended that he collected only one package with no knowledge of the particular drugs he was collecting, and that insufficient allowance was made for the fact that the offences arose from a single course of conduct. The High Court held that the two offences had much in common, including one inducement, one payment, one occasion, one package and one receipt of it, and that the CCA had made factual errors in its reasoning. The High Court unanimously allowed the appeal and remitted the matter to the CCA for reconsideration of Mr Johnson’s sentence in accordance with the Court’s reasons.
+HIGH COURT OF AUSTRALIA 29 February 2012 ROSLYN EDWINA WALLER v HARGRAVES SECURED INVESTMENTS LIMITED [2012] HCA 4 Today the High Court allowed an appeal from the Court of Appeal of the Supreme Court of New South Wales, which had upheld an enforcement action under a farm mortgage by Hargraves Secured Investments Limited ("HSI") against Roslyn Edwina Waller. The High Court held that the Farm Debt Mediation Act 1994 (NSW) ("the Act") barred HSI from obtaining a money judgment against Ms Waller or possession of Ms Waller's farm. Section 8(1) of the Act conditions a creditor's ability to take "enforcement action" in respect of a "farm mortgage" upon 21 days' prior written notice to the debtor farmer, in response to which the farmer may request mediation under s 9 of the Act. Enforcement action taken by a creditor to whom the Act applies, otherwise than in accordance with the Act, is void. Section 11 provides for the issue by the New South Wales Rural Assistance Authority ("the Authority") of a certificate that the Act does not apply to a farm mortgage if the farmer is in default and, relevantly, the Authority is satisfied that satisfactory mediation has taken place "in respect of the farm debt involved". Ms Waller borrowed $450,000 from HSI under a loan agreement ("the First Loan Agreement") secured by an "all monies" registered first mortgage over her farm ("the Registered Mortgage"). The Registered Mortgage, read with the First Loan Agreement, created a "farm mortgage" within the meaning of the Act. In October 2004 HSI gave Ms Waller a notice under the Act that she was in default and that HSI intended to take enforcement action. The parties took part in a mediation, as a result of which they entered into a further loan agreement ("the Second Loan Agreement"). In August 2006, after further default, the parties entered into another loan agreement ("the Third Loan Agreement"). In October 2006 the Authority issued HSI a s 11 certificate. It was common ground that the certificate was issued on the basis that a satisfactory mediation had taken place. Following Ms Waller's default under the Third Loan Agreement, HSI brought a successful claim in the Common Law Division of the Supreme Court of New South Wales for possession of Ms Waller's farm and judgment for the outstanding borrowings. By majority the Court of Appeal of the Supreme Court of New South Wales dismissed Ms Waller's appeal. Ms Waller appealed by special leave to the High Court. The primary issue on appeal to the High Court was whether the proceedings instituted by HSI concerned the same "farm mortgage" as that in respect of which the s 11 certificate had been issued. The Court held unanimously that they did not. The Court of Appeal had held that each of the Second and Third Loan Agreements discharged the preceding Loan Agreement. This meant that at the date of the proceedings the only obligations secured by the Registered Mortgage were under the Third Loan Agreement. The High Court held that the Third Loan Agreement, read with the Registered Mortgage, had created a new "farm mortgage". The subject of the mediation, and the certificate, was the debt owed under the First rather than the Third Loan Agreement. At the time of the proceedings there was therefore no certificate in force in respect of the farm mortgage. HSI was barred from taking any enforcement action against Ms Waller except in accordance with the Act. The definition of "enforcement action" in the Act included both the claim for possession and the claim for a money judgment.
+HIGH COURT OF AUSTRALIA 1 September 2010 PUBLIC TRUSTEE OF QUEENSLAND v FORTRESS CREDIT CORPORATION (AUS) 11 PTY LTD & ORS [2010] HCA 29 Section 266 of the Corporations Act 2001 (Cth) provides that a charge, or a variation to the terms of a charge, will be void as a security unless notice of the charge or its variation is lodged with the Australian Securities and Investments Commission ("ASIC"). Today the High Court held that a deed, which did not amend the terms of a charge but, when read with the charge, had the effect of increasing the liabilities secured under it, did not trigger the operation of s 266. On 31 May 2007, Fortress Credit Corporation (Aus) 11 Pty Ltd ("Fortress") entered into a loan agreement with Young Village Estates Pty Ltd as borrower. The loan was guaranteed ("the YVE guarantee") by the second respondent, Octaviar Limited ("Octaviar"). No security was given for repayment of the loan. On 1 June 2007, Fortress entered into another loan agreement with Octaviar's subsidiary, Octaviar Castle Pty Ltd ("Octaviar Castle"), as borrower ("the Castle Facility Agreement"). Octaviar and another of its subsidiaries, Octaviar Administration Pty Ltd ("Octaviar Administration"), guaranteed that loan. Octaviar provided security for its guarantee by way of a fixed and floating charge. Notice of the charge was lodged with ASIC, in accordance with s 263 of the Corporations Act. Under clause 2.1 of the charge, Octaviar charged all its present and future property for payment of "Secured Money", defined in the charge as "all money, obligations and liabilities…owing or payable…under or in relation to a Transaction Document". The term "Transaction Document" was to have the meaning given to it in the Castle Facility Agreement, which provided that a "Transaction Document" included each document that Fortress and Octaviar agreed in writing was a Transaction Document. On 22 January 2008, Fortress, Octaviar and Octaviar Castle executed a deed acknowledging that the YVE guarantee was a "Transaction Document" for the purposes of the Castle Facility Agreement and thus within the terms of the charge. This had the effect of increasing the liabilities secured by the charge. No notice of any charge created or varied was lodged with ASIC. In late 2008, administrators were appointed to Octaviar and Octaviar Administration and each subsequently executed a deed of company arrangement. On 19 February 2009, the Public Trustee of Queensland applied to the Supreme Court of Queensland for orders terminating each deed. It contended that each deed had been premised on the validity in all respects of the charge, which, in the absence of a notice lodged with ASIC, did not validly secure the YVE guarantee. The Public Trustee submitted that the deed of 22 January 2008 was a new charge, or a variation in the terms of an existing charge, requiring lodgement of a notice with ASIC in accordance with s 263 or s 268 respectively of the Corporations Act. In the absence of such notice, a new charge would be void pursuant to s 266(1), and a varied charge void pursuant to s 266(3), of the Corporations Act. At first instance, McMurdo J ordered that the question of the validity of the charge be determined separately from the applications to terminate the deeds. His Honour held that the deed of 22 January 2008 amounted to a variation in the terms of the charge, by bringing the YVE guarantee within its coverage, and was void for failure to lodge notice of the variation. The Court of Appeal unanimously allowed an appeal from that decision. On 12 March 2010, the Public Trustee was granted special leave to appeal to the High Court. The Court unanimously dismissed the appeal, finding that the deed of 22 January 2008 was neither a new charge nor a variation in the terms of the charge. As a result of the 22 January 2008 deed, the YVE guarantee was now a "Transaction Document". However that did not vary the meaning of "Transaction Document" in the Castle Facility Agreement and consequently the meaning of "Secured Money" in the charge. The effect of the deed was that the YVE guarantee now fell within the class of liabilities secured by the charge; there was no variation made to the terms of the charge either in their text or in the rights and obligations to which those terms gave rise. Where parties elect that a term of a charge will be variable or ambulatory in operation, there is no variation in the terms each time its operation is, as a matter of fact, altered or modified. The Corporations Act requires notice only for variations in the terms of the charge, and not to modifications in the way in which those terms apply to the circumstances from time to time during the currency of the charge. The Court dismissed the appeal and ordered the Public Trustee to pay Fortress's costs.
+HIGH COURT OF AUSTRALIA 8 December 2021 UMINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND [2021] HCA 41 Today, the High Court unanimously allowed an appeal from a decision of the Full Court of the Federal Court of Australia. The appeal concerned whether a decision of the appellant ("the Minister") not to revoke a decision to cancel the respondent's visa, pursuant to s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth), was vitiated by jurisdictional error. Following the respondent's conviction for, amongst other things, seriously assaulting his partner, his temporary visa was cancelled under s 501(3A). Subsequently, the Minister decided there was not "another reason" to revoke that decision under s 501CA(4)(b)(ii). For the purposes of making representations to the Minister about whether there was "another reason" for revocation, the respondent represented that there was a "real prospect" that he and his partner and young child would go to American Samoa (his place of birth) where they would face "substantial impediments", including language and cultural barriers and problems accessing healthcare and welfare services. In his reasons for decision, the Minister addressed the respondent's concerns and made certain findings about the conditions in American Samoa and Samoa, including that English is widely spoken and regarding the availability of healthcare and welfare services. It was common ground that there was no evidentiary material to support the Minister's findings. The respondent sought judicial review of that decision in the Federal Court. Initially, his application was dismissed, but on appeal the Minister's decision was set aside. The majority concluded that the Minister had erred because, among other things, it was an implied condition for the exercise of the power conferred by s 501CA(4) that the Minister's state of satisfaction be formed on the basis of factual findings open to be made on the evidentiary materials. The majority also concluded that there was no evidence to support a finding that the Minister had relied upon his own personal knowledge about the conditions in American Samoa and Samoa. The High Court held that, when applying s 501CA(4), there are few mandatorily relevant matters the Minister must consider, and otherwise the power must be exercised reasonably and in good faith. If the representations received by the Minister in support of revocation lack any substance altogether, then this of itself might justify a decision not to be satisfied that "another reason" exists to revoke the cancellation decision, without any need to make any findings of fact about the various claims made. If the Minister in giving reasons makes a finding of fact, the Minister must do so based on some evidence or other supporting material, rather than no evidence or no material, unless the finding is made in accordance with the Minister's personal or specialised knowledge or by reference to that which is commonly known. In that respect, the Minister is free to adopt both the accumulated knowledge of the Department of Immigration, Citizenship, Migrant Services and Multicultural Affairs and any draft written reasons for decision prepared by a departmental officer, provided that such reasons reflect the reasons why the Minister had reached her or his decision. There is no express requirement that the Minister disclose whether a material finding is made from personal, specialised or accumulated knowledge. Nor was the Minister under any obligation to disclose his disagreement with the respondent's bare assertions and give the respondent yet another opportunity to make claims prior to making a decision.
+HIGH COURT OF AUSTRALIA 11 October 2013 BONANG DARIUS MAGAMING v THE QUEEN [2013] HCA 40 Today the High Court, by majority, upheld the validity of a provision of the Migration Act 1958 (Cth) ("the Act") which prescribed a mandatory minimum term of imprisonment for the offence of facilitating the bringing or coming to Australia of a group of at least five non-citizens with no lawful right to come to Australia. The High Court held that the provision was not beyond the legislative power of the Commonwealth Parliament and did not confer judicial power on prosecuting authorities. On 6 September 2010, a boat carrying 52 passengers and four crew members was intercepted near Ashmore Reef. The appellant, Mr Magaming, was one of the crew members. The passengers on the boat were not Australian citizens and none had a lawful right to enter Australia. Mr Magaming was charged with one count of facilitating the bringing or coming to Australia of a group of at least five unlawful non-citizens contrary to s 233C(1) of the Act. The offence under s 233C(1) of the Act was an aggravated form of the people smuggling offence created by s 233A(1) of the Act, which prohibited facilitating the bringing or coming to Australia of an unlawful non-citizen. That offence carried no mandatory minimum term of imprisonment, whereas the offence under s 233C(1) of the Act carried a mandatory minimum sentence of five years' imprisonment with a minimum non-parole period of three years. Mr Magaming pleaded guilty in the District Court of New South Wales and was sentenced to the mandatory minimum term of five years' imprisonment with a non-parole period of three years. He sought leave to appeal to the Court of Criminal Appeal of the Supreme Court of New South Wales, alleging that the provision prescribing the mandatory minimum term of imprisonment was invalid. The Court of Criminal Appeal granted leave to appeal but dismissed the appeal, concluding that the relevant provision was valid. By special leave, Mr Magaming appealed to the High Court. In the High Court, Mr Magaming contended that in circumstances where prosecuting authorities could choose between charging an offence that carried a mandatory minimum sentence and charging another offence that carried no mandatory sentence, the prosecuting authorities impermissibly exercised judicial power. He also contended that the provision of the Act prescribing the mandatory minimum sentence was incompatible with the institutional integrity of the courts and that it required a court to impose a sentence that was arbitrary. By majority, the High Court dismissed the appeal. The High Court held that although prosecuting authorities had a choice as to which offence to charge, that choice did not involve an exercise of judicial power or confer on prosecuting authorities an ability to determine the punishment to be imposed for the same conduct, even where one available offence prescribed a mandatory minimum sentence. The High Court also held that the imposition of a mandatory minimum sentence was not inconsistent with the institutional integrity of the courts and did not involve the imposition of an arbitrary sentence.
+HIGH COURT OF AUSTRALIA 5 October 2012 PLAINTIFF M47/2012 v DIRECTOR GENERAL OF SECURITY & ORS [2012] HCA 46 Today a majority of the High Court held invalid a regulation which prevented the grant of a protection visa to a refugee if the Australian Security Intelligence Organisation ("ASIO") had assessed the refugee to be a risk to security. Accordingly, a majority of the Court held that the decision to refuse the plaintiff a protection visa on the basis of that regulation had not been made according to law. The plaintiff, a Sri Lankan national, arrived in Australia in December 2009, and has been held in detention since that time. In June 2010, he applied for a protection visa. A delegate of the Minister for Immigration and Citizenship found that the plaintiff had a well-founded fear of persecution in Sri Lanka on the basis of his race or political opinion and was therefore a refugee. However, the delegate refused the plaintiff's application for a protection visa because, in December 2009, the plaintiff had been assessed by ASIO to be a risk to security. Clause 866.225 of Sched 2 to the Migration Regulations 1994 (Cth) prescribes as a criterion for the grant of a protection visa that the applicant not be assessed as a risk to security under the Australian Security Intelligence Organisation Act 1979 (Cth). This criterion is called public interest criterion 4002. The plaintiff commenced proceedings in the original jurisdiction of the High Court challenging the validity of the decision to refuse him a protection visa and challenging his continued detention. The plaintiff argued that ASIO had denied him procedural fairness when making a fresh adverse security assessment in 2012, that the requirement that he satisfy public interest criterion 4002 was invalid, and that the Migration Act 1958 (Cth) did not authorise the removal and detention of a person found to be a refugee. A majority of the Court held that the plaintiff was not denied procedural fairness in connection with the making of the security assessment because the plaintiff was given the opportunity to address issues of concern to ASIO in the interview that was conducted before the fresh assessment was made in 2012. However, a majority of the Court held that the Migration Regulations could not validly prescribe public interest criterion 4002 as a condition for the grant of a protection visa because doing so was inconsistent with the Migration Act 1958 (Cth). Because the prescription of public interest criterion 4002 as a criterion for the grant of a protection visa was invalid, a majority of the Court held that the decision to refuse the plaintiff a protection visa on the basis of this criterion had not been made according to law. Accordingly, the plaintiff's continuing detention was valid for the purpose of determining his application for a protection visa. Given these conclusions, it was unnecessary for the majority to consider the plaintiff's other arguments about the validity of his detention and proposed removal from Australia.
+HIGH COURT OF AUSTRALIA 12 February 2014 MARK SHARNE SMITH v THE STATE OF WESTERN AUSTRALIA [2014] HCA 3 Today the High Court unanimously allowed an appeal against a decision of the Court of Appeal of the Supreme Court of Western Australia, which had held that a note found in the jury room after the jury had delivered its verdict could not be admitted as evidence. The note suggested that one juror may have been physically coerced by another juror into arriving at the verdict of guilty. On 17 January 2012, the appellant was convicted upon the verdict of a jury in the District Court of Western Australia of two counts of indecently dealing with a child under the age of 13 years. The following day, the trial judge informed counsel that a note in an envelope addressed to the judge had been found on the table in the jury room after the jury had been discharged. The note, which did not identify its author, was in the following terms: "I have been physically coerced by a fellow juror to change my plea to be aligned with the majority vote. This has made my ability to perform my duty as a juror on this panel [sic]". The trial judge was of the opinion that, because the verdict had already been entered, he could not do anything about the note. His Honour did, however, remark that there were a number of unusual factors surrounding the delivery of the verdict, including that one male juror seemed somewhat upset. The appellant appealed to the Court of Appeal on the ground that his trial had miscarried due to a juror being physically coerced into changing his verdict to guilty. The Court of Appeal unanimously dismissed the appeal, holding that the note was inadmissible and that no order should be made directing the Sheriff to make inquiries concerning the allegations raised in the note. By special leave, the appellant appealed to the High Court, arguing that the Court of Appeal failed to appreciate that the general rule which renders evidence of the conduct of jury deliberations inadmissible does not operate to preserve the secrecy of criminal conduct. The High Court held that, because the note was capable of giving rise to a reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that a juror did not discharge his task because of unlawful coercion, the Court of Appeal should have allowed the appellant's appeal. The High Court remitted the matter to the Court of Appeal to be heard and determined according to law.
+HIGH COURT OF AUSTRALIA 9 February 2012 KIEU THI BUI v DIRECTOR OF PUBLIC PROSECUTIONS FOR THE COMMONWEALTH OF AUSTRALIA [2012] HCA 1 Today the High Court dismissed an appeal from the Court of Appeal of the Supreme Court of Victoria, which held that "double jeopardy" was not to be considered upon an appeal by the Commonwealth Director of Public Prosecutions ("DPP") under the Crimes Act 1914 (Cth) ("Crimes Act"). The appellant, Kieu Thi Bui, is an Australian citizen who carried drugs into Australia from Vietnam, contrary to the Criminal Code (Cth). She was apprehended by the Australian Federal Police on 11 February 2009, and was subsequently found to be concealing four pellets containing heroin within her body. After the drugs were discovered, the appellant co-operated with the police and undertook to assist law enforcement agencies. She pleaded guilty to importing a marketable quantity of a border controlled drug. The sentencing judge did not order a term of immediate imprisonment, on the basis that the appellant had co-operated, and undertook to continue co- operating, with law enforcement agencies, the danger attending her co-operation, and the risk of hardship to the appellant's infant twins. Her Honour sentenced the appellant to three years' imprisonment with an immediate release, upon giving security of $5000 to comply with the condition that the appellant be of good behaviour for three years. The DPP appealed against the sentence on the ground that it was manifestly inadequate. On appeal, the Court of Appeal identified errors in the sentencing judge's reasons by reference to s 16A of the Crimes Act. Under s 16A(1) of the Crimes Act, a court must impose a sentence that is of an appropriate severity in all the circumstances of the offence. Section 16A(2) specifies matters which must be taken into account if relevant and known to the court, including the probable effect of any sentence on the person's family or dependants and the person's "mental condition". The Court of Appeal held that the provisions of the Criminal Procedure Act 2009 (Vic) ("Criminal Procedure Act") required it to not take into account any element of double jeopardy involved in the appellant being re-sentenced. The Court of Appeal ordered a new sentence of four years' imprisonment, with a non-parole period of two years. The appellant appealed, by special leave, to the High Court of Australia. The High Court dismissed the appeal, with the result that the sentence ordered by the Court of Appeal stands. The High Court held that the provisions of the Criminal Procedure Act on which the Court of Appeal relied do not apply to appeals by the DPP for re-sentencing under the Crimes Act. The High Court rejected a submission that s 80 of the Judiciary Act 1903 (Cth) imported double jeopardy into the sentencing considerations under s 16A of the Crimes Act. There was no gap or omission in Commonwealth statute law such as to bring s 80 into operation. The High Court also held that there was no warrant for interpreting s 16A of the Crimes Act as incorporating concepts addressed only to an appellate court, such as notions derived from the rule against double jeopardy. Further, the High Court held that s 16A(2) of the Crimes Act does not refer to the stress and anxiety presumed to be suffered by convicted persons facing re-sentencing, but to such a mental condition which is demonstrated to exist in fact.
+HIGH COURT OF AUSTRALIA 7 December 2011 JULIAN RONALD MOTI v THE QUEEN [2011] HCA 50 Today the High Court held that further prosecution of charges against Mr Julian Moti should be stayed as an abuse of process because Australian officials facilitated his deportation from Solomon Islands to Australia knowing that his deportation was, at that time, unlawful under Solomon Islands law. Mr Moti was an Australian citizen at all material times. He was Attorney-General of Solomon Islands between September 2006 and December 2007 with a suspension between October 2006 and July 2007. On 3 November 2008 Mr Moti was charged with seven counts of engaging in sexual intercourse with a person under the age of 16 years whilst outside Australia contrary to s 50BA of the Crimes Act 1914 (Cth). All counts related to one complainant and were alleged to have occurred in 1997. Four counts alleged conduct in the Republic of Vanuatu; the other three counts alleged conduct in New Caledonia. The complainant and members of her family who might be called to give evidence as prosecution witnesses gave statements to the police. The Commonwealth Director of Public Prosecutions advised the police that there were reasonable prospects of conviction. Australian authorities took steps towards securing Mr Moti's return to Australia, in particular, by making two requests in 2006 to the Solomon Islands Government for Mr Moti's extradition which were refused. Subsequently, between February 2008 and November 2009, the Australian Federal Police made payments of approximately $67,500 to the complainant and $81,600 to her family ("the payments"). The payments followed repeated statements by the complainant and her father to the effect that the complainant would not participate any further in the prosecution of Mr Moti unless she and her family were brought to Australia and given "financial protection". The payments were said to be made to provide for the "minimal daily needs" of the complainant and her family and, for part of the time, to provide accommodation in Vanuatu. The family were said to be unable to support themselves because the publicity given to the charges against Mr Moti adversely affected their ability to earn income. On 20 December 2007 there was a change of government in Solomon Islands. On 21 December 2007 a warrant for Mr Moti's arrest was issued in Brisbane. On 22 December 2007 Mr Moti applied for an injunction restraining his removal from Solomon Islands. This was refused. The judge noted that there were proper legislative procedures for initiating deportation which governed Mr Moti's rights and which would give him the opportunity to respond. Specifically, the Solomon Islands Deportation Act provided that a person on whom a deportation order was served could apply to the High Court, within seven days of service of the order, for review of the order and that deportation was only lawful if the person had not applied for review within that time or if, on review, the order was not set aside. On 22 December 2007 the Solomon Islands cabinet resolved to remove Mr Moti to Australia. On 24 December 2007 a deportation order in respect of Mr Moti was published in the Solomon Islands Gazette. A further application by Mr Moti for orders restraining his removal was dismissed on 24 December 2007, but another application on 25 December 2007 succeeded. The Acting High Commissioner of Australia in Honiara was of the opinion that Mr Moti had seven days in which to appeal to the High Court before he could lawfully be deported. The Acting High Commissioner conveyed that opinion to her superiors in Canberra. Despite this, her superiors authorised Australian officials in Solomon Islands to supply travel documents relating to Mr Moti knowing that those documents would be used to deport Mr Moti before his deportation was lawful. Mr Moti was removed to Australia on a flight on 27 December 2007. The primary judge in the Supreme Court of Queensland stayed further prosecution on the ground that the payments were an abuse of process but rejected Mr Moti's arguments based upon the circumstances of his deportation. The Court of Appeal set aside the stay ordered by the primary judge, holding that there was no abuse of process on either ground. Mr Moti appealed to the High Court by special leave. The High Court held by majority that further prosecution of the charges would be an abuse of process because of the role that Australian officials played in Mr Moti being deported to Australia. The Court rejected the proposition that the payments were an abuse of process.
+HIGH COURT OF AUSTRALIA 12 December 2013 THE COMMONWEALTH OF AUSTRALIA v THE AUSTRALIAN CAPITAL TERRITORY [2013] HCA 55 Today the High Court decided unanimously that the Marriage Equality (Same Sex) Act 2013, enacted by the Legislative Assembly for the Australian Capital Territory, cannot operate concurrently with the federal Marriage Act 1961. The Court held that the federal Parliament has power under the Australian Constitution to legislate with respect to same sex marriage, and that under the Constitution and federal law as it now stands, whether same sex marriage should be provided for by law is a matter for the federal Parliament. The Court held that "marriage" in s 51(xxi) of the Constitution refers to a consensual union formed between natural persons in accordance with legally prescribed requirements which is not only a union the law recognises as intended to endure and be terminable only in accordance with law but also a union to which the law accords a status affecting and defining mutual rights and obligations. "Marriage" in s 51(xxi) includes a marriage between persons of the same sex. The Marriage Act does not now provide for the formation or recognition of marriage between same sex couples. The Marriage Act provides that a marriage can be solemnised in Australia only between a man and a woman and that a union solemnised in a foreign country between a same sex couple must not be recognised as a marriage in Australia. That Act is a comprehensive and exhaustive statement of the law of marriage. The Court held that the object of the ACT Act is to provide for marriage equality for same sex couples and not for some form of legally recognised relationship which is relevantly different from the relationship of marriage which federal law provides for and recognises. Accordingly, the ACT Act cannot operate concurrently with the federal Act. Because the ACT Act does not validly provide for the formation of same sex marriages, its provisions about the rights of parties to such marriages and the dissolution of such marriages cannot have separate operation and are also of no effect. The Court held that the whole of the ACT Act is of no effect.
+HIGH COURT OF AUSTRALIA 7 March 2012 STRONG v WOOLWORTHS LIMITED T/AS BIG W & ANOR [2011] HCA 5 Today the High Court allowed an appeal from the Court of Appeal of the Supreme Court of New South Wales, which had dismissed a claim in negligence by the appellant against Woolworths on the basis that the appellant had failed to prove that Woolworths' negligence caused her injuries. The High Court held by majority that, on the balance of probabilities, Woolworths' negligence caused the appellant's injuries. The appellant suffered serious spinal injury when she slipped and fell while at the Centro Taree Shopping Centre ("the Centre"). The incident occurred at around 12.30pm. At the time of her fall, the appellant had an amputated right leg and walked with the aid of crutches. The fall occurred as the result of the tip of her right crutch coming into contact with a greasy chip that was lying on the floor of a sidewalk sales area which was under the care and control of Woolworths. The crutch slipped out from under her and she fell heavily. The appellant brought proceedings in the District Court of New South Wales claiming damages in negligence against Woolworths and CPT Manager Limited ("CPT"), which was the owner of the Centre. The appellant obtained judgment against Woolworths, and the claim against CPT was dismissed. Woolworths appealed to the New South Wales Court of Appeal. On appeal, the primary issue was whether the appellant had proved that Woolworths' negligence was the cause of her injury. It was not in question that Woolworths owed a duty to take reasonable care for the safety of persons coming into the sidewalk sales area, and that on the day of the appellant's fall Woolworths did not have any system in place for the periodic inspection and cleaning of that area. Prior to the appellant's fall, the sidewalk sales area had last been inspected at 8.00am that morning. The principles governing the determination of causation in a claim for negligence in New South Wales are set out in s 5D of the Civil Liability Act 2002 (NSW) ("the Act"). Section 5D of the Act relevantly requires that the negligence was a necessary condition of the occurrence of the harm ("factual causation") and that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused ("scope of liability"). Applying the statutory test, the Court of Appeal held that the appellant had failed to prove on the balance of probabilities that Woolworths' negligence caused her fall. The Court approached the causation question on the basis that reasonable care in the circumstances required periodic inspection and necessary cleaning of the sidewalk sales area at 15 minute intervals throughout the day. The Court found that the likelihood was that the chip had been deposited at lunchtime. On that basis, the Court considered that it could not be concluded that, had there been a dedicated cleaning of the area every 15 minutes, it was more likely than not that the appellant would not have fallen. The Court set aside the judgement of the trial judge and dismissed the appeal. The appellant appealed by special leave to the High Court. The primary issue on appeal to the High Court was the correctness of the Court of Appeal's conclusion on causation. The High Court held by majority that, in the circumstances, it was an error for the Court of Appeal to hold that it could not be concluded that the chip had been on the ground for long enough to be detected and removed by the operation of a reasonable cleaning system. The evidence did not permit a finding of when, in the interval between 8.00am and 12.30pm, the chip was deposited in the sidewalk area. Given this, the probability was that it had been on the ground for more than 20 minutes prior to the appellant's fall. On the balance of probabilities, therefore, the appellant would not have fallen but for Woolworths' negligence.
+HIGH COURT OF AUSTRALIA 13 December 2017 REGIONAL EXPRESS HOLDINGS LIMITED v AUSTRALIAN FEDERATION OF AIR PILOTS [2017] HCA 55 Today, the High Court unanimously dismissed an appeal from a decision of the Full Court of the Federal Court of Australia. The High Court held that an industrial association registered under the Fair Work (Registered Organisations) Act 2009 (Cth) ("the FWRO Act") is entitled to represent the industrial interests of a person, within the meaning of s 540(6)(b)(ii) of the Fair Work Act 2009 (Cth), where that person is eligible for membership of the industrial association pursuant to its eligibility rules but is not a member of the industrial association. The respondent is an industrial association registered as an organisation of employees under the FWRO Act. The appellant sent a letter to a number of persons to the effect that any person who completed its cadet programme and insisted on his or her workplace right to appropriate accommodation during layovers would not be given a position of command. The respondent alleged that the letter contravened various civil remedy provisions of the Fair Work Act and applied to the Federal Circuit Court of Australia for pecuniary penalty orders. The persons to whom the letter had been sent were not members of the respondent. The appellant applied to have the claim summarily dismissed on the basis that the respondent lacked standing because it was not an industrial association "entitled to represent the industrial interests of" the persons who had received the letter as required by s 540(6)(b)(ii) of the Fair Work Act. The primary judge dismissed that application, holding that, because the persons to whom the letter had been sent were eligible for membership of the respondent, the respondent was entitled to represent their industrial interests within the meaning of s 540(6)(b)(ii) of the Fair Work Act. The appellant appealed to the Full Court of the Federal Court. The Full Court dismissed the appeal, holding that an historical survey of legislative development of the expression "entitled to represent the industrial interests of" in s 540(6)(b)(ii) of the Fair Work Act demonstrated that it had been legislatively deployed and understood as allowing an industrial organisation to represent the industrial interests of employees who are eligible for membership of the organisation. By grant of special leave, the appellant appealed to the High Court. The Court held that, in the case of an industrial association which is registered as an organisation under the FWRO Act, the fact that a person is eligible for membership of the association in accordance with its eligibility rules is sufficient to make the association "entitled to represent the industrial interests of" that person within the meaning of s 540(6)(b)(ii) of the Fair Work Act. This construction was consistent with the context of the provision both within the Fair Work Act and against the background of its legislative history. Accordingly, the Full Court did not err in their construction of the expression and the appeal was dismissed.
+HIGH COURT OF AUSTRALIA Public Information Officer 12 February 2009 STEPHEN EDWARD PARKER v COMPTROLLER-GENERAL OF CUSTOMS A man charged with evading duty on imported Scotch whisky was not denied procedural fairness by the New South Wales Court of Appeal when he was not invited to make submissions about an earlier decision of a lower court, the High Court of Australia held today. An Australian Customs Service investigation between 1987 and 1990 into suspected contraventions of the Customs Act and Spirits Act found that some importers were mixing local spirits made from grain and/or molasses into imported brandy before bottling. It was an offence to describe as brandy any spirit not wholly distilled from wine produced from grapes. Customs formed the view that two companies controlled by Stephen Parker – Lawpark Pty Ltd which imported and distributed alcoholic spirits and Breven Pty Ltd which ran a warehouse for imported spirits – and a third company, Kingswood Distillery Pty Ltd, were involved in such a scheme. In March 1990 Customs, relying upon notices to produce issued under section 214 of the Customs Act, sought books and documents covering the previous five years relating to a particular bottle of Cheval Napoleon Old French Brandy and all other imports. When this requirement was apparently not met, they carried out a search and seizure at Lawpark’s premises at Wetherill Park in Sydney using warrants issued under section 214 (which has since been repealed). Mr Parker was ultimately charged with other offences uncovered during the investigation into adulterated brandy. In 1992, the Comptroller-General of Customs (now known as the Chief Executive Officer of Customs) began proceedings in the New South Wales Supreme Court against Mr Parker, Lawpark, Breven, and another individual, Gary Thomas Lawler. Mr Parker was charged with the removal, without Customs’ authority, of almost 93,000 litres of Scotch whisky from the Breven warehouse and 13 counts of evasion of duty on the whisky totalling more than $3 million. Proceedings against him finally came on for hearing in April 2005. Proceedings against the other defendants had already been concluded. Mr Parker challenged the admissibility of the documents seized from Lawpark’s premises and contended that evidence had been obtained improperly or in contravention of an Australian law. He said the search and seizure power had not been enlivened because the notice to produce was invalid and that the documents seized did not relate to the bottle of brandy identified in the notice to produce. Under section 138 of the NSW Evidence Act, such evidence obtained improperly or in contravention of the law cannot be admitted unless the desirability of admitting it outweighs the undesirability of admitting it. The Comptroller-General conceded the notice to produce was deficient because it was imprecise about the documents to which it applied. Justice Carolyn Simpson adopted a 1988 ruling by the NSW District Court, In the matter of Lawrence Charles O’Neill, which held that section 214(3) authorising search and seizure was limited to documents pertaining to goods on which the notice to produce was based. She held that the range of documents went well beyond what was authorised by section 214 of the Customs Act. Although the seizure was unlawful she admitted the evidence under section 138 of the Evidence Act. Justice Simpson convicted Mr Parker on all 14 charges. She ordered him to pay a penalty of more than $10 million, which was 3.25 times the duty evaded, and a penalty of $12,000 for the unauthorised movement of goods, plus costs. Mr Parker appealed unsuccessfully to the NSW Court of Appeal, which held that Justice Simpson was mistaken in accepting the construction of section 214 in O’Neill. However, she correctly admitted the evidence. Customs had not shown wilful disregard of the Customs Act. The High Court granted Mr Parker special leave to appeal on the ground that the Court of Appeal had denied him procedural fairness by finding against him without notifying him of its intention to depart from the O’Neill decision and giving him an opportunity to respond. The High Court, by a 4-1 majority, dismissed the appeal. It held that Mr Parker was not deprived of the possibility of a successful outcome. The Court held that although the Court of Appeal disagreed with O’Neill, it decided the appeal on the basis that O’Neill was correctly decided which meant there was no prejudice to Mr Parker. Consideration by a court of the weight to be given to decisions that were not authoritative did not necessarily attract an obligation to invite submissions by the parties about those decisions. What was required was that the Court of Appeal gave the parties sufficient opportunity to be heard on all the issues and there was no relevant unfairness.
+HIGH COURT OF AUSTRALIA Public Information Officer 15 November 2007 QUEENSLAND PREMIER MINES PTY LTD, FRANK GEORGE BECKINSALE, HELEN MARY BECKINSALE AND MARMINTA PTY LTD v WALTER MURDOCH FRENCH Registration of a transfer of a mortgage does not necessarily assign the right to recover money owed under a separate loan agreement, the High Court of Australia held today. In 1989, Seventeenth Febtor Pty Ltd loaned $415,000 to Queensland Premier Mines (QPM) and Mr and Mrs Beckinsale and $560,000 to QPM. The loans were for acquiring and developing land at Yeppoon on the central Queensland coast. Interest of 24 per cent was charged and the loans were collaterally secured by mortgages over specified land. The mortgages were granted by QPM in favour of Seventeenth Febtor. The Beckinsales were not a party to them. By a deed dated 18 December 1992, Seventeenth Febtor assigned its rights and interests in the mortgages and loan agreements to Mr “Rusty” French. No money was repaid. In 1999 Mr French told Mr Beckinsale he planned to sell the land covered by the mortgages. The outstanding principal and interest due under the loan agreements was $4 million. In 2000, Mr French accepted Mr Beckinsale’s offer on behalf of Marminta to buy back the mortgages for $950,000, but a dispute arose. Marminta commenced action in the Queensland Supreme Court for specific performance of the buy-back agreement. Mr French brought proceedings in the Victorian Supreme Court in 2002 to recover the money due under the loan agreements from QPM and the Beckinsales. QPM agreed to sell the development site, which included the mortgaged land, to Unison Properties for $2.44 million. Marminta was initially unsuccessful in its claim for specific performance but succeeded on appeal. The Queensland Court of Appeal ordered Mr French to do all that was necessary to enable Marminta to become the registered proprietor of the mortgages. In January 2004, a transfer of the mortgages to Marminta, Marminta’s release of mortgage, and a transfer of the estate to Unison Properties were registered. In the Victorian proceedings, which became the subject of the appeal to the High Court, Marminta contended that the right to sue upon the mortgages and to recover any debt under them vested in it when the transfer of the mortgages to it was registered which meant Marminta became the creditor of QPM and the Beckinsales of what was owed under the loan agreements. The Supreme Court made declarations sought by Marminta but the Victorian Court of Appeal unanimously gave judgment for Mr French for the balance owing by QPM and the Beckinsales under the loan agreements and for the rates and taxes he had been obliged to pay. QPM, the Beckinsales and Marminta appealed to the High Court, which unanimously dismissed the appeal. The appellants argued that the registration of a transfer of a mortgage effects an assignment of the right to recover money owed under a separate loan agreement secured by the bill of mortgage. They argued that this is so under section 62 of Queensland’s Land Title Act, which provides that, on registration of an instrument of transfer for interest in a lot, all the transferor’s rights vest in the transferee. However, the Court held that there were two separate and distinct covenants to pay: one contained in the loan agreement, which is freestanding and enforceable in its terms, and another under the mortgage. Section 62 did not justify a construction which allows the right to recovery of a debt merely collaterally secured by the mortgage. The debt sought to be recovered by Mr French arose under the loan agreements, not under the mortgage. He was assigned the right to recover the money owing under the loan agreements and Marminta was not an assignee from him. He retained the right to sue and recover that money from QPM and the Beckinsales.
+HIGH COURT OF AUSTRALIA 7 April 2006 Public Information Officer ASSETINSURE PTY LIMITED (formerly Gerling Global Reinsurance Company of Australia Pty Limited) v NEW CAP REINSURANCE CORPORATION LIMITED (in liquidation), JOHN RAYMOND GIBBONS as liquidator to the first respondent, FARADAY UNDERWRITING LIMITED, AND NC RE CAPITAL LIMITED (in liquidation) A provision in the Insurance Act to the effect that, in a winding-up of an insurance company, Australian assets should be used in the first place to discharge Australian liabilities was interpreted by the High Court to refer to liabilities of all kinds, not only liabilities under contracts of insurance. The Court also held that under a provision of the Corporations Act insurance included reinsurance. New Cap, which operated as a reinsurer, went into voluntary administration in April 1999 and its creditors resolved that the company be wound up. AssetInsure, an Australian insurer, and Faraday Underwriting, part of a syndicate of British insurers providing cover in various parts of the world to AK Steel Corporation, were both reinsured with New Cap, which had in turn taken out re-reinsurance (or retrocession). Both AssetInsure and Faraday were among New Cap’s creditors. Proceedings were brought in the NSW Supreme Court to resolve issues related to New Cap’s winding-up and the manner in which proceeds should be distributed among creditors. Two issues remained to be resolved in the High Court. One concerned section 116 of the Insurance Act, that in a winding-up of an insurance company, assets in Australia shall only be used to discharge liabilities in Australia, unless there are no Australian liabilities. The other concerned whether section 562A of the Corporations Act applied to the proceeds of contracts of re-reinsurance. AssetInsure argued that “liabilities in Australia” in section 116 of the Insurance Act were limited to liabilities under insurance contracts and that the location of such liabilities was determined exclusively by section 31(4). However, Justice William Windeyer held that “liabilities in Australia” were not confined to liabilities arising only under insurance contracts and held that section 31(4) was not an exclusive basis for determining their location. This was upheld by a majority of the NSW Court of Appeal and by a 3-2 majority of the High Court. The majority held that “liabilities in Australia” included all liabilities arising in the course of business in Australia, such as rent, taxes, loan repayments, costs of goods, and wages. Section 31(4) provided that in certain circumstances specific liabilities undertaken under insurance contracts were “liabilities in Australia”, but the Court held this was not an exhaustive statement of “liabilities in Australia”. Justice Windeyer’s decision on the Corporations Act issue was unanimously upheld by the High Court after being overturned by the Court of Appeal. The issue was whether the priority afforded by section 562A applied only to the proceeds of contracts of reinsurance or whether it also applied to the proceeds of contracts of re-reinsurance, such as that taken out by New Cap against liabilities it might incur under reinsurance contracts issued to AssetInsure and Faraday. AssetInsure argued both it and Faraday were entitled to pay-outs New Cap had received from its re-reinsurers. Justice Windeyer held that the priority afforded by section 562A applied to both reinsurance and re-reinsurance contracts. The High Court unanimously allowed the appeal on the Corporations Act issue and, by majority, dismissed the part of the appeal relating to the Insurance Act issue, therefore restoring declarations and directions made by Justice Windeyer in relation to both issues.
+HIGH COURT OF AUSTRALIA 18 March 2020 SWAN v THE QUEEN [2020] HCA 11 Today the High Court unanimously dismissed an appeal from a decision of the Court of Criminal Appeal of the Supreme Court of New South Wales. The appellant and an accomplice were charged with the murder of 79-year-old Mr Kormilets. Mr Kormilets was an active man who was in apparently good health when the appellant and the accomplice attacked him after breaking into his home, causing severe injuries to his brain, face, kidneys and chest. Following the assault, Mr Kormilets spent almost four months in hospital before being transferred to a high-level care facility. His mental and physical condition was so poor that he was unable to undertake, or comprehend, any daily living activities. Eight months after the assault, Mr Kormilets suffered a fracture to the neck of his left femur. A decision was made not to operate on Mr Kormilets and he died in hospital from the consequences of the fracture shortly thereafter. Whether the appellant caused Mr Kormilets' death was a live issue at trial. The Crown advanced three possible pathways for the jury to conclude that the appellant caused the death. The central issue before the Court of Criminal Appeal and the High Court was whether it was open to the jury to convict upon the third pathway: that Mr Kormilets' low quality of life as a consequence of the assault caused the decision not to undergo surgery, which would reasonably have been expected to save his life. The Court of Criminal Appeal concluded that there was sufficient evidence for this pathway to be open to the jury. There was no dispute on appeal that causation is satisfied where an accused's act is "a substantial or significant cause of death" or a "sufficiently substantial" cause of the death charged. The High Court unanimously held that on the evidence it was open to the jury to conclude that surgery was available and would reasonably have been expected to save Mr Kormilets' life, that Mr Kormilets or his son made a decision that the surgery should not be undertaken, and that the decision not to operate was motivated by Mr Kormilets' low quality of life due to the assault. Accordingly, it was open to the jury to convict the appellant on the third pathway of causation.
+HIGH COURT OF AUSTRALIA 3 May 2017 TALACKO v BENNETT [2017] HCA 15 Today the High Court unanimously allowed an appeal from the Court of Appeal of the Supreme Court of Victoria. The High Court held that the Court of Appeal erred in concluding that s 15(2) of the Foreign Judgments Act 1991 (Cth) did not prevent the issue of a certificate under s 15(1) of that Act, even though the judgment in question could not be enforced by execution by reason of s 58(3) of the Bankruptcy Act 1966 (Cth). A dispute between three siblings concerning certain properties formerly owned by their parents in what is now the Czech Republic led to the commencement of legal proceedings in 1998. Those proceedings were compromised in February 2001 by written terms of settlement requiring one of the siblings, Jan Emil Talacko, to transfer all rights, title and interest in the properties to a nominated person. Mr Talacko reneged on that agreement, and in July 2005 the families of the other two siblings (collectively, "the respondents") reactivated the proceedings and in April 2008 obtained judgment. In November 2009, Mr Talacko was ordered to pay in excess of €10m as equitable compensation. On 4 July 2012, upon the respondents' request, the Prothonotary of the Supreme Court of Victoria issued a document entitled "Certificate of Finality of Judgment and Orders" in purported reliance on s 15(1) of the Foreign Judgments Act. The respondents intended to file that certificate in proceedings then on foot in the Czech Republic against Mr Talacko and his sons. By this time, Mr Talacko had been made bankrupt by order of the Federal Court of Australia. Upon becoming aware that the certificate had been issued, he began to take steps to have it set aside. He died intestate shortly after, and his widow ("the appellant"), who was appointed representative of Mr Talacko's estate, issued a summons in the Supreme Court of Victoria seeking orders that the certificate (and a subsequently issued replacement certificate) were invalid and should be set aside. On 4 February 2016 Sloss J declared the certificates to be invalid, relevantly on the basis that s 58(3) of Bankruptcy Act, which prevents creditors from enforcing any remedy against the property of a bankrupt in respect of a provable debt, operated to impose a "stay of enforcement of the judgment" within the meaning of s 15(2) of the Foreign Judgments Act and thus precluded the obtaining of a certificate under that Act. An appeal to the Court of Appeal was allowed on the basis that "stay of enforcement" referred only to a judicially ordered stay (or similar) and did not extend to include the statutory bar imposed by s 58(3) of the Bankruptcy Act. By special leave, the appellant appealed to the High Court. The Court held that the meaning of the word "stay" is not necessarily confined to stays imposed by courts, but is capable of including any legal impediment to execution upon the judgment. The Court held that the evident purpose of s 15(2) of the Foreign Judgments Act is to prevent an application for a certificate which, if granted, would facilitate the enforcement abroad of a judgment that cannot be enforced in Australia. The judgment debt in question, because of s 58(3) of the Bankruptcy Act, was in that category. The orders of the Court of Appeal were set aside, with the effect that the declaration of the primary judge was reinstated.
+HIGH COURT OF AUSTRALIA 21 December 2016 SOUTHERN HAN BREAKFAST POINT PTY LTD (IN LIQUIDATION) v LEWENCE CONSTRUCTION PTY LTD & ORS [2016] HCA 52 Today the High Court unanimously allowed an appeal from the Court of Appeal of the Supreme Court of New South Wales. The High Court held that the existence of a reference date under a construction contract is a precondition to the making of a valid payment claim under s 13(1) of the Building and Construction Industry Security of Payment Act 1999 (NSW) ("the Act"). The appellant ("Southern Han") and the respondent ("Lewence") were parties to a construction contract for the construction by Lewence of an apartment block ("the Contract"). The Contract made provision for Lewence to "claim payment progressively" by making a "progress claim" on the 8th day of each calendar month for work under the Contract done to the 7th day of that month. On 27 October 2014, Southern Han gave Lewence a notice purporting to exercise its right under the Contract to take out of Lewence's hands the whole of the work remaining to be completed. Lewence treated the giving of that notice as repudiation of the Contract and purported to accept the repudiation and to terminate the Contract. On 4 December 2014, Lewence served on Southern Han a purported payment claim, which claimed payment for work carried out by Lewence up to 27 October 2014. Southern Han provided a payment schedule in response to Lewence's payment claim indicating that the amount it proposed to pay was nil. Lewence purported to make an application for adjudication. The adjudicator rejected an argument that he lacked jurisdiction and purported to determine the application. Southern Han sought a declaration in the Supreme Court that the purported determination was void or, alternatively, an order in the nature of certiorari quashing the purported determination. The primary judge made the declaration sought, construing the Act as requiring a reference date to have arisen under the Contract as a precondition to the making of a valid payment claim, and finding that there was no reference date to support Lewence's purported payment claim. The Court of Appeal allowed Lewence's appeal, holding that the existence of a reference date is not a precondition to the making of a valid payment claim under the Act. By grant of special leave, Southern Han appealed to the High Court. The High Court held that the reference in s 13(1) to a "person referred to in s 8(1) who is or who claims to be entitled to a progress payment" was to be construed as referring to a person who has undertaken to carry out construction work or supply related goods and services under a construction contract, and who therefore is entitled to a progress payment only on and from each reference date. The existence of a reference date under a construction contract within the meaning of s 8(1) was therefore a precondition to the making of a valid payment claim under s 13(1). There was nothing in the Contract to indicate an intention that Lewence's right to make progress claims was to survive termination, thus preventing a future reference date from arising. The High Court allowed the appeal, set aside the orders made by the Court of Appeal and in their place ordered that the appeal to the Court of Appeal be dismissed.
+HIGH COURT OF AUSTRALIA Manager, Public Information 5 August 2009 AON RISK SERVICES AUSTRALIA LTD v AUSTRALIAN NATIONAL UNIVERSITY [2009] HCA 27 Three days into a four week trial the Australian National University (ANU) sought an adjournment in order to make an application to the Supreme Court of the Australian Capital Territory to amend its statement of claim against its insurance broker significantly, Aon Risk Services Australia Ltd. The primary judge granted the adjournment and leave to amend. The ACT Court of Appeal dismissed an appeal against that decision except in relation to costs. Today the High Court allowed an appeal against the decision of the Court of Appeal. The bushfires in and around Canberra in January 2003 destroyed property belonging to ANU at its Mt Stromlo complex. In December 2004, ANU commenced proceedings against three insurance companies claiming indemnity for the Mt Stromlo losses. It subsequently joined Aon to the proceeding, claiming that it had acted negligently in failing to renew insurance over certain ANU properties. A four week trial was listed to commence on 13 November 2006. On that day, ANU and two of the three insurance companies commenced mediation which led to the settlement of ANU’s claims against them. ANU also settled its claim against the third insurance company. Those three claims having been resolved, ANU sought an adjournment of the trial on the basis that certain events that occurred and information received before and during the mediation made it necessary to seek leave to amend its statement of claim against Aon. Despite Aon’s opposition, the primary judge granted the adjournment and also granted ANU leave to amend its claim against Aon substantially. A majority of the Court of Appeal dismissed Aon’s appeal against the primary judge’s orders but ordered ANU to pay costs to Aon arising out of the amendment on an indemnity basis. The High Court granted Aon special leave to appeal. All members of the Court considered the proposed amendments did not fall into the category of amendments to which Rule 501 of the Court Procedure Rules 2006 (ACT) applied, that is, amendments which were required to be made for the purpose of deciding the real issues in the proceeding, or for the purpose of avoiding multiple proceedings. Rule 502 was the applicable rule. It required the Court to exercise its discretion in deciding whether to grant leave to ANU to make the amendments. Taking into account the objects and purposes of the Rules as set out in Rule 21, matters relevant to the exercise of the discretion would include, but not be limited to, the extent of the delay in seeking to amend, and the costs associated with that delay; prejudice to the opposing party if leave were to be granted; the nature and importance of the amendment to the party applying; the point the litigation had reached, relative to the trial commencement date; prejudice to other litigants awaiting trial dates; and the proposing party’s explanation for the delay in applying for the amendment. To the extent that statements in the case of Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146 suggested only a limited application for case management principles in determining applications for leave to amend, the Court held that such statements should not be applied in the future. The High Court held that the primary judge and the majority in the Court of Appeal had not had sufficient regard to the following salient features of ANU’s application for leave to amend: it sought to introduce new and substantial claims which would require Aon to prepare a new defence as if from the beginning; the application was brought during the time which had been set for trial and would result in the abandonment of the remaining scheduled weeks of trial; it was not clear that even an order for indemnity costs would overcome the prejudicial effects on Aon; and ANU had offered no explanation about why the case had been allowed to proceed to trial in its existing form when the basis upon which it was now seeking to amend had been known to it for at least 12 months. The abandonment of the trial date would also have had deleterious effects on other litigants whose trial dates would have to be put back. In the Court’s view, adjourning the trial date and granting ANU leave to amend in the circumstances of this case was contrary to the case management objectives set out in Rule 21 of the Rules. The High Court allowed Aon’s appeal and ordered that ANU’s application for leave to amend its statement of claim be dismissed.
+HIGH COURT OF AUSTRALIA 18 December 2013 UNIONS NSW & ORS v STATE OF NEW SOUTH WALES [2013] HCA 58 Today the High Court unanimously held that ss 96D and 95G(6) of the Election Funding, Expenditure and Disclosures Act 1981 (NSW) ("the EFED Act") are invalid because they impermissibly burden the implied freedom of communication on governmental and political matters, contrary to the Commonwealth Constitution. Section 96D of the EFED Act prohibits the making of a political donation to a political party, elected member, group, candidate or third-party campaigner, unless the donor is an individual enrolled on the electoral roll for State, federal or local government elections. The EFED Act also caps the total expenditure that political parties, candidates and third-party campaigners can incur for political advertising and related election material. For the purposes of this cap, s 95G(6) of the EFED Act aggregates the amount spent on electoral communication by a political party and by any affiliated organisation of that party. An "affiliated organisation" of a party is defined as a body or organisation "that is authorised under the rules of that party to appoint delegates to the governing body of that party or to participate in pre-selection of candidates for that party (or both)". Each of the plaintiffs intends to make political donations to the Australian Labor Party, the Australian Labor Party (NSW Branch) or other entities, and to incur electoral communication expenditure within the meaning of the EFED Act. The second, third and sixth plaintiffs are authorised to appoint delegates to the annual conference of the Australian Labor Party (NSW Branch) and to participate in the pre-selection of that party's candidates for State elections. A special case stated questions of law for determination by the High Court. The High Court unanimously held that ss 96D and 95G(6) burdened the implied freedom of communication on governmental and political matters. that political communication at a State level may have a federal dimension. The Court accepted that the EFED Act had general anti-corruption purposes. However, the Court held that the impugned provisions were not connected to those purposes or any other legitimate end. The Court held
+HIGH COURT OF AUSTRALIA Public Information Officer 9 April, 2003 AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v C G BERBATIS HOLDINGS PTY LTD & ORS The High Court of Australia today dismissed an appeal by the ACCC which alleged a shopping centre’s insistence on tenants discontinuing litigation if they wanted their lease renewed constituted unconscionable conduct under the Trade Practices Act. The High Court held, by a 4-1 majority, that the tenant was not under any special disadvantage or disability. Inequality of bargaining power was not in itself a special disadvantage. The problem for the tenants was that they had no option to renew their lease. This was not a relevant form of disability for the purposes of the law relating to unconscionable conduct. Margaret and James Roberts ran a seafood shop in Farrington Fayre Shopping Centre in the Perth suburb of Leeming from 1989 until the end of 1996 when they sold the business. The Roberts’ lease was due to expire in early 1997 and the sale was on the basis that a new lease was granted. The Roberts had joined other tenants in legal proceedings against the owners for various charges imposed on them under their leases. The shopping centre owners said they would renew the Roberts’ lease but only on condition that they abandoned the litigation. The Roberts felt they had no choice but to agree. In 1998, the ACCC instituted Federal Court proceedings, claiming that the condition that the Roberts withdraw from litigation contravened section 51AA of the Trade Practices Act which prohibits unconscionable conduct by corporations. Justice French held that the owners had breached s 51AA, but his decision was overturned by the Full Court of the Federal Court. The ACCC appealed to the High Court. The Court dismissed the appeal, holding that taking advantage of a superior bargaining position was not to be confused with unconscientious exploitation of another’s inability to protect their own interests. The Court held that the Roberts were not under any relevant disability, nor was the shopping centre’s owners’ conduct unconscionable.
+HIGH COURT OF AUSTRALIA 14 September 2012 THE PILBARA INFRASTRUCTURE PTY LTD & ANOR v AUSTRALIAN COMPETITION TRIBUNAL & ORS; THE NATIONAL COMPETITION COUNCIL v HAMERSLEY IRON PTY LTD & ORS; THE NATIONAL COMPETITION COUNCIL v ROBE RIVER MINING CO PTY LTD & ORS [2012] HCA 36 The High Court today held that the Australian Competition Tribunal’s review of the Minister’s decision whether to declare certain services relating to railway lines in the Pilbara under Part IIIA of the Trade Practices Act 1974 (Cth) (now the Competition and Consumer Act 2010 (Cth)) ("the Act") had not been undertaken according to law. Part IIIA of the Act provides for processes by which third parties may obtain access to infrastructure owned by others. The High Court quashed the Tribunal’s determinations and remitted the matters to the Tribunal for determination according to law. The dispute related to four railway lines in the Pilbara: the Goldsworthy line and the Mt Newman line operated by BHP Billiton Iron Ore Pty Ltd and BHP Billiton Minerals Pty Ltd (together, "BHPB"), and the Hamersley line and the Robe line operated by Rio Tinto Ltd and its associated entities ("Rio Tinto"). Fortescue Metals Group Limited ("FMG") or its wholly owned subsidiary, The Pilbara Infrastructure Pty Ltd ("TPI"), applied to have the services declared under the Act. The Minister declared the services relating to the Hamersley, Robe and Goldsworthy lines for a period of 20 years but did not declare the Mt Newman line services. FMG, BHPB and Rio Tinto appealed to the Tribunal. At the hearing before the Tribunal, the parties presented materials and evidence far in excess of what was placed before the Minister. The Tribunal ruled the Mt Newman line services should not be declared, the Goldsworthy line services should be declared for 20 years, the Hamersley line services should not be declared and the Robe line services should be declared for 10 years until 2018. FMG and Rio Tinto both applied to the Full Court of the Federal Court for judicial review of the Tribunal’s decision. The Full Court dismissed FMG’s applications and allowed Rio Tinto’s application, and set aside the decision of the Tribunal regarding the Robe line services. By special leave, FMG and TPI appealed to the High Court. The appeal to the High Court raised three issues. First, what is the meaning of the expression, "uneconomical for anyone to develop another facility to provide the service" under s 44H(4)(b) of the Act? Second, what matters can be taken into account under s 44H(4)(f) of the Act when the section requires the decision maker to be satisfied that access to the services "would not be contrary to the public interest"? Third, if a decision maker was satisfied as to the matters stated in s 44H(4) of the Act, was there a residual discretion to be exercised? During the hearing of the appeal, an issue was raised as to the nature of the task the Tribunal was required to perform when asked to review the Minister’s decision. The High Court held that the Tribunal should have considered only those materials considered by the Minister supplemented, if necessary, by any information, assistance or report given to the Tribunal by the National Competition Council in response to a request made under s 44K(6) of the Act. On the other issues considered on appeal, a majority of the High Court ruled that the expression, "uneconomical for anyone to develop another facility to provide the service" in s 44H(4)(b) of the Act required an inquiry whether there was anyone who could profitably develop another facility. The Court held that the requirement that the decision maker be satisfied that access to the services "would not be contrary to the public interest" needed to be applied in the context of the limited scope of review by the Tribunal. Finally, the Court held that, if a decision maker was satisfied as to the matters stated in s 44H(4) of the Act, there was no residual discretion to be exercised.
+HIGH COURT OF AUSTRALIA 14 October 2020 ABT17 v MINISTER FOR IMMIGRATION AND BORDER PROTECTION & ANOR [2020] HCA 34 Today the High Court unanimously allowed an appeal from a judgment of the Federal Court of Australia. The appeal concerned a review by the Immigration Assessment Authority ("the IAA") under Pt 7AA of the Migration Act 1958 (Cth) ("the Act") of a decision of a delegate of the Minister for Immigration and Border Protection ("the Minister") to refuse to grant the appellant a temporary protection visa. The issue raised by the appeal was whether it was legally unreasonable for the IAA to depart from the delegate's assessment of the appellant's credibility without inviting the appellant to an interview to obtain new information. Subject to Pt 7AA of the Act, under s 473DB the IAA is required to review a fast track reviewable decision by considering the review material provided to it, and without accepting new information or interviewing the applicant. Under s 473DC, the IAA may get new information that was not before the Minister and that the IAA considers may be relevant, and the IAA may invite the person to give the new information at an interview. However, under s 473DD the IAA must not consider new information unless it is satisfied that there are exceptional circumstances, and that either the new information was not and could not have been provided to the Minister or that it is credible personal information. The appellant lodged an application for a temporary protection visa which was refused by a delegate of the Minister. While the delegate found that the appellant's evidence during the visa interview was plausible, the delegate was not satisfied that the appellant faced a well-founded fear of persecution based on country information concerning improved circumstances relating to Tamils in Sri Lanka. The delegate's decision was referred to the IAA for review. The IAA affirmed the delegate's decision. After reviewing the audio recording of the interview, the IAA accepted some of the appellant's claims but found that others were exaggerated and embellished. As the IAA did not accept the appellant's account of events, and considered there was otherwise no credible information to indicate he was of interest to Sri Lankan authorities, it concluded that the appellant did not have a well-founded fear of persecution. The IAA further held that this conclusion was supported by the country information considered by the delegate. An application for judicial review was dismissed by the Federal Circuit Court. On appeal to the Federal Court, the appellant contended that the IAA's decision was legally unreasonable because it made credibility findings contrary to those of the delegate without inviting the appellant to an interview. However, the Court held that it was not necessary to decide this issue, and dismissed the appeal on the basis that any failure to interview the appellant was not material to the IAA's decision because it was independently supportable by the country information relied on by both the delegate and the IAA. On appeal to the High Court, the Court unanimously held that in the circumstances of this case it was legally unreasonable for the IAA to depart from the delegate's assessment of the appellant's credibility. The plurality held that the legal unreasonableness arose from the IAA having departed from the delegate's assessment of the appellant's credibility without exercising its power under s 473DC of the Act to invite the appellant to an interview to obtain new information. The remaining Justices held that it was legally unreasonable for the IAA to depart from the delegate's assessment of the appellant's credibility in the circumstances, but that it either may not have been or was not open to the IAA to interview the appellant because the appellant's demeanour was not "new information" within the meaning of s 473DC of the Act.
+HIGH COURT OF AUSTRALIA 22 August 2011 HIH CLAIMS SUPPORT LIMITED v INSURANCE AUSTRALIA LIMITED [2011] HCA 31 Today the High Court dismissed an appeal by HIH Claims Support Limited ("HCSL") from a decision of the Court of Appeal of the Supreme Court of Victoria. The High Court upheld the Court of Appeal's finding that HCSL was not entitled to equitable contribution from Insurance Australia Limited ("IAL") in respect of amounts HCSL had paid to satisfy certain liabilities incurred by Mr Ronald Steele. Steele was sub-contracted to erect a scaffold at Albert Park, Melbourne, for the 1998 Australian Grand Prix. He was insured under a general liability insurance policy ("the HIH policy") issued by a company ("HIH") in the HIH group of insurance companies ("the HIH Group"). As a sub-contractor of the Australian Grand Prix Corporation, Steele was also insured under a policy issued by IAL's predecessor in title. In March 1998, Steele's scaffold collapsed and damaged a valuable "jumbotron" video screen. The operator of the screen subsequently won an action against Steele in the Supreme Court of New South Wales ("the NSW proceeding") for damages for losses caused by the collapse of the scaffold. Steele made a claim under the HIH policy in relation to the incident and any liability established in the NSW proceeding. HIH accepted his claim. However, before the trial in the NSW proceeding, the HIH Group collapsed. In 2001, the Commonwealth Government established a scheme for providing financial assistance to policyholders, insureds and beneficiaries under insurance policies issued by the HIH Group who had suffered loss as a result of the collapse of the HIH Group ("the Scheme"). HCSL was appointed as the Scheme's trustee, administrator and manager. Steele applied and was accepted for assistance. In accordance with the Scheme, Steele assigned to HCSL all of his rights against HIH, including his right to prove in the liquidation of HIH. In return, HCSL paid 90 per cent of the amount HIH would have paid under the HIH policy in satisfaction of Steele's liability and his costs in defending the NSW proceeding, excluding some amounts HIH had already paid. HCSL then brought proceedings against IAL in the Supreme Court of Victoria, seeking equitable contribution in the sum of one half of all of the payments HCSL had made in respect of Steele. Both the primary judge and the Court of Appeal dismissed HCSL's claim. HCSL was granted special leave to appeal to the High Court. The High Court dismissed the appeal on the basis that the liabilities of HCSL and IAL were not co-ordinate. The parties did not share a common burden because the Scheme was structured to prevent contractual obligations between HCSL and Steele from arising if Steele had already been indemnified by IAL and to prevent IAL from claiming equitable contribution from HCSL. Further, in its contract to indemnify Steele, HCSL did not undertake the same risk as IAL had undertaken in its insurance policy covering Steele.
+HIGH COURT OF AUSTRALIA Public Information Officer 14 June 2006 LOMANI JOEY KOROITAMANA (an infant by her next friend Sereana Naikelekele) AND MEREANI DIVOLIVOLI ((an infant by her next friend Sereana Naikelekele) v COMMONWEALTH OF AUSTRALIA AND MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS Two girls, who were born in Australia to Fijian parents, and who have the right to take out Fijian citizenship but who have not done so, are aliens under Australian law, the High Court of Australia held today. Lomani was born in Australia on 26 August 2000 and Mereani on 3 September 1998. They have remained continuously in Australia. Neither their mother, Sereana Naikelekele, nor their father, Maika Koroitamana, is an Australian citizen or a permanent resident and neither girl is an Australian citizen. Under the Constitution of Fiji, the girls may become citizens of Fiji by registration, but no application for registration has been made by them or on their behalf. The girls, who have been placed in immigration detention, commenced proceedings to challenge section 189 of the Migration Act which provides for detention of unlawful non-citizens and section 198 which provides for removal from Australia of unlawful non-citizens. They claim that under section 51(xix) of the Constitution the power to make laws with respect naturalisation and aliens does not extend to a power to treat them as aliens. In the Federal Court of Australia, Justice Arthur Emmett stated a case for the consideration of the Full Court which answered “yes” to the question of whether the girls were aliens within the meaning of section 51(xix). Lomani and Mereani sought special leave to appeal to the High Court. Their application was referred to a Full Court of seven Justices and argued fully as on an appeal. The Court unanimously granted the application for leave to appeal but dismissed the appeal. In 2004, the Court, by a 5-2 majority, in Singh v Commonwealth held that birth in Australia does not of itself mean that a person is beyond the reach of the power conferred on Parliament by section 51(xix) and does not mean that that person cannot be treated as an alien. Tania Singh was born in Australia to Indian parents. Lomani and Mereani said the difference between their case and Singh was that Tania was a citizen of India by descent from her parents whereas they are not citizens of Fiji. They argued that a person born in Australia could not possibly answer the description of “alien” unless they could be shown to have foreign allegiance. The Court held that it is open to Parliament to decide that an Australian-born child of parents who are foreign nationals is not automatically entitled to citizenship.
+HIGH COURT OF AUSTRALIA Public Information Officer 8 March 2006 JASON CHARLES BUCKLEY v THE QUEEN Errors were made in assessing whether Mr Buckley should be jailed indefinitely and the Queensland Court of Appeal must re-examine the case in accordance with principles governing the exceptional imposition of indefinite sentences, the High Court of Australia held today. Mr Buckley, 34, pleaded guilty to five counts of rape, and one count each of burglary with violence, indecent assault and inflicting grievous bodily harm, arising from three violent attacks on women, one in Dalby and two in Toowoomba, between March 1999 and January 2000. Under Part 10 of the Queensland Penalties and Sentences Act, a court may impose an indefinite sentence on an offender convicted of violent offences if a court is satisfied that they are a serious danger to the community. The court must state the prison term that would otherwise be imposed – in Mr Buckley's case, 22 years – which affected reviews of the indefinite sentence and any new term that might be set if the indefinite term is lifted. The court must have regard to whether the nature of the offence is exceptional and to the offender's age, background, character, psychiatric or other reports, the risk of serious harm to the community, and the need to protect the community from such risk. The court must set out detailed reasons for imposing an indefinite sentence. The Court of Appeal, by majority, refused Mr Buckley's application for leave to appeal. Justice Catherine Holmes in dissent would have granted leave to appeal, as she found that there were three material errors of fact made by Judge Warren Howell. However, she would have come to the same conclusion that an indefinite sentence should be imposed. The High Court unanimously allowed the appeal. It agreed with Justice Holmes's findings of errors of fact but it held that, more significantly, Judge Howell had failed to apply the principles applicable to a decision as to whether to impose an indefinite sentence. The Court held that Mr Buckley's case was one where Part 10 of the Act could apply but the outcome was not inevitable and the Court of Appeal should have given leave to appeal and exercised its own discretion. The Court remitted the matter to the Court of Appeal for reconsideration.
+HIGH COURT OF AUSTRALIA 3 February 2021 MINISTER FOR IMMIGRATION AND BORDER PROTECTION v MAKASA [2021] HCA 1 On 12 November 2020, the High Court unanimously dismissed an appeal from a judgment of the Full Court of the Federal Court of Australia ("Full Court"). Today, the High Court published its reasons for that decision. The question for determination was whether the Minister for Immigration and Border Protection ("the Minister") could re-exercise the power conferred by s 501(2) of the Migration Act 1958 (Cth) ("the Act") to cancel a visa on character grounds after the Administrative Appeals Tribunal ("AAT") had set aside a prior decision of the delegate of the Minister to cancel the visa and substituted a decision that the visa should not be cancelled. Following the AAT's decision, the respondent was subsequently convicted and sentenced in relation to two further offences involving failing to comply with reporting obligations and driving under the influence of alcohol. Being satisfied that the respondent failed to pass the character test solely by reason of the sentences imposed in respect of the earlier convictions that formed the basis of the first cancellation decision, but taking the subsequent convictions into account in the exercise of discretion, the Minister personally purported to re-exercise the power conferred by s 501(2) of the Act to cancel the respondent's visa. The respondent applied to the Federal Court of Australia for judicial review of the Minister's decision, which was dismissed at first instance. On appeal, the Full Court, by majority, allowed the respondent's appeal. By grant of special leave, the Minister appealed to the High Court. The High Court upheld the orders of the Full Court but gave different reasons for its decision. The High Court reasoned that the answer to the question for determination turned on whether, and to what extent, there appeared sufficiently for the purposes of s 2 of the Acts Interpretation Act 1901 (Cth) ("the AI Act") an intention contrary to the application of the general prescription in s 33(1) of the AI Act that a statutory power "may be exercised ... from time to time as occasion requires". The High Court held that, where there is no different factual basis on which to form a reasonable suspicion that a person does not pass the character test, such an intention emerges by reference to two principal considerations. The first is inherent in the nature of the merits review function of the AAT. The function of the AAT, the High Court observed, is "to do over again" that which was done by the primary decision-maker, and that function would be reduced to a mockery were the subject-matter of the primary decision made by the AAT on review able to be revisited by the primary decision-maker in the unqualified re-exercise of the same statutory power already re-exercised by the AAT in the conduct of the review. The second is the existence of s 501A of the Act, which confers a power on the Minister to personally re-exercise the power conferred by s 501(2) in certain circumstances. The High Court held that the existence of the special power, subject to limitations and qualifications, means that the general power conferred by s 501(2) cannot be exercised to do that which is the subject of the special power. The result is that the Minister can only re-exercise the power under s 501(2) either in reliance on s 501A or where subsequent events or further information provide a different factual basis for forming a reasonable suspicion that the person does not pass the character test.
+HIGH COURT OF AUSTRALIA 18 October 2017 BRF038 v THE REPUBLIC OF NAURU [2017] HCA 44 Today the High Court unanimously allowed an appeal from the Supreme Court of Nauru. The High Court held that the Supreme Court erred in failing to hold that the Refugee Status Review Tribunal ("the Tribunal") had failed to accord the appellant procedural fairness. The appellant is from the Awdal province in Somaliland, an autonomous region in Somalia. He is a Sunni Muslim and a member of the Gabooye tribe. In September 2013, the appellant arrived by boat at Christmas Island. He was subsequently transferred to the Republic of Nauru. There he applied to the Secretary of the Department of Justice and Border Control of Nauru ("the Secretary") for refugee status. As part of that application, the appellant stated that the Somalian authorities were unwilling to assist him and his family due to their ethnicity. His application was refused by the Secretary. The appellant's application to the Tribunal for review of the Secretary's determination failed, as the Tribunal found that the harm that the appellant and his family faced constituted discrimination, but did not rise to the level of persecution. In the course of directly addressing the question whether the appellant had a well-founded fear of persecution as a result of his membership of the Gabooye tribe, the Tribunal observed that there was country information indicating that there are "police from every tribe in Somaliland, so [the appellant] would have some redress from the acts of others". An "appeal" to the Supreme Court pursuant to s 43(1) of the Refugees Convention Act 2012 (Nr) was dismissed. The appellant appealed to the High Court on the grounds that the Supreme Court erred in failing to hold that (i) the Tribunal applied the wrong test in determining whether the appellant suffered "persecution" within the meaning of the Convention relating to the Status of Refugees by requiring the total deprivation of the appellant's human rights in order to find that he faced persecution, and (ii) the Tribunal's failure to put the substance of the country information relating to the tribal composition of the Somaliland police to him constituted a breach of the requirements of procedural fairness contemplated by s 22 of the Refugees Convention Act. The High Court held that the Supreme Court of Nauru was exercising its original jurisdiction in conducting judicial review of the Tribunal's decision. Accordingly, the appeal to the High Court lay as of right. The Court held that the Tribunal did not purport to articulate an exhaustive test for persecution that could only be satisfied by the total deprivation of a person's human rights and that it was open to the Tribunal to conclude that the appellant was not faced with a well-founded fear of "persecution" within the meaning of the Refugees Convention. Finally, the Court held that the Tribunal's reliance on the tribal composition of the Somaliland police force was integral to the Tribunal's reasons for its conclusion, and therefore its failure to bring the country information to the appellant's attention amounted to a failure to accord him procedural fairness. The Court therefore allowed the appeal, set aside the order of the Supreme Court and ordered that the decision of the Tribunal be quashed and the matter be remitted to the Tribunal for reconsideration according to law.
+HIGH COURT OF AUSTRALIA 13 February 2019 [2019] HCA 5 Today the High Court unanimously allowed an appeal from a decision of the Court of Criminal Appeal of the Supreme Court of New South Wales, quashed the appellant's conviction and ordered a new trial. The appellant was tried with a co-accused before a judge and jury in the District Court of New South Wales on an indictment charging him with drug-related offences. The appellant was the movements manager of a company that transported freight under bond from cargo terminal operators at the airport to freight-forwarding agencies. The charges related to, amongst other things, three consignments of freight and $400,150 in cash which was located in a tin box in the appellant's bedroom. The appellant gave evidence that the cash was the product of his success as a gambler. The appellant also held a number of online betting accounts, through which the appellant had made net losses, which the appellant's counsel erroneously relied upon as evidence of the appellant's success as a gambler. During the trial judge's summing-up to the jury, he suggested that the first consignment may well have contained drugs, the importation of which was the responsibility of the appellant as part of "an organisation of great sophistication". No such suggestion had been made by the prosecution at trial. The trial judge also suggested that a text message sent by the appellant to his co-accused showed that the appellant was knowingly involved in the importation of drugs. The trial judge also commented on the evidence of the appellant's online betting accounts. In doing so, the trial judge went beyond correcting the erroneous reliance by the appellant's counsel on the accounts as proof of the appellant's success as a gambler, and belittled the appellant's counsel. The appellant was convicted and subsequently sentenced to imprisonment for 18 years and nine months, with a non-parole period of 11 years and nine months. He appealed against his conviction to the Court of Criminal Appeal, alleging that the trial judge's summing-up to the jury occasioned a miscarriage of justice. A majority of the Court of Criminal Appeal held that the trial judge's comments did not occasion a miscarriage of justice. By grant of special leave, the appellant appealed to the High Court. The Court unanimously held that the trial judge's comments were so lacking in balance as to be an exercise in persuading the jury of the appellant's guilt, were unfair to the appellant, and gave rise to a miscarriage of justice. As a result, the Court quashed the appellant's conviction and ordered a new trial. A majority of the Court also held that trial judges should refrain from making comments that convey their opinion as to the proper determination of a disputed issue of fact to be determined by the jury.
+HIGH COURT OF AUSTRALIA 11 May 2011 SPRINGFIELD LAND CORPORATION (NO 2) PTY LTD & ANOR v STATE OF QUEENSLAND & ANOR [2011] HCA 15 The High Court today dismissed an appeal brought by Springfield Land Corporation Pty Ltd and Springfield Land Corporation (No 2) Pty Ltd ("the Springfield companies") against a decision of the Queensland Court of Appeal. The Court of Appeal had upheld a decision of the Supreme Court denying the Springfield companies compensation from the State of Queensland, determined pursuant to the Acquisition of Land Act 1967 (Q) ("the Acquisition Act"), for the transfer of certain land to the State. The Springfield companies and the State of Queensland entered into an agreement for the Springfield companies to transfer certain land at Springfield near Ipswich to the State, with compensation for the transferred land to be assessed as if the State had acquired the land under the Acquisition Act. The transferred land was to be amalgamated with other land owned by the Department of Main Roads in an area designated as the "South West Transport Corridor". Section 20(3) of the Acquisition Act required that, in assessing the compensation to be paid, there be taken into consideration, by way of set-off or abatement, any enhancement in the value of the interest of the claimant in land adjoining the acquired land as a result of the carrying out of the purpose for which the land was acquired. The State of Queensland argued that the Springfield companies were not entitled to any compensation because of the enhancement of value of the land owned by the Springfield companies adjoining the transferred land resulting from the proposed use of the land for the facilitation of transport infrastructure. The State's claim was rejected by an arbitrator, who was appointed under the agreement between the parties to determine the quantum of compensation. The arbitrator awarded the Springfield companies $1,468,406. However, both the Supreme Court and the Court of Appeal accepted the State of Queensland's argument and awarded no compensation to the Springfield companies. The High Court, by majority, held that the relevant purpose of the acquisition of the land by the State of Queensland was for future transport purposes, including the facilitation of transport infrastructure for the South West Transport Corridor. As this purpose enhanced the value of the adjoining land owned by the Springfield companies so as to exceed the value of the transferred land, no compensation was required to be paid to the Springfield companies. The Springfield companies were ordered to pay the respondents' costs.
+HIGH COURT OF AUSTRALIA 29 August 2007 Public Information Officer AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v BAXTER HEALTHCARE PTY LTD, THE STATE OF WESTERN AUSTRALIA, THE STATE OF SOUTH AUSTRALIA AND THE STATE OF NEW SOUTH WALES A corporation does not derive immunity from civil proceedings for contraventions of the Trade Practices Act (TPA) through conducting business with governments, the High Court of Australia held today. Baxter Healthcare is the Australian arm of a global medical products company. It manufactures various sterile fluids for hospitals and fluids and apparatus for home-based kidney dialysis patients. Baxter has the only Australian manufacturing plant for certain types of sterile fluids, at Toongabbie in Sydney. Between 1998 and 2001, Baxter entered into long-term contracts to supply sterile fluids and dialysis products to public hospitals in four States and the ACT. Baxter offered to supply products either priced on an item-by-item basis or heavily discounted by bundling together on a sole-supplier basis. The resulting contracts provided for the total supply of certain sterile fluids and at least 90 per cent of dialysis fluids for up to five years. None of the contracts is still on foot. In 2000, the South Australian Department of Human Services sought tenders for various products and Baxter and two other companies responded. Baxter’s Offer 1 was an item-by-item bid for two years, with optional extensions. Offer 2 was a combined bid on an exclusive basis for five years with volume discounts. The Department requested a revised offer for a five-year term for all products, except renal products, with a volume discount. Baxter’s Offer 1A did not include this discount. Both Offer 1A and Offer 1 cost $5,914,291. The bundled Offer 2 cost $4,501,053, which included renal products but was cheaper than Offer 1A. The Department protested and raised concerns about Baxter’s conduct possibly breaching section 46 of the TPA. Offer 1A was not accepted and a different offer from Baxter was later accepted. Section 46 is concerned with misuse of market power and section 47 with exclusive dealing. Section 46 prohibits corporations taking advantage of market power to eliminate or damage a competitor or to deter or prevent competitive conduct. Exclusive dealing in section 47 includes corporations’ supplying goods on condition that the customer will not acquire certain goods from a competitor or refusing to supply goods because the customer has not agreed not to acquire goods from a competitor, if the conduct has the purpose or effect of substantially lessening competition. In the Federal Court of Australia, the ACCC sought declarations that Baxter had committed 20 contraventions of sections 46 and 47, plus monetary penalties and injunctions. Justice James Allsop found that Baxter’s conduct would have contravened section 46 in one respect in relation to Offer 1A in SA and section 47 in a number of respects. The conduct was not in making or giving effect to a contract but occurred before any contract was entered into. However Justice Allsop held that the Act did not apply to this conduct due to the Crown immunity Baxter derived from doing business with the States and dismissed the ACCC’s application. The Full Court dismissed an appeal, but did not decide Baxter’s argument that Justice Allsop was wrong to conclude that, but for immunity, there would have been breaches of sections 46 and 47. The ACCC appealed to the High Court. The High Court, by a 6-1 majority, allowed the appeal. It held that Baxter, in dealing with a government, did not enjoy a general immunity not available to the government if the government itself had carried on a business. Such a conclusion would go beyond what is necessary to protect the legal rights of governments. The Court rejected an argument that the TPA does not prevent the Crown in right of a State or Territory from making any contract it wishes and that the TPA preserves the Crown’s freedom by providing that corporations dealing with the Crown should be free to make any contract unfettered by any constraints. The Court held that this argument was not supported by established principles of statutory construction and could not be reconciled with the purpose and subject matter of the TPA. It held that in its dealings with the States and Territories, Baxter was bound by sections 46 and 47. Conduct found to have fallen within the prohibitions of sections 46 and 47 should now be subject to remedies, including pecuniary penalties, sought by the ACCC. The Court remitted the case to the Full Court of the Federal Court for further consideration of remaining issues, including whether Baxter’s conduct contravened sections 46 and 47.
+HIGH COURT OF AUSTRALIA 16 October 2019 THE QUEEN v A2; THE QUEEN v MAGENNIS; THE QUEEN v VAZIRI [2019] HCA 35 Today the High Court allowed three appeals from the New South Wales Court of Criminal Appeal ("the CCA"). A majority of the Court construed the term "otherwise mutilates" in s 45(1)(a) of the Crimes Act 1900 (NSW), headed "[p]rohibition of female genital mutilation", as bearing an extended meaning that takes account of the context of female genital mutilation. A majority of the Court also held that the term "clitoris" in s 45(1)(a) encompasses the clitoral hood or prepuce. Section 45(1)(a) of the Crimes Act relevantly provides that a person who "excises, infibulates or otherwise mutilates the whole or any part of the labia majora or labia minora or clitoris of any person" is liable to imprisonment. A2 and Magennis were charged upon indictment with having "mutilated the clitoris" of each of the complainants, C1 and C2. Vaziri was charged with assisting A2 and Magennis following the commission of those offences. The Crown case was that A2 and Magennis were parties to a joint criminal enterprise to perform a ceremony called "khatna", which involves causing injury to a young girl's clitoris by cutting or nicking it. The defence case was that Magennis had performed a procedure on C1 and C2, but that it was merely ritualistic. The trial judge in the Supreme Court of New South Wales directed the jury that "[t]he word 'mutilate' in the context of female genital mutilation means to injure to any extent", and that the term "clitoris ... includes the clitoral hood or prepuce". A2 and Magennis were each found guilty by the jury of two counts of female genital mutilation contrary to s 45(1)(a). Vaziri was found guilty of two accounts of being an accessory to those offences. The CCA allowed the appeals against conviction on the ground that the trial judge had erred in his directions to the jury as to the meaning of the terms "otherwise mutilates" and "clitoris" in s 45(1)(a). The CCA concluded that the word "mutilates" should be given its ordinary meaning for the purposes of s 45(1)(a); it requires some imperfection or irreparable damage to have been caused. The CCA further held that the term "clitoris" does not include the clitoral hood or prepuce. The CCA allowed the appeals on various other grounds, including that the jury's verdict was unreasonable or unsupported by the evidence. By grant of special leave, the Crown appealed to the High Court. A majority of the Court held that the term "otherwise mutilates" in s 45(1)(a) does not bear its ordinary meaning, but has an extended meaning that takes account of the context of female genital mutilation, and which encompasses the cutting or nicking of the clitoris of a female child. The purpose of s 45, evident from the heading to the provision and the extrinsic materials, is to criminalise the practice of female genital mutilation in its various forms. A majority of the Court also held that the term "clitoris" in s 45(1)(a) is to be construed broadly, having regard to the context and purpose of s 45. It followed that the trial judge did not misdirect the jury as to the meaning of either of these terms. A majority of the Court allowed the appeals, and held that each matter should be remitted to the CCA for determination of the ground alleging that the jury's verdict was unreasonable or unsupported by the evidence, in light of the proper construction of s 45(1)(a).
+HIGH COURT OF AUSTRALIA 7 December 2005 The High Court of Australia today dismissed an appeal against convictions for sexual offences. MWJ was charged with several offences of sexual misconduct involving his partner’s daughter, M, when she was aged between eight and 13. The offences were alleged to have occurred at two different addresses where the family lived in Whyalla in South Australia, first at Sutcliffe Street in Whyalla Stuart, then at Jeffries Street in Whyalla Playford. MWJ met M’s mother, D, in 1987 and moved in with her at Sutcliffe Street. The family, including M and two siblings, moved in 1991 to Jeffries Street. By the time of MWJ’s trial, by judge alone, M was 25. MWJ was convicted at trial by a judge sitting without a jury. The South Australian Court of Criminal Appeal upheld the convictions. The argument for MWJ was based largely on supposed inconsistencies between the evidence of M and her mother. Upholding the decision of the trial judge and the Court of Criminal Appeal, although disagreeing with some observations made by the Court of Criminal Appeal about the conduct of the trial, the High Court held that the supposed inconsistencies were not such as to cast doubt on the outcome of the trial or on the guilt of MWJ. The Court unanimously dismissed the appeal.
+HIGH COURT OF AUSTRALIA Public Information Officer 28 September 2006 AUSTRALIAN BROADCASTING CORPORATION v JAMES RYAN O’NEILL The High Court of Australia today lifted an injunction on the broadcasting by the ABC of a documentary about Mr O’Neill, entitled “The Fisherman”. In November 1975, Mr O’Neill was convicted of the murder in Tasmania in February 1975 of a nine-year-old boy. In May 1975, he signed a confession to the murder of another boy, also aged nine, a month before. After his conviction for the first murder and sentencing to life imprisonment, Tasmanian prosecutors decided not to proceed with charges in relation to the April 1975 murder. The documentary alleges Mr O’Neill is linked with the disappearance of a number of other children, including the Beaumont children – Jane, aged nine, Arnna, aged seven, and Grant, aged four – at or near Glenelg beach in Adelaide on Australia Day 1966. Allegations that Mr O’Neill had murdered other children were widely reported by Tasmanian media. Former Victorian detective Gordon Davie and Roar Film Pty Ltd produced “The Fisherman”, which the ABC was to screen on 28 April 2005. On 15 April 2005, Mr O’Neill commenced action for defamation against the ABC, Mr Davie and Roar Film following the showing of the film at the Hobart Summer Film Festival in January 2005. He also applied for an interlocutory injunction against the ABC to prevent the televising of the documentary pending the defamation trial. In the Tasmanian Supreme Court, Justice Ewan Crawford granted the application. The ABC conceded the film was capable of conveying imputations that Mr O’Neill is a suspect in the disappearance and murder of the Beaumont children and that he is a multiple killer of children. Tasmania’s new Defamation Act took effect on 1 January 2006, but the 1957 Defamation Act applied to the proceedings for the injunction. The ABC relied on the statutory defence that the film was both true and for the public benefit. Justice Crawford accepted that the ABC could probably show the imputations were true but held that it would be difficult to establish that publication was for the public benefit. The Full Court of the Supreme Court, by majority, dismissed an appeal by the ABC. The ABC appealed to the High Court. The Court, by a 4-2 majority, allowed the appeal. The majority held there was a strong case against the granting of the interlocutory injunction. It held that Justice Crawford and the Full Court majority erred by failing to give enough weight to the significance of free speech in considering prior restraint of publication and to the consideration that only nominal damages may be awarded if the showing of “The Fisherman” were found to be defamatory.
+HIGH COURT OF AUSTRALIA 17 October 2018 IAN DOUGLAS JOHNSON v THE QUEEN [2018] HCA 48 Today the High Court unanimously dismissed an appeal from the Court of Criminal Appeal of the Supreme Court of South Australia, which had dismissed the appellant's appeal against three convictions for sexual offences. At a trial before a jury, the appellant was convicted of five counts of historical sexual offences against the complainant, his sister. Count one charged an indecent assault that occurred when the appellant was aged 11 or 12 and hence presumed to be doli incapax. Count two charged an offence of carnal knowledge that occurred when he was aged 17. The other counts charged offences that occurred when he was an adult and comprised a count of persistent sexual exploitation and two counts of rape. At trial, to rebut the presumption of doli incapax and to show the relationship between the appellant and the complainant, the Crown relied upon evidence from the complainant of the appellant's other alleged sexual misconduct against her, including an incident referred to as "the bath incident" that allegedly occurred when the appellant was aged around six, and two later incidents that allegedly occurred before the first offence. The District Court of South Australia had earlier dismissed the appellant's applications to have counts one and two tried separately and to prevent the Crown from leading certain discreditable conduct evidence, including evidence of these alleged incidents. The appellant appealed against his convictions. The Court of Criminal Appeal quashed the verdicts on counts one and three and substituted verdicts of acquittal on those counts but rejected the contention that the joinder of those counts had occasioned a miscarriage of justice in the trial of the remaining counts. Evidence adduced in relation to counts one and three was admissible on the trial of each remaining count as context evidence of the appellant's relationship with the complainant. By grant of special leave, the appellant appealed to the High Court. The High Court unanimously found that the whole of the evidence of the appellant's other alleged sexual misconduct against the complainant (except evidence of the bath incident) was admissible on the trial of each of the remaining counts: that evidence was relevant to understanding the highly dysfunctional family in which the complainant and appellant were raised. Without understanding this background, the complainant's evidence of the offences charged in the remaining counts was likely to have presented as implausible. The probative value of this evidence substantially outweighed any prejudicial effect on the appellant. While evidence of the bath incident should not have been adduced, its wrongful admission did not lead to a miscarriage of justice: the trial judge gave the jury directions that were apt to neutralise any suggestion that the bath incident cast light on the relationship between the appellant and the complainant, and evidence of the incident was almost certainly subsumed by evidence of the appellant's sexualised childhood misconduct. The judge correctly directed the jury about the limited permitted use of the evidence of the other sexual misconduct to the consideration of each of the remaining counts. There was no basis for inferring that the jury failed to act on those directions. For these reasons, the Court dismissed the appeal.
+HIGH COURT OF AUSTRALIA 6 February 2006 Public Information Officer Northern Territory courts had not erred in deciding that a convicted murderer and rapist could be kept in prison for life without any chance of parole, the High Court of Australia held today. On 20 June 1983, Mr Leach, armed with a knife, abducted two young women, aged 18 and 15, from a swimming pool and forced them to accompany him to a nearby gully. He cut off their clothing and used it to bind and gag the 15-year-old. Mr Leach stabbed the 18-year-old and, with the knife in her, bound and gagged and raped her. He stabbed and killed the younger woman. He stabbed the older woman again and left her fatally wounded. Mr Leach, who had already served a prison term for raping a woman at knifepoint in her home, was convicted of two offences of murder and one of rape. At the time, the mandatory sentence for murder was imprisonment for life. He was also sentenced for life for the rape of the 18-year-old. The NT Sentencing (Crime of Murder) and Parole Reform Act came into effect on 11 February 2004. It provided for the fixing of non-parole periods for life sentences for murder imposed after that date. For people already serving life sentences, section 18 provides that the prisoner’s sentence is taken to include a non-parole period of 20 years, or 25 years if the prisoner was serving sentences for two or more murder convictions. However, the Supreme Court may, on application by the Director of Public Prosecutions, revoke the non-parole period and either fix a longer non-parole period under section 19(4) or refuse to fix a non-parole period under section 19(5). The Court may refuse to fix a non-parole period if satisfied that the level of culpability in the commission of the offence is so extreme the community interest in retribution, punishment, protection and deterrence can only be met if the offender is imprisoned for the term of his or her natural life without the possibility of release on parole. On 2 March 2004, the DPP applied under section 19 for the Supreme Court to revoke the non-parole period fixed by section 18 and to take one of the options in section 19(4) or (5). Chief Justice Brian Martin made an order revoking the 25-year non-parole period for the two murder convictions and refused to fix a non-parole period. The majority of the Court of Criminal Appeal upheld that order. Justice Stephen Southwood would have fixed a non-parole period of 40 years which would have meant that Mr Leach could be considered for parole at age 64. Mr Leach appealed to the High Court, arguing that Chief Justice Martin failed to give effect to ordinary sentencing considerations when applying section 19(5), and that he had not shown he was satisfied beyond reasonable doubt that Mr Leach’s culpability was so extreme as to require a sentence of life imprisonment without possibility of parole. The High Court unanimously dismissed the appeal. It held that section 19(5) of the Act is not to be read as requiring a court to consider the exercise of some separate discretion after it has reached a conclusion that the prisoner’s culpability was so extreme that the community interest could only be met by life imprisonment. The word “may” in “may refuse to fix a non-parole period” confers a power to be exercised upon the court being satisfied of the matters described in section 19(5). Any disputed question of fact adverse to the prisoner are to be made to the criminal standard of proof (beyond reasonable doubt), but once the relevant facts are found a judgment would then remain to be made about the level of culpability and what the community interest required.
+HIGH COURT OF AUSTRALIA 5 October 2011 SHOALHAVEN CITY COUNCIL v FIREDAM CIVIL ENGINEERING PTY LIMITED [2011] HCA 38 Today the High Court held that an expert's determination of issues in dispute between parties to a construction contract was made in accordance with the contract. The High Court allowed an appeal from the Court of Appeal of the Supreme Court of New South Wales which had held that the expert's determination was not binding on the parties because it was internally inconsistent. Firedam Civil Engineering Pty Ltd ("Firedam") agreed to design and construct a waste water collection and transport system for Shoalhaven City Council ("Shoalhaven"). Under the contract, Firedam claimed an entitlement to variations and payment for additional works, extensions of time for those works and contractual compensation for the extended time. Shoalhaven claimed an entitlement to costs incurred from delayed completion. An expert was appointed under the contract to determine these issues. Under the contract, the parties were required to treat the expert determination as final and binding if the aggregate liability of one party to the other did not exceed $500,000. Where the aggregate liability exceeded $500,000, either party could commence proceedings. In the determination, the expert refused to allow certain extensions of time claimed by Firedam arising from variations to works. Firedam argued that this was inconsistent with the expert's use of a discretion conferred on Shoalhaven in the contract to extend the time for the works to be completed. The expert had used Shoalhaven's discretion to assess Shoalhaven's claim for compensation for Firedam's delays to allocate responsibility for delays between Shoalhaven and Firedam. The primary judge dismissed Firedam's claim to a declaration in the Supreme Court of New South Wales that the expert's determination did not bind the parties. The Court of Appeal disagreed. Shoalhaven appealed to the High Court by special leave. The High Court held that the expert had adequately explained that he had used Shoalhaven's discretion to extend time as a device to allocate responsibility for delay caused by Shoalhaven. The Court held that that was not inconsistent with the expert's refusal to allow Firedam's claimed extensions of time. The High Court therefore held that the Court of Appeal erred and reinstated the orders of the primary judge.
+HIGH COURT OF AUSTRALIA 7 April 2005 DANIEL WILKIE v GORDIAN RUNOFF LIMITED (formerly known as GIO INSURANCE LIMITED) AND MARKEL SYNDICATE 702 AT LLOYDS, LONDON (formerly known as RE BROWN SYNDICATE AT LLOYDS, LONDON) Mr Wilkie, FAI Insurance’s former chief operating officer, was entitled to indemnity under an insurance policy for his defence costs in criminal proceedings, the High Court of Australia held today. Directors, officers and employees of FAI were insured for up to $20 million against certain losses, including for wrongful acts committed or allegedly committed up to 31 May 1999. In 2003, the Australian Securities and Investments Commission instituted criminal proceedings against Mr Wilkie for alleged offences under the Corporations Act. ASIC alleged that in 1998 he permitted misleading information to be provided to FAI’s auditors and acted dishonestly in the discharge of his duties with the intention of deceiving the auditors. Mr Wilkie has not admitted the offences and they have yet to be adjudicated. He claimed for the costs to be incurred in his defence against the ASIC charges. The policy contained terms called extensions and Extension 9, on which Mr Wilkie relied, was headed “Advance payment of defence costs”. After GIO’s solicitors reviewed the brief of evidence GIO denied indemnity for the claim pursuant to Exclusion 7 of the policy. Exclusion 7 provides that the policy does not insure loss arising out of any claim based upon dishonest, fraudulent, criminal or malicious acts or omissions or any deliberate breach of any statute where such act, omission or breach has in fact occurred. “In fact” was defined as meaning that the conduct is admitted by the insured person or is subsequently established by a court. Under Extension 9, GIO paid all reasonable defence costs provided that GIO has not denied indemnity for the claim, but it reserved the right to recover payments if a court established that the insured person was not entitled to indemnity. In the New South Wales Supreme Court Mr Wilkie sought a declaration that the insurers were not entitled to rely on Exclusion 7 to deny him indemnity under Extension 9. Justice Henric Nicholas held that insurers were not obliged to indemnify Mr Wilkie. The High Court granted special leave to appeal directly from Justice Nicholas’s decision. The Court held that GIO was responsible for the costs, charges or expenses incurred in defending, investigating or monitoring the ASIC proceedings and related appeals. It held that there is as yet no ground to which GIO can point as a legal basis for a denial of indemnity. Therefore, GIO was not free of an obligation to indemnify Mr Wilkie under Extension 9, on a basis located in Exclusion 7. The Court unanimously allowed the appeal.
+HIGH COURT OF AUSTRALIA Public Information Officer 24 April 2008 ALINTA LGA LIMITED (formerly the Australian Gas Light Company) and ALINTA AGN LIMITED (formerly AGL Gas Networks Limited) v MINE SUBSIDENCE BOARD Alinta had no right of appeal to the Land and Environment Court (LEC) against the refusal of the NSW Mine Subsidence Board to entertain its claim to compensation for mine subsidence, the High Court of Australia held today. Alinta owns the natural gas pipeline running from Wilton, south of Sydney, to Horsley Park, in Sydney’s west. The pipeline passes through the Appin Mine Subsidence District, south of Sydney. Alinta alleged that coal mining between May 1998 and July 2003 caused subsidence that required works costing almost $2.4 million to prevent damage to the pipeline. The Mine Subsidence Compensation Act established a scheme whereby claims could be made to the Board for payment of compensation from a statutory fund for damage caused by subsidence or the expense of preventing or mitigating such damage. Alinta made a claim to the Board in September 2004 for costs incurred to protect the pipeline. The Board rejected the claim in 2005. Under the Act, erecting any “improvement” (including a pipeline) in a subsidence district without Board approval was an offence. In the event of a contravention, the Act provided that the Board could not entertain a compensation claim unless a certificate was issued under section 15B(3A). Certificates could be granted if the Board was satisfied that an improvement would have complied with the Act had approval been obtained earlier, and that it was appropriate to issue the certificate. Alinta applied for a certificate under section 15B(3A) in April 2003. In July 2005, the Board advised Alinta that the certificate was refused because of Alinta’s failure to obtain approval for the pipeline at the time of construction (around 1975), delay in applying for certification, and the Board’s belief that issue of a certificate would allow a compensation claim to be entertained. In October 2005, the Board advised Alinta that, without a certificate, Alinta’s claim to compensation could not be entertained. Alinta sought to appeal to the LEC under section 12B of the Act. This provided a right of appeal to the LEC on a compensation claim under sections 12 or 12A against the Board’s decision as to whether damage had arisen from subsidence or could reasonably have been anticipated or as to the amount of payment from the fund. The Board argued that the LEC lacked jurisdiction to hear the appeal as the Board’s decision to refuse to entertain the claim was not a decision under sections 12 or 12A nor a decision as to the matters in section 12B. Justice Peter Biscoe held that the LEC did have jurisdiction. On appeal by the Board, the Court of Appeal, by majority, held that it did not. Alinta appealed to the High Court. This appeal did not concern the merits of Alinta’s compensation claim or the correctness of the Board’s decision. Alinta has never conceded that its pipeline was constructed without the Board’s approval. However, the sole question for the High Court was whether the LEC had jurisdiction to hear Alinta’s appeal under section 12B. The High Court unanimously dismissed the appeal. It held that the right of appeal to the LEC was restricted to appeals against decisions of the Board as to the subject matter in section 12B. The Court rejected Alinta’s submission that the Board had made an appealable decision under section 12B as to the amount of payment from the fund. No such decision had been made. Rather, the Board had found the pipeline to be erected without its approval and applied the statutory requirement that no claim be entertained in the absence of a certificate. It followed that Alinta had no right of appeal against the Board’s decision to the LEC.
+HIGH COURT OF AUSTRALIA Manager, Public Information 16 June 2010 WICKS v STATE RAIL AUTHORITY OF NEW SOUTH WALES KNOWN AS STATE RAIL; SHEEHAN v STATE RAIL AUTHORITY OF NEW SOUTH WALES KNOWN AS STATE RAIL [2010] HCA 22 The High Court today held that two policemen, who, in 2003, attended the scene of the Waterfall train crash after the derailment had occurred, were not barred from claiming damages for psychiatric injury on the basis that they had not "witnessed, at the scene, victims being killed, injured or put in peril" within the meaning of s 30(2)(a) of the Civil Liability Act 2002 (NSW). On 31 January 2003 the appellants, who were serving members of the New South Wales Police Force, attended the scene of the Waterfall train crash. They were among the first to arrive at the scene, soon after the accident had happened, and were directly involved in the rescue operation. They saw injured and deceased passengers. The appellants each brought a claim in the Supreme Court of New South Wales for damages for resulting psychiatric injury against the State Rail Authority of New South Wales ("State Rail"). They alleged that they had suffered psychiatric injuries due to State Rail's negligence. That negligence was said to be State Rail's failure to ensure that the train's "deadman's" safety device was operating, or was designed to operate, in the event of a driver's incapacitation. Section 30(2)(a) of the Civil Liability Act provides that a plaintiff is not entitled to recover damages for pure mental harm unless "the plaintiff witnessed, at the scene, the victim being killed, injured or put in peril". Both the trial judge and the Court of Appeal concluded that neither appellant had witnessed a victim or victims of the derailment "being killed, injured or put in peril". The appellants were granted special leave to appeal to the High Court on 12 February 2010. The Court held that the trial judge should have begun his consideration by asking whether State Rail owed a duty to each appellant to take reasonable care not to cause him psychiatric injury. Assuming, without deciding, that State Rail owed the appellants a relevant duty of care, the Court went on to consider whether the condition in s 30(2)(a) of the Civil Liability Act was satisfied. The Court held that it would not be right to read s 30(2)(a) as though it were based on the assumption that all cases of death, injury or being put in peril are events that begin and end in an instant. There are cases where death, or injury, or being put in peril takes place over an extended period, and this was such a case. Two inferences could reasonably be drawn from the given facts: the first was that some who suffered physical trauma in the derailment suffered further injury as they were removed from the wrecked carriages; the second was that many who were on the train suffered psychiatric injuries as a result of what happened to them in the derailment and at the scene. They continued to suffer such injuries after the appellants arrived. The Court held that if either of those inferences was drawn, the appellants witnessed, at the scene, victims of the accident "being injured". Even if neither of those inferences could be drawn, the appellants nevertheless arrived at the scene of the accident when those who had survived the derailment remained in peril. The plaintiffs therefore witnessed, at the scene, victims being "injured" or "put in peril". The Court allowed each appeal and remitted each matter to the Court of Appeal for consideration of whether State Rail owed the appellants a relevant duty of care and whether the appellants suffered a recognised psychiatric injury of which the negligence of State Rail was a cause.
+HIGH COURT OF AUSTRALIA 26 May 2010 Manager, Public Information JOHN ALEXANDER'S CLUBS PTY LIMITED & ANOR v WHITE CITY TENNIS CLUB LIMITED WALKER CORPORATION PTY LIMITED v WHITE CITY TENNIS CLUB LIMITED & ORS [2010] HCA 19 White City Tennis Club Ltd ("the Club") operated a sporting club on land in Paddington, Sydney, that was part of a larger site owned by Tennis NSW. In 2004, Tennis NSW decided to sell the site. The Club signed a memorandum of understanding ("the MOU") with John Alexander's Clubs Pty Ltd ("JACS") that contemplated the acquisition by JACS of an option over the land on which the Club currently operated ("the Option Land"). The option was to be exercised on behalf of a yet-to- be-formed entity called White City Holdings ("WCH"), which, in the event, was never formed. JACS undertook to procure a further option for the Club in the event that JACS did not exercise the option itself. If no further option could be procured, the Club could require JACS to exercise the option on the Club's behalf. The MOU was premised on a third party (the Trustees of the Sydney Grammar School ("SGS")) purchasing the land being offered for sale by Tennis NSW. SGS was successful in purchasing the land from Tennis NSW. It then entered into a series of agreements with JACS, the Club and another tennis club under which JACS (or its nominee) was granted an option to acquire the Option Land. The last of these ("the Agreement") provided that JACS and the Club agreed that the MOU continued but that the Agreement would prevail in the event of any inconsistency. The Agreement contained no condition that the option granted under it to JACS (or its nominee) be exercised on behalf of the Club or WCH. On 12 April 2006, JACS purported to terminate the MOU on the basis that the Club had repudiated it, a suggestion that the Club denied. On 27 June 2007, Poplar Holdings Pty Ltd ("Poplar") exercised the option as JACS's nominee and became the registered proprietor of the land. Walker Corporation Pty Ltd ("Walker") financed Poplar's purchase; an unregistered mortgage over the Option Land and a floating charge over Poplar's assets were granted in its favour as security. On the same day that Poplar exercised the option, the Club commenced proceedings in the Supreme Court of NSW against both JACS and Poplar, alleging that the MOU gave rise to a fiduciary duty on the part of JACS to exercise the option solely on behalf of the Club and that JACS had breached that duty. It argued that Poplar held its interest in the Option Land on a constructive trust for the Club. The Club made other allegations of equitable fraud, unconscionability and breach of the Trade Practices Act 1974 (Cth). The trial judge dismissed the proceedings, but on appeal to the NSW Court of Appeal the Club was successful. That Court decided that Poplar held its interest in the Option Land on a constructive trust for the Club, that it would be unconscionable for Poplar to deny the Club any entitlement to an interest in the Option Land and that the MOU gave rise to a fiduciary relationship between JACS and the Club. The Court of Appeal ordered Poplar to transfer the Option Land to the Club upon the Club paying the price at which Poplar exercised the option. After the decision of the Court of Appeal, Walker applied to be joined as a party to the appeal and sought an order that the Court of Appeal's declaration of a constructive trust over the Option Land be set aside or, in the alternative, that it be without prejudice to Walker's interests. The Court of Appeal refused Walker's applications. JACS, Poplar and Walker were granted special leave to appeal to the High Court on 3 November 2009. In a unanimous decision, the High Court decided that Poplar's exercise of the option granted under the Agreement did not amount to equitable fraud, unconscionable conduct or breach of fiduciary duty. The Court held that JACS was under no obligation to exercise the option granted under the Agreement on behalf of the Club, and that Poplar does not hold the Option Land on constructive trust for the Club. In rejecting the Club's assertion of a fiduciary relationship between it and JACS, the Court considered that there was no more vulnerability or reliance by the Club with respect to JACS than that between ordinary contracting parties. Nor were there any other factors justifying a finding that a fiduciary relationship existed between the Club and JACS. The Court also held that the Court of Appeal should have borne in mind the impact that a declaration of constructive trust over the Option Land would have on Walker's interests. It should have set aside its declaration of constructive trust and ordered that Walker be joined as a party to the appeal. The High Court allowed the appeal by JACS from the Court of Appeal's first decision, which had the effect of setting aside the orders Walker sought to have set aside. As a result, the High Court dismissed Walker's appeal from the Court of Appeal's second decision declining to join Walker as a party to the appeal or to set aside the imposition of a constructive trust.
+HIGH COURT OF AUSTRALIA Public Information Officer 31 August 2006 CENTRAL BAYSIDE GENERAL PRACTICE ASSOCIATION LIMITED v COMMISSIONER OF STATE REVENUE Central Bayside General Practice is entitled to a payroll tax exemption because it met the definition of a charity, the High Court of Australia held today. Central Bayside was registered as a company limited by guarantee in 1994. Its constitution provided that the company must not distribute any of its profit, income or assets directly or indirectly to its members and it income, assets and profit could only be used for the objective of improving patient care and health in Melbourne’s bayside area. In 2002 Central Bayside had 180 local GPs as primary members and 70 GPs from outside the area as associate members. In the 2001-02 financial year, Central Bayside had total revenue of $1,048,979, of which $1,006,997 came from the Commonwealth. Of the Commonwealth funding, 45 per cent was an outcomes- based funding (OBF) grant while the rest was as grants for particular projects. Central Bayside was required to devise a strategic plan and business plans identifying relevant outcomes for the OBF Agreement. In December 2001, the State Revenue Office refused Central Bayside a payroll tax exemption under section 10(1)(bb) of Victoria’s Pay-roll Tax Act, because Central Bayside was predominantly a professional body promoting the interests of its members. A delegate for the Commissioner, the Victorian Civil and Administrative Tribunal, the Victorian Supreme Court and, by majority, the Court of Appeal upheld that refusal because Central Bayside was not accepted to be a charitable body. The Tribunal accepted that Central Bayside existed for purposes beneficial to the community but held that its services were not charitable as it was an arm of government or the bureaucracy. Central Bayside appealed to the High Court. The Court unanimously allowed the appeal. It held that Central Bayside’s constitution and purposes brought it within the legal definition of a charity. The Commissioner contended that Central Bayside acted so much under the control and influence of government that it could be seen to be furthering government objectives rather than performing its own. The Court held that Central Bayside, like many charities, has a purpose shared by the Commonwealth, in this case to improve patient care and health. This did not alter its essential character as a charity. The Court held that Central Bayside’s purpose is charitable, within the legal meaning of that term, even though the government is the source of its funds and even though Central Bayside consents to conditions being attached to those funds.
+HIGH COURT OF AUSTRALIA Public Information Officer 23 April 2008 VINCENT THOMAS O’DONOGHUE v IRELAND AND GRAHAM NEIL CALDER CHARLES ZENTAI v REPUBLIC OF HUNGARY, STEVEN HEATH, MAGISTRATES COURT OF WESTERN AUSTRALIA AND COMMONWEALTH OF AUSTRALIA LARRY RICHARD WILLIAMS v UNITED STATES OF AMERICA AND MAGISTRATES APPOINTED BY COMMISSION UNDER THE PUBLIC SEAL OF NEW SOUTH WALES Commonwealth laws conferring jurisdiction on State magistrates in relation to extradition applications were valid, the High Court of Australia held today. Ireland has sought the extradition of Mr O’Donoghue on fraud charges, Hungary has sought the extradition of Mr Zentai in relation to his alleged involvement in the murder of a Jewish teenager in Budapest in 1944, and the United States has sought the extradition of Mr Williams on tax charges. In each case, pursuant to section 19 of the Extradition Act, they were brought before a magistrate to determine their eligibility for surrender in relation to the extradition offences. Section 46 of the Act provides that the Governor-General may arrange with the Governor of a State for the performance by magistrates of functions under the Act. All three men asserted that section 19 of the Extradition Act was invalid because it involved a constitutionally impermissible attempt by the Commonwealth Parliament to impose a duty upon magistrates as holders of a State statutory office. They argued that Commonwealth Parliament lacked the power, without State legislative approval, to impose upon the holder of a State statutory office an enforceable administrative duty where the functions and incidents of that office were exhaustively defined by State legislation. They all applied to the Federal Court of Australia to restrain the further pursuit of extradition proceedings by Western Australian magistrates, in the cases of Mr O’Donoghue and Mr Zentai, and by New South Wales magistrates, in the case of Mr Williams. Mr O’Donoghue and Mr Zentai had their applications dismissed and they lost appeals to the Full Court of the Federal Court. They appealed to the High Court. Mr Williams’s application was dismissed by the Full Court of the Federal Court in its original jurisdiction. His application for special leave to appeal to the High Court was heard with the two appeals. The High Court, by a 6-1 majority, dismissed the appeals. The application for special leave to appeal was granted, and the appeal treated as heard immediately but dismissed. The Court held that section 19 of the Extradition Act was valid. Section 19 did not impose a duty on State magistrates. It conferred a power which, under the Crimes Act, the State magistrates were not obliged to accept.
+HIGH COURT OF AUSTRALIA Public Information Officer 12 December, 2002 MEMBERS OF THE YORTA YORTA ABORIGINAL COMMUNITY v VICTORIA & ORS The High Court of Australia has dismissed an appeal by eight members of the Yorta Yorta community against decisions by the Federal Court and the Full Court of the Federal Court rejecting their native title claim. The Yorta Yorta claim covered an area in southern New South Wales and northern Victoria bisected by the Murray River. Victoria, New South Wales and South Australia, together with shire councils, water authorities, tourism and recreation bodies, business and industry groups, Telstra, the Murray Darling Basin Commission and dozens of landholders, were respondents to the claim. The case involved interpretation of the definition of native title in the Native Title Act. The Act requires that rights and interests in relation to land and waters are held under traditional laws and customs, that the peoples still have a connection with the land and waters, and that the rights and interests are recognised by the common law of Australia. The High Court, by majority, held that the Yorta Yorta claim failed on all three counts. Justice Howard Olney in the Federal Court found that by 1881 the claimants’ ancestors were no longer in possession of their traditional lands and had ceased to observe traditional laws and customs. The Full Court of the Federal Court upheld Justice Olney’s finding that sometime after 1788 the Yorta Yorta community had lost its character as a traditional Aboriginal community. The High Court, by majority, has upheld the Full Court of the Federal Court’s determination that forebears of the Yorta Yorta claimants had ceased to occupy their lands in accordance with traditional laws and customs and that the claimants had not established that they had continued to acknowledge and observe those laws and customs. Such laws and customs needed to have continued substantially uninterrupted if the definition of native title in the Native Title Act were to be satisfied.
+HIGH COURT OF AUSTRALIA Public Information Officer 6 November 2008 RUBEN MAS RIVADAVIA v THE QUEEN On 3 September 2008 the High Court of Australia allowed appeals by two men who had been convicted, in the New South Wales District Court, in June 2004 of conspiracy to import a commercial quantity of ecstasy into Australia. Rafael Cesan and Ruben Mas Rivadavia had been sentenced in March 2005, Mr Cesan to 13 years and six months’ imprisonment and Mr Mas Rivadavia to 11 years’ imprisonment. The High Court allowed the men’s appeals because the trial judge, who had repeatedly fallen asleep during their trial, did not exercise the supervision of the trial required by law. The jury had become distracted and a substantial miscarriage of justice resulted. The Court ordered new trials. Today the High Court published its reasons for allowing the appeals. Mr Cesan and Mr Mas Rivadavia were convicted after a 17-day trial. In 2007 they appealed to the New South Wales Court of Criminal Appeal (CCA) against their convictions and sentences, complaining that the trial judge had been asleep when evidence was being given. The CCA received evidence from friends and relatives as well as from Mr Cesan and Mr Mas Rivadavia themselves describing what occurred at the trial. They described episodes of up to 20 minutes’ sleep, sometimes accompanied by snoring. Periods of sleep became longer as the trial went on. Members of the jury were visibly detracted and, at times, amused. Mr Cesan said the judge’s snoring was disruptive when he was being cross-examined. Prosecutor Geoffrey Bellew SC also swore an affidavit referring to occasions in which the judge appeared to be asleep. Medical evidence showed the judge had been suffering from severe obstructive sleep apnoea. The CCA, by majority, dismissed the appeals on the basis that the judge’s conduct did not result in any demonstrated error, omission or misdirection. No complaint had been made at trial about the judge’s sleep episodes. Mr Cesan and Mr Mas Rivadavia appealed to the High Court on a number of grounds including the contention that there had been a miscarriage of justice and no trial by jury as required by section 80 of the Constitution in relation to indictable offences against laws of the Commonwealth. The Court confined argument initially to the question whether there had been a miscarriage of justice. At the end of that argument, on 3 September 2008, the High Court allowed the appeals, set aside the convictions and ordered retrials. The Court unanimously held that the trial judge had a duty to supervise and control the conduct of the trial. Because the judge was noticeably and repeatedly asleep or inattentive the trial was flawed to such an extent that there was a miscarriage of justice. The CCA could not conclude from the trial transcript alone that each of the accused was guilty beyond reasonable doubt. The High Court held that it could not be said that no substantial miscarriage of justice actually occurred, because the members of the jury were prevented from paying full attention to the evidence and therefore unable to perform their task properly.
+HIGH COURT OF AUSTRALIA 24 April 2020 MOORE v SCENIC TOURS PTY LTD [2020] HCA 17 Today the High Court unanimously allowed an appeal from a judgment of the Court of Appeal of the Supreme Court of New South Wales concerning damages for disappointment and distress caused by a breach of consumer guarantees in the Australian Consumer Law ("the ACL"). The High Court held that although s 275 of the ACL picked up and applied s 16 of the Civil Liability Act 2002 (NSW) ("the CLA") to proceedings in federal jurisdiction, s 16(1) of the CLA did not apply to preclude the recovery of damages for disappointment and distress not consequential upon physical or psychiatric injury. The appellant, Mr Moore, booked a holiday cruise tour in Europe for himself and his wife, supplied by the respondent, Scenic Tours Pty Ltd ("Scenic"). The tour was severely disrupted by adverse weather conditions. Representative proceedings were commenced in the Supreme Court of New South Wales against Scenic by Mr Moore on his behalf and that of approximately 1,500 passengers of 13 Scenic cruises. The primary judge held that Scenic had failed to comply with the consumer guarantees in s 60 and s 61(1) and (2) of the ACL. Mr Moore claimed damages in respect of loss suffered by him as a result of Scenic's breaches. The alleged loss included disappointment and distress for breach of a contract to provide a pleasant and relaxed holiday. No physical injury or psychiatric illness was alleged to have resulted from the breach. Section 275 of the ACL provides that where there is a failure to comply with a consumer guarantee that applies to a supply of services and the law of a State or Territory is the proper law of the contract, "that law applies to limit or preclude liability for the failure, and recovery of that liability (if any), in the same way as it applies to limit or preclude liability, and recovery of any liability, for a breach of a term of the contract for the supply of the services". The proper law of the contract between Mr Moore and Scenic was the law of New South Wales ("NSW"), which includes the CLA. Accordingly, if applicable, s 16(1) of the CLA precludes, in relation to personal injury, the awarding of damages for non-economic loss, unless the severity of the non-economic loss is at least 15% of a most extreme case, a threshold not met by Mr Moore's claim. The primary judge awarded Mr Moore damages for disappointment and distress. His Honour held that s 275 of the ACL picks up and applies s 16(1) of the CLA to proceedings in federal jurisdiction and that a claim for damages for disappointment and distress relates to personal injury. His Honour held, however, that s 16 of the CLA has no application to loss suffered outside of NSW, and so Mr Moore's claim for damages for disappointment and distress was unaffected. On appeal, the Court of Appeal upheld the primary judge's conclusions that s 275 picked up and applied s 16 and that the claim related to personal injury. However, the Court of Appeal held that s 16 applies to loss sustained outside of NSW, and therefore precluded Mr Moore's claim for damages of that kind. By grant of special leave, Mr Moore appealed to the High Court. The Court held that s 275 of the ACL picks up and applies s 16 of the CLA. However, the Court further held that loss consisting of disappointment and distress for breach of a contract to provide a pleasurable and relaxing experience, where not consequential upon physical or psychiatric injury, does not relate to personal injury. Section 16 of the CLA therefore did not apply to preclude Mr Moore from recovering damages for loss of that kind. Given this conclusion, the Court found it unnecessary to decide whether s 16 applies to loss suffered outside of NSW.
+HIGH COURT OF AUSTRALIA 23 June 2004 KETTERING PTY LTD v NOOSA SHIRE COUNCIL A Queensland developer was entitled to make a claim for compensation for the injurious affection to its property covered by in a town plan, the High Court of Australia held today. Kettering owned 19.8 hectares of land on Noosa Hill in Noosa Shire which it wished to subdivide and develop. In 1991 the shire’s town plan was amended by the inclusion of the Noosa Hill Development Control Plan (DCP). The effect was to constrain the development potential of the land and hence diminish its market value. Kettering claimed compensation of $9.3 million. The company claimed its land could reasonably have been expected to be rezoned and subdivided to allow construction of 73 houses and 132 units. After the DCP was gazetted, the planned development was limited to 24 houses and 75 units. Kettering’s claim was rejected by the council and the company successfully appealed to the Planning and Environment Court. In 2001 the Queensland Court of Appeal upheld the appeal from Noosa Council, determining that under section 3.5(4)(d) of the Local Government (Planning and Environment) Act no compensation was payable to Kettering for the detrimental effect of the DCP. This decision is the subject of the first appeal to the High Court. The Court of Appeal’s orders also precluded Kettering from pursuing an alternative basis for its compensation claim, even though this had not been argued in and considered by the Planning and Environment Court, and was not raised before the Court of Appeal. Noosa Council joined Kettering in seeking a correction of the Court of Appeal’s all-embracing order, but the Court declined to correct its orders. This refusal is the basis of the second appeal to the High Court. The appeals centred on the construction of section 3.5 governing compensation. The Court held that section 3.5(4), listing circumstances where compensation is not payable, did not expressly or impliedly confine compensation to only direct and immediate effects of a DCP. The meaning of section 3.5(1)(a)(i) setting out the right to compensation was not to be construed by reference merely to the exceptions to the right. The Court held that the preferred approach was to identify the extent to which a very expansive right to compensation is reduced by quite specific exceptions. The Court of Appeal held that the exception denying compensation for prohibition on the use of land for particular purposes meant Kettering did not have a claim. But the High Court held that the effect of the DCP was upon the potential for subdivision, not upon the particular use of the land. Houses and units could still be built there, but fewer of them. It held that a right to compensation should be interpreted broadly. The onus was on the council to show that Kettering’s claim fell within an exception and it had not satisfied that onus. The Court unanimously allowed both appeals.
+HIGH COURT OF AUSTRALIA Public Information Officer 16 May 2006 MARIA SWEENEY v BOYLAN NOMINEES PTY LIMITED trading as QUIRKS REFRIGERATION Boylan Nominees was not vicariously liable for injuries caused by the substandard maintenance work performed by an independent contractor on its behalf, the High Court of Australia held today. Mrs Sweeney suffered injuries to her head, neck and hand when a door of a refrigerator at a service station fell off and landed on her when she attempted to open it to buy milk. Boylan had leased out the refrigerator and the lease obliged the company to service and maintain the refrigerator. Shortly before the accident, the service station manager had told Boylan that the refrigerator door was not closing properly. Boylan sent a mechanic who tightened the screws in the hinges and showed the manager that the door was now working. The mechanic was not employed by Boylan. He performed work at Boylan’s request then invoiced Boylan for the hours he performed and for spare parts. Boylan did not provide a uniform, tools, equipment or a vehicle. The mechanic’s van carried his own company’s name. In the New South Wales District Court Mrs Sweeney sued both the owners of the service station and the refrigeration company. The claim against the service station owners failed but the claim against Boylan succeeded and Mrs Sweeney was awarded $43,932 plus costs. Judge Christopher Robison held that Boylan was vicariously liable for the negligence of a mechanic it had sent to service the refrigerator in response to the service station’s complaint that the door was not closing properly. Judge Robison concluded that the mechanic was acting as Boylan’s servant or agent. The NSW Court of Appeal allowed an appeal by Boylan. It held that Boylan was not vicariously liable for the mechanic’s negligence. Mrs Sweeney appealed to the High Court, which by a 5-1 majority dismissed the appeal. The Court concluded that the mechanic was an independent contractor and therefore the claim against Boylan must fail. The mechanic was not a Boylan employee and he conducted his own business, invoicing Boylan for each job and supplying his own tools. An employer will generally be vicariously liable for an employee’s negligence but someone engaging an independent contractor will not generally be vicariously liable for the contractor’s negligence.
+HIGH COURT OF AUSTRALIA 1 September 2010 SPENCER v COMMONWEALTH OF AUSTRALIA [2010] HCA 28 In 2007 Mr Spencer commenced proceedings in the Federal Court of Australia claiming that certain Commonwealth legislation and intergovernmental agreements had effected an acquisition of his property other than on just terms. Today the High Court held that the case should not have been summarily dismissed under s 31A of the Federal Court of Australia Act 1976 (Cth), as it could not be said that Mr Spencer had "no reasonable prospect" of successfully prosecuting the proceedings. Mr Spencer was the owner of a farm at Shannons Flat, New South Wales, known as "Saarahnlee". The property was subject to the Native Vegetation Act 2003 (NSW) and previously subject to the Native Vegetation Conservation Act 1997 (NSW) ("the State Acts"). Both statutes restricted his ability to clear native vegetation on his land. On 12 June 2007, Mr Spencer commenced proceedings against the Commonwealth of Australia in the Federal Court. He claimed that the restrictions imposed by the State Acts effectively amounted to an acquisition of his interests in the land, in particular his rights to carbon sequestration. He claimed that the acquisition had been on other than just terms and had been made in furtherance of agreements between the Commonwealth and the State of New South Wales. Those agreements established a framework for the management and use of land, including native vegetation clearing, and allocated Commonwealth funds to the State for that purpose. Mr Spencer alleged that the agreements, and the Commonwealth legislation that authorised them – the Natural Resources Management (Financial Assistance) Act 1992 (Cth) and the Natural Heritage Trust of Australia Act 1997 (Cth) ("the Commonwealth Acts") – were invalid to the extent to which they effected or authorised the acquisition of property other than on just terms within the meaning of s 51(xxxi) of the Constitution. At first instance, the Commonwealth applied for summary judgment under s 31A of the Federal Court of Australia Act 1976 (Cth). Section 31A provides that the Court may give judgment for one party against another where "the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding". On 28 August 2008, Justice Emmett made an order dismissing the proceedings on the basis that neither of the Commonwealth Acts could be characterised as a law with respect to the acquisition of property within the meaning of s 51(xxxi). His Honour held that neither of the Commonwealth Acts required or permitted the Commonwealth to impose, as a condition for the grant of financial assistance, a requirement that the State acquire the property other than on just terms. Mr Spencer was granted leave to appeal to the Full Court of the Federal Court but the appeal was dismissed on 24 March 2009. On 12 March 2010, Mr Spencer's application for special leave to appeal to the High Court was referred for hearing before seven Justices of the High Court. Today the High Court held that the case had not been a suitable one for the application of s 31A of the Federal Court of Australia Act. Mr Spencer had argued that the Commonwealth Acts formed part of a scheme or device designed to avoid the restrictions on Commonwealth legislative power found in s 51(xxxi) of the Constitution. The statement of claim referred to arrangements or understandings between the Commonwealth and the State of New South Wales beyond what appeared on the face of the relevant legislation and intergovernmental agreements. The Court noted that, in a case decided after the Full Federal Court's decision in this matter (ICM Agriculture Pty Ltd v The Commonwealth), three members of the High Court expressly left open the question whether a Commonwealth law might be characterised by reference to informal arrangements for the grant of financial assistance as a law with respect to the acquisition of property. Whether there were such arrangements in this case, and whether they were constitutionally significant, was not a question suitable for determination on a summary judgment application. The High Court held that, in light of the decision in ICM, it could not be said that Mr Spencer had "no reasonable prospect of successfully prosecuting the proceeding". The Court granted Mr Spencer special leave to appeal and allowed the appeal with costs.
+HIGH COURT OF AUSTRALIA 2 December 2004 JEFFREY GORDON BUTCHER AND JUDITH KAY RADFORD v LACHLAN ELDER REALTY PTY LTD A real estate agent whose brochure for a waterfront property carried a surveyor’s diagram which incorrectly showed the vendor’s swimming pool wholly within the property had not engaged in misleading and deceptive conduct, the High Court of Australia said today. Mr Butcher and Ms Radford in February 1997 successfully bid $1.36 million for the house at Mona Vale on Sydney’s northern beaches. The deposit was $272,000, with $200,000 paid immediately and the rest payable once the couple sold their home in nearby Newport. The contract provided for a six-month completion date. The couple planned to renovate then sell the house as part of a strategy for ensuring their family’s long-term financial security. They planned to move the pool from across the block to sit along one side to open up space for entertaining. Gordon Spring, an employee of Mr Elder, an LJ Hooker franchisee, gave Mr Butcher a double-sided sheet with colour photographs, brief details and a survey diagram. The diagram showed a line marked “MHWM” (mean high-water mark) which was approximately the fence line and also showed a “reclaimed area” between the fence and the water. Disclaimers on each side of the brochure said the information was from reliable sources but could not be guaranteed and buyers should make their own inquiries. The survey report, written in 1980, was attached to a contract sent to Mr Butcher and Ms Radford’s solicitor. Following disclosures by vendor Robert Edward Harkins, a new survey and dealings with Pittwater Council and the Department of Conservation and Land Management, which rejected their plan to move the pool, the couple realised the rear boundary crossed the pool. They commenced an action against Mr Harkins for both fraudulent and innocent misrepresentation and for misleading or deceptive conduct and declined to pay the $72,000 balance of the deposit. In the New South Wales Supreme Court Justice Robert Austin found Mr Harkins made an innocent misrepresentation and engaged in misleading conduct and ordered him to repay the $200,000 deposit. Mr Butcher and Ms Radford sued the agent for misleading and deceptive conduct due to the brochure misrepresenting the boundary location. Justice Austin found the agent was not liable. The Court of Appeal dismissed an appeal against the agent. The couple appealed to the High Court. The Court, by a 3-2 majority, dismissed the appeal. The majority held that the agent did not engage in misleading conduct and did no more than communicate what Mr Harkins was representing, without adopting it or endorsing it. The agent did not hold itself out as being able independently to verify title details. It did not verify the accuracy of the survey diagram, merely stating a belief that sources of information in the brochure were reliable. Mr Butcher and Ms Radford sought advice from an accountant, an architectural designer and a builder as well as solicitors before auction. The disclaimers were significant. Reasonable purchasers would have read the whole document, given its importance, its brevity, and its use as a source of instructions to professional advisers.
+HIGH COURT OF AUSTRALIA 7 September 2022 GARLETT v THE STATE OF WESTERN AUSTRALIA & ANOR [2022] HCA 30 Today, the High Court dismissed the part of an appeal pending in the Court of Appeal of the Supreme Court of Western Australia which was removed to the High Court pursuant to s 40 of the Judiciary Act 1903 (Cth). The appeal concerned a challenge to the validity of item 34 of Subdiv 3 of Div 1 of Sch 1 to the High Risk Serious Offenders Act 2020 (WA) ("the HRSO Act") on the basis that it was contrary to Ch III of the Constitution by reason of the principle in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51. The HRSO Act provides that the State of Western Australia may apply to the Supreme Court of Western Australia for a restriction order in relation to a "serious offender" under custodial sentence for a serious offence, who is not under a restriction order. The Court "must" make a restriction order if satisfied that it is necessary to ensure adequate protection of the community against an unacceptable risk that the offender will commit a serious offence. Item 34 of Subdiv 3 of Div 1 of Sch 1 to the HRSO Act specifies that robbery is a "serious offence" for the purposes of the HRSO Act. A restriction order may be either a supervision order (which subjects the offender, when not in custody, to stated conditions) or a continuing detention order (which detains the offender in custody "for an indefinite term for control, care or treatment"). Mr Garlett was sentenced to three years and six months' imprisonment for offences including robbery. The State applied for a restriction order in relation to Mr Garlett shortly before his release date. The primary judge relevantly declared that none of the provisions of the HRSO Act contravened Ch III of the Constitution, insofar as they apply to a serious offender under a custodial sentence who has been convicted of the offence of robbery. The High Court, by majority, held that item 34 of Subdiv 3 of Div 1 of Sch 1 to the HRSO Act does not contravene Ch III of the Constitution. The HRSO Act establishes a non-punitive scheme that has as its object the protection of the community from harm, and the determination of the risk of future harm posed by an offender is judicial in nature. The circumstance that the Supreme Court is not invested with a residual discretion to decline to make a restriction order does not establish that it is acting upon the dictation of the executive government as to the manner of deciding the case or its outcome. Rather, the Court is required to act upon its own evaluative judgment, by processes characteristic of the exercise of judicial power and with reference to prescribed criteria, to determine whether a restriction order is necessary for the purpose of protecting the community from harm. The inclusion of an offence, such as robbery, as a "serious offence" for the purposes of the HRSO Act reflects a legislative judgment as to the kinds of offences which may be such as to cause harm of a kind from which the community needs protection different from that provided by the criminal law. It is not inimical to the institutional integrity of the Court to act upon a legislative judgment of this kind. The function of the Supreme Court under the HRSO Act is therefore not incompatible with the role of the Court as a repository of the judicial power of the Commonwealth.
+HIGH COURT OF AUSTRALIA 30 October 2013 WINGFOOT AUSTRALIA PARTNERS PTY LTD & ANOR v EYUP KOCAK & ORS [2013] HCA 43 Today the High Court unanimously allowed an appeal against a decision of the Court of Appeal of the Supreme Court of Victoria, holding that certiorari was not available to quash an opinion of a Medical Panel made under the Accident Compensation Act 1985 (Vic) ("the Act") where that opinion had no continuing legal consequences. The first respondent ("the Worker") was employed by the appellants ("the Employer") when he suffered an injury at work. The Worker commenced two proceedings relating to that injury: one seeking leave to bring proceedings for common law damages ("the serious injury application") and the other seeking, under the Act, a declaration of entitlement to medical or like expenses ("the statutory compensation application"). The Magistrates' Court of Victoria, which heard the statutory compensation application, referred three medical questions to a Medical Panel for determination under the Act. Upon receiving from the Medical Panel a certificate of the Medical Panel's opinion and written statement of reasons, the Magistrates' Court made orders by consent to "adopt" and "apply" the opinion, and to dismiss the statutory compensation application. The serious injury application subsequently came before the County Court of Victoria. The Employer contended that the County Court was bound by the opinion of the Medical Panel, either because of s 68(4) of the Act, which relevantly provides that the opinion of a Medical Panel be adopted and applied, and accepted as final and conclusive, by a court, or because the orders made by the Magistrates' Court gave rise to an issue estoppel. The Worker then applied to the Supreme Court of Victoria for an order in the nature of certiorari to quash the opinion of the Medical Panel on grounds including that the Medical Panel failed to give adequate reasons for its opinion. The application was dismissed but the Worker successfully appealed to the Court of Appeal. By special leave to appeal, the Employer appealed to the High Court. The High Court unanimously held that inadequacy of reasons is an error of law on the face of the record of an opinion of a Medical Panel for which certiorari will ordinarily be available. An order in the nature of certiorari was not, however, available in the circumstances of this case where the opinion of the Medical Panel had no continuing legal consequences. The Court held that s 68(4) of the Act operated to require that the opinion of the Medical Panel be adopted and applied only in the determination of the question or matter in which the medical question arose and in respect of which the medical question was referred to the Medical Panel, rather than for the purposes of determining some other question or matter. The question or matter which comprised the controversy between the parties to the statutory compensation application was brought to a conclusion when that application was dismissed. The Court also held that the Magistrates' Court's adoption and application of the opinion of the Medical Panel when dismissing the statutory compensation application created no issue estoppel binding the parties in the serious injury application. The Court held further that, in any event, the Medical Panel's reasons explained the actual process of reasoning by which the Medical Panel formed its opinion, in sufficient detail to enable a court to see whether the opinion involved any error of law, and therefore met the standard required by the Administrative Law Act 1978 (Vic).
+HIGH COURT OF AUSTRALIA 15 May 2008 Public Information Officer ALAN GRIFFITHS ON BEHALF OF THE NGALIWURRU AND NUNGALI PEOPLES AND WILLIAM GULWIN ON BEHALF OF THE NGALIWURRU AND NUNGALI PEOPLES v MINISTER FOR LANDS, PLANNING AND ENVIRONMENT AND LANDS AND MINING TRIBUNAL The Northern Territory Government had the power to acquire compulsorily land subject to native title, both when there were co-existing non-native title interests in the land and when there were not, provided the acquisition was not discriminatory, the High Court of Australia held today. The Minister issued three notices in 2000 proposing acquisition of interests in land at the town of Timber Creek in the north-west of the NT. Section 43(1) of the NT’s Lands Acquisition Act (LAA) empowered the Minister to compulsorily acquire land “for any purpose whatsoever” by publishing a notice in the Gazette. (The section previously used the term “for public purposes”.) Under the LAA, “land” included native title rights and interests. In 1999, the Ngaliwurru and Nungali peoples began proceedings in the Federal Court of Australia for a determination of native title to vacant Crown land in Timber Creek. The Court made a determination of native title in 2006 and the Full Court of the Federal Court varied the determination in favour of the Ngaliwurru and Nungali peoples last November. No other title existed over the lots the Minister sought to acquire. Proposed uses were goat breeding, hay production and market gardening on one lot, cattle husbandry on a second, and tourism on five more lots. For the first two proposals, a Crown lease would be granted to Warren Pty Ltd, while lots in the third proposal would be offered at a public auction for Crown leases. Upon completion of each development the lease could be exchanged for freehold title. Objections by Mr Griffiths and Mr Gulwin to the proposed acquisitions were heard by the Lands and Mining Tribunal. In 2002, the LMT recommended the compulsory acquisition of native title, subject to the NT’s paying compensation if native title were determined by the Federal Court to have existed prior to acquisition. The Minister accepted the recommendations. Mr Griffiths and Mr Gulwin commenced proceedings in the NT Supreme Court to set aside the recommendations and the decision of the Minister to act upon them. In 2003, Justice David Angel made such orders. The Minister successfully appealed to the NT Court of Appeal in 2004. Mr Griffiths and Mr Gulwin appealed to the High Court to seek reinstatement of Justice Angel’s orders. They argued that, despite the phrase “for any purpose whatsoever”, section 43(1) of the LAA did not confer power on the Minister to acquire land from one person solely to enable it to be sold or leased for private use to another person. They also argued that native title interests may be acquired only when there were co-existing non-native title interests that also were acquired. The High Court, by a 5-2 majority, dismissed the appeal. Following amendments in 1998 to the Commonwealth Native Title Act (NTA) and a 1984 decision by the High Court limiting the meaning of “to acquire land for a public purpose” in earlier federal legislation for the territories, the LAA was amended to remove potential limitations on the NT’s statutory power to acquire land. The NTA provided for an entitlement to compensation when native title rights or interests were extinguished through compulsory acquisition of land. It provided for extinguishment of native title rights and interests where certain conditions designed to avoid racial discrimination were met, including that “all non-native title rights and interests” also be acquired. The majority held that “all” meant any non-native title rights and interests as may exist at the time of acquisition. There was no requirement that there be non-native title interests in the land for the compulsory acquisition of native title interests to be permitted under the NTA. The majority held that the Minister’s power under the LAA to acquire land “for any purpose whatsoever” included acquisition for the purpose of granting a freehold estate or Crown lease pursuant to other NT legislation.
+HIGH COURT OF AUSTRALIA 29 September 2005 BARBARA MARY JOSEPHINE NEILSON v OVERSEAS PROJECTS CORPORATION OF VICTORIA AND MERCANTILE INSURANCE (AUSTRALIA) LTD The High Court of Australia today held that a personal injury claim by an Australian individual against an Australian company arising from an accident in China could be determined in Australia by reference to Australian law, by reason of the relevant provisions of the Chinese civil code. Mrs Neilson, now 71, was injured in 1991 when she fell down stairs in an apartment in which she and her husband were living in the Chinese city of Wuhan. Her husband, George Neilson, worked for the Overseas Projects Corporation (OPC), a company owned by the State of Victoria and involved in a joint venture with the Chinese government by which it provided experts to conduct training courses at the China Iron and Steel Training Centre at the Wuhan Iron and Steel University. Mr Neilson taught organisational behaviour and Mrs Neilson was a part-time personal assistant to the Australian director of the training centre. The accident occurred when Mrs Neilson got up during the night to get a glass of water from the kitchen downstairs. The stairwell lacked a balustrade, about which the Neilsons had complained to OPC. As Mrs Neilson reached for the light switch she miscalculated and fell heavily down the stairs, suffering head and back injuries. In 1997, after the Neilsons returned home to Western Australia, Mrs Neilson instituted proceedings in the WA Supreme Court. She sued OPC for damages for injuries suffered as a result of the company’s negligence. Mrs Neilson claimed that the stairs were dangerous and that OPC had breached its duty to take reasonable care for her safety. At the 2002 trial, OPC sought to rely on Chinese law which had a one-year limitation period for personal injury claims. Justice John McKechnie invoked Article 146 of China’s General Principles of Civil Law which provides that in compensation cases, if both parties are foreign nationals from the same country, the law of their own country may be applied. He held that Mrs Neilson’s claim was not statute-barred by Chinese law and held OPC liable and gave judgment for $300,000, a sum agreed by the parties. OPC appealed to the Full Court of the Supreme Court which held that Justice McKechnie was wrong to invoke Article 146 and to apply Australian law. Mrs Neilson appealed to the High Court. Questions of duty, breach and damages are not in issue. The High Court, by a 5-2 majority, allowed the appeal. It held that the Australian rule which directed Justice McKechnie to apply the law of the place where the harm happened did not require him to ignore the fact that Chinese law made special provision for claims for damages where both parties to the claim were nationals of the same foreign country.
+HIGH COURT OF AUSTRALIA 8 December 2005 THE STATE OF NEW SOUTH WALES v PETER ANDREW BUJDOSO The State was under a duty to adopt reasonable measures to reduce the risk of harm to a person who was bashed when prison authorities knew he was a likely target of other prisoners, the High Court of Australia held today. Mr Bujdoso pleaded guilty on 16 February 1990 to three counts of sexually assaulting males under 18 and was sentenced to a minimum term of two years and six months’ imprisonment, to expire on 16 August 1992. In September 1991, he was admitted to Silverwater Prison’s work release program, in which he had paid employment and returned to the prison each night. At the time, prisoners were classified as A, B or C, with C the minimum-security category. C1 prisoners were behind a secure fence with minimal supervision, C2 prisoners kept in an open institution, and C3 prisoners permitted to go out on work release and eligible for weekend, day or education leave. In various prisons, a prison farm and at Kirkconnell Afforestation Camp, Mr Budjoso was called a “rock spider” and subjected to threats and an assault. However, by November 1990 he had become a C2. In May 1991, Mr Bujdoso was transferred to Silverwater where he received a threatening letter, of which prison officers were aware. He did not wish to be in protective custody and tried to avoid other paedophiles. Mr Bujdoso applied to be moved to the work release area as he felt he would be safest out at work and would be with other C3 prisoners in four units fenced off from the rest of Silverwater. Prisoners each had a room with their own key. Mr Bujdoso’s room was at the end of a unit furthest from a central walkway and from the administration block. Two prison officers made a nightly head count then one remained to oversee all the units. This meant there were periods with no officers present and other periods with just one. On 21 September 1991, up to four prisoners wearing balaclavas forced their way into Mr Bujdoso’s room and began beating him with iron bars as he huddled in a corner. He lost consciousness. His injuries included a fractured skull. Mr Bujdoso sought to go back to Silverwater so he could continue working to pay his mortgage and to obtain further treatment for paedophilia. He said he realised prison officers did not want to accept responsibility for his safety, but another prisoner made a statement that he had overheard several other men talking about an attack on a “rock spider” and that they planned to give him another “going over”. Mr Bujdoso was returned against his wishes to Kirkconnell where he served out his sentence. He sued the State in the NSW District Court for damages for personal injuries in negligence. Judge Harvey Cooper held that the State had not breached its duty of care as prison authorities believed that work release inmates had proved themselves trustworthy so no special measures were necessary to ensure their safety. Mr Bujdoso successfully appealed to the Court of Appeal, which held that the State did breach the duty of care it owed him, especially when it had actual knowledge that he was at risk but took no steps to protect him. The guard at the units was not even told of the threats against Mr Bujdoso and nothing else was done, not even putting a more secure lock on his door. The State appealed to the High Court. The Court unanimously dismissed the appeal. It held that the State had a duty to adopt reasonable measures to reduce the risk of harm to Mr Bujdoso, who was a known target of other prisoners. The risk of injury to him was not only foreseeable but expressly threatened. The State’s system of classification and the rostering of one warder during the night were inadequate. The Court held that the State had acted in breach of its duty of care.
+HIGH COURT OF AUSTRALIA Public Information Officer 30 August 2007 LEMALUOFUIFATU ALIPAPA TOFILAU v THE QUEEN MATTHEW JOSEPH MARKS v THE QUEEN SHANE JOHN HILL v THE QUEEN MALCOLM JOSEPH THOMAS CLARKE v THE QUEEN Confessions to unsolved murders made to Victorian undercover police posing as criminal gangsters were voluntary and admissible as evidence, the High Court of Australia held today. Mr Tofilau was suspected of strangling his ex-girlfriend, Belinda Loree Romeo, in her unit. Mr Marks was suspected to have beaten his great-aunt, Margaret Mary O’Toole, to death after borrowing large sums of money from her. Mr Hill was suspected of killing his stepbrother, Craig Anthony Reynolds, in the house they shared by fracturing his skull with a blunt object. Mr Clarke was suspected of killing six-year-old Bonnie Melissa Clarke (no relation) in 1982. He had been boarding with Bonnie’s mother until three months before. Bonnie had been stabbed in the chest and sexually assaulted. Police had been unable to make a strong enough case against any of the men. In a technique imported from Canada, each of the four Melbourne men was tricked by undercover police posing as criminals into confessing. They were approached by supposed criminal gangs playing out various crime scenarios over several months. Each was told that in order to be a gang member and to profit from the gang’s activities he had to tell the gang boss the truth about his involvement in the murder. Each was told that the boss could make any problems disappear. In Mr Tofilau’s case, typical of all four cases, undercover police staged 16 scenarios in which he participated in or observed what appeared to be serious criminal activity. This was designed to instil confidence that association with the gang would bring financial benefits and protection from police investigation. In March 2002 police served notice on Mr Tofilau that they were applying to the Magistrates Court for permission to take a DNA sample from him. On hearing of this, a gang member exhorted him to tell the truth and Mr Tofilau admitted strangling Ms Romeo. He was taken to a meeting in a hotel room with the gang boss. The boss told him that if he told the truth the boss would make it “go away”. Mr Tofilau described how he had killed Ms Romeo with her scarf which he threw into a car at her unit block. He was arrested the next day and later convicted of murder. In each case the trial judge held that what each man had said to people he believed to be criminal gang members did not constitute a statement to a person in authority. Each trial judge also held that the confession was voluntary. The convictions were upheld by the Court of Appeal. All four men appealed to the High Court which, by a 6-1 majority, dismissed the appeals. The Court held that the confessions of all four were procured by inducements, but that the people holding out the inducements – police officers posing as criminals – were not persons in authority. The men believed they had been offered inducements, not by police, but by gangsters apparently able to influence certain corrupt police officers. The Court held that, although the confessions were obtained by deception, the wills of the appellants were not overborne, there was no duress or intimidation, and the confessions were voluntary. Mr Clarke also argued that the trial judge should have exercised his discretion to exclude the confession for reasons of unreliability, unfairness and public policy. Those arguments were dismissed by both the Court of Appeal and the High Court.
+HIGH COURT OF AUSTRALIA Manager, Public Information 22 April 2009 RADIO 2UE SYDNEY PTY LTD v RAY CHESTERTON Today the High Court dismissed Radio 2UE’s appeal in relation to an earlier jury finding that comments made by John Laws about Ray Chesterton on the John Laws Morning Show were defamatory. On 8 August 2005, on his radio program, John Laws made some derogatory comments about Ray Chesterton, a journalist who had previously worked with 2UE. Radio 2UE Sydney Pty Ltd is the licensee of the radio station over which the comments were broadcast. Mr Chesterton sued 2UE for defamation. At the trial before a judge and jury in the Supreme Court of NSW, the jury had to decide whether the comments made by John Laws conveyed certain imputations about Mr Chesterton and, if so, whether those imputations defamed him. The jury decided in Mr Chesterton’s favour on both of those issues. Radio 2UE appealed to the NSW Court of Appeal, arguing that the trial judge had given the members of the jury incorrect directions about how they should decide whether Mr Chesterton had been defamed in respect of his professional or business reputation. The Court of Appeal, by majority, found that the trial judge had given appropriate directions to the jury. 2UE was granted special leave to appeal to the High Court. A majority of justices affirmed that the general test for defamation, namely whether an ordinary reasonable person would think less of the plaintiff because of what was said about him or her, applied to imputations regarding all aspects of a person’s reputation, including business reputation. All members of the High Court considered that the trial judge had given appropriate directions to the jury about how they should approach the task of determining whether Mr Laws’ comments contained certain imputations, and if they did, whether the comments were defamatory. The members of the Court were unanimous in dismissing 2UE’s appeal.
+HIGH COURT OF AUSTRALIA 5 September 2006 WILLIAM ARTHUR FORGE, JOZSEF ENDRESZ, DAWN MAY ENDRESZ, ALLAN PAUL ENDRESZ AND BISOYA PTY LTD v AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION, THE STATE OF NEW SOUTH WALES AND THE COMMONWEALTH OF AUSTRALIA Public Information Officer The High Court of Australia today rejected a challenge to the appointment of acting judges to the Supreme Court of New South Wales. Mr Forge is the director of Bisoya, his private family company. The Endreszes are husband, wife and son, whose family company is Kamanga Holdings Pty Ltd. They were directors of CTC Resources NL and Mr Forge its managing director. In 1998, eight transactions disbursed more than $3.5 million from CTC to Bisoya and Kamanga in the form of management and consultancy fees and unsecured loans. In 2001, ASIC brought proceedings in the Supreme Court alleging that the transactions contravened the NSW Corporations Law. By the time of the hearing before Justice Michael Foster in 2002, the Corporations Law had been replaced by the Commonwealth Corporations Act. Justice Foster held that the transactions contravened the Corporations Law and imposed penalties. The Court of Appeal dismissed an appeal except for penalty and remitted the issue to the Supreme Court for hearing. That hearing has not taken place because at this point Mr Forge and the Endreszes questioned for the first time the validity of Mr Foster’s appointment. Mr Foster retired from the Federal Court when he reached the statutory retirement age of 70 in 1998. Under a series of commissions pursuant to section 37 of the Supreme Court Act he served as an acting judge of the NSW Supreme Court between 1999 and 2003 when he turned 75, the maximum age for an acting judge. In 2001, the Supreme Court had 45 permanent judges. Twenty people, all retired judges or serving District Court judges, were acting judges or judges of appeal for terms of three to 12 months. Three related proceedings came before the High Court questioning the validity of appointments of judges as acting judges of the Supreme Court under section 37 of the Supreme Court Act and the validity of transitional provisions relating to contravention in the Corporations Act. The first was a constitutional challenge, the second was removal of the penalty issue into the High Court, and the third was an application for special leave to appeal from the Court of Appeal decision. The High Court, by a 6-1 majority, found in favour of ASIC in all three proceedings. It held that the legislation providing for the appointment of acting judges was valid and that none of Mr Foster’s appointments as an acting judge were invalid. In the constitutional challenge, the Court allowed the demurrers (denials of the legal sufficiency of the facts to entitle Mr Forge and the Endreszes to a legal remedy) of ASIC and NSW. It held that the transitional provisions of the Corporations Act are valid and the proceedings before Justice Foster and the Court of Appeal constituted a matter arising under a law made by parliament within the meaning of section 76(ii) of the Constitution in a situation where the original offences arose under a State Act. The application for special leave to appeal was refused.
+HIGH COURT OF AUSTRALIA 8 May 2013 ROSEANNE BECKETT v THE STATE OF NEW SOUTH WALES [2013] HCA 17 Today the High Court unanimously allowed an appeal from a decision of the Court of Appeal of the Supreme Court of New South Wales, which had held that Ms Roseanne Beckett's claim for damages for malicious prosecution required proof of her innocence. In September 1991, Ms Beckett was convicted of eight offences against her husband. In August 2005, the New South Wales Court of Criminal Appeal quashed the convictions on six of the counts. The Court entered a verdict of acquittal for one count, and ordered a new trial on the remaining counts. In September 2005, the Director of Public Prosecutions ("the Director") gave a direction, pursuant to s 7(2)(b) of the Director of Public Prosecutions Act 1986 (NSW), that no further proceedings be taken against Ms Beckett on the outstanding counts. In August 2008, Ms Beckett instituted proceedings against the respondent in the Supreme Court of New South Wales, claiming damages for malicious prosecution. Both parties agreed that the Court should answer separate questions regarding whether Ms Beckett needed to prove her innocence to maintain her claim for damages. The trial judge held that the Director's decision not to proceed further with the charges was equivalent to the entry of a nolle prosequi by the Attorney-General. He applied the High Court's decision in Davis v Gell (1924) 35 CLR 275, which held that where proceedings have been terminated by the entry of a nolle prosequi, as distinct from other forms of termination, a plaintiff must prove his or her innocence to succeed in a subsequent action for malicious prosecution. The Court of Appeal affirmed the trial judge's decision. By special leave, Ms Beckett appealed to the High Court. The High Court unanimously allowed the appeal, holding that Davis should not be followed. The Court held that a plaintiff is not required to prove his or her innocence in an action for damages for malicious prosecution in any case in which the prosecution has terminated favourably to the plaintiff.
+HIGH COURT OF AUSTRALIA 4 December 2019 STATE OF NEW SOUTH WALES v BRADFORD JAMES ROBINSON [2019] HCA 46 Today the High Court dismissed an appeal from a judgment of the Court of Appeal of the Supreme Court of New South Wales concerning the power of a police officer to arrest a person, without a warrant, under s 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) ("the Act") when, at the time of the arrest, the officer had not formed the intention to charge the arrested person with an offence. A majority of the High Court held that s 99 of the Act does not confer a power to arrest a person in such circumstances. An Apprehended Violence Order ("AVO") restrained Mr Robinson from certain conduct. When Mr Robinson voluntarily entered Sydney City Police Station, a constable arrested him and told him he was being arrested for breaching the AVO. The constable had no intention, at the time of the arrest, of bringing Mr Robinson before an authorised officer to be dealt with according to law unless it later emerged that there was sufficient reason to charge him. The constable offered Mr Robinson the opportunity of an interview, which he accepted. At the end of the interview Mr Robinson was released without charge. Mr Robinson brought a claim for damages for wrongful arrest and false imprisonment, which the State of New South Wales ("the State") defended on the basis that the arrest was authorised by the Act. Mr Robinson was unsuccessful in the District Court. The Court of Appeal allowed his appeal. In this Court, the State submitted that, on a proper construction of s 99 of the Act, the Court of Appeal erred in finding that at the time of arrest the arresting police officer must have formed a positive intention to charge the arrested person with an offence. Section 99(1) stipulates conditions for arrest without a warrant, namely that "the police officer suspects on reasonable grounds that the person is committing or has committed an offence" and that "the police officer is satisfied that the arrest is reasonably necessary for any one or more" of specified reasons. Pursuant to s 99(3), a police officer who arrests a person under s 99 must, as soon as is reasonably practicable, take the person before a magistrate (or other authorised officer) to be dealt with according to law. The High Court unanimously held that in New South Wales, at common law, an arrest can only be for the purpose of taking the arrested person before a magistrate (or other authorised officer) to be dealt with according to law to answer a charge for an offence ("the single criterion"). Nothing in the Act displaced that single criterion. An arrest under s 99 can only be for the purpose, as soon as is reasonably practicable, of taking the arrested person before a magistrate (or other authorised officer) to be dealt with according to law to answer a charge for an offence. A majority of the High Court held that it followed that the constable did not have the power to arrest Mr Robinson pursuant to s 99 when, at the time of the arrest, the constable had not formed the intention to charge him. The arrest was unlawful.
+HIGH COURT OF AUSTRALIA 16 May 2014 [2014] HCA 19 Today the High Court unanimously dismissed an appeal from the Court of Appeal of the Supreme Court of New South Wales, which had held that Mr Sidhu was precluded from departing from his assurances that he would transfer certain real property to Ms Van Dyke. In 1996, Ms Van Dyke and her then husband moved into a house known as Oaks Cottage, which was located on a block of land known as the Homestead Block owned by Mr Sidhu and his wife. Towards the end of 1997, Mr Sidhu and Ms Van Dyke commenced a relationship, during which Mr Sidhu gave assurances to Ms Van Dyke to the effect that he would subdivide the land and transfer Oaks Cottage to her once the site had been subdivided. Ms Van Dyke continued in her relationship with Mr Sidhu, performed unpaid work on the Homestead Block and Oaks Cottage and did not pursue gainful employment elsewhere. She also did not seek a property settlement from her husband when they divorced in 1998. In 2006, the relationship between Mr Sidhu and Ms Van Dyke came to an end and Mr Sidhu refused to transfer the property on which the Oaks Cottage sat ("the Oaks property") to Ms Van Dyke. Ms Van Dyke commenced proceedings in the Supreme Court of New South Wales, claiming that Mr Sidhu was estopped from departing from his assurances on the basis that she had acted in reliance on those representations to her detriment. The Supreme Court dismissed her claim on the basis that the trial judge was not satisfied that Ms Van Dyke had acted to her detriment in reliance on Mr Sidhu's assurances. The Court of Appeal allowed Ms Van Dyke's appeal, holding that, where inducement by the promise may be inferred from Ms Van Dyke's conduct, there was a presumption that Ms Van Dyke acted to her detriment in reliance on Mr Sidhu's representations. The Court found that Mr Sidhu had failed to rebut that presumption. The Court concluded that Mr Sidhu was precluded from departing from his assurances, and ordered Mr Sidhu to pay Ms Van Dyke equitable compensation in an amount to be assessed by reference to the market value of the Oaks property. By grant of special leave, Mr Sidhu appealed to the High Court. The High Court unanimously dismissed Mr Sidhu's appeal. The Court held that the Court of Appeal erred in proceeding upon a presumption that Ms Van Dyke had acted to her detriment in reliance on Mr Sidhu's representations. Ms Van Dyke bore the onus of proof in relation to detrimental reliance. Nevertheless, the Court concluded that Ms Van Dyke's evidence at trial established that she had acted to her detriment in reliance on Mr Sidhu's representations. On that basis, Ms Van Dyke was entitled to equitable compensation in an amount to be assessed by reference to the value of the Oaks property.
+HIGH COURT OF AUSTRALIA THORNE v KENNEDY [2017] HCA 49 8 November 2017 Today the High Court unanimously allowed an appeal from the Full Court of the Family Court of Australia. The High Court held that two substantially identical financial agreements, a pre-nuptial agreement and a post-nuptial agreement, made under Pt VIIIA of the Family Law Act 1975 (Cth) should be set aside. Mr Kennedy and Ms Thorne (both pseudonyms) met online in 2006. Ms Thorne, an Eastern European woman then aged 36, was living overseas. She had no substantial assets. Mr Kennedy, then aged 67 and a divorcee with three adult children, was an Australian property developer with assets worth over $18 million. Shortly after they met online, Mr Kennedy told Ms Thorne that, if they married, "you will have to sign paper. My money is for my children". Seven months after they met, Ms Thorne moved to Australia to live with Mr Kennedy with the intention of getting married. About 11 days before their wedding, Mr Kennedy told Ms Thorne that they were going to see solicitors about signing an agreement. He told her that if she did not sign it then the wedding would not go ahead. An independent solicitor advised Ms Thorne that the agreement was drawn solely to protect Mr Kennedy's interests and that she should not sign it. Ms Thorne understood the advice to be that the agreement was the worst agreement that the solicitor had ever seen. She relied on Mr Kennedy for all things and believed that she had no choice but to enter the agreement. On 26 September 2007, four days before their wedding, Ms Thorne and Mr Kennedy signed the agreement. The agreement contained a provision that, within 30 days of signing, another agreement would be entered into in similar terms. In November 2007, the foreshadowed second agreement was signed. The couple separated in August 2011. In April 2012, Ms Thorne commenced proceedings in the Federal Circuit Court of Australia seeking orders setting aside both agreements, an adjustment of property order and a lump sum spousal maintenance order. One of the issues before the primary judge was whether the agreements were voidable for duress, undue influence, or unconscionable conduct. The primary judge set aside both agreements for "duress". Mr Kennedy’s representatives appealed to the Full Court of the Family Court, which allowed the appeal. The Full Court concluded that the agreements should not be set aside because of duress, undue influence, or unconscionable conduct. By grant of special leave, Ms Thorne appealed to the High Court. The High Court unanimously allowed the appeal on the basis that the agreements should be set aside for unconscionable conduct and that the primary judge's reasons were not inadequate. A majority of the Court also held that the agreements should be set aside for undue influence. The majority considered that although the primary judge described her reasons for setting aside the agreements as being based upon "duress", the better characterisation of her findings was that the agreements were set aside for undue influence. The primary judge's conclusion of undue influence was open on the evidence and it was unnecessary to decide whether the agreements could also have been set aside for duress. Ms Thorne's application for property adjustment and lump sum maintenance orders remains to be determined by the Federal Circuit Court.
+HIGH COURT OF AUSTRALIA 5 February 2020 COMPTROLLER-GENERAL OF CUSTOMS v PHARM-A-CARE LABORATORIES PTY LTD [2020] HCA 2 Today the High Court unanimously dismissed an appeal from a judgment of the Full Court of the Federal Court of Australia concerning the classification of certain goods for the purpose of the Customs Tariff Act 1995 (Cth) ("the Tariff Act"). The Tariff Act imposes duties of customs on goods imported into Australia. Chapter 30 of Sch 3 to the Tariff Act contains heading 3004 under which medicaments consisting of mixed products for therapeutic or prophylactic uses put up in measured doses are relevantly classifiable. Note 1(a) to Ch 30 states that the chapter does not cover "[f]oods ... such as ... food supplements". Pharm-A-Care Laboratories Pty Ltd imports into Australia pastilles (referred to as "vitamin preparations" and "garcinia preparations") containing sucrose, glucose syrup, gelatin, flavours and other substances including vitamins of specified descriptions or a quantity of hydroxycitric acid. On an application for review under the Customs Act 1901 (Cth), the Administrative Appeals Tribunal ("the Tribunal") found that the vitamin preparations and the garcinia preparations were classifiable under heading 3004, with the consequence that no duty was owed on the importation of the preparations. The Comptroller-General of Customs ("the Comptroller-General") appealed from the decision of the Tribunal to the Federal Court on questions of law under the Administrative Appeals Tribunal Act 1975 (Cth). The Comptroller-General contended that the vitamin preparations and the garcinia preparations were each classifiable as either a type of "sugar confectionery", under subheading 1704.90.00, or as "food preparations", under subheading 2106.90.90, so that each was dutiable at a rate of 5% or 4%. The Comptroller-General contended that the vitamin preparations and the garcinia preparations were excluded from heading 3004 because they answered the description of "food supplements" within Note 1(a) to Ch 30. The Full Court of the Federal Court upheld the Tribunal's classification of the vitamin preparations and the garcinia preparations under heading 3004. By grant of special leave, the Comptroller-General appealed to the High Court. The High Court unanimously found that, while the Tribunal made an error of law in considering that the vitamin preparations and the garcinia preparations had to answer the description not just of "food supplements" but also of "[f]oods" in order to be excluded from heading 3004 by Note 1(a) to Ch 30, the Tribunal was correct in law in independently concluding that the preparations fell outside the description of "food supplements". The Court further held that the Tribunal did not wrongly equate the expression "food preparations" in heading 2106 with the expressions "[f]oods" or "food supplements" in Note 1(a).
+HIGH COURT OF AUSTRALIA Public Information Officer 22 May 2008 COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA v RELIANCE CARPET CO PTY LIMITED Goods and services tax (GST) was payable on a deposit forfeited by a purchaser when a contract for the sale of commercial property was terminated for default by the purchaser, the High Court of Australia held today. Reliance Carpet entered into a contract on 10 January 2002 to sell commercial premises in Camberwell in Melbourne for $2,975,000, with the purchaser paying a deposit of $297,500. Settlement was to take place 12 months later, but Reliance exercised its option to defer settlement for six months to allow time to relocate its business. The purchaser failed to complete on 10 July 2003. After giving 14 days’ notice to complete, Reliance rescinded the contract and forfeited the deposit. In 2004, the Commissioner assessed Reliance as liable to pay GST on the forfeited deposit. It disallowed Reliance’s objection. The Commissioner funded the matter as a test case. The disallowance of the objection was affirmed by the Administrative Appeals Tribunal, but an appeal by Reliance to the Full Court of the Federal Court succeeded. The Full Court held that there was no taxable supply because the contract was rescinded. The deposit was not consideration for a taxable supply. The Commissioner appealed to the High Court, which unanimously allowed the appeal. The Court held that the forfeited deposit was consideration for a taxable supply subject to GST. Under the A New Tax System (Goods and Services Tax) Act, there is an extended definition of supply and the issue was whether there was a “taxable supply”. The Court held that upon execution of the contract Reliance made a supply in that it entered into an obligation to do certain things under the contract, including maintaining the property, paying rates, taxes, insurance premiums and other outgoings. Upon its forfeiture for failure by the purchaser to perform its obligation under the contract, the deposit was to be treated as consideration for a taxable supply. Under the Act, if the contract had proceeded to completion then the deposit would have been counted towards payment of the purchase price and GST would have been payable on the purchase price. Where, as here, the contract was terminated for breach, the deposit, when forfeited, was treated by the Act as consideration for supply and this was a taxable supply.
+HIGH COURT OF AUSTRALIA 2 December 2020 MINISTER FOR HOME AFFAIRS & ORS v DMA18 AS LITIGATION GUARDIAN FOR DLZ18 & ANOR; MINISTER FOR HOME AFFAIRS & ANOR v MARIE THERESA ARTHUR AS LITIGATION REPRESENTATIVE FOR BXD18; MINISTER FOR HOME AFFAIRS & ANOR v FRX17 AS LITIGATION REPRESENTATIVE FOR FRM17; MINISTER FOR HOME AFFAIRS & ANOR v DJA18 AS LITIGATION REPRESENTATIVE FOR DIZ18 [2020] HCA 43 Today the High Court allowed appeals from four judgments of the Full Court of the Federal Court of Australia concerning the proper construction and application of s 494AB of the Migration Act 1958 (Cth). The High Court also dismissed cross-appeals in the matters relating to BXD18 and Section 494AB(1) provides that certain "proceedings against the Commonwealth may not be instituted or continued in any court". Those proceedings, listed in s 494AB(1)(a)-(d), are all described as "proceedings relating to" a particular subject matter. In the case of s 494AB(1)(b), the proceedings are further defined by reference to a time period. Section 494AB(3) provides that nothing in the section is intended to affect the jurisdiction of the High Court under s 75(v) of the Constitution. Each respondent, while in a country designated a regional processing country, instituted proceedings in the Federal Court of Australia alleging, in various ways, that the appellants ("the Commonwealth") breached a duty of care to provide them with adequate medical treatment on Nauru. At least part of the relief sought was to compel the Commonwealth to provide adequate medical treatment. After the proceedings were instituted, each respondent was transferred to Australia for the temporary purpose of receiving medical treatment. In each of the proceedings, the Commonwealth alleged that the Federal Court did not have jurisdiction by reason of s 494AB(1)(a), (ca) or (d). Argument in the Full Court treated s 494AB as defining the Federal Court's jurisdiction by limiting or withdrawing the Federal Court's authority to decide the respondents' claims. The High Court unanimously held that s 494AB does not take away the jurisdiction of courts to hear and determine proceedings of the kinds described in s 494AB(1). It does not limit the authority of the relevant courts to decide those specific claims but provides the Commonwealth with an available answer to those claims (analogous to a time bar) if they are made in a court other than the High Court. It is a provision which the Commonwealth may plead as a defence where one of the identified subject matters in s 494AB(1) is an issue in the proceeding, when and if that pleading would be consistent with its model litigation obligations. Whether an identified subject matter is raised as an issue in the proceeding will depend on the pleadings viewed in light of the relief claimed or, if there are no pleadings, the application and other documents filed in the proceeding. The High Court further held that: s 494AB(1)(a) applied to DLZ18's proceedings; s 494AB(1)(d) applied to FRM17's proceedings; and each of s 494AB(1)(a) and (d) applied to BXD18 and DIZ18's proceedings.
+HIGH COURT OF AUSTRALIA 10 May 2017 [2017] HCA 18 Today the High Court dismissed an appeal from a decision of the Court of Criminal Appeal of the Supreme Court of New South Wales. A majority of the High Court held that causing a complainant to contract the human immunodeficiency virus ("HIV") was capable of constituting infliction of grievous bodily harm contrary to s 35(1)(b) of the Crimes Act 1900 (NSW), as that provision stood in 2004. The Court also held that recklessness, within the now repealed definition of "maliciously" in s 5 of the Crimes Act, could be established by an accused's foresight of the possibility, rather than the probability, of the risk in question materialising. The appellant engaged in unprotected sexual intercourse with the complainant between January and July 2004 in circumstances where the appellant had been diagnosed as, and therefore knew that he was, HIV positive. The appellant was charged with one count of maliciously causing the complainant to contract a grievous bodily disease with the intent of causing the complainant to contract that grievous bodily disease (Count 1) and, in the alternative, one count of maliciously inflicting grievous bodily harm upon the complainant (Count 2). In March 2012, the appellant moved for an order from the District Court of New South Wales that Count 2 be quashed. Sorby DCJ stayed the proceedings in relation to Count 2 due to uncertainty as to whether causing another person to contract a serious disease constituted the infliction of grievous bodily harm contrary to s 35(1)(b) of the Crimes Act. On appeal by the Crown the Court of Criminal Appeal dissolved this stay, holding that the word "inflicts" should not be given a limited and technical meaning. At his subsequent trial in the District Court, the appellant conceded that he had known that there was a real possibility that he could infect the complainant by having unprotected sexual intercourse with him. The appellant was acquitted of Count 1 but convicted of Count 2. He unsuccessfully appealed against his conviction to the Court of Criminal Appeal on grounds including that Count 2 disclosed no offence known to law and that the trial judge erred in directing the jury that the element of malice was satisfied. A majority of the High Court held that the meaning of "inflicts" in s 35 of the Crimes Act does not require the infliction of force productive of immediate physical injury, but rather extends to the communication of disease or infection. The Court also held that recklessness in the context of s 35 does not require an accused to have foresight of the probability that certain consequences will eventuate; foresight of the possibility of such consequences is sufficient. Accordingly, the appeal was dismissed.
+HIGH COURT OF AUSTRALIA 18 May 2005 ANTHONY VASKEN MARKARIAN v THE QUEEN The New South Wales Court of Criminal Appeal had erred in the formulation and application of sentencing principles when it dealt with Mr Markarian’s sentence for drug offences, the High Court of Australia held today. The Court remitted the matter to the CCA for further consideration. Mr Markarian, 41, was a heroin user and Vincent Caccamo his dealer. In April 1998, Mr Markarian was jailed and by the time of his release 18 months later he had taken himself off both heroin and methadone. He resumed contact with Mr Caccamo and started taking drugs again. Mr Markarian worked as a driver for Mr Caccamo and was paid in heroin. He was still on parole when charged with knowingly taking part in the supply of a commercial quantity (415 grams) of heroin, which carries a maximum penalty of 20 years’ jail. Mr Markarian pleaded guilty and asked that four other offences be taken into account in sentencing. Judge Greg Hosking in the District Court sentenced him to prison for two years and six months, with a non-parole period of 15 months which would have expired in October 2003. Mr Caccamo was sentenced to eight years’ jail with a non-parole period of five years. The Crown appealed, alleging Mr Markarian’s sentence was inadequate. The CCA allowed the appeal and re-sentenced Mr Markarian to eight years’ jail with a non-parole period of four-and-a-half years. He is eligible for parole in January 2007. The CCA held that the 15-year maximum penalty for an offence involving less than 250 grams should be reduced by a third to 10 years due to Mr Markarian’s lesser role in the drug operation, his plea, the finding of contrition, his addiction, and his progress in drug rehabilitation. The sentence was then reduced by 25 per cent for his plea of guilty to the other four offences. A sentence of 18 months to two years was imposed for these. Mr Markarian then appealed to the High Court. The High Court held that sentencing judges should exercise as much flexibility in sentencing as would accord with consistency of approach and with the applicable statutory regime. It agreed that sentencing judges should explain the factors in each case which influenced the final sentence. The Court however held that the CCA’s approach of starting with a maximum penalty based on the quantity of the drug alone and then making proportional deductions from it, based on other factors in the case, was not appropriate. The number and complexity of factors which Judge Hosking had had to weigh did not lend themselves to the arithmetical process used by the CCA. A majority of the Court stated that the preferable approach to sentencing is by “instinctive synthesis”, whereby the sentencing judge weighs all the competing factors and arrives at one final sentence, as opposed to an approach whereby the judge quantifies the individual factors leading to a final determination. The Court unanimously allowed the appeal and remitted the matter to the CCA for its reconsideration of the sentence in accordance with its reasons for judgment.
+HIGH COURT OF AUSTRALIA 6 December 2006 CONCRETE PTY LIMITED v PARRAMATTA DESIGN & DEVELOPMENTS PTY LIMITED AND GHASSAN FARES Public Information Officer The buyer of land on which a unit development had been approved had the right to use the plans and drawings produced by the original architect, the High Court of Australia held today. Landmark Building Developments Pty Limited and Toyama Pty Limited formed a joint venture in 1998 to buy land at Nelson Bay, on the central New South Wales coast, for $560,000. They intended to build home units for sale upon the land. Architect Ghassan Fares was a principal of both Landmark and Parramatta Design & Developments. The joint venturers paid Mr Fares $27,000 to prepare the plans to obtain development consent from the Port Stephens Council for a block of eight units. Consent was granted but the joint venturers wished to enlarge their development to 14 units when a 16-unit structure was approved next door. Toyama agreed to the increase when Mr Fares offered to prepare fresh plans without payment. Consent for the 14-unit development, which would last five years, was granted in May 2000. The joint venturers fell out and trustees were appointed by the NSW Supreme Court in December 2002 to sell the land. Concrete bought it in August 2003 for $2.76 million. Parramatta asserted copyright and refused to let Concrete use the building plans. Concrete began proceedings in the Federal Court of Australia under section 202 of the Copyright Act, alleging that Parramatta and Mr Fares had made unjustifiable threats to bring proceedings for copyright infringement. It sought a declaration that the assertion of copyright was unjustified as it had an implied licence to use the plans after buying land which carried development consent. Parramatta cross-claimed, alleging infringement of copyright. Justice Richard Conti declared the threats were unjustifiable under section 202, held that Concrete had an implied licence to use the plans and drawings, ordered an enquiry into the damages sustained by Concrete due to the threats, and dismissed the cross-claim. On appeal, the Full Court of the Federal Court held that the threats were justified because Concrete had no right to use the plans, and that the trial miscarried in any event because of apprehended bias on the part of Justice Conti due to comments he made during the trial and in his judgment. Concrete appealed to the High Court. Parramatta and Mr Fares sought leave to cross-appeal on the bias issue. The Court unanimously allowed the appeal with costs, remitted to Justice Conti the question of damages sustained by Concrete, and dismissed the cross-appeal. It held that Concrete had obtained an implied licence to use the plans and drawings when it purchased the land from the joint venturers. The Court held that provision by Parramatta of the plans to the joint venture in the circumstances of the case necessarily involved the agreement to make the plans available for the mutual benefit of the joint venturers, including in the event that their relationship broke down and the joint venture assets were realised. The Court also held that no reasonable apprehension of bias was established on the part of Justice Conti and that the Full Court erred in so holding. Had there been apprehended bias, it should have been resolved first and a new trial ordered, rather than proceeding on the other issues raised in the appeal.
+HIGH COURT OF AUSTRALIA 14 February 2018 PROBUILD CONSTRUCTIONS (AUST) PTY LTD v SHADE SYSTEMS PTY LTD & ANOR [2018] HCA 4 Today the High Court unanimously dismissed an appeal from the Court of Appeal of the Supreme Court of New South Wales. The High Court held that the Supreme Court of New South Wales does not have jurisdiction to make an order in the nature of certiorari to quash a determination made by an adjudicator appointed under the Building and Construction Industry Security of Payment Act 1999 (NSW) ("the Security of Payment Act") for a non-jurisdictional error of law on the face of the record. The Security of Payment Act relevantly grants, to any person who undertakes to carry out construction work under a construction contract, an entitlement to a "progress payment" and sets out a procedure for recovering such a payment. A person who is or claims to be entitled to a progress payment may make a payment claim. Disputed payment claims may be referred to an adjudicator for determination. The adjudicator must determine the amount of the progress payment (if any) to be paid. In doing so, the adjudicator is to consider, among other things, the provisions of the Security of Payment Act and the construction contract. The appellant ("Probuild") and the first respondent ("Shade Systems") were parties to a construction contract. Shade Systems served on Probuild a payment claim stating that a progress payment was due. Probuild responded that it did not propose to pay any of the amount claimed, because it claimed to be owed a considerably higher amount for liquidated damages. Shade Systems applied for adjudication of its payment claim. The adjudicator rejected Probuild's liquidated damages claim and determined an amount payable by Probuild. Probuild commenced judicial review proceedings in the Supreme Court, seeking an order in the nature of certiorari quashing the adjudicator's determination. The primary judge made the order sought on the basis that the adjudicator had made errors of law that appeared on the face of the record, which included the reasons for the determination. On appeal to the Court of Appeal, Shade Systems successfully argued that the Security of Payment Act excluded the jurisdiction of the Supreme Court to quash the determination for non-jurisdictional error of law on the face of the record. By grant of special leave, Probuild appealed to the High Court. The High Court held that the Security of Payment Act ousted the jurisdiction of the Supreme Court to make an order in the nature of certiorari quashing an adjudicator's determination for non-jurisdictional error of law on the face of the record. Although the Security of Payment Act did not contain an express statement providing that the jurisdiction was ousted, the scheme of the Act disclosed an intention that such review would not be available having regard to the fact that the Act creates an interim entitlement that is determined informally, summarily and quickly, and then summarily enforced without prejudice to parties’ common law rights. Accordingly, the appeal was dismissed.
+HIGH COURT OF AUSTRALIA 24 May 2007 FARAH CONSTRUCTIONS PTY LTD, FARAH ELIAS, LESMINT PTY LTD, MARGARET ELIAS, SARAH ELIAS AND JADE ELIAS v SAY-DEE PTY LTD Public Information Officer A Sydney developer had not acted in breach of his fiduciary duties to his joint venture partners, the High Court of Australia held today. Farah Constructions, controlled by Farah “George” Elias, a real estate developer, and Say-Dee, controlled by businesswomen Sadie Elias (no relation to Mr Elias) and Dalida Dagher, entered into a joint venture in 1998 to buy and redevelop No 11 Deane Street, Burwood. Say-Dee contributed $225,000, plus stamp duty, while the rest of the $630,000 price was borrowed. No 11’s four run-down units were refurbished and rented out, prior to a planned demolition. Farah submitted a development application (DA) to Burwood Council for a combined commercial-residential project. The Council rejected it as too big for an 11-metre-wide site with no room for parking. The development would require amalgamation with adjacent blocks. Mr Elias, his wife Margaret, and teenage daughters Sarah and Jade each bought one of the four units at No 15 Deane Street and one of the four at No 20 George Street, which backed on to No 15, totalling $2.06 million. His company, Lesmint, bought No 13 Deane Street for $1.68 million. Mr Elias gave evidence that he had invited Ms Dagher and Ms Elias to join in the purchases of Nos 13 and 15 but they declined for financial reasons. He offered to buy Say-Dee’s interest in No 11. Say-Dee declined and relations deteriorated. Problems spiralled, with the project having stalled, rents not meeting mortgage repayments, all three principals in financial difficulty, and Ms Elias diagnosed with cancer. In the NSW Supreme Court in March 2003 Farah filed a summons against Say-Dee seeking an order that a trustee be appointed over No 11 and that it be sold. Say-Dee filed a cross-claim that the Eliases, Farah and Lesmint held their interests in Nos 13 and 15 on constructive trust for the partnership between Say-Dee and Farah. Justice George Palmer gave judgment for the Farah group, made orders for the sale of No 11, and dismissed the cross-claim. He accepted the evidence of Mr Elias that he had invited Ms Dagher and Ms Elias to join in the purchase of Nos 13 and 15. The Court of Appeal overturned Justice Palmer’s finding about Mr Elias’s invitation to Ms Dagher and Ms Elias. It also found that Farah’s fiduciary duties to Say-Dee were wider than Justice Palmer had considered them to be and that Farah breached those duties by failing to tell Say-Dee that the Council regarded the acquisition of Nos 13 and 15 and their amalgamation with No 11 as essential if No 11 were to redeveloped to its full potential. The Court of Appeal made a declaration that Mrs Elias and her daughters held their units in Nos 13 and 15 on constructive trust in favour of the Farah-Say-Dee partnership, and appointed receivers to obtain development consent and sell all their blocks together. Farah appealed to the High Court which unanimously allowed the appeal and ordered that Justice Palmer’s orders be restored. It accepted that Say-Dee was aware the Council had rejected the DA and that the problem might be overcome by developing No 11 with adjoining land, and that Mr Elias had invited Ms Dagher and Ms Elias to participate in acquiring Nos 13 and 15 but they had declined. Farah had a fiduciary duty to tell Say-Dee information about the Council’s view and the opportunities to buy Nos 13 and 15. Farah fulfilled its obligation of disclosure about the Council’s attitude and the Say-Dee principals had enough business experience to give informed consent to Mr Elias pursuing the purchase of Nos 13 and 15. Say-Dee’s unwillingness to participate in a larger development was not a barrier to Farah proceeding on its own behalf. The Court rejected the grounds on which Mrs Elias and her daughters could have been made constructive trustees on behalf of Say-Dee and held that they were not liable to Say-Dee in any way.
+HIGH COURT OF AUSTRALIA 17 August 2017 JULIAN KNIGHT v THE STATE OF VICTORIA & ANOR [2017] HCA 29 Today the High Court unanimously held, in answer to a question posed in a special case, that s 74AA of the Corrections Act 1986 (Vic) ("the Act") is not invalid on the ground that it is contrary to Ch III of the Constitution. In 1988, the plaintiff pleaded guilty to seven counts of murder and 46 counts of attempted murder. The Supreme Court of Victoria sentenced him to imprisonment for life for each count of murder and imprisonment for 10 years for each count of attempted murder, and fixed a non-parole period of 27 years. The plaintiff's non-parole period expired on or about 8 May 2014. On 2 April 2014, the Victorian Parliament inserted into the Act a new s 74AA, headed "Conditions for making a parole order for Julian Knight". The effect of s 74AA is to prevent the Adult Parole Board ("the Board") from ordering that the plaintiff be released on parole unless satisfied, amongst other things, that he is in imminent danger of dying or is seriously incapacitated and that, as a result, he no longer has the physical ability to do harm to any person. On 11 March 2016, the plaintiff lodged an application for a parole order with the secretary of the Board. On 27 July 2016, a division of the Board consisting of a retired Judge of the County Court of Victoria and two non-judicial members decided to require certain reports, including a report from the Secretary to the Department of Justice and Regulation under s 74AA(3). Those reports have not yet been received and the Board has taken no further steps to progress the plaintiff's application. The plaintiff brought proceedings in the original jurisdiction of the High Court seeking a declaration that s 74AA is invalid on the ground that it is contrary to Ch III of the Constitution. Invoking the principle associated with Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; [1996] HCA 24, the plaintiff submitted first, that s 74AA interferes with the sentences imposed by the Supreme Court in a manner which substantially impairs the institutional integrity of the Supreme Court, and second, that s 74AA enlists judicial officers who are members of the Board in a function that is incompatible with the exercise of federal jurisdiction by the courts of which those judicial officers are members. The High Court held that s 74AA did not interfere with the sentences imposed by the Supreme Court. Whether or not the plaintiff would be released on parole at the expiration of the non-parole period was outside the scope of the exercise of judicial power constituted by imposition of the sentences. The High Court also held that, because the Board has not in fact been constituted, and does not need to be constituted, to include a current judicial officer, it was unnecessary and inappropriate to determine whether s 74AA would be invalid in circumstances in which the function conferred by s 74AA might be sought to be exercised by a division of the Board which included a judicial officer.
+HIGH COURT OF AUSTRALIA 9 December 2009 Manager, Public Information TIAN ZHEN ZHENG v DEJU CAI [2009] HCA 52 The High Court today held that the payments received by a person from a church for which she undertook voluntary work should not be deducted from damages recoverable for injuries she suffered as the result of a car accident. Ms Zheng was a passenger in a car which collided with a taxi in May 2000. As a result she suffered significant injuries to her back and neck, and she experienced chronic depression. Ms Zheng sued the driver of the car, Mr Cai, who admitted a breach of his duty of care. The primary judge entered a verdict for Ms Zheng and awarded damages of $300,681. The New South Wales Court of Appeal reduced the damages to $17,447.91 taking account of, among other things, voluntary payments she had received from her church. Ms Zheng accepted that, for reasons unrelated to the appeal, damages should have been reduced to $144,886 plus interest. Her appeal to the High Court concerned the difference between the amounts $144,886 and $17,447.19. Two justices of the High Court referred Ms Zheng’s application for special leave to appeal to a bench of five justices for consideration. In a unanimous decision the Court decided to grant special leave to appeal and to Ms Zheng was born in China and arrived in Australia in 1990. Her accountancy qualifications were not recognised in Australia and she worked in Sydney as a sewing machine operator for a cushion manufacturer. Following the accident she obtained the degree of Bachelor of Theology in Singapore and returned to Australia in 2005. Thereafter Ms Zheng performed voluntary work for about 20 hours per week for her church, the Christian Assembly of Sydney, which included answering telephones, speaking to people interested in the Assembly and occasionally preaching. The disabilities arising from the accident limit her ability to do this work. Between June 2005 and up until at least August 2007 the Assembly was making fortnightly payments to Ms Zheng of amounts that averaged slightly more than $580 per week. The primary judge found that the payments were made from donations to the Assembly, to assist Ms Zheng with her rent and living expenses, and, contrary to submissions put on Mr Cai’s behalf, held that Ms Zheng was not an employee of the Assembly. On appeal to that Court, the NSW Court of Appeal had regard to a letter from the Assembly which stated that it had “provided financial support to [Ms Zheng] for her daily living and accommodation expenses to allow her to function more effectively as a volunteer worker”. The Court of Appeal allowed the appeal on the basis that the real intent of the payments was to enable the applicant to perform her volunteer work more effectively, which, in its view, rendered them analogous to payments for services. The payments were therefore taken into account to reduce the assessed damages from $144,886 to $17,447.19. In her application for special leave to appeal against the decision of the Court of Appeal Ms Zheng argued that the benevolent nature of the payments meant they should not diminish the damages payable by Mr Cai. She further argued that the determination of the appeal on an issue which had not been argued at trial and which she had not had the opportunity to answer during the trial was so prejudicial to her that the High Court should provide a remedy. The High Court unanimously determined that special leave should be granted and that the appeal should succeed. It held that Mr Cai should have been bound by the presentation of his case at trial and that the departure from that course in the Court of Appeal had prejudiced Ms Zheng. Further, it held that even if the benevolent nature of the payments had been an issue at trial, Ms Zheng should have succeeded on that issue. The High Court noted that the Court of Appeal had concluded that in making the payments to Ms Zheng, the Assembly’s intention was not simply to benefit Ms Zheng in relation to her daily living and accommodation expenses but also to enable her to function more effectively as a volunteer church worker. Previous High Court decisions had established that voluntary gifts given for the benefit of an injured person and not for the benefit of the person who caused the injury should not diminish damages payable by the wrongdoer. In this case the fact that the payments also had the collateral effect of benefiting the Assembly did not diminish the reality that they were made for the benefit of Ms Zheng and not for the benefit of Mr Cai, to reduce his liability for damages. The payments did not justify any reduction in the damages payable by Mr Cai to Ms Zheng.
+HIGH COURT OF AUSTRALIA Public Information Officer 8 May, 2003 SERGEY DRANICHNIKOV v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND OTHERS; EX PARTE SERGEY DRANICHNIKOV Mr Dranichnikov sought both special leave to appeal against a decision of the Full Court of the Federal Court and relief under section 75(v) of the Constitution. He claimed the Federal Court wrongly dismissed his application for a review of the Refugee Review Tribunal’s decision upholding the Immigration Department’s refusal to give him a protection visa. The section 75(v) application, seeking constitutional writs against the Minister, the RRT and various departmental officers, raised the question of whether the RRT failed to exercise its jurisdiction to review the department’s decision. In 1997, Mr Dranichnikov, his wife Olga and daughter Maria arrived in Australia from Vladivostok in Russia where he had managed a company providing real estate and legal services. He said he tried to interest authorities to combat the increasing attacks, sometimes fatal, on business people. Mr Dranichnikov made representations to the mayor, organised public meetings to draw attention to corruption and lawlessness in the city, and formed a committee for the registration of property titles. He was stabbed in 1994 and claimed he agreed, under duress by police, to the investigation being discontinued. In Australia, Mr Dranichnikov claimed refugee status on the basis of a well- founded fear of persecution if he returned to Russia for speaking out on law and order issues. The RRT dismissed his case on the basis that any persecution Mr Dranichnikov had suffered was not due to membership of a particular social group and that his claim had no connection with the United Nations Convention Relating to the Status of Refugees. A single judge of the Federal Court, and the full Federal Court on appeal, held that no error on the part of the RRT was shown. But the High Court, by a 4-1 majority, held that the RRT misunderstood Mr Dranichnikov’s case and failed to make a preliminary determination of whether the narrower group or class to which Mr Dranichnikov claimed to belong – business people who publicly protested against organised crime and state-sanctioned corruption – constituted a social group for the purposes of the Convention. The majority held that Mr Dranichnikov, who represented himself, had made out his entitlement to relief under section 75(v), and ordered the issuing of writs of certiorari to quash the RRT’s decision, mandamus to compel it to again review the department’s decision, and prohibition to prevent the Minister implementing the RRT’s original decision.
+HIGH COURT OF AUSTRALIA 8 December 2021 [2021] HCA 40 Today, the High Court unanimously dismissed appeals from a judgment of the Court of Appeal of the Supreme Court of New South Wales. The appeals concerned whether a plaintiff whose vehicle is negligently damaged can recover as damages the reasonable costs incurred in hiring a replacement vehicle of broadly equivalent value to the damaged vehicle while that vehicle is being repaired. Both respondents, Mr Rixon and Mr Cassim, owned prestige vehicles that were damaged in accidents for which the appellants, Mr Arsalan and Mr Nguyen, by their insurers, admitted liability in negligence. The vehicles were used for social and domestic purposes but not for income-earning purposes. The respondents hired replacement vehicles of similar value to their damaged vehicles while the vehicles were being repaired. In the Local Court of New South Wales, the magistrate held that Mr Rixon had not demonstrated a need for a prestige replacement vehicle and awarded damages representing the market rate of hire for a Toyota Corolla, which would have met his needs. A different magistrate found that, although a Toyota Corolla would also have met Mr Cassim's needs, he was entitled to damages representing the actual hire costs incurred because the hired replacement vehicle was of broadly equivalent value to the damaged vehicle. The Supreme Court of New South Wales dismissed Mr Rixon's appeal. The Supreme Court allowed Mr Nguyen's appeal and substituted an award of damages representing the market rate of hire for a Toyota Corolla. A majority of the Court of Appeal allowed further appeals by Mr Rixon and Mr Cassim. Mr Rixon was held to be entitled to the reasonable hire costs he had incurred, and the matter was remitted to the Local Court for assessment. In Mr Cassim's appeal, the magistrate's award was reinstated. The High Court dismissed the appeals, holding that both respondents were entitled to damages representing the costs of hiring replacement vehicles of broadly equivalent value to their damaged vehicles. Where a plaintiff's vehicle is negligently damaged and unavailable during a period of repair, loss will readily be inferred from the plaintiff's ownership and past use of the vehicle. That loss consists of (i) physical inconvenience from the inability to use the vehicle and (ii) loss of amenity or enjoyment of the use of the vehicle. Loss of amenity of use of a chattel should be recognised as a recoverable head of damage for negligent damage to a chattel, consistent with the compensatory principle. A plaintiff's loss of amenity of use includes the loss of convenience or pleasure derived from the use of their vehicle, and it may be inferred that a plaintiff who incurs significant expenditure on a prestige vehicle derives amenity from its functions. Once a plaintiff mitigates their loss by hiring a replacement vehicle of broadly equivalent value to the damaged vehicle, the onus lies upon a defendant to prove that the costs incurred in mitigation were unreasonable. The appellants did not prove that the respondents acted unreasonably in incurring any of the hire costs for the replacement vehicles.
+HIGH COURT OF AUSTRALIA 30 August 2007 Public Information Officer ROADS AND TRAFFIC AUTHORITY OF NEW SOUTH WALES v PHILIP JAMES DEDERER AND GREAT LAKES SHIRE COUNCIL The Roads and Traffic Authority did not breach its duty of care to a teenager who became a partial paraplegic by diving off a bridge, the High Court of Australia held today. On 31 December 1998, Mr Dederer, then aged 14, dived from the bridge across the Wollamba River, struck a submerged sandbank and suffered a severe spinal injury. Pictorial signs prohibited diving and written signs prohibited climbing on the bridge. Mr Dederer spent family holidays in the area so he knew of the sandbar from boating and that the water varied in depth, but he had not jumped or dived from the bridge until jumping twice the day before the accident. Both times he was totally submerged in the water and his feet did not touch bottom. Mr Dederer had frequently seen people jumping and occasionally diving off the bridge. He had seen a “no diving” sign but did not think the activity was dangerous. Council officers and police had been unable to stop other people diving. Mr Dederer’s dive was the first reported accident since the bridge was built in 1959. Mr Dederer sued the RTA and the Council in the NSW Supreme Court for negligence. Justice John Dunford found for Mr Dederer against both defendants but reduced damages by 25 per cent for Mr Dederer’s contributory negligence. Mr Dederer was awarded $840,000, with RTA ordered to pay 80 per cent of the damages and the Council 20 per cent. Justice Dunford found that the RTA was negligent in failing to erect signs warning of the danger of shifting sands and variable depth, in failing to replace horizontal railings with vertical pool-style fencing, and in failing to change the flat top of the handrail to a triangular shape that would be difficult to stand on. The Court of Appeal held that the NSW Civil Liability Act meant that the Council was not liable but that the Act did not apply to the action against the RTA. The Court of Appeal, by majority, dismissed the appeal by the RTA apart from increasing the proportion of Mr Dederer’s contributory negligence from 25 per cent to 50 cent. The RTA appealed to the High Court and Mr Dederer cross-appealed against the increase in his contributory negligence. The Council was joined as a second respondent but played no active part in the appeal. The High Court, by a 3-2 majority, allowed the appeal and dismissed the cross-appeal. It held that a duty of care imposes an obligation to exercise reasonable care, not a duty to prevent potentially harmful conduct. The extent of the obligation owed by the RTA is that of a roads authority exercising reasonable care to see that the road is safe for users exercising reasonable care for their own safety. The Court held that the risk arose not from the state of the bridge but from the risk of jumping into shallow water and shifting sands, which were not under the RTA’s control. The magnitude of the risk and the probability of injury had to be balanced against the expense, difficulty and inconvenience of any alleviating action. New fencing was estimated to cost $150,000 and a triangular handrail $108,072 and would not necessarily stop people jumping from bridges. The Court held that the existing “no diving” signs were a reasonable response to the risk and the RTA did not breach its duty of care.
+HIGH COURT OF AUSTRALIA Public Information Officer 6 April 2006 HUTCHISON 3G AUSTRALIA PTY LTD v CITY OF MITCHAM, CKI UTILITIES DEVELOPMENT LTD, HEI UTILITIES DEVELOPMENT LTD, CKI UTILITIES HOLDINGS LTD, HEI UTILITIES HOLDINGS LTD, CKI/HEI UTILITIES DISTRIBUTION LTD, AND THE ATTORNEY-GENERAL FOR THE STATE OF SOUTH AUSTRALIA Power poles at certain locations in Adelaide carrying mobile phone transmission facilities in the circumstances did not require council development approval, the High Court of Australia held today. Hutchison erected telecommunication facilities, called downlink sites, as part of its mobile phone network at five locations in suburban Adelaide, all within the City of Mitcham, in 2002 and 2003. The second to sixth respondents are a group of companies trading as electricity distributor ETSA Utilities. Hutchison facilities were installed on ETSA’s stobie poles (Adelaide’s concrete and steel power poles). Stobie poles at four of the five locations had to be replaced, at Hutchison’s expense, to handle the installation of its equipment. Downlink sites comprised panel antennae mounted above the stobie pole and an equipment shelter on the ground with noisy air-conditioning units to keep electrical equipment at a constant temperature. Hutchison notified the council of its intention to install downlink facilities but neither Hutchison nor ETSA sought development approval. In April 2003, the council issued enforcement notices requiring Hutchison to cease work. It contended that the replacement poles were facilities under the Commonwealth Telecommunications Act as they had been erected by ETSA for Hutchison’s purposes. More specifically, the council also submitted that the poles were towers and, because of their size and structure, were not low-impact facilities so did not fall within exemptions to the SA Development Act. In the Environment, Resources and Development Court of South Australia, Hutchison challenged the council’s notices on the ground that the downlink sites were low-impact facilities under the Telecommunications Act so did not require development approval under the Development Act. In a separate proceeding in the Supreme Court, the council sought declarations that each downlink site required approval and sought injunctions requiring Hutchison to lodge development applications for the sites and to remove its equipment from the stobie poles on which they had been erected. The parties agreed to stay the Environment Court proceedings pending the determination of the action in the Supreme Court. Justice Bruce Debelle referred a set of questions to the Full Court, which answered them favourably to the council, to the effect that either Hutchison or ETSA must obtain development approval for the downlink sites. Hutchison then appealed to the High Court. The Court unanimously allowed the appeal. It held that Hutchison did not need to seek development approval for replacing the poles because it was ETSA that undertook the development, and even if Hutchison had undertaken the development Hutchison would have been entitled to the benefit of an exemption from the operation of the Development Act, as provided for in the Telecommunications Act. Specifically, Hutchison’s facilities were not towers and were of low impact, so Hutchison was not required to obtain development approval from the council for the erection of replacement stobie poles. ETSA did not need to obtain development approval because of an exemption in the Development Act.
+HIGH COURT OF AUSTRALIA 8 March 2023 LAUNDY HOTELS (QUARRY) PTY LTD v DYCO HOTELS PTY LTD AS TRUSTEE FOR THE PARRAS FAMILY TRUST & ORS [2023] HCA 6 Today, the High Court unanimously allowed an appeal from a judgment of the Court of Appeal of the Supreme Court of New South Wales. The appeal concerned the construction of a contract for the sale and purchase of the property and assets of a hotel business (the Quarrymans Hotel). The appellant was the Vendor, and the first and second respondents together were the Purchaser. Clause 50.1 provided that, from the contract date until Completion, the Vendor was required to "carry on the Business in the usual and ordinary course as regards its nature, scope and manner". During that period, in response to the COVID-19 pandemic, the Minister made a public health order directing that pubs "must not be open to members of the public" except for the sale of food or beverages to be consumed off the premises. In compliance with that public health order, the Quarrymans Hotel sold only takeaway alcohol and food until 1 June 2020 when it re-opened subject to customer number restrictions as directed by subsequent public health orders. Prior to Completion, the Purchaser informed the Vendor that it would not complete the contract as the Vendor was not ready, willing and able to complete the contract as it was in breach of cl 50.1, amongst other clauses. The Vendor maintained that it was ready, willing and able to complete and, after the Completion Date had passed, served a notice to complete upon the Purchaser. Ultimately, the Vendor served a notice of termination upon the Purchaser for non-compliance with the notice to complete. The Purchaser commenced proceedings seeking declaratory relief to the effect that the contract had been frustrated or that the Vendor was not entitled to issue the notice to complete. The primary judge held that the contract had not been frustrated and that cl 50.1 required the Vendor to carry on the business in the usual and ordinary course so far as it was possible to do so in accordance with law. The Court of Appeal, by majority, held that the public health order was a supervening event rendering the Vendor's compliance with cl 50.1 illegal, and suspending that contractual obligation. The majority concluded that the purported termination by the Vendor involved a repudiation of the contract by the Vendor. The High Court allowed the appeal. The Court held that the Vendor was "ready, willing and able to complete" and not in default of its contractual obligations when it served the notice to complete upon the Purchaser. Construing cl 50.1 in its context, the obligation on the Vendor to "carry on the Business in the usual and ordinary course as regards its nature, scope and manner" incorporated an inherent requirement to do so in accordance with law. The "Business" was defined to include a licence pursuant to the Liquor Act 2007 (NSW) which was one of the assets to be purchased along with gaming machine entitlements allocated to that licence. The licence was subject to statutory conditions, and the Vendor's warranties acknowledged that the requirements for the lawful operation of the hotel were variable. The past, current, and anticipated future lawfulness of the operation of the Business was objectively essential and a commercial necessity to the parties. There was no obligation, and could not have been an obligation, imposed on the Vendor to carry on the Business unlawfully.
+HIGH COURT OF AUSTRALIA 4 August 2010 AKTAS v WESTPAC BANKING CORPORATION LIMITED & ANOR [2010] HCA 25 In December 1997, Westpac Banking Corporation Limited ("Westpac") dishonoured 30 cheques drawn by Homewise Realty Pty Ltd ("Homewise"), of which Mr Aktas was sole shareholder and sometime director. The cheques were returned to the payees or collecting banks stamped "Refer to Drawer". The dishonour was the result of Westpac's mistake and Mr Aktas and Homewise sued it for defamation. The High Court today held that the communications were not protected by the common law defence of qualified privilege. Homewise carried on a real estate agency under the name of "Century 21 Homewise Realty". It maintained three accounts with Westpac, including two trust accounts. In late 1997, default judgment was entered against Homewise in respect of a money claim. A garnishee order applicable to Homewise's accounts with Westpac was issued to Westpac. By law, however, the order could not apply to the two trust accounts. Nevertheless, on 1 December 1997, a Westpac employee acted on a mistaken understanding of the effect of the order and changed the status of all three of Homewise's accounts to "PCO" (standing for "post credits only"). The effect of this status was that customer initiated debits were not to be honoured. On the same day, a Homewise employee drew 30 cheques on one of the trust accounts which were then forwarded to Homewise clients or deposited in their bank accounts. On 2 December 1997, the Westpac employee was made aware of the error regarding Homewise's two trust accounts and removed their PCO status. However, in correspondence dated 3 December 1997, Westpac returned the cheques to the payee or the collecting bank, each endorsed with the words "Refer to Drawer". The trial judge found that the return of the cheques had occurred because the reversal of the trust accounts' PCO status had not been notified to the department responsible for correspondence. Mr Aktas and Homewise brought proceedings against Westpac in the Supreme Court of New South Wales, including a claim for damages for defamation. A jury determined that Westpac had, by the words "Refer to Drawer", published defamatory imputations in respect of Mr Aktas and Homewise. The trial judge, however, held that Westpac had established the common law defence of qualified privilege. Her Honour held that the relationship Westpac had with each of the payees justified the communication of information about its attitude to the presentation of the cheques, even though that information was based on a mistake. Absent the defence, her Honour would have awarded Mr Aktas $50,000 and Homewise $117,000 in damages. Mr Aktas and Homewise appealed to the Court of Appeal of the Supreme Court of New South Wales. That part of the appeal concerning the defamation claim was dismissed. Mr Aktas was granted special leave to appeal to the High Court on 11 December 2009. Mr Aktas's sole ground of appeal was that the Court of Appeal had erred in holding that the defamatory material was published on an occasion of qualified privilege. A majority of the Court agreed. The relevant question, in determining whether an occasion for qualified privilege arose, was whether the relationship between Westpac and the payees of the cheques was one in which the advantages to be had from free communication outweighed the importance of the accuracy of the defamatory imputation. One supposed advantage identified by the Court of Appeal was prompt advice to the payee that the cheque had not been honoured. While recognising the importance of prompt advice, the High Court considered that this end was achieved by ss 67 and 69 of the Cheques Act 1986 (Cth) (which oblige the drawee bank to pay to the holder a cheque duly presented for payment, or to dishonour the cheque "as soon as is reasonably practicable"). The absence of a public interest in protecting the communication was demonstrated by the absence of any reciprocity of interest between bank and payee. The bank has an interest in communicating because it refuses to pay. But the payee has no interest in receiving a communication of refusal to pay a cheque which is regular on its face in a case where the drawer has funds sufficient to meet its payment. For the payee, there is no need for any communication from the bank about the fate of the cheque, if it is met on presentation. Further, to hold that giving a notice of dishonour is an occasion of qualified privilege is not conducive to maintaining accuracy in the decisions banks must make about paying cheques. The Court allowed the appeal and ordered that the verdict of the trial judge be replaced by a verdict and judgment for Mr Aktas with damages in the amount of $50,000 with interest.
+HIGH COURT OF AUSTRALIA 19 June 2014 RONALD WILLIAMS v COMMONWEALTH OF AUSTRALIA & ORS [2014] HCA 23 Today the High Court unanimously decided that legislation enacted by the Commonwealth Parliament which purported to provide legislative authority to make agreements for the outlay of public money, and to make payments under those agreements, is invalid in its operation with respect to a funding agreement between the Commonwealth and Scripture Union Queensland ("SUQ"). By that agreement, the Commonwealth was to pay SUQ to provide chaplaincy services at schools in Queensland. In December 2010, Ronald Williams brought a proceeding in the High Court challenging the payment of money by the Commonwealth to SUQ for SUQ to provide chaplaincy services at the state school Mr Williams' four children attended. In 2012, the Court held that the funding agreement between SUQ and the Commonwealth, and the payments made under it, were not supported by the executive power of the Commonwealth under s 61 of the Constitution. Soon after the Court made orders in that proceeding, the Parliament enacted the Financial Framework Legislation Amendment Act (No 3) 2012 (Cth) ("the FFLA Act"). The FFLA Act amended the Financial Management and Accountability Act 1997 (Cth) ("the FMA Act") and the Financial Management and Accountability Regulations 1997 (Cth) ("the FMA Regulations") to provide legislative support not only for the making of agreements and payments of the kind which were in issue in the first proceeding, but also for the making of other arrangements and grants. Mr Williams then brought a fresh proceeding in the High Court against the Commonwealth, the relevant Minister and SUQ, challenging the validity of the relevant provisions of the FMA Act and FMA Regulations inserted by the FFLA Act. He challenged the validity of those provisions both generally and in their particular operation with respect to the payment of money by the Commonwealth to SUQ under the then funding agreement. Both the agreement and the payments made under it were said to be made under the "National School Chaplaincy and Student Welfare Program". The Court held that, in their operation with respect to the challenged funding agreement and the challenged payments made under that agreement, none of the challenged provisions is a valid law of the Commonwealth. The provisions are not, in their relevant operation, supported by a head of legislative power under the Constitution. Providing at a school the services of a chaplain or welfare worker for the objective described in the FMA Regulations is not a provision of "benefits to students" within the meaning of s 51(xxiiiA) of the Constitution. The Court further held that the Commonwealth's entry into, and expenditure of money under, the funding agreement was not supported by the executive power of the Commonwealth. The making of the payments was therefore held to be unlawful.
+HIGH COURT OF AUSTRALIA 17 August 2022 ARISTOCRAT TECHNOLOGIES AUSTRALIA PTY LTD v COMMISSIONER OF PATENTS [2022] HCA 29 Today, the High Court dismissed an appeal from a decision of the Full Court of the Federal Court of Australia. The appeal concerned whether the appellant's patent claim for a system and method for providing a feature game to be played on an electronic gaming machine ("EGM") was a "manner of manufacture" within the meaning of s 18(1A)(a) of the Patents Act 1990 (Cth). The appellant manufactures EGMs. It owned four innovation patents concerning various embodiments of an EGM. The specification of one patent, which was sufficiently similar to the others for the purpose of analysis, described the claimed invention as the combination of a player interface, being the physical features of an ordinary EGM, and a game controller, being the computerised components that interacted with the player interface to implement a base game and a feature game. Both the player interface and game controller contained elements that were part of the common general knowledge. The specification also described the triggering of a feature game from the base game using configurable symbols; those elements, which were part of the game controller, were not part of the common general knowledge. Following examination by the respondent, each patent was revoked on the ground that none of the claims in any of the innovation patents was a manner of manufacture. The appellant successfully appealed the revocation to the Federal Court of Australia. The primary judge found that the claimed invention was not a mere scheme and was therefore patentable subject matter. The Full Court allowed an appeal, with a majority of that Court holding that while the claimed invention was computer-implemented, it was not an advance in computer technology and therefore not patentable subject matter. The High Court unanimously held that s 18 of the Patents Act imposes a threshold requirement that there be an invention and that the only question in assessing whether a manner of manufacture exists under s 18(1) or (1A) is whether there is a manner of manufacture within s 6 of the Statute of Monopolies. The Court divided on the proper characterisation of the appellant's invention. Three Justices would have dismissed the appeal, characterising the invention, in light of the specification as a whole and the common general knowledge, as nothing other than a claim for a new system or method of gaming. The only thing differentiating it from the common general knowledge was the unpatentable idea of the feature game. Three Justices would have allowed the appeal, characterising the invention as an EGM incorporating an interdependent player interface and a game controller which included feature games and configurable symbols. That operation involved an artificial state of affairs and a useful result amounting to a manner of manufacture. Where the High Court is equally divided in opinion, s 23(2)(a) of the Judiciary Act 1903 (Cth) requires that the decision appealed from shall be affirmed. Accordingly, the High Court ordered that the appeal be dismissed with costs.
+HIGH COURT OF AUSTRALIA 22 May 2008 RAFTLAND PTY LTD AS TRUSTEE OF THE RAFTLAND TRUST v COMMISSIONER OF TAXATION Public Information Officer The High Court of Australia today upheld the assessments of income tax on Raftland in its capacity as trustee of the Raftland Trust. The principal issue concerned entitlements to certain trust income. The transactions giving rise to the assessments were aimed at securing a fiscal benefit by enabling accumulated tax losses, earlier incurred by a trust estate called the E&M Unit Trust (E&M), to be set off against the income of unrelated profitable businesses controlled by the Heran brothers, Brian, Martin and Stephen. The original trustee of E&M, established in 1986, was E&M Investments whose directors were Mark and Elizabeth Thomasz (formerly Carey). The business of the trust was the acquisition and sale of property. The business failed, with the 1991 tax return disclosing losses of more than $4 million. Mr and Mrs Thomasz became bankrupt but had been discharged by the time of the transactions in 1995. Mrs Thomasz’s son, Glen Carey, took over from E&M Investments as trustee of E&M. In May 1995, taxable profits for two Heran companies were forecast to be almost $3 million. Brian Heran contacted solicitor Peter Tobin about the possible acquisition of a trust with accumulated tax losses. Mr Tobin organised for Mr Heran to acquire control of E&M for $250,000. The Heran brothers, who controlled various building development and property rental companies, acquired Raftland, which became the trustee of the Raftland Trust on or before 30 June 1995. Beneficiaries were divided into three classes: primary (the Herans); secondary (Heran relatives, and various associated entities); and tertiary (the E&M trustee). Mr Carey removed himself as trustee of E&M and appointed Raftland as trustee. The Raftland Trust tax return for 1995 asserted the distribution of net income of $2,849,467 to E&M. Raftland did not pay that amount, apart from the $250,000, but applied it for the benefit of certain related parties. In 2002, the Commissioner issues notices of amended assessment for the 1995, 1996 and 1997 tax years. Total taxable income for those years was stated to be $4,015,207 with total tax, including penalty tax and interest, assessed at $4,025,070.30. After Raftland’s objections were disallowed, it appealed unsuccessfully to the Federal Court of Australia. Justice Susan Kiefel found that the $250,000 paid to the Thomaszes was a one-off payment and nothing further was to take place between the Thomaszes and the Herans. She held that the Raftland Trust deed which purported to create an entitlement in E&M as tertiary beneficiary was a sham or façade and the Thomaszes had no entitlement to trust income. The Full Court of the Federal Court upheld Justice Kiefel’s decision, apart from $57,973 related to 1995-96 which was the subject of an application by the Commissioner for special leave to cross-appeal. On the basis of different reasoning, the Full Court agreed that the net income derived by Raftland fell to be assessed pursuant to section 99A of the Income Tax Assessment Act, which provides that in certain circumstances trust income in the hands of the trustee was to be taxed at a special rate. Raftland appealed to the High Court. The High Court unanimously dismissed the appeal. It granted the Commissioner special leave to cross- appeal and allowed the cross-appeal. The Court held that for the tax scheme to succeed E&M had to have been entitled to the income of the Raftland Trust. It upheld Justice Kiefel’s conclusion that the intention of both the Herans and the Thomaszes was that $250,000 was all the beneficiaries of E&M were ever to receive or to seek, and that the entitlement under the Raftland Trust deed was not intended to have substantive, as opposed to apparent, legal effect. The Court also upheld her finding that E&M was not entitled to the Raftland Trust income within the meaning of section 100A of the Act, while the Heran brothers were entitled. Therefore the tax was correctly assessed under section 99A.
+HIGH COURT OF AUSTRALIA 16 November 2004 EQUUSCORP AND RURAL FINANCE PTY LTD (in liquidation) v GLENGALLAN INVESTMENTS PTY LTD EQUUSCORP AND RURAL FINANCE PTY LTD (in liquidation) v EDWIN THOMAS CODD EQUUSCORP AND RURAL FINANCE PTY LTD (in liquidation) v CYRIL WILLIAM EQUUSCORP AND RURAL FINANCE PTY LTD (in liquidation) v BRIAN THOMAS PRENDERGAST EQUUSCORP AND RURAL FINANCE PTY LTD (in liquidation) v BARRY THORNTON EQUUSCORP AND RURAL FINANCE PTY LTD (in liquidation) v HGT INVESTMENTS PTY LTD A written agreement for participation in a tax-effective investment scheme for farming crayfish overrode an inconsistent prior oral agreement that the investors claimed limited their liability, the High Court of Australia held today. Investors associated with GWA Pty Ltd (now GWA International Ltd) and its chairman Mr Thornton acquired units in the Red Claw crayfish project in north Queensland in June 1989 by borrowing $3.2 million. The project was managed by its promoter Tony Johnson’s company Johnson Farm Management. Terms of the partnership were recorded in a partnership deed between Eagle Star Trustees Ltd, the unit holders’ representative, and Forestell Securities (Australia) Ltd, the partnership managers. On 30 June 1989 Mr Thornton and the other respondents each executed a written loan agreement to borrow the whole purchase price from Rural Finance. (Equuscorp later became assignee of the loans.) The transactions appeared to be total payment from Rural Finance to Eagle Star to Forestell, which distributed sums to JFM and FJA, which then deposited them with Rural Finance as an interest-bearing deposit. The respondents claimed there was no loan, at least not of “real money”. The venture failed due to stock losses and expensive repairs to leaking ponds. Rural Finance and Equuscorp sued the respondents in the Queensland Supreme Court, claiming each defaulted on their repayments, but the respondents said they were not indebted as no money was lent. Justice John Helman concluded the transactions were merely book entries made to create an audit trail. Equuscorp and Rural Finance unsuccessfully appealed to the Court of Appeal. The respondents also alleged an oral agreement by which the liability of each was limited to one payment on 30 June 1989 and two more payments on 30 September and 31 December, then the income generated would extinguish the balance of the loan. They alleged they signed the written loan agreement relying on limited liability and on Rural Finance having sufficient funds to lend. The High Court held that the loan transaction was legally effective. It held that the allegation that liability was limited was at odds with the prospectus and a circular about the scheme. Neither the prospectus nor the written loan agreement suggested any limitation on borrowers’ liability and neither suggested any warranty about the project’s returns, instead warning the investment should be considered speculative. The Court held the respondents were bound by the written agreement. It unanimously allowed the appeal and ordered that matters be remitted to the Supreme Court for consideration of further issues not decided at trial.
+HIGH COURT OF AUSTRALIA 21 May 2014 DO YOUNG (AKA JASON) LEE v THE QUEEN SEONG WON LEE v THE QUEEN [2014] HCA 20 Today the High Court unanimously allowed two appeals from a decision of the Court of Criminal Appeal of the Supreme Court of New South Wales, which had upheld the convictions of the appellants on various drug and firearms offences on the basis that there had not been a miscarriage of justice within the meaning of s 6(1) of the Criminal Appeal Act 1912 (NSW). The appellants (a father and son) had been the subject of an investigation by the New South Wales Crime Commission ("the Commission"). As part of that investigation and pursuant to powers given by the New South Wales Crime Commission Act 1985 (NSW) ("the NSWCC Act"), the appellants were summoned by the Commission to give evidence before it. Section 13(9) of the NSWCC Act required the Commission to make a direction prohibiting the publication of evidence given before it where publication might prejudice the fair trial of a person who may be charged with an offence. The appellant in the first matter, Jason Lee, gave evidence on two occasions. He was subsequently charged with various drug and firearms offences. The appellant in the second matter, Seong Won Lee, gave evidence on one occasion. At that time, he had been charged with firearms offences and a charge relating to a drug offence was imminent. The transcripts of the appellants' evidence given before the Commission were unlawfully published to members of the New South Wales Police Force and to officers of the Director of Public Prosecutions before the appellants' joint trial. On 16 March 2011, the appellants were convicted of various drug and firearms offences. The appellants appealed their convictions on the basis that there had been a miscarriage of justice, by reason of the prosecution's possession and possible use of the appellants' evidence given before the Commission. The Court of Criminal Appeal dismissed the appeals. By grant of special leave, the appellants appealed to the High Court. The High Court held that the purpose of s 13(9) of the NSWCC Act was to protect the fair trial of a person who may be charged with offences. That purpose supports the fundamental principle of the common law referred to in X7 v Australian Crime Commission (2013) 248 CLR 92; [2013] HCA 29, that the prosecution is to prove the guilt of an accused person. That purpose was not met in the present case, with the consequence that the appellants' trial differed in a fundamental respect from that which our criminal justice system seeks to provide and amounted to a miscarriage of justice within the meaning of s 6(1) of the Criminal Appeal Act. The High Court quashed the appellants' convictions and ordered that a new trial be had.
+HIGH COURT OF AUSTRALIA 18 April 2007 Public Information Officer KAZI FAZLY ALAHI BODRUDDAZA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS The High Court of Australia today held that a section in the Migration Act imposing strict time limits on the seeking of remedies in the Court against adverse migration decisions is invalid. Mr Bodruddaza was born in 1976 in Bangladesh. He entered Australia on a postgraduate research visa. Before it expired he sought a skilled independent overseas student visa. He failed two English tests which left him five points short of the 120 required for his visa application to be considered. His application was refused and he instructed a migration agent to seek a review of the Immigration Department’s decision. The 21-day period for filing a review application with the Migration Review Tribunal expired on 6 February 2006. The application was filed the next day. On 9 May 2006, the MRT held that it did not have the jurisdiction to determine the review application as there was no provision for an extension of time. On 11 July 2006, Mr Bodruddaza instituted proceedings in the High Court, asserting that the department showed error in refusing him a visa and seeking writs of certiorari, prohibition and mandamus, to quash the department’s decision and to require determination by the Minister of the visa application. Section 75(v) of the Constitution provides that the Court has original jurisdiction for writs sought against Commonwealth officers. The application to the High Court was outside the maximum 84-day period specified in section 486A of the Act. The section provides that an application to the Court to grant a remedy in exercise of its original jurisdiction in relation to a migration decision must be made with 28 days of actual notification of the decision. The High Court may extend this by 56 days upon application made within the 84-day period and if the Court is satisfied that to do so is within the interests of the administration of justice, but otherwise the Court must not make an order allowing an application for a remedy outside the 28-day period. High Court Rule 4.02 states that any period of time fixed by the Rules may be enlarged or abridged by the Court either before or after the time has expired. Section 486A denies the Court the capacity to make an order allowing an application out of time. A special case agreed on by the parties asked whether section 486A applies to Mr Bodruddaza’s application and if so whether section 486A is invalid in respect of that application. A third question involves determination by the Court of the legal merits of the application, asking whether the department’s decision displayed jurisdictional error. The Court unanimously held that section 486A was invalid and thus does not validly deny the competence of the Court to hear the application. The section was inconsistent with the power of judicial review contained in section 75(v) of the Constitution. Section 486A, hinged on the date of actual notification rather than deemed notification, did not allow for a person becoming aware later of circumstances giving rise to a possible challenge to a decision, or allow for supervening events which may have led to a failure to act on time through no fault of the applicant. Mr Bodruddaza was one day late, apparently through failure by his migration adviser, and this could be dealt with through the Court’s discretion to grant or withhold a remedy under section 75(v). The Court held that section 486A is invalid and could not be read down or severed to preserve any valid operation. However it held that Mr Bodruddaza had failed to show jurisdictional error by the department in assessing his visa application. He required 20 points for English skills to meet the points test but received only 15. Test scores had to be achieved through one test, not through an aggregate of his two tests.
+HIGH COURT OF AUSTRALIA 10 March 2016 R & ANOR v INDEPENDENT BROAD-BASED ANTI-CORRUPTION COMMISSIONER [2016] HCA 8 Today the High Court unanimously dismissed an appeal from the Court of Appeal of the Supreme Court of Victoria. The High Court held that the power of the Independent Broad-based Anti-corruption Commission ("the IBAC") to hold an examination under Pt 6 of the Independent Broad-based Anti-corruption Commission Act 2011 (Vic) ("the IBAC Act") can be exercised in relation to persons who have not been, but might subsequently be, charged and put on trial for an offence relating to the subject matter of the examination. On 20 March 2015, the IBAC commenced an investigation into the conduct of certain members of Victoria Police stationed at Ballarat police station. The investigation, named "Operation Ross", was concerned with whether the appellants, two officers of Victoria Police, assaulted a woman in a cell at the Ballarat police station on 15 January 2015 as well as with a number of other incidents alleged to have occurred at the Ballarat police station in recent years which might have involved human rights violations in respect of other women. On 1 April 2015, the IBAC issued a witness summons to each of the appellants, requiring them to give evidence in a public examination of their knowledge of matters falling within the scope of Operation Ross. The appellants each delivered written submissions to the IBAC Commissioner submitting that the examinations should be held in private. The first appellant also submitted that the first appellant could not be compelled to give evidence. The Commissioner rejected the appellants' submissions. On 16 April 2015, the appellants commenced judicial review proceedings in the Supreme Court of Victoria seeking orders preventing the IBAC from examining them. The primary judge dismissed the claim. His Honour held that because the appellants had not yet been charged with an offence, the process of criminal justice had not commenced and the principle whereby an accused person cannot be compelled to assist the prosecution to make its case ("the companion principle") had not been engaged. The primary judge also held that the IBAC Act had abrogated each appellant's privilege against self-incrimination. The Court of Appeal refused the appellants leave to appeal against the primary judge's decision. By grant of special leave, the appellants appealed to the High Court. The Court held that the companion principle was not engaged, and so could not prevent the IBAC's examination, because the appellants had not been charged with any offence and there was no prosecution pending. There was no reason to extend the principle to the circumstances of the present case and to do so would fetter the pursuit and exposure of a lack of probity within the police force contrary to the object of the IBAC Act. The Court also held that the privilege against self-incrimination was abrogated by s 144 of the IBAC Act.
+HIGH COURT OF AUSTRALIA Public Information Officer 28 May, 2003 ROSE SHOREY v PT LIMITED AS TRUSTEE FOR McNAMARA AUSTRALIA PROPERTY TRUST, CIC INSURANCE LIMITED (in liquidation) AND VENTURE STORES (RETAILERS) PTY LTD (in liquidation) The High Court of Australia today allowed an appeal by Ms Shorey. Ms Shorey suffered soft tissue injuries to her back in a fall in a Blacktown, Sydney, shopping centre in April 1988, when she was 56. She had had surgery in 1986 for a pre-existing degenerative spinal condition and was pain-free, but after the fall her condition deteriorated until she progressed to using a walking stick, the two sticks, then a walking frame and then in 1993 a wheelchair. Ms Shorey was diagnosed as having a conversion disorder, a psychiatric condition said to explain her debilitating symptoms. The New South Wales District Court held the fall was a contributing factor to her condition and that she was not a malingerer, and awarded damages of $555,212.55 against PT Limited and Venture Stores. The three respondents did not challenge the District Court’s finding that negligence led to Ms Shorey’s fall, but appealed to the NSW Court of Appeal seeking a reduction in damages. The Court of Appeal allowed the appeal, although it upheld the finding that Ms Shorey was not malingering. She then appealed to the High Court. The issue in the appeal was whether Ms Shorey had established that her fall was a cause of her disability. The High Court, by a 4-1 majority, held that Ms Shorey was not required to prove the fall was the sole cause of her disorder, only that the fall was a cause. Other factors rendered her more susceptible to the consequences of the fall. A long-established legal principle is that defendants must take victims as they find them, even if there is an apparent disproportion between cause and effect. The High Court allowed the appeal and ordered that the matter be reheard by the Court of Appeal in accordance with the Court’s reasons.
+HIGH COURT OF AUSTRALIA 12 June 2008 MURAT KURU v STATE OF NEW SOUTH WALES Public Information Officer Police officers who declined to leave Mr Kuru’s home after he asked them to go and thereafter engaged in a physical struggle with him had committed trespass to both his person and his property, the High Court of Australia held today. Early on 16 June 2001, six police went to a flat after receiving a report that a man and a woman were fighting. Mr Kuru and his then fiancée (now wife) had had a noisy argument but by the time police arrived the fiancée had left with Mr Kuru’s sister. When police walked in the open door, two visiting friends were in the living room and Mr Kuru was taking a shower. After he came out of the bathroom, he allowed police to look around. Mr Kuru explained that his fiancée had left, wrote down his sister’s telephone number, then asked police to leave. Despite repeated demands that police leave the flat, they declined to go. Mr Kuru jumped on to the kitchen bench, later saying this was to get their attention. He jumped off the bench, although it was disputed whether it was towards the police or away from them, but moved towards them with his arms outstretched and made physical contact with an officer. A violent struggle followed, and Mr Kuru was punched, sprayed with capsicum spray and handcuffed. He twice fell down stairs from the flat. Mr Kuru was locked in a police station cell for several hours wearing nothing but boxer shorts. Mr Kuru brought proceedings in the NSW District Court against the State of NSW, claiming damages for trespass to his flat and his person and false imprisonment. He was awarded $418,265, including aggravated and exemplary damages. The NSW Court of Appeal unanimously allowed an appeal by the State. It held that, despite Mr Kuru’s withdrawal of permission to remain in his flat, the police were not trespassers when he first made contact with one officer. The Court held that police had both statutory and common law justification for remaining as they were investigating whether a domestic violence offence was committed. Mr Kuru appealed to the High Court. The Court, by a 4-1 majority, allowed the appeal. The appeal was argued on the basis that the decisive question was whether the police were trespassing at the time of the physical encounter with Mr Kuru. The Court held that police had neither statutory nor common law justification to remain at the flat. Under section 357F of the Crimes Act, if invited by a domestic violence victim, police were entitled to enter or remain even if the occupier of the home objected. Section 357H provided that where police entered a house by invitation or with a warrant they were to stay only as long as needed to investigate whether an offence had been committed, to render aid to an injured person, to make an arrest, to prevent any further offence, and to establish whether firearms were present. The police had already inspected the flat and did not need to stay to speak to the fiancée. They were not invited to enter the flat by a victim of domestic violence. The Court held that their remaining at the flat after Mr Kuru had asked them to go was not authorised by sections 357F or 357H. Unless a victim of domestic violence asked police to stay, police had no authority to stay without permission of the occupant. If they had needed to stay they could have telephoned a magistrate for a warrant. The common law recognised that trespass on land in emergencies was justified, but in this case there was no danger to life or property. This was not a case where Mr Kuru’s refusal or withdrawal of permission to enter or remain could be overridden. Common law powers to prevent a breach of the peace did not extend to entry to investigate whether a breach of the peace had occurred or whether one was likely. By the time police went to the flat there was no ongoing breach of the peace and none was threatened. The case was remitted to the Court of Appeal for consideration of further issues about damages.
+HIGH COURT OF AUSTRALIA 26 May 2010 Manager, Public Information THE QUEEN v LK THE QUEEN v RK [2010] HCA 17 On 19 May 2008, the respondents, LK and RK, were charged under s 11.5 of the Criminal Code (Cth) ("the Code") with conspiring to deal with money worth $1 million or more, being reckless as to the fact that the money was proceeds of crime. The money was part of a larger sum, in the order of $150 million, of which the Commonwealth Superannuation Scheme had been defrauded. Neither respondent was said to be a party to the fraud or to have knowledge of it. However, RK had agreed to a proposal, made by LK at the behest of a third party, that RK's Swiss bank account be used for the transfer of funds from Australia. At the conclusion of the Crown's case in the District Court of NSW, the respondents submitted that there was no case to answer and requested that the trial judge direct the jury to acquit. The trial judge held that the offence with which the respondents had been charged was bad at or unknown to law. The Crown appealed under s 107 of the Crimes (Appeal and Review) Act 2001 (NSW) to the NSW Court of Criminal Appeal. That Court dismissed the appeal, holding that, to support the charge of conspiracy under the Code, the Crown had to prove that the respondents knew the facts constituting the offence the object of the conspiracy. Special leave to appeal to the High Court was granted on 19 June 2009. Before the High Court, the Crown argued that the Court of Criminal Appeal's interpretation of the Code was incorrect. Today, that argument was rejected. The Court held that a person cannot be found guilty of conspiracy under the Code unless he or she knows — and is not simply reckless as to — the facts that make the proposed act or acts unlawful. In this case, the relevant fact was that the money was proceeds of crime. The respondents had argued that no appeal lay to the Court of Criminal Appeal because s 107 of the Crimes (Appeal and Review) Act did not come into effect until after the proceedings against the respondents had been commenced. The High Court rejected the argument on the basis that the respondents' trial commenced with their arraignment in the District Court, which was after 15 December 2006, when the Crimes (Appeal and Review) Act came into operation. The respondents had also argued that the provision of an appeal by the Crown against a directed verdict of acquittal infringed the guarantee in s 80 of the Constitution of trial by jury for offences against Commonwealth law tried on indictment. This argument was also rejected. The High Court held that the creation of such a right of appeal did not interfere with the jury's function because a jury can exercise no discretion in the face of a direction from a trial judge to return a verdict of acquittal. As the appeal against the directed verdict involved only questions of law, there was no infringement of s 80 of the Constitution. The High Court dismissed the appeals and upheld the decision of the Court of Criminal Appeal.
+HIGH COURT OF AUSTRALIA 31 July 2008 COMMISSIONER OF TAXATION v FUTURIS CORPORATION LIMITED Public Information Officer The Commissioner of Taxation had not deliberately miscalculated Futuris’s taxable income by “double counting” in contravention of his statutory powers, the High Court of Australia held today. Futuris’s 1998 tax return specified a taxable income of $86,088,045 and tax payable of $30,991,696.20. In 2002 the Commissioner served a notice of amended assessment which increased its taxable income for 1997-98 by $19,950,088, making a total taxable income of $106,038,133. The increase was attributed to an increase in capital gains tax on the disposal of shares in a subsidiary company following a corporate restructure. Futuris appealed to the Federal Court of Australia against the disallowance of its objection by the Commissioner. This proceeding, pursuant to Part IVC of the Taxation Administration Act (TAA), is still pending. Part IVC provides for the making of objections to the Commissioner, for review by the Administrative Appeals Tribunal and for appeals to the Federal Court. In November 2004, the Commissioner gave Futuris a second amended assessment which increased its taxable income for 1997-98 by $82,950,090. That amount was attributed to the application of Income Tax Assessment Act (ITAA) provisions dealing with schemes to reduce income tax to the disposal of the shares. Taxable income then totalled $188,988,223 with tax payable of $68,035,760.28. Futuris claimed there had been deliberate double counting of the $19,950,088. The Commissioner disallowed an objection by Futuris, which again appealed on 1 June 2005 to the Federal Court under Part IVC of the TAA. The litigation which reached the High Court began when Futuris then issued a third proceeding in the Federal Court. This proceeding was brought under section 39B of the Judiciary Act, which provides for writs of mandamus, prohibition or injunction to be sought against Commonwealth officers. The issue raised by section 39B was not merely whether there had been an error of fact or law by the Commissioner in giving the second amended assessment, but whether the Commissioner had acted outside the powers conferred by the ITAA so as to have committed “jurisdictional error”. Justice Paul Finn dismissed Futuris’s action, rejecting its contention that the Commissioner had deliberately overstated its taxable income by $19,950,088. The Full Court of the Federal Court allowed an appeal. It held that the second amended assessment was not protected by section 175 of the ITAA, which provided for the validity of any assessment not to be affected by reason that any ITAA provisions had not been complied with. The Full Court declared that the amended assessment was invalid under the ITAA, and ordered that it be quashed, holding that the Commissioner had relied on facts he knew were untrue, which was not a bone fide exercise of the power of assessment. The Commissioner appealed to the High Court. The Court unanimously allowed the appeal and held that Justice Finn was correct to dismiss the section 39B application. It held that the Commissioner did not apply the ITAA to facts known to be untrue, there was no absence of bona fides regarding the second amended assessment, and there was no jurisdictional error vitiating that assessment. The Court rejected any conclusion that the Commissioner knowingly engaged in double counting. Australian Tax Office documents showed that the second amended assessment was issued on the footing that a compensatory adjustment could later be made, depending on the outcome of the Part IVC proceedings. The Court held that if errors in assessment occurred, they were within, not beyond, the exercise by the Commissioner of the powers of assessment given by the ITAA and would be considered in the pending Part IVC proceedings. Absent any deliberate maladministration by the Commissioner, sections 175, 175A and 177(1) of the ITAA together provided that the validity of an assessment was not affected by failure to comply with the ITAA. However, the dissatisfied taxpayer could (and Futuris did) object in the manner set out in Part IVC of the TAA. In the circumstances, the Court held that the pending Part IVC proceedings should have led the Full Court to refuse to make a declaration about the amended assessment.
+HIGH COURT OF AUSTRALIA 14 March 2018 MICHAEL JAMES IRWIN v THE QUEEN [2018] HCA 8 Today, the High Court unanimously dismissed an appeal from a decision of the Court of Appeal of the Supreme Court of Queensland that the jury's verdict that the appellant was guilty of one count of unlawfully doing grievous bodily harm was not unreasonable or unsupported by the evidence. The appellant's conviction arose from a confrontation between the appellant and the complainant which resulted in the complainant's left hip breaking in three places. The appellant's account of the confrontation was that he had pushed the complainant in the chest, causing the complainant to stumble back three or four metres and fall "reasonably hard" onto the ground. That account was consistent with medical evidence that the complainant's hip injury was a high-energy fracture. The fracture required a high degree of force and was consistent with the complainant being pushed and then falling directly onto his left side on a hard surface with some speed. The complainant gave a different account of the confrontation. Parts of the complainant's account were inconsistent with the medical evidence and the evidence of an independent witness, and that account was very likely to have been rejected. Section 23(1) of the Criminal Code (Q) provides that a person is not criminally responsible for an event that the person does not intend or foresee as a possible consequence, and that an ordinary person would not reasonably foresee as a possible consequence. The appellant accepted that the trial judge had correctly directed the jury as to the effect of s 23(1). The appellant appealed his conviction to the Court of Appeal, however, on the basis that the jury could not rationally have excluded the possibility that an ordinary person in the appellant's position would not reasonably have foreseen the possibility of an injury of the kind sustained by the complainant as a possible consequence of pushing the complainant in the manner described by the appellant. The Court of Appeal dismissed the appeal, stating that an ordinary person in the appellant's position "could have foreseen" that the complainant might suffer a serious injury such as a fractured hip from a push involving "a considerable degree of force". By grant of special leave, the appellant appealed to the High Court on grounds including that the Court of Appeal had erred by applying the test of whether an ordinary person could, rather than would, have foreseen the possibility of the kind of injury suffered by the complainant. The High Court held that there is a difference between what an ordinary person would and could reasonably foresee: the former involves a degree of probability whereas the latter is a matter more akin to mere possibility. Therefore, the Court of Appeal should not have expressed the test in the terms it did. The High Court held, however, that there was no reason to doubt that the jury had adhered to the trial judge's proper directions as to the effect of s 23(1), and no cause to doubt the reasonableness of the verdict. The High Court further held that the Court of Appeal had not erred by stating that the appellant had pushed the complainant with "a considerable degree of force", or by its observation that there were "equally open" interpretations of the evidence before the jury. Accordingly, the appeal was dismissed.
+HIGH COURT OF AUSTRALIA Manager, Public Information 26 May 2010 MINISTER FOR IMMIGRATION AND CITIZENSHIP v SZMDS & ANOR [2010] HCA 16 A majority of the High Court held today that the reasons of the Refugee Review Tribunal ("the Tribunal") for rejecting a Pakistani citizen's claim to fear persecution on the ground of his homosexuality were not illogical or irrational so as to give rise to a jurisdictional error. The first respondent arrived in Australia on 3 July 2007 and applied for a Protection (Class XA) visa on 16 August 2007 on the basis of his fear of persecution in Pakistan due to his homosexuality. A delegate of the Minister for Immigration and Citizenship refused his application and the Tribunal affirmed the delegate's decision. Although a citizen of Pakistan, the first respondent had largely resided in the United Arab Emirates ("the UAE") from 2004, before seeking protection in Australia. He claimed that, whilst in the UAE, he developed an attraction to members of the same sex and commenced a relationship with another male. He also claimed that he and that male then commenced a relationship with a third man. That relationship ended after the third man bashed and threatened the other two when confronted over certain issues. The Tribunal was not satisfied that the first respondent was in fact a homosexual who feared persecution for two key reasons. The first was his return to Pakistan for three weeks in May-June of 2007 and the second was his failure to seek asylum when he briefly visited the United Kingdom in 2006. The Tribunal found that these two actions were inconsistent with the first respondent's claim to fear persecution in Pakistan. The first respondent was unsuccessful in his appeal to the Federal Magistrates Court but was successful in a further appeal to the Federal Court (Moore J). The Federal Court found that the Tribunal fell into jurisdictional error by reaching a conclusion on illogical and irrational grounds. The Migration Act 1958 (Cth) ("the Act") requires the Minister, their delegate, or the Tribunal upon review of a decision, to either refuse or to grant a visa depending on whether or not they are "satisfied" that the conditions for that visa are met. Moore J held that the Act requires the Minister, their delegate, or the Tribunal, to come to that state of satisfaction on, amongst other things, logical and rational grounds. Failure to do so amounts to a jurisdictional error, reviewable by a court. His Honour found that the Tribunal's reasoning was illogical and irrational in that it assumed others in Pakistan would discover that the first respondent was a homosexual during the brief period of his visit without making findings as to how that could be and that, in light of the first respondent's explanation, there was no logical connection between his failure to apply for protection in the United Kingdom and his fear of persecution in Pakistan. An appeal by the Minister to the High Court was successful. By majority, the Court held that it was open to the Tribunal to reject the first respondent's claimed fear of persecution on the grounds that it did. Even though reasonable minds may differ as to whether the first respondent's conduct was such as to be inconsistent with his claimed fear, this alone was not enough to suggest that the reasoning of the Tribunal was so illogical or irrational as to amount to a jurisdictional error.
+HIGH COURT OF AUSTRALIA 9 March 2005 AMCOR LIMITED v CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION, NEVILLE GEORGE ANDERSON AND THE MINISTER FOR EMPLOYMENT AND WORKPLACE RELATIONS MINISTER FOR EMPLOYMENT AND WORKPLACE RELATIONS v CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION, NEVILLE GEORGE ANDERSON AND AMCOR LIMITED The transfer of employees from Amcor to one of its subsidiaries in a corporate restructure did not entitle the employees to redundancy payments, the High Court of Australia held today. Until 1998, Amcor owned four paper mills, with the employees covered by a 1997 certified agreement between Amcor and the CFMEU. Amcor transferred the paper mills to a wholly owned subsidiary, Paper Australia Pty Ltd, but Amcor continued to employ the workers. In 2000 Amcor went through a demerger to concentrate on packaging, with its paper manufacturing business transferred to another subsidiary, PaperlinX Ltd, which was floated as a public company. Amcor gave notice terminating employment from 31 March 2000 in all Paper Australia businesses. Paper Australia, which was to become a wholly owned subsidiary of PaperlinX, wrote to all employees offering employment on the same terms and conditions, with all benefits carried over from Amcor, including those related to length of service and accrued leave entitlements. The offer was accepted by reporting for duty at their first shift on or after 1 April 2000 and virtually all employees did so. The CFMEU claimed the workers were entitled under the certified agreement to redundancy payments due to the jobs with Amcor being terminated, regardless of whether they were offered immediate work with another company. The Federal Court and the Full Court of the Federal Court agreed. Amcor and the Minister, who intervened in the Full Court, appealed to the High Court. Amcor argued that they were not compelled to pay out the workers unless their positions in the business were abolished, whereas the positions remained unaffected by the demerger. The High Court unanimously allowed the appeals. It held that none of the positions involved in the paper manufacturing business became redundant. Neither the sale of Amcor’s assets nor the later termination of employment by Amcor meant that the work undertaken by the employees was no longer required by the company which conducted the business in which the positions existed. Their new employer, Paper Australia, owned and operated the business in which they worked before the demerger. As no job became redundant the redundancy provision in the certified agreement was not engaged.
+HIGH COURT OF AUSTRALIA Public Information Officer 9 October, 2003 HOYTS PTY LIMITED v DIANE BURNS The High Court of Australia today unanimously allowed an appeal by Hoyts from a New South Wales Court of Appeal decision that the cinema operator was liable for injuries incurred by a patron who injured her back when she did not notice her seat was in the upright position. Ms Burns, a teacher’s aide, helped supervise a group of disabled children on an outing to the Hoyts cinema complex at Bankstown in Sydney in March 1997. The cinema had automatically retracting seats. During the movie, the four-year-old boy Ms Burns was looking after became very agitated and crawled rapidly away. She left her seat to retrieve the boy who was was screaming and kicking as she sat down without noticing the seat had become upright again. Ms Burns injured her spine when it struck a metal bar under the seat as she fell. No other such incident had been recorded by the Bankstown complex, which was then 10 years old and could seat more than 2,400 people. Ms Burns sued Hoyts for negligence, claiming that if signs had been placed inside or outside the cinema she would have read them and known to check whether the seat was up. In the NSW District Court, Judge Susan Gibb held Hoyts was not negligent. The NSW Court of Appeal unanimously allowed Ms Burns’s appeal and held that signs warning that the seats retracted automatically should have been displayed in the foyer. Hoyts appealed to the High Court. The Court held that the Court of Appeal had not given sufficient regard to the manner in which Ms Burns came to give evidence about warning signs, in effect as an afterthought. It was far from clear that such warnings would have been heeded and the Court of Appeal had not considered what Ms Burns herself would have done while her attention was distracted by a distressed child.
+HIGH COURT OF AUSTRALIA TJUNGARRAYI & ORS v STATE OF WESTERN AUSTRALIA & ORS; KN (DECEASED) AND OTHERS (TJIWARL & TJIWARL #2) v STATE OF WESTERN AUSTRALIA & ORS [2019] HCA 12 17 April 2019 Today the High Court unanimously allowed two appeals from decisions of the Full Court of the Federal Court of Australia. The issue in the appeals was whether petroleum exploration permits granted under the Petroleum and Geothermal Energy Resources Act 1967 (WA) and mineral exploration licences granted under the Mining Act 1978 (WA) fell within the meaning of the word "lease" in s 47B(1)(b)(i) of the Native Title Act 1993 (Cth) ("the NTA"). Each of the two appeals before the High Court arose out of a claim for a determination of native title by a claim group. In each claim there were parcels of unallocated Crown land occupied by claim group members. Parts of each claim area intersected with parts of the areas covered by petroleum exploration permits or mineral exploration licences ("the exploration tenements"). In each claim the traditional laws and customs acknowledged and observed by the native title claim group in relation to the claim area conferred rights to possession, occupation, use and enjoyment of the claim area to the exclusion of all others. The right to exclusive possession had been extinguished by acts of partial extinguishment that occurred before the enactment of the NTA, but non-exclusive rights to access, use and remain on the claim area remained recognisable as native title rights. Generally speaking, when native title rights and interests are extinguished, the extinguishment is permanent. The rights and interests do not revive even if the act that caused the extinguishment ceases to have effect. However, s 47B of the NTA provides that any historic extinguishment of native title rights and interests is to be "disregarded" for the purposes of a claim for a determination of native title rights and interests over vacant Crown land. Section 47B(1)(b)(i) provides that the provision does not apply if the relevant area of land is "covered by a ... lease". In each claim the claim group argued that the right to exclusive possession could be recognised as a native title right if the historic extinguishment of that right could be disregarded under s 47B. The State of Western Australia argued that s 47B did not apply to the extent that the relevant areas were covered by the exploration tenements because each such tenement was a "lease" within the exclusion in s 47B(1)(b)(i). In the Federal Court of Australia, the primary judge in each matter held that the relevant exploration tenements were not "lease[s]" within the meaning of s 47B(1)(b)(i). On appeal, the Full Court of the Federal Court in each matter disagreed, holding that the relevant exploration tenements were each a "lease" within the meaning of the provision. The Full Court relied principally on s 242(2), which relevantly provides that "[i]n the case only of references to a mining lease, the expression lease also includes a licence ... or an authority". By grant of special leave, both claim groups appealed to the High Court. The High Court, by majority, held that the extended definition of "lease" in s 242(2) only applies where there is a textual reference to a "mining lease". As s 47B(1)(b)(i) contains no textual reference to a "mining lease", s 242(2) does not apply to that provision. Accordingly, and because the exploration tenements could be leases for the purposes of the NTA only if s 242(2) operated to produce that result, the majority held that the exploration tenements were not "lease[s]" within the meaning of s 47B(1)(b)(i).
+HIGH COURT OF AUSTRALIA 21 October 2005 CSR LIMITED AND MIDALCO PTY LTD v JARRADD EDDY AS ADMINISTRATOR AD LITEM REPRESENTING THE ESTATE OF THE LATE JOHN LEONARD THOMPSON A person who has suffered personal injury cannot recover special damages on account of a loss of capacity to care for a disabled family member, the High Court of Australia held today. Mr Thompson claimed that he had developed malignant mesothelioma as a result of exposure to asbestos dust and fibre while working in a factory owned by CSR and Midalco in Adelaide between 1960 and 1963. CSR ran the factory while Midalco supplied asbestos from the Wittenoom mine. The companies admitted liability. Mr Thompson was diagnosed in 2002 and died in November 2003, aged 61. He sued the two companies in the New South Wales Dust Diseases Tribunal, which in April 2003 awarded him damages of $465,899.49, including $165,480 for Mr Thompson’s loss of capacity to care for his disabled wife, Beverley May Thompson. Mrs Thompson suffered from osteoarthritis and was unable to undertake heavy domestic duties. Mr Thompson performed these tasks until he became too debilitated. The $165,480 was a head of damages known as Sullivan v Gordon damages and was the subject of the appeal by CSR and Midalco. The NSW Court of Appeal rejected CSR and Midalco’s application for leave to re-argue Sullivan v Gordon, a 1999 NSW decision, and upheld this aspect of the damages. The companies appealed to the High Court. The Court unanimously allowed the appeal and held that Sullivan v Gordon should be overruled. The Court held that Sullivan v Gordon losses should be covered by general damages rather than as a head of special damages.
+HIGH COURT OF AUSTRALIA 17 August 2017 PLAINTIFF S195/2016 v MINISTER FOR IMMIGRATION AND BORDER PROTECTION (CTH) & ORS [2017] HCA 31 Today the High Court unanimously held that certain past and potential future actions of the Commonwealth, its officers, and the Minister for Immigration and Border Protection ("the Minister") were not invalid or precluded under the Constitution or under the Migration Act 1958 (Cth) ("the Act") by reason of the decision of the Supreme Court of Papua New Guinea in Namah v Pato (2016) SC1497 ("the Namah decision"). On 9 October 2012, the Minister designated Papua New Guinea ("PNG") a "regional processing country" under the Act ("the Ministerial Designation"). The plaintiff is an Iranian national who arrived in Australia at Christmas Island on 24 July 2013. As an "unauthorised maritime arrival" ("UMA"), he was taken to PNG on 26 August 2013 pursuant to a direction made by the Minister ("the Ministerial Direction"). The plaintiff has since resided at the Manus Regional Processing Centre ("the Manus RPC"), which has at all relevant times been operated by Broadspectrum (Australia) Pty Ltd ("Broadspectrum") in accordance with an agreement between Broadspectrum and the Commonwealth ("the Broadspectrum contract"). Following an unsuccessful application by the plaintiff to be recognised as a refugee under PNG law, the relevant PNG Minister ordered the plaintiff's removal from PNG and the plaintiff remains in custody pending removal. On 26 April 2016, the Supreme Court of PNG delivered the Namah decision, finding that treatment of UMAs at the Manus RPC contravened provisions of the PNG Constitution and was unsupported by PNG law. In the High Court, the parties stated questions of law in the form of a special case, asking whether certain actions of the Commonwealth, its officers, and the Minister were invalid or precluded in light of the Namah decision. Those actions included: the making of the Ministerial Designation; the entry by the Commonwealth into a "Regional Resettlement Arrangement" and associated agreements with PNG, including a Memorandum of Understanding ("MOU") regarding the transfer, processing and resettlement of UMAs; the entry by the Commonwealth into the Broadspectrum contract; the making of the Ministerial Direction; the taking of the plaintiff to PNG; and future actions the Commonwealth and its officers might take to assist PNG in removing the plaintiff from PNG and keeping him in custody pending removal. The parties also stated a more general question as to whether the Commonwealth's authority under s 198AHA of the Act to undertake conduct in respect of regional processing arrangements in PNG depended upon whether those arrangements were lawful under the law of PNG. The plaintiff submitted that the Constitution denies to the Commonwealth any legislative or executive power to authorise or take part in activity in another country which is unlawful according to the domestic law of that country. The plaintiff also submitted that the effect of the Namah decision was to deny to the MOU and the Regional Resettlement Arrangement the character of an "arrangement" within the meaning of s 198AHA of the Act, with the result that the Commonwealth's actions were not supported by s 198AHA. The High Court held that neither the legislative nor the executive power of the Commonwealth is constitutionally limited by any need to conform to the domestic law of another country and that the past and future actions challenged by the plaintiff were not invalid or precluded. The Court also held that, even if the MOU and the Regional Resettlement Arrangement were beyond the power of PNG under its Constitution, each remained an "arrangement" within the scope of s 198AHA because the authority conferred by that section does not depend upon the lawfulness of government action under the law of a foreign country. The Court answered the questions stated in the special case adversely to the plaintiff.
+HIGH COURT OF AUSTRALIA 10 April 2013 SZOQQ v MINISTER FOR IMMIGRATION AND CITIZENSHIP & ANOR [2013] HCA 12 Today the High Court unanimously allowed an appeal from a decision of the Full Court of the Federal Court of Australia, which held that the appellant was not a person to whom Australia owed "protection obligations" for the purposes of the Migration Act 1958 (Cth) ("the Migration Act"). The appellant is an Indonesian national from Irian Jaya who was active in the Free Papua Movement. In 1973 he was detained and tortured by Indonesian officials and, in 1975, he was seriously injured after being shot by Indonesian soldiers. The appellant was granted temporary entry into Australia in June 1985 and was granted a protection visa in January 1996. While travelling to Indonesia to visit his father in September 1996, the appellant was detained and assaulted by members of the Indonesian military. The appellant escaped and returned to Australia. Back in Australia, the appellant pleaded guilty to a charge of manslaughter for which he was sentenced in September 2001 to seven years' imprisonment with a non-parole period of two years and six months. The Minister cancelled the appellant's protection visa in March 2003, in accordance with the "character test" provisions of the Migration Act. In December 2008, the Minister determined that it was in the public interest to allow the appellant to make a further application for a protection visa. A delegate of the Minister considered the application and determined that, although the appellant had a well-founded fear of political persecution should he be returned to Indonesia, Australia owed him no "protection obligations" under the Migration Act because he constituted a danger to the community, having been convicted of a "particularly serious crime". The delegate's determination was affirmed by the Administrative Appeals Tribunal ("AAT"), the Federal Court and the Full Court of the Federal Court. The determination made by the Minister's delegate and the decisions of the AAT and the courts below proceeded on the footing that because the appellant had been convicted of a "particularly serious crime", Australia owed him no "protection obligations" for the purposes of s 36 of the Migration Act. That was contrary to the 2005 decision of the High Court in NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 222 CLR 161; [2005] HCA 6. The Court unanimously held that the proceedings in the courts below miscarried. It ordered the AAT to review, according to law, the original decision of the Minister's delegate to refuse the appellant a protection visa.
+HIGH COURT OF AUSTRALIA 1 October 2004 The High Court of Australia today upheld the validity of New South Wales legislation dealing with the determination of minimum sentences of prisoners whom trial judges had recommended never be released. Mr Baker, now 56, and Kevin Gary Crump were convicted in the New South Wales Supreme Court in 1974 of the shooting murder of Ian Lamb, whom they robbed of $20, near Narrabri in NSW in November 1973 and conspiracy to murder of Virginia Morse a few days later. Mr Baker had worked on the farm on which Mrs Morse, her husband and three children lived near Collarenebri in north-west NSW. When Brian Morse was absent, Mr Baker and Mr Crump stole his car and two firearms, abducted Mrs Morse and took her over the border into Queensland. During a period of 20 hours, they tortured and raped Mrs Morse then shot her through the eyes. In sentencing them, Justice Robert Taylor told them: “I believe you should spend the rest of your lives in jail and there you should die. If ever there was a case where life imprisonment means what it says … this is it.” Under section 13A of the Sentencing Act (since repealed by the Crimes (Sentencing Procedure) Act), prisoners serving life sentences could apply to the Supreme Court to determine a minimum period before being eligible for parole. But where a judge recommended against release, a prisoner had to have served at least 20 years and the Court had to be satisfied that “special reasons” justified a determination of a minimum term. The Court was required to give substantial weight to recommendations and comments by the trial judge. When Mr Baker applied for a determination, Justice Greg James was not satisfied that special reasons existed. Mr Baker had argued that his good conduct in jail, his strong prospects of rehabilitation and the fact that Mr Crump had his sentence determined in 1997 (before section 13A was amended to include the “special reasons” requirement) justified a determination. Mr Baker appealed unsuccessfully to the Court of Criminal Appeal, then appealed to the High Court. The Court held that the NSW Parliament was entitled to treat prisoners such as Mr Baker as exceptional cases. The Parliament had the power to create a special regime for the most serious offenders and to select non-release recommendations as the criterion for distinguishing them from other offenders. The requirement of special reasons did not lack meaning or content. Mr Baker failed to show that establishing special reasons was a futile charade and that no application could succeed. He failed to show that determining an application under section 13A of the Sentencing Act was not an exercise of judicial power. The High Court, by a 6-1 majority, dismissed the appeal.
+HIGH COURT OF AUSTRALIA 12 September 2018 MIGHTY RIVER INTERNATIONAL LIMITED v BRYAN HUGHES & DANIEL BREDENKAMP AS DEED ADMINISTRATORS OF MESA MINERALS LIMITED & ANOR; MIGHTY RIVER INTERNATIONAL LIMITED v MINERAL RESOURCES LIMITED & ORS [2018] HCA 38 Today the High Court published reasons for orders it made on 19 June 2018 dismissing two appeals brought by Mighty River International Ltd ("Mighty River") from decisions of the Court of Appeal of the Supreme Court of Western Australia. Mesa Minerals Ltd ("Mesa Minerals") was placed into voluntary administration and administrators were appointed. At the second meeting of creditors, a majority of creditors voted in favour of entry into a deed of company arrangement ("the Deed"). The Deed was executed in the terms proposed by the administrators. Amongst other things, the Deed provided for a moratorium on creditors' claims; required the administrators to conduct further investigations and report to creditors concerning possible variations to the Deed within six months; and provided that no property of Mesa Minerals be made available for distribution to creditors. Mighty River, a creditor of Mesa Minerals, brought proceedings in the Supreme Court of Western Australia claiming that the Deed was void. Its claim was heard together with a claim brought by another creditor, Mineral Resources Ltd, that the Deed was not void. At first instance, Master Sanderson dismissed Mighty River's claim and made a declaration that the Deed was not void. The Master held that the Deed was consistent with the object of Pt 5.3A of the Corporations Act 2001 (Cth); that s 444A(4)(b) did not require some property to be made available to pay creditors' claims; and that the use of a "holding" deed of company arrangement was one "gateway" to extend the period for convening a second creditors' meeting beyond the timeframe set by s 439A(5), the other being a court order under s 439A(6). Mighty River appealed to the Court of Appeal, which dismissed the appeals. By grants of special leave, Mighty River appealed to the High Court. In essence, it made two submissions. First, the Deed was not a valid deed of company arrangement, principally because it was an agreed extension of time that had not been ordered by a court under s 439A(6) and was contrary to the object of Pt 5.3A. Secondly, the Deed should have been declared void under s 445G(2) for contravening ss 438A(b) and 439A(4), or s 444A(4)(b), or both. A majority of the High Court held that the Deed was a valid deed of company arrangement. It had been formally executed in compliance with Pt 5.3A. The Deed created and conferred genuine rights and duties. It did not involve an impermissible sidestepping of s 439A(6) as it only had the incidental effect of extending the time for the administrators' investigations. The provision of a moratorium while Mesa Minerals' position was further assessed was consistent with the object of Pt 5.3A. A majority of the High Court also held that the Deed was not required to be declared void under s 445G(2). Section 444A(4)(b) did not require the Deed to specify some property to be available to pay creditors' claims, and the administrators had formed and expressed the opinions required by s 438A(b) and, at the relevant time, s 439A(4).
+HIGH COURT OF AUSTRALIA 15 August 2018 HFM043 v THE REPUBLIC OF NAURU [2018] HCA 37 Today the High Court unanimously allowed an appeal from the Supreme Court of Nauru. The High Court held that the Supreme Court of Nauru erred in holding that s 31(5) of the Refugees Convention Act 2012 (Nr) made it futile to remit the appellant's application for merits review to the Refugee Status Review Tribunal ("the Tribunal"). The appellant applied to the Secretary of the Department of Justice and Border Control of Nauru ("the Secretary") to be recognised as a refugee in January 2014. The Secretary determined that the appellant was not a refugee and that she was not owed complementary protection. In March 2015, the Tribunal affirmed the Secretary's determination. The appellant appealed to the Supreme Court of Nauru. Prior to the determination of her appeal, the appellant married Mr B, who had been recognised as a refugee. The appellant's solicitors sent an email to the Republic of Nauru's Refugee Status Determination Lawyer informing the Government of Nauru of her "dependency on her husband" and attaching submissions and statements in support of her "Application for Derivative Status". A document entitled "Refugee Determination Record" issued to the appellant in August 2016 stated that the Secretary had determined that she was a refugee. There was no dispute that this document refers to the appellant's derivative status as a dependant of her husband. On 9 June 2017, the Supreme Court of Nauru held that the Tribunal had made an error of law by failing to adjourn the hearing so that the appellant could obtain a full medical report. The Supreme Court of Nauru made an order dismissing the appellant's appeal on the basis that it would be futile to remit the matter to the Tribunal "due to the operation of s 31(5)". Section 31(5) provides that an application for merits review by the Tribunal "that has not been determined at the time the person is given a Refugee Determination Record, is taken to have been validly determined at that time". The appellant appealed as of right to the High Court. The High Court held that s 31(5) did not apply to the appellant. Section 31(5) applies only to persons who have been given a "Refugee Determination Record" as defined by s 3 of the Refugees Convention Act, which confines the meaning of that term to a document issued under s 6(2A). The document issued to the appellant in August 2016 was not a document issued under s 6(2A), as that provision came into effect on 23 December 2016 and was not given retrospective effect. The High Court set aside the orders of the Supreme Court of Nauru and remitted the matter to the Tribunal for determination according to law.
+HIGH COURT OF AUSTRALIA 20 April 2007 Public Information Officer COMMONWEALTH OF AUSTRALIA v JOHN GRIFFITH CORNWELL The loss caused by incorrect superannuation advice given to Mr Cornwell in 1965 did not arise until his retirement in 1994 so his negligence action was not defeated by the ACT statute of limitations, the High Court of Australia held today. In 1962 Mr Cornwell began working for the Commonwealth as the spray painter in the transport section of the former Department of the Interior at the Kingston bus depot in the ACT. He was classified as a temporary employee but employed full-time. In 1987, Mr Cornwell’s job was reclassified as a permanent public service position and he became a member of the Commonwealth Superannuation Fund, established in 1976. In 1994, his employment was transferred from the Commonwealth to the ACT but he remained within the Commonwealth super scheme and transferred into a new fund established in 1990. Mr Cornwell retired at the end of 1994 and was paid super benefits based on his combined membership of the 1976 fund and the 1990 fund. He contended that, although classified as temporary, he had been eligible to join the original 1922 fund but that he had been dissuaded by misleading advice from applying. This was given by the transport section manager, Nelson Simpson, at a meeting in July 1965 and he had reasonably relied on that advice. Mr Simpson allegedly said Mr Cornwell was not entitled to join the super fund because he was an industrial and temporary employee. Mr Cornwell pleaded that the Commonwealth was vicariously liable for Mr Simpson’s advice and in reliance on that advice he had lost the opportunity to join the fund in 1965, when he would have become eligible after three years’ service as a temporary employee. If he had joined the fund in 1965, he would have been entitled on retirement after 29 years’ contributions to a pension of 44.1 per cent of his final salary. By joining in 1987, Mr Cornwell had seven years’ contributions which entitled him to a pension of only 12.6 per cent of his final salary. Under section 11 of the ACT Limitation Act, action must be brought within six years of the cause of action accruing. Mr Cornwell instituted action in the ACT Supreme Court in 1999 against the Commonwealth for various causes of action. Chief Justice Terence Higgins held that the cause of action for negligent misstatement was not statute-barred as it had not accrued until Mr Cornwell’s retirement date of 31 December 1994. He held that the Commonwealth was vicariously liable for Mr Simpson’s statement, which caused Mr Cornwell to suffer economic loss. Chief Justice Higgins entered judgment for Mr Cornwell for damages to be assessed. An appeal to the ACT Court of Appeal by the Commonwealth was dismissed. The Commonwealth appealed to the High Court. The Court, by a 6-1 majority, dismissed the appeal. It rejected the Commonwealth’s submission that Mr Cornwell first suffered loss when the 1976 scheme came into effect, and instead held that his loss was not necessarily and irretrievably sustained until his retirement in 1994. What was prospective before his retirement matured into actual loss only at the end of his service and he had met the statutory criteria for him to be entitled to a retirement benefit.
+HIGH COURT OF AUSTRALIA 1 September 2005 APLA LIMITED, MAURICE BLACKBURN CASHMAN AND ROBERT LESLIE WHYBURN v LEGAL SERVICES COMMISSIONER OF NEW SOUTH WALES AND STATE OF NEW SOUTH WALES The High Court of Australia today upheld the constitutional validity of a NSW ban on lawyers advertising their services in relation to personal injury claims. The plaintiffs challenged the validity of Part 14 of the Legal Profession Regulation made under the Legal Profession Act. Part 14 makes it both an offence and professional misconduct for a barrister or solicitor to publish an advertisement that includes any reference to personal injury or to any legal service that relates to an entitlement to recover money for personal injury. The regulation, which took effect in May 2003, was one of several measures said by the NSW Government to be designed to reduce the volume of personal injury litigation and the growing cost of public liability insurance premiums. The plaintiffs wish to run advertisements in newspapers, the Yellow Pages and trade union journals and on the internet and, in Maurice Blackburn Cashman’s case, to send letters to legally unrepresented people affected by faulty heart pacemakers to invite them to seek legal advice regarding a class action against the manufacturers. The plaintiffs contended that the Part 14 regulations are invalid because they infringe the constitutionally guaranteed freedom of communication on government and political matters; infringe the requirements of Chapter III of the Constitution and of the rule of law; infringe section 92 of the Constitution guaranteeing freedom of interstate trade, commerce and intercourse; exceed NSW’s legislative and regulatory powers by their operation beyond NSW; and are inconsistent with various Commonwealth laws. By a 5-2 majority, the Court rejected each of these contentions and upheld the validity of the regulations.
+HIGH COURT OF AUSTRALIA 11 May 2016 MILITARY REHABILITATION AND COMPENSATION COMMISSION v [2016] HCA 19 Today the High Court unanimously allowed an appeal from the Full Court of the Federal Court of Australia. The High Court held that the respondent, Mr May, did not suffer an "injury" as defined in s 4(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) ("the Act"). He was therefore not entitled to compensation under s 14 of the Act. Mr May enlisted in the Royal Australian Air Force ("the RAAF"). At the time he enlisted, he was healthy and fit. In the course of his employment with the RAAF, Mr May was required to undergo a series of vaccinations. He said that he suffered a series of adverse reactions to these vaccinations. Mr May subsequently applied under s 14 of the Act for compensation in respect of "low immunity, fatigue, illnesses, dizziness – immune system/whole body", which, he maintained, he sustained as a result of the vaccinations he received while he was employed with the RAAF. A delegate of the Military Rehabilitation and Compensation Commission ("the MRCC") denied Mr May's claim. The MRCC later reconsidered but affirmed the determination. Mr May then applied to the Administrative Appeals Tribunal ("the Tribunal") for a review of that second decision. The Tribunal accepted that Mr May was (and became shortly after joining the RAAF) "significantly disabled" by his condition, which it "loosely described" as "vertigo". However, the Tribunal concluded that Mr May had failed to establish his case: he had not demonstrated that he had suffered a physical injury amounting to a "sudden or identifiable physiological change" in the normal functioning of the body or its organs attributable to the vaccinations received while serving in the RAAF. Therefore, Mr May had not suffered an "injury (other than a disease)" for the purposes of par (b) of the definition of "injury" in s 4(1) of the Act. The Tribunal also held that he had not suffered a "disease" within par (a) of the definition of "injury" in s 4(1) of the Act. The Federal Court of Australia dismissed an appeal by Mr May, but the Full Court of the Federal Court allowed an appeal. By grant of special leave, the MRCC appealed to the High Court. In the High Court, Mr May did not challenge the Tribunal's conclusion that he did not have a "disease". Rather, Mr May contended that he suffered an "injury (other than a disease)" within par (b) of the definition of "injury" in s 4(1) of the Act. The Court held that Mr May did not suffer an "injury (other than a disease)" because the evidence did not establish the nature and incidents of any physiological or psychiatric change.
+HIGH COURT OF AUSTRALIA 9 February 2011 BRITISH AMERICAN TOBACCO AUSTRALIA SERVICES LIMITED v LAURIE & ORS [2011] HCA 2 Today the High Court prohibited a judge from hearing proceedings on the basis of a reasonable apprehension of bias, in circumstances where in earlier, unrelated, proceedings, that judge had made findings adverse to one party on an issue that was also likely to arise in the later proceedings. Mr Donald Laurie commenced negligence proceedings against British American Tobacco Australia Services Limited ("BATAS"). After his death from lung cancer in May 2006, the claim was continued by his widow, Mrs Claudia Laurie, who also brought negligence proceedings on her own behalf as his dependant. The claim alleged that Mr Laurie had smoked BATAS tobacco products for a number of years and that throughout this period BATAS knew, or ought to have known, that smoking tobacco products could cause lung cancer. A significant issue in the proceedings was whether BATAS had adopted and implemented a document management policy for the purpose of destroying documents adverse to its interests. The claim was listed before Judge Curtis in the New South Wales Dust Diseases Tribunal. In earlier, unrelated, proceedings involving BATAS ("the Mowbray proceedings"), Judge Curtis found that BATAS drafted or adopted a document management policy for the purpose of a fraud. The finding was an interlocutory finding made for the purpose of determining whether the evidence of Mr Gulson, a former in-house counsel and company secretary of BATAS, was admissible in those proceedings. Judge Curtis noted in his reasons that the application was only interlocutory and that whether the document management policy was implemented for the purpose of destroying prejudicial documents remained a live issue for trial. However, the Mowbray proceedings did not proceed to trial. It was likely that Mr Gulson would also be called in Mrs Laurie's proceedings to prove the allegations concerning the document management policy. BATAS made an application to Judge Curtis asking that he disqualify himself from hearing Mrs Laurie's claim on the ground that his findings in the Mowbray proceedings gave rise to a reasonable apprehension of bias. Its application relied on a principle requiring that a judge not sit to hear a case if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question that the judge is required to decide. Judge Curtis refused the application. BATAS sought leave to appeal to the New South Wales Court of Appeal, and also commenced proceedings in that Court seeking an order prohibiting Judge Curtis from hearing or determining Mrs Laurie's claim. The Court of Appeal dismissed both summonses. The High Court by majority allowed the appeal, and made an order prohibiting Judge Curtis from further hearing or determining Mrs Laurie's claim. The impression created by reading the judgment from the Mowbray proceedings was that the clear views there stated might influence Judge Curtis's determination of the same issue in Mrs Laurie's claim. Although Judge Curtis acknowledged in the Mowbray proceedings that different evidence could be led at trial, the High Court considered that his findings were otherwise expressed to be without qualification or doubt, and indicated extreme scepticism about BATAS's denials and strong doubt about the possibility of different materials leading to a different outcome. The Court held that, in the circumstances, a reasonable observer might apprehend that Judge Curtis would not bring an impartial mind to the question in Mrs Laurie's proceedings, even if different materials were presented. Pursuant to an undertaking given to the Court, BATAS was ordered to pay Mrs Laurie's costs.
+HIGH COURT OF AUSTRALIA 6 November 2019 DAMIEN CHARLES VELLA v COMMISSIONER OF POLICE (NSW) & ANOR [2019] HCA 38 Today the High Court answered questions in a special case, holding by majority that s 5(1) of the Crimes (Serious Crime Prevention Orders) Act 2016 (NSW) ("the SCPO Act") was validly enacted as it is not inconsistent with, or prohibited by, Ch III of the Constitution. Section 5(1) of the SCPO Act, read with s 6, empowers the District Court or Supreme Court of New South Wales to make an order, in civil proceedings, restraining the liberty of a person who has been convicted of a serious criminal offence or who has been involved in serious crime related activity, if the court is satisfied that there are reasonable grounds to believe that the making of the preventive order would protect the public by preventing, restricting or disrupting involvement by the person in serious crime related activities. On 5 October 2018, the Commissioner of Police commenced proceedings in the Supreme Court against the plaintiffs seeking orders under the SCPO Act to restrain and prohibit the plaintiffs, for two years, from various activities, including associating with persons associated with any Outlaw Motorcycle Gang, attending the premises associated with any Outlaw Motorcycle Gang; travelling in a vehicle between 9 pm and 6 am except in the case of genuine medical emergency; and possessing more than one mobile phone. The plaintiffs challenged the validity of s 5(1) of the SCPO Act on the basis that it was incompatible with the institutional integrity of the District Court and Supreme Court, relying upon the principles developed from the decision in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 ("the Kable principle"). A majority of the High Court held that there are six required steps before a court can exercise the power to grant a prevention order under ss 5 and 6 of the SCPO Act. The steps are: (i) the natural person must be at least 18 years old; (ii) the person must have been convicted of, or there be proof of involvement in, serious criminal offending; (iii) the court must assess whether there is a real likelihood that the person against whom the order is sought will be involved in serious crime related activity; (iv) the court must consider whether the facts establish reasonable grounds to believe that the potential order would prevent. restrict or disrupt serious crime related activities; (v) the order must be appropriate for the purpose of protecting the public by preventing, restricting or disrupting further serious criminal related activities; and (vi) the court must consider whether any appropriate order should be made. The High Court has previously held that other preventive order regimes, which involve a court making assessment of the likelihood of future possibilities and the appropriateness of orders to prevent the risk eventuating, do not infringe the Kable principle, including preventive orders concerning terrorism, sexual offenders and organised crime. The majority explained that when making a prevention order, the Court has substantial judicial discretion and is not acting at the behest of the executive. There is nothing antithetical to the judicial process, and nothing that could impair the institutional integrity of a State Supreme Court, in open-textured legislation, such as the SCPO Act, that establishes broad principles that are to be developed and applied by the courts. In fact, there are good reasons why such powers, if they are to exist, should be exercised by the judiciary. Therefore, s 5(1) of the SCPO Act is not invalid.
+HIGH COURT OF AUSTRALIA 15 June 2005 ROBERT JOHN STRONG v THE QUEEN The New South Wales Court of Criminal Appeal had not fallen into error in upholding a finding that Mr Strong was an habitual criminal, the High Court of Australia held today. Mr Strong, 46, of Armidale, was charged with intimidation, based on writing sexually suggestive letters from prison to a woman he barely knew, and with stalking, based on pursuing the woman after his release. He moved in opposite the woman’s house and shouted abuse and sexual suggestions to her, causing her fear and anxiety. Mr Strong, from a deprived background and with a history of drug abuse, had spent almost his entire adult life in custody. He had been diagnosed with borderline retardation, mental and personality disorders, and mental illness. Mr Strong pleaded guilty to the offences. In 2001 in the Armidale District Court, Judge David Freeman sentenced him to four years’ imprisonment for the intimidation and five years for stalking. The sentences were partly cumulative and partly concurrent, so totalled eight years with a non- parole period of six years, and took into account two other summary offences. The Crown later applied for Mr Strong, who had several convictions for assaults against women, to be pronounced an habitual criminal under the Habitual Criminals Act. Judge Freeman made the pronouncement and sentenced him a maximum 14 years’ jail, to be served concurrently with the other sentences. No non-parole period is available under the Act. The Court of Criminal Appeal (CCA) allowed an appeal by Mr Strong against the sentences for the substantive offences and re-sentenced him to a total of seven years’ jail with a five-year non-parole period. The CCA dismissed an appeal against the pronouncement that he was an habitual criminal but allowed an appeal against the 14-year sentence, reducing it to eight years. Mr Strong appealed to the High Court on the ground that the CCA, having upheld the appeal against sentence for the substantive offences, was obliged to address first the question of whether a pronouncement should be made at all under the Habitual Criminals Act rather than just redetermining the sentence. He argued that, having quashed the sentences imposed by Judge Freeman for the substantive offences, the CCA was obliged to consider afresh both aspects of the decision under the Act, that is, the pronouncement and the sentence. The point was not raised in the CCA. The High Court, by a 3-2 majority, dismissed the appeal. It held that the CCA had taken into account fresh evidence in three new psychiatric reports about Mr Strong’s mental condition and had clearly considered whether using the Act to protect the public was justified. The majority held that if the point now raised in the High Court had been raised in the CCA it would not have affected the outcome.
+HIGH COURT OF AUSTRALIA 17 October 2018 ETA067 v THE REPUBLIC OF NAURU [2018] HCA 46 Today the High Court unanimously dismissed an appeal from the Supreme Court of Nauru. The Court held that the Supreme Court was correct to find that the Refugee Status Review Tribunal ("the Tribunal") had not failed to "act according to the principles of natural justice", as required by s 22(b) of the Refugees Convention Act 2012 (Nr) ("the Refugees Act"). The appellant is a citizen of Bangladesh. Until he left Bangladesh, the appellant had always lived in the same suburb. In 2013, the appellant arrived in Australia as an unauthorised maritime arrival and was subsequently transferred to the Republic of Nauru. In 2014, the appellant applied to the Secretary of the Department of Justice and Border Control ("the Secretary") under s 5 of the Refugees Act to be recognised as a refugee on the basis that he feared harm by reason of his affiliation with the Bangladesh Nationalist Party ("BNP") and his actual or imputed opposition to the Awami League political group. The Secretary refused that application. The appellant applied to the Tribunal for review of the Secretary's decision. The Tribunal found that the appellant had not suffered harm amounting to persecution in the past by reason of an imputed political opinion and was also not satisfied that his fear of persecution, by reason of his political opinion, was well-founded. The Tribunal further considered that even if it accepted that some harm might befall the appellant on return to Bangladesh, that harm would be "very localised". The Supreme Court affirmed the decision of the Tribunal. The Supreme Court rejected the appellant's contention that the Tribunal had breached the requirement in s 22(b) of the Refugees Act to act according to the principles of natural justice, in determining whether he had a well-founded fear of persecution, by failing to assess relevant evidence provided by the appellant in relation to assaults by supporters of the Awami League against persons who had refused to join, or attend meetings with, the Awami League ("the Awami League Assault Evidence"). Having rejected that contention, the Supreme Court considered it unnecessary to address the appellant's second contention that, in determining that the appellant could relocate elsewhere, the Tribunal had not given the appellant an opportunity to comment on whether he was ever a formal member of the BNP. The appellant appealed as of right to the High Court, raising substantially the same grounds as were before the Supreme Court. The High Court held that there was no error on the part of the Tribunal in relation to the Awami League Assault Evidence and the Supreme Court was correct to reject that complaint. The absence of an express reference to that evidence did not justify an inference that it was not considered, and the Awami League Assault Evidence was not material to the assessment of the well-foundedness of the appellant's fear. Having found that there was no error in the Tribunal's conclusion that the appellant did not have a well-founded fear of persecution, the Court concluded that the issues relevant to relocation need not be considered.
+HIGH COURT OF AUSTRALIA 8 October 2014 TAJJOUR v STATE OF NEW SOUTH WALES HAWTHORNE v STATE OF NEW SOUTH WALES FORSTER v STATE OF NEW SOUTH WALES [2014] HCA 35 Today the High Court by majority upheld the validity of s 93X of the Crimes Act 1900 (NSW) which makes it an offence habitually to consort with convicted offenders. Section 93X provides that any person who habitually consorts with convicted offenders, after having been given an official warning in relation to each of those offenders, is guilty of an offence, punishable by imprisonment, fine, or both. In Australian law, to "habitually consort" is understood to mean to seek or accept association or to keep company with persons of a particular class. Section 93W further provides that, in the relevant provisions of the Act, "consort" means consort in person or by any other means, including by electronic or other form of communication. Section 93Y provides that certain forms of consorting are to be disregarded if the person accused of consorting satisfies the court that the consorting was reasonable in the circumstances. Three plaintiffs separately charged with an offence against s 93X brought proceedings in the Supreme Court of New South Wales seeking a declaration that s 93X is invalid. Those proceedings were removed into the High Court. Each plaintiff alleged that s 93X is invalid because it impermissibly burdens the freedom of communication concerning government and political matters implied in the Commonwealth Constitution. Two of the plaintiffs further alleged that s 93X is invalid because it infringes a freedom of association which they said should be found to be implied in the Constitution, and because the provision is inconsistent with Australia's obligations under the International Covenant on Civil and Political Rights ("the ICCPR"). By majority the High Court upheld the validity of s 93X. The Court accepted that the provision effectively burdens the implied freedom of communication about government and political matters. But the majority of the Court held that s 93X is not invalid because it is reasonably appropriate and adapted, or proportionate, to serve the legitimate end of the prevention of crime in a manner compatible with the maintenance of the constitutionally prescribed system of representative government. The High Court unanimously concluded that the provisions of the ICCPR, where not incorporated in Commonwealth legislation, impose no constraint upon the power of a State Parliament to enact contrary legislation. Each member of the High Court who considered it necessary to answer the question about a free-standing freedom of association concluded that no such freedom is to be implied in the Constitution.
+HIGH COURT OF AUSTRALIA 16 December 2009 DION ROBERT TAIAPA v THE QUEEN [2009] HCA 53 Manager, Public Information The defence of compulsion under the Queensland Criminal Code provides that an accused person is not criminally responsible for conduct that would otherwise involve criminal offending if he or she reasonably believes that there is no other way to escape the carrying out of a threat of serious harm or detriment. If an accused raises the defence of compulsion he or she must be able to point to some evidence capable of amounting to reasonable grounds for the belief, the High Court held today. Dion Taiapa was arrested in July 2006 when the police located 364 grams of methylamphetamine and over $28,000 in cash during a search of the vehicle in which he was travelling. The drug was estimated to be valued between $459,000 and $1.15 million, depending upon how it was sold. At his trial Mr Taiapa gave evidence that he owed a debt of $60,000 to two men, Tony and Salvatore, who had supplied him with drugs in the past. They had come to his home, threatened him and his pregnant de facto wife with a gun and demanded repayment. Mr Taiapa's mother agreed to lend him $29,000, however his offer of this amount and repayment of the balance by instalments was rejected by the two men. In addition to taking the $29,000 they instructed him to travel from Cairns to Sydney to collect two parcels, which Mr Taiapa understood would contain prohibited drugs. They again threatened to harm him, his wife and his mother if he did anything stupid, and they specifically instructed him to not report the matter to the police. At his trial Mr Taiapa relied on the defence of compulsion. He gave evidence that he believed he had no option other than to comply with Tony and Salvatore's demands. He said that he had not reported the threats to the police because he had insufficient information to enable the police to identify Tony and Salvatore and he did not believe that police protection was "100 per cent safe". He described Tony and Salvatore as being "not your everyday drug dealers". He said that they were unlikely to fall into a trap. The trial judge withdrew the issue of compulsion from the jury on the basis that Tony and Salvatore were not in a position to execute their threats when Mr Taiapa collected and transported the prohibited drugs. Mr Taiapa was convicted on charges of unlawful trafficking and possession of a dangerous drug. He appealed to the Court of Appeal of the Supreme Court of Queensland, which found that the trial judge had erred in determining that the defence required that the person making the threat be in a position to carry it out when the offence was committed. However, the Court of Appeal said that Mr Taiapa had ample opportunity to alert the police to his predicament and it determined that there was no evidentiary basis for finding that his belief (that he could not otherwise escape the carrying out of the threat) was based on reasonable grounds. For this reason the Court of Appeal held that the trial judge had been correct to withdraw from the jury the issue of whether Mr Taiapa was acting under compulsion when he committed the offences. Mr Taiapa applied for special leave to appeal to the High Court and three judges of the Court referred his application to a bench of five judges. The High Court unanimously determined to grant special leave to appeal but to dismiss his appeal. The Court found that there was no reason to doubt the conclusion reached by the Court of Appeal. An unparticularlised concern that police protection may not be a guarantee of safety could not, without more, supply reasonable grounds for a belief that Mr Taiapa had no option other than to break the law in order to escape the execution of the threats made by Tony and Salvatore.
+HIGH COURT OF AUSTRALIA 1 September 2021 DIRECTOR OF PUBLIC PROSECUTIONS REFERENCE NO 1 OF 2019 [2021] HCA 26 Today the High Court dismissed an appeal from a judgment of the Court of Appeal of the Supreme Court of Victoria on a reference by the Director of Public Prosecutions (Vic) ("the DPP") concerning the correct interpretation of recklessness in s 17 of the Crimes Act 1958 (Vic). Section 17 of the Crimes Act provides that a person who, without lawful excuse, recklessly causes serious injury to another person is guilty of an indictable offence. In 1995, in R v Campbell [1997] 2 VR 585, the Court of Appeal held that in order for a person to be convicted of recklessly causing serious injury under s 17, the prosecution must establish that the person foresaw that serious injury probably would result from the act or omission which in fact caused the serious injury. In 2017, in Aubrey v The Queen (2017) 260 CLR 305, the High Court cast doubt on the correctness of Campbell. The Court in Aubrey held that for the similar offence of maliciously inflicting grievous bodily harm under s 35(1)(b) of the Crimes Act 1900 (NSW), recklessness meant foresight of the possibility of harm. This appeal concerned the present correctness of Campbell. In February 2017, an accused was charged under s 17 of the Crimes Act. During the trial, the trial judge declined to direct the jury in relation to recklessness in accordance with Aubrey and, instead, directed the jury consistently with Campbell. The accused was acquitted by the jury. The DPP referred the correctness of Campbell as a point of law to the Court of Appeal for its opinion. The Court of Appeal unanimously decided that unless and until it is altered by legislation, the meaning of "recklessly" in s 17 of the Crimes Act is that stated in Campbell. A majority of the High Court found that the point of law was answered correctly by the Court of Appeal. When Parliament enacted s 17 of the Crimes Act the intention must have been to leave the development of the meaning of recklessness to the courts. The Court of Appeal took up that task in Campbell, adopting a foresight of probability test for recklessness which has since been followed in Victoria. Two legislative amendments have been made to the Crimes Act since Campbell was decided which are relevant to s 17. The first amendment, in 1997, increased the maximum penalty for the s 17 offence to 15 years' imprisonment. The second amendment, in 2013, revised the statutory definition of "serious injury" and inserted an aggravated form of the s 17 offence into the Crimes Act. Both amendments followed expert reviews and extensive consultation with key stakeholders in the criminal justice system. There was no suggestion in those reviews or consultations that the meaning given to recklessness in Campbell had caused any difficulty in directions to juries. By contrast, there could be real unfairness in departing from a long-standing decision of a State court which has been acted upon in such a way as to affect rights. Campbell should be followed unless and until it is altered by legislation.
+HIGH COURT OF AUSTRALIA 1 April 2004 WOOLCOCK STREET INVESTMENTS PTY LTD v CDG PTY LTD (formerly Cardno & Davies Australia Pty Ltd) AND JOHN CAMERON JOHNSON A company which bought a Townsville warehouse and office complex could not sue the consulting engineers who had originally designed the complex’s foundations when the building started to show structural defects, the High Court of Australia held today. In 1987 the trustee company for a property trust engaged Cardno and Davies to provide engineering services for the building project. Mr Johnson, a civil engineer with Cardno and Davies, was project manager. In 1992 Woolcock Street Investments bought the complex after having a building inspection carried out. The sale contract did not include any warranty that the building was free from defect, nor did the trustee company assign to Woolcock Street any rights it may have had in respect of such defects. In 1994 substantial structural distress appeared, due to settlement of the foundations designed by Cardno and Davies or the material below the foundations or both. Cardno and Davies and Mr Johnson denied they owed Woolcock Street a duty of care in designing the foundations and denied breach of any such duty. They said they advised the original owner to allow them to obtain soil tests but the owner told them to proceed without them and to use standard structural footing sizes. In the Queensland Supreme Court the parties consented to an order stating a case for the opinion of the Court of Appeal. The Court of Appeal held that Woolcock Street’s statement of claim disclosed no cause of action in negligence and concluded that although the 1995 High Court decision, Bryan v Maloney, established that the builder of a house may owe a duty of care to later purchasers, those who built or designed commercial buildings did not. (The decision in Bryan v Maloney has now been superseded in most states and territories by statutory schemes for protection of successive owners of dwellings.) Woolcock Street appealed to the High Court. The Court held that in cases involving only economic loss cases, vulnerability – in the sense of a plaintiff’s inability to protect itself from the consequences of a defendant’s lack of reasonable care – was an important consideration. Woolcock Street could have taken steps to ensure that the sale contract contained warranties or an assignment of any rights the original owner may have had in respect of claims for defects. Furthermore, it was not alleged that the engineers breached any obligation to the original owner. The owner had asserted control over the project, including any investigations the engineers might have undertaken. Unlike Bryan v Maloney, there was neither reliance by the owner nor the assumption of responsibility by the engineers. The High Court, by a 6-1 majority, dismissed the appeal.
+HIGH COURT OF AUSTRALIA 1 March 2017 BONDELMONTE v BONDELMONTE & ANOR [2017] HCA 8 Today the High Court published its reasons for dismissing an appeal with costs on 13 December 2016. The appeal concerned interim parenting orders made for the return of two children to Australia from New York and for their living arrangements upon their return. The High Court unanimously held that the primary judge, Watts J, did not err in exercising his discretion to make such orders. The appellant and first respondent, respectively the father and mother of two boys and a girl, separated in 2010. Parenting orders were made on 25 June 2014 providing that the parents were to have equal shared parental responsibility for the children and, relevantly, that a parent could take the children on an overseas holiday subject to certain conditions being met. In 2015, further orders were made requiring the children to engage in a Child Responsive Program and the parents to be interviewed by a family consultant. On 14 January 2016, the two boys were flown to New York for a holiday with the father. On 29 January 2016, the father informed the mother that he had decided to live indefinitely in the United States and that the boys would remain with him. As a result, the process established by the 2015 orders was not completed. The mother filed an application under the Family Law Act 1975 (Cth) to secure the boys' return. In deciding whether to make parenting orders, s 60CA requires the court to have regard to "the best interests of the child as the paramount consideration". In determining what is in the child's best interests, s 60CC(2)(a) provides that a primary consideration is "the benefit to the child of having a meaningful relationship with both of the child's parents". Section 60CC(3) provides for "[a]dditional considerations" including, in par (a), "any views expressed by the child and any factors ... that the court thinks are relevant to the weight it should give to the child's views". Watts J ordered the return of the boys to Australia. His Honour considered that determining the "best interests" of the children involved consideration of the children's relationships with their parents and each other, which were matters best dealt with in Australia via the mechanism established by the 2015 orders. Although accepting evidence that the boys wished to remain living with the father in New York, Watts J considered the weight of those views to be "weakened by the circumstances which have been contrived by the father". Watts J also ordered that, if the father did not return to Australia and the boys did not wish to live with the mother, they could live either in accommodation with supervision paid for by the father or separately with the mothers of respective friends of the boys' ("the alternative living arrangements"). The father appealed to the Full Court of the Family Court. The appeal was dismissed (Ryan and Aldridge JJ, Le Poer Trench J dissenting). By grant of special leave, the father appealed to the High Court. The High Court rejected the father's contention that Watts J erred in discounting the boys' expressed preferences to remain in New York because his Honour formed an adverse view of the father's actions. The extent to which the boys' views had been influenced by the father was relevant to the weight to be given to those views. The High Court also rejected the argument that Watts J was required to ascertain the boys' views as to the alternative living arrangements. Section 60CC(3)(a) only requires that the views which have been "expressed" by a child be considered; ascertaining the boys' views was not statutorily mandated. Further, as s 64C permits parenting orders to be made in favour of a parent of a child "or some other person", the orders for the alternative living arrangements could be made in favour of the mothers of the boys' respective friends.
+HIGH COURT OF AUSTRALIA Public Information Officer 27 February 2008 WALKER CORPORATION PTY LIMITED v SYDNEY HARBOUR FORESHORE AUTHORITY (two matters) Industrial land resumed for a public purpose was to be valued according to the compensation legislation, and this did not in the circumstances of this case involve valuing the land as unaffected by earlier local government proposals, the High Court of Australia held today. In 2002, NSW Premier Bob Carr announced that the State Government would begin negotiations with Caltex Petroleum to buy the 2.5-hectare headland, Ballast Point on the Birchgrove Peninsula in Sydney, to turn it from a fuel terminal to a harbourside park. McRoss Developments Pty Ltd (which became Walker Corporation Pty Ltd) had an option to purchase the site. Two months after Mr Carr’s announcement Walker exercised that option and contracts were exchanged. While the contract was still on foot, the Sydney Harbour Foreshore Authority compulsorily acquired the land. Caltex received as compensation $14,375,000, calculated by deducting from the $16,500,000 price $2,125,000 for remediation of the land, which Caltex would have had to perform under its contract with Walker. The Caltex compensation is not in dispute. The Valuer-General determined that Walker should be offered $10.1 million in compensation. Walker lodged an objection with the Land and Environment Court, contending that the market value was $81 million. The Land Acquisition (Just Terms Compensation) Act provides in section 55 that the factors to be considered in determining the amount of compensation include the market value of the land on the date of acquisition. Justice Angus Talbot ordered Walker should receive compensation of $43,555,138.50. This was calculated by deducting the cost of completing the contract of sale from an assumed market value of $60 million had the site been earlier zoned “residential”. In 1989 and 1994, Caltex sought to have the land rezoned from “waterfront industrial” to “residential” to permit construction of apartments. Leichhardt Council resisted those proposals and initiated a scheme for a harbourside park on the site. It did not exercise its own powers of acquisition and failed to obtain State and Commonwealth funding. Justice Talbot found that the market value had been constrained by the Council thwarting any change in zoning that would permit residential development. He held that maintenance of the industrial zoning had reduced the value of the land at the time of its resumption in 2002. On appeal by the Foreshore Authority to the NSW Court of Appeal, the matter was remitted to the Land and Environment Court. Justice Talbot again fixed compensation at $43,555,138.50. After a second appeal by the Foreshore Authority, the Court of Appeal again remitted the matter for assessment of the market value. It held that Justice Talbot was in error in his approach. Walker appealed to the High Court against the Court of Appeal’s two decisions. The High Court unanimously dismissed the appeals. Section 56 of the Compensation Act relevantly defines market value as the amount that would have been paid if the land had been sold by a willing but not anxious seller to a willing but not anxious buyer, disregarding any increase or decrease in the value of the land caused by the proposal to carry out the public purpose for which the land was acquired. The Court held that this reflected a policy to require a disregard only of that increase or decrease (as in this case) in value for which the resuming authority – the Foreshore Authority – is responsible. Leichhardt Council’s earlier conduct was not a part of the Foreshore Authority’s proposal to make the land public space. The case returns to the Land and Environment Court on the second remitter ordered by the Court of Appeal.
+HIGH COURT OF AUSTRALIA 8 March 2023 MITCHELL v THE KING; RIGNEY v THE KING; CARVER v THE KING; TENHOOPEN v THE KING [2023] HCA 5 Today, the High Court allowed four related appeals from a judgment of the Court of Appeal of the Supreme Court of South Australia and ordered that each appellant's conviction for murder be quashed and a new trial take place. The dispositive question in the appeals was whether liability for murder under s 11 of the Criminal Law Consolidation Act 1935 (SA) ("the Act") could be established by combining the common law doctrine of extended joint criminal enterprise ("EJCE") with constructive murder as provided for by s 12A of the Act. Section 12A extends liability for murder to a person who commits or agrees to an intentional act of violence causing death while acting in the course or furtherance of a major indictable offence punishable by imprisonment for ten years or more. EJCE applies where a party to a joint criminal enterprise foresees, but does not agree to, the possible commission of an incidental crime in the course of carrying out an agreement to commit an offence and continues to participate in the enterprise. The appellants were each convicted of murder following a trial in the Supreme Court of South Australia in which they were alleged to have made and executed an agreement to break and enter a residence for the purpose of stealing cannabis. The prosecution alleged that in the course of committing the indictable offence of criminal trespass, one or more of the participants violently assaulted the deceased causing his death. It was not the prosecution case that the murder of the deceased was within the scope of the appellants' joint criminal enterprise. Rather, the prosecution alleged that the doctrine of EJCE operated together with s 12A of the Act to make each of the appellants guilty of murder under s 11 of the Act because each had foreseen that, in the course of carrying out their agreement, one of them might have perpetrated an intentional act of violence. The trial judge directed the jury that the prosecution could establish a pathway to murder based on a combination of s 12A and EJCE by proving that the appellants contemplated the possibility of any intentional act of violence, including a strike to the back of the leg. The trial judge further directed that the prosecution need not prove that the appellants contemplated that one of them might commit the act of violence with intention to kill or cause really serious bodily harm. The Court of Appeal dismissed the appellants' appeals against conviction. The High Court held that EJCE and s 12A of the Act could not be relied upon in combination to create a new pathway to murder under s 11. Section 12A requires that a person commit or agree to an intentional act of violence, which cannot be proved by establishing derivative liability of a secondary participant under EJCE principles where the secondary participant foresaw the possibility of an intentional act of violence by another participant but did not agree to the act. To allow murder to be established by that pathway would dispense with the requirement of s 12A that the accused commit or be attributed an act causing the death of another or agree in the commission of the intentional act of violence, broadening the reach of s 12A beyond that supported by its text, context and purpose.
+HIGH COURT OF AUSTRALIA 2 October 2012 COMMISSIONER OF TAXATION v QANTAS AIRWAYS LIMITED [2012] HCA 41 Today the High Court held, by majority, that Qantas Airways Limited ("Qantas") was liable to pay goods and services tax ("GST") when it received fares on unclaimed flights. Qantas and its subsidiary Jetstar Airways Pty Limited ("Jetstar") provide domestic airline travel services. These airline travel services have variable fare rules and conditions of carriage. Not all passengers take the flight they book. Whether the fare the passenger has paid is refundable is determined by the applicable fare rules and conditions of carriage. Even if a refund can be claimed, not all passengers who have not taken the booked flight claim the refund. The Commissioner of Taxation ("Commissioner") assessed a GST liability on the fares received for flights not taken. The Administrative Appeals Tribunal affirmed the assessment. On appeal, the Full Court of the Federal Court held that as actual travel was the sole purpose of the transaction, there was no taxable supply if the travel does not occur. This meant a GST liability was not incurred. By special leave, the Commissioner appealed to the High Court of Australia. The High Court held, by majority, that Qantas made a taxable supply which attracted GST when it received fares whether or not the passenger took the flight that was booked. Flights were sold and bookings taken on the basis that Qantas would use its best endeavours to carry the passenger and baggage, having regard to the circumstances of the business operations of the airline. Consequently, even if the passenger did not actually travel, there was a taxable supply incurring GST liability and Qantas was liable to remit the GST received on fares for unclaimed flights to the Commissioner.
+HIGH COURT OF AUSTRALIA 15 June 2022 HILL v ZUDA PTY LTD AS TRUSTEE FOR THE HOLLY SUPERANNUATION FUND & ORS [2022] HCA 21 Today, the High Court unanimously dismissed an appeal from a decision of the Court of Appeal of the Supreme Court of Western Australia concerning the operation of reg 6.17A of the Superannuation Industry (Supervision) Regulations 1994 (Cth). That regulation relevantly prescribed standards for how a member of a regulated superannuation fund is to give notice requiring the trustee of the fund to pay the member's benefits to a nominated person on or after the member's death. The primary issue in the appeal was whether reg 6.17A applied to a self managed superannuation fund ("SMSF"). Zuda Pty Ltd ("Zuda") was the trustee of an SMSF known as the Holly Superannuation Fund ("the Fund"). Mr Sodhy and Ms Murray were each a member of the Fund and a director of Zuda. The relevant trust deed for the Fund was amended in 2011 to insert a clause described as a "binding death benefit nomination", according to which, if either member of the Fund died, Zuda was required to distribute the whole of the deceased member's balance in the Fund to the surviving member. Mr Sodhy died on 22 November 2016. Ms Hill, the only child of Mr Sodhy, commenced a proceeding in the Supreme Court of Western Australia, arguing that the binding death benefit nomination clause was of no force and effect on the basis that it did not comply with the standards prescribed by reg 6.17A. The Supreme Court summarily dismissed the proceeding on the basis that reg 6.17A did not apply to the Fund as an SMSF. The Court of Appeal concluded that there was no error in that holding and so dismissed an appeal from the order for summary dismissal. In reaching that conclusion, the Court of Appeal adopted a construction of reg 6.17A expressed by the Full Court of the Supreme Court of South Australia, on the basis that it was bound to follow the "seriously considered dicta" of an intermediate appellate court unless convinced that the other court's reasoning was "plainly wrong". The High Court held that reg 6.17A, properly construed, did not apply to an SMSF. That construction was consistent with the extrinsic materials and the purposes of reg 6.17A. The Court of Appeal was therefore correct in its conclusion, although it ought to have reached that conclusion by construing reg 6.17A for itself. Intermediate appellate courts and trial judges are not bound to follow obiter dicta of other intermediate appellate courts, although they would ordinarily be expected to give great weight to them.
+HIGH COURT OF AUSTRALIA 3 February 2005 MARTIN GRAEME COATES v THE QUEEN The High Court of Australia today ordered a new trial for Mr Coates in relation to admissions allegedly made to police while a video camera was switched off, but dismissed Mr Nicholls’s appeal against exclusion of evidence of out-of-court statements alleged to show bias by a witness. Mr Coates, 41, Mr Nicholls, 33, and Mr Coates’s girlfriend and Mr Nicholls’s housemate Amanda Kayelene Hoy were convicted in the Western Australian Supreme Court of the 1998 murder of Perth prostitute Clare Garabedian, who was to give evidence in an assault case against Mr Coates and Ms Hoy. Adam John Davis claimed he was offered $2,000 to give Ms Garabedian a “hot shot” (a heroin overdose) while posing as her client at a motel in the suburb of Rivervale. She shot up twice and while she was asleep Mr Davis rang Ms Hoy to say he needed more heroin which she left for him near the motel. Mr Nicholls and Mr Coates each rang to ask whether Mr Davis had killed Ms Garabedian. He told them he had not done so. Mr Davis said the pair arrived and Mr Nicholls held a pillow over her face, Mr Davis and Mr Coates each injected her with heroin, Mr Coates stood on her neck, Mr Davis cleaned away fingerprints (although his were later found), Mr Nicholls collected incriminating items, and Mr Coates wiped down Ms Garabedian’s body with a wet towel. Mr Davis pleaded guilty to murder and was sentenced to a minimum term of 15 years on an undertaking to testify against the others. Mr Coates and Mr Nicholls denied his version but the Crown also relied on admissions allegedly made by Mr Coates during a break in the videotaped interview with police, evidence that his brother-in-law provided a false alibi, evidence of motive, forensic evidence and phone records. Police officers gave evidence that during the 45-minute break in filming Mr Coates asked about his options and said he could not cope with jail. He allegedly said Mr Davis and Mr Nicholls had committed the murder while he was at home and said he wanted to do a deal to testify against the other two in exchange for the lesser charge of conspiracy to murder. When the video camera was back on, the officers did not ask Mr Coates to repeat his statements, which he later denied making. No notes were made until the next day and those notes have disappeared. The Supreme Court and Court of Criminal Appeal both held that the circumstances of the unrecorded admissions fell within an exception to the provision that admissions were inadmissible unless recorded on videotape. But the High Court, by a 4-3 majority, held that the circumstances did not constitute a reasonable excuse for the lack of recording and that the exception did not apply. The Court ordered that his conviction be quashed and a new trial be held. The Supreme Court excluded as hearsay evidence from Joseph Paul Ross that Mr Davis had told him that he had lied about Mr Coates and Mr Nicholls’s presence in the motel room and other aspects of their involvement. It did so on the basis of the rule that an answer given by a witness – in this case Mr Davis – to a question relating only to credibility or some other collateral matter is final and cannot be rebutted. The High Court held that the evidence could have been admitted to establish his possible bias or corruption. But because no detail of the conversation had been put in cross-examination so that Mr Davis had an opportunity to deal with the claims this ground of appeal failed. This was Mr Nicholls’s sole ground and the Court unanimously dismissed his appeal.
+HIGH COURT OF AUSTRALIA Public Information Officer 6 August, 2003 RODNEY NATHAN KING v THE QUEEN Mr King was convicted in the Western Australian District Court in December 1999 of aggravated burglary involving breach of a restraining order and deprivation of liberty, after holding his wife, Sandra King, captive for several hours. He was sentenced to seven years' jail. The prosecution case alleged that at the time of the offences in November 1998, the couple were separated. Mrs King had obtained a restraining order. Despite the order, she met her husband several times so he could see their children, then aged eight, five and three. After time at a women's refuge, Mrs King and the children moved to a house in Forrestfield, Perth, without telling her husband. Mr King discovered where she was living a week later and gained entry by saying he was a neighbour. When Mrs King opened the door, he knocked her to the ground then pulled her to her feet and slapped her. She ran from the house screaming but returned to the children. When she made a dash to the living room to call police he dragged her back to the kitchen, leading to the deprivation of liberty charge. Mr King took his family to two service stations for milk and cigarettes and to his workplace to collect his pay. Mrs King was eventually able to call police when he went outside to his son who had fallen off his bicycle. Mr King told police Mrs King had called him to ask him to fix her car so was at her house with her consent, but in a tape-recorded call from prison after his arrest he said another person had given him Mrs King's address. Mr King, who was mostly unrepresented at his trial, gave no evidence. Judge Peter Nisbet told the jury the prosecution bore the onus of proof and must satisfy the jury beyond reasonable doubt that Mr King's claim that he had Mrs King's consent was false. Judge Nisbet did not mention a consent defence under section 62 of WA's Restraining Orders Act under which Mr King may have borne the onus of proof on the balance of probabilities, had he been charged with that offence. On appeal, this was argued to be a misdirection. The Court of Criminal Appeal held that Judge Nisbet erred in not directing the jury on section 62 but held that there was no miscarriage of justice. Mr King appealed to the High Court. The High Court unanimously dismissed the appeal. Four members of the Court held that there was no error on the part of Judge Nisbet, and one held that there would have been no miscarriage of justice in any event.
+HIGH COURT OF AUSTRALIA 5 June 2013 [2013] HCA 27 Today the High Court unanimously dismissed Mr Robert Agius' appeal against his conviction in the Supreme Court of New South Wales for conspiring to dishonestly cause a loss to the Commonwealth, contrary to s 135.4(5) of the Criminal Code (Cth) ("the Code"). Mr Agius was charged with two counts of conspiracy. Both arose out of a single scheme to defraud the Commonwealth of taxation revenue which began in 1997 and continued until 2006. The first count alleged that he conspired with others to defraud the Commonwealth, contrary to ss 86(1) and 29D of the Crimes Act 1914 (Cth) ("the Crimes Act"), between 1 January 1997 and 23 May 2001. The second count alleged that he conspired with others to dishonestly cause a loss to the Commonwealth, contrary to s 135.4(5) of the Code, between 24 May 2001 and 23 October 2006. Mr Agius was charged with two separate counts because the relevant provision of the Crimes Act was repealed with effect from 24 May 2001. From 24 May 2001, the offence of conspiracy to defraud the Commonwealth was contained exclusively in s 135.4 of the Code. Mr Agius was convicted of both counts. By special leave, he sought to appeal to the High Court against his conviction on the second count. In this Court, he argued that the conduct criminalised by s 135.4(5) of the Code was the formation of a conspiratorial agreement. Mr Agius contended that he should not have been convicted on the second count because he had not entered into a second agreement after s 135.4(5) commenced. He also argued that the offence in s 135.4(5) could not be satisfied by his participation in an existing conspiratorial agreement, otherwise the section would be given retrospective effect. The High Court unanimously dismissed the appeal. The Court held that the offence in s 135.4(5) of the Code required the existence of, and participation in, an agreement. But the agreement did not need to be formed after s 135.4(5) commenced. Mr Agius' continued participation in the agreement was capable of constituting the offence. The Court also held that, because Mr Agius' offence was his continued participation in the conspiratorial agreement after s 135.4(5) commenced, the provision did not operate retrospectively.
+HIGH COURT OF AUSTRALIA 13 August 2014 ANTHONY CHARLES HONEYSETT v THE QUEEN [2014] HCA 29 Today the High Court unanimously allowed an appeal brought by Anthony Charles Honeysett against his conviction for armed robbery. In 2011, Mr Honeysett was convicted following a trial by jury in the District Court of New South Wales of the armed robbery of an employee of a suburban hotel. The robbery was recorded by closed-circuit television cameras ("CCTV"). The head and face of one of the robbers ("Offender One") was covered, as was the remainder of Offender One's body, save for a small gap between sleeve and glove. At trial, over objection, the prosecution adduced evidence from an anatomist, Professor Henneberg, of anatomical characteristics that were common to Mr Honeysett and Offender One. Professor Henneberg's identification of these characteristics was based on looking at the CCTV footage of the robbery and at images of Mr Honeysett taken while he was in police custody. Mr Honeysett appealed against his conviction to the Court of Criminal Appeal of the Supreme Court of New South Wales, submitting that Professor Henneberg's evidence was inadmissible evidence of opinion. The Court of Criminal Appeal agreed with the trial judge that Professor Henneberg's evidence was admissible because it was evidence of an opinion that was wholly or substantially based on his "specialised knowledge" within the meaning of s 79(1) of the Evidence Act 1995 (NSW). The Court accepted that Professor Henneberg's specialised knowledge was based on his study of anatomy and his experience in viewing CCTV images. By special leave, Mr Honeysett appealed to the High Court. On the hearing of the appeal, the prosecution did not maintain that Professor Henneberg had specialised knowledge based on his experience in viewing CCTV images. The prosecution relied solely on Professor Henneberg's knowledge of anatomy. The Court held that Professor Henneberg's opinion was not based wholly or substantially on his knowledge of anatomy: his opinion regarding each of the characteristics of Offender One was based on his subjective impression of what he saw when he looked at the images. As Professor Henneberg's opinion did not fall within the exception in s 79(1), the Court held that it was an error of law to admit the evidence. The Court quashed Mr Honeysett's conviction and ordered a new trial.
+HIGH COURT OF AUSTRALIA 8 February 2017 COMMISSIONER OF STATE REVENUE v ACN 005 057 349 PTY LTD [2017] HCA 6 Today the High Court unanimously allowed two appeals from a decision of the Court of Appeal of the Supreme Court of Victoria. The High Court held that the Commissioner of State Revenue ("the Commissioner") was not under a duty to issue amended land tax assessments and refund an excess amount of land tax that he had been paid. From 1990 to 2002, the respondent in each appeal, an owner of two adjoining properties ("the taxpayer"), was assessed for land tax under the Land Tax Act 1958 (Vic) ("the LTA"). Each assessment was paid. In 2007, the taxpayer transferred the properties to a related company. In 2012, a senior revenue officer of the Commissioner informed that related company that an error had been detected in land tax assessments for 2008 to 2011 – one of the adjoining properties had been the subject of land tax twice ("the duplication error"). The taxpayer formed the view that the 1990 to 2002 assessments contained the same duplication error, and sought to lodge, out of time, objections to those assessments under s 24A of the LTA. The Commissioner refused to consider the objections. The taxpayer requested the Commissioner to issue amended assessments for 1990 to 2002 pursuant to s 19 of the LTA. That request was also refused. The taxpayer commenced two proceedings in the Supreme Court of Victoria – the first sought mandamus to direct the Commissioner to issue amended assessments and to refund the excess amount with interest, and the second sought restitution of the excess amount with interest. The primary judge dismissed the first proceeding and, in the second, entered judgment for the Commissioner and otherwise dismissed the proceeding. The Court of Appeal allowed each appeal holding that, as the Commissioner knew alterations were necessary to ensure the completeness and accuracy of the assessments, he had a duty under s 19 of the LTA to issue amended assessments and refund the excess amount. The Court of Appeal also held that the Commissioner's duplication error deprived him of authority to retain the excess amount, and his refusal to issue amended assessments amounted to conscious maladministration. The Court of Appeal found that s 90AA of the LTA did not bar the proceedings, and made an order for mandamus directing the Commissioner to issue amended land tax assessments and to repay the excess amount to the taxpayer. By grant of special leave, the Commissioner appealed to the High Court. The High Court held that s 19 did not impose any duty on the Commissioner to issue amended assessments and refund the excess amount. The Court rejected the Court of Appeal's construction of s 19, which it held elevated s 19 to a source of refund or recovery, independent of the LTA's objection and refund provisions. As the proceedings were for the refund or recovery of "tax paid under, or purportedly paid under," the LTA, s 90AA applied to bar the proceedings brought by the taxpayer. The Court held there was no basis for a finding of conscious maladministration, and, as payment of the excess amount discharged a debt, the Court rejected the taxpayer's contention that the Commissioner was unjustly enriched. The Court allowed each appeal and set aside the orders of the Court of Appeal in each proceeding.
+HIGH COURT OF AUSTRALIA Public Information Officer 6 March 2008 TELSTRA CORPORATION LIMITED v COMMONWEALTH OF AUSTRALIA, AUSTRALIAN COMPETITION AND CONSUMER COMMISSION, PRIMUS TELECOMMUNICATIONS PTY LTD, OPTUS NETWORKS PTY LTD, CHIME COMMUNICATIONS PTY LTD, XYZED PTY LTD, POWERTEL LIMITED, REQUEST BROADBAND PTY LTD, NEC AUSTRALIA PTY LTD, MACQUARIE TELECOM PTY LTD, AMCOM PTY LTD, ADAM INTERNET PTY LTD AND AGILE PTY LTD The telecommunications access regime set out in the Trade Practices Act (TPA) did not amount to an acquisition of Telstra’s property, the High Court of Australia held today. Telstra asserted that contrary to section 51(xxxi) of the Constitution, which provides that Parliament has the power to make laws with respect to the acquisition of property on just terms, the access regime effected an acquisition other than on just terms of some of its local loops, the twisted pairs of copper or aluminium wire running between a local exchange and a consumer’s premises. Telstra has about 10.1 million local loops and about 5,120 local exchanges. The local loops are used for either unconditioned local loop services (ULLS), which have no equipment located along the loop, or line sharing services (LSS), which allows one supplier to use the low-frequency part of the spectrum for a voiceband service to an end user’s premises while another supplier uses the high-frequency non-voiceband part of the spectrum for high bandwidth services. Telstra began proceedings in the High Court against the Commonwealth, the ACCC and 11 other telecommunications service providers. Questions were reserved for consideration of the Court. The questions asked whether sections 152AL(3) or 152AR of the TPA in their application to ULLS and LSS were beyond the legislative competence of the Parliament by reason of section 51(xxxi). The Court unanimously dismissed Telstra’s case, holding that sections 152AL(3) and 152AR of the TPA were not invalid. The rights in Telstra’s assets were rights to use the assets in connection with the provision of telecommunications services but those rights were always subject to a statutory access regime which permitted other carriers to use its assets. Telstra had always owned and operated the assets within a regulatory regime by which other carriers have the right to connect their facilities to Telstra’s network and to obtain access to Telstra services.
+HIGH COURT OF AUSTRALIA 5 December 2018 COMMISSIONER OF STATE REVENUE v PLACER DOME INC (NOW AN AMALGAMATED ENTITY NAMED BARRICK GOLD CORPORATION) [2018] HCA 59 Today the High Court unanimously allowed an appeal from the Court of Appeal of the Supreme Court of Western Australia. The High Court upheld an assessment by the Commissioner of State Revenue that Placer Dome Inc ("Placer") was a "listed land-holder corporation" within the meaning of Div 3b of Pt IIIBA of the Stamp Act 1921 (WA), and that Barrick Gold Corporation ("Barrick") was liable to pay ad valorem duty in respect of its acquisition of Placer. Part IIIBA of the Stamp Act ensures that the buyer of an entity will be subject to ad valorem duty if the entity's underlying value is principally derived from land. Where an acquired entity is a "listed land-holder corporation" – relevantly, an entity entitled, at the time of acquisition, to land in Western Australia with an unencumbered value of not less than A$1 million and where 60 per cent or more of the value of all of its property is land – duty will be payable on the acquisition. The duty is calculated by reference to the value of the land and chattels in Western Australia to which the entity was entitled. Placer was a substantial gold mining enterprise with land and mining tenements around the world, including in Western Australia. Barrick’s acquisition of Placer was the largest transaction of its kind in the gold industry. The Commissioner issued an assessment to Barrick under the Stamp Act which relevantly stated that Placer was a "listed land-holder corporation" and that ad valorem duty was payable in respect of Barrick's acquisition of Placer. Barrick objected and the Commissioner disallowed the objection. Barrick applied for review by the State Administrative Tribunal. A key issue was whether the property of Placer, prior to its acquisition by Barrick, included legal goodwill with a value of US$6.506 billion, which was the amount allocated to goodwill in Barrick's financial statements. If that amount reflected the value of Placer's legal goodwill, then the value of Placer's land was less than the 60 per cent threshold. The Tribunal dismissed Barrick's review application. The Tribunal relevantly concluded that Placer’s assets did not include any material legal goodwill. Barrick appealed to the Court of Appeal. The Court of Appeal allowed Barrick's appeal on the bases that, among other things, the Tribunal had failed to distinguish between the value of Placer's land and the value of its business as a going concern; and Placer had substantial legal goodwill. By grant of special leave, the Commissioner appealed to the High Court. The High Court held that Barrick failed to establish that the value of all of Placer's land, as a percentage of the value of all of Placer's property, did not meet or exceed the 60 per cent threshold. Placer was a land rich company which had no material property comprising legal goodwill. Goodwill for legal purposes, as distinct from accounting purposes, was held to comprise those sources which generated or added value (or earnings) to a business by attracting custom. Custom remained central to the concept of legal goodwill. Barrick's contention that goodwill for legal purposes was or should be treated as synonymous with what it described as the "added value" concept of goodwill, or "going concern" value, was rejected.
+HIGH COURT OF AUSTRALIA 11 September 2019 CRAIG WILLIAM JOHN MINOGUE v STATE OF VICTORIA [2019] HCA 31 Today the High Court unanimously held, in answer to questions stated in a special case, that s 74AB of the Corrections Act 1986 (Vic) ("the Act") is not invalid, and that the question of the validity of s 74AAA of the Act did not arise in the circumstances of this case. In 1988, the plaintiff was convicted of the murder of Angela Rose Taylor, a constable in the Victorian police force, and was sentenced by the Supreme Court of Victoria to imprisonment for life. The Court set a non-parole period of 28 years, during which term the plaintiff would not be eligible to be released on parole. After the plaintiff's non-parole period ended, he applied to the Adult Parole Board ("the Board") for parole. That application has not yet been determined. On 14 December 2016, a new provision in the Act, s 74AAA, commenced operation. The plaintiff challenged the constitutional validity of s 74AAA (as then in force) in the High Court, and in Minogue v Victoria (2018) 92 ALJR 668; 356 ALR 363; [2018] HCA 27, the High Court held that s 74AAA did not apply to the plaintiff. On 1 August 2018, the Act was further amended to insert a new s 74AB and to substitute a new s 74AAA. The new s 74AB sets out "[c]onditions for making a parole order for Craig Minogue". It relevantly provides that the Board may make a parole order in respect of the plaintiff "if, and only if" the Board is satisfied that the plaintiff "is in imminent danger of dying or is seriously incapacitated and, as a result, he no longer has the physical ability to do harm to any person" and "has demonstrated that he does not pose a risk to the community", and the Board "is further satisfied that, because of those circumstances, the making of the order is justified". The substituted s 74AAA imposes the same conditions for making a parole order but applies to any person convicted of murder where the victim was a police officer. The plaintiff commenced proceedings in the High Court challenging the constitutional validity of s 74AB and, if it applied, s 74AAA. As the plaintiff was not in imminent danger of dying or seriously incapacitated, the plaintiff contended that the provisions, in their substantive operation and practical effect, legislatively resentenced him for the same crime, and that the resentencing was legislative punishment contrary to Ch III of the Constitution. The High Court held that s 74AB was relevantly indistinguishable from the provision upheld in Knight v Victoria (2017) 261 CLR 306; [2017] HCA 29. Section 74AB did not, in either its substantive operation or practical effect, impose additional or separate punishment on the plaintiff beyond the punishment imposed by the sentencing court in a way that involved the exercise of judicial power. A majority considered that s 74AB did no more than alter the conditions to be met before the plaintiff could be released on parole. The Court concluded that s 74AB was valid and applied to the plaintiff. It was therefore unnecessary for the Court to consider the validity of s 74AAA.
+HIGH COURT OF AUSTRALIA 23 June 2005 BRIAN WILLIAM POVEY v QANTAS AIRWAYS LIMITED AND BRITISH AIRWAYS PLC Mr Povey, who suffered from deep-vein thrombosis after an international flight, would not be able to establish a cause of action against the airlines, the High Court of Australia held today. Mr Povey, now 63, left Sydney for London on a Qantas flight on 15 February 2000 and arrived back on 20 February 2000 on a British Airways flight. Both seats were in economy class. Mr Povey alleged that during or immediately after these flights he suffered from DVT and consequently suffered a stroke, pulmonary embolism, chronic chest, lung and leg pain, breathing difficulties, impaired mobility, thrombosis of the right leg, and shock, anxiety and depression. He alleged the DVT was caused by the conditions of travel, including cramped seating from which it was not easy to move, discouragement of movement around the cabin, the serving of alcohol, tea and coffee, and the lack of warning about the risk of DVT and information on reducing that risk. Mr Povey commenced proceedings in the Victorian Supreme Court against Qantas and BA, claiming damages for personal injury pursuant to the Civil Aviation (Carriers’ Liability) Act and Article 17 of the Warsaw Convention on international air carriage. He also claimed damages for negligence from the Civil Aviation Safety Authority, but those proceedings are in abeyance, pending the outcome of the High Court appeal. Qantas and BA each sought summary judgment, alleging the claims made against them were bound to fail. The applications failed, and the airlines appealed to the Court of Appeal. By majority, it allowed the appeal and struck out Mr Povey’s pleading against the carriers and permanently stayed the action. He appealed to the High Court. Article 17 provides that a carrier is liable for the death, wounding or bodily injury suffered by a passenger, if the accident which caused the damage took place on board the aircraft or while embarking or disembarking. Mr Povey submitted that “accident” should be interpreted broadly to include omissions as well as acts occurring on an aircraft, and that it covered a failure to warn of the known dangers of DVT, possibly combined with the flight conditions. Both sides endorsed a formulation from the United States Supreme Court in Air France v Saks, that a passenger’s injury is caused by an accident only if caused by an unexpected or unusual event or happening that is external to the passenger. The High Court held that, on the facts alleged, Mr Povey’s condition was not caused by an accident. It held that Mr Povey’s allegations, if proved, would not establish a cause of action against the carriers. The Court, by a 6-1 majority, dismissed the appeal. One Justice would have allowed the appeal in part.
+HIGH COURT OF AUSTRALIA 13 April 2022 ZAGI KOZAROV v STATE OF VICTORIA [2022] HCA 12 Today, the High Court unanimously allowed an appeal from a decision of the Court of Appeal of the Supreme Court of Victoria. The appellant was employed by the respondent as a solicitor in the Specialist Sexual Offences Unit ("the SSOU") of the Victorian Office of Public Prosecutions. The primary question in the appeal was whether the respondent's failure to take reasonable measures in response to "evident signs" of the appellant's psychiatric injury from vicarious trauma suffered in that role caused the exacerbation and prolongation of the appellant's psychiatric injury. The appellant commenced employment in the SSOU in June 2009. Her work there involved "cases of an abhorrent nature involving child rape and offences of gross depravity". In February 2012, the appellant was diagnosed with post-traumatic stress disorder resulting from vicarious trauma which she had suffered in the course of employment. The appellant was later diagnosed with major depressive disorder as a corollary of her post-traumatic stress disorder. The appellant sued the respondent and was awarded damages for negligence at trial. On appeal, the Court of Appeal upheld the trial judge's finding that the respondent had been placed on notice of a risk to the appellant's mental health by the end of August 2011. However, the Court of Appeal rejected the trial judge's finding that, at the end of August 2011, the appellant would have accepted an offer to rotate out of the SSOU. On that basis, the Court of Appeal found that the respondent's breach of duty did not cause the exacerbation of the appellant's psychiatric injury between August 2011 and the appellant's departure from the SSOU in February 2012. The High Court found that the respondent had been placed on notice by the end of August 2011 that the appellant was at risk of harm from her work. The High Court also found that the Court of Appeal erred in rejecting the trial judge's finding that the appellant would have co-operated with steps to rotate the appellant out of the SSOU, had those steps been taken subsequent to occupational screening at the end of August 2011. The considerations supporting that conclusion included: the appellant's cooperative conduct in February 2012 in liaising with the respondent about her future role; her preparedness to be assessed by a psychologist in August 2011; and expert evidence led at trial that a very significant majority of people, if assessed as having a work-related psychiatric injury, and after having had the diagnosis and its relevant consequences explained to them, will accept the advice of a clinician in respect of that injury. The Court of Appeal thus erred in finding a lack of causation between the breach of duty and the appellant's injury.
+HIGH COURT OF AUSTRALIA 9 December 2004 WESTERN AUSTRALIAN PLANNING COMMISSION v TEMWOOD HOLDINGS PTY LTD A developer had no right to compensation for the Crown taking over ownership of a foreshore reserve, the High Court of Australia held today. Temwood in 1992 acquired an area on the coast south of Perth which it proceeded to subdivide and develop in 1993 as the Bayshore Garden Estate with houses, a primary school, a recreation reserve and other facilities. Thirty years earlier a 200-metre-wide 20-hectare strip running the length of the foreshore frontage of the land was reserved as parks and recreation area on the gazettal of the Metropolitan Region Scheme (MRS). This reservation did not divest ownership from the former owner, who was never paid compensation. The WA Town Planning and Development Act conferred a power of compulsory acquisition of land for a town planning scheme but that power was not taken up. The MRS forbade any development on the foreshore reserve with approval of the Planning Commission. In 1999 and 2000, Temwood lodged three applications with the commission for subdivision approval. Each was approved, subject to the condition that the foreshore reserve be ceded to the Crown free of cost and without any compensation paid. Temwood appealed to the Town Planning Appeal Tribunal against the Planning Commission tying the approvals to the condition. The tribunal dismissed the appeal. Temwood then appealed to the WA Supreme Court, arguing that the condition was invalid because the commission had no power to impose it and it was imposed for the improper purpose of defeating Temwood’s subsisting right to compensation. Justice Carmel McLure dismissed the appeal, holding that Temwood did not have a vested right to compensation and the commission’s power was not improperly exercised. Temwood successfully appealed to the Full Court of the Supreme Court, which held that it had an unequivocal right to compensation. The Full Court held that this right was deferred until an event stipulated in section 36 of the MRS Act. This was either when the land was first sold following the date of reservation or when the commission refused an application for subdivision or approved the subdivision subject to conditions that were unacceptable. The Full Court held that the condition was beyond power and invalid and served no planning purpose and was not imposed as a bona fide exercise of the commission’s powers. The commission appealed to the High Court, contending that the Full Court erred in characterising the condition as an extinguishment of a statutory right, and the condition was imposed for a proper planning purpose of securing the land for public access. The High Court, by a 3-2 majority, allowed the appeal. It held that the tribunal did not err in law in approving the condition. The condition was one the tribunal had power to approve, was imposed for a legitimate planning purpose, and was reasonably related to the proposed development. Only the person who owned the land when the reservation was made could obtain compensation. Temwood as a subsequent purchaser of the land had no right to compensation.
+HIGH COURT OF AUSTRALIA 18 November 2004 LOCKWOOD SECURITY PRODUCTS PTY LTD v DORIC PRODUCTS PTY LTD The High Court of Australia today rejected challenges by Doric to claims made by Lockwood in its patent on a new type of door lock. Lockwood registered the patent on the lock which it said overcame the problems of deadlocks, which have a second key-operated lock inside needing to be unlocked separately to be able to exit the house. These were designed to prevent anyone breaking into the house from being able to open the door to remove bulky goods. However if a key was left in the outside lock or misplaced without the inner lock being unlocked, occupants could be trapped during a fire or other danger. The patent was for a deadlock that could open both the outside and inside locks simultaneously. The issue was whether the 33 claims defining the scope of the patent were fairly based in the patent specification within the meaning of section 40(3) of the Patents Act or whether the claims were wider. Claims 2 to 32 were built upon claim 1, so were narrower than claim 1. (Claim 33 was described by reference to drawings of the latch assembly.) The appeal to the High Court was conducted on the footing that the issue of fair basing might be determined in regard to claim 1 alone, so that if it were fairly based then all were. In October 2000 Lockwood’s lawyers accused Doric (and others) of infringing the patent. Doric commenced proceedings in the Federal Court of Australia alleging Lockwood had made unjustified threats of legal action against it and its distributors. Lockwood cross-claimed for infringement of 19 of the 33 claims. Doric in turn cross-claimed seeking revocation of the patent, alleging the patented lock was not novel, that it was obvious and involved no inventive step, that the specification did not fully describe the invention, that certain claims were unclear or not clear and succinct, and that none of the claims were fairly based on the matters described in the specification. Justice Peter Hely found Doric’s products infringed 14 claims, but he found that claims 1 to 32 were not fairly based on matters described in the specification and that nine claims were not novel. The Full Court dismissed an appeal, upholding Justice Hely’s conclusion that claims 1 to 32 were invalid. Lockwood appealed to the High Court. In that Court, neither side pursued issues other than fair basis. The High Court unanimously allowed the appeal, declared that claims 1 to 32 of the patent were fairly based on matters described in the complete specification, and remitted the matter to the Full Court of the Federal Court to determine the remaining issues not fully dealt with on appeal to that Court.
+HIGH COURT OF AUSTRALIA Public Information Officer 2 February 2009 K-GENERATION PTY LTD AND GENARGI KRASNOV v LICENSING COURT OF SOUTH AUSTRALIA AND COMMISSIONER OF POLICE The requirement for South Australian courts to maintain the confidentiality of criminal intelligence about an applicant for a liquor licence did not diminish their integrity as impartial and independent courts, the High Court of Australia held today. In October 2005, K-Generation applied to the SA Liquor and Gambling Commissioner for an entertainment venue licence. The director, Genargi Krasnov, wanted to set up a karaoke club called Sky Lounge KTV in premises on King William Street, Adelaide. The Police Commissioner intervened in July 2006 to introduce evidence and make representations to Liquor and Gambling Commissioner Bill Pryor, particularly on the issue of whether Mr Krasnov and his partner Adeline Tay were fit and proper persons to hold the licence. When Commissioner Pryor heard the application, the police submitted information classified by the Police Commissioner as “criminal intelligence”, pursuant to section 28A of the Liquor Licensing Act. The information was not disclosed to K-Generation. In January 2007, Commissioner Pryor, acting upon that information, refused the application on the ground that the grant of a licence would be contrary to the public interest. The SA Licensing Court affirmed his decision. K-Generation and Mr Krasnov instituted proceedings in the SA Supreme Court, seeking a declaration that section 28A was invalid for being incompatible with the exercise by the Licensing Court of the judicial power of the Commonwealth. They sought a declaration that the Licensing Court, in affirming Commissioner Pryor’s decision, had failed to observe the requirements of procedural fairness. They also applied for judicial review of the Licensing Court’s decision. The proceedings were referred to the Full Court of the Supreme Court, which by majority refused the application for the declarations and dismissed the application for judicial review. K-Generation and Mr Krasnov appealed to the High Court on the ground that the Full Court erred in finding section 28A to be valid, notwithstanding that it required the Licensing Court to hear and determine the review without disclosing the intelligence relied on by Commissioner Pryor in refusing the licence application. K-Generation and Mr Krasnov contended that section 28A deprived the Licensing Court of the reality and appearance of independence and impartiality required of a court exercising the judicial power of the Commonwealth. Their particular concern was with section 28A(5) which directs the Liquor and Gambling Commissioner, the Licensing Court and the Supreme Court to take steps to maintain the confidentiality of information classified as criminal intelligence. These steps may include receiving evidence and hearing argument about the information in private without the parties or their lawyers. The Court unanimously dismissed the appeal. It held that section 28A did not confer upon the Licensing Court or the Supreme Court functions incompatible with their integrity as courts of the States or with their constitutional role as courts exercising federal jurisdiction. Section 28A left to the courts decisions on whether facts existed to warrant classification of information as “criminal intelligence”, what if any weight should be placed on it, and what steps to take to preserve the confidentiality of that material. Section 28A(5) did not subject the courts to the direction of the executive or an administrative authority. Therefore it did not deny to the courts the constitutional character of independent and impartial tribunals.
+HIGH COURT OF AUSTRALIA Public Information Officer 9 March 2006 KEVIN PHILIP NUDD v THE QUEEN Mr Nudd complained that he was incompetently represented after he was convicted of being knowingly concerned in the importation of cocaine. The High Court of Australia dismissed his appeal, saying that no miscarriage of justice had occurred. In the Queensland Supreme Court in 2003, Mr Nudd was convicted and sentenced to 22 years’ jail with a non-parole period of 11 years. Police and Customs had intercepted the yacht Sparkles Plenty in Moreton Bay near Brisbane in May 2001 and found 89 kilograms of cocaine (plus some water- damaged packets of the drug). Mr Nudd was apprehended at the same time in Los Angeles where he was living and later extradited to Australia. Aboard the yacht were American father and son Peter and Gareth Jackson, who left Mexico on the yacht 12 months earlier. The yacht sat in Noumea for five months before making the final leg to Australia. During that time, the Jacksons spent three months in Sydney while buyers were sought, then returned to the US when their visas expired. While they were in Sydney, Mr Nudd’s sister attempted to obtain a false passport for Peter Jackson but was unsuccessful. Mr Jackson then obtained one in the US and flew to Noumea to sail the yacht to Australia. Police had installed listening devices in the Jacksons’ Sydney hotel room and taped telephone conversations, including 11 with Mr Nudd. He allegedly helped with arrangements to get the cocaine to Australia, put Peter Jackson in contact with another American, Jorge Velarde, who was to help with distribution of the cocaine, assisted Mr Jackson to obtain the false passport, and resolved various problems that arose. At the trial his defence counsel was under a misapprehension as to the elements of the offence which the trial judge, Justice Anthe Philippides, corrected. In the Court of Appeal, Mr Nudd claimed that his trial counsel had failed to give him proper advice, had made admissions of fact, had failed to object to prejudicial material in the telephone tapes being admitted, and should have called him to give evidence. The appeal was dismissed and Mr Nudd appealed to the High Court. The Court unanimously dismissed the appeal and upheld the Court of Appeal’s decision. The Court held that the case against Mr Nudd was very strong and any errors that might otherwise have caused the trial to miscarry were properly corrected by Justice Philippides. The Court held that there had been no departure from the requirements for a fair trial and that the tactics of inexperienced counsel had not affected the fairness of the process.
+HIGH COURT OF AUSTRALIA 4 March 2021 UMINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS v AAM17 & ANOR [2021] HCA 6 Today the High Court unanimously allowed an appeal from a decision of the Federal Court of Australia. The appeal concerned the Federal Court's conclusion that the circumstances of the Federal Circuit Court's delivery of an ex tempore judgment without translation denied the first respondent procedural fairness. The first respondent's application for a protection visa was rejected by a delegate of the appellant. The Administrative Appeals Tribunal affirmed the delegate's decision. The first respondent sought judicial review of the Tribunal's decision in the Circuit Court. The first respondent was not represented before the Circuit Court, but he asked for and obtained the assistance of an interpreter. The Circuit Court dismissed the application for judicial review and delivered an ex tempore judgment. The orders were translated for the first respondent's benefit, but the oral reasons for judgment were not. Written reasons for judgment were delivered after the first respondent filed his notice of appeal in the Federal Court. The Federal Court concluded that neither the written reasons of the Tribunal nor of the Circuit Court disclosed any error. However, the Federal Court allowed the appeal, set aside the orders made by the Circuit Court, and remitted the matter to that Court to be reheard by a different Circuit Court judge. The Federal Court considered that the Circuit Court's failure to have the oral reasons for judgment translated for the first respondent's benefit constituted a denial of procedural fairness, and that undoing this denial required the Circuit Court's judgment to be set aside. Allowing the appeal, the High Court accepted that as a matter of general fairness, rather than independent legal duty, the first respondent ought to have had the benefit of translated ex tempore reasons or written reasons at an earlier time. However, the High Court held that the final instance of any right or entitlement of the parties arising from the Circuit Court's obligation to afford procedural fairness occurred at the time the parties made their concluding submissions. As such, any delay in the provision of written reasons did not constitute a denial of procedural fairness before the Circuit Court. Further, any practical injustice that may have followed the delay in the Circuit Court's provision of written reasons could have been addressed by the Federal Court inviting the first respondent to amend his grounds of appeal to address the contents of the Circuit Court's published reasons, and, if necessary, adjourning the hearing of the appeal to permit this to take place. In that regard, the High Court noted that the first respondent never independently sought to amend his grounds of appeal to take account of the published reasons of the Circuit Court. Setting aside the Circuit Court's judgment and remitting the matter to be reheard went beyond that which was necessary to provide practical justice to the first respondent.
+HIGH COURT OF AUSTRALIA Public Information Officer 13 April 2006 STATE OF NEW SOUTH WALES v JOYCE AMERY, LYN BOVARD, MARGARET DENISE McHUGH, KAREN MORS, CHERYL O’LOAN, MARION PLATT, MEGAN Different pay scales for casual and permanent New South Wales teachers were not unlawfully discriminatory, the High Court of Australia held today. Permanent teachers are paid on a 13-level pay scale while the casual pay scale has only five levels. The highest casual rate equated to level eight on the permanent pay scale. Thirteen female teachers who have been supply casuals (some are now permanent again) argued that the differences in salary had the effect of indirectly discriminating against them on the ground of sex, in contravention of section 24(1)(b) of the Anti-Discrimination Act. Very few casual teachers are men. Most of the women had ceased teaching on a permanent basis while they brought up children or for other family reasons as they required greater flexibility in their working hours and did not wish to be posted to distant locations. The teachers claimed they performed work of a value equal to that performed by permanent teachers but they were not paid the same and this affected women teachers much more so than male teachers. The 13 women established their claims for damages in the Equal Opportunity Division of the NSW Administrative Decisions Tribunal. This decision was overturned by the tribunal’s Appeal Panel. The teachers appealed to the Court of Appeal which, by majority, allowed the appeal. The State appealed to the High Court. NSW argued that the statutory ground for claiming discrimination had not been made out. It also argued that the system was reasonable because permanent teachers were subject to statutory requirements that did not apply to casuals, including having to transfer anywhere in NSW; the 13 teachers had placed geographical limitations on their acceptance of permanent positions; and that the enterprise agreement and the award were relevant for determining reasonableness. The Court, by a 6-1 majority, allowed the appeal. Three members of the majority held that there was no requirement or condition on casuals that potentially contravened the Anti-Discrimination Act and three members of the majority held that the basis of differentiation between casual and permanent teachers had not been shown to be unreasonable.
+HIGH COURT OF AUSTRALIA 1 June 2011 AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION v LANEPOINT ENTERPRISES PTY LTD (RECEIVERS AND MANAGERS APPOINTED) [2011] HCA 18 The High Court today allowed an appeal brought by the Australian Securities and Investments Commission ("ASIC") against a decision of the Full Court of the Federal Court (North and Siopis JJ, Buchanan J dissenting). The Full Court had allowed an appeal by Lanepoint Enterprises Pty Ltd ("Lanepoint") from the decision of Gilmour J in which his Honour had, on an application by ASIC made under s 459P of the Corporations Act 2001 (Cth) ("the Act"), granted leave to ASIC to apply to the Court for a winding up order, and ordered that Lanepoint be wound up in insolvency pursuant to s 459A of the Act and that liquidators be appointed to the company. The Full Court accepted submissions by Lanepoint that the discretion exercised by Gilmour J under ss 459A and 467, to order that the company be wound up rather than to stay or dismiss the proceedings, had miscarried, and that the winding up application was an inappropriate vehicle for the determination of questions as to Lanepoint's solvency. At the hearing before Gilmour J, Lanepoint had sought to establish its solvency so as to rebut the presumption of insolvency, which arose by reason of s 459C(2)(c) of the Act, following the appointment of receivers and managers to Lanepoint by two creditor companies. However, Gilmour J held that certain transactions relied upon by Lanepoint to establish its solvency were ineffective to reduce its indebtedness and therefore Lanepoint could not rebut the presumption of insolvency. The High Court unanimously allowed ASIC's appeal from the decision of the Full Court, holding that the winding up application was not an inappropriate vehicle for the determination of Lanepoint's solvency, and that the discretion exercised by Gilmour J to order the winding up of Lanepoint did not miscarry. Lanepoint was unable to point to further evidence relevant to rebutting the presumption of insolvency that was not adduced at the hearing of the winding up application. Furthermore, it was not necessary that other parties be joined to the proceedings before the question of Lanepoint's solvency should be determined. Rather, the postponement of the winding up application would have added to the considerable delays which had already been encountered by ASIC since the application had been filed. The Court set aside the orders of the Full Court, and instead ordered that the appeal by Lanepoint to the Full Court be dismissed with costs.
+HIGH COURT OF AUSTRALIA 27 November 2013 BCM v THE QUEEN [2013] HCA 48 Today the High Court unanimously dismissed an appeal from a decision of the Court of Appeal of the Supreme Court of Queensland which upheld the conviction of BCM (the appellant) on two counts of unlawfully and indecently dealing with a child under 12 years who was for the time being under the appellant's care, contrary to s 210 of the Criminal Code (Q). The complainant, E, was six years old at the date of the offences. Her stepfather was the appellant's stepson. Three offences were alleged to have occurred on the one occasion when E was staying overnight at the appellant's home. When she was nine years old, E complained to her mother that during that stay the appellant had, on two occasions, put his hand underneath her underpants. These incidents formed the basis of the first two counts of indecently dealing with E. Eleven months after first telling her mother about the first two incidents, E complained of a third incident which was said to have occurred during the same stay at the appellant's house. This incident formed the basis of the third count of indecently dealing with E. The appellant was convicted of the first two counts after a trial by jury in the District Court of Queensland. The jury was unable to reach a verdict with respect to the third count. There were some inconsistencies between the various statements and cross-examinations of E. At the time of the trial E was 10 years old. The appellant appealed to the Court of Appeal on the ground that the verdicts reached by the jury were unreasonable, or could not be supported having regard to the evidence. The Court of Appeal dismissed the appeal. By special leave, the appellant appealed to the High Court. He argued that the Court of Appeal failed to assess the evidence given at trial and did not give adequate reasons for its conclusion that the verdicts were supported by evidence. The High Court unanimously dismissed the appeal. The Court held that the Court of Appeal's reasons did not sufficiently disclose its assessment of the capacity of the evidence to support the verdict against the appellant. The High Court undertook its own assessment of the whole of the evidence before the jury and held that the verdicts were not unreasonable or unsupported by the evidence. Any inconsistencies in E's evidence were to be considered in light of her age at the date of the offences and the intervals between the offending, her first interview with police and her evidence. The High Court held that the Court of Appeal was correct to treat as believable E's explanation that she was scared and embarrassed as the reason for her delay in coming forward about the third incident. None of the criticisms of E's evidence put by the appellant led to a conclusion that it was not open to the jury to convict him.
+HIGH COURT OF AUSTRALIA 3 June 2020 CUMBERLAND v THE QUEEN [2020] HCA 21 On 15 April 2020, the High Court made orders allowing an appeal from the Court of Criminal Appeal of the Supreme Court of the Northern Territory ("the CCA"), setting aside the orders of the CCA and ordering that the appeal to that Court be dismissed. Today, the High Court published its reasons for making those orders. The appellant pleaded guilty to six offences relating to the supply of drugs. He was sentenced in the Supreme Court of the Northern Territory (Blokland J) on 11 April 2018 to an aggregate term of four years and six months' imprisonment, to be suspended after two years. The Crown brought an appeal to the CCA on the ground that the sentence was manifestly inadequate. At the hearing on 18 July 2018, while the appellant argued the sentence was not inadequate, it was not submitted that any factor engaged the Court's residual discretion to dismiss the Crown appeal notwithstanding a conclusion that the sentence was erroneously lenient. On 31 July 2018, the appellant's counsel contacted the CCA to request an order for a report on the appellant's progress in prison ("the prison report"). On 1 August 2018, counsel was advised by return email that "the decision" was to be handed down the following morning and that the matters raised in the 31 July 2018 email could be addressed then. Later that day, the appellant's counsel sent a further email raising an issue relating to the operation of newly introduced provisions concerning minimum non-parole periods and suggested that those provisions may bring the residual discretion "into play". On 2 August 2018, the CCA announced that the Crown appeal was to be allowed and that it was likely to impose a revised sentence exceeding five years' imprisonment. Their Honours informed the parties that, before doing so, the question concerning the construction of the minimum non-parole provisions was to be referred to a five-member Bench. It was envisaged that, once the five-member Bench had delivered judgment, the CCA would make orders for the prison report. On 17 June 2019, the parties were advised that the decision of the five-member Bench was to be delivered two days later and, on 19 June 2019, the decision was handed down. Immediately following delivery of that judgment, without prior notice to the parties, the CCA re-constituted and delivered a decision re-sentencing the appellant to an aggregate sentence of eight years' imprisonment with a non-parole period of five years, five months and one week. The appellant's counsel was not afforded an opportunity to request a prison report or to make submissions on re- sentence or exercise of the residual discretion. Before the High Court, the respondent conceded that the CCA denied the appellant procedural fairness by failing to give an opportunity to present further material prior to re-sentencing, such that the appeal to the High Court must be allowed. However, it was submitted that the matter should be remitted to the CCA for the appellant to be re-sentenced, and that Blokland J's orders should not be reinstated in full, as the exercise of the residual discretion had not been "in play" before the CCA. The High Court held that in circumstances where: (1) the CCA was on notice of the appellant's desire to make a submission concerning the residual discretion; (2) there was a marked delay of eleven months between the relevant hearing and re-sentencing; and (3) at all times the respondent bore the onus of negating the existence of any reason why the CCA should not exercise the residual discretion, the CCA erred in deciding to allow the appeal before being in a position to make final orders, and further, by the time of re-sentencing in June 2019, the discretionary factors against allowing the Crown appeal were overwhelming. This was because at that stage, the appellant was within one week of automatic release under Blokland J's orders, and as preparation of the prison report, which would have taken two weeks, should have been ordered, the appellant would have been released by the time the CCA came to make final orders. Ultimately the respondent's concessions necessitated the setting aside of the CCA's orders, and consequently the release of the appellant nine and a half months after the date specified in Blokland J's orders. It followed that remittal to the CCA for re-sentencing, as contended for by the respondent, would have been futile as the only proper exercise of discretion at this stage was to dismiss the Crown appeal.
+HIGH COURT OF AUSTRALIA 8 December 2010 PORT OF PORTLAND PTY LTD v STATE OF VICTORIA [2010] HCA 44 In 1996, the State of Victoria entered into an agreement with two companies to sell the assets and business of the Port of Portland Authority. The appellant, in which each company owned a half- share, was nominated as the purchaser. Clause 11.4 of the agreement concerned the appellant's liability to pay land tax in respect of the land forming part of the purchase. Paragraph (a) of the clause provided that the State agreed to amend legislation governing the assessment and imposition of land tax to ensure that when the appellant was assessed for land tax the unimproved site value used as the basis for the assessment would not include the value of buildings, breakwaters, berths, wharfs, aprons, canals or associated works relating to a port. Paragraph (b) of the clause concerned the possibility that the legislative amendments did not become law and that the appellant was assessed to land tax at a higher rate than would have been the case if the amendments were law. In such a situation, the State would refund or allow to the appellant the difference between the two amounts. Legislation was passed to amend the definition of "improvements" in the Valuation of Land Act 1960 (Vic). The amendments came into effect some months after the date of the agreement. The last general valuation of the land before the agreement was in June 1993, and no subsequent general valuation occurred until January 2000. Supplementary valuations were made in the intervening period. The general valuation made in 2000 was significantly less than the supplementary valuations. The appellant attributed the reduction to the proper exclusion of the works specified in cl 11.4. It considered that those works had not been excluded from the value of the land used by the Commissioner of State Revenue to calculate the amount of land tax payable between 1997 and 2001. The appellant brought proceedings in the Supreme Court of Victoria seeking to enforce the agreement. The State successfully argued at trial and on appeal to the Court of Appeal that cl 11.4 constituted an executive act that purported to bind the Parliament and was thus beyond the State's power and void. On appeal to the High Court, the appellant placed its case on paragraph (b) of cl 11.4, which the High Court held was not a dispensation by the executive from the land tax legislation, as there was a statutory backing to its inclusion in the agreement. The appellant's principal argument was that the State had not ensured that the value of the land used to calculate the amount of land tax payable excluded the relevant works specified in paragraph (a) of cl 11.4 and was obliged by paragraph (b) to bear the extra land tax that the appellant claimed it had been assessed to pay. The High Court accepted the appellant's argument, holding that the State's obligation under cl 11.4 was not fulfilled by the mere passage of the amending legislation. The Court considered that, to meet the State's obligation, the amendments had to have enabled the exclusion of the specified works from the valuation used to calculate the land tax payable between 1997 and 2001. The Court held that no supplementary valuation could take into account the amendments to the Valuation of Land Act effected in 1996. It also held that the objection procedures available to the appellant to challenge a land tax assessment could not have resulted in an adjustment to the valuation to take into account those amendments. The State was therefore in breach of its obligation under cl 11.4. The Court allowed the appeal and remitted the matter to the Supreme Court of Victoria to determine the amount the appellant is entitled to recover from the State.
+HIGH COURT OF AUSTRALIA 16 December 2014 [2014] HCA 52 Today the High Court, by majority, dismissed an appeal against a decision of the Court of Appeal of the Supreme Court of Queensland and held that the appellant, who applied for the exclusion of certain property from forfeiture under the Criminal Proceeds Confiscation Act 2002 (Q) ("the Act"), had failed to discharge the onus placed upon him by s 68(2)(b) of the Act. The appellant was found by the police in possession of cash to the value of $598,325 ("the property"). The property was the proceeds of the sale of jewellery given to the appellant by his now deceased father. On the application of the State of Queensland under s 28(3)(a) of the Act, the Supreme Court made a restraining order under s 31(1) in relation to the property. The State made a further application to the Supreme Court under s 56(1) seeking the forfeiture of the property. Section 58(1)(a) provided that the Supreme Court must make a forfeiture order if the court finds it more probable than not that, for property restrained on an application made under s 28(3)(a), the respondent to the application had engaged in a serious crime related activity during the six year period prior to the application. The appellant had engaged in such an activity during that period. The appellant applied under s 65(2) of the Act for an order excluding the property from forfeiture. Section 68(2)(b) provided that the Supreme Court must, and may only, make an exclusion order if it was satisfied that it was more probable than not that the property to which the application related was not illegally acquired property. The primary judge dismissed the exclusion application. On the hearing of the application, the appellant gave evidence that he had been told by his father that the jewellery had been a gift to the appellant's great grandfather from Russian royalty. The primary judge found that that account of the provenance of the jewellery could not be true, with the consequence that it was not known how the appellant's father had come into possession of the jewellery. On that basis, his Honour held that the appellant had been unable to establish that the jewellery was not illegally acquired property. The term "illegally acquired property" was defined in s 22(2)(a) of the Act to include all or part of the proceeds of dealing with illegally acquired property. It followed that the property the subject of the exclusion application had not been shown, on the balance of probabilities, not to be illegally acquired property. An appeal to the Court of Appeal was dismissed. By special leave, the appellant appealed to the High Court. The Court unanimously rejected the appellant's contention that, in order to satisfy the requirements of s 68(2)(b) of the Act, he needed to prove no more than that the jewellery was not the proceeds of any illegal activity on his part. Rather, it was necessary for the appellant to satisfy the Supreme Court that it was more probable than not that the jewellery was not illegally acquired in his father's hands. By majority, the Court concluded that the appellant had failed to discharge that onus.
+HIGH COURT OF AUSTRALIA 3 March 2004 STUART ANTHONY SILBERT (as executor of the estate of Stephen Retteghy) v DIRECTOR OF PUBLIC PROSECUTIONS OF WESTERN AUSTRALIA The High Court of Australia has held that the property of a deceased person charged with a serious offence but not convicted before their death could be confiscated under Western Australian legislation. Three members of the Court heard Mr Silbert’s application for special leave to appeal in May 2003 but adjourned the matter to allow it to be heard by all seven members in December because of the constitutional issues that arose. The second hearing enabled Commonwealth and State attorneys- general to intervene and the matter was argued as if it was an appeal. The Court dismissed the special leave application in December and today issued written reasons for its decision. Mr Retteghy died in August 1997 while on remand awaiting trial in the WA District Court on charges of cultivation and intention to sell or supply cannabis. Mr Silbert is the executor of his estate. Each offence was a serious offence for the purpose of the Crimes (Confiscation of Profits) Act 1988. Mr Retteghy had pleaded not guilty to both counts. In November 2000 the WA Supreme Court ordered that his property and a pecuniary penalty, totalling about $500,000, be forfeited to the Crown. For the purposes of the Act, a dead person could be deemed to have been convicted of a serious offence. The Full Court of the Supreme Court dismissed Mr Silbert’s appeal. He contended that the Act was invalid in its operation for deceased estates because deeming provisions of the Act precluded the Supreme Court making sufficient inquiry into whether the deceased person had actually committed the offence in question. But the High Court held that the Act required a court not to make a forfeiture order unless it was satisfied beyond reasonable doubt that the dead person had committed the offence. For pecuniary penalty orders, a court was empowered to assess the value of benefits derived from commission of the serious offence. The Court held that nothing in the application for an order, the assessment of benefits derived from crime, and the making of a pecuniary penalty was contrary to sections of the Constitution concerning the administration of justice.
+HIGH COURT OF AUSTRALIA 7 May 2014 JAMES HENRY STEWART IN HIS CAPACITY AS LIQUIDATOR OF NEWTRONICS PTY LTD (IN LIQUIDATION) & ANOR v ATCO CONTROLS PTY LTD (IN LIQUIDATION) [2014] HCA 15 Today the High Court unanimously held that the first appellant, a liquidator, was entitled to an equitable lien over a fund constituted by a settlement sum with respect to costs and expenses incurred in litigation against the respondent, a secured creditor, and receivers appointed by the respondent. The second appellant, Newtronics Pty Ltd ("Newtronics"), is a wholly owned subsidiary of the respondent, Atco Controls Pty Ltd ("Atco"). For many years, Atco provided Newtronics with financial support and ultimately took a fixed and floating charge over Newtronics' assets. In January 2002, Atco appointed receivers to Newtronics. The receivers sold the business of Newtronics to another subsidiary of Atco and credited book entries against the debt owed to Atco by Newtronics. In February 2002, Newtronics was wound up and the first appellant was appointed liquidator. The liquidator brought an action on behalf of Newtronics against Atco and the receivers. The liquidator's costs and expenses reasonably incurred in pursuing the action were paid by Seeley International Pty Ltd, Newtronics' largest unsecured creditor, under an indemnity agreement. Newtronics was successful at trial against Atco, but not against the receivers. Prior to an appeal being heard, the receivers paid Newtronics a settlement sum. Atco proceeded with its appeal and was successful. It subsequently demanded payment of the settlement sum pursuant to its charge. The liquidator refused, on the basis that he was entitled to an equitable lien over the sum. Atco brought proceedings in the Supreme Court of Victoria, by way of an appeal under s 1321 of the Corporations Act 2001 (Cth) from the liquidator's decision not to pay it the settlement sum. The Court ordered that the sum be paid to Atco. On an appeal by way of a new hearing, the Court found for the liquidator and Newtronics. The Court of Appeal in turn allowed Atco's appeal. By grant of special leave, the liquidator and Newtronics appealed to the High Court. The High Court unanimously allowed the appeal. The Court held that there was no basis for excepting the case from the application of the principle that a secured creditor may not have the benefit of a fund created by a liquidator without the liquidator's costs and expenses of creating that fund first being met. The fund constituted by the settlement sum was created by the efforts of the liquidator, who was acting with propriety and in the course of his duties. In those circumstances, the liquidator was entitled to an equitable lien over the settlement sum in priority to Atco's charge.
+HIGH COURT OF AUSTRALIA 16 October 2014 CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION v BHP COAL PTY LTD [2014] HCA 41 Today the High Court by majority held that the respondent's termination of the employment of an employee, who was a member of the appellant, was not an action taken for a reason which is prohibited by the Fair Work Act 2009 (Cth) ("the Act"). The appellant, Construction, Forestry, Mining and Energy Union ("the CFMEU"), is an industrial association which has members employed by the respondent, BHP Coal Pty Ltd ("BHP Coal"). One of the CFMEU's members, Mr Doevendans, participated in a lawful protest organised by the CFMEU, in the course of which he held up and waved a sign at passing motorists, which read "No principles SCABS No guts". Mr Doevendans' employment with BHP Coal was subsequently terminated. The CFMEU brought proceedings in the Federal Court of Australia, claiming that the termination of Mr Doevendans' employment contravened the Act. Section 346(b) of the Act prohibits an employer from taking adverse action against an employee, which includes terminating the employee, because the employee has engaged in industrial activity. Section 347 of the Act provides that a person engages in industrial activity if the person, among other things, participates in a lawful activity organised or promoted by an industrial association, or represents or advances the views, claims or interests of an industrial association. The primary judge accepted evidence given by BHP Coal's officer as to the reasons for the termination of Mr Doevendans' employment. Nonetheless, the primary judge concluded that s 346(b) had been contravened. This conclusion was reversed by a majority of the Full Court of the Federal Court. By special leave, the CFMEU appealed to the High Court. By majority, the High Court dismissed the appeal. A majority of the Court held that the reasons found by the primary judge to actuate the decision to dismiss Mr Doevendans did not include his participation in industrial activity, or his representing the views of the CFMEU, but rather related to the nature of Mr Doevendans' conduct and what it represented to the officer about Mr Doevendans as an employee. The termination was, therefore, not contrary to s 346(b) of the Act.
+HIGH COURT OF AUSTRALIA 2 April 2014 NSW REGISTRAR OF BIRTHS, DEATHS AND MARRIAGES v NORRIE [2014] HCA 11 Today the High Court unanimously held that the Births, Deaths and Marriages Registration Act 1995 (NSW) permits the Registrar to register that a person's sex is "non-specific". Norrie, who had undergone a "sex affirmation procedure", applied to the Registrar under the Act to register both a change of sex to "non-specific" and a change of name. The Registrar issued Norrie a Change of Sex certificate and a Change of Name certificate, both of which recorded Norrie's sex as "not specified". Later, the Registrar advised Norrie that the Change of Sex certificate was invalid, and re-issued a Change of Name certificate which recorded Norrie's sex as "not stated". Norrie lodged an application for review of the Registrar's decision in the Administrative Decisions Tribunal (NSW). The Tribunal rejected Norrie's application, holding that it was not open to the Registrar to record Norrie's sex as "non-specific". The appeal panel of the Tribunal dismissed an appeal against that decision. Norrie's appeal to the Court of Appeal was upheld. By special leave, the Registrar appealed to the High Court. The issue was whether it was within the Registrar's power to record the sex of a person as "non-specific". The High Court decided that the Act recognises that a person may be neither male nor female, and so permits the registration of a person's sex as "non-specific". The High Court ordered that Norrie's applications be remitted to the Registrar for determination in accordance with its reasons and otherwise dismissed the appeal.
+HIGH COURT OF AUSTRALIA Manager, Public Information 11 March 2009 LK v DIRECTOR-GENERAL, DEPARTMENT OF COMMUNITY SERVICES The High Court today upheld a mother’s appeal against orders of the Family Court that her four children should be returned to Israel. In September 2005 a husband and wife, then living in Israel, separated. The four children of the marriage continued to live with their mother. All four children were born in Israel but were entitled to Australian citizenship as their mother was an Australian citizen. In May 2006 the mother and the four children, who were then aged between 15 months and eight years old, travelled to Australia with the father’s consent. The mother and children held tickets to return to Israel on 27 August 2006, however when they left Israel both parents understood that it was the mother’s intention to make Australia her and her children’s home unless the husband decided he wanted to live with them together as a family. In that case she would return with the children to Israel. Before leaving for Australia the mother registered the children as Australian citizens, obtained Australian passports for the children and enrolled the two oldest children in a private school. Immediately after arriving in Australia the mother sought and obtained Centrelink benefits, the two older children commenced school and the third child was enrolled in pre-school. The older children joined a soccer club and took music lessons. Eventually the mother rented and furnished a home to live in with her children. In July 2006 the husband advised his wife that he had changed his mind – he wanted a divorce and he wanted the children to return to Israel. The Convention on the Civil Aspects of International Child Abduction entered into force for Australia on 1 January 1987. Parliament made regulations under the Family Law Act which, in accordance with the Abduction Convention, recognise that “the appropriate forum for resolving disputes between parents relating to a child’s care, welfare and development is ordinarily the child’s country of habitual residence”. The Director-General of the NSW Department of Community Services is empowered under the Regulations to make an application for the return of a child to “the child’s country of habitual residence” if the child has been wrongfully removed to or retained in Australia. The regulations provide that a child will have been wrongfully removed to or retained in Australia if, amongst other things, immediately before the removal to or retention in Australia, the child habitually resided in another country which was also a signatory to the Abduction Convention. At the request of Israeli authorities the Director-General applied to the Family Court for orders returning the children to Israel. A single judge of the Family Court ordered that the children be returned to enable the custody dispute between the mother and the father to be determined according to Israeli law. On appeal, the Full Court of the Family Court affirmed that decision. The mother, LK, appealed to the High Court. In a unanimous decision the High Court reasoned it would be necessary to look at all the circumstances of the case, that is – undertake a broad factual inquiry, in order to determine whether the children habitually resided in Israel when they were allegedly wrongfully retained in Australia (assumed, for the purposes of the appeal, to be in July 2006 when the father first asked for them to be returned to Israel). The High Court had regard to the circumstances that, at the time the mother and children left Israel, it was the parents’ shared intention that the mother and the children would live in Australia unless the father decided he wanted to reconcile with the mother and that the mother had, before and after her return to Australia, taken various steps to set up a home in Australia (which gave effect to the parents’ shared intention). The Court held that as at July 2006 the children did not habitually reside in Israel. The High Court set aside the orders of the trial judge and the Full Court, and dismissed the Director-General’s application for orders that the children be returned to Israel.
+HIGH COURT OF AUSTRALIA 2 March 2016 TABCORP HOLDINGS LIMITED v STATE OF VICTORIA [2016] HCA 4 Today the High Court unanimously dismissed an appeal from the Court of Appeal of the Supreme Court of Victoria. The High Court held that Tabcorp Holdings Limited ("Tabcorp") was not entitled to payment by the State of Victoria ("the State") under s 4.3.12(1) of the Gambling Regulation Act 2003 (Vic) ("the 2003 Act") because there was no "grant of new licences". The appeal was heard concurrently with the appeal in Victoria v Tatts Group Ltd [2016] HCA 5. Tabcorp relevantly held conjoined licences – a wagering licence and a gaming licence – under the 2003 Act. Those licences were to expire in 2012. The gaming licence authorised Tabcorp to conduct gaming on gaming machines at approved venues in Victoria until that time. The licences were dealt with in Pt 3 of Ch 4 of the 2003 Act which included s 4.3.12(1). That section contained what was known as the "terminal payment provision" and relevantly provided that "[o]n the grant of new licences", the holder of the former licences would be entitled to be paid a certain amount by the State. In 2008, the Premier of Victoria announced that Tabcorp's licences would not be renewed upon their expiry and the 2003 Act was amended so that no further wagering licence or gaming licence could be granted. In 2009, further amendments to the 2003 Act provided for a new authority called a "gaming machine entitlement" ("GME"). A GME permitted its holder to conduct gaming on an approved gaming machine. 27,500 GMEs were created. They came into effect on 16 August 2012, being the day after Tabcorp's wagering licence and gaming licence expired. The result was that the gaming operations which Tabcorp conducted under its gaming licence ceased and were then carried on by the holders of GMEs. Tabcorp claimed it was entitled to payment under the terminal payment provision. Before the primary judge, it contended that the allocation of the GMEs was the "grant of new licences" within the meaning of s 4.3.12(1) of the 2003 Act because the GMEs were "substantially similar" to the licences held by Tabcorp. The primary judge dismissed Tabcorp's claim on the basis that the "grant of new licences" in s 4.3.12 was confined to new licences granted under Pt 3 of Ch 4 of the 2003 Act. The Court of Appeal dismissed Tabcorp's appeal from that decision. By grant of special leave, Tabcorp appealed to the High Court. The High Court unanimously held that the phrase "grant of new licences" in s 4.3.12(1) of the 2003 Act meant the grant of a new wagering licence and a new gaming licence under Pt 3 of Ch 4 of the 2003 Act. As no new wagering licence and gaming licence were issued under Pt 3 of Ch 4 of the 2003 Act, Tabcorp was not entitled to payment under the terminal payment provision.
+HIGH COURT OF AUSTRALIA 10 December 2015 COMMISSIONER OF TAXATION v AUSTRALIAN BUILDING SYSTEMS PTY LTD (IN LIQUIDATION); COMMISSIONER OF TAXATION v MULLER AND DUNN AS LIQUIDATORS OF AUSTRALIAN BUILDING SYSTEMS PTY LTD (IN LIQUIDATION) [2015] HCA 48 Today the High Court, by majority, dismissed appeals from the Full Court of the Federal Court of Australia. The High Court held that the retention obligation (as defined below) imposed on agents and trustees by s 254(1)(d) of the Income Tax Assessment Act 1936 (Cth) ("the 1936 Act") only arises after the making of an assessment or deemed assessment in respect of the income, profits or gains. Section 254(1)(d) of the 1936 Act requires every agent and every trustee "to retain from time to time out of any money which comes to him or her in his or her representative capacity so much as is sufficient to pay tax which is or will become due in respect of the income, profits or gains" ("the retention obligation"). The liquidators of Australian Building Systems Pty Ltd ("ABS") caused the company to enter into a contract for the sale of a property, which gave rise to a capital gain pursuant to s 104-10 of the Income Tax Assessment Act 1997 (Cth). In a private ruling, the Commissioner of Taxation ("the Commissioner") ruled that s 254(1)(d) of the 1936 Act required the liquidators to retain sufficient monies out of the proceeds of the sale to cover any capital gains tax liability from the time the capital gain crystallised. judge held the primary ABS objected to the ruling but the Commissioner disallowed the objection. ABS appealed that decision and the liquidators also sought declaratory relief in the Federal Court of Australia. Hearing both matters concurrently, s 254(1)(d) did not require the liquidators to retain money from the proceeds of the sale until an assessment had issued. The primary judge considered that s 254(1)(d) should be construed consistently with the High Court's construction of the phrase "is or will become due" in s 255(1)(b) of the 1936 Act in Bluebottle UK Ltd v Deputy Commissioner of Taxation (2007) 232 CLR 598. The Full Court of the Federal Court dismissed the Commissioner's appeals. Unlike the primary judge, the majority of the Full Court relied on the proposition that ABS was "presently entitled" to the proceeds of the sale and that any capital gains tax would be assessed to ABS, and not to the liquidators as trustees, as a result of Div 6 of Pt III of the 1936 Act. By grant of special leave, the Commissioner appealed to the High Court. The part of the appeals relating to the Full Court's reasoning with respect to Div 6 of Pt III was not contested by the respondents. that The High Court dismissed the Commissioner's appeals. The majority held that the retention obligation in s 254(1)(d), similar to the retention obligation in s 255(1)(b), only arises after an assessment or deemed assessment has been made in respect of the relevant income, profits or gains. The High Court also held that the majority of the Full Court had erred in finding that the liquidator was a "trustee of a trust estate" for the purposes of Div 6 of Pt III. A majority of the High Court further held that the majority of the Full Court erred in construing s 254 as a collecting provision which only operates where the agent or trustee is otherwise assessable.
+HIGH COURT OF AUSTRALIA 6 December 2017 ESSO AUSTRALIA PTY LTD v THE AUSTRALIAN WORKERS' UNION; THE AUSTRALIAN WORKERS' UNION v ESSO AUSTRALIA PTY LTD [2017] HCA 54 Today, the High Court allowed one appeal by majority and unanimously dismissed a second appeal from a decision of the Full Court of the Federal Court of Australia regarding the application of certain provisions of the Fair Work Act 2009 (Cth) to industrial action taken by The Australian Workers' Union ("the AWU") against Esso Australia Pty Ltd ("Esso"). Section 415 of the Fair Work Act confers a broad-ranging immunity from civil suit on persons engaging in or organising protected industrial action. Section 413 specifies the common requirements for industrial action to qualify as protected industrial action for a proposed enterprise agreement. Relevantly, s 413(5) provides that persons organising or engaging in the action "must not have contravened any orders that apply to them and that relate to, or relate to industrial action relating to, the agreement or a matter that arose during bargaining for the agreement". In 2015, during negotiations for a new enterprise agreement, the AWU organised industrial action against Esso which it claimed was protected industrial action. Esso obtained an order from the Fair Work Commission ("the Commission") requiring the AWU to stop organising certain forms of action. In contravention of that order, the AWU continued to organise the proscribed action. Esso instituted proceedings in the Federal Court of Australia seeking inter alia declarations that the AWU was a person who had contravened an order which applies to it, in the terms of s 413(5), with the consequence that action thereafter organised by the AWU in relation to the agreement was not protected industrial action. It was also alleged that, contrary to ss 343 and 348 of the Fair Work Act, the AWU had organised action with intent to coerce Esso to enter into an agreement on terms favourable to the AWU. The primary judge declined to make the declarations sought by Esso, but found that the AWU had contravened ss 343 and 348. On appeal, the Full Court held that the AWU's prior contravention of the Commission's order did not fall within the terms of s 413(5) and that there was no error in the primary judge's approach to or application of ss 343 and 348. By grant of special leave, Esso and the AWU each appealed to the High Court against the Full Court's decision in relation to the construction of s 413(5) and the contraventions of ss 343 and 348 respectively. In relation to Esso's appeal, a majority of the High Court held that the requirement in s 413(5) for compliance with orders is not confined to orders that are in existence or may still be complied with at the time of the proposed protected industrial action, or which relate to that action. The majority held that s 413(5) applies to past contraventions of orders that applied to the relevant persons and that related to the relevant subject matter, and thus, by reason of its contravention of the Commission's order, the AWU failed to meet the requirement in s 413(5) for its subsequently organised action to qualify as protected industrial action. In relation to the AWU's appeal, the Court unanimously held that a contravention of s 343 or s 348 is constituted of organising, taking or threatening action against another person with intent to negate that person's choice and that knowledge or intent that the action be unlawful, illegitimate or unconscionable is not required. In the result, Esso's appeal was allowed and the AWU's appeal was dismissed.
+HIGH COURT OF AUSTRALIA 18 March 2020 [2020] HCA 10 Today, the High Court unanimously allowed an appeal from the Court of Appeal of the Supreme Court of Queensland. Under the common law of Australia, during a criminal trial (save in rare and exceptional circumstances), no adverse inference can be drawn by a jury (or the judge in a trial without a jury) from the fact that the accused did not give evidence. In this context, the principal issue before the Court was whether the decision in R v Miller [2004] 1 Qd R 548 ("Miller"), which permits a sentencing judge, at a hearing of disputed facts following a plea of guilty, to more readily accept evidence or draw inferences invited by the prosecution in the absence of contradictory evidence given by the offender, was wrongly decided. The appellant and her partner, Matthew Scown, were jointly charged before the Supreme Court of Queensland with the manslaughter of the appellant's son, Tyrell. Tyrell was aged four years and three months when he died as the result of injuries inflicted to his abdomen within 48 hours of his death. Mr Scown and the appellant were both alone with Tyrell for intervals during the 48 hours before his death. The fatal injuries were inflicted by one of them. Tyrell was very unwell in the two days preceding his death. Neither the appellant nor Mr Scown sought timely medical attention for Tyrell. Mr Scown pleaded guilty to manslaughter on the agreed basis that he was criminally negligent in failing to seek medical assistance for Tyrell. The appellant also pleaded guilty to manslaughter, however, her matter was set down for a hearing to determine the factual basis on which she was to be sentenced for the offence. The prosecution's primary case was that the appellant inflicted the blunt force trauma that caused Tyrell's death. The prosecution's alternative case was that the appellant failed to seek medical assistance for the child. The appellant denied the primary case but acknowledged liability on the alternative basis. The appellant did not give evidence at the sentencing hearing. At the outset of the sentencing judge's reasons, his Honour stated that he was permitted to more readily accept evidence or draw inferences invited by the prosecution in the absence of contradictory evidence from the offender, reflecting the principles enunciated in Miller. His Honour took into account the appellant's failure to give contradictory evidence before making findings adversely to her in relation to a number of contested facts, and concluding that she had inflicted the blunt force trauma causing Tyrell's death. The appellant was sentenced to nine years' imprisonment. The appellant applied for leave to appeal to the Court of Appeal against the sentence, contending that the sentencing judge erred in having regard to the fact that she had not given evidence and inviting the Court of Appeal to depart from Miller. The Court of Appeal held that the sentencing judge had not applied the principles in Miller and refused leave to appeal. By grant of special leave, the appellant appealed to the High Court. The High Court unanimously found that Miller was wrongly decided and that the sentencing judge had applied the principles stated in Miller to the determination of at least some of the contested facts. Given that a plea of guilty is a formal admission of each of the legal ingredients of the offence, and that the offence of manslaughter may be committed in a wide range of circumstances of varying implications as to culpability, the Court held that the appellant's plea of guilty to manslaughter did not relieve the prosecution of the obligation to prove the facts of its primary case without assistance from her. In the result, the appeal was allowed, the appellant's sentence quashed, and the matter remitted to the Supreme Court of Queensland for the appellant to be re-sentenced according to law.
+HIGH COURT OF AUSTRALIA 10 March 2021 THE COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA v TRAVELEX LIMITED [2021] HCA 8 Today, the High Court unanimously upheld an appeal from the Full Court of the Federal Court of Australia concerning the operation of the Taxation Administration Act 1953 (Cth) ("TAA"), the Taxation (Interest on Overpayments and Early Payments) Act 1983 (Cth) ("TIOEP Act") and the A New Tax System (Goods and Services Tax) Act 1999 (Cth) ("GST Act") as they each stood at the relevant time. Under the TAA, the Commissioner can establish a Running Balance Account ("RBA") for a taxpayer. The Commissioner can allocate to an RBA amounts due to the Commonwealth under taxation laws and must allocate to an RBA certain amounts that the Commissioner must pay to the taxpayer under taxation laws. The resulting balance can be either an "RBA deficit debt", which the taxpayer must pay to the Commonwealth, or an "RBA surplus", which the Commissioner must pay to the taxpayer. The short question in the appeal was whether an RBA surplus can result from the Commissioner allocating to an RBA an amount that the Commissioner is not obliged to pay a taxpayer under a taxation law. The High Court held that it could not. The background to this proceeding is that an earlier decision of this Court, Travelex Ltd v Federal Commissioner of Taxation (2010) 241 CLR 510, established that certain supplies made by Travelex were GST free. Following this decision, and on Travelex's request, the Commissioner amended Travelex's GST return for the relevant tax period, proceeding on the assumption that it was then permissible to amend a GST return. As a result, Travelex's RBA was credited with $149,020. The present case commenced, in the Federal Court of Australia, as a dispute about the date from which a commonly assumed obligation to pay interest on the $149,020 under the TIOEP Act arose. At first instance, the Federal Court held that neither Travelex nor the Commissioner had statutory authority to amend Travelex's GST return and concluded that the Commissioner was obliged to pay interest.. The Commissioner appealed to the Full Court, on grounds including that the Federal Court had erred in concluding that the Commissioner was obliged to pay interest on the $149,020 to Travelex under the TIOEP Act at all. The Full Court unanimously agreed that Travelex and the Commissioner lacked statutory authority to amend the GST return but divided as to the consequence of that lack of authority. The majority held that the fact of the allocation to the RBA was enough to result in the amount having the legal status of an RBA surplus, with the consequence that the Commissioner had to pay Travelex the interest under the TIOEP Act. By grant of special leave, the Commissioner appealed to the High Court. The High Court held that the efficacy of an allocation to result in an RBA surplus under the TAA depends on the amount allocated answering the objective description of an amount due to the Commonwealth under a taxation law. Because the Commissioner and Travelex lacked statutory authority to amend the GST return, the balance recorded in the RBA did not meet that objective description. As a result, no interest is payable by the Commissioner to Travelex under the TIOEP Act.
+HIGH COURT OF AUSTRALIA Public Information Officer 8 October, 2003 VISY PAPER PTY LIMITED, WILLIAM GUTHRIDGE AND STEVEN RICHARDS v AUSTRALIAN COMPETITION AND CONSUMER COMMISSION The High Court of Australia today dismissed an appeal by Visy Paper and two Visy executives against a decision of the Full Court of the Federal Court that the company attempted to enter into a contract with another waste paper collector in breach of the Trade Practices Act (TPA). Visy proposed to make an agreement with Sydney-based Northern Pacific Paper Pty Ltd under which NPP would not acquire waste paper from Visy’s suppliers or potential suppliers. Visy’s business including collecting and processing waste paper into recycled paper and cardboard. NPP collected waste paper which it sold to recycling companies including Visy. They competed in acquiring waste paper and also dealt with each other as supplier and customer. The principal issue in the appeal concerned the inter-relationship between certain provisions of the TPA. In the Federal Court, the ACCC sought declarations, restraining orders and fines against Visy, but Justice Ronald Sackville dismissed the proceedings, holding that section 45(6) would have applied to save the potential contract from the prohibition in section 45(2)(a)(i). The Full Court, by majority, allowed the ACCC’s appeal. Visy appealed to the High Court. The High Court, by a 5-1 majority, upheld the decision of the Full Court.
+HIGH COURT OF AUSTRALIA 20 June 2018 [2018] HCA 26 Today the High Court, by majority, dismissed an appeal from the Full Court of the Supreme Court of South Australia, sitting as the Court of Criminal Appeal, holding that the trial judge's reasons for convicting the appellant were not inadequate. The appellant was charged under s 50(1) of the Criminal Law Consolidation Act 1935 (SA) with one count of persistent sexual exploitation of a child. At the relevant time, s 50(1) provided that it was an offence for an adult to commit "over a period of not less than 3 days ... more than 1 act of sexual exploitation of a particular child". The complainant, the appellant's nephew, alleged that the appellant committed various acts of sexual exploitation when the complainant was aged between five and 15 years. The appellant was tried by judge alone, convicted and sentenced to 10 years' imprisonment. The appellant had submitted that a number of alleged inconsistencies and implausibilities in the complainant's evidence meant that the complainant could not be "relied upon about the substantive allegations". The trial judge described the complainant as having given evidence "in a forthright and convincing manner", and said the complainant was "a straightforward man", was "a man endeavouring to tell the truth" and "was describing real events that happened to him". Although the trial judge accepted that the complainant's evidence about the timing of some events was inaccurate, he regarded the complainant as "a reliable witness as to the core allegations". The appellant appealed to the Court of Criminal Appeal, but the appeal was dismissed. By grant of special leave, the appellant appealed to the High Court. The appellant's argument reduced ultimately to whether the trial judge's reasons were inadequate because they failed to identify the two or more acts of sexual exploitation found to be proved beyond reasonable doubt, and the process of reasoning leading to the conclusion of the appellant's guilt of those acts. By majority, the Court dismissed the appeal. It held that the trial judge's ultimate conclusion was that the appellant sexually assaulted the complainant on numerous occasions over a period of some years. This conclusion meant that the elements of the offence had been proved. The majority held that the trial judge's findings that the complainant was reliable as to the "core allegations" and was describing "real events" were an acceptance that the complainant was truthful and reliable about all of the sexual acts that he had described. The majority concluded that the reasons were sufficient to identify, and to disclose the process of reasoning leading to the trial judge's finding of, two or more acts of sexual exploitation upon which the conviction was based.
+HIGH COURT OF AUSTRALIA Public Information Officer 3 September, 2003 WHISPRUN PTY LIMITED v SONYA LEA DIXON The High Court of Australia today upheld the decision of a New South Wales Supreme Court trial by Justice Peter Newman who rejected Ms Dixon’s claim that she was suffering from chronic fatigue syndrome as a result of Q fever infection. Ms Dixon contracted Q fever in April 1994 while working at an Inverell, NSW, abattoir where her job was to suck foetal blood into a pipette from unborn calves’ hearts. The disease lasted up to 10 months. Her employer, Whisprun, conceded it had breached a duty of care owed to her but denied she also developed chronic fatigue syndrome, as up to 20 per cent of Q fever sufferers do. Between 1994 and the 2000 trial Ms Dixon saw numerous doctors complaining of headaches, aches and pains, nausea and fatigue. Justice Newman held that Ms Dixon lacked credibility after surveillance videos, photographs and her own testimony showed inconsistencies between what she said she could do and what she did do. There was evidence of brisk walking around Sydney, attending race meetings, riding horses, driving cars and horse floats, riding a jet ski and an inner tube towed by a speedboat, and drinking and dancing at a wedding. Ms Dixon claimed her mood swings caused the break-up of her relationship but there was evidence it had continued. Because the damages which Justice Newman would otherwise have awarded fell short of the statutory threshold that the NSW Workers Compensation Act then provided, he dismissed Ms Dixon’s action with costs. The NSW Court of Appeal unanimously held that Justice Newman had not given weight to medical reports about Ms Dixon’s condition and erred in concluding that it rested on subjective symptoms when there were objective symptoms such as weight loss, abdominal tenderness, pallor and depression, and impaired memory. The Court allowed Ms Dixon’s appeal and ordered a new trial. Whisprun appealed to the High Court. The High Court, by a 3-2 majority, allowed Whisprun’s appeal and restored the judgment of the trial judge. The majority held that, having regard to the way the trial was conducted, Justice Newman had not overlooked relevant evidence and there was no miscarriage of justice.
+HIGH COURT OF AUSTRALIA 6 February 2008 Public Information Officer INTERNATIONAL AIR TRANSPORT ASSOCIATION v ANSETT AUSTRALIA HOLDINGS LIMITED (subject to deed of company arrangement), MARK KORDA AND MARK MENTHA INTERNATIONAL AIR TRANSPORT ASSOCIATION v ANSETT AUSTRALIA HOLDINGS LIMITED (subject to deed of company arrangement) The High Court of Australia today upheld IATA’s claims as to the effect of its Clearing House system in relation to the insolvency of Ansett Australia. Ansett collapsed on 12 September 2001 and administrators were appointed. It was then a member of the IATA Clearing House, which pays out airlines for services provided to other airlines in accordance with agreements between IATA and the airlines, including Ansett. International airlines regularly carry passengers and goods on behalf of other airlines. The Clearing House avoids the necessity for the airlines to make and receive numerous payments for such operations. Each month, airlines with a net credit balance receive a payment from the Clearing House while those with a net debit balance are obliged to pay funds into the Clearing House. The agreements between IATA and the airlines provided that settlement of amounts payable would be in accordance with IATA’s Regulations. IATA claimed to be a creditor of Ansett and alleged that Ansett had a net debit balance of $US4,370,989 outstanding as at December 2001. Ansett’s creditors resolved that Ansett execute a Deed of Company Arrangement on 27 March 2002, which bound Ansett, its officers, certain creditors and the administrators, Mr Korda and Mr Mentha. The Deed barred creditors bound by it from taking any action to seek to recover their claim other than pursuant to the Deed. Ansett and the administrators submitted that the Deed and the insolvency provisions of the Corporations Act operated upon Ansett’s property as it existed on 12 September 2001 so other airlines’ claims against Ansett at that date needed to be proved in accordance with the Deed rather than with the IATA Regulations. After execution of the deed in May 2002, the administrators demanded payment from 13 airlines, all Clearing House members, for alleged net indebtedness for the months from August 2001 to March 2002 of more than $US11 million. Further action by Ansett on these demands is on hold, pending the outcome of this litigation. Both IATA and Ansett brought proceedings in the Victorian Supreme Court. IATA challenged decisions of Mr Korda and Mr Mentha. Ansett sought declarations about the application of the IATA Regulations. Justice Philip Mandie heard the two actions together. He made declarations that, notwithstanding the appointment of administrators, the Clearing House arrangements continued to apply with contractual force between IATA, Ansett and the other Clearing House members, and that IATA was a creditor of Ansett. Ansett and the administrators successfully appealed to the Court of Appeal, which held, by majority, that IATA was not a creditor, the Clearing House arrangements did not apply, and Ansett was a debtor of carrying airlines and a creditor of issuing airlines. IATA appealed to the High Court. The High Court, by a 6-1 majority, allowed each appeal and upheld the declarations made by Justice Mandie. IATA Regulation 9 provided that no liability for payment and no right of action to recover payment accrued between Clearing House members and that members instead had liabilities to or rights of action against the Clearing House. The Court held that the effect of the IATA Regulations was that no liability for payment arose between airlines and that the only debt or credit which arose was that between IATA and member airlines in relation to the final balance each month. It followed that IATA was a creditor of Ansett to the exclusion of the member airlines. Ansett submitted that the Regulations operated to circumvent the Deed and the Corporations Act. The Court held that there was no contracting out of the operation of the Deed or the Act and no repugnancy between the Deed and the Clearing House arrangements. It also rejected Ansett’s submission that the IATA Regulations were ineffective or void by reason of public policy.
+HIGH COURT OF AUSTRALIA 4 November 2015 MINISTER FOR IMMIGRATION AND BORDER PROTECTION v WZARH & ANOR [2015] HCA 40 Today the High Court unanimously dismissed an appeal from a decision of the Full Court of the Federal Court of Australia. The High Court held that the first respondent was denied procedural fairness in the conduct of an Independent Merits Review ("IMR") of his Refugee Status Assessment ("RSA"). The first respondent is a Sri Lankan national of Tamil ethnicity. He entered Australia by boat in 2010, arriving at Christmas Island. In January 2011, he requested an RSA to determine whether he was a person to whom Australia owed protection obligations under the Refugees Convention. A delegate of the appellant made an adverse assessment of the first respondent's claim to refugee status. In May 2011, the first respondent requested an IMR of the adverse RSA. In January 2012, he was interviewed by an independent merits reviewer. At the interview, the reviewer told the first respondent that she would undertake a re-hearing of his claims and make a recommendation to the appellant as to whether the first respondent was a refugee. The reviewer became unavailable to complete the IMR and a second reviewer assumed responsibility for its completion. The first respondent was not informed of the change in the identity of the reviewer. The second reviewer, the second respondent in this matter, did not conduct an interview with the first respondent, but based his decision on a consideration of certain materials, including the transcript and an audio recording of the first respondent's interview with the first reviewer. The second reviewer formed an adverse view of the first respondent's credibility, and did not accept that certain inconsistencies in the first respondent's account of his circumstances in Sri Lanka were due to memory lapse or confusion, or the effect of detention. The second reviewer recommended that the first respondent not be recognised as a person to whom Australia owed protection obligations. The first respondent applied to the Federal Circuit Court of Australia for judicial review of the decision of the second reviewer, arguing that the second reviewer's failure to conduct an interview meant that he was denied procedural fairness. The primary judge dismissed the application. The first respondent appealed successfully to the Full Court of the Federal Court, a majority of which found that the first respondent had a legitimate expectation that the person by whom he had been interviewed would be the person to complete the IMR, and which found that, notwithstanding the change in identity of the reviewer, he was unfairly denied an opportunity to make submissions as to how the IMR should proceed. By grant of special leave, the appellant appealed to the High Court. The High Court unanimously held that the first respondent was denied procedural fairness. The Court held that procedural fairness required that the first respondent be informed that the IMR process had changed so that he would have an opportunity to be heard on the question of how the IMR should proceed. The appeal was dismissed with costs.
+HIGH COURT OF AUSTRALIA 14 August 2014 EDWARD POLLENTINE & ANOR v THE HONOURABLE JARROD PIETER BLEIJIE ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND & ORS [2014] HCA 30 Today the High Court unanimously upheld the validity of s 18 of the Criminal Law Amendment Act 1945 (Q) which allows a trial judge to make directions for the indefinite detention of a person found guilty of an offence of a sexual nature committed upon or in relation to a child. Section 18 of the Act provides that a judge presiding at the trial of a person found guilty of an offence of a sexual nature committed upon or in relation to a child may direct that two or more medical practitioners inquire as to the mental condition of the offender, and in particular whether the offender "is incapable of exercising proper control over the offender's sexual instincts". The section provides that if the medical practitioners report to the judge that the offender "is incapable of exercising proper control over the offender's sexual instincts", the judge may, either in addition to or in lieu of imposing any other sentence, declare that the offender is so incapable and direct that the offender be detained in an institution "during Her Majesty's pleasure". An offender the subject of a direction to detain is not to be released until the Governor in Council is satisfied on the further report of two medical practitioners that it "is expedient to release the offender". In 1984 Edward Pollentine and Errol George Radan each pleaded guilty in the District Court of Queensland of sexual offences committed against children. In each case, on the report of two medical practitioners, the District Court declared that Mr Pollentine and Mr Radan were incapable of exercising proper control over their sexual instincts and directed that they be detained in an institution during Her Majesty's pleasure. Mr Pollentine and Mr Radan brought proceedings in the original jurisdiction of the High Court challenging the validity of s 18 of the Act on the ground that it was repugnant to or incompatible with the institutional integrity of the District Court, thereby infringing Ch III of the Constitution. The High Court upheld the validity of the provision. The Court held that while a court may direct the detention but not the release of an offender under s 18, the court has discretion whether to direct detention. Furthermore, release of an offender is not subject to the unconfined discretion of the Executive and does not lack sufficient safeguards. Rather, a decision to release is dependent upon medical opinion about the risk of an offender reoffending, and the decision is subject to judicial review. The Court held that the provision is not repugnant to or incompatible with that institutional integrity of the State courts which bespeaks their constitutionally mandated position in the Australian legal system.
+HIGH COURT OF AUSTRALIA Public Information Officer 8 February 2006 ANTOINE ANTOUN v THE QUEEN A trial judge had demonstrated apprehended bias during the course of the trial of the Antoun brothers, the High Court of Australia held today. The Antouns were jointly charged with demanding money with menaces from Michael Savvas, who owned a nightclub at Darling Harbour in Sydney. Antoine Antoun approached him in March 2001 to offer security services but Mr Savvas said he was happy with his current security firm. Mr Antoun made further visits in the next three months. He claimed the Antouns had an arrangement with the security firm under which Mr Savvas owed the pair $8,000. Mr Savvas denied owing them money and found the conversations increasingly threatening. In June 2001 a group of youths visited the nightclub and destroyed furniture. The police were called and they intercepted phone conversations that were capable of implicating both appellants. Antoine Antoun called Mr Savvas to ask whether he had received the warning. Two days later, Joseph Antoun, accompanied by a group of men, visited Mr Savvas demanding payment. In the coming days Mr Savvas, wearing a concealed listening device, met with both Antouns who made further threats and demands for more money. In the NSW District Court, Judge Terence Christie held that the evidence revealed that the brothers were operating a protection racket. The Antouns claimed that they had an honest claim of right made in good faith and believed they had a legal entitlement to the money. The trial was conducted by Judge Christie sitting without a jury. During the trial, counsel flagged that at the end of the Crown case they would apply for a ruling that the Antouns had no case to answer. Judge Christie said such an application would be refused. Counsel asked the judge to disqualify himself but he refused and the next day again stated that an application for no case to answer could not succeed. He rejected a second application that he disqualify himself. Counsel then made their no case submissions in writing. Judge Christie adjourned to consider the submissions then rejected the application. After Antoine Antoun gave evidence Judge Christie said he proposed to revoke bail for both brothers. Counsel again asked him to disqualify himself but he refused. Both brothers were convicted. Joseph Antoun was sentenced to six years’ imprisonment with a non- parole period of four years and six months. Antoine was sentenced to three years and six months’ imprisonment with a non-parole period of two years and six months. They appealed unsuccessfully to the Court of Criminal Appeal on the ground of apprehended bias on the part of Judge Christie. They then appealed to the High Court. The Court unanimously allowed the appeal, quashed the Antouns’ convictions and ordered a new trial. It held that although the no case to answer submission, when argued, was without substance, the manner in which Judge Christie dealt with it was inappropriate and gave rise to an appearance of lack of impartiality. The Court held that even though the case against the Antouns appeared strong, they were still entitled to a fair hearing. A judge must hear submissions from the parties with an open mind and avoid any appearance of prejudgment. The Court held that Judge Christie’s conduct did present an appearance of prejudgment.
+HIGH COURT OF AUSTRALIA Public Information Officer 7 December 2006 RAYMOND DOUGLAS TULLY v THE QUEEN A two-year delay between alleged sexual offences by Mr Tully against a young girl and the girl’s first complaint did not lead to a miscarriage of justice, the High Court of Australia held today. The girl told her mother in April 2002 that Mr Tully had sexually abused her while he was the mother’s partner between January 1999 and May 2000, when the girl was aged between eight and 10. She said he had threatened her with guns and knives if she told. For several months after the mother left Mr Tully he telephoned her with further threats. He owned two handguns, two revolvers and two rifles and slept with a handgun under his pillow. The girl only told her mother after the family left central Queensland and moved to New South Wales. She was able to describe a mole on Mr Tully’s penis and tattoos on his buttocks and she kept a diary of the abuse. Mr Tully, 52, of Gladstone, was tried in the Queensland District Court in 2004 with two counts of rape and four each of indecently dealing with a child under 16 and of permitting himself to be indecently dealt with by a child under 16. As well as evidence about the 10 charges, the girl gave evidence about other sexual incidents, including some elicited during cross-examination. The number of alleged rapes varied between five or six and 30. No objection was raised to this evidence. The jury was unable to reach a verdict on the rape charges and one count of permitting himself to be indecently dealt with. Mr Tully was jailed for three years. He appealed unsuccessfully to the Court of Appeal. He claimed Judge Deborah Richards gave inadequate directions about the uncharged acts and that she should have given a warning in accordance with the 1989 High Court decision of Longman v The Queen. This was that it would be dangerous to convict Mr Tully on the girl’s evidence alone, because of the disadvantage to his defence caused by the delay, unless it was carefully scrutinised. (In Longman the delay was more than 20 years.) Mr Tully alleged that the girl’s age, the sexual nature of the complaints, the delay between the offences and complaint, and inconsistencies in her evidence required a Longman warning. He appealed to the High Court. The Court, by a 3-2 majority, dismissed the appeal. The majority held that Mr Tully was not disadvantaged by the two-year delay and the Court of Appeal was not wrong to conclude that a Longman warning was not necessary. Evidence about the mole and tattoos, the girl’s explanation for her delay in complaining, and Mr Tully’s failure to seek a Longman warning meant Judge Richards was not bound to give such a warning. In relation to uncharged acts, the majority held that while such evidence is often prejudicial to an accused person, whether characterised as context or background, or as tendency, propensity, relationship or similar-fact evidence, Judge Richards’s directions to the jury contained no error leading to a miscarriage of justice due to the way in which the case was conducted. Mr Tully did not object to admission of the evidence, sought to make forensic capital out of its contradictions and possibly excessive claims such as his raping the girl 30 times, and sought no redirection from Judge Richards. However, the Court unanimously held that this was not the appropriate case to resolve questions regarding evidence of uncharged acts.
+HIGH COURT OF AUSTRALIA Manager, Public Information 23 September 2009 MINISTER FOR IMMIGRATION AND CITIZENSHIP v SZIZO & ORS [2009] HCA 37 Failure by the Refugee Review Tribunal (RRT) to comply with a notification requirement under the Migration Act 1958 (Cth) does not necessarily result in an unfair hearing or a denial of natural justice, the High Court held today. Section 441G of the Migration Act relevantly provides that, if a person applies to the RRT for review of a decision and authorises another person (the authorised recipient) to do things on his or her behalf, including receive documents from the RRT, then the RRT must give the authorised recipient, instead of the applicant, any documents it would otherwise have given to the applicant (including a written invitation to the applicant to attend the RRT hearing of his or her application). SZIZO and his family arrived in Australia from Lebanon in March 2001. They applied for protection visas on 14 November 2005. The Minister’s delegate refused the applications and SZIZO and his family applied to the RRT to review the delegate’s decision. On the application form SZIZO nominated his eldest daughter, SZIZQ, as his authorised recipient. SZIZQ’s address was the address where all the visa applicants resided, including SZIZO (the family residence). The RRT sent a notice of a hearing to be held on 23 March 2006 and a response form, addressed to SZIZO at the family residence. SZIZO neither speaks nor reads English. His daughter SZIZQ speaks and reads Arabic, French and English. The response form was completed in English and signed by SZIZO. SZIZO and all his family, including SZIZQ, attended the RRT hearing on 23 March 2006, as did a number of witnesses who gave evidence supporting the family’s application. SZIZO and SZIZQ provided further written submissions and supporting documents to the RRT following the hearing. On 6 June 2006 the RRT affirmed the delegate’s original decisions. The Federal Magistrates Court dismissed SZIZO’s appeal. The Full Court of the Federal Court however found that, in failing to give notice of the hearing to SZIZO’s authorised recipient, the RRT had failed to comply with the notification method mandated by section 441G of the Migration Act and had thereby committed a jurisdictional error. The Full Court allowed SZIZO’s appeal. The High Court granted special leave to the Minister to appeal the Full Court’s decision. The High Court considered that the notification regime set up in Division 7A of Part 7 of the Migration Act, including section 441G, is designed to ensure that an applicant in the RRT has adequate time to prepare his or her case and is given effective notice of a hearing. The regime provides a manner for ensuring an applicant is given effective notice of a hearing, but the manner of so doing is not an end in itself. In the circumstances of this case, where SZIZO and his family were aware of the hearing date, were able to present witnesses in support of their case and were able to provide written submissions after the oral hearing had concluded, the RRT’s failure to notify SZIZO’s authorised recipient of the hearing date did not result in a denial of natural justice to SZIZO or an unfair hearing, a fact acknowledged by SZIZO’s legal representative. In other circumstances the RRT’s failure to give a hearing notice to an authorised recipient may result in an applicant not receiving a fair hearing but this was not such a case. The Court allowed the Minister’s appeal and ordered that SZIZO’s appeal to the Full Court of the Federal Court be dismissed.
+HIGH COURT OF AUSTRALIA 1 December 2010 AID/WATCH INCORPORATED v COMMISSIONER OF TAXATION [2010] HCA 42 Today the High Court held that an organisation involved in promoting and campaigning for effective foreign aid policies through the generation of public debate was a charitable institution for the purpose of tax exemptions and concessions. Aid/Watch Incorporated is an organisation concerned with promoting the effectiveness of Australian and multinational aid provided in foreign countries by means which include investment programs, projects and policies. In October 2006, the Commissioner of Taxation revoked Aid/Watch's endorsements as a charitable institution for the purposes of income tax, fringe benefits tax and GST. In 2008, the Administrative Appeals Tribunal set aside the Commissioner's decision and determined that Aid/Watch was a charitable institution notwithstanding that it sought to influence government policy through its activities. The Full Court of the Federal Court allowed an appeal by the Commissioner, holding that because Aid/Watch's activities necessarily involved a criticism of government activities and policies, its main purpose was a political purpose and it could not therefore be categorised as a charitable institution. The High Court by majority allowed Aid/Watch's appeal from the Full Court's decision, and restored the decision of the AAT. The Court referred to authorities establishing that free communication on matters of government and politics is an indispensable incident of the system of representative and responsible government established by the Constitution. The Court stated that the generation by lawful means of public debate concerning the efficiency of foreign aid directed to the relief of poverty is itself a purpose beneficial to the community. It held that in Australia there is no broad general rule excluding "political objects" from charitable purposes, and that because Aid/Watch's activities contribute to the public welfare, it was entitled to be regarded as a charitable institution.
+HIGH COURT OF AUSTRALIA 24 April 2020 COMMONWEALTH OF AUSTRALIA v HELICOPTER RESOURCES PTY LTD & ORS [2020] HCA 16 Today the High Court unanimously allowed an appeal from a judgment of the Full Court of the Federal Court of Australia concerning the compulsory examination of an employee in a coronial inquest while parallel criminal proceedings against his employer were pending. The appellant ("the Commonwealth") engaged the first respondent ("Helicopter Resources") to provide helicopter services in the Australian Antarctic Territory. On 12 January 2016, Captain Wood, a pilot employed by Helicopter Resources to provide some of those services, died from hypothermia after falling into a crevasse in the West Ice Shelf. An inquest into the manner and cause of his death was commenced on 19 September 2017 by the Chief Coroner of the Australian Capital Territory pursuant to the Coroners Act 1997 (ACT), which applies in the Australian Antarctic Territory. On 20 December 2017, the Commonwealth and Helicopter Resources were charged as co-accused with summary offences against the Work Health and Safety Act 2011 (Cth), which extends to the Australian Antarctic Territory. Two of the charges alleged breaches in relation to Captain Wood and another employee, and one arose directly out of the circumstances giving rise to Captain Wood's death. At the Commonwealth's request, the Coroner issued a subpoena pursuant to s 43 of the Coroners Act for Helicopter Resources' Chief Pilot, Captain Lomas, to attend to give evidence at the inquest. An application by Helicopter Resources to the Federal Court for judicial review of that decision was dismissed at first instance. Allowing an appeal, the Full Court held that compelling Captain Lomas to give evidence in the coronial inquest would infringe the rule that an accused cannot be required to assist the Crown in proving its case, because s 87(1)(b) of the Evidence Act 2011 (ACT) would make his evidence before the inquest admissible in the criminal proceedings as evidence of an admission by Helicopter Resources itself. Section 87(1)(b) relevantly entails that a representation by an employee of a party relating to a matter within the scope of the employee's employment may be taken as an admission by the party. By grant of special leave, the Commonwealth appealed to the High Court. Allowing the appeal, the High Court unanimously held that the fact that an employee can be compelled to give evidence that may be treated as an admission against his or her employer does not mean that the employer is compelled in effect to give evidence or otherwise to assist the Crown in proof of its case. By majority, the High Court refused to extend the time for Helicopter Resources to file a notice of contention alleging that compelling Captain Lomas to give evidence at the coronial inquest would constitute a contempt of court by creating a real risk of interference with justice according to law, on the basis that Helicopter Resources had been acquitted of the offences by the time of the hearing of the appeal and thus would suffer no prejudice in any event.
+HIGH COURT OF AUSTRALIA Public Information Officer 28 May, 2003 DAVID HAROLD EASTMAN v DIRECTOR OF PUBLIC PROSECUTIONS OF THE AUSTRALIAN CAPITAL TERRITORY, IAN PIKE, ATTORNEY-GENERAL (ACT) AND THE The High Court of Australia today unanimously allowed an appeal by Mr Eastman against a decision of the Federal Court blocking an inquiry into his fitness to plead to a charge of murder. Mr Eastman was convicted in 1995 of the 1989 murder of Australian Federal Police Assistant Commissioner Colin Winchester. During the ACT Supreme Court trial lasting almost six months, Mr Eastman was sometimes without legal representation and exhibited what the Full Court of the Federal Court described as erratic behaviour. He appealed unsuccessfully against his conviction as far as the High Court. Mr Eastman then petitioned the then ACT Chief Justice Jeffrey Miles for a judicial inquiry under section 475 of the ACT’s Crimes Act. In 2001, Chief Justice Miles appointed Mr Pike, a former New South Wales chief magistrate, to head an inquiry into Mr Eastman’s fitness to plead. Just before Mr Pike’s inquiry began taking evidence in 2002, the DPP began proceedings seeking a declaration that the inquiry was not authorised by s 475 and an injunction restraining Mr Pike from conducting it. Both actions were dismissed, but the Full Court of the Federal Court, by majority, allowed the DPP's appeal. Mr Eastman then appealed to the High Court. The question in the appeal was the construction of s 475, particularly the meaning of guilt. The DPP argued it referred only to the alleged wrongdoing that constituted the offence, not the process by which guilt was established. Mr Eastman and the ACT Attorney-General argued guilt meant guilt established by conviction, so that a doubt or question as to guilt could include matters affecting the process by which guilt was established, in particular fitness to plead. The High Court held that the latter meaning was what was intended by s 475 and that Chief Justice Miles’s decision to direct a s 475 inquiry was valid.
+HIGH COURT OF AUSTRALIA Public Information Officer 30 August 2006 CAMPBELLS CASH AND CARRY PTY LIMITED v FOSTIF PTY LIMITED AUSTRALIAN LIQUOR MARKETERS PTY LIMITED v DALE LESLIE BERNEY IGA DISTRIBUTION (VIC) PTY LIMITED v WHELAN & HAWKING PTY LIMITED QUEENSLAND INDEPENDENT WHOLESALERS PTY LTD v SYDNEY RICHARD VEITCH IGA DISTRIBUTION (SA) PTY LIMITED v PAUL ASHLEY NEINDORF AND JO-ANNE COMPOSITE BUYERS PTY LIMITED v BARRY GEORGE WILLIAMSON AND LYN IGA DISTRUTION PTY LIMITED v JOANNE MARGERET GOW, IAN RODGER GOW, PHILLIPA COMINO, LYNETTE MAREE GREEN, PETER LAURENCE GREEN Action to recover tobacco licence fees brought in the name of seven tobacco retailers could not continue as representative proceedings in the New South Wales Supreme Court because it did not comply with Supreme Court Rules, the High Court of Australia held today. Campbells Cash and Carry and the other tobacco wholesalers sued by the seven retailers supplied 21,000 supermarkets and other retailers and paid licence fees pursuant to legislation in each State and the ACT. In 1997, the High Court held in Ha v New South Wales that the licence fees were excise duties within section 90 of the Constitution and hence invalid. (Only the Commonwealth can impose excise.) In 2001, in Roxborough v Rothmans of Pall Mall Australia Ltd, the Court held that, provided certain conditions were fulfilled, retailers who had had the licence fee passed on to them could recover the amount from their wholesaler even if they had passed the fees on to customers. Amounts that could be claimed were often fairly small but potentially totalled many millions of dollars. Of the retailers involved in the case, the amounts claimed ranged from $657.57 by the Murrays to $22,939.58 by the Gow group of plaintiffs. In 2002, litigation funder Firmstones Pty Ltd encouraged retailers to claim a refund of tobacco licence fees which they had paid but which wholesalers had not passed on to taxing authorities following the Ha decision. Firmstones sought authority to act on the retailers’ behalf to recover the money. It would take one- third of the refunds. Firmstones arranged for summonses instituting the seven proceedings to be issued in June 2003. Each was commenced as representative proceedings under the Supreme Court Rules but the summonses did not list retailers to be represented by the named plaintiffs, instead providing for opt-in procedures for other affected retailers and seeking to discover wholesalers’ lists of retailers. The wholesalers sought orders that the proceedings be dismissed or stayed as an abuse or process or that they be struck out as representative proceedings. Firmstones had already signed up 2,100 retailers to be added in. Justice Clifford Einstein ordered that the proceedings not continue as representative proceedings, and dismissed applications for discovery of the names of other retailers and for joinder of additional plaintiffs. The Court of Appeal allowed the appeals from the seven retailers and ordered that the representative proceedings continue. The wholesalers appealed to the High Court, arguing that the proceedings were not covered by the Supreme Court Rules or alternatively that they constituted an abuse of process. The Court, by a 5-2 majority, allowed the appeals.
+HIGH COURT OF AUSTRALIA 7 April 2011 DANELLE EVELYN MILLER v MAURIN ASHTON MILLER [2011] HCA 9 Today the High Court allowed an appeal against a decision of the Court of Appeal of the Supreme Court of Western Australia regarding the duty of care between joint participants in an illegal enterprise: the use of a stolen car. The events giving rise to the case took place early one morning in 1998. The plaintiff, then aged 16, had been drinking and wandering in the streets in a Perth suburb with her sister and cousins. She had no money to get home and the last train had left, so she decided to steal a car. She managed to start a car in a nightclub car park. An older cousin, the defendant, then aged 27, offered to drive the plaintiff and her cousin and sister home. He got into the driver's seat and several of his friends also got into the car, totalling nine passengers. Initially the defendant drove safely, but then sped up and began to drive dangerously. The plaintiff twice asked to be let out; the defendant refused her requests. The car struck a pole, killing one passenger and injuring the plaintiff, leaving her a tetraplegic. In jointly using the stolen car, the plaintiff and the defendant together contravened s 371A of The Criminal Code (WA) ("the Code"), which provides that a person who uses a motor vehicle without the consent of the owner is said to steal that vehicle. Section 8 of the Code provides that two persons who jointly prosecute a common unlawful purpose will both be guilty of any offence that is a probable consequence of that prosecution, unless one of those persons withdraws from the prosecution by words or conduct accompanied by reasonable steps to prevent the commission of the offence. Referring to s 371A and relevant case law, the Court of Appeal of the Supreme Court of Western Australia held that the defendant owed the plaintiff no duty of care and that her action should therefore fail. The HIGH COURT OF AUSTRALIA today held that whether the prosecution of a joint illegal enterprise negates the existence of a duty of care between participants depends on the statutory purposes of the section creating the offence. The Court held that the statutory purposes of s 371A of the Code are not consistent with a finding of duty of care between those who joined in committing the crime. The purposes of s 371A encompass not only the protection of property rights, but also road safety and the prevention of dangerous driving. In the circumstances of the case, however, a majority of the Court held that the plaintiff withdrew from the joint illegal enterprise when she asked to be let out of the car, and that there were no reasonable steps then available to her to prevent the further commission of the offence. Accordingly, she was owed a duty of care by the defendant when the car struck the pole, and could recover damages for her injuries. The Court allowed the appeal, and set aside the order of the Court of Appeal, ordering that the appeal to that Court be dismissed.
+HIGH COURT OF AUSTRALIA 6 November 2013 JOHN DALY v ALEXANDER THIERING & ORS [2013] HCA 45 Today the High Court unanimously allowed an appeal against a decision of the Court of Appeal of the Supreme Court of New South Wales, which had held that s 130A of the Motor Accidents Compensation Act 1999 (NSW) ("the MAC Act") did not preclude an award of damages in respect of the treatment and care needs of a participant in the Lifetime Care and Support Scheme ("the Scheme") where those needs had been met by services rendered gratuitously. On 28 October 2007, the first respondent suffered catastrophic and permanent injuries in a motor vehicle accident. Since that time, he has been a participant in the Scheme established under the Motor Accidents (Lifetime Care and Support) Act 2006 (NSW) and administered by the Lifetime Care and Support Authority of New South Wales ("the Authority"). Pursuant to arrangements between the Authority and the second respondent (the first respondent's mother), a significant part of the first respondent's domestic care provided for under the Scheme was undertaken gratuitously by the second respondent. The first respondent sued the appellant (the driver of the motor vehicle allegedly at fault) for damages in negligence, claiming, among other things, the value of the services provided by the second respondent. In reliance upon s 130A of the MAC Act, the appellant denied liability for that part of the claim on the basis that it was for economic loss in respect of the first respondent's treatment and care needs which were already provided for under the Scheme. The Court of Appeal held that, to the extent that the first respondent's treatment and care needs were not paid for, they were not provided for under the Scheme, and might therefore be regarded as economic loss compensable by an award of damages. The High Court held that s 130A of the MAC Act precluded participants in the Scheme from recovering damages for economic loss in respect of their treatment and care needs which were provided for under the Scheme, even though they were rendered gratuitously.
+HIGH COURT OF AUSTRALIA 11 May 2022 [2022] HCA 18 Today, the High Court unanimously allowed an appeal from the Full Court of the Family Court of Australia. The appeal concerned the meaning of "breakdown of a de facto relationship" for the purposes of making property settlement orders pursuant to s 90SM of the Family Law Act 1975 (Cth) and whether there had been a breakdown in the parties' de facto relationship. The appellant and the respondent had been in a de facto relationship from late 2005 or early 2006. They had resided in the appellant's home. A fundamental premise of their relationship was that they agreed to keep their assets strictly separate. The appellant suffered a rapid cognitive decline in 2015 and was diagnosed with dementia in 2017. On account of family disputes as to the appellant's care, the NSW Civil and Administrative Tribunal ("NCAT") appointed the NSW Trustee and Guardian ("the Trustee") to make health and welfare decisions on her behalf and to manage her financial affairs. The Trustee decided to place the appellant permanently into an aged care facility and resolved to sell the appellant's home to fund those costs. Faced with the respondent's opposition to the proposal to sell the home, the Trustee sought property settlement orders from the Federal Circuit Court of Australia pursuant to s 90SM of the Act. That Court's jurisdiction to make the property settlement orders depended on the parties' de facto relationship having broken down. The primary judge imputed to the respondent an intention to separate from the appellant, meaning the de facto relationship had broken down. That finding was reversed by the Full Court. The High Court held that the parties' de facto relationship, within the meaning of s 4AA of the Act, had broken down for the purposes of s 90SM. In that context, the term "breakdown" was taken to mean "end" or "breakup". Having regard to all the circumstances, including those set out in s 4AA(2), the Court was satisfied the parties no longer had a relationship as a couple living together – that is, sharing life as a couple – on a genuine domestic basis within the meaning of s 4AA(1). That conclusion did not follow from the end of the parties' cohabitation, nor from the appellant's mental incapacity. Consistently with the reality that human relationships are infinitely mutable, a court is entitled to have regard to such matters as may seem appropriate. Accordingly, the relevant matters included: the fact that the parties occupied separate rooms in the appellant's home by 2017; the respondent acting as if he were no longer bound by the essential premise of the relationship that the parties keep their assets separate, including by securing on behalf of the appellant a new enduring power of attorney and revised will that markedly favoured his financial interests, obtained while the appellant was labouring under an incapacity; the respondent's refusal to permit the appellant's home to be sold; the respondent's parsimonious attempts to make financial contributions to support the appellant's care; and the fact that the respondent's conduct justified the intervention of NCAT and the appointment of the Trustee. Those circumstances, in aggregate, demonstrated the respondent's persistent refusal to make the necessary or desirable adjustments that might have evidenced an ongoing relationship, therefore marking the end of the parties' de facto relationship.
+HIGH COURT OF AUSTRALIA Manager, Public Information 26 August 2009 BRUTON HOLDINGS PTY LTD (IN LIQUIDATION) COMMISSIONER OF TAXATION & ANOR [2009] HCA 32 Today the High Court held that the Commissioner of Taxation could not recover part of a tax debt owing by a company in liquidation by requiring payment from the company's solicitors of monies held in trust for the company. The Commissioner had issued a notice to the solicitors under section 260-5 in Schedule 1 of the Taxation Administration Act 1953 (Cth) requiring payment of money which had been paid into their trust account by the company Bruton Holdings Pty Ltd. Bruton Holdings was incorporated on 27 May 1997, solely to act as trustee of the Bruton Educational Trust. The Commissioner of Taxation refused Bruton’s application for endorsement as a tax exempt entity in April 2006, and Bruton commenced proceedings challenging the refusal. It retained a firm of solicitors, Piper Alderman, to act on its behalf and paid approximately $470,000 into the Piper Alderman trust account in respect of the costs and disbursements of the litigation. On 28 February 2007 the Directors of the company appointed administrators. The appointment of the administrators immediately terminated Bruton’s trusteeship of the Bruton Educational Trust. No replacement trustee was appointed. On 26 March 2007 the Commissioner issued to “the Trustee for Bruton Educational Trust” a notice of assessment for $7,715,873.73 in respect of its tax liability for the 2003/04 financial year. On 30 April 2007 the creditors of Bruton Holdings resolved to place the company into voluntary liquidation. The administrators of Bruton Holdings were appointed liquidators. The Commissioner lodged a formal proof of debt in the winding up for the amount of the assessment issued on 26 March On 8 May 2007 the Commissioner issued a notice under section 260-5 of the Taxation Administration Act to Piper Alderman, requiring the firm to pay to the Commissioner the amount of $447,420.20 held in its trust account to the credit of Bruton Holdings. Bruton Holdings sought declarations in the Federal Court that the notice issued under section 260-5 was void, arguing that section 500(1) of the Corporations Act 2001 (Cth) invalidated it. Bruton Holdings was successful before the primary judge, but the Full Court of the Federal Court allowed the Commissioner’s appeal. The High Court granted Bruton Holdings special leave to appeal. The High Court held that the Commissioner could not use section 260-5 in relation to the debts of a company in liquidation. In the Court’s view, section 260-45 of the Taxation Administration Act provides a specific regime for the collection and recovery of tax liabilities of such companies by requiring liquidators to set aside from available assets of the company, an amount sufficient to pay the Commissioner the amount recoverable as an unsecured creditor in the liquidation. The provisions of section 500 of the Corporations Act, which would invalidate any attachment on the property of a company in liquidation, support the view that section 260-5 does not apply to the recovery of debts owing to companies in liquidation. Were that not the case section 260-5 would have been in conflict with section 500. The High Court allowed Bruton Holdings’ appeal and ordered that the Commissioner’s appeal to the Full Court of the Federal Court be dismissed with costs.
+HIGH COURT OF AUSTRALIA 6 April 2016 FISCHER & ORS v NEMESKE PTY LTD & ORS [2016] HCA 11 Today the High Court, by majority, dismissed an appeal from the Court of Appeal of the Supreme Court of New South Wales. The High Court held that a trustee had validly exercised a power to "advance" and "apply" trust capital or income by creating a debt reflecting the value of shares held by the trustee at the time the advance was made. The appellants are beneficiaries of the Nemes Family Trust ("the Trust"), of which the first respondent, Nemeske Pty Ltd, is trustee ("the Trustee"). The Trust's principal assets are shares in a second company, Aladdin Ltd ("Aladdin"). In July 1994, the value of those shares, $3,904,300, was recorded in an "asset revaluation reserve". In September 1994, the Trustee passed a resolution which distributed the whole of the asset revaluation reserve to two other beneficiaries of the Trust, Mr Emery Nemes and Mrs Madeleine Nemes. In August 1995, the Trustee executed a deed purportedly charging the shares in Aladdin in Mr and Mrs Nemes' favour ("the Deed of Charge"). In the Deed of Charge, the Trustee recited that it was indebted to Mr and Mrs Nemes in the sum of $3,904,300, and covenanted that it would pay the amount of that debt upon their demand. Mr and Mrs Nemes both died before any demand was made. Mr Nemes bequeathed all the shares in the Trustee and in Aladdin to the appellants. The residuary estate was left to other persons. The appellants commenced proceedings against the Trustee, the executors of Mr Nemes' estate ("the executors") and other beneficiaries of the Trust, seeking declarations including that the distribution made from the Trust was of no effect or void. The executors cross-claimed, seeking payment of the amount allegedly owing to Mr Nemes' estate. The primary judge in the Supreme Court of New South Wales held that the resolution was a valid exercise of the Trustee's power to advance and apply trust capital or income under the terms of the trust deed. That conclusion was upheld by the Court of Appeal, which also held that although there was no power to charge the shares, the covenant in the Deed of Charge confirmed that the debt owing to Mr and Mrs Nemes was payable on demand. By grant of special leave, the appellants appealed to the High Court. The majority of the High Court dismissed the appeal, holding that the resolution was an effective exercise of the Trustee's power to advance and apply trust capital or income, notwithstanding that there was no change in the beneficial ownership of the shares. The majority held that the resolution created a creditor/debtor relationship, enforceable at law, between Mr and Mrs Nemes and the Trustee. Further, the covenant in the Deed of Charge supported the advance and application made by the Trustee's resolution.
+HIGH COURT OF AUSTRALIA 4 September 2019 LEE v LEE & ORS; HSU v RACQ INSURANCE LIMITED; LEE v RACQ INSURANCE LIMITED [2019] HCA 28 Today the High Court unanimously allowed three appeals in relation to a decision of the Court of Appeal of the Supreme Court of Queensland ("the Court of Appeal") arising from a motor vehicle collision ("the collision") in which the appellant in the first appeal ("the appellant") was rendered an incomplete tetraplegic. The High Court held that the Court of Appeal erred in dismissing an appeal against a decision of the Supreme Court of Queensland, which dismissed the appellant's claim against RACQ Insurance Limited ("the RACQ"), the compulsory third-party insurer of the vehicle. At the time of the collision, the appellant was a 17-year-old youth, and was travelling in a Toyota Tarago ("the Toyota") with his mother ("the mother"), his father ("the father"), and his two younger brothers. The collision was caused by the negligence of the driver of the Toyota, which collided with a Nissan Patrol ("the Nissan") travelling in the opposite direction. The appellant brought proceedings in the Supreme Court of Queensland claiming damages for negligence against the father, the mother, and the RACQ. The sole issue at the trial was the identity of the driver of the Toyota. The case pleaded by the appellant was that his father was the driver. The RACQ counterclaimed in deceit against the appellant, the father, and the mother, for the recovery of payments made to each. It was the RACQ's case that the appellant was the driver. Its case depended upon the inference to be drawn from the presence of the appellant's blood on the driver's deflated airbag. The bloodstaining was predominantly on the windscreen side of the airbag (when inflated). The driver of the Nissan, Mr Hannan, estimated that he reached the driver's side of the Toyota within 30 to 90 seconds of the collision. He observed that, at that time, no one was in the driver's seat. The father was standing in the area between the first and second rows of seats. Mr Hannan opened the sliding driver's side passenger door and assisted the father to remove one of the three children from the vehicle. It was the RACQ's case that, in the interval between the collision and Mr Hannan's arrival, the father had lowered the driver's seat and pulled the appellant into the rear passenger seat. It was the appellant's case that the probable explanation for his blood on the airbag was that his father had wiped his hands on it after touching the appellant's bleeding face. The trial judge found that the appellant was driving the Toyota at the time of the collision. The appellant, the father, and the mother appealed to the Court of Appeal. The Court of Appeal identified critical errors in the trial judge's findings and concluded that, save for the inference to be drawn from the blood on the airbag ("the DNA evidence"), it was "much more likely" that the appellant was not the driver. However, the Court of Appeal considered that the DNA evidence substantially weakened the appellant's case and thus that the trial judge's decision was not "glaringly improbable" or "contrary to compelling inferences". The appeals were dismissed. By grant of special leave, the appellant, the father, and the mother appealed to the High Court. The High Court unanimously allowed the appeals. The High Court held that, having rejected the essential planks of the trial judge's reasoning, it was the duty of the Court of Appeal to weigh the conflicting evidence, draw its own inferences, and decide for itself which of the two hypotheses presented at trial was the more probable. The Court of Appeal's acceptance of the trial judge's assessment that the DNA evidence was persuasive overlooked that the assessment was based upon a finding that the appellant was unrestrained by the seatbelt at the time of collision. The Court of Appeal overturned that finding, but did not return to consider the significance of unchallenged expert evidence concerning the operation of the driver's seatbelt pre-tensioners and the rates of inflation and deflation of the airbag. Given that it was largely a circumstantial case, the High Court held it was not appropriate to order a new trial. The High Court agreed with the Court of Appeal's tentative conclusion that it is much more likely that the father was the driver of the Toyota and, in light of the expert evidence of the operation of the seatbelt and the airbag, the High Court did not find that conclusion was weakened by the DNA evidence.
+HIGH COURT OF AUSTRALIA Public Information Officer 2 March 2006 TREVOR KINGSLEY FERDINANDS v COMMISSIONER FOR PUBLIC EMPLOYMENT A South Australian police officer sacked after being convicted of a criminal offence did not have a right to appeal to the Industrial Relations Commission of SA, the High Court of Australia held today. The rights of police officers were governed by a separate legislative scheme. In March 2001, Mr Ferdinands was convicted of assaulting a man taken into custody for drink driving. In November 2001, the Police Commissioner terminated his employment as a police officer. Mr Ferdinands applied to the Industrial Relations Commission complaining of wrongful dismissal and seeking reinstatement. Both the Full Court of the Industrial Relations Court and the Full Court of the Supreme Court held that the Industrial Relations Commission had no jurisdiction to deal with Mr Ferdinands' case. The two Courts held that the legislative scheme relating to appointment of police officers under the SA Police Act, and termination of their appointment, was not subject to review under the Industrial and Employee Relations Act (IER Act). Mr Ferdinands appealed to the High Court, which by a 4-1 majority dismissed the appeal. It held that the Police Act impliedly excluded operation of the IER Act, the earlier of the two Acts. The nature of the Police Act and its apparent exhaustive coverage of termination created an incompatibility with the IER Act's provisions on terminations that were harsh, unjust or unreasonable. Section 40 of the Police Act confers a range of powers, from counselling to termination, upon the Police Commissioner if an officer is found guilty of a State, Territory or Commonwealth offence. A decision to dismiss an officer under section 40 is subject to review by the Supreme Court, and the conviction itself is subject to the ordinary avenues of appeal. The Court held that the Police Act should be read as a comprehensive statement of the Commissioner's powers to terminate an officer's appointment, the matters to be taken into account in exercising that power, the availability of review, and the processes for review.
+HIGH COURT OF AUSTRALIA 5 October 2005 Public Information Officer SZAYW v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS AND REFUGEE REVIEW TRIBUNAL The presence of SZAYW’s fellow applicants for protection visas did not breach the requirement that hearings to review visa decisions be heard in private, the High Court of Australia held today. SZAYW and three other stateless Palestinians arrived in Australia from Lebanon in 1998 and applied for protection visas, claiming that they would be persecuted by Hezbollah or Islamic Jihad if they returned to Lebanon. The men said they had been involved with Hezbollah and had received military training for the purpose of attacking Israel or Israeli interests in South Lebanon. They had lost enthusiasm for the conflict and left, but feared that if they returned they would suffer reprisals for desertion. The Immigration Department refused their applications for protection visas and they sought a review of that decision by the Refugee Review Tribunal. Present at the hearing were migration agents from the Refugee Advice and Casework Service (Australia) and, for part of the time, the girlfriend of one of the men. The RRT member took evidence from one man in the absence of the others. The member then questioned SZAYW and the other two men together as it was apparent to her from questioning the first man that their claims were all based on shared experiences. No objections were raised about the procedure by either the men or their migration agents. The member affirmed the department’s decision. She rejected their claims that they had a well-founded fear of persecution and did not accept much of their evidence. SZAYW complained that the RRT had not complied with section 429 of the Migration Act because the RRT hearing was not in private. The complaint was upheld by the Federal Magistrates Court, which held that the non-compliance with section 429 constituted jurisdictional error and quashed the RRT’s decision. The magistrate’s finding was reversed by the Full Court of the Federal Court, by majority. SZAYW appealed to the High Court, seeking to reinstate the magistrate’s decision. The High Court unanimously rejected the appeal and upheld the decision of the Full Court of the Federal Court. It held that section 429 of the Act must be understood in the context of section 420 which provides that the RRT is a mechanism that is fair, just, economical, informal and quick. The RRT is not bound by technicalities, legal forms or rules of evidence. Circumstances arise in which the practical content of the requirement of privacy will need to allow for the capacity to meet the objectives of fairness, economy and informality. It was to the men’s advantage to be questioned in each other’s presence as it helped them maintain consistency. SZAYW submitted that only the member, necessary RRT officers, the applicant and their agent should be present when applicants are giving evidence, but the Court held this was an unduly narrow and inflexible interpretation of section 429. The four men were close associates with claims based on shared experiences and were witnesses for each other. They had applied to have their cases heard by the same member and had the same migration agents. There was no suggestion that any of them wished to say something the others should not hear. The Court held that the conduct of the hearing caused no unfairness and was consistent with section 429.
+HIGH COURT OF AUSTRALIA 17 June 2004 MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS v SGLB The High Court of Australia today upheld an appeal by the Minister in a case involving an Iranian man’s application for a protection visa. SGLB arrived in Australia by boat in June 2000. He has given different versions of why he left Iran, initially saying he hoped to find a job and a wife and a less monotonous life with no mention of persecution and incarceration. But when he applied for a protection visa he said his family had suffered discrimination, detention and torture because they were Arab in a largely Persian nation. Later, when presented with evidence that Iranian authorities did not discriminate against Arabs, SGLB said he faced harm due to his political opinions and involvement in demonstrations rather than his ethnicity. His application for a protection visa was rejected in December 2000. This rejection has been the subject of numerous proceedings in the Refugee Review Tribunal, the Federal Court and the Federal Magistrates Court. In one proceeding SGLB told the RRT he faced harm as a member of the Hamid tribe which was associated with Iraq during the Iran-Iraq war. In a later proceeding, a differently constituted tribunal was prepared to accept SGLB had post-traumatic stress disorder (PTSD) which affected his ability to give evidence but, based on a psychologist’s report that he did not have a well-founded fear of persecution for either ethnic or political reasons and other evidence, the RRT affirmed the decision to reject the visa application. An application to the Federal Court for judicial review was transferred to the Federal Magistrates Court, which dismissed the application. He then appealed to the Federal Court which was constituted by Justice Bradley Selway, who was also dealing with a separate application in the Court’s original jurisdiction. In the appeal, Justice Selway identified three flaws in the RRT’s decision: no evidence on which the RRT could be satisfied SGLB was suffering from PTSD; no evidence to enable the RRT to assess the effects of PTSD on his credibility; and a failure by the RRT to satisfy itself that he was competent to take part in proceedings. The Minister appealed to the High Court, arguing that the RRT had not erred. In the appeal, SGLB contended that the errors identified by Justice Selway amounted to a denial of procedural fairness, but the Court rejected this contention as the RRT had sought to accommodate SGLB and his concerns during proceedings. The Court held that the RRT’s acceptance of PTSD was actually beneficial to SGLB. The Court held there was also evidence before the RRT for it to assess SGLB’s reliability and the RRT was not obliged to obtain further medical or psychiatric reports. However the Court rejected the Minister’s submission that in any event the RRT’s decision was protected against judicial review unless the RRT had not acted in good faith. The Court, by a 4-1 majority, allowed the appeal. The Minister is to pay SGLB’s costs in accordance with the terms of the grant of special leave to appeal.
+HIGH COURT OF AUSTRALIA 4 March 2004 HONG PHUC TRUONG v THE QUEEN A man found guilty of kidnapping and murder was lawfully tried and convicted even though he had been extradited from the United Kingdom on charges of conspiracy to kidnap and to murder, the High Court of Australia held today. Mr Truong was extradited from Britain to face charges of conspiracy to kidnap and conspiracy to murder but was tried in 2000 in the Victorian Supreme Court for kidnap and murder. He was convicted and sentenced to life imprisonment for murder and to 15 years’ imprisonment for kidnapping. On appeal, Mr Truong claimed his trial contravened section 42 of the Extradition Act which prohibits the trial of an extradited person for any offence other than one for which they were returned, a point not raised at his trial. The Court of Appeal dismissed an appeal and Mr Truong appealed to the High Court. Mr Truong, a Vietnamese national, allegedly headed a drug trafficking network whose operations included Hong Kong, Vietnam and Australia. In March 1996, through his sister Truong Thi Van who lived in Melbourne, he met Ha Que Thi Ha, a wealthy Vietnam-based exporter of clothing and footwear. Mr Truong and Mrs Van allegedly tried to recruit Mrs Ha to bring heroin into Australia with her clothing shipments and later demanded $400,000 in protection money. Her refusals were met with threats of harm to her and her family. After Mr Truong left Australia, two Vietnamese criminals living in the United States, arrived in Melbourne. They allegedly kidnapped Mrs Ha’s 21- year-old son Le Anh Tuan from his home in Glen Waverley. His body was found a few weeks later in an aqueduct in Noble Park. The cause of death was a single gunshot to the head. Although Mr Truong was extradited in 1997 on charges that included the kidnapping and murder conspiracy charges but not the substantive charges, four members of the High Court held that in the circumstances of this case that was immaterial, as the acts pointing to the existence of the conspiracies included the actual kidnapping and murder. Both the conspiracy offences and the substantive offences relied on the same evidence. Additionally, three members of the Court held that even if the course of proceedings had been inconsistent with section 42 that did not enable Mr Truong to have his convictions set aside. The High Court, by a 6-1 majority, dismissed the appeal.
+HIGH COURT OF AUSTRALIA 19 May 2021 MZAPC v MINISTER FOR IMMIGRATION AND BORDER PROTECTION & ANOR [2021] HCA 17 Today the High Court dismissed an appeal from the Federal Court of Australia concerning the content and proof of "materiality" – a threshold which is ordinarily required to exist for a breach of an express or implied condition of a conferral of statutory decision-making authority to result in jurisdictional error. The appellant, a citizen of India, had applied to the Refugee Review Tribunal ("Tribunal") for merits review of a decision to refuse him a protection visa under the Migration Act 1958 (Cth) ("the Act"). In the context of that review, the Secretary of the Department of Immigration and Border Protection notified the Tribunal that s 438(1)(b) of the Act applied to certain documents, including a "Court Outcomes Report", which revealed that the appellant had been convicted of, among other things, the offence of "state false name". The s 438 notification was not disclosed to the appellant, and the Tribunal's reasons made no reference to the notification nor to any of the documents specified in the notification. The Federal Circuit Court of Australia dismissed an application for judicial review of the Tribunal's decision. The appellant then appealed to the Federal Court. Before the Federal Court, there was no dispute that the Tribunal's failure to disclose the notification to the appellant had breached the implied condition of procedural fairness. The parties were at issue only in relation to the materiality of the conceded breach. The question of materiality, the Federal Court recognised, turned on whether disclosure could realistically have resulted in the Tribunal having made a different decision. The Federal Court accepted that question could not be answered in the affirmative without first finding that the Tribunal had in fact taken information covered by the notification into account in making its decision. Unable to find on the evidence that the Tribunal had taken the information into account, the Federal Court dismissed the appeal. The appellant's primary ground of appeal before the High Court consisted of two strands. First, the appellant disputed that he needed to prove that the Tribunal took information covered by the notification into account in order to establish materiality. He argued that once he had demonstrated by way of reasonable conjecture that the Tribunal could have taken the information covered by the notification into account adversely to him and that, if it did, it could have been persuaded by him to make a different decision if it had disclosed the notification to him, the onus then shifted onto the first respondent to prove that disclosure of the notification could not have resulted in the Tribunal having made a different decision. Second, the appellant contended that the Federal Court independently erred by erecting and acting on a presumption of fact that the Tribunal did not take information covered by the notification into account because there was no reference to the information in its reasons. The High Court was unanimous in dismissing the appeal but did so for different reasons. A majority of four Justices held that the counterfactual question of whether the decision in fact made could have been different had the breach not occurred cannot be answered without first determining the basal factual question of how the decision that was in fact made was in fact made. The majority held that the onus of proof in relation to materiality lies on the plaintiff, who bears the overall onus of proving jurisdictional error. The majority also rejected the second strand of the appellant's primary ground of appeal, holding that no such "presumption" exists. Finding that there was no basis in the evidence to find that the Tribunal took the information into account, the majority ultimately dismissed the appeal. The other three Justices also dismissed the appeal. The principal difference between the judgments concerned the question of which party bears the onus of proof in relation to materiality. Three Justices held that once error is identified by an applicant, the onus of proving that the error is immaterial to the decision that was reached should be on the party who seeks to affirm the decision's validity – namely, the Executive.
+HIGH COURT OF AUSTRALIA 1 June 2011 THE COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA v BHP BILLITON LIMITED & ORS [2011] HCA 17 Today the High Court dismissed appeals by the Commissioner of Taxation against the decision of the Full Federal Court of Australia regarding the construction of s 243-20(2) of the Income Tax Assessment Act 1997 (Cth) ("the Act"). The Court held that a debt owed by BHP Billiton Direct Reduced Iron Pty Ltd ("BHPDRI") to BHP Billiton Finance Limited ("Finance") was not a "limited recourse debt" and therefore the respondents were not liable to an increase in assessable income under Div 243 of the Act. BHP Billiton Ltd ("BHPB") is a listed company and its directly or indirectly wholly owned subsidiaries include Finance and BHPDRI. Finance raised, for the purposes of the BHPB group, large sums of money which it loaned to other members of the BHPB group on terms adopted by board resolution and which did not purport to limit the rights of Finance as an unsecured creditor. Finance earned a profit from the interest rates charged on loans to other members of the BHPB group. BHPB's board approved the construction of plant and facilities near Port Hedland in Western Australia for the manufacture of iron briquettes to be undertaken by BHPDRI. BHPDRI was partly funded by a loan provided by Finance on its standard terms. Further capital expenditures required to complete the project were partly funded by advances by Finance which were subsequently partly written off by Finance. The project was not successful and terminated in May The expenditure which BHPDRI incurred on the project gave rise to "capital allowance" deductions claimed by BHPDRI for the years 1996-2002 and by BHPB for the years 2003-2006. In 2007, the Commissioner issued a notice of assessment applying Div 243 of the Act to reduce the capital allowance deductions claimed by BHPDRI for the years 2003-2006. BHPDRI transferred its tax losses in the years 2000-2002 to other companies in the BHPB group ("the transferees") and the Commissioner's adjustments resulted in reductions to those transferred amounts which was reflected in assessments issued to the transferees. BHPB's objection to the Commissioner's assessment was disallowed. BHPB and the transferees appealed to the Federal Court. The primary judge held that limited recourse debt was not used wholly or partly to finance or refinance BHPDRI's expenditure so that Div 243 did not apply. The Full Court dismissed the Commissioner's appeal. The Commissioner appealed, by special leave, to the High Court. The Act provides, inter alia, that Div 243 applies if limited recourse debt has been used to wholly or partly finance or refinance expenditure. The dispute between the parties was whether limited recourse debt had been used. One definition of "limited recourse debt" is found in s 243-20(2). Section 243-20(2) provides that an obligation imposed by law on a debtor to pay an amount to the creditor is limited recourse debt if it is reasonable to conclude that the rights of the creditor as against the debtor in the event of default in payment of the debt or interest are "capable of being limited" in the way mentioned in s 243-20(1) having regard to certain specified matters. It was the operation of this definition which was argued in the High Court. The Commissioner argued that BHPDRI's debt to Finance was a "limited recourse debt" under s 243-20(2) of the Act. The Commissioner contended that s 243-20(2) of the Act was not concerned with current contractual limitations or rights or with economic equivalence but was concerned with a practical capacity or ability to bring about legal limitations on legal rights. The Commissioner also argued that Finance's contractual rights at the inception of each loan were "capable" of restriction should BHPDRI default because the parties were not dealing at arm's length. The High Court held that BHPDRI's debt to Finance was not a "limited recourse debt" within the meaning of Div 243. The Court held that s 243-20(2) is not directed to possibilities for limitation of a creditor's rights of recourse which may arise in the future.
+HIGH COURT OF AUSTRALIA 30 March 2010 Manager, Public Information COMMISSIONER OF TAXATION v PHILLIP BAMFORD & ORS PHILLIP BAMFORD & ANOR v COMMISSIONER OF TAXATION [2010] HCA 10 The High Court today dismissed an appeal by the Commissioner of Taxation and an appeal by two taxpayers from a decision of the Full Court of the Federal Court which concerned construction of the phrases “the income of the trust estate” and “that share of the net income of the trust estate”, both found in s 97(1) of the Income Tax Assessment Act 1936 (Cth) (the 1936 Act). In the 2000 and 2002 tax years, Mr Phillip Bamford and Mrs Davina Bamford were directors of P&D Bamford Enterprises Pty Ltd. At the time P&D Bamford Enterprises (the Trustee) acted as trustee of the Bamford Trust. Under the terms of the trust deed it was within the Trustee’s absolute discretion to determine whether receipts were to be treated as income or capital of the trust, and to determine the distribution of the trust income to beneficiaries. In the 2000 tax year, the net income of the Bamford Trust was recorded in its accounts as $187,530. The Trustee determined to distribute the income thus: $643 to each of Mr and Mrs Bamford’s two children; $12,500 to Narconon Anzo Inc; $106,000 to Church of Scientology Inc; $68,000 to Mr and Mrs Bamford to be shared between them equally; and the balance to Church of Scientology Inc. In the event, there was insufficient income to distribute $68,000 to Mr and Mrs Bamford. They each received $33,872 and there was no remaining balance to distribute to the Church of Scientology. In accounting for the net income of the Bamford Trust, the Trustee had claimed certain deductions totalling $191,701 which the Commissioner of Taxation disallowed. Although Mr and Mrs Bamford did not dispute the disallowance of the deductions in the Federal Court or before the High Court, they did dispute the Commissioner’s decision to assess, pursuant to s 97(1) of the 1936 Act, an extra $34,624 against each of them, on the basis that this amount represented a proportion of the $191,701 of disallowed deductions equivalent to the proportion (18.062%) they had each received of the trust’s distributable income of $187,530. Mr and Mrs Bamford argued that they were required to pay tax only on the actual amount of $33,872 which the Trustee had distributed to them. In the 2002 tax year, the Trustee treated a net capital gain of $29,227 arising from the sale of certain trust property as income available for distribution. The capital gain was divided equally and distributed to Mr and Mrs Bamford. They each lodged tax returns for the 2002 tax year which reflected that distribution. The Commissioner, however, considered the capital gain should not be included in the “income of the trust estate”, with the result that there was no “income of the trust estate” to which s 97(1) of the 1936 Act could apply for that income year. Therefore, the Trustee itself was assessed under s 99A of the 1936 Act. Mr and Mrs Bamford lodged objections to the Commissioner’s decisions concerning their 2000 tax year income, and the Trustee lodged an objection against the Commissioner’s decision concerning the 2002 tax year net capital gain. The Commissioner disallowed all objections and the Administrative Appeals Tribunal affirmed the Commissioner’s decisions in all appeals. The Full Federal Court dismissed Mr and Mrs Bamford’s appeals, and allowed the Trustee’s appeal, against the decision of the Administrative Appeals Tribunal, having held that the Trustee was entitled, according to the trust deed, to treat the capital receipts as income and to distribute it to Mr and Mrs Bamford, with the result that it was assessable under s 97(1) of the 1936 Act against them. The High Court granted special leave to Mr and Mrs Bamford and to the Commissioner to appeal the Full Court’s decision. The High Court unanimously dismissed both the Bamfords’ and the Commissioner’s appeals. In relation to the 2000 year of income, the High Court held that reference to “a share of the income of the trust estate” in the opening sentence of s 97(1) refers to a beneficiary’s share of distributable income. The assessable income of a beneficiary who is entitled to a share of distributable income includes “that share of the net income of the trust estate” which is attributable to a period when a beneficiary was a resident. “[N]et income” is defined in s 95(1) of the 1936 Act to mean, essentially, taxable income, that is, income after all allowable deductions have been subtracted. “[T]hat share” refers back to the first reference to “share” and indicates that the same share, meaning proportion, is to be applied to the net income of the trust estate (that is, the notional taxable income of the trust estate) as was applied to the income of the trust estate (that is, the actual distributable income) to determine a beneficiary’s assessable income. In the 2000 year of income, the net income of the Bamford Trust included the amount of $191,701 which had been wrongly claimed as a deduction. Thus, the assessable income of Mr and Mrs Bamford included a share of $191,701 equivalent to the share they each received of the distributable income, an amount of In relation to the 2002 year of income, the High Court noted that “net income” (as part of the phrase occurring in s 97(1) – “net income of the trust estate”) is defined in s 95(1) of the 1936 Act, whereas “income of the trust estate” was undefined. This suggested that the content of the latter phrase was to be found in the general law of trusts. The language of s 97(1) of the 1936 Act also invoked concepts intimately related to the general law of trusts. Thus the word "income" was to be understood as income of the trust estate as understood in trust law. The Trustee had an absolute discretion to treat the net capital gain as income of the Trust, in accordance with the terms of the trust deed. There was no basis upon which the Commissioner should treat it any differently.
+HIGH COURT OF AUSTRALIA 5 December 2007 Public Information Officer BLUEBOTTLE UK LIMITED, CRICKET SA, VIRGIN HOLDINGS SA AND BARFAIR LIMITED v DEPUTY COMMISSIONER OF TAXATION AND VIRGIN BLUE HOLDINGS LIMITED Assignments of dividend rights to two foreign shareholders in Virgin Blue were ineffective to displace Virgin Blue’s obligation to retain money to cover the tax liabilities of those shareholders resulting from earlier transactions, the High Court of Australia held today. On 11 November 2005, Virgin Blue’s directors declared a final, fully franked dividend of 25 cents per ordinary share with payment due on 15 December 2005. They fixed 28 November 2005 as the record date. On that date, Cricket held 23 per cent of the issued capital of Virgin Blue and Virgin Holdings held 2.08 per cent. Cricket and Virgin Holdings, both Geneva-based corporations, could expect dividends of about $65 million. The Tax Commissioner alleged that each was liable to pay tax on a capital gain made on disposal of Virgin Blue shares in 2003. The Commissioner attempted to intercept the two companies’ dividend payments and have the amounts applied to their tax liabilities. On 12 December 2005, the Commissioner gave Virgin Blue two notices directing it to retain $72,518,346.06 in respect of Cricket and $20,839,554.45 in respect of Virgin Holdings to cover their tax. (Cricket was later assessed to be liable to pay $64,441,613.86 in tax and interest and Virgin Holdings’ liability was assessed at $20,483,993.56.) The notices were issued pursuant to section 255 of the Income Tax Assessment Act (ITAA). The day after the notices were issued, the two companies assigned their dividend rights to Bluebottle which gave Virgin Blue an irrevocable direction to pay the dividends to Barfair. On 14 December 2005, the Commissioner issued assessment notices to Cricket and Virgin Holdings for the year to 31 March 2004. On 15 December 2005, Bluebottle, Cricket, Virgin Holdings and Barfair commenced proceedings in the New South Wales Supreme Court seeking declarations that the various transactions were effective and that notices issued by the Commissioner had no force or effect in relation to the dividend. Justice Ian Gzell made such declarations but the Commissioner’s appeal to the Court of Appeal was allowed. The Court of Appeal ordered Virgin Blue to pay the Commissioner the dividends that had been declared. The other four companies appealed to the High Court. The Court unanimously dismissed the appeal. It held that in the circumstances of the case the Commissioner’s first notices did not comply with section 255(1) of the ITAA as no assessment had been issued to Cricket or Virgin Holdings so no tax was due by them. By contrast, when the Commissioner’s second notice was given, assessments had been issued to the two companies and tax was then due and payable. Virgin Blue had control of money belonging to its shareholders because it was liable to pay the declared dividend to those who were its shareholders on the record date. Despite the assignments to Bluebottle, Virgin Blue remained liable to pay the dividend to Cricket and Virgin Holdings. Virgin Blue was obliged to retain from the dividends sufficient funds to pay the tax due under each assessment.
+HIGH COURT OF AUSTRALIA 9 September 2004 JOHN DAVID RICH AND MARK ALAN SILBERMANN v AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION Proceedings seeking an order disqualifying a person from managing corporations were proceedings for a penalty, so defendants could claim privilege against exposure to penalties to enable them to resist discovery of documents in pre-trial procedures, the High Court of Australia held today. In civil proceedings in the New South Wales Supreme Court, ASIC, pursuant to the Corporations Act, sought declarations that Mr Rich and Mr Silbermann had contravened their duties as directors of One.Tel, orders that they pay One.Tel $93 million in compensation, and orders disqualifying them from managing a corporation. ASIC also sought an interlocutory order that the pair make discovery of documents, but they contended that the material to be disclosed was covered by the privilege against exposure to penalties. Supreme Court Justice Robert Austin ordered Mr Rich and Mr Silbermann to hand over the documents and the NSW Court of Appeal by majority dismissed an appeal. Both Justice Austin and the Court of Appeal held that ASIC’s proceedings were not penal and that disqualification orders were protective rather than punitive. An appeal from Mr Rich and Mr Silbermann to the High Court was heard on 22 April. The Court, by a 6-1 majority, allowed the appeal with costs and ordered ASIC’s application for discovery be dismissed. The Court’s written reasons for judgment were handed down today. ASIC had submitted that because no pecuniary penalty order was sought – only declarations of contravention, compensation orders and disqualification orders – Mr Rich and Mr Silbermann were not exposed to penalties. Mr Rich and Mr Silbermann argued the declarations of contravention and disqualification orders amounted to penalties or forfeiture within the meaning of the privilege to resist discovery of documents. The High Court accepted their argument. The majority held that for ASIC to seek an order disqualifying persons from managing a corporation on the ground that they have contravened the law is to seek a penalty or forfeiture. The order is sought by a regulatory authority, it is founded on demonstration of a contravention of the law, it requires the vacating of office in a corporation, and it imposes a continuing disability for the duration of the order. The majority held that a distinction between “punitive” and “protective” purposes was unhelpful as disqualification may serve both. The question was not what purpose a disqualification order served but what was the nature of the order sought. Whether proceedings had a purpose of protecting the public was not determinative. Seeking to classify proceedings as either protective or penal invited error as the categories were not mutually exclusive and proceedings may bear several characters. Once it was determined that the proceedings exposed a person to penalty or forfeiture, the proper course was to refuse any order for discovery. The civil proceedings brought by ASIC against the One.Tel directors remain on foot in the NSW Supreme Court.
+HIGH COURT OF AUSTRALIA 5 October 2011 TASTY CHICKS PTY LIMITED & ORS v CHIEF COMMISSIONER OF STATE REVENUE [2011] HCA 41 Today the High Court held that a review by a judge of the Supreme Court of New South Wales from a decision of the Chief Commissioner of State Revenue ("the Commissioner") disallowing an objection to an assessment for pay-roll tax, was not limited to considering whether the Commissioner had erred on the materials before him and failed to make the objection decision according to law. The High Court allowed an appeal from a decision of the Court of Appeal of the Supreme Court of New South Wales, which had held that the right of review was so limited. The fourth and fifth appellants, Mr and Mrs Souris, conducted in partnership a chicken meat processing business ("the Firm"). The third appellant ("Souris Holdings") owned premises, portions of which were separately let to the Firm, the first appellant ("Tasty Chicks") and the second The Pay-roll Tax Act 1971 (NSW) ("the Pay-roll Tax Act ") and the Taxation Administration Act 1996 (NSW) ("the Administration Act") contain "grouping" provisions. These are designed to counter tax avoidance effected by using additional entities to split business activities so that each entity attracts the benefit of pay-roll tax thresholds. The grouping provisions allow the Commissioner to treat separate entities as a single entity for pay-roll tax purposes. The "de- grouping" provisions could be applied by the Commissioner if it were unreasonable to apply the "grouping" provisions. The appellants objected to assessments under the Pay-roll Tax Act and the Administration Act which related to three periods: 1 July 2001 – 30 June 2003 ("the first period"); 1 July 2003 – 30 June 2005 ("the second period"); and 1 July 2005 – 30 June 2007 ("the third period"). The assessments were based upon the Commissioner's grouping of the appellants. In effect, the appellants challenged the Commissioner's refusal to "de-group" Tasty Chicks, Angelo Transport and the Firm. Section 97 of the Administration Act provided that a taxpayer could apply to the Supreme Court of New South Wales for a "review" if dissatisfied with the Commissioner's determination of an objection made under Div 1 of Pt 10. Section 100(2) of the Administration Act provided that, on an application for review before the Supreme Court, "the applicant's and respondent's cases ... are not limited to the grounds of the objection" that were before the Commissioner. Section 101(1)(b) of the Administration Act relevantly provided that the court or tribunal dealing with the application for review could make an assessment or other decision in place of the assessment or other decision to which the application related. Section 19(2) of the Supreme Court Act 1970 (NSW) had the effect that proceedings in the Supreme Court under s 97 of the Administration Act were an "appeal" for the purposes of the Supreme Court Act if so described in the Administration Act. Section 97(4) of the Administration Act provided that a review by the Supreme Court was taken to be an appeal for the purposes of the Supreme Court Act and the regulations and rules made under that Act, except as otherwise provided by that Act or those regulations or rules. The primary judge set aside the Commissioner's disallowance of the appellants' objections. The primary judge held that the Commissioner was not entitled to apply the "grouping" provisions in relation to the first period. In relation to the second and third periods, the primary judge applied the de-grouping provisions. In applying the de-grouping provisions, the primary judge held that the Court was entitled to re-exercise the Commissioner's powers. The Court of Appeal allowed the Commissioner's appeal, holding that an applicant for review of a decision not to de-group had to establish that the Commissioner erred on the materials before him. The High Court unanimously held that, when all the above provisions were read together, the primary judge's view of the Supreme Court's jurisdiction and powers was correct. The High Court held that the Court of Appeal erred in considering that the jurisdiction and powers conferred upon the Supreme Court required the taxpayers to show that the Commissioner had erred on the materials before him and that the exercise of discretion by the Commissioner was vitiated by error.
+HIGH COURT OF AUSTRALIA Public Information Officer 29 May, 2003 KENNETH FRANCIS STANTON v THE QUEEN The High Court of Australia today dismissed Mr Stanton’s appeal against his conviction for the wilful murder of his estranged wife, Marie Ann Stanton, in Lake Clifton, south of Perth, in March 1999. The issue in Mr Stanton’s trial in the Western Australian Supreme Court was intent. He did not deny shooting his wife, but said that when he went to her house with a shotgun loaded with heavy-gauge ammunition he merely intended to frighten her and make her see sense in their Family Court dispute and did not intend to kill her or to cause her grievous bodily harm. The jury was directed that it could find Mr Stanton guilty of either wilful murder, murder or manslaughter, or it could find him not guilty. The only verdicts realistically open on the evidence were wilful murder or manslaughter. The trial judge, Justice Robert Anderson, directed the jury to first consider wilful murder. If they were unanimously of the view that Mr Stanton was not guilty of the offence, they should consider murder, and if they unanimously believed he was not guilty of murder they could then consider manslaughter. If they unanimously found him not guilty of manslaughter they should acquit him. Mr Stanton argued Justice Anderson should not have prescribed the order in which the jury should have addressed alternative verdicts, and in addition the directions he gave effectively reversed the onus of proof. The WA Court of Criminal Appeal held that Justice Anderson erred in his directions to the jury and in his answer later to a jury question but, by majority, decided there was no miscarriage of justice. The High Court, by a 3-2 majority, dismissed the appeal. It held that, taken as a whole, there was no error in Justice Anderson’s directions to the jury.
+HIGH COURT OF AUSTRALIA 21 March 2007 Public Information Officer A v STATE OF NEW SOUTH WALES AND JOHN FLOROS Succumbing to pressure to lay a charge with no reasonable and probable cause constituted a malicious prosecution, the High Court of Australia held today. A, a NSW police service employee, was charged in March 2001 with homosexual intercourse with his 12- and 10-year-old stepsons, D and C, when they were aged eight and nine respectively. The boys were placed in foster care after the first interviews in October 2000 which followed a complaint of sexual abuse by an unidentified complainant. Detective Constable Floros was part of the joint investigation team in the Child Protection Enforcement Agency, and interviewed the boys, their mother S, and A. At committal proceedings in August 2001, C admitted his evidence was false and that he lied to help his brother who disliked A intensely. The magistrate discharged A on both counts, concluding there was no reasonable prospect that a jury could convict him. A commenced proceedings for malicious prosecution, unlawful arrest, unlawful imprisonment and abuse of process. The District Court heard that Detective Floros had told A’s solicitor, Greg Walsh, that he felt sorry for A but was under pressure to charge A because he was a police employee. In a second conversation Detective Floros repeated that he had been under pressure to charge A and if it had been up to him he would not have done so. He agreed with Mr Walsh that the boys’ evidence was unreliable. Judge Harvey Cooper dismissed all causes of action apart from the claim of malicious prosecution in relation to the charge concerning C and awarded A $31,250. He held that Detective Floros had acted maliciously by charging A for the improper purpose of succumbing to pressure from Child Protection Enforcement Agency officers to charge A. The Court of Appeal dismissed an appeal by A against Judge Cooper’s decision in relation to the charge concerning D but allowed a cross-appeal by the State and Detective Floros against the decision in relation to the charge concerning C. A appealed to the High Court, which today unanimously allowed the appeal and ordered that Judge Cooper’s decision be restored. The appeal related to two of the required elements for a successful action for damages for malicious prosecution: that the defendant acted maliciously in initiating or maintaining the proceedings, and that the defendant acted without reasonable and probable cause. To constitute malice, the sole or dominant purpose of the prosecutor in bringing the proceedings must be a purpose other than to properly invoke the criminal law. Absence of reasonable and probable cause may be established by showing either that the prosecutor did not honestly believe the case that was instituted and maintained or that the prosecutor had no sufficient basis for such a belief. The Court held that it was open to Judge Cooper to conclude that neither charge was brought for the purpose of bringing a wrongdoer to justice but that the charges were the result of succumbing to pressure. However, absence of reasonable and probable cause was demonstrated only in respect of C, so A had proved malicious prosecution in respect of the charge concerning C. The Court also held that it was open to Judge Cooper to find that Detective Floros either did not form the view that a charge was warranted in respect of C or, if he did form that view, that there was no sufficient basis for doing so. The High Court held that the Court of Appeal had erred in interfering with Judge Cooper’s findings of fact which depended upon his assessment of the credibility of the evidence given respectively by Detective Floros and Mr Walsh.
+HIGH COURT OF AUSTRALIA 26 May 2010 Manager, Public Information HAJAMAIDEEN MOHAMED ANSARI v THE QUEEN ABDUL AZEES MOHAMED ANSARI v THE QUEEN [2010] HCA 18 Today the High Court held that a charge, under s 11.5 of the Criminal Code (Cth) ("the Code"), of conspiracy to commit an offence that has recklessness as its fault element is not bad in law. The appellants, Hajamaideen Mohamed Ansari and Abdul Azees Mohamed Ansari, are brothers who operated a money exchange business in Sydney. They arranged for the collection and deposit into various bank accounts of approximately $2 million. Each deposit was for an amount less than $10,000 in cash. The appellants were alleged to have made similar arrangements in relation to a further $2 million to $3 million in cash, though they were arrested before receiving any of the money. Under the Financial Transaction Reports Act 1988 (Cth) ("the FTR Act"), banks and other financial institutions are obliged to report cash transactions involving amounts of $10,000 or more to a Federal Government agency. Pursuant to s 31 of the FTR Act, a person commits an offence if he or she is a party to two or more cash transactions involving less than $10,000 and it would be reasonable to conclude that the person conducted the transaction(s) in a particular manner or form so as to avoid the transaction(s) being reported to the relevant federal agency. The appellants were jointly tried and convicted on charges — under ss 11.5 and 400.3(2) of the Code — of conspiring to deal with money worth $1 million or more, being reckless as to the risk that the money would be used as an instrument of crime. They appealed unsuccessfully to the NSW Court of Criminal Appeal. On 2 October 2009, they were granted special leave to appeal to the High Court from that decision. The appellants' principal argument before the High Court was that the charges against them were bad in law because a criminal conspiracy under the Code could not have as its object an offence an element of which is recklessness. They contended that, were it otherwise, such a charge would require proof that the appellants intended to be reckless as to the fact that there existed a risk that the money would become an instrument of crime. The High Court rejected the argument, holding as incorrect the premise on which it was based — that proof of an intention to commit an offence requires proof of an intention that each physical element of the offence will come into existence and that the fault element specified for that physical element will also come into existence at the same time. What is required, the Court held, is proof of an intention that an act or acts be performed, which, if carried out, would amount to the commission of an offence. The appellants' argument did not take into account that, under the Code, recklessness may be satisfied by proof of intention or knowledge. Provided that the appellants intended that the conduct upon which they agreed would be carried out and that they knew all the facts that made that conduct criminal, it did not matter that the offence that was the object of the conspiracy charge was one for which the fault element is recklessness. A second argument — that the Court of Criminal Appeal mischaracterised the physical and fault elements of the offence of conspiracy under s 11.5 of the Code — was rejected for the reasons given in the Court's decision in R v LK [2010] HCA 17, also handed down today. The High Court dismissed the appeals.
+HIGH COURT OF AUSTRALIA 17 August 2017 TRANSPORT ACCIDENT COMMISSION v MARIA KATANAS [2017] HCA 32 Today the High Court unanimously dismissed an appeal from the Court of Appeal of the Supreme Court of Victoria concerning the narrative test of serious injury under s 93(17) of the Transport Accident Act 1986 (Vic) ("the narrative test") laid down in Humphries v Poljak [1992] 2 VR 129. The respondent was involved in a motor vehicle accident in July 2010. Following the accident, she suffered a range of psychological symptoms including lowered mood, nightmares and daytime thoughts of the accident. She also reported restrictions in her social pursuits and difficulties in concentration. The respondent received psychological treatment, and, in April 2013, she was prescribed anti-depressant medication and began to attend on a psychiatrist. Medical evidence indicated that the respondent had suffered a post-traumatic stress disorder and either a major depressive disorder or an adjustment disorder which was substantially related to the accident. On 16 April 2013, the respondent filed an originating motion in the County Court of Victoria seeking leave to commence common law proceedings for a serious injury under s 93(4) of the Transport Accident Act. The primary judge refused leave, holding that, although the respondent had received considerable treatment and medication, she had not been an inpatient in any psychiatric institution "nor suffered the more extreme symptoms of psychological trauma". The respondent appealed to the Court of Appeal contending, inter alia, that the primary judge misdirected himself as to the objective assessment of the severity of her mental disorder by conceiving of severity solely in terms of the extent of treatment necessitated by the disorder. The majority of the Court of Appeal held that although the extent of treatment may cast light on whether the disorder was "severe", it was only one among a range of considerations that needed to be taken into account. By grant of special leave, the appellant appealed to the High Court on the ground that the majority of the Court of Appeal displaced the part of the narrative test from Humphries v Poljak concerning the evaluation of the instant case against the range or spectrum of comparable cases. The High Court unanimously held that the majority of the Court of Appeal did not err in holding that the range as formulated by the primary judge was incomplete because it had regard only to one criterion of the comparative severity of a mental disorder, namely, the extent of treatment. The majority of the Court of Appeal rightly emphasised that, in assessing severity by comparison to the range of comparable cases, a judge must identify and bring to account all of the relevant factors. Accordingly, the majority of the Court of Appeal had not departed from the narrative test. The High Court declined to entertain an alternative contention put by the appellant that the majority of the Court of Appeal had misunderstood the primary judge's formulation of the range.
+HIGH COURT OF AUSTRALIA 4 December 2013 WILLMOTT GROWERS GROUP INC v WILLMOTT FORESTS LIMITED (RECEIVERS AND MANAGERS APPOINTED) (IN LIQUIDATION) [2013] HCA 51 Today the High Court, by majority, held that the liquidators of a company had power under Div 7A of Pt 5.6 of the Corporations Act 2001 (Cth) to disclaim leases granted by the company to investors. It also held that disclaimer terminated the landlord's obligations and the tenants' correlative rights arising under the leases. The Court dismissed the appeal from the Court of Appeal of the Supreme Court of Victoria. Willmott Forests Limited (the first respondent) was the manager of forestry investment schemes associated with a group of companies known as the Willmott group. Willmott Forests (or its predecessor) leased to participants in those schemes portions of land which Willmott Forests owned or leased. In September 2010, Willmott Forests (and other companies in the Willmott group) went into voluntary administration. Receivers and managers were also appointed to property which companies in the group had charged. In March 2011, the creditors of Willmott Forests resolved that the company should be wound up. They appointed the second and third respondents as liquidators of the company. The liquidators concluded that the schemes could not continue to operate and, in conjunction with the receivers and managers, sought to sell the assets of Willmott Forests. No one expressed interest in purchasing any of the assets encumbered by the schemes or in becoming the responsible entity or manager of any of the schemes. When sale contracts were concluded, each contract provided that title to the assets the subject of the contract was to pass to the purchaser free from the encumbrances arising out of the schemes. The liquidators applied to the Supreme Court of Victoria for directions and orders about the sales that had been negotiated. Willmott Growers Group Inc (the appellant) acted as a contradictor of the arguments advanced by the liquidators. Relevantly, s 568(1) of the Corporations Act gave the liquidator of a company power to disclaim certain property of the company, including property consisting of a contract. Section 568D(1) provided that a disclaimer was taken to terminate, from the effective date of the disclaimer, the company's rights, interests, liabilities and property in or in respect of the disclaimer property. The Supreme Court held that those provisions did not empower the liquidators to disclaim the leases with the effect of extinguishing the tenants' estates or interests in the land. The Court of Appeal reversed this decision, finding that it was necessary to extinguish the tenants' rights under the leases in order to release Willmott Forests from liability. By special leave, Willmott Growers Group appealed to the High Court. A majority of the Court held that s 568(1) of the Corporations Act gave the liquidator of a company power to disclaim a lease granted by the company to a tenant. A lease granted by the company to a tenant was "a contract" within the meaning of that provision. The effect of s 568D(1) was that, from the effective date of the disclaimer, the tenant's rights arising under the lease were terminated and the tenant's estate or interest in the land was brought to an end. As such, the liquidators had the power to disclaim the leases to investors with the effect of terminating the tenants' estates or interests in the land.
+HIGH COURT OF AUSTRALIA 19 October 2022 TL v THE KING [2022] HCA 35 Today, the High Court unanimously dismissed an appeal from a decision of the New South Wales Court of Criminal Appeal. The High Court held that tendency evidence admitted against the appellant at trial was admissible under s 97(1) of the Evidence Act 1995 (NSW). Tendency evidence is evidence of the character, reputation or conduct of a person which is adduced to prove that the person has or had a tendency to act in a particular way or to have a particular state of mind, and is not admissible under s 97(1)(b) unless the court thinks that it will, either by itself or having regard to other evidence, have "significant probative value". The appellant was convicted in the Supreme Court of New South Wales of the murder of his two and a half year old stepdaughter. The victim died as the result of blunt force trauma to her abdomen. There was no dispute that only three people had the opportunity to inflict the fatal injuries. To support its case that the appellant was the perpetrator, the prosecution adduced two categories of tendency evidence to prove that the appellant had a tendency to "deliberately inflict physical harm on the child". The first category concerned burns the victim sustained 10 days prior to the fatal injuries while in the bath in the appellant's care, and the second comprised three pieces of hearsay evidence of statements the victim made to relatives to the effect that the appellant had hurt her neck, caused bruising on her arm, and punched her. The trial judge admitted both categories. The appellant contended that the tendency evidence was wrongly admitted because it was not sufficiently similar to the charged conduct, relying on the observation of the majority in Hughes v The Queen (2017) 263 CLR 338 ("Hughes") that, where tendency evidence is adduced "to prove the identity of the offender for a known offence, the probative value of tendency evidence will almost certainly depend upon close similarity between the conduct evidencing the tendency and the offence". The High Court unanimously held that the majority's observation in Hughes does not establish a general rule requiring close similarity between the conduct evidencing the tendency and the offence in every case where the identity of the offender is in issue. It instead postulates a situation where there is little or no other evidence of identity, and the identity of the perpetrator is at large. The assessment of probative value requires consideration of two interrelated but separate matters: the extent to which the evidence supports the asserted tendency, and the extent to which the tendency makes more likely the fact or facts sought to be proved by the evidence. Here, the evidence supported the existence of the asserted tendency. As there was other strong evidence which went to identity, and there were only two other possible perpetrators, the tendency was sufficiently striking that its existence was capable of being important to a conclusion that the appellant was the perpetrator and, accordingly, the evidence had significant probative value. This was so even without the close similarity insisted upon by the appellant.
+HIGH COURT OF AUSTRALIA Public Information Officer 28 September 2006 Comcare must assess compensation for a workplace physical injury and a psychiatric injury separately, rather than treat the second injury as merely a cumulative effect of the first, the High Court of Australia held today. Mr Canute worked for the Department of Defence as a civilian cleaning and maintenance contractor. He injured his back at work in 1997 and again in 1998. He was unable to work for two years after the second incident. Comcare allowed his claim for his back injury. In 1999 Mr Canute lodged a claim for permanent injury compensation. A doctor assessed him as having 15 per cent whole person impairment with respect to his back injury and 10 per cent for his right leg, in which he suffered chronic pain radiating from his back. The doctor assessed that 50 per cent of his condition existed before the work injuries. Comcare accordingly made an award of 12 per cent impairment under section 24 of the Safety, Rehabilitation and Compensation Act, which amounted to $13,731.28, plus $15,876.80 for non- economic loss under section 27 of the Act. In 2002, he lodged a second claim for permanent injury compensation after being diagnosed as having an adjustment disorder with depression. Comcare denied liability on the basis that Mr Canute’s whole person impairment had not increased by at least 10 per cent, as required by section 25(4) of the Act. This states that where Comcare has made a final assessment of an employee’s degree of permanent impairment, no further amounts shall be payable in respect of a subsequent increase in the degree of impairment unless the increase is 10 per cent or more. The Administrative Appeals Tribunal affirmed Comcare’s decision to deny Mr Canute further lump sum compensation for the psychiatric injury. It found that combining the 12 per cent impairment for the back injury with the 10 per cent impairment for the adjustment disorder produced a 21 per cent whole person impairment, which was an increase of less than the 10 per cent required for further compensation. In the Federal Court, Justice Graham Hill overturned the AAT’s determination. He held that the AAT had erred in failing to consider whether the chronic adjustment disorder was itself “an injury” for the purposes of the Act. The fact that the two injuries arose from a single event was not relevant as the Act is concerned with injuries rather than incidents. Justice Hill’s decision was overturned by a majority of the Full Court. Mr Canute then appealed to the High Court. The Court unanimously allowed the appeal and directed that Comcare determine an amount payable to Mr Canute in accordance with sections 24 and 27 of the Act for an adjustment disorder resulting in a degree of permanent impairment of 10 per cent. The Court held that the AAT had misapplied the concept of “injury” as defined by the Act and restored Justice Hill’s decision. It held that the Full Court majority had departed from the terms of section 25(4) and misconstrued the Act by describing the disorder as contributing to a subsequent increase in the degree of impairment attributable to the earlier back injury, rather than as a separate “injury” resulting in an impairment giving rise to a separate liability under section 24. The Court held that the Act makes no distinction between “an injury” and a consequential or secondary injury. As the adjustment disorder was a separate injury, not related to the impairments resulting from the back injury, section 25(4) did not apply.
+HIGH COURT OF AUSTRALIA 27 April 2005 STEPHEN BLACKADDER v RAMSEY BUTCHERING SERVICE PTY LTD An Australian Industrial Relations Commission (AIRC) order for reinstatement of an employee required the employer to provide actual work to the reinstated employee, the High Court of Australia held today. Mr Blackadder, a boner at Ramsey’s abattoir in Grafton, was sacked in September 1999 after he refused to undertake hot neck boning instead of his usual hindquarter boning of pre-chilled carcasses. Hot neck boning involves freeing meat from the bones from the neck to the ribs and requires greater rotational force of the elbow and wrist than general boning. Mr Blackadder had an old injury to his right elbow affecting movement in that arm. He refused to do hot neck boning because he had no experience or training in it. He may therefore have been a danger to himself and others in undertaking that work. In March 2000, AIRC Commissioner Bob Redmond found the termination to be unfair, harsh and unreasonable. He ordered that Mr Blackadder be reinstated with all his entitlements and that his lost salary and entitlements be restored. Ramsey wrote to him to say he was required to have a medical assessment before resuming physical work. When Mr Blackadder refused to undergo the examination, because he said Commissioner Redmond’s order did not require it, and he was ready, willing and able to resume his previous boning work, Ramsey stopped his wages. In July 2000 Mr Blackadder commenced action in the Federal Court of Australia to enforce the AIRC orders. Ramsey resumed paying him but refused to provide him with work and arranged a medical examination, to which he was prepared to submit, for February 2001. However the doctor refused to examine him because Mr Blackadder insisted on his wife being present. Ramsey again stopped his wages. Mr Blackadder eventually underwent a medical examination in April 2001. Ramsey resumed paying him but still refused to provide him with work. In the Federal Court in May 2001, Justice Rodney Madgwick held that reinstatement included giving Mr Blackadder his usual work and ordered Ramsey to let him resume chilled boning work. The Full Court of the Federal Court, by majority, allowed in part an appeal by Ramsey. It held that an employer had no obligation to provide work unless a contract of employment specifically required it. The Full Court left the reinstatement order intact except for specifying that he was to work as a boner in the chilled boning room, meaning he could be directed to do hot neck boning. The High Court unanimously allowed an appeal by Mr Blackadder. It held that to pay him, but not to restore him to his usual position in the workplace, was not to reinstate him. The AIRC had power under the Workplace Relations Act to make an order requiring the employer to provide a reinstated worker with actual work to do and the Federal Court had power to enforce an order. The Court held that Mr Blackadder had to be given back his job, performing the same duties on the same terms and conditions, and that reinstatement was not conditional on a medical examination.
+HIGH COURT OF AUSTRALIA 9 February 2022 ZG OPERATIONS & ANOR v JAMSEK & ORS [2022] HCA 2 Today, the High Court allowed an appeal from a judgment of the Full Court of the Federal Court of Australia. The appeal concerned whether two truck drivers were engaged by a company as employees or independent contractors. Between 1977 and 2017, Mr Jamsek and Mr Whitby ("the respondents") were engaged as truck drivers by a business run by the second appellant ("the company"). The respondents were initially engaged as employees of the company and drove the company's trucks. However, in 1985 or 1986, the company offered the respondents the opportunity to "become contractors" and purchase their own trucks. The respondents agreed to the new arrangement and set up partnerships with their respective wives. Each partnership executed written contracts with the company for the provision of delivery services, purchased trucks from the company, paid the maintenance and operational costs of those trucks, invoiced the company for its delivery services, and was paid by the company for those services. Income from the work performed for the company was declared as partnership income for the purposes of income tax and split between each respondent and his wife. The respondents commenced proceedings in the Federal Court of Australia seeking declarations in respect of certain entitlements alleged to be owed to them pursuant to the Fair Work Act 2009 (Cth), the Superannuation Guarantee (Administration) Act 1992 (Cth) and the Long Service Leave Act 1955 (NSW). The respondents claimed to be owed those entitlements on the basis that they were employees of the company. The primary judge concluded that the respondents were not employees, and instead were independent contractors. The Full Court overturned that decision and held that, having regard to the "substance and reality" of the relationship, the respondents were employees. The High Court unanimously held that the respondents were not employees of the company. A majority of the Court held that, consistently with the approach adopted in Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1, where parties have comprehensively committed the terms of their relationship to a written contract, the efficacy of which is not challenged on the basis that it is a sham or is otherwise ineffective under general law or statute, the characterisation of that relationship as one of employment or otherwise must proceed by reference to the rights and obligations of the parties under that contract. After 1985 or 1986, the contracting parties were the partnerships and the company. The contracts between the partnerships and the company involved the provision by the partnerships of both the use of the trucks owned by the partnerships and the services of a driver to drive those trucks. The context in which the first contract was entered into involved the company's refusal to continue to employ the drivers and the company's insistence that the only relationship between the drivers and the company be a contract for the carriage of goods. This relationship was not a relationship of employment.
+HIGH COURT OF AUSTRALIA Public Information Officer 2 October 2008 MINISTER ADMINISTERING THE CROWN LANDS ACT v NSW ABORIGINAL LAND COUNCIL Steps taken to sell off an old motor vehicle registry in Wagga Wagga did not amount to use of the land, so the site was open to claim by the Aboriginal Land Council, the High Court of Australia held today. On 23 May 2005, the Land Council, on behalf of the Wagga Wagga Local Aboriginal Land Council made a claim under the NSW Aboriginal Land Rights Act to the 815 square metre allotment in the Wagga business district. A derelict two-storey brick building stood on the site. It was used as a motor registry from 1958 to 1985 and afterwards has been used to store old office furniture. After a plan to turn the building into a laboratory was abandoned in 2004, the State government decided to sell the site. Before the land claim was made, a real estate agent was appointed, an identification survey of the land was made, the Register-General issued a certificate of title, reservation of the land for a “government supply department office and workshop” was revoked, and an auction date of 8 July 2005 was fixed. The Minister for Lands refused the claim, concluding that the land was not claimable Crown land because it was lawfully used and occupied by the Department of Lands in preparing it for sale. The Land Rights Act’s definition of “claimable Crown lands” was limited to lands that were “not lawfully used or occupied”. The Land Council appealed to the NSW Land and Environment Court against the refusal of the claim. Justice Peter Biscoe dismissed the appeal and held that the decision to sell the land and the steps taken to do so were an actual use of the land. The Land Council appealed to the Court of Appeal which allowed the appeal, held that the land was not being used when the claim was made, declared that the land was claimable Crown land, and ordered the Minister to transfer the land to the Wagga Land Council. The Minister appealed to the High Court. The Court unanimously dismissed the appeal. It held that sale of the land would amount to exploitation of the land as an asset but it did not follow that exploitation by sale amounted to use of the land. The steps taken to bring about the sale did not amount to lawful use. Nothing was being done on the land when the claim was made and nothing had been done for a considerable time before then. Visits by surveyors and the real estate agent did not amount to a use of the land for the purposes of the Land Rights Act and everything else that was being done towards selling the land occurred elsewhere.
+HIGH COURT OF AUSTRALIA 10 June 2015 KING v PHILCOX [2015] HCA 19 Today the High Court unanimously allowed an appeal from a decision of the Full Court of the Supreme Court of South Australia and held that while the Full Court did not err in finding that the appellant owed the respondent a duty of care under s 33 of the Civil Liability Act 1936 (SA), the respondent could not recover damages for mental harm because of the operation of s 53 of the Act. Section 33(1) provides that it is a necessary condition for the establishment of a duty of care not to cause mental harm that "a reasonable person in the defendant's position would have foreseen that a person of normal fortitude in the plaintiff's position might, in the circumstances of the case, suffer a recognised psychiatric illness". Section 33(2) lists circumstances to be considered in applying s 33(1), which, in the case of pure mental harm, include the nature of the relationship between the plaintiff and any person killed, injured or put in peril. Section 53(1) limits the circumstances in which a plaintiff may recover damages for mental harm caused by an accident. If the plaintiff is not a parent, spouse or child of a person killed, injured or endangered in the accident, he or she must have been physically injured in the accident or "present at the scene of the accident when the accident occurred" to recover damages. On 12 April 2005, the respondent's brother was a passenger in a motor vehicle driven by the appellant. Between 4.50pm and 4.55pm, as a result of the appellant's negligence, the vehicle collided with another vehicle at an intersection in Campbelltown, Adelaide. The respondent's brother died while trapped in the vehicle. After the collision, the respondent drove through or turned left at the intersection on five occasions. On the final occasion the accident scene had been cleared. The respondent was told later that evening that his brother had died in a traffic accident. He realised this was the accident at the intersection, the aftermath of which he had witnessed. He visited the accident scene the next day. Subsequently, he developed a major depressive disorder. The respondent brought proceedings in the District Court of South Australia seeking damages for mental harm. The District Court found that the respondent owed the appellant a duty of care, but that the appellant could not recover damages because he had failed to establish causation and did not satisfy the requirements for recovery of damages under s 53. The Full Court of the Supreme Court of South Australia allowed an appeal from that decision and awarded damages. The Full Court held that the respondent satisfied the necessary requirements of duty, breach and causation, and that he was present at the scene of the accident "when the accident occurred", within the meaning of s 53(1)(a). By grant of special leave, the appellant appealed to the High Court. The appellant submitted he did not owe the respondent a duty of care and that even if a duty of care existed, the respondent could not recover damages because of the operation of s 53. The High Court allowed the appeal, holding that while the Full Court did not err in finding that a duty of care was owed to the respondent under s 33, the respondent was not present at the scene of the accident "when the accident occurred", within the meaning of s 53(1)(a). As the respondent could not satisfy the requirements of s 53, he could not recover damages.
+HIGH COURT OF AUSTRALIA Public Information Officer 1 February 2007 ALAN DAVID JOHN KLEIN v MINISTER FOR EDUCATION The High Court of Australia today revoked its grant to former Perth security guard Mr Klein of special leave to appeal. Mr Klein worked for Falcon Investigations and Security, which had a contract with the Minister to provide security for designated public schools in the State. On the night of 1 November 1999, while patrolling Perth schools, he was called to a primary school where a youth was smashing windows. Chasing the intruder through knee-high grass in the school grounds, Mr Klein fell. His injuries included a broken kneecap. He was unable to continue to work for Falcon. Mr Klein brought an action against the Minister in the WA District Court under the Occupiers’ Liability Act. The Minister argued he was a deemed employer under section 175(1) of the then Workers’ Compensation and Injury Management Act. He relied on the 2002 decision by the Full Court of the WA Supreme Court, Hewitt v Benale Pty Ltd, that the deeming by section 175(1) of both principal and contractor as employers meant that the constraints on damages in the Act applied to injured workers bringing action, independently of the Act, against a person who was deemed by section 175 to be their employer. Mr Klein argued that, because section 175(3) provided that a principal contractor was not liable unless the work on which the worker was employed was directly a part or process in the principal’s trade or business, the Occupiers’ Liability Act applied. The District Court held that provision of security services was not work which is directly a part or process in the trade or business of the Minister and the Minister had a duty as an occupier of land to protect entrants in respect of the state of the premises under the Occupiers’ Liability Act. Mr Klein was awarded damages of $100,187. The WA Court of Appeal allowed the Minister’s appeal, holding that maintaining government schools, including securing them, was to be treated as the trade or business of the Minister and Mr Klein’s work was directly a part of that trade or business. Mr Klein was then granted special leave to appeal to the High Court in relation to the construction of section 175. The Court, by a 3-2 majority, revoked the special leave to appeal granted to Mr Klein. The minority would not have revoked special leave but would have dismissed the appeal. In 2004, the WA Parliament amended the Act to prevent section 175 curtailing the rights of workers to make claims against such persons independently of the Act. The majority held that the Parliament’s reliance on the correctness of Hewitt v Benale Pty Ltd, coupled with the closing of the class of cases in which issues of the kind raised in this case, make it inappropriate for the High Court now to consider whether to disturb the state of the law as stated in Hewitt.
+HIGH COURT OF AUSTRALIA 9 December 2020 UMINISTER FOR HOME AFFAIRS v DUA16 & ANOR; MINISTER FOR HOME AFFAIRS v CHK16 & ANOR [2020] HCA 46 Today the High Court unanimously dismissed the appeal in Minister for Home Affairs v CHK16 & Anor and allowed the appeal in Minister for Home Affairs v DUA16 & Anor. CHK16 and DUA16 each paid a registered migration agent to provide submissions on their behalf to the Immigration Assessment Authority ("the Authority"). The agent acted fraudulently by providing pro forma submissions to the Authority and concealing this fact from her clients in the belief that, if she disclosed this fact, her clients would not have paid for her professional services. In CHK16's case the entirety of the personal circumstances referred to in the submissions concerned the wrong person; they contained no personal information relevant to CHK16's claims. In DUA16's case the submissions contained some personal information that was relevant to DUA16's claims, but they also contained information that related to a different applicant. In both cases the Authority was unaware of the agent's fraud, but noticed that the submissions contained information that concerned another individual and disregarded this information. effect on The Federal Circuit Court set aside the Authority's decision in both cases on the basis that the performance of the Authority's functions had been stultified by the agent's conduct. An appeal to the Full Court of the Federal Court was dismissed by a majority of that Court. The Minister appealed to the High Court on the basis that the agent's fraud had not been shown to have had any the Migration Act 1958 (Cth). By notices of contention each of CHK16 and DUA16 argued that the Full Court's decision should be upheld because it was legally unreasonable for the Authority not to have exercised its power to obtain corrected submissions, involving potentially new information, from the agent when it knew that the submissions concerned the wrong person in whole or in part. the Authority under Pt 7AA of function of statutory The High Court held that the agent's fraud did not vitiate the Authority's decision because it had not been shown that the agent's fraud had affected a particular duty, function, or power of the Authority. However, the Court upheld the notice of contention in CHK16's case, concluding that it was legally unreasonable for the Authority to have failed to request submissions pursuant to s 473DC of the Migration Act in circumstances where it was aware that CHK16 intended to provide submissions, that those submissions might contain new information, and that the submissions in fact provided concerned the personal circumstances of another individual entirely. There was no such unreasonableness in DUA16's case because the Authority drew the reasonable conclusion that the information relating to another individual had been included by mistake.
+HIGH COURT OF AUSTRALIA 28 September 2017 ANDREW DAMIEN WILKIE & ORS v THE COMMONWEALTH OF AUSTRALIA & ORS; AUSTRALIAN MARRIAGE EQUALITY LTD & ANOR v MINISTER FOR FINANCE MATHIAS CORMANN & ANOR [2017] HCA 40 Today the High Court published unanimous reasons in two proceedings, each commenced in the Court's original jurisdiction, in which the Court upheld the validity of s 10 of the Appropriation Act (No 1) 2017-2018 (Cth) ("the Act"), the Advance to the Finance Minister Determination (No 1 of 2017-2018) ("the Finance Determination") and the Census and Statistics (Statistical Information) Direction 2017 ("the Statistics Direction"). On 7 September 2017, the High Court dismissed the first proceeding ("the Wilkie proceeding") and gave answers to questions reserved in the second proceeding ("the AME proceeding") rejecting the challenge on its merits. Section 12 of the Act provided that the Consolidated Revenue Fund was appropriated as necessary for the purposes of the Act. Schedule 1 to the Act specified services for which money was appropriated. Section 10 of the Act provided for an "Advance to the Finance Minister", up to a total amount of $295 million, which could be used if the Finance Minister was satisfied that there was an urgent need for expenditure, in the current year, that was not provided for, or was insufficiently provided for, in Schedule 1 because the expenditure was unforeseen until after the last day on which it was practicable to provide for it in the Bill for the Act. The last day on which it was practicable to provide for expenditure in that Bill was 5 May 2017. On 9 August 2017, the Finance Minister announced that the Government would proceed with a voluntary postal plebiscite to ask electors whether the law should be changed to allow same-sex couples to marry. The Finance Minister also announced that he had made the Finance Determination, under s 10 of the Act, to provide $122 million to the Australian Bureau of Statistics ("the ABS") to allow it to conduct the postal plebiscite. On the same day, the Treasurer gave the Statistics Direction, which directed the Australian Statistician to collect statistical information about the proportion of electors who wished to express a view about whether the law should be changed to allow same-sex couples to marry and the proportions of such electors who were in favour of and against the law being changed. The plaintiffs in the Wilkie proceeding submitted that s 10 of the Act was constitutionally invalid as it was not an appropriation for a purpose that Parliament had lawfully determined may be carried out and impermissibly delegated Parliament's power of appropriation to the Finance Minister. The Court held that these arguments were based on a fundamental misconstruction of the Act. The provision of the Act which appropriated the Consolidated Revenue Fund was s 12, not s 10. The power of the Finance Minister to make a determination under s 10(2) was a power to allocate the whole or part of the $295 million specified in s 10(3), which was already appropriated. The Court held that it was for Parliament to determine the degree of specificity with which the purpose of an appropriation is identified and that to appropriate by s 12 the amount specified in s 10(3) to be applied in accordance with a direction by the Finance Minister under s 10(2) was to appropriate that amount for a purpose which Parliament had lawfully determined may be carried out. In addition, the plaintiffs in each proceeding submitted that the Finance Determination was not authorised by s 10 of the Act because the preconditions in s 10 had not been met and because the Finance Minister had erred in law by conflating the statutory question of his satisfaction as to the expenditure being urgent with the distinct statutory question of his satisfaction as to the expenditure being unforeseen. The Court held that whether expenditure was unforeseen was a matter for the Minister's satisfaction. Further, the need for the expenditure did not have to arise from a source external to Government. The Court held that the Finance Minister formed the requisite state of satisfaction and there was no error of law in either his reasoning or his conclusion. The plaintiffs in the Wilkie proceeding also argued that the Statistics Direction exceeded the power of the Treasurer under s 9(1)(b) of the Census and Statistics Act 1905 (Cth). The Court held that the Statistics Direction was valid on the basis that the information to be collected by the Australian Statistician was "statistical information", that the information was "in relation to" matters prescribed in the Census and Statistics Regulation 2016 (Cth), and that there was nothing in s 9(1)(b) to prevent the Treasurer from specifying from whom information was to be collected. An argument that the Australian Electoral Commission was not authorised to assist the ABS in the implementation of the Statistics Direction also failed. The merits of the grounds in each proceeding having been fully argued and the Court having unanimously reached the conclusion that those grounds were without substance, the Court held that it was unnecessary and inappropriate in the circumstances to determine whether the plaintiffs in each proceeding, or any of them, had standing.
+HIGH COURT OF AUSTRALIA 30 May 2012 PGA v THE QUEEN [2012] HCA 21 Today the High Court by majority dismissed an appeal from the Full Court of the Supreme Court of South Australia, which had held that a husband could be guilty of rape of his wife in 1963. In 2010, the appellant was charged with a number of criminal offences including two counts of rape. It was alleged that in 1963 the appellant raped his then wife, with whom he lived at the time. In 1963, s 48 of the Criminal Law Consolidation Act 1935 (SA) ("the CLC Act") criminalised rape but did not define the elements of the offence. Those elements were supplied by the common law. Legislative amendments in South Australia, which removed the limitation period in respect of offences against s 48, permitted the prosecution of the appellant despite the lapse of time between 1963 and 2010. A Judge of the District Court of South Australia stayed the trial of the appellant and reserved for determination by the Full Court the following question of law: "Was the offence of rape by one lawful spouse of another ... an offence known to the law of South Australia as at 1963?" A majority of the Full Court answered that the appellant could be guilty of rape of his wife in 1963. By special leave, the appellant appealed to the High Court seeking to set aside this answer to the reserved question of law. In the Full Court and in the High Court, the appellant argued that until the High Court's decision in R v L (1991) 174 CLR 379, the common law with respect to rape in marriage was correctly stated by Sir Matthew Hale. In 1736, Hale wrote that a husband could not be guilty of raping his wife because, by marriage, she gave her irrevocable consent to intercourse. In 1991, the High Court in R v L held that, if it was ever a part of the common law of Australia that by marriage a wife gave irrevocable consent to sexual intercourse with her husband, this was no longer a part of the common law by 1991. A majority of the High Court dismissed the appeal. The majority held that if the marital exemption to rape was ever a part of the common law of Australia, it had ceased to be so at least by the time of the enactment of s 48 of the CLC Act in 1935. Local statute law, including legislation about divorce, property and voting, had removed any basis for the acceptance of Hale's proposition as a part of the common law applicable in Australia in 1963. The majority emphasised that this conclusion involved no retrospective variation or modification of a settled rule of the common law of Australia.
+HIGH COURT OF AUSTRALIA 16 June 2021 MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS v DEANNA LYNLEY MOORCROFT [2021] HCA 19 Today, the High Court unanimously allowed an appeal from the Federal Court of Australia. The appeal concerned the construction of para (d) of the definition of "behaviour concern non-citizen" in s 5(1) of the Migration Act 1958 (Cth) ("the Act") and in particular whether "removed ... from Australia" in para (d) means taken out of the country in fact or removed in accordance with the Act. Upon returning to Australia from New Zealand in January 2018, the respondent was automatically granted a special category visa. Her visa was purportedly cancelled the next day and she was taken into immigration detention before being required to depart Australia ("purported cancellation decision"). The purported cancellation decision was subsequently quashed by the Federal Circuit Court of Australia with the result that the cancellation of the respondent's visa was "retrospectively nullified" so that the respondent was not an unlawful non-citizen when she left Australia. When she returned to Australia in January 2019, the respondent's application for a new special category visa was refused on the basis that she was a "behaviour concern non-citizen" due to her removal from Australia in January 2018 ("refusal decision"). The respondent challenged the refusal decision first unsuccessfully in the Federal Circuit Court and then successfully on appeal to the Federal Court. The appellant ("Minister") accepted that there was no power to remove the respondent in January 2018 but contended that this was irrelevant because, as the Federal Circuit Court concluded, "removed" means taken out of Australia in fact. The respondent contended, and the Federal Court agreed, that a non-citizen is not "removed" from Australia unless that removal is effected in accordance with Div 8 of Pt 2 of the Act. The High Court unanimously overturned the Federal Court's decision and concluded that the Minister's contention was correct: "removed ... from Australia" in para (d) means removed in fact. Accordingly, although the purported cancellation decision was quashed, the Court held that this did not change the historical fact that the respondent had been removed from Australia and was therefore a "behaviour concern non-citizen" within the meaning of the Act. The Court reasoned that this interpretation accords with the ordinary literal meaning of para (d) and is supported by the statutory context and purpose of facilitating fast and simple decision-making about whether to grant special category visas. The Court held the respondent's construction of para (d), that "removed" means lawfully or validly removed, may involve delegates of the Minister engaging in a complex and time-consuming evaluative assessment about the circumstances of a person's removal, a task which delegates are likely to be ill-equipped to perform at immigration clearance. The literal construction avoids a result that would require the Executive, on occasion, and ultimately Australian courts, to assess the legality of actions of other governments. The appeal was therefore allowed, and the Federal Court's orders set aside.
+HIGH COURT OF AUSTRALIA 7 October 2015 ALCAN GOVE PTY LTD v ZABIC [2015] HCA 33 Today the High Court published its reasons for dismissing an appeal from a decision of the Court of Appeal of the Northern Territory of Australia. The High Court unanimously held that the respondent was not statute-barred from suing the appellant in negligence in respect of mesothelioma he contracted as a result of inhaling asbestos fibres during his employment with the appellant. The respondent was employed as a labourer at the appellant's alumina refinery from 1974 to 1977. Around late 2013 or early 2014, he began to experience symptoms of mesothelioma. The Workers Rehabilitation and Compensation Act (NT) ("the Act") abolished common law actions in negligence with respect to certain workplace injuries and provided for limited statutory rights to compensation for injured workers. Sections 52(1) and 189(1) of the Act provided, in effect, that the respondent could not sue the appellant for damages in negligence unless his cause of action accrued before 1 January 1987. The respondent commenced proceedings in the Supreme Court of the Northern Territory of Australia. The main issue in dispute was whether the respondent had suffered compensable damage before 1 January 1987. The evidence at trial was that the asbestos fibres that the respondent inhaled while working at the refinery caused changes to his mesothelial cells soon after the inhalation, which ultimately culminated in malignant mesothelioma. The changes to the cells were likely to have lain dormant until one to five years before the first manifestation of symptoms. At that point, an unknown "trigger" set off the development of abnormal genetic switches in the respondent's mesothelial cells that resulted in malignancy. The respondent's claim was dismissed at trial, but the Court of Appeal allowed the respondent's appeal. The Court of Appeal held that, with the benefit of hindsight, it was possible to infer that the mesothelial cell changes that occurred soon after exposure to asbestos between 1974 and 1977 led inevitably and inexorably to the onset of mesothelioma. The respondent's cause of action therefore arose before 1 January 1987. By grant of special leave, the appellant appealed to the High Court. On 12 August 2015, the High Court published an order dismissing the appeal. In its reasons published today, the Court unanimously held that, on the evidence given at trial, it could be inferred that the "trigger" which led to mesothelioma was present in the respondent's mesothelial cells when the initial changes to the cells occurred. It followed that, because the mesothelial cell changes were bound to lead to mesothelioma, the respondent had suffered compensable damage at the time of the cell changes. His cause of action in negligence therefore arose before 1 January 1987 and his claim against the appellant was not barred by the Act.
+HIGH COURT OF AUSTRALIA 30 March 2011 NOELENE MARGARET EDWARDS & ORS v SANTOS LIMITED & ORS [2011] HCA 8 Today the High Court issued a writ of certiorari to quash decisions of the Federal Court of Australia which had dismissed proceedings instituted by registered native title claimants arising out of negotiations for an Indigenous Land Use Agreement ("ILUA") under the Native Title Act 1993 (Cth) ("the NTA"). The plaintiffs are members of the Wongkumara People. The land the subject of their native title claim is in Queensland and New South Wales. Two of the defendants hold an authority to prospect in respect of land in Queensland falling within the boundaries of the claimed land ("the petroleum defendants"). The authority to prospect was granted by the second defendant, the State of Queensland, under the Petroleum Act 1923 (Q). Section 40 of the Petroleum Act entitled the holder of an authority to prospect to the lease of land for petroleum exploration (a "production lease"). The Wongkumara People and the petroleum defendants negotiated entry into an ILUA in relation to future grants which might be "future acts" within the meaning of the NTA. The petroleum defendants asserted that the authority to prospect which they held pre-dated the NTA and that any production leases emanating from the authority to prospect would be "pre-existing rights based acts" and not subject to the "right to negotiate" under the NTA. The plaintiffs took issue with the contention that the production leases would be pre-existing rights based acts and instituted proceedings in the Federal Court seeking declaratory and injunctive relief. The plaintiffs' claim was summarily dismissed under s 31A(2) of the Federal Court of Australia Act 1976 (Cth) on the ground that the application had no reasonable prospect of success and that the Federal Court did not have jurisdiction to hear the application. The Full Federal Court refused leave to appeal from the orders of the primary judge. Section 33(4B)(a) of the Federal Court of Australia Act precluded the plaintiffs from seeking special leave to appeal to the High Court against the Full Court's decision. Accordingly, the plaintiffs applied, in the High Court's original jurisdiction, for the issue of writs pursuant to s 75(v) of the Constitution in relation to the Federal Court decisions. The High Court held that the Federal Court had jurisdiction to hear and determine the plaintiffs' application because there had been a "matter" arising under a federal enactment, namely, the NTA, the plaintiffs had not sought an advisory opinion and the plaintiffs had standing to seek declaratory and injunctive relief. The Federal Court had wrongfully denied its jurisdiction and thereby fell into jurisdictional error attracting a writ of certiorari to quash its decisions. A majority of the High Court additionally considered that an order in favour of the plaintiffs should be made for the costs of the Federal Court proceedings under the High Court's power in s 32 of the Judiciary Act 1903 (Cth) to grant remedies in the cause or matter before it to completely and finally determine so far as is possible all matters in controversy between the parties.
+HIGH COURT OF AUSTRALIA 19 June 2019 [2019] HCA 21 Today the High Court unanimously allowed an appeal from a judgment of the Full Court of the Family Court of Australia concerning parenting orders made under Pt VII of the Family Law Act 1975 (Cth) ("the Act"). In 2006, the appellant provided semen to the first respondent for her to conceive a child by way of artificial insemination. At the time of conception, he believed that he was fathering the child and would thus support and care for her. His name was entered on the child's birth certificate as her father. Although the child lived with the first respondent and later also her de facto partner ("the second respondent"), the appellant continued to have an ongoing role in the child's financial support, health, education and general welfare. He was described by the primary judge as enjoying an extremely close and secure attachment relationship with the child. By 2015, the first and second respondents had resolved to move overseas and take the child with them. The appellant responded by instituting proceedings in the Family Court of Australia for orders under the Act, among other things, conferring shared parental responsibility between himself and the first and second respondents. Section 60H of the Act provides rules in respect of the parentage of children born of artificial conception procedures. The primary judge accepted that the appellant did not qualify as parent under s 60H but held that, because that provision expanded rather than restricted the categories of people who could be parents, and because the appellant was a parent within the ordinary meaning of the word, the appellant was a parent of the child for the purposes of the Act. On appeal, the Full Court of the Family Court agreed that s 60H was not exhaustive, but held that, because the matter was within federal jurisdiction, s 79(1) of the Judiciary Act 1903 (Cth) picked up and applied s 14 of the Status of Children Act 1996 (NSW), under which the appellant was irrebuttably presumed not to be the child's parent. By grant of special leave, the appellant appealed to the High Court. A majority of the High Court held that s 79(1) of the Judiciary Act did not pick up and apply ss 14(2) and 14(4) of the Status of Children Act because the presumption in ss 14(2) and 14(4) operated as a rule of law, determinative of parental status, independently of anything done by a court or other tribunal, in contrast to provisions regulating the exercise of jurisdiction. The majority also held that, even if ss 14(2) and 14(4) were provisions regulating the exercise of State jurisdiction, they could not be picked up by s 79(1) of the Judiciary Act, because the Act had "otherwise provided" within the meaning of s 79(1).. Further, because the tests for contrariety under s 79(1) of the Judiciary Act and s 109 of the Constitution were identical, ss 14(2) and 14(4) did not form a part of the single composite body of law operating throughout the Commonwealth and as such apply of their own force in federal jurisdiction as a valid law of New South Wales. Finally, the majority held that no reason had been shown to doubt the primary judge's conclusion that the appellant was a parent of the child.
+HIGH COURT OF AUSTRALIA 9 March 2016 MORETON BAY REGIONAL COUNCIL v MEKPINE PTY LTD [2016] HCA 7 Today the High Court unanimously allowed an appeal from the Court of Appeal of the Supreme Court of Queensland. The High Court held that the respondent ("Mekpine"), the holder of a retail lease in a shopping centre on certain land ("former Lot 6") that was later amalgamated with an adjacent lot of land ("former Lot 1"), did not acquire an interest over the entire amalgamated lot ("new Lot 1"). Accordingly, the High Court held that Mekpine was not entitled to compensation under the Acquisition of Land Act 1967 (Q) when part of new Lot 1 that was previously part of former Lot 1 was resumed by the appellant ("the Council"). Mekpine entered into a retail lease in a shopping centre. The terms of the lease relevantly gave Mekpine an entitlement to use the "Common Areas" of the "Land". "Land" was defined in the lease as former Lot 6. The lessor later purchased former Lot 1. In accordance with planning approval to extend the shopping centre, former Lot 6 was amalgamated with former Lot 1 by the registration of a plan of subdivision that created new Lot 1. Subsequently, the Council resumed a strip of vacant land from part of new Lot 1 that was previously part of former Lot 1 ("the Resumed Land"). The Resumed Land was never part of former Lot 6. Mekpine brought proceedings in the Land Court of Queensland seeking compensation on the basis that it gained an interest in the Resumed Land upon registration of the plan of subdivision that created new Lot 1. In the alternative, Mekpine claimed it had an interest in the Resumed Land because the definition of "Common Areas" in the lease was inconsistent with, and should be substituted by, the broader definition of "common areas" in the Retail Shop Leases Act 1994 (Q) ("the RSLA"). The Land Court upheld Mekpine's claim for compensation. The Land Appeal Court of Queensland allowed the Council's appeal from the Land Court's judgment, concluding that the amalgamation of former Lot 1 with former Lot 6 did not confer on Mekpine any interest beyond the land previously comprised in former Lot 6. Mekpine appealed to the Court of Appeal of the Supreme Court of Queensland and the appeal was allowed. The Court of Appeal held that Mekpine had an interest in the Resumed Land because, on registration of the plan of subdivision that created new Lot 1, the reference to "Land" in the lease became a reference to new Lot 1. It also held that the RSLA, in effect, amended the lease so that the "Common Areas" as defined in the lease became the "common areas" in new Lot 1. By grant of special leave, the Council appealed to the High Court. The High Court unanimously allowed the appeal, holding that, despite the registration of the plan of subdivision that created new Lot 1, the terms of the lease confined Mekpine's interest to so much of new Lot 1 as had previously been comprised in former Lot 6. The Court also held that the RSLA definition of "common areas" did not supplant the definition of "Common Areas" in the lease to give Mekpine a compensable interest in the Resumed Land.
+HIGH COURT OF AUSTRALIA 14 June 2017 STATE OF NEW SOUTH WALES v DC & ANOR [2017] HCA 22 Today the High Court revoked a grant of special leave to appeal against a decision of the Court of Appeal of the Supreme Court of New South Wales. The High Court unanimously held that the case was not an appropriate vehicle for considering the scope or extent of the duty of care owed by the State of New South Wales in the exercise of certain powers under child welfare legislation. Two sisters were subjected to sustained physical and sexual abuse by their stepfather for many years. In April 1983, one of the sisters made a complaint about the abuse to the Department of Youth and Community Services ("the Department"), a department of the State. Under the now repealed Child Welfare Act 1939 (NSW) ("the CW Act"), where the Director of the Department had been notified that a child had been assaulted or was a neglected child, the Director was required to take such action as he believed appropriate, "which may include reporting those matters to a constable of police". The Department took immediate steps following the complaint but did not exercise the power to report the abuse to the police. In 2008, the sisters commenced proceedings in negligence in the Supreme Court of New South Wales against the State and one of the Department's officers. They claimed damages for harm caused by continued abuse by their stepfather after the complaint to the Department. The sisters contended that the Department breached its duty of care to them by not reporting the abuse to the police. The primary judge found that the Department had breached its duty of care to the sisters. However, the primary judge was not satisfied that the stepfather had continued to abuse the sisters after the complaint, and therefore found that the breach was not a necessary condition of the harm suffered by the sisters. The Court of Appeal, by majority, allowed an appeal by the sisters. The majority concluded that the abuse continued after the complaint to the Department. The majority also held that the Department breached its duty of care to the sisters. By grant of special leave, the State appealed to the High Court. On 10 May 2017, the High Court revoked special leave in relation to a ground of appeal relating to the vicarious liability of the State. The ground was based on a concession which may not have reflected the true state of the applicable law at the relevant times, because the statute providing for vicarious liability of the Crown was not in force at the time of the complaint. Today the High Court revoked special leave in relation to the remaining ground of appeal, which related to whether the scope of the duty of care owed by the State extended to exercising the power to report the abuse of the sisters to the police. The State accepted that there was a duty to use reasonable care in the exercise of the powers under the CW Act. Further, it accepted that there would be cases where the only reasonable exercise of those powers would be to report abuse to the police. The primary judge had made such a finding in this case. The High Court held that, in light of the course taken by the State, this case was not an appropriate vehicle for considering the scope or extent of the duty of care owed by the State.
+HIGH COURT OF AUSTRALIA 21 October 2005 GREG COMBET AND NICOLA ROXON MP v COMMONWEALTH OF AUSTRALIA AND THE HONOURABLE KEVIN ANDREWS MP AND SENATOR THE HONOURABLE The Federal Government’s expenditure on its advertising campaign to promote its proposed industrial relations reforms was permitted by the Appropriation Act (No 1) 2005-2006, the High Court of Australia held today. Prime Minister John Howard announced the workplace reform package on 26 May 2005 and the ACTU immediately began a national campaign of rallies and advertising. On 9 July 2005 the Federal Government began a newspaper, television and radio advertising campaign. Mr Combet, the secretary of the ACTU, and Ms Roxon, the shadow attorney-general, contended that expenditure of public money on the advertisements was unlawful. The High Court handed down its orders on 29 September 2005, after hearing Mr Combet and Ms Roxon’s challenge on 29 and 30 August, and today handed down its written reasons for those orders. The Court, by a 5-2 majority, held that Mr Combet and Ms Roxon had not made out a case for the relief sought. They had sought declarations that paying for the advertisements and the drawing of money for those payments were not authorised and also an injunction restraining any further drawing of money. A majority of the Court held that it had not been shown that the drawings were not covered by the Appropriation Act and, in particular, the terms of Schedule 1 to that Act relating to the Employment and Workplace Relations portfolio.
+HIGH COURT OF AUSTRALIA 6 April 2005 NUHA JAMIL KOEHLER v CEREBOS (AUSTRALIA) LIMITED Cerebos was not liable for a psychiatric condition suffered by Ms Koehler as Cerebos had no reason to suspect that her working conditions were a risk to her psychiatric health, the High Court of Australia held today. Ms Koehler, 50, claimed she was unable to cope with the workload she was given in her three-day- a-week job as a merchandiser, setting up displays of goods in Perth supermarkets. She had worked as a full-time sales representative for 18 months, negotiating sales of Cerebos’s products to independent supermarkets. When Cerebos lost the right to distribute a brand of tea, it retrenched Ms Koehler but offered her the part-time merchandising job. On her first day when she was shown the list of stores for which she would be responsible she said she could not possibly cover them all in three days, but her supervisor asked her to try it for a month. Ms Koehler repeatedly complained orally and in writing that she had too big an area, too many stores and too little time, and suggested ways to improve the situation, but never mentioned that the work was affecting her health. After five months in the new position she consulted her doctor about aches and pains from lifting boxes of goods. Ms Koehler was eventually diagnosed with fibromyalgia syndrome, a psycho-physical disorder resulting in severe pain, and a depressive illness, both caused by her work. Ms Koehler sued Cerebos, alleging its failure to take the steps she suggested breached its duty to provide a safe system of work. This duty was a common law duty giving rise to the negligence claim, a duty under the Occupational Safety and Health Act and an implied term of her employment contract. Commissioner Rodney Greaves in the Western Australian District Court found Ms Koehler’s workload was excessive, that Cerebos needed no particular expertise to foresee the risk of the kind of injury suffered, and that Cerebos failed in its duty to ensure all reasonable steps were taken to provide a safe system of work. Ms Koehler was awarded damages of $856,742.81. On appeal, the Full Court of the WA Supreme Court held that Cerebos could not reasonably have foreseen that Ms Koehler’s duties exposed her to a risk of psychiatric injury. Ms Koehler appealed to the High Court. The Court unanimously dismissed the appeal. It held that a reasonable person in the position of Cerebos would not have foreseen the risk of psychiatric injury to Ms Koehler. She had agreed to perform the duties which caused her injury and Cerebos had no reason to suspect that she susceptible to psychiatric injury. Within the bounds of applicable statutes, parties are free to contract so that an employee will do more work than may be the industry standard, often rewarded with higher pay. Employers are entitled to assume, in the absence of signs warning of the possibility of psychiatric injury, that employees can do the job. There was no indication that Ms Koehler had any particular vulnerability. Her complaints suggested an industrial relations problem rather than a health risk. Cerebos was not shown to have breached a duty of care.
+HIGH COURT OF AUSTRALIA Public Information Officer 31 July 2008 The High Court of Australia today ordered the New South Wales Court of Criminal Appeal to rehear Mr Burrell’s appeal against conviction for the kidnap and murder of Kerry Whelan in 1997 after the CCA reopened the original appeal hearing to correct an error. Mrs Whelan disappeared on 6 May 1997. Her body has never been found. Mr Burrell had once worked for her husband Bernie Whelan’s company but had been made redundant. Shortly before Mrs Whelan’s disappearance Mr Burrell re-established contact with the Whelans. He was later charged with detaining Mrs Whelan for advantage and with murdering her on or about 6 May 1997. A trial in 2005 ended with a hung jury but Mr Burrell was convicted after a second trial in 2006. He was sentenced to life imprisonment for murder and 16 years’ jail for the kidnapping charge. Mr Burrell appealed to the CCA against his convictions and sought leave to appeal against the sentences. On Friday 16 March 2007, the CCA published reasons for its decision to dismiss the appeal against convictions, grant leave to appeal against the sentences, but dismiss that appeal. That same day, notification to Mr Burrell of the CCA’s orders was prepared in the Court’s Registry, signed on behalf of the Registrar and stamped with the Court’s seal. Particulars of the notification were entered in to the records of the NSW Supreme Court as the court of trial. After the orders were formally recorded, the CCA discovered that its reasons contained substantial factual errors. On Monday 19 March, the matter was called on by the CCA. Chief Judge at Common Law Peter McClellan said that the judgment, which he had written on behalf of the CCA, had some inaccuracies in its recounting of the Crown case. He said he had drawn upon a statement of facts alleged in the Crown case and mistakenly assumed it was correct. In further argument on 21 March, Mr Burrell submitted that the CCA had no power to reopen the appeals and that the matter should be redetermined by a newly constituted Bench because of a reasonable apprehension of bias. In reasons delivered on 23 March, the CCA rejected those submissions and held that it had power to reopen the appeals. It held that because the appeals were not determined in relation to the relevant evidence they had not been finally determined. The CCA ordered that its orders dismissing the appeals should be confirmed. Mr Burrell appealed to the High Court against the first orders made on 16 March 2007 and the second orders made on 23 March 2007. The Court unanimously allowed the appeal. It held that the CCA lacked power to reopen the appeals after the first orders had been formally recorded. The second orders were made without power so must be set aside. As there was no dispute that the first orders were flawed because of the factual errors, those orders must also be set aside. The Court ordered that Mr Burrell’s appeal against conviction and his application for leave to appeal against sentence be remitted to the CCA for rehearing.
+HIGH COURT OF AUSTRALIA 13 December 2006 Public Information Officer CELIA KATHLEEN CLAYTON v THE QUEEN JOHN DOUGLAS HARTWICK v THE QUEEN LISA JANE HARTWICK v THE QUEEN The High Court of Australia declined to reopen its earlier decisions on the law relating to what is sometimes called “extended common purpose” in determining criminal responsibility. Three people were convicted of murdering Steven John Borg and intentionally causing serious injury to Mr Borg’s girlfriend, Paula Michelle Rodwell, on 23 May 2001. Ms Rodwell lived in the same street as Lisa Hartwick in Frankston in Melbourne. Lisa and John Hartwick were divorced but Mr Hartwick stayed often and they both knew Mr Borg and Ms Rodwell. Ms Hartwick, accompanied by her friend Celia Clayton, had a verbal dispute with Ms Rodwell, accusing her of calling Mr Hartwick a “dog”, or police informer. The matter was resolved, but when Ms Rodwell related it to Mr Borg he became angry. He drove to Ms Hartwick’s house in a stolen car and smashed his car into the back of Ms Clayton’s rented car. Both cars were seriously damaged and some damage was done to the house. The Hartwicks and Ms Clayton armed themselves with metal poles, wooden poles and a carving knife and went to Ms Rodwell’s house. There is dispute over exactly what happened but the injuries to Mr Borg were consistent with a prolonged attack in which he was severely beaten and stabbed a number of times. One stab wound was fatal. The prosecution’s case at trial was that, although it could not identify who inflicted the fatal stab, each was guilty on one or other of three bases. These were either a joint enterprise through a plan to cause Mr Borg very serious injury; extended common purpose in which each agreed to assault him using weapons and reasonably foresaw the possibility of death or serious injury; or liability as an accessory, that is, aiding and abetting the person who inflicted the fatal would by helping, encouraging or conveying assent to that person. The Victorian Court of Appeal ordered a new trial on the intentionally causing injury charge but dismissed appeals against the murder convictions. The three applied for special leave to appeal to the High Court. Their applications were referred to the whole Court on the limited ground of inviting the Court to reconsider its 1995 decision in McAuliffe v The Queen and its 2003 decision in Gillard v The Queen which affected the extended common purpose basis put by the prosecution. At the end of oral argument on the McAuliffe and Gillard issue, the Court announced it would not reconsider the two decisions and refused each application for special leave. The Court, which refused special leave by a 6-1 majority, today delivered its written reasons. The majority held that it was not demonstrated that the application of the principles in McAuliffe and Gillard had led to any miscarriage of justice in this case or in other homicide cases. Even if the three had not intended the death of Mr Borg, they were guilty of murder if they intended only to do serious injury to him but he instead died. If a party to a joint criminal enterprise foresees the possibility that someone might be assaulted with an intention to kill or cause really serious injury to that person and, despite that foresight, continues to participate in the venture, the criminal culpability lies in the continued participation.
+HIGH COURT OF AUSTRALIA Public Information Officer 15 December 2006 CHARLES STUART GORDON v RAYMOND GORDON TOLCHER in his capacity as liquidator of Senafield Pty Ltd (in liquidation) AND SENAFIELD PTY LTD (in liquidation) The New South Wales District Court Rules allowing for orders for extensions of time in a lawsuit had not been displaced by the Commonwealth Corporations Act, the High Court of Australia held today. Charles Stuart Gordon is the father of Hugh Charles Gordon, the sole director and shareholder of Senafield, a rural landholding company. Senafield gave Charles Gordon, for no consideration, mortgages over various properties it owned. Mr Tolcher and Senafield now seek the recovery of money Mr Gordon received from the sale of those properties. On 3 May 2003 they filed a claim in the District Court seeking various declarations and orders, including an order that, pursuant to section 588FF of the Corporations Act, Mr Gordon pay them $522,504.07. Section 588FF provides for the making of court orders in respect of voidable transactions on the application of a company’s liquidator. The statement of claim was never filed on Mr Gordon so no defence was filed. Under the District Court Rules, dormant actions are taken to be dismissed after six months and 28 days and this was the case with the action by Mr Tolcher and Senafield on 1 December 2003. However in January 2004 they sought orders to revive the action, claiming to have had difficulties and delays in obtaining funding for the substantive proceedings. The District Court held that prejudice to Mr Gordon, given his health, in now being called upon to defend the original proceeding, outweighed the relief sought. On 3 May 2005, the Court of Appeal ordered that the time for service of the claim be extended for 60 days to 2 July, 18 months after the matter was taken to have been dismissed. It based its orders on the District Court Rule which states that the Court may extend or abridge any time fixed by the rules or by a judgment or order. Section 79 of the Commonwealth Judiciary Act provides that the laws of each State or Territory shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all courts exercising federal jurisdiction in that State or Territory. Mr Gordon was granted special leave to appeal to the High Court on the issue of whether the Corporations Act “otherwise provides” within the meaning of section 79. The High Court unanimously dismissed the appeal. It held that section 588FF sets a three-year period in which the liquidator’s application may be made to a court vested with federal jurisdiction. Thereafter, the conduct of the litigation is left to the procedures of that court. Section 588FF is not a law of the Commonwealth which “otherwise provides” so as to deny the operation of section 79 to pick up so much of the Rules as supported the orders made by the Court of Appeal.
+HIGH COURT OF AUSTRALIA 20 March 2019 DIRECTOR OF PUBLIC PROSECUTIONS REFERENCE NO 1 OF 2017 [2019] HCA 9 Today the High Court unanimously allowed an appeal from a decision of the Court of Appeal of the Supreme Court of Victoria. The High Court held that a direction to a jury determining a criminal trial that it may bring in a verdict of not guilty at any time after the close of the Crown case, commonly known as a Prasad direction, is contrary to law and should not be administered. On 15 November 2016, an accused person entered a plea of not guilty to a charge of murder. A jury of 13 persons was empanelled. The trial judge gave a Prasad direction over the Crown's objection. The direction included instruction on the elements of murder and manslaughter with particular reference to proof of the intent for murder, which was in issue, as well as instruction on self-defence in the context of family violence. A printed copy of the direction, which was at least 20 pages in length, was given to the jury. Before the jury withdrew to consider its response to the direction, a ballot was conducted to reduce the jury to 12 jurors. After retiring to consider the direction, the 12 jurors advised that they wished to hear more. The juror who had been balloted off re-joined the jury, and the trial continued with all 13 jurors present. Following the close of the defence case, but before addresses, the trial judge reminded the jury of the continuing operation of the Prasad direction and gave it a further opportunity to consider whether it wished to hear more. By a second ballot, the jury was reduced to 12 before it withdrew to consider its response to the renewed Prasad direction. On its return to the court, the jury delivered verdicts of not guilty of murder and not guilty of manslaughter. The Director of Public Prosecutions (Vic) ("the Director") referred a point of law to the Court of Appeal of the Supreme Court of Victoria, namely whether a Prasad direction is contrary to law and should not be administered to a jury determining a criminal trial. The reference did not affect the acquittal of the acquitted person. The majority of the Court of Appeal held that there was no reason in principle for holding that a trial judge should not give a Prasad direction in an appropriate case. By grant of special leave, the Director appealed to the High Court. The Court unanimously allowed the appeal. The Court held that a jury does not have a common law right to return a verdict of not guilty at any time after the close of the Crown case. The exercise of the discretion to give a Prasad direction, based on the trial judge's assessment of the cogency of the evidence to support a conviction, was held to be inconsistent with the division of functions between judge and jury. The High Court held that, if the evidence at its highest is capable of sustaining a conviction, it is for the jury as the constitutional tribunal of fact to decide whether guilt has been proved beyond reasonable doubt. The Court answered the point of law to the effect that a Prasad direction is contrary to law and should not be administered to a jury determining a criminal trial between the Crown and an accused person.
+HIGH COURT OF AUSTRALIA 2 September 2015 COREY TRAVIS FULLER-LYONS BY HIS TUTOR NITA LYONS v STATE OF NEW SOUTH WALES [2015] HCA 31 Today the High Court unanimously allowed an appeal from the Court of Appeal of the Supreme Court of New South Wales and restored the primary judge's award of damages to the appellant. In 2001, the appellant, who was then aged eight, suffered severe injuries when he fell from a train about two minutes after it departed from Morisset Station. By his representative, the appellant brought proceedings in the Supreme Court of New South Wales, claiming damages in negligence against the State of New South Wales ("the State"), the legal entity operating the rail network. There was no direct evidence of how the appellant fell from the train. It was common ground that the appellant must have fallen through the front doors of the carriage in which he was travelling. The doors were fitted with electro-pneumatic locking motors which were centrally operated by the guard on the train. When the doors were locked, they could not be prised open. It followed that when the appellant fell, the doors could not have been locked, despite the guard having engaged the locking system before the train left Morisset Station. The primary judge found that the only realistic means by which the appellant could have generated sufficient force against the pneumatic power of the locking motors to open the doors far enough to fall out was if he had his back to one door and he pushed with his arms or a leg against the other. The primary judge considered the most likely explanation for how the appellant came to be in this position was that he had been caught between the doors as they closed at Morisset Station, leaving part of his torso and at least one of his arms and legs outside the train. The primary judge held the State vicariously liable for the negligent failure of a railway employee to keep a proper lookout before signalling for the train to depart. The appellant was awarded $1,536,954.55 in damages. The State successfully appealed against the finding of liability. The Court of Appeal accepted the primary judge's inferential finding that, immediately before the fall, the appellant must have been positioned with his back to one door such that he could push against the opposing door. However, the Court of Appeal considered there were equally probable alternative hypotheses available to explain how the appellant came to be in that position which did not entail negligence on the part of railway staff. By grant of special leave, the appellant appealed to the High Court. The Court unanimously allowed the appeal, finding that the Court of Appeal erred in overturning the primary judge's ultimate factual finding. The Court of Appeal's acceptance of the primary judge's anterior factual findings left his Honour's ultimate finding as the most likely inference "by a large measure". It was a correct finding notwithstanding that other possible explanations could not be excluded. The Court also held that it was an error to reject the primary judge's finding on the basis that the appellant had failed to exclude one alternative hypothesis that had not been explored in evidence.
+HIGH COURT OF AUSTRALIA 23 June 2010 Manager, Public Information OSLAND v SECRETARY TO THE DEPARTMENT OF JUSTICE [2010] HCA 24 Today the High Court upheld an order of the Victorian Civil and Administrative Tribunal granting Heather Osland access to documents relating to her petition for mercy. In 1996, Mrs Osland was convicted of the murder of her husband and sentenced to 14½ years imprisonment. She submitted a petition for mercy in July 1999 to the Victorian Attorney-General and, in September 2001, the Attorney-General issued a press release announcing that the petition had been refused. The press release referred to a memorandum of joint advice from a panel of three senior counsel that recommended that the petition be denied. The Attorney-General, however, had received advice from several other sources as well. Mrs Osland applied under the Freedom of Information Act 1982 (Vic) for access to all documents relating to the consideration of her petition. Access was refused by the Victorian Department of Justice. Mrs Osland sought a review of the refusal in the Victorian Civil and Administrative Tribunal, which set aside the decision and ordered access to be granted to the documents because the Tribunal was of the opinion that, notwithstanding that the documents were privileged, the public interest required access to be granted. In doing so, it was acting pursuant to s 50(4) of the Freedom of Information Act. On appeal to the Victorian Court of Appeal, the Tribunal's decision was reversed. The High Court granted special leave to appeal against the Court of Appeal's decision on 14 December 2007. On 7 August 2008, the Court allowed the appeal. It did so because the Court of Appeal had not considered the Tribunal's advertence, in its reasons for decision, to the possible existence of differences between the joint advice and other advice received by the Attorney- General in relation to Mrs Osland's petition. On that basis, it was not possible for the Court of Appeal, without inspecting the documents, to conclude that the Tribunal had erred in granting access to those documents. The High Court set aside the orders of the Court of Appeal and remitted the matter to that Court to enable it to inspect the documents. On 7 April 2009, the Court of Appeal, having inspected the documents, again reversed the Tribunal's decision. It did so despite finding that there were relevant and substantive differences between some of the advices received by the Attorney-General. On 12 February 2010, the High Court granted special leave to appeal from this second decision of the Court of Appeal. The High Court today unanimously held that the Court of Appeal's decision on the remitter should be set aside and that the Tribunal's decision granting Mrs Osland access to the documents be upheld. The Court held that the Court of Appeal did not do what was required of it on the remitter. Chief Justice French and Justices Gummow and Bell considered that the Court of Appeal's reasoning was logically independent of the actual contents of the documents to which Mrs Osland sought access. Their Honours held that the Court of Appeal was really addressing the question of law whether the evaluation of differences of any kind or degree between the advices received could attract the operation of the s 50(4). That question was precluded by the terms of the remitter from the High Court on the first appeal. The Court of Appeal should have first determined the question of law whether the actual differences between the advice provided to the Attorney-General could support the formation of an opinion that the public interest required access to be granted. If the formation of such an opinion was supportable, then the Court should have either remitted the matter to the Tribunal for further hearing or, having regard to the protracted nature of the proceedings, considered the public interest question for itself. Justices Hayne and Kiefel (with whom Justice Heydon agreed on this point) considered that, on the remitter, the Court of Appeal was required to consider whether the Tribunal's reasoning about the requirements of the public interest manifested an error of law. Their Honours held that the Court of Appeal had misconceived the limited scope of its jurisdiction on the appeal from the Tribunal, which was in the nature of judicial review and not a rehearing. It did not review what the Tribunal had done for error of law but impermissibly assumed the role of the Tribunal and substituted its own decision.
+HIGH COURT OF AUSTRALIA 7 December 2022 ELECTRICITY NETWORKS CORPORATION T/AS WESTERN POWER v HERRIDGE PARTIES & ORS [2022] HCA 37 Today, the High Court unanimously dismissed an appeal from a judgment of the Court of Appeal of the Supreme Court of Western Australia. The appeal relevantly concerned whether the appellant ("Western Power") owed a duty of care in connection with a bushfire which occurred in Parkerville, Western Australia, in January 2014. Western Power was a statutory corporation which, under an interconnected statutory framework, undertook, operated, managed and maintained an electricity distribution system used to deliver electricity to consumers' premises, including that of the fourth respondent ("Mrs Campbell"). A large number of plaintiffs claimed loss and damage resulting from the bushfire which was caused when a wooden point of attachment pole ("PA pole") owned by Mrs Campbell and situated on her land, to which an electrical cable and other apparatus of Western Power were attached, fell to the ground due to fungal decay and termite damage. Western Power contracted the fifth respondent ("Theiss") to undertake works in the vicinity of Mrs Campbell's property in July 2013, which included replacing Western Power's service cable between its termination pole and the PA pole. In undertaking those works, an employee of Thiess did not adequately perform necessary inspection tests on the PA pole to identify signs of deterioration. The trial judge found Thiess and Mrs Campbell liable in negligence and nuisance, and apportioned liability as 70 per cent to Thiess and 30 per cent to Mrs Campbell. All claims against Western Power were dismissed. On appeal, the Court of Appeal held that Western Power owed to persons in the vicinity of its electricity distribution system a duty to take reasonable care to avoid or minimise the risk of injury to those persons, and loss or damage to their property, from the ignition and spread of fire in connection with the delivery of electricity through that system. The Court of Appeal held that Western Power breached that duty by failing to have a system for the periodic inspection of wooden consumer-owned PA poles used to support its system's live electrical apparatus. In the High Court, Western Power challenged the imposition on it of that duty of care. In dismissing the appeal, the High Court held that there is no freestanding common law rule which fixes whether and when a duty of care upon a statutory authority might, or might not, arise, and that the starting point is the terms, scope and purpose of the applicable statutory framework. The critical feature of the appeal was that Western Power exercised specific statutory powers in performing its statutory functions in relation to its electricity distribution system, and pursuant to those powers attached and energised Mrs Campbell's premises to that system. Western Power's exercise of those powers created a relationship between it and all other persons within the vicinity of its system, a critical feature of which was its exercise of those powers in a manner which created or increased the risk of harm to those persons, whom it had the power to protect. Accordingly, the common law imposed the duty of care found by the Court of Appeal which operated alongside the rights, duties, and liabilities created by statute. Further, the duty was not inconsistent or incompatible with the statutory framework, and that framework gave Western Power ample power to discharge the duty.
+HIGH COURT OF AUSTRALIA 8 August 2018 THE QUEEN v ROMANO FALZON [2018] HCA 29 Today the High Court published reasons for orders it made on 19 April 2018 allowing an appeal from a decision of the Court of Appeal of the Supreme Court of Victoria. The respondent was convicted by a jury of cultivating a narcotic plant (Cannabis L) in not less than a commercial quantity and trafficking in a drug of dependence (Cannabis L). He was acquitted of a separate charge of trafficking in a drug of dependence. Police had executed search warrants at four properties, including the respondent's home, and found, amongst other things, cannabis plants, dried cannabis and drug paraphernalia. Police also found $120,800 in cash at the respondent's home. At trial, the Crown alleged that the trafficking offences charged were constituted of possession of cannabis on a particular date at three of those properties (not including the respondent's home) for the purpose of sale. The respondent objected to the admission of the evidence of the cash found at his home on the basis that it was irrelevant or alternatively that its prejudicial effect outweighed its probative value. The trial judge ruled the evidence admissible. Evidence of the cannabis and other materials found at the respondent's home, including the cash, was led in proof of each trafficking charge as showing that the respondent was conducting a business in cultivating cannabis for the purpose of sale. The respondent appealed against his convictions to the Court of Appeal on the basis, relevantly, that a substantial miscarriage of justice occurred as a result of the trial judge wrongly admitting the evidence of the cash. The majority of the Court of Appeal allowed the appeal. Their Honours held that the evidence of the cash was irrelevant to the trafficking charges because it could only have gone towards establishing past sales of cannabis, and the prosecution had chosen to put its case on the basis of possession of cannabis for sale on a single day and not on the basis that the respondent was conducting an ongoing drug trafficking business. The majority also observed that the evidence of the cash was inadmissible because it was led for the purposes of propensity or tendency reasoning. The respondent's convictions were set aside. By grant of special leave, the Crown appealed to the High Court on the ground that the majority of the Court of Appeal erred in concluding that a substantial miscarriage of justice had occurred as a result of the trial judge admitting the evidence of the cash found at the respondent's home. The High Court unanimously held that the evidence of the cash found was admissible as an item of circumstantial evidence that, in conjunction with evidence of other indicia of drug trafficking, could show that the respondent was carrying on a business of trafficking in cannabis, and thus that the respondent's purpose in possessing the cannabis was the purpose of sale. The fact that the evidence tended to show the commission of other offences of trafficking did not render it inadmissible because it was relevant to establishing the intent to sell and to counter the respondent's claim that the cannabis was possessed for personal consumption.
+HIGH COURT OF AUSTRALIA 16 June 2021 LIBERTYWORKS INC v COMMONWEALTH OF AUSTRALIA [2021] HCA 18 Today, the High Court answered questions stated in a special case concerning whether the Foreign Influence Transparency Scheme Act 2018 (Cth) ("the Act") is invalid, to the extent it imposes registration obligations with respect to communications activities, on the ground that it infringes the freedom of political communication implied by the Constitution ("the implied freedom"). The plaintiff, LibertyWorks Inc, is a private think-tank with 1,290 members in Australia. The American Conservative Union ("the ACU") is a corporation in the United States of America which holds an annual political conference called the "Conservative Political Action Conference" ("CPAC"). In 2018, the President of the plaintiff met with the Executive Director of the ACU and it was agreed that the plaintiff and the ACU would collaborate in a CPAC event to be held in Australia in 2019. In August 2019, the plaintiff was asked by the Attorney-General's Department to consider whether it was required to register its arrangements with the ACU under the Act. The plaintiff has not to date registered under the Act. The Act's stated object is to provide a scheme for the registration of persons who undertake certain activities on behalf of foreign principals in order to improve the transparency of their activities on behalf of those foreign principals. The Act relevantly requires a person to register details about themselves and their foreign principal with the Secretary of the Attorney-General's Department ("the Secretary") where the person undertakes communications activity on behalf of the foreign principal for the purpose of political or governmental influence. A person undertakes communications activity if they communicate or distribute information or material to the Australian public or a section of it. The parties agreed in the special case that, subject to the question of validity, the plaintiff had registration obligations under the Act because it undertakes communications activity, in the form of holding annual CPAC events, on behalf of the ACU, a foreign principal for the purposes of the Act. The High Court, by majority, answered the primary question stated for its opinion to the effect that the provisions of the Act respecting communications activity by a person who acts on behalf of a foreign principal were not invalid on the ground that they infringed the implied freedom. A majority of the Court found that the Act, in its requirement of registration where communications activity is undertaken on behalf of a foreign principal, burdened the implied freedom but held that the burden was justified. The provisions were held to have a legitimate purpose, namely to achieve transparency as a means of preventing or minimising the risk that foreign principals will exert influence on the integrity of Australia's political or electoral processes. The provisions were proportionate to the achievement of that purpose. The majority concluded that other questions, concerning the extent of the Secretary's power to require information from a person prior to or after registration, did not arise for the opinion of the Court in the absence of a case advanced against the validity of the Act on that basis.
+HIGH COURT OF AUSTRALIA 10 April 2019 KATHLEEN CLUBB v ALYCE EDWARDS & ANOR; JOHN GRAHAM PRESTON v ELIZABETH AVERY & ANOR [2019] HCA 11 Today the High Court unanimously dismissed so much of two appeals as had been removed from the Supreme Court of Victoria and the Supreme Court of Tasmania. The High Court unanimously rejected the appellants' challenges to two laws whichs prohibit certain communications and activities in relation to abortions in "access zones" around premises at which abortions are provided. Section 185D of the Public Health and Wellbeing Act 2008 (Vic) ("the Victorian Act") relevantly prohibits a person from communicating in relation to abortions in a manner able to be seen or heard by persons accessing or attempting to access premises at which abortions are provided, if the communication is reasonably likely to cause distress or anxiety ("the communication prohibition"). Section 9(2) of Terminations) Act 2013 (Tas) ("the Tasmanian Act") relevantly prohibits protests in relation to terminations that are able to be seen or heard by a person accessing premises at which terminations are provided ("the protest prohibition"). The communication prohibition and the protest prohibition each apply within a radius of 150 metres from premises at which abortions are provided. the Reproductive Health (Access Mrs Clubb was convicted in the Magistrates' Court of Victoria of an offence against s 185D of the Victorian Act. Mr Preston was convicted in the Magistrates Court of Tasmania of an offence against s 9(2) of the Tasmanian Act. The appellants each sought review of their convictions, including on the ground that the provision under which they had been convicted is invalid because it impermissibly burdens the freedom of communication on governmental and political matters which is implied in the Constitution ("the implied freedom"). Those parts of the proceedings in each of the Supreme Courts relating to the implied freedom were removed into the High Court. In relation to the Victorian Act, a majority of the Court considered that the burden imposed by the communication prohibition was justified by reference to its legitimate purposes, including the protection of the safety, wellbeing, privacy and dignity of persons accessing lawful medical services. The other members of the Court considered that the challenge to the communication prohibition should be dismissed without determining the validity of the prohibition because it was not established that Mrs Clubb's conduct involved political communication. In relation to the Tasmanian Act, the Court unanimously held that the burden imposed by the protest prohibition was justified by reference to its legitimate purposes, which include the protection of the safety, wellbeing, privacy and dignity of persons accessing premises at which abortions are provided and ensuring unimpeded access to lawful medical services.
+HIGH COURT OF AUSTRALIA THIESS v COLLECTOR OF CUSTOMS & ORS [2014] HCA 12 2 April 2014 Today the High Court dismissed an appeal from a decision of the Court of Appeal of the Supreme Court of Queensland. The High Court held that s 167(4) of the Customs Act 1901 (Cth) ("the Act") operates to bar all actions for the recovery of duty paid to Customs, irrespective of whether a dispute as to the amount or rate of duty payable arises at the time of payment, subject only to two statutory exceptions. The appellant, Mr Alan Thiess, imported a yacht into Australia for home consumption. On 15 December 2004, Mr Thiess' customs agent transmitted a computer import entry on his behalf. The customs agent mistakenly believed that the gross weight of the yacht was 108 tonnes, when in fact it was 160 tonnes. The effect of this error was that Customs' COMPILE computer system automatically calculated that the customs duty payable was $494,472, with an additional $49,447 payable as GST. In fact, yachts exceeding 150 tonnes were duty free. Upon payment by the customs agent, Customs authorised delivery of the yacht. Mr Thiess only discovered the mistake after the expiration of the statutorily prescribed period for making an application for a refund. On 15 December 2010, he brought proceedings in the trial division of the Supreme Court of Queensland seeking to recover the amount of $543,919 as money had and received, relying on the money having been paid under a mistake of fact, and in the alternative as a claim for restitution in equity or equitable compensation. Questions of law were reserved for the consideration of the Court of Appeal. The Court of Appeal held that the Collector of Customs and the Commonwealth had lawful defences to Mr Thiess' claim: by s 167(4) of the Act, in so far as the claim was to recover the amount paid as customs duty; and under s 36 of the Taxation Administration Act 1953 (Cth), in so far as the claim was to recover the GST paid. Mr Thiess sought to argue that s 167(4) had no application because no "demand" had been made and hence no "dispute" had arisen within the meaning of s 167(1) at the time of payment. The Court of Appeal rejected this argument, finding that a demand had been made. By special leave, Mr Thiess appealed to the High Court. The High Court unanimously held that irrespective of whether a dispute has arisen at the time of payment within the meaning of s 167(1) of the Act, s 167(4) operates to bar all actions for the recovery of duty paid to Customs, subject only to either a statutory action for recovery under s 167(2) of the Act, or any action to enforce a right or to compel the exercise of powers under s 163 of the Act. It followed that because the appellant could not recover the amount paid as customs duty, he could not recover the amount paid as GST.
+HIGH COURT OF AUSTRALIA 15 March 2023 BARNETT v SECRETARY, DEPARTMENT OF COMMUNITIES AND JUSTICE [2023] HCA 7 Today, the High Court published its reasons for revoking special leave to appeal from a judgment of the Full Court of the Federal Circuit and Family Court of Australia (Division 1). The appellant is the mother of a child born in the Republic of Ireland in 2019. On 30 August 2020, the mother removed the child from Ireland to Australia without the consent of the child's father. At the father's request, the respondent applied to the then Family Court of Australia under the Family Law (Child Abduction Convention) Regulations 1986 (Cth) for orders seeking the return of the child to Ireland and ancillary orders. The primary judge made orders for the child's return to Ireland. The Full Court dismissed the mother's appeal. In doing so, the Full Court relied on a declaration made in April 2021 by the District Court of the Dublin Metropolitan District ("the Irish court") that the father was a guardian of the child under Irish law (the "Declaration"). As the Declaration must have been based on the cohabitation of the mother and father, which ceased on 30 August 2020, the Full Court considered the primary judge was correct to infer from the Declaration that the father had rights of custody in respect of the child before 30 August 2020, and that the mother (as a party to the proceeding in the Irish court) was therefore estopped from asserting to the contrary. The mother was granted special leave to appeal to the High Court. The key consideration underlying the grant of special leave was the Full Court's finding of an issue estoppel based on the bare Declaration, without the Irish court's reasons for making the Declaration having been available to the courts below. However, in January 2023, the respondent filed an application for revocation of special leave, after it belatedly obtained the transcript of the Irish court's reasons for making the Declaration. The High Court unanimously revoked special leave to appeal. Given the Irish court's reasons for the Declaration, the foundation for the grant of special leave was removed. The transcript disclosed that the Irish court found, as an essential element of its reasoning, that the father's guardianship commenced from 23 May 2020, and it necessarily followed that the father had rights of custody under the Regulations at 30 August 2020. It would have been contrary to the interests of the administration of justice to permit the appeal to proceed on the false premise that the Irish court's reasons were unavailable, when those reasons validated the inferences drawn by the courts below. The mother's other arguments about a lack of privity between the father and the respondent and procedural unfairness by the primary judge wrongly assumed that the grant of special leave was based on something more than the finding of the issue estoppel from the bare Declaration. Issues concerning the jurisdiction of the Irish court and the operation of Irish law were best resolved as part of the mother's extant appeal against the Declaration in Ireland.
+HIGH COURT OF AUSTRALIA 21 June 2017 GAX v THE QUEEN [2017] HCA 25 Today the High Court unanimously allowed an appeal from the Court of Appeal of the Supreme Court of Queensland. The appellant was tried by jury in the District Court of Queensland on an indictment containing three counts. He was convicted of count three, which charged aggravated indecent dealing with a child, his lineal descendant, and was acquitted of counts one and two, which charged aggravated acts of indecent dealing with the same child. The amended particulars of count three alleged that the appellant touched the complainant on or near her vagina. The complainant, her sister and her mother each gave evidence that the appellant was in bed with the complainant on the occasion charged in count three. The complainant stated, when giving evidence of the incident, that she "was asleep before and ended up finding out what happened". The appellant appealed against his conviction to the Court of Appeal, contending the verdict was unreasonable and that it was inconsistent with the not guilty verdicts on counts one and two. Atkinson J, with whom Morrison JA agreed, reviewed the evidence in support of count three in addressing the inconsistent verdicts argument. Her Honour held that the quality of evidence given on count three, and the support given to it by the mother's and sister's evidence, provided a rational basis for a jury to convict on count three while acquitting on counts one and two. Her Honour held that those matters also showed that the guilty verdict was not unreasonable. The appeal was dismissed. McMurdo P, in dissent, would have allowed the appeal. Her Honour held that the evidence did not suffice to prove beyond reasonable doubt that the appellant had indecently touched the complainant. By grant of special leave, the appellant appealed to the High Court. The Court held that it had not been open to the jury to draw an inference beyond reasonable doubt that there had been indecent touching of the complainant as charged by count three. The real possibility that the complainant's evidence was a reconstruction and not an actual memory could not be excluded beyond reasonable doubt. The Court allowed the appeal, set aside the conviction and entered a verdict of acquittal.
+HIGH COURT OF AUSTRALIA 6 October 2004 NT POWER GENERATION PTY LTD v POWER AND WATER AUTHORITY AND GASGO PTY LTD The High Court of Australia today allowed an appeal by NT Power which alleged that the Northern Territory’s Power and Water Authority (PAWA) and its wholly-owned subsidiary Gasgo had engaged in anti-competitive behaviour, contrary to section 46 of the Trade Practices Act (TPA). In 1996, Pegasus Gold Australia contracted with NT Power to operate Pegasus’s gas-powered power station at the Mt Todd gold mine. The following year, Pegasus ceased to operate the mine and NT Power acquired the power station. NT Power wished to sell electricity generated at Mt Todd to the public, including commercial users in Darwin and Katherine. That would have brought NT Power into competition with PAWA which had a monopoly over the retail electricity market. In August 1998 PAWA refused NT Power’s request for access to its transmission and distribution infrastructure to convey electricity from Mt Todd to consumers. NT Power required secure gas supplies for the Mt Todd power station. Gasgo had long-standing agreements with its suppliers under which it enjoyed pre-emptive rights to buy gas offered to other customers. NT Power sought an undertaking from Gasgo that it would not exercise its pre-emptive right but Gasgo refused. NT Power commenced proceedings in the Federal Court, alleging PAWA and Gasgo were in breach of section 46 of the TPA. That provision only binds the Crown in right of the States and Territories where the Crown carries on a business, either directly or through an authority such as PAWA. Justice John Mansfield held that in refusing access to its infrastructure PAWA was not relevantly carrying on a business, so section 46 did not apply. He held that Gasgo’s conduct was also not subject to section 46 because the company enjoyed Crown immunity because the NT Government’s interests would be prejudiced if Gasgo was precluded from exercising its pre- emptive rights. The Full Court of the Federal Court, by majority, upheld the decision. The High Court held that PAWA’s conduct was within the course of carrying on a business pursuant to section 2B of the TPA. PAWA denied access to its infrastructure, not because of a lack of capacity or technical difficulty or safety, but simply to protect its electricity sales revenue. The Court held that PAWA’s decision to refuse access contravened section 46 of the TPA. Its decision had the purpose of excluding NT Power from the retail market. That purpose could not have been achieved but for its power in the transmission and distribution markets where PAWA faced no competition. The Court held that Gasgo did not derive immunity from the Crown because it was not part of the NT Government. Its conduct was therefore open to scrutiny under section 46. The Court, by a 4-1 majority, allowed the appeal and ordered that the proceedings be returned to Justice Mansfield to determine the section 46 claim against Gasgo and to decide what remedies should be granted to NT Power in relation to PAWA’s conduct.
+HIGH COURT OF AUSTRALIA 3 December 2008 Public Information Officer COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA v WORD INVESTMENTS LIMITED A company that conducted commercial businesses to raise funds for a missionary organisation was entitled to the status of a tax-exempt charity, the High Court of Australia held today. Since 1986, Word Investments has accepted deposits from the public which were invested at commercial rates of interest. Between 1996 and 2002 it operated a funeral business. Profits generated from the investment and funeral businesses supported Christian activities carried out by Wycliffe Bible Translators (International). The Australian arm, Wycliffe Bible Translators Australia, has had charitable status since 1 July 2000. Wycliffe’s missionaries were mostly active in developing countries. They learned the local language, taught people to read and write their language, translated the Bible into that language, and taught people how to read the Bible. Word was founded by people associated with Wycliffe to raise money in Australia to give to Wycliffe to carry out its purposes. Word does not directly carry out the training or despatching of missionaries overseas, the publishing of the Bible or the preaching of the gospel. The Tax Commissioner rejected Word’s applications for endorsement as an income tax-exempt charity on the basis that it was not an organisation instituted to advance or promote charitable purposes. The Commissioner claimed there were four obstacles to a tax exemption. The first was that Word’s objects were not confined to charitable purposes. The second was that an entity conducting investment, trading or other commercial activity for profit was not a charitable institution even though it was established for the purpose of distributing its profits wholly or mainly to charities. The third was that the bodies to which Word gave its profits were not confined as to the use to which the funds could be put. The fourth was that Word did not have a physical presence in Australia and did not incur its expenditure or pursue its objectives principally in Australia. The Administrative Appeals Tribunal set aside the Tax Commissioner’s refusal to endorse Word as a charity. The Federal Court of Australia dismissed an appeal by the Commissioner and allowed a cross- appeal by Word so that Word’s income tax-exempt status was extended back to 1 July 2000. The Full Court of the Federal Court dismissed the Commissioner’s appeal from those orders. The Commissioner then appealed to the High Court. The Court, by a 4-1 majority, dismissed the appeal. It resolved the issues surrounding the four obstacles in Word’s favour. The Court held that Word’s purposes were charitable, that it was a charitable institution, and that that character was not lost by the fact that it did not advance charitable purposes directly but gave its profits to other institutions which did. It held that Word’s objects in its memorandum of association were for advancing religious charitable purposes and the powers set out in the memorandum did not authorise conduct which did not further those purposes. The goal of making a profit was not an end in itself but was incidental to its charitable purposes. Its commercial activities were not intrinsically charitable but were charitable in character. Wycliffe was not at liberty to spend the money it received from Word on non- charitable objects and there was no evidence that it did. The Court held that Word had a physical presence exclusively in Australia and advanced its money to Wycliffe in Australia. Wycliffe was not required under the Income Tax Assessment Act to spend the money within Australia. The Act only required that Word incur its expenditure and pursue its objectives principally in Australia.
+HIGH COURT OF AUSTRALIA Public Information Officer 22 June 2006 HOWARD RODNEY DARKAN v THE QUEEN GWENDOLINE CECILY DEEMAL-HALL v THE QUEEN MARLOW PHILIP ANDREW McIVOR v THE QUEEN An error in a trial judge’s directions to a jury did not amount to a substantial miscarriage of justice and the three appellants’ murder convictions should stand, the High Court of Australia held today. Mr Darkan, 33, Ms Deemal-Hall, 55, and Mr McIvor, 26, were convicted of murdering Ms Deemal-Hall’s former partner, Kalman John Toth, 58, in a park in Mareeba in far north Queensland in January 2003. Ms Deemal-Hall had recruited Mr Darkan, Mr McIvor and Shannon Brian Bowen to give Mr Toth “a touch-up” and to “fix him up”. She paid the three men, who did not know Mr Toth, $50 each, with more money to follow. Ms Deemal-Hall dropped the men at the park then fetched Mr Toth. A fist fight broke out and Mr McIvor, who was wearing steel-capped boots, used a pickaxe handle to hit Mr Toth in the back of the neck, knocking him to the ground. The three men kicked him repeatedly. Mr Darkan used the pickaxe handle to strike Mr Toth from the ankles up to the ribs and to beat him around the head. Mr Toth was crying for help. His body was found the next morning. He had severe bruising all over his body, broken upper and lower jaws and facial bones, and facial lacerations. The cause of death was aspiration of blood due to severe facial trauma. Mr Bowen received a reduced sentence for assault occasioning bodily harm while in company in return for giving evidence for the prosecution. The Queensland Court of Appeal dismissed appeals by Mr Darkan, Ms Deemal-Hall and Mr McIvor. They appealed to the High Court over a direction given by Supreme Court Justice Stanley Jones to the jury on the meaning of “a probable consequence”. Under section 8 of the Criminal Code, when two or more people form a common intention to carry out an unlawful purpose and an offence occurs that was a probable consequence of their actions, each is deemed to have committed the offence. In this case, the allegation was that Mr Darkan, Ms Deemal-Hall and Mr McIvor formed an intention to cause Mr Toth grievous bodily harm, that the acts done for this purpose were of such a nature as to endanger human life, and that death was a probable consequence of those acts. Alternatively, in Ms Deemal-Hall’s case, under section 9 of the Code, when someone counsels another to commit an offence it is immaterial whether the offence actually committed is different or whether it was committed in a different way, provided that the offence committed was a probable consequence of carrying out the counsel. Justice Jones explained probable consequence as “a real possibility or a substantial [chance] or a real chance that the event would happen”. The High Court, by a 4-1 majority, dismissed the appeal. It held that “a probable consequence” was stronger than a real possibility or chance. The Court rejected arguments that Justice Jones should have said nothing about the meaning of the phrase as some explanation to a jury may be desirable or necessary in the circumstances of a particular case. However it was erroneous to use the words he did, which were unduly harsh to the appellants. The consequence must be probable, as distinct from possible, in the sense that it could well happen in prosecuting the unlawful purpose (section 8) or of carrying out the counselling (section 9). Justice Jones’s direction was flawed in that it did not convey the idea that the consequence was a probable or likely outcome. The Court held that no substantial miscarriage of justice resulted from the error. Both Mr Darkan and Mr McIvor’s admissions showed they intended to do grievous bodily harm to Mr Toth, and either one had killed him or aided the other in killing him. There was strong circumstantial evidence that Ms Deemal-Hall wanted the men to inflict grievous bodily harm on Mr Toth and counselled them to carry out the attack in such a manner that murder – an unlawful killing with intent to cause grievous bodily harm – was a probable consequence.
+HIGH COURT OF AUSTRALIA 8 September 2005 CHIEF EXECUTIVE OFFICER OF CUSTOMS v GRANITE ARMS PTY LTD AND OMEO WAY PTY LTD This appeal concerned the true identification of the importer of consignments of firearms. Garnet Featherstone is principal of Victorian firearms dealer Granite Arms and Ron Owen the principal of firearms dealer Omeo Way in Queensland. In 2000 Omeo Way organised to buy 3,000 pistols in two batches from a Chinese supplier for US$144,576. Mr Owen had permits for both shipments but Queensland Police rescinded them due to concerns the pistols would be modified by a method that breached weapons laws. He then arranged for the pistols to be consigned to Granite Arms while he paid all expenses including Customs clearance, storage and freight. The first batch of 1,000 pistols arrived in Melbourne in March 2000 and was transported to Omeo Way. The next batch of 2,000 arrived in May and a customs broker arranged for their storage in Melbourne to enable the safety testing of the pistols and repairs to some. Customs then seized the pistols as goods reasonably suspected to be “special forfeited goods” for failing to comply with the Customs (Prohibited Imports) Regulations. Omeo Way as owner of the pistols claimed their return. The Customs Act requires the return of goods unless proceedings are brought in a court of summary jurisdiction for a declaration that they are special forfeited goods and an order that they be forfeited to the Crown. This Customs did. With proceedings pending, the two dealers commenced separate proceedings in the Federal Court seeking a declaration that seizure of the second shipment was unlawful. Customs cross-claimed for a declaration that the pistols were special forfeited goods. The dealers pleaded that Granite Arms was importer as agent of Omeo Way and was at all times entitled to possess the pistols either on its own account or as an agent of Omeo Way. At the parties’ request, the Court heard the cross-claim first and dismissed it. The Full Court dismissed an appeal by Customs, which then appealed to the High Court. The relevant parts of the Regulations were introduced as part of the national firearms controls adopted after the Port Arthur tragedy in 1996. Imports must comply with one of four tests, in this case the police authorisation test, requiring the importer to hold a licence or authorisation under the law of the relevant State or Territory to possess the article. The dealers contend that Granite Arms was the importer of the two shipments and the police authorisation test was satisfied because Granite Arms held a licence to possess the pistols under Victorian law. Customs argued that the police authorisation test was not satisfied and that “the importer” meant one designated entity and Granite Arms could not substitute as “the importer” for Omeo Way. The High Court unanimously allowed the appeal by Customs and held that the handguns were “special forfeited goods”. It held that although Granite Arms lent its name to Omeo Way for the identification of “the consignee” on the air waybill for carriage of Omeo Way’s goods to Australia, Granite Arms was not “the importer”.
+HIGH COURT OF AUSTRALIA 11 December 2003 RURAL PRESS LIMITED, BRIDGE PRINTING OFFICE PTY LTD, IAN LAW AND TREVOR McAULIFFE v AUSTRALIAN COMPETITION AND CONSUMER COMMISSION, WAIKERIE PRINTING HOUSE PTY LTD AND PAUL TAYLOR AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v RURAL PRESS LIMITED, BRIDGE PRINTING OFFICE PTY LTD, IAN LAW, TREVOR McAULIFFE, WAIKERIE PRINTING HOUSE PTY LTD AND PAUL TAYLOR The High Court of Australia today dismissed a Rural Press appeal and allowed an ACCC appeal, both relating to an arrangement on South Australian country newspaper markets that allegedly contravened the Trade Practices Act. Rural Press subsidiary Bridge Printing published the Murray Valley Standard while Waikerie Printing published the River News, with very few newspapers sold in each other’s prime circulation areas. When councils in the area were restructured in July 1997, River News extended southwards to take in the township of Mannum, making it a competitor with the Standard. Rural Press and Bridge repeatedly told River News’s owners Paul and Darnley Taylor and managing editor John Pick that they would have to consider reacting commercially, perhaps by establishing a rival newspaper in the Riverland area. The Taylors eventually agreed in April 1998 to revert to a line 40km north of Mannum and Rural Press took no steps to establish a Riverland newspaper. The ACCC alleged that an arrangement was made by which Waikerie Printing committed itself to withdrawing the River News from circulation around Mannum, and Rural Press and Bridge committed themselves not to introduce any new newspapers in competition with the Taylors. The Federal Court held that Rural Press and Bridge had contravened section 45 of the Act by entering into an arrangement which substantially lessened competition and which contained an exclusionary provision, and had contravened section 46 by taking advantage of market power for illegal purposes. The Court also found executives Mr Law and Mr McAuliffe were knowingly involved in these breaches. The Full Court of the Federal Court allowed an appeal by the Rural Press parties on the exclusionary provision and section 46 issues and dismissed the ACCC’s appeal and cross-appeal on penalties. Both the Rural Press parties and the ACCC appealed to the High Court. Rural Press argued there was insufficient evidence to find an arrangement, there was no purpose or effect of substantially lessening competition, and the two executives had insufficient knowledge to make them liable. The ACCC argued the Full Court should have upheld the findings on the exclusionary provision and section 46 breaches. The High Court unanimously held there was an arrangement of the type alleged by the ACCC and that this arrangement had the purpose and effect of substantially lessening competition in the region. The Court dismissed Rural Press’s appeal, allowed the ACCC’s appeal in relation to the exclusionary provision, rejected the ACCC’s appeal in relation to the section 46 issue, and revised the declarations made by the Full Court of the Federal Court.
+HIGH COURT OF AUSTRALIA Public Information Officer 3 October 2007 WESTFIELD MANAGEMENT LIMITED v PERPETUAL TRUST COMPANY LIMITED Westfield is not entitled to use an easement to access two extra shopping malls it has acquired next to the one originally serviced by the easement, the High Court of Australia held today. Westfield owns Skygarden and Perpetual the adjacent Glasshouse shopping complex. Both face Pitt Street Mall in Sydney’s CBD, while Glasshouse also fronts King Street. It has a private underground laneway running off King Street behind it and stopping at the boundary of Skygarden. Westfield now owns the neighbouring Imperial Arcade and Centrepoint, which also face Pitt Street Mall, and it wants to redevelop all three sites into a single complex. In 1987, in return for Glasshouse granting Skygarden access via its laneway to help keep the then new Pitt Street Mall pedestrian precinct free of delivery vehicles, Sydney City Council allowed the Glasshouse developers to construct a larger building. In 1988, the original owners of Skygarden and Glasshouse agreed to terms for the easement and it was registered under the Torrens system. Westfield now wishes to use the laneway to access all three of its sites from King Street. In the New South Wales Supreme Court, Westfield successfully sought a declaration that the easement permitted vehicles using the laneway to continue under Skygarden to access driveways, parking spaces and loading docks to be built on the Imperial Arcade and Centrepoint sites. The Court of Appeal allowed an appeal by Perpetual. Westfield appealed to the High Court. The Court unanimously dismissed the appeal. It said that it was significant that the terms of easement did not use the word “across” in relation to Skygarden but the words “to and from”. It rejected Westfield’s argument that the phrase “for all purposes” encompassed the purpose of accessing Skygarden and from there travelling to some further property. The Court held that the phrase had to be read as part of the longer expression “for all purposes with vehicles to and from [Skygarden] or any such part thereof across [Glasshouse]” and did not include going to and from and across Skygarden. It also held that Westfield could not use extrinsic material to ascertain the intention or contemplation of the parties to the grant of the easement beyond the terms of the grant itself. The easement was registered but third parties inspecting the register cannot be expected to look for extrinsic material which might establish facts or circumstances existing at the time of registration of the kind relied upon by Westfield. The use of such material is inconsistent with the definitive nature of the Torrens register.
+HIGH COURT OF AUSTRALIA 9 November 2016 [2016] HCA 43 Today the High Court unanimously allowed an appeal from the Full Court of the Federal Court of Australia. The High Court held that the deterioration of the respondent's mental condition was suffered as a result of administrative action undertaken by her employer, and therefore may not constitute an "injury" for which the appellant, Comcare, was liable to pay compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth). The respondent, Ms Martin, was employed by the Australian Broadcasting Corporation as a producer of a local morning radio program. She had a difficult working relationship with her direct supervisor, who she thought was bullying and harassing her. Following a number of attempts to remove herself from his supervision, Ms Martin was appointed to act temporarily in the higher position of cross media reporter. Ms Martin subsequently applied for and was interviewed for permanent appointment to that position. The selection panel informed Ms Martin that she had not been appointed to the permanent role and would be returning to her previous position under the supervision of her previous supervisor. At that point, Ms Martin broke down uncontrollably and subsequently was diagnosed with an adjustment disorder, rendering her unfit for work. Ms Martin made an application for compensation to Comcare, which was refused on the basis that her adjustment disorder was "suffered as a result of reasonable administrative action" and therefore was not an "injury" as defined in s 5A(1) of the Safety Rehabilitation and Compensation Act 1988 (Cth). Ms Martin appealed the merits of Comcare's decision to the Administrative Appeals Tribunal. The Tribunal found that Ms Martin was suffering from an adjustment disorder during the period in which she was acting as cross media reporter and that the adjustment disorder deteriorated as a result of her failure to obtain the permanent position. However, the Tribunal also found that the decision not to appoint Ms Martin had not been taken in a reasonable manner and therefore Comcare was liable to pay compensation. That finding was overturned on an appeal by Comcare to the Federal Court of Australia. An order was made remitting the matter to the Tribunal. Ms Martin then appealed to the Full Court of the Federal Court, which, by majority, allowed her appeal. The Full Court construed the phrase "as a result of" in s 5A(1) as requiring the application of a "common sense" approach to causation, and held that the Tribunal failed to apply that approach. By grant of special leave, Comcare appealed to the High Court. The High Court unanimously allowed the appeal, holding that the Full Court erred in construing the phrase "as a result of" in s 5A(1) as importing a "common sense" notion of causation. The Court held that the causal connection required in s 5A(1) is met if, without the taking of the administrative action, the employee would not have suffered the ailment or aggravation that was contributed to, to a significant degree, by the employee's employment. The High Court allowed the appeal and made orders with the effect that the matter is remitted to the Tribunal to determine, according to law, whether the administrative action was taken in a reasonable manner.
+HIGH COURT OF AUSTRALIA Public Information Officer 16 October 2008 SIE SOK v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND MIGRATION REVIEW TRIBUNAL A claim of domestic violence did not have to be raised during initial consideration of an application for a permanent visa but could be raised when a visa refusal was being reviewed by the Migration Review Tribunal (MRT), the High Court of Australia held today. In August 2002, Sie Sok, a citizen of Cambodia, married an Australian woman who sponsored his applications for a temporary visa and a permanent visa. The temporary visa was granted and Mr Sok entered Australia in November 2002. Permanent visas are not granted for at least two years. A condition for the grant of the permanent visa was that the applicant be the spouse of the sponsor. This required the Minister to be satisfied that the couple had a mutual commitment to a shared life as husband and wife to the exclusion of all others, that the relationship was genuine and continuing, and that they live together or do not live apart on a permanent basis. If the relationship had ceased, an applicant would remain entitled to a permanent visa if they had suffered domestic violence committed by the sponsoring spouse. In March 2005, following an interview by an immigration official and visits to two addresses where Mr Sok and his wife were apparently living, the visa was refused on the ground that the official was not satisfied that Mr Sok was the spouse of the sponsor. He applied for a review by the MRT. In February 2006, Mr Sok submitted material to the MRT claiming that he had been the victim of domestic violence. The MRT, without inviting Mr Sok to appear to give evidence or make submissions, recorded a finding that it was not satisfied that he had suffered domestic violence. If the MRT was not satisfied that a claimant had suffered domestic violence it could refer the question to an independent expert. The expert’s opinion was conclusive. In this case, without hearing Mr Sok, the MRT referred the matter to first one independent expert for an opinion, then to a second expert. Both experts concluded that Mr Sok had not suffered domestic violence. A copy of each opinion was sent to Mr Sok. After he received the first opinion he provided further evidence in support of his claim to have suffered domestic violence. In October 2006, the MRT held a hearing at which Mr Sok adduced evidence and presented arguments in support of his claim. The MRT affirmed the official’s decision to refuse him a permanent visa. Mr Sok applied to the Federal Magistrates Court (FMC) for relief. It declared the MRT’s decision to be unlawful, void and of no force and effect, and made orders quashing the decision, prohibiting the MRT and the Minister from giving effect to the decision, and requiring the MRT to rehear the application for review. It held that the MRT was obliged to invite Mr Sok to a hearing before seeking the opinion of an independent expert. The Minister appealed to the Full Court of the Federal Court of Australia, which allowed the appeal. The Full Court held that Division 1.5 of the Migration Regulations relating to domestic violence applied only to the original decision-maker and not to the MRT. It held that a person had to have raised a domestic violence claim when a visa application was considered by the Minister. Mr Sok appealed to the High Court. The Court unanimously allowed the appeal and upheld the FMC’s orders. It held that the MRT must consider a claim of domestic violence made by a visa applicant, even when no such claim was made before the Minister refused to grant the visa. The MRT must invite the applicant for review to appear to give evidence and present arguments before making a decision about whether or not the applicant has suffered domestic violence.
+HIGH COURT OF AUSTRALIA 18 March 2020 UCOMMISSIONER OF STATE REVENUE v ROJODA PTY LTD [2020] HCA 7 Today the High Court, by majority, allowed an appeal from the Court of Appeal of the Supreme Court of Western Australia. The majority held that, in relation to two partnerships, a partner held titles to partnership property on trust for their fellow partners, each of whom had a non-specific interest in relation to all of the partnership property. The majority also held that after the partnerships had dissolved, declarations that title to particular partnership property was held on trust in the relevant proportions for each former partner were dutiable transactions within the meaning of s 11(1) of the Duties Act 2008 (WA). The Scolaro family conducted a business of property ownership in Western Australia through two partnerships. One partnership consisted of Mr and Mrs Scolaro and the other consisted of Mr and Mrs Scolaro and their three children. Freehold titles to land, which were part of the partnership property, were held by Mr and Mrs Scolaro as joint tenants. Upon Mr Scolaro's death in 2011, the partnerships dissolved but were not wound up and Mrs Scolaro, as the surviving joint tenant, became registered as proprietor of the freehold titles. In 2013, Mrs Scolaro, her two surviving children, and the successors in title to her deceased son entered into two deeds concerning the freehold titles ("the 2013 Deeds"). The 2013 Deeds declared that Mr and Mrs Scolaro had held the freehold titles on trust for the partnerships, and "confirm[ed]" that Mrs Scolaro, as the sole surviving trustee, continued to hold the freehold titles on trust for the surviving partners, and the legatees of Mr Scolaro and her deceased son, in their respective partnership shares. The 2013 Deeds appointed the respondent, Rojoda Pty Ltd ("Rojoda"), to replace Mrs Scolaro as trustee of the freehold titles. Section 11(1)(c) of the Duties Act provides that a declaration of trust over dutiable property, which includes land in Western Australia, is a "dutiable transaction". The Commissioner imposed duty upon the declarations of trust in each of the 2013 Deeds. The State Administrative Tribunal dismissed an application for review by Rojoda on the basis that the 2013 Deeds declared bare trusts over the freehold titles and thus altered the nature of the partners' interests with respect to the partnership property. The Court of Appeal allowed Rojoda's appeal and held that upon dissolution of the partnerships, since liabilities could be discharged from current assets, equity would treat the nature of the partners' equitable rights as fixed interests in the partnership freehold titles, with the consequence that no duty was payable . The High Court, by majority, held that the declarations of trust were dutiable transactions. Mr and Mrs Scolaro held the freehold titles on trust for their fellow partners during the life of the partnerships and, in relation to Mrs Scolaro, upon their dissolution; prior to the 2013 Deeds, each of the surviving partners and the successors in title to the deceased partners held a non-specific interest in relation to all of the partnership property that was not an interest in, or in relation to, any specific asset, but a right to a share of the net proceeds from the sale of each asset at the completion of the winding up. As the declarations of trust under the 2013 Deeds created new fixed interests in the freehold titles that were different from the prior non-specific interests of the partners, the declarations were dutiable transactions within the meaning of the Duties Act. The majority also rejected the respondent's arguments that the 2013 Deeds were agreements to convert the partnership interests into specific equitable interests or that they involved agreements to transfer partnership property to former partners or their successors within s 78 of the Duties Act. The majority held that the 2013 Deeds extinguished the existing rights held by the former partners and created new equitable rights annexed to the freehold titles.
+HIGH COURT OF AUSTRALIA 23 June 2021 MATTHEW WARD PRICE AS EXECUTOR OF THE ESTATE OF ALAN LESLIE PRICE (DECEASED) & ORS v CHRISTINE CLAIRE SPOOR AS TRUSTEE & ORS [2021] HCA 20 Today, the High Court unanimously dismissed an appeal from a judgment of the Court of Appeal of the Supreme Court of Queensland. The principal question on appeal was whether the parties to a mortgage may agree that the mortgagor will not plead the statutory time limitation under the Limitation of Actions Act 1974 (Qld) ("the Act") by way of defence to an action brought by the mortgagee or whether such an agreement was unenforceable as contrary to public policy. That question also concerned the terms of the clause in the mortgages and whether they were effective to prevent the appellants from pleading the statutory time limitation. Another question concerned whether s 24 of the Act operated automatically to extinguish title at the expiry of the time period. Law Partners Mortgages Pty Ltd ("LPM") advanced $320,000 to the appellants in 1998, secured by mortgages over land. The respondents, successors in title to LPM, brought proceedings as mortgagees in which they claimed monies owing under and secured by two mortgages, together with recovery of possession of land the subject of the mortgages. The appellants pleaded that the respondents were statute-barred from bringing the action for debt pursuant to ss 10, 13 and 26 of the Act. It was further alleged that the respondents' title under the mortgages had been extinguished by operation of s 24 of the Act. Section 24 of the Act provided, in effect, that where the relevant time period within which a person "may bring an action" to recover land had expired, "title" to that land "shall be extinguished". In reply, the respondents relied on cl 24 of each mortgage, which they contended amounted to a covenant on the part of the appellants not to plead a defence of limitation. The primary judge dismissed the respondents' application for summary judgment or for a strike out of the defences. The Court of Appeal allowed the appeal from that decision, finding that it was possible to contract out of the defences conferred by the Act and that s 24 did not apply in the circumstances of the case. The High Court unanimously dismissed the appeal. The High Court held that the right to plead the expiry of the relevant time period as a defence was a benefit conferred upon individuals. It was not contrary to public policy for the relevant parties to agree to give up that right and such an agreement was enforceable. Clause 24, properly construed, was intended to apply to a benefit given by statute to a defendant by which the mortgagee's right could be defeated. Further, s 24 does not operate automatically at the end of the relevant time period to extinguish title; instead, it operates by reference to the plea. By agreeing to the terms of cl 24, the appellants effectively gave up the right to plead the expiry of the relevant time period, the respondents were not statute-barred and s 24 of the Act did not operate to extinguish the respondents' title. The Court further found that the respondents were not confined to an action in damages in the event of the appellants breaching cl 24.
+HIGH COURT OF AUSTRALIA 6 October 2021 [2021] HCA 28 Today the High Court unanimously dismissed an appeal from a decision of the Court of Criminal Appeal of the Supreme Court of New South Wales. The appeal concerned whether the verdict at trial was affected by a miscarriage of justice within the meaning of s 6(1) of the Criminal Appeal Act 1912 (NSW) in that the prosecution did not provide "full and proper" disclosure of certain data to the appellant prior to trial, contrary to the requirements of ss 141 and 142 of the Criminal Procedure Act 1986 (NSW) ("the Act"). The appellant was convicted by a jury of six counts of aggravated sexual intercourse with a person aged above 10 and under 14 years of age, contrary to s 66C(2) of the Crimes Act 1900 (NSW). The appellant contended that the trial miscarried by reason of the prosecution's failure to provide to his lawyers, in advance of the trial, a hard drive containing a copy of data stored on the appellant's mobile phone ("the Cellebrite Download"), which had been seized by police upon his arrest. The Office of the Director of Public Prosecutions ("the ODPP") informed the appellant's lawyers of the existence of the Cellebrite Download in writing on three occasions prior to the trial but did not serve a copy of the Cellebrite Download or otherwise provide any information from the Cellebrite Download. The appellant's lawyers only became cognisant of the Cellebrite Download after the ODPP served a witness statement on the Friday before the trial was scheduled to commence. The High Court unanimously held that in this case the verdict was not affected by a miscarriage of justice and dismissed the appeal. The majority of the High Court found that there was no prosecutorial duty to disclose a copy of the Cellebrite Download because the appellant, even with the benefit of hindsight, was unable to show how the contents of the Cellebrite Download "would reasonably be regarded as relevant to the prosecution case or the defence case" as required by s 142(1)(i) of the Act or were "relevant to the reliability ... of a prosecution witness" as required by s 142(1)(k) of the Act. The majority found that the appellant's arguments about the forensic value of the Cellebrite Download did not rise above the level of speculation. In any event, the appellant was unable to show any respect in which his entitlement to a fair trial was adversely affected by not being provided with a copy of the Cellebrite Download. The High Court rejected the appellant's argument that, without the Cellebrite Download, he had lost the chance of a different outcome at trial that might have resulted from further investigations, cross-examination and submissions.
+HIGH COURT OF AUSTRALIA 16 June 2010 Manager, Public Information HOGAN v AUSTRALIAN CRIME COMMISSION & ORS [2010] HCA 21 Today, the High Court held that the Federal Court should not make orders prohibiting or restricting the publication of documents in evidence before it unless they are necessary to prevent prejudice to the administration of justice. As part of an investigation known as Operation Wickenby, the Australian Crime Commission (ACC) used its powers under the Australian Crime Commission Act 2002 (Cth) to require a firm of accountants to produce documents relating to the appellant, Paul Hogan, and other individuals and entities. An adviser to Mr Hogan commenced proceedings in the Federal Court to restrain the ACC and its Chief Executive Officer from using or disseminating the documents that related to Mr Hogan. Mr Hogan was later joined as a party. The adviser claimed legal professional privilege over the documents on Mr Hogan's behalf; the ACC disputed the claim. One of the ACC's arguments was that the documents were made in furtherance of a crime or fraud such that no privilege existed. During the proceedings, Mr Hogan sought discovery from the ACC in relation to its claim that the documents were made in furtherance of a crime or fraud. An affidavit supporting the discovery application was affirmed by Mr Hogan's solicitor and filed in court. The exhibit to the affidavit contained a schedule produced by the ACC. The schedule detailed inferences, as to Mr Hogan's alleged involvement in tax evasion schemes, that the ACC said could be drawn from the documents it had obtained from the firm of accountants. The exhibit also included file notes and accounting advices that concerned Mr Hogan's taxation and financial affairs. On Mr Hogan's application (which was not opposed by the ACC), the trial judge made orders under s 50 of the Federal Court of Australia Act 1976 (Cth) restricting the publication of the schedule, file notes and accounting advices, among other documents, to the parties and their legal advisers. Section 50 enables the Court to make such order forbidding or restricting the publication of particular evidence or the name of a party or witness as appears to the Court to be necessary in order to prevent prejudice to the administration of justice or the security of the Commonwealth. The ACC later abandoned its reliance on the crime or fraud exception to legal professional privilege, and the proceeding originally brought by Mr Hogan's adviser was eventually dismissed. However, on 15 July 2008, Mr Hogan sought orders that the restrictions on the publication of the documents contained in the exhibit to his solicitor's affidavit remain in force. On 5 August 2008, Nationwide News Pty Limited ("News") and John Fairfax Publications Pty Limited ("Fairfax") made an application for leave to inspect the documents held by the Registry of the Federal Court in relation to the proceeding. They also sought the vacation of all orders under s 50 of the Federal Court of Australia Act restricting the publication of documents relating to the proceeding. The trial judge refused Mr Hogan's application, vacated all orders restricting the publication of the documents and gave leave to News and Fairfax to inspect and copy the documents, including the schedule, file notes and accounting advices. The Full Court of the Federal Court by majority dismissed an appeal by Mr Hogan from the vacation of the order that restricted the publication of the schedule, file notes and accounting advices. By special leave, Mr Hogan appealed to the High Court seeking relief that would have reinstated the s 50 order in relation to the documents and would have dismissed the application made by News and Fairfax for leave to inspect and copy them. Mr Hogan claimed that the trial judge and the Full Court had failed to recognise the inherently confidential nature of the documents. The High Court today unanimously dismissed Mr Hogan's appeal. The Court did not agree that the material was inherently confidential. The question was whether an order under s 50 was necessary to prevent prejudice to the administration of justice by the Federal Court. In this context, the Court held that the administration of justice includes not only the generally recognised interest in open justice openly arrived at but also restraints upon disclosure where this would prejudice the proper exercise of the Federal Court's adjudicative function. The High Court noted that Mr Hogan had not adduced evidence of any specific prejudice that would or might flow from disclosure of the material, nor was he relying on a claim of legal professional privilege over the material. The placing of the material in evidence was a forensic decision. In relation to the application made by News and Fairfax, the Court held that leave was properly granted to inspect and copy documents held by the Registry because Mr Hogan had adduced no evidence of apprehended particular or specific harm or damage.
+HIGH COURT OF AUSTRALIA 6 October 2005 GLORIA JEANETTE YORK v THE QUEEN The Queensland Court of Appeal was not justified in overruling a primary judge’s decision to suspend a prison sentence imposed on Ms York, the High Court of Australia held today. Ms York, 59, pleaded guilty to drugs charges in June 2004. She had an extensive criminal history. Justice Roslyn Atkinson sentenced her to five years’ imprisonment but suspended the sentence for five years. Justice Atkinson said a head sentence of 10 to 12 years was appropriate but she discounted this by 60 per cent as Ms York had not offended since her arrest in April 2001 and, more importantly, had given extensive assistance to the police resulting in the conviction of a major drug dealer, Alan John Lace, for an execution-style murder in 1999. Her conduct, throughout Mr Lace’s original trial and a subsequent retrial, was described by Justice Atkinson as very brave. She said Ms York, who had received death threats, faced a high risk of violent retribution in prison, but that she would have no compunction in sending Ms York to prison if she re-offended within five years. Threats included a visit after Mr Lace’s committal from a masked and armed former prisoner who told her she would be shot if she testified against Mr Lace. Further threats were made after the first trial and after his appeal. Ms York refused witness protection. The Crown appealed on the ground that the sentence was manifestly inadequate. In the Court of Appeal, the Attorney-General submitted information from the Department of Corrective Services that options to be considered for Ms York were a protection unit at the Brisbane Women’s Correctional Centre or the Townsville jail. The Court of Appeal, by majority, held that, despite the uncontradicted findings about the risks to Ms York’s safety, it could not bow to pressure from criminals, and that jail was the only appropriate penalty, despite her cooperation with authorities and her guilty plea. It sentenced her to five years’ imprisonment to be suspended after she served two years. That sentence has not taken effect, pending the outcome of her appeal to the High Court. The Court unanimously allowed her appeal. It held that Justice Atkinson was entitled to take Ms York’s safety in prison into account and that it was within the scope of her discretion to sentence her as she did.
+HIGH COURT OF AUSTRALIA 8 December 2021 DEPUTY COMMISSIONER OF TAXATION v CHANGRAN HUANG [2021] HCA 43 Today the High Court allowed an appeal from a decision of the Full Court of the Federal Court of Australia. The appeal concerned the Federal Court's power to make an order restraining a person from disposing of, dealing with or diminishing the value of assets, including assets located in or outside Australia (a "Worldwide Freezing Order") conferred by r 7.32 of the Federal Court Rules 2011 (Cth) ("the Rules"). Rule 7.32(1) states that the purpose of the order must be "preventing the frustration or inhibition of the Court's process" and the order must serve that purpose "by seeking to meet a danger that a judgment or prospective judgment of the Court will be wholly or partly unsatisfied". The respondent, Mr Huang, was a tax resident of Australia for a number of years. In December 2018, he left Australia for the People's Republic of China ("the PRC") while the Australian Taxation Office was conducting an audit into his income tax affairs. Subsequently, the Commissioner of Taxation issued to Mr Huang assessments for tax liabilities and a shortfall penalty totalling almost $141 million. On application by the Deputy Commissioner of Taxation the primary judge made a Worldwide Freezing Order against Mr Huang until further order. Mr Huang sought leave to appeal against the freezing order to the extent it applied to his assets located outside Australia. The Full Court granted leave and set aside the Worldwide Freezing Order on the basis that there was presently no realistic possibility of enforcement of any judgment obtained by the Deputy Commissioner against Mr Huang's assets in the PRC or Hong Kong. The High Court by majority held that the power in r 7.32 of the Rules is not constrained by a precondition that it may only be exercised if there is proof of a realistic possibility of enforcement of a judgment debt against the person's assets in each foreign jurisdiction to which the proposed order relates. Provisions granting powers to a court are not to be read down by making implications or imposing limitations which are not found in the express words. The power conferred by r 7.32 is broad and flexible. It is the court's authority to make orders against a person who is subject to the court's jurisdiction that is relevant to the power to make a freezing order, rather than the location of the person's assets. Requiring proof of a realistic possibility of enforcement in each jurisdiction would render the power to make a freezing order largely impotent to protect the Federal Court's process from frustration by defendants who are able to secrete assets or move them almost instantaneously across international borders. Further, such a precondition is effectively inconsistent with the power to make a Worldwide Freezing Order as it would necessitate identification of the defendant's foreign assets as well as potential means of enforcement in a relevant foreign jurisdiction. However, the likely utility of a freezing order is undoubtedly relevant to the exercise of the court's discretion to grant a Worldwide Freezing Order.
+HIGH COURT OF AUSTRALIA 7 September 2012 P T GARUDA INDONESIA LTD v AUSTRALIAN COMPETITION & CONSUMER COMMISSION [2012] HCA 33 Today the High Court unanimously dismissed an appeal by P T Garuda Indonesia Ltd ("Garuda") and held that Garuda had no claim to immunity under the Foreign States Immunities Act 1985 (Cth) ("the Act") from proceedings brought in the Federal Court by the Australian Competition and Consumer Commission ("the ACCC"). The ACCC alleged that, with respect to commercial freight services to Australia, Garuda and several other airlines had engaged in anti-competitive conduct which contravened s 45 of the Trade Practices Act 1974 (Cth) ("the TPA"). The remedies sought by the ACCC included an injunction, declaration and pecuniary penalties under the TPA. It was not disputed in the High Court that Garuda was a "separate entity" of the Republic of Indonesia. The High Court held however, that Garuda could not claim immunity because the proceedings against it concerned a commercial transaction within the meaning of s 11(1) of the Act. The conduct alleged by the ACCC against Garuda comprised dealings of a commercial trading and business character. It was no answer to the denial of immunity that the ACCC proceedings were not brought to vindicate private law contractual rights.
+HIGH COURT OF AUSTRALIA 4 May 2011 KUHL v ZURICH FINANCIAL SERVICES AUSTRALIA LTD & ANOR [2011] HCA 11 Today the High Court allowed an appeal against a decision of the Court of Appeal of the Supreme Court of Western Australia and held that Zurich Financial Services Australia Ltd ("Zurich") was liable in negligence to Mr Geoffrey Lawrence Kuhl. In 1999 Mr Kuhl, an employee of Transfield Construction Pty Ltd, suffered injuries on a work site when his left arm was sucked into a vacuum hose after the hose was passed to him by another person. Mr Kuhl commenced an action in negligence against Zurich and QBE Insurance Services Australia Ltd ("QBE") in the District Court of Western Australia. Mr Kuhl alleged that WOMA (Australia) Pty Ltd ("WOMA") and Hydrosweep Pty Ltd ("Hydrosweep") were liable in negligence for his injuries. Zurich and QBE were the respective insurers of these two companies. The District Court held that neither Zurich nor QBE were liable to Mr Kuhl in negligence. Mr Kuhl appealed to the Court of Appeal. The Court of Appeal dismissed the appeal on the basis that neither Zurich nor QBE owed Mr Kuhl the duties of care contended for, and that there was no breach of duty in any event. A majority of the High Court allowed the appeal, and made an order setting aside the orders of the Court of Appeal and the District Court in respect of Zurich and entering judgment against Zurich in the amount of $265,000. The High Court held that WOMA had a duty of care to users of the hose which extended to risks in relation to the passing of the hose. The Court further held that WOMA had breached that duty by failing to issue instructions not to pass the hose while the power was turned on and by failing to install a "break box" close to the head of the hose which could be employed to break the vacuum pressure, and that each of these breaches had caused Mr Kuhl's injuries. The High Court also held that the trial judge erred in drawing an inference adverse to Mr Kuhl, on the basis of Mr Kuhl's oral evidence, that some action by him subsequent to the passing of the hose caused his arm to be drawn in to the hose. The nature of this error was the trial judge's failure to give reasons for his inference and his failure to give Mr Kuhl an opportunity to address the point. The High Court upheld the orders of the District Court and the Court of Appeal in favour of QBE.
+HIGH COURT OF AUSTRALIA 15 August 2012 MINISTER FOR HOME AFFAIRS OF THE COMMONWEALTH & ORS v CHARLES ZENTAI & ORS [2012] HCA 28 Today the High Court dismissed an appeal from a decision of the Full Court of the Federal Court of Australia, which had held that the first appellant, the Minister, could not determine to surrender the first respondent, Charles Zentai, to the Republic of Hungary for an offence which was not an offence under Hungarian law at the time the acts alleged to constitute it were committed. Mr Zentai is an Australian citizen. On 23 March 2005, Hungary requested his extradition for the offence of "war crime". The acts said to constitute the offence occurred on 8 November 1944 and involved a fatal assault on a young Jewish man. At that time, in Hungary, there was no offence of "war crime" but there was an offence of murder, however Hungary did not request Mr Zentai's surrender for the crime of murder. On 8 July 2005, the former Minister for Justice and Customs issued a notice of receipt of the extradition request. Mr Zentai was arrested on a provisional warrant and granted conditional bail. On 20 August 2008, the second respondent, a magistrate, determined that Mr Zentai was eligible for extradition to Hungary and issued a warrant committing him to prison. On 12 November 2009, the Minister determined that Mr Zentai was to be surrendered to Hungary under s 22(2) of the Extradition Act 1988 (Cth) ("the Act"). Section 22(2) of the Act requires the Attorney-General (in this case, the Minister) to determine as soon as is reasonably practicable after a person becomes an "eligible person" whether the person is to be surrendered in relation to a qualifying extradition offence. Section 11 of the Act provides that regulations may state that the Act applies in relation to a specified extradition country subject to such limitations, conditions, exceptions or qualifications as are necessary to give effect to a bilateral extradition treaty. The Extradition (Republic of Hungary) Regulations (Cth) declare Hungary to be an extradition country and provide that the Act applies in relation to Hungary subject to the Treaty on Extradition between Australia and the Republic of Hungary ("the Treaty"). Article 2.5(a) of the Treaty states that extradition may be granted irrespective of when the offence in relation to which extradition is sought was committed, provided that "it was an offence in the Requesting State at the time of the acts or omissions constituting the offence". The Act precludes surrender of an eligible person in a case in which it applies in relation to an extradition country subject to a condition having the effect that surrender shall be refused in certain circumstances, unless the Minister is satisfied that those circumstances do not exist. Mr Zentai commenced proceedings in the Federal Court claiming an order quashing the Minister's determination. McKerracher J found that it had not been open to the Minister to surrender Mr Zentai for extradition because "war crime" was not an offence in Hungary at the time the acts alleged to constitute it were committed. The appellants appealed to the Full Court of the Federal Court, which allowed the appeal in part and varied the primary judge's orders, but otherwise dismissed the appeal. A majority concluded that McKerracher J was correct in holding that the offence for which extradition was sought must have been an offence under Hungarian law at the time of the acts alleged to constitute it. The appellants appealed, by special leave, to the High Court of Australia. The High Court dismissed the appeal. By majority, it held that the inquiry to which Art 2.5(a) directed attention was not whether the acts or omissions particularised in the request were capable of giving rise to any form of criminal liability under the laws of the Requesting State at the time they were committed, but whether, at that time, those acts or omissions constituted the offence for which extradition was sought. The Minister was precluded from surrendering Mr Zentai for extradition unless he was satisfied that the offence of "war crime" was an offence against the law of Hungary on 8 November 1944.
+HIGH COURT OF AUSTRALIA 7 September 2022 [2022] HCA 31 Today, the High Court allowed an appeal from a judgment of the Court of Criminal Appeal of New South Wales. The appeal concerned the scope of operation of s 80AF of the Crimes Act 1900 (NSW), a provision intended to facilitate the prosecution of historic sexual offences, and whether that provision could apply after an accused's trial had commenced. On 29 November 2018, the appellant, Mr Stephens, was arraigned in the District Court of New South Wales and pleaded not guilty to each count on an 18-count indictment, which alleged sexual offences by Mr Stephens against a complainant from the time that the complainant was 10 years old until the complainant was approximately 15 years old. In respect of four instances of alleged conduct, the Crown was uncertain whether the alleged conduct occurred (i) before 8 June 1984, at which time s 81 of the Crimes Act was in force, or (ii) on or after 8 June 1984, at which time s 81 had been repealed but s 78K of the Crimes Act was in force. These four instances were formulated in pairs of alternative counts under ss 81 and 78K. On 1 December 2018, s 80AF of the Crimes Act came into force. It relevantly provided that, in circumstances where it is uncertain as to when during a period conduct is alleged to have occurred and, due to a change in the law, the alleged conduct would have constituted more than one sexual offence during that period, the prosecution can rely, in relation to the entirety of the period, on whichever offence carries the lesser maximum penalty. In Mr Stephens' case, the practical effect of s 80AF was to extend the period during which s 81 was in force, for conduct that constituted an offence under both ss 81 and 78K, from 8 June 1984 until 13 June 2003. Section 80AF displaced authority requiring the Crown to prove beyond reasonable doubt, on each count under s 81 or s 78K, that the alleged conduct was committed at a time when the relevant section was in force. On 5 February 2019, the Crown was granted leave to amend the indictment to take the benefit of s 80AF. Following further amendments to the indictment, Mr Stephens was convicted of seven counts of sexual offences against the complainant, four of which he appealed to the Court of Criminal Appeal. A majority of the Court of Criminal Appeal quashed his conviction on one of those counts only, concluding that s 80AF applied retroactively including to trials that had already commenced. By majority, the High Court held that s 80AF did not operate with respect to trials that had already commenced when the provision came into force and it could not be invoked after the commencement of a trial. To interpret s 80AF as being completely retroactive would significantly disturb reasonable expectations about the manner in which the law is implemented, and retroactively alter the law for extant proceedings where forensic decisions may have been made in reliance upon the previous law. An interpretation of s 80AF which restricted its retroactive effect, by requiring the Crown to elect to take advantage of the provision before the commencement of the trial, was supported by textual indications and reasonable expectations of its operation.
+HIGH COURT OF AUSTRALIA Public Information Officer 27 March 2008 GUMLAND PROPERTY HOLDINGS PTY LTD v DUFFY BROS FRUIT MARKET (CAMPBELLTOWN) PTY LTD, FERDINANDO PISCIUNERI AND NATALE PISCIUNERI A commercial lease was validly terminated on account of the lessee’s failure to pay rent and the lessor was entitled to damages as well as unpaid rent and outgoings, the High Court of Australia held today. In 1993, Duffy Bros leased almost 20 per cent of the Marketfair Campbelltown shopping centre for 15 years from Transit Management Pty Ltd to operate a fruit, vegetable and meat market. The base rent was $245,343 per annum, subject to Consumer Price Index increases and five-yearly reviews, plus almost 20 per cent of Transit’s outgoings. In 1994, the Pisciuneris entered into a guarantee to pay all costs for occupation of the premises or arising out of any breach of the lease agreement. By 1999, Duffy Bros was experiencing difficult trading conditions and had fallen into arrears with rent and outgoings. Duffy Bros and Transit entered a deed which reduced the rent to $156,000 per annum and allowed the creation of a sub-lease over part of the premises. Duffy Bros sub-leased the portion of the premises to Austie Nominees Pty Ltd which in 2001 transferred its interest to Woolworths Ltd. Transit sold the shopping centre to Gumland Property Holdings in 2001 and transferred all its rights under the lease and the 1999 deed to Gumland. The sub-lease expired in 2002 and Woolworths told Duffy Bros that it did not wish to renew. However it remained in occupation while opting unilaterally to pay only half the rent. This put Duffy Bros into breach of the deed since it did not pay the shortfall itself. Gumland served notice on Duffy Bros stating that the shortfall in rent was a breach entitling it to terminate the lease. It demanded payment of $57,893.55. Duffy Bros did not pay and on 1 August 2003 Gumland gave notice terminating the lease. In 2004, Gumland began proceedings seeking arrears of rent up to the date of termination, loss of bargain damages for the rest of the 15-year term, expiring on 29 March 2008, and reinstatement damages (the costs of reletting the premises). It also sued the Pisciuneris as guarantors of Duffy Bros’ obligations under the lease. In the NSW Supreme Court, Associate Justice Richard Macready held that the lease was validly terminated due to the failure to pay rent. The failure to make up the shortfall in Woolworths’ rent gave rise to a right to loss of bargain damages as well as rent arrears. Associate Justice Macready gave judgment for Gumland of $2,096,514, including interest, made up of the Woolworths’ shortfall ($78,635); arrears of rent and outgoings ($283,597); loss of bargain damages – the difference between rent and outgoings payable between 1 August 2003 and 29 March 2008 and that paid by new tenants ($1,624,737); and reinstatement damages ($109,545). The Court of Appeal held that Gumland was not entitled to terminate the lease because Duffy Bros’ failure to pay the shortfall was only a breach of the deed, not a breach of an essential term in the lease. Therefore Gumland was not entitled to loss of bargain damages or reinstatement damages, reducing the judgment to $362,232. Gumland appealed to the High Court. The High Court unanimously allowed the appeal and restored the judgment sum awarded by Associate Justice Macready. It held that Duffy Bros had breached the deed and that Gumland had a clear right of action under the deed against Duffy Bros for rent not paid by Woolworths. Once part of the store was sub- leased, Duffy Bros was liable for the rent and outgoings under any sub-lease. The deed was not a side agreement to the lease or a suspension of the lease, but a variation of it. Hence the failure to pay these amounts was a failure to comply with the lease covenant to pay all rent and outgoings. The lease covenant was an essential term and breach of an essential term entitled Gumland to terminate the lease and obtain an award of loss of bargain damages.
+HIGH COURT OF AUSTRALIA 11 February 2016 CGU INSURANCE LIMITED v ROSS BLAKELEY, MICHAEL RYAN & QUENTIN OLDE AS JOINT AND SEVERAL LIQUIDATORS OF AKRON ROADS PTY LTD (IN LIQ) & ORS [2016] HCA 2 Today the High Court dismissed an appeal from the Court of Appeal of the Supreme Court of Victoria. The High Court held that the federal jurisdiction invested in the Supreme Court of Victoria authorised that Court to grant a declaration in favour of a plaintiff against a defendant's insurer that the insurer is liable to indemnify the defendant. The first respondents are liquidators of the second respondent, Akron Roads Pty Ltd ("the company"). They commenced proceedings in the Supreme Court seeking an order under s 588M(2) of the Corporations Act 2001 (Cth) ("the Act") that the directors of the company, including Mr Trevor Crewe and Crewe Sharp Pty Ltd ("the directors"), pay to them as a debt due to the company, an amount equal to the amount of loss or damage suffered by creditors of the company due to alleged insolvent trading in breach of s 588G of the Act. Crewe Sharp made a claim on a professional indemnity policy with the appellant, CGU Insurance Ltd ("CGU"). Mr Crewe was also insured under that policy. CGU denied the claim on the basis that the insurance policy did not cover the liability asserted by the directors as a result of various exceptions in the policy. The directors were not in a position to challenge CGU's denial of liability. In the interlocutory stages of the proceedings, the liquidators sought an order to join CGU as a defendant and for leave to file and serve amended points of claim seeking a declaration that CGU was liable to indemnify the directors under the policy. In contending that they had a sufficient interest in the determination of CGU's liability to support their claim for a declaration and joinder, the liquidators relied on s 562 of the Act. Section 562 afforded the liquidators a priority in respect of any insurance proceeds payable by CGU to Crewe Sharp. Section 117 of the Bankruptcy Act 1966 (Cth) would have imposed a similar priority, if Mr Crewe were to become bankrupt. The primary judge in the Supreme Court made the orders sought, and the Court of Appeal dismissed CGU's appeal. By grant of special leave, CGU appealed to the High Court, submitting that the Supreme Court lacked jurisdiction to join CGU and to grant declaratory relief at the suit of the liquidators regarding the effect of the private insurance contract between CGU and the directors, where the directors were not in a position to pursue any claim against CGU. In relation to federal jurisdiction, CGU's argument reduced to the proposition that there was no justiciable controversy between the liquidators and CGU and therefore no "matter" on which to found federal jurisdiction. The High Court dismissed the appeal, holding that the liquidator's claim for relief was within the subject matter area of federal jurisdiction and constituted a justiciable controversy between the liquidators and CGU. It was confirmed that the Supreme Court had federal jurisdiction to entertain the liquidators' claim and grant the declaration sought.
+HIGH COURT OF AUSTRALIA 18 May 2005 SAAP AND SBAI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS AND REFUGEE REVIEW TRIBUNAL A decision by the Refugee Review Tribunal to uphold the refusal to grant protection visas to Iranian asylum seekers SAAP and SBAI was invalid because it had not fully complied with a mandatory provision of the Migration Act, the High Court of Australia held today. SAAP and SBAI, a mother born in 1956 and her daughter born in 1993, are of the minority pre- Christian Sabian Mandean faith. They arrived in 2001 by boat from Indonesia, were taken into immigration detention, and sought protection visas on the ground of religious persecution. SAAP’s husband and three other children remained in Iran. SAAP is illiterate and speaks little English. Her eldest daughter was already in Australia and had been granted a protection visa. The Immigration Department refused SAAP and SBAI’s applications. That decision was affirmed by the RRT, which was not satisfied that their experiences amounted to persecution. In her visa application, SAAP described incidents of alleged persecution by the Muslim majority, including her children denied admission to school, being prevented from working as a hairdresser, an attempt to abduct the eldest daughter to forcibly convert her to Islam, and her husband losing the sight of one eye from a rock throwing. At the RRT hearing, conducted via video-link, the eldest daughter was asked about these incidents with SAAP out of the room in Woomera and her migration agent present in the hearing room in Sydney. The RRT member asked SAAP about her daughter’s responses to questions about SAAP’s husband loss of sight and the children’s attendance at school. The RRT member said he would write to SAAP about other answers given by her daughter on which he would like to receive written submissions. This did not happen. Section 424A of the Migration Act requires the RRT to give an applicant particulars in writing of any information that the RRT considers would be a reason for affirming the department’s decision and to invite the applicant to comment. In the Federal Court, Justice John Mansfield found that the RRT had failed to fulfil these two aspects of section 424A, but held that this failure did not deprive SAAP of the opportunity to learn of material adverse to her claim and to comment on it because her migration agent was present when the daughter gave evidence, the RRT asked SAAP about certain aspects of that evidence and SAAP had the opportunity to make submissions. The Full Court upheld Justice Mansfield’s decision declaring that the RRT had not erred in dismissing SAAP and SBAI’s claim for protection visas. They appealed to the High Court. The Court held, by a 3-2 majority, that the RRT failed to comply with section 424A of the Act, which it held set out mandatory steps to accord procedural fairness. The RRT was bound to give SAAP and SBAI written notice of the information it had obtained from the eldest daughter and to ensure as far as reasonably practical that they understood its relevance to the review. Failure to do so gave rise to jurisdictional error, rendering the RRT’s decision invalid. The Court ordered that the RRT’s decision be quashed and that the RRT review according to law the Immigration Department’s decision to refuse SAAP and SBAI protection visas.
+HIGH COURT OF AUSTRALIA Public Information Officer 28 August 2008 PAUL ANTHONY IMBREE v JESSIE McNEILLY AND QANTAS AIRWAYS LIMITED A 16-year-old without a driver’s licence or learner’s permit who had taken a turn at driving in central Australia had the same duty as any other driver to take reasonable care to avoid injury to others, including a passenger supervising him, the High Court of Australia held today. The Court overturned its 1986 decision in Cook v Cook, in which the Court held that the standard of care owed was what was reasonably expected of an unqualified and inexperienced driver. Mr Imbree was left a tetraplegic when his four-wheel-drive crashed while Jesse McNeilly (spelled “Jessie” in the title of the appeal) was driving on Larapinta Drive, a gravel road between Kings Canyon and Hermannsburg in the Northern Territory in April 2002. Mr Imbree was accompanied by his friend Ben Watson, his sons Paul and Reece, and Paul’s friend Jesse. Paul and Jesse were both 16. Paul had a learner’s permit but Jesse did not. On the trip from New South Wales to the NT, Mr Imbree allowed Paul and Jesse to drive from time to time. After visiting Ayers Rock and Kings Canyon, the group headed towards Hermannsburg and Alice Springs on Larapinta Drive. At first the road was hilly and corrugated and Mr Imbree and Mr Watson drove. When the road became wider and smoother Mr Imbree allowed Paul then Jesse to drive. When they came across tyre debris, instead of straddling and driving over it, Jesse veered to the right. Mr Imbree yelled at him to brake but he did not. When the vehicle was on the far right-hand side of the road, Jesse turned sharply to the left and accelerated, causing the vehicle to overturn. Mr Imbree brought proceedings in the NSW Supreme Court against Mr McNeilly as driver and Qantas as owner of the vehicle. He worked for Qantas and had a company vehicle. Justice Timothy Studdert gave judgment for Mr Imbree. He found that Mr McNeilly had behaved with carelessness beyond mere inexperience and rejected the argument that Mr Imbree had assumed the risk of injury, but found that he had been contributorily negligent. Mr Imbree’s damages, assessed at more than $9.5 million, were therefore reduced by 30 per cent. Mr McNeilly and Qantas appealed to the Court of Appeal, which held that the damages should be reduced by two-thirds for contributory negligence. The Court of Appeal treated Cook v Cook as establishing that actions resulting from inexperience, rather than carelessness, did not constitute a breach of the duty of care which a learner driver owed to a supervising licensed driver, but the majority found that Mr McNeilly had been careless by swerving off the road. Mr Imbree appealed to the High Court. The Court unanimously allowed the appeal and restored the 30 per cent reduction to the damages award in place of the two-thirds reduction. By a 6-1 majority, the Court held that Cook v Cook should no longer be followed. It held that there should not be different standards of care, depending on whether a plaintiff was supervising the defendant’s driving or not, and such a distinction in Cook v Cook was unwarranted. If a supervising passenger failed to take reasonable care for their own safety, for example in failing to exercise reasonable supervision, principles of contributory negligence would apply, but the learner driver was still subject to the same objective standard of care as any other driver rather than a lesser standard which varied according to experience and perhaps a variety of other factors personal to the driver. The Court dismissed an application by Mr McNeilly and Qantas for special leave to appeal against the Court of Appeal’s finding that Mr McNeilly had driven carelessly.
+HIGH COURT OF AUSTRALIA 26 September 2008 PAUL ANTHONY IMBREE v JESSIE McNEILLY AND QANTAS AIRWAYS LIMITED JESSIE McNEILLY AND QANTAS AIRWAYS LIMITED v PAUL ANTHONY IMBREE The High Court of Australia today increased the damages awarded to a passenger left a tetraplegic in an accident when a 16-year-old learner driver was driving. Mr Imbree’s four-wheel-drive crashed while his son’s friend, 16-year-old Jesse McNeilly (spelled “Jessie” in the title of the appeal), was driving on a gravel road in the Northern Territory in April 2002. Both boys were sometimes allowed to drive on the trip from New South Wales to the NT. Mr Imbree, a Qantas employee, brought proceedings in the NSW Supreme Court against Mr McNeilly as driver and Qantas as owner of the vehicle. Justice Timothy Studdert gave judgment for Mr Imbree. He found Mr McNeilly had been careless, but that Mr Imbree had been contributorily negligent. His damages, assessed at more than $9.5 million, were therefore reduced by 30 per cent. Mr McNeilly and Qantas appealed to the Court of Appeal, which held that the damages should be reduced by two-thirds for contributory negligence. Mr Imbree appealed to the High Court, which on 28 August 2008 allowed the appeal and restored the 30 per cent reduction to the damages award. The Court overturned its 1986 decision in Cook v Cook, in which it held that the standard of care owed was what was reasonably expected of an unqualified and inexperienced driver. Instead, the Court held that a learner driver was subject to the same objective standard of care as any other driver rather than to a lesser standard based on experience. Mr Imbree made three offers of compromise ahead of the trial, the appeal to the Court of Appeal and the appeal to the High Court. All were refused. The first offer to settle was for $7.1 million plus costs, the second $7.55 million plus costs, and the third was to settle for a little less than $7.225 million. The third offer was based on damages of $11,115,290, reduced by 35 per cent for contributory negligence, together with interest and the costs of the trial and High Court proceedings, with each party bearing its own costs in the Court of Appeal. The parties have since agreed on the quantum of damages, the amount of interest, the amount for which Mr McNeilly and Qantas should have credit for the amount already paid to Mr Imbree, and that Mr Imbree should have his costs in the Supreme Court on an ordinary basis up to 22 March 2006 and then on an indemnity basis. Mr McNeilly and Qantas accepted that Mr Imbree should have his costs of the Court of Appeal and High Court proceedings but that they should be on an ordinary basis and not on an indemnity basis. The High Court held that the consequential orders upon which the parties were now agreed meant that Mr Imbree would have judgment of $7,926,535.72, which was more than his three offers. It held that in these circumstances he should have his costs of the trial after the first offer of compromise and the appeals to the Court of Appeal and the High Court on an indemnity basis. The Court set aside Justice Studdert’s judgment and ordered that Mr Imbree’s damages be assessed at $11,323,622.46, reduced by 30 per cent for contributory negligence to $7,926,535.72, plus interest calculated up to 12 September 2008 of $875,000 and then $1,100 a day until payment, and that Mr McNeilly and Qantas have credit of $3,744,060.84 for amounts already paid.
+HIGH COURT OF AUSTRALIA 26 May 2005 APPLICANT NABD OF 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL The finding of the Refugee Review Tribunal that an Iranian Christian convert would not have a well-founded fear of persecution should he be returned to Iran was not affected by jurisdictional error, the High Court of Australia held today. NABD, 36, claimed that in Indonesia before arriving in Australia he had embraced the Christian faith and that he feared he would be executed by the authorities because he had converted from Islam to Christianity. NABD was refused a protection visa in 2001, a decision affirmed by the RRT. Following his successful application to the Federal Court of Australia for judicial review, a differently constituted tribunal also affirmed the decision to refuse him a visa. The RRT did not accept that NABD, a frequent traveller on business, had to flee to Turkey with a people smuggle rather than leaving legally on his own passport, or that authorities raided a house of a friend who was encouraging him to convert. It did accept, however, that NABD had been baptised in Indonesia, joined the Uniting Church, undertaken a Bible study course, attended religious gatherings in Indonesia and in immigration detention, distributed pamphlets, spoken to others about his faith, and encouraged others to attend church services. The RRT concluded from Australian and American official country information on Iran that Christians do not suffer persecution unless they engage in aggressive outreach or conspicuous proselytising. It held that in Iran NABD would be able to practise as a Christian in the same ways he had done so in Australia without facing a real chance of persecution. It did not accept that his activities since leaving Iran constituted proselytisation rather than quiet sharing of his faith so he would be unlikely to behave more openly or aggressively back in Iran. NABD applied to the Federal Court for writs to quash the RRT’s decision, to compel it to review its decision, and to prevent the Minister giving effect to the decision. The Federal Court dismissed the application and the Full Court of the Federal Court dismissed an appeal. NABD appealed to the High Court, arguing that the RRT paid insufficient regard to his individual circumstances and had fallen into jurisdictional error by attaching significance to different forms of behaviour. The High Court, by a 3-2 majority, dismissed the appeal. It held that the RRT had correctly addressed the fundamental question of whether NABD had a well-founded fear of persecution on the ground of religion. The Court held that the RRT had properly considered NABD’s individual circumstances in the light of the available information.
+HIGH COURT OF AUSTRALIA 1 December 2011 MICHAEL WILSON & PARTNERS LTD v ROBERT COLIN NICHOLLS [2011] HCA 48 The High Court today held that a trial judge had been correct not to disqualify himself from hearing a proceeding in the Supreme Court of New South Wales and that the proceeding was not an abuse of the process of the court. The High Court thus allowed the appeal and remitted the matter for further hearing by the Court of Appeal of issues which that Court had not decided. Michael Wilson & Partners Ltd ("MWP"), the appellant, was a law firm and business consultancy in Kazakhstan. MWP employed a solicitor, Mr Emmott, in effect as a partner, and two of the respondents, Messrs Nicholls and Slater, as lawyers. A few years later, Messrs Emmott, Nicholls and Slater left MWP. MWP claimed that each of them had wrongfully caused it loss by taking clients with them or by assisting or conspiring with others to do so. Mr Emmott's contract of employment required arbitration of any dispute with MWP. MWP commenced an arbitration in London against Mr Emmott. MWP claimed, among other things, that Mr Emmott breached a fiduciary duty owed to MWP. MWP then commenced the proceeding in the Supreme Court against the respondents, including Messrs Nicholls and Slater. MWP alleged that they had knowingly assisted Mr Emmott's breach of fiduciary duty and were liable to MWP on that basis as well as in tort. The claims of loss in both proceedings were substantially the same. Before the trial, MWP applied, without notice to the respondents, for permission to use, for foreign proceedings and criminal investigations, affidavits of Messrs Nicholls and Slater in the Supreme Court proceeding. The judge granted MWP's application and six similar applications over approximately a year, relying on MWP's uncontested affidavit evidence. On each occasion, the application was heard in closed court and orders were made preventing the respondents from knowing, or knowing fully, about MWP's applications. These confidentiality orders (with some variations) stood for about a year. When, before trial, the confidentiality orders were lifted, the respondents became aware of MWP's applications and applied to the judge to disqualify himself from hearing the case further. The judge refused their applications and tried the action. The trial judge gave judgment for MWP against the respondents. The arbitrators in London later delivered an award on Mr Emmott's liability to MWP. The trial judge and the arbitrators made differing findings about what losses MWP had suffered. The Court of Appeal held that the trial judge should have disqualified himself and that the Supreme Court proceeding brought by MWP was, in any case, an abuse of process. The High Court overturned the Court of Appeal's decision. The High Court held that the trial judge had been correct not to disqualify himself. A fair-minded lay observer could not reasonably have apprehended that the trial judge might not bring an impartial mind to the case due to what had occurred in connection with MWP's applications without notice. The trial judge had not decided any issue arising at trial, nor were the confidentiality orders themselves enough to found a reasonable apprehension of bias. The High Court also held that neither the institution nor the prosecution to judgment of the Supreme Court proceeding was an abuse of process. The Supreme Court proceeding was not a collateral challenge to the arbitration. Further, because the respondents' liability to MWP was not necessarily limited by Mr Emmott's liability to MWP, the differing findings about loss did not make the Supreme Court proceeding an abuse.
+HIGH COURT OF AUSTRALIA 31 August 2005 MOHAMMAD ARIF RUHANI v DIRECTOR OF POLICE (THROUGH THE SECRETARY OF JUSTICE AS DIRECTOR OF PUBLIC PROSECUTOR) The High Court of Australia today published its reasons for holding that it has the jurisdiction to hear appeals from the Supreme Court of Nauru. Mr Ruhani was one of a number of asylum seekers brought to Nauru by Australian sea transport on 21 December 2001 and housed in two camps, Topside and Former State House. Mr Ruhani instituted habeus corpus proceedings in the Supreme Court of Nauru in April 2004, alleging he was held at Topside against his will by or on behalf of the Director of Police, but was unsuccessful. Mr Ruhani appealed to the High Court of Australia. As a preliminary issue, the Director of Police contended that the High Court lacks jurisdiction to hear the appeal because the Nauru (High Court Appeals) Act is not a valid law of the Commonwealth. The High Court, by a 5-2 majority, disallowed the Director’s objection to competency last December and today released its written reasons. From 1965 until Nauru became independent in 1968 the High Court, by leave, heard appeals from Nauru. In 1976 the governments of Nauru and Australia agreed that the High Court would again hear certain appeals from the Supreme Court of Nauru in respect of both the Supreme Court’s original and appellate jurisdiction and the Commonwealth Parliament passed the Nauru (High Court Appeals) Act. Mr Ruhani submitted that the provisions of the Act are laws made by the Parliament in exercise of its authority under section 76(ii) of the Constitution to make laws conferring original jurisdiction on the High Court in any matter arising under any laws made by the Parliament. He also submitted that the Act is also an exercise of Parliament’s powers to make laws with respect to external affairs (section 51(xxix)) and the relations of the Commonwealth with Pacific islands (section 51(xxx)). The majority of the High Court accepted that the Commonwealth legislation was constitutionally valid.
+HIGH COURT OF AUSTRALIA 12 November, 2003 PALIFLEX PTY LTD v CHIEF COMMISSIONER OF STATE REVENUE SOUTH SYDNEY CITY COUNCIL v PALIFLEX PTY LTD Land formerly owned by the Commonwealth became subject to New South Wales land tax and to council rates after its sale to Paliflex in 1998, the High Court of Australia unanimously held today. Paliflex bought the property in the Sydney harbourside suburb of Elizabeth Bay for $9 million. Paliflex challenged the charging of land tax and rates on the basis of section 52(i), which states that Federal Parliament has exclusive powers to make laws for the peace, order and good government of the Commonwealth with respect to places acquired by the Commonwealth for public purposes. Objections to two assessments for land tax were disallowed and the Supreme Court and a unanimous Court of Appeal dismissed Paliflex’s appeals. Paliflex appealed to the High Court. The Court unanimously dismissed Paliflex’s appeal. It held that the land ceased to have the character of a place acquired by the Commonwealth for public purposes on the registration of the transfer of title to Paliflex in 1998. In their application to the land on the dates of land tax imposition, the NSW Land Tax Act and Land Tax Management Act were not laws with respect to a place acquired by the Commonwealth for public purposes. In a related judgment, the High Court also unanimously held that the Local Government Act did not operate with respect to the land while it was a Commonwealth place. There was no invalidity when rates and waste management charges were imposed by the Council after Paliflex acquired the land.
+HIGH COURT OF AUSTRALIA 5 April 2006 Public Information Officer NOMINAL DEFENDANT v GLG AUSTRALIA PTY LTD, SALIM FAHD TLEYJI AND READY WORKFORCE PTY LIMITED The High Court of Australia today ordered GLG Australia to reimburse the Nominal Defendant for its contribution to a payout to an injured worker. In August 1999, Mr Tleyji was injured when vibration from a forklift caused a stack of boxes to fall on him. He was employed by Ready Workforce, a labour hire company, which had hired him out to GLG. He worked on unloading containers of goods at GLG’s Sydney warehouse. Workers placed boxes from a container on to a pallet on a landing in front of the container. A forklift would go up a ramp to the landing, pick up a pallet and reverse down the ramp. As the forklift went up the ramp its vibration could be felt through the ramp, the landing and the container. Mr Tleyji was injured when boxes dislodged by the vibration fell on him as he stood inside the container. He sued both Ready Workforce and GLG for breaching their respective duties of care to him. The forklift was insured by CIC Insurance Ltd, which had gone into liquidation by the time of the District Court trial. Its liabilities were being dealt with by the Nominal Defendant. The policy insured against liability for injury caused by the fault of a vehicle’s owner or driver, but the Nominal Defendant argued that the insurer had no obligation under the policy to indemnify GLG because Mr Tleyji’s injury did not fall within the definition of injury in the NSW Motor Accidents Act. The Act defined injury as one caused by the fault of the owner or driver in the use or operation of the vehicle if, and only if, the injury resulted from the driving of the vehicle, a collision or action to avoid collision, the vehicle’s running out of control, or a vehicle defect. In the NSW District Court in April 2003, Judge Norman Delaney found both Ready Workforce and GLG liable and held that Mr Tleyji’s injuries were not caused by negligent driving of the forklift but by GLG’s system of work. Judge Delaney ordered GLG and Ready Workforce to pay damages, with the final judgment amounts being $264,740.69 against GLG and $72,541.98 against Ready Workforce. He held that the Nominal Defendant was not obliged to indemnify GLG because the injury was not one within the Motor Accidents Act for which CIC Insurance would have been liable. GLG successfully appealed to the NSW Court of Appeal which held that the injury was caused by the fault of the owner in the use or operation of the vehicle caused during the driving of the vehicle, thereby meeting the definition of injury under the Motor Accidents Act. The finding that the Act was applicable reduced Mr Tleyji’s damages by a further $51,409.77. The Court of Appeal ordered the Nominal Defendant to indemnify GLG for the award of damages payable to Mr Tleyji. The Nominal Defendant appealed to the High Court. The Court, by a 4-1 majority, allowed the appeal. It upheld Judge Delaney’s finding that GLG was at fault, not in relation to the driving of the forklift, but for failing to devise a safe system of unloading containers. It also upheld his finding that the Nominal Defendant was not obliged to indemnify GLG. The Court ordered GLG to repay the $132,370.34 that it had already received, plus interest, to the Nominal Defendant, with this order suspended for seven days to allow for further written submissions.
+HIGH COURT OF AUSTRALIA 14 August 2013 CONSTRUCTION FORESTRY MINING & ENERGY UNION v MAMMOET AUSTRALIA PTY LTD [2013] HCA 36 Today the High Court unanimously allowed an appeal from a decision of the Federal Court of Australia, which held that the provision of accommodation to employees during a period of "protected industrial action" would have constituted a "payment" by their employer that was prohibited by s 470(1) of the Fair Work Act 2009 (Cth) ("the Act"). The appellant represents the industrial interests of a number of the respondent's employees, who worked on construction at the Woodside Pluto Liquefied Natural Gas Project on the Burrup Peninsula in Western Australia. The employees worked on a "fly in/fly out" basis. Under the terms of an enterprise agreement ("the Agreement"), the respondent was required to provide its employees with suitable accommodation or to pay them a living away from home allowance, while they were on location. The respondent elected to provide the former. On 21 April 2010, the respondent was notified that some of its employees intended to take "protected industrial action" for a period of 28 days as part of the process of negotiating a new enterprise agreement. The respondent informed the employees that for the duration of that period it would cease to pay for their accommodation. The appellant applied to the Federal Magistrates Court, seeking relief on the basis that the respondent's refusal to provide accommodation breached the terms of the Agreement and constituted "adverse action" contrary to s 340(1) of the Act. The respondent argued that it was obliged to cease providing accommodation pursuant to s 470(1) of the Act, which provides that if an employee engages in "protected industrial action ... the employer must not make a payment to an employee in relation to the total duration of the industrial action on that day." The respondent's contention was accepted in the Federal Magistrates Court and on appeal to the Federal Court. The High Court unanimously held that the provision of accommodation would not have constituted a "payment ... in relation to the total duration of the industrial action." It held that when s 470(1) speaks of "payment" it means a payment in money and not simply the transfer of any economic benefit by an employer to an employee. The Court held that the section was principally concerned to prohibit the payment of "strike pay". The Court also dismissed the respondent's argument that because the employees were not ready, willing and available to work, they were not entitled to accommodation under the terms of the Agreement. In the absence of an express or implied term to the contrary, the Court held that the employees' entitlement to accommodation was dependent only upon the continuation of the employer-employee relationship and the presence of the employees on location at the respondent's direction. The Court ordered that the application should be remitted to the Federal Circuit Court to be heard and determined according to law.
+HIGH COURT OF AUSTRALIA 29 March 2017 ECOSSE PROPERTY HOLDINGS PTY LTD v GEE DEE NOMINEES PTY LTD [2017] HCA 12 Today the High Court, by majority, allowed an appeal from a decision of the Court of Appeal of the Supreme Court of Victoria. The High Court held that a clause in an unusual lease obliged the lessee to pay all rates, taxes, assessments and outgoings in respect of the leased land, and not merely those imposts levied on the lessee in its capacity as tenant. The original lessor and lessee recorded their agreement in a standard form printed farm lease to which they made amendments. Due to planning restrictions affecting subdivision, the owner of the land the subject of the lease could not sell it to the lessee. Clause 13 provided that: The parties acknowledge that it was the intention of the Lessor to sell and the Lessee to purchase the land and improvements hereby leased for the consideration of $70,000.00 and as a result thereof the parties have agreed to enter into this Lease for a term of ninety-nine years in respect of which the total rental thereof is the sum of $70,000.00 which sum is hereby acknowledged to have been paid in full. As amended, cl 4 imposed an obligation on the lessee in these terms: AND also will pay all rates taxes assessments and outgoings whatsoever excepting land tax which during the said term shall be payable by the Landlord or tenant in respect of the said premises (but a proportionate part to be adjusted between Landlord and Tenant if the case so requires). In 2013, the lessor commenced proceedings in the Supreme Court of Victoria seeking a declaration that the lease requires the lessee to pay all rates, taxes, assessments and outgoings in respect of the land. The primary judge made the declaration sought. The Court of Appeal, by majority, allowed an appeal by the lessee and set aside the orders of the primary judge. By grant of special leave, the lessor appealed to the High Court. The lessor argued that cl 4 obliged the lessee to pay all rates, taxes, assessments and outgoings in respect of the land. The lessee argued that cl 4 obliged it to pay only those imposts that are levied on the lessee in its capacity as tenant, leaving the lessor to pay those imposts that may be levied on it as owner of the land. It was not in issue on the appeal that cl 4 is ambiguous and that, in the circumstances, the Court could have regard to words struck out in the standard form document, and which remained legible on the face of the document, as an aid to construction. Allowing the appeal, the majority in the High Court held that the lessor's construction of cl 4 is to be preferred. The Court approached the question of the proper construction of cl 4 on the basis that the parties were to be understood as having intended to produce a result consistent with the commercial object of the agreement. The majority said that the parties' intended to recreate, as far as possible, in a lease, the conditions which would have existed following a sale. The majority held that it made no commercial sense, having regard to that objective, for the lessor to remain liable for the payment of rates, taxes and other outgoings over the term of the lease. The orders of the Court of Appeal were set aside, with the effect that the declaration of the primary judge was reinstated.
+HIGH COURT OF AUSTRALIA 16 March 2022 WELLS FARGO TRUST COMPANY, NATIONAL ASSOCIATION (AS OWNER TRUSTEE) & ANOR v VB LEASECO PTY LTD (ADMINISTRATORS APPOINTED) ACN 134 268 741 & ORS [2022] HCA 8 Today, the High Court unanimously dismissed an appeal from a decision of the Full Court of the Federal Court of Australia ("the Full Court"). The primary issue in the appeal concerned the content of the obligation to "give possession" under a treaty which had the force of law in Australia: the Protocol to the Convention on International Interests in Mobile Equipment on Matters Specific to Aircraft Equipment ("the Protocol"). The first respondent in the appeal ("Leaseco"), part of the Virgin Australia group, leased aircraft engines from the first appellant ("Wells Fargo"). In April 2020, Leaseco went into administration. The lease agreements specified that on an event of default, being here the appointment of administrators, Wells Fargo could demand redelivery of the aircraft engines to a location in Florida. These contractual rights were preserved by the Convention on International Interests in Mobile Equipment ("the Convention") but their enforcement was relevantly constrained as a matter of domestic law by the operation of s 440B of the Corporations Act 2001 (Cth). Article XI(2) of the Protocol also imposed an obligation on Leaseco's administrators to "give possession" of the aircraft engines to Wells Fargo within a specified time frame. In June 2020, Wells Fargo made a demand to Leaseco's administrators for redelivery of the aircraft engines to a location in Florida. In response, Leaseco's administrators offered the beneficial owner of the aircraft engines (and, therefore, in effect Wells Fargo) an opportunity to take control of the aircraft engines where they happened to be located in Australia. This offer was rejected, and Wells Fargo commenced proceedings in the Federal Court seeking orders to compel Leaseco's administrators to redeliver the aircraft engines to the location in Florida. Wells Fargo was successful at first instance in the Federal Court. The Full Court allowed the appeal. After the Full Court's decision, the aircraft engines were returned to the United States. Underlying the question in the appeal to this Court was a question of general importance to the aviation industry as to the content of the obligation to "give possession" under Art XI(2) of the Protocol. The practical effect of the Court's answer to that underlying question determined who would pay the costs that had been incurred in returning the aircraft engines to the United States. The Court held that the content of the obligation to "give possession" under Art XI(2) of the Protocol, having particular regard to matters of context, was for Wells Fargo to be "given the opportunity to take possession" – it was for Leaseco's administrators to take whatever steps may be necessary to provide an opportunity to Wells Fargo to exercise its right under the Convention to take possession. Leaseco's administrators' invitation to Wells Fargo to take control of the aircraft engines in Australia fulfilled that obligation. Article XI(2), construed in this way, operated consistently with the underlying realities of modern structured finance, particularly to facilitate capital market financing.
+HIGH COURT OF AUSTRALIA Manager, Public Information 26 August 2009 MINISTER FOR IMMIGRATION AND CITIZENSHIP v SZKTI & ANOR [2009] HCA 30 MINISTER FOR IMMIGRATION AND CITIZENSHIP v SZLFX & ANOR [2009] HCA 31 The High Court today held that the Refugee Review Tribunal (RRT) may, under section 424(1) of the Migration Act 1958 (Cth), get information, relevant to a review, by telephone without first sending a written invitation. Procedural restrictions on the specific power to invite a person to give additional information contained in sections 424(2) and (3), and 424B of the Act do not apply to the general power, contained in section 424(1) of the Act, to get any information the RRT considers relevant. The Minister’s appeals in relation to SZKTI and SZLFX were heard together by the High Court because both cases concerned the issue of whether the RRT may obtain information by telephone from a person without writing to that person to invite him or her to provide the information. SZKTI arrived in Australia on 23 April 2006 and applied for a protection visa one month later. He claimed to fear persecution in China because he is a member of a religious group which the Chinese Communist Party refers to as the ‘Shouters’, but which its members call the ‘Local Church’. He alleged that if he returned to China he would be arrested because of his membership of the Local Church. The Minister’s delegate refused to grant SZKTI a protection visa and he applied to the RRT for review of the delegate’s decision. SZKTI provided information concerning his membership of the Local Church in Australia to the RRT, including mobile phone contact details for an Elder of the Local Church. The RRT rang the Elder and obtained certain information which, in the RRT’s view, tended to indicate that SZKTI had not been an adherent of the Local Church in China and had only commenced attending the Local Church following his arrival in Australia. The RRT notified SZKTI of the information provided by the Local Church Elder and the preliminary conclusions the RRT had drawn from it, and invited SZKTI to comment on the information. Having considered the evidence, including SZKTI’s response to the invitation to comment, the RRT affirmed the delegate’s decision to refuse the protection visa. A Federal Magistrate dismissed SZKTI’s appeal, however the Full Court of the Federal Court allowed an appeal and ordered the RRT to reconsider the original application for review. The High Court granted the Minister special leave to appeal. SZKTI argued that, when obtaining the information from the Local Church Elder, the RRT was obliged by sections 424(2) and (3), and 424B of the Act to give, in one of the ways specified in section 441A of the Act, a written invitation to the Elder to provide the requested information. He argued that when the RRT obtained the information via a phone call, it failed to comply with those obligations. The High Court however accepted the Minister’s submissions that section 424(1) of the Act empowered the RRT to “get any information” that it considered relevant without limiting the ways in which the RRT might get the information. Section 424(2) was concerned with how information should be obtained in the specific circumstance when a person was “invited … to give additional information”. In the view of the Court the RRT, when it called the Local Church Elder to make enquiries about SZKTI, had not breached its obligations in relation to the way in which it may obtain information. The Court also held that the information provided by the Local Church Elder did not raise new issues requiring a further hearing under section 425 of the Act. The High Court allowed the Minister’s appeal and reinstated the RRT’s decision to affirm the decision to refuse SZKTI’s application for a protection visa. SZLFX arrived in Australia on 16 October 2002, on a student visa. He was arrested in March 2007 because his student visa had expired. SZLFX applied for a protection visa on 10 April 2007, claiming to fear persecution if he returns to China because he is a Falun Gong practitioner. In his application SZLFX described having started to practise Falun Gong with a group of practitioners every morning in Belmore Park in Sydney in January 2005. He stopped practising for a period but took it up again and continued to practise thereafter. The Minister’s delegate refused to grant SZLFX a protection visa and SZLFX applied to the RRT for review of the delegate’s decision. Before the RRT hearing an RRT employee telephoned regarding Belmore Park Falun Gong activities and filed a note recording the details of the call. SZLFX was not notified of the existence of the file note. The RRT affirmed the delegate’s decision, however a Federal Magistrate allowed SZLFX’s appeal. The Full Court of the Federal Court followed the Full Court’s decision in SZKTI v Minister for Immigration & Citizenship concerning the RRT’s obligation to obtain information in the manner set out in sections 424(2) and (3), and 424B of the Act and dismissed the Minister’s appeal. The Minister sought and obtained special leave to appeal to the High Court. For the reasons set out in relation to the case of SZKTI, the Court held that the RRT had not breached its obligations in relation to the way it obtains information. The Court also held that the RRT had not breached section 424A of the Act in respect of giving notice of adverse information. The High Court allowed the appeal and reinstated the RRT’s decision to affirm the delegate’s refusal of a protection visa for SZLFX.
+HIGH COURT OF AUSTRALIA 8 February 2017 WESTERN AUSTRALIAN PLANNING COMMISSION v SOUTHREGAL PTY LTD & ANOR; WESTERN AUSTRALIAN PLANNING COMMISSION v TREVOR NEIL LEITH [2017] HCA 7 Today the High Court, by majority, allowed two appeals from the Court of Appeal of the Supreme Court of Western Australia. Part 11 of the Planning and Development Act 2005 (WA) ("the PD Act") makes provision for a landowner to be compensated in circumstances where land has been injuriously affected by a planning scheme. The High Court held, by majority, that the owner of land at the date it is reserved for a public purpose under a planning scheme is entitled to compensation under the PD Act, but a subsequent purchaser of injuriously affected land is not so entitled. Section 173 of the PD Act provides that any person whose land is injuriously affected by the making or amendment of a planning scheme is entitled to obtain compensation from the responsible authority. Section 177(1) provides that no compensation is payable until the land is first sold following the date of reservation (s 177(1)(a)); or the responsible authority refuses a development application (or grants it on unacceptable conditions) (s 177(1)(b)). Section 177(2) provides that compensation is payable only once, and is payable under s 177(1)(a) to the person who was the owner of the land at the date of reservation (s 177(2)(a)); or is payable under s 177(1)(b) to the person who was the owner of the land at the date of the development application (s 177(2)(b)). The Peel Region Scheme is a planning scheme which came into effect in March 2003 and reserved certain land, including the land in question in these appeals, for a public purpose. In October 2003, the respondents in the first appeal purchased land affected by the reservation and in 2008 applied to develop it. In June 2003, the respondent in the second appeal purchased land affected by the reservation and in 2009 applied to develop it. Both applications were refused. The respondents each claimed compensation pursuant to the provisions of Pt 11 of the PD Act. The claims were refused by the appellant, the Western Australian Planning Commission, on the basis that compensation under the PD Act was available only to a person who owned land at the date of its reservation. The respondents each brought proceedings in the Supreme Court of Western Australia, in which they claimed to be entitled to compensation. Special cases were prepared, the question arising in each special case being whether a person can be entitled to compensation under the PD Act in circumstances where the land has been sold following the date of the reservation, and where no compensation has been previously paid under the PD Act. The primary judge held that a person to whom compensation may be payable under s 177(2)(b) includes a person who is the owner at the date of the development application and was not the owner at the date of reservation. The primary judge thus answered the question in the special case in the affirmative. The Court of Appeal upheld that decision. By grants of special leave, the Western Australian Planning Commission appealed to the High Court. A majority of the High Court allowed the appeals. The majority considered that once land is sold following its reservation, even where the original owner has not claimed compensation, later refusal to grant a development application does not give rise to an entitlement to compensation. Accordingly, the respondents were not entitled to compensation. The High Court therefore held that the question of law stated for determination in each special case should be answered "no".
+HIGH COURT OF AUSTRALIA 14 December 2016 AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v FLIGHT CENTRE TRAVEL GROUP LIMITED [2016] HCA 49 Today the High Court allowed an appeal from the Full Court of the Federal Court of Australia. By majority, the High Court held that the respondent ("Flight Centre") was in competition with Singapore Airlines, Malaysia Airlines and Emirates ("the airlines") when it attempted to induce the airlines to agree not to discount the price at which they offered international airline tickets directly to customers, and therefore that Flight Centre had engaged in restrictive trade practices contrary to s 45(2)(a)(ii) of the Trade Practices Act 1974 (Cth) ("the Act"). Flight Centre operated a travel agency business. Pursuant to an agreement entered into with the International Air Transport Association on behalf of its member airlines, Flight Centre sold international airline tickets on behalf of the airlines. The airlines published fares to Flight Centre and other travel agents through an electronic system. Upon issuing an international airline ticket, Flight Centre was obliged to pay to the relevant airline an amount published by the airline to travel agents less a commission. Although required to remit that amount, Flight Centre was free to sell the airline ticket at any price. Flight Centre employed as part of its marketing strategy a "price beat guarantee", advertising that it would better the price of an airline ticket quoted by any other Australian travel agent or website, including a website operated by an airline, by $1, and would give the customer a voucher for $20. At times, the airlines offered international airline tickets directly to customers at prices lower than the fares published to travel agents. Between 2005 and 2009, Flight Centre sent a series of emails to the airlines, in which it tried to get each airline to stop offering international airline tickets directly to customers at prices lower than the fares published to travel agents. It threatened to stop selling the tickets of each airline if that airline did not agree. In 2012, the appellant ("the ACCC") commenced proceedings for the recovery of pecuniary penalty in the Federal Court of Australia. The ACCC alleged that, by sending the emails, Flight Centre had attempted to induce each airline to enter into a contract, arrangement or understanding which had the purpose or likely effect of substantially lessening competition contrary to s 45(2)(a)(ii) of the Act. The primary judge made declarations of contravention and ordered that Flight Centre pay pecuniary penalty. Flight Centre appealed to the Full Court. The Full Court allowed the appeal, holding that Flight Centre was not relevantly in competition with the airlines for which it sold airline tickets as an agent. By grant of special leave, the ACCC appealed to the High Court. A majority of the High Court held that Flight Centre was in competition with the airlines when it attempted to induce each airline to agree not to discount the price at which that airline offered international airline tickets directly to customers. The competition was in a market for the supply, to customers, of contractual rights to international air carriage via the sale of airline tickets. Flight Centre and the airlines competed in that market. The Court made orders setting aside the orders of the Full Court, reinstating the trial judge's declarations of contravention with adjustments to reflect the High Court's reasons, and remitting the matter to the Federal Court for the determination of penalty.
+HIGH COURT OF AUSTRALIA Public Information Officer 13 December 2007 CHANNEL SEVEN ADELAIDE PTY LTD v DR COLIN MANOCK The High Court of Australia today ruled against a defence of fair comment on a matter of public interest which Channel Seven sought to raise in a defamation action. Dr Manock is a forensic pathologist who gave evidence for the prosecution in the trial and retrial of Henry Vincent Keogh for the murder of his fiancé Anna-Jane Cheney in 1994. Mr Keogh was convicted in 1995 and sentenced to life imprisonment, with a 25-year non-parole period. He has brought an appeal to the South Australian Court of Criminal Appeal, brought two applications for special leave to appeal to the High Court (in October 1997 and November 2007), and two petitions to the SA Governor for mercy, all without success. On 5 March 2004, during Seven’s Today Tonight program, a promotion ran for an upcoming edition of the program. The promotion said in part: “The new Keogh facts. The evidence they kept to themselves. The data, dates and documents that don’t add up. The evidence changed from one Court to the next.” While these words were said, a picture of Dr Manock was displayed in the background. On 22 March 2004, Dr Manock began proceedings in the SA District Court for defamation. The case is yet to go to trial. He alleged that the promotion imputed that he had deliberately concealed evidence. Channel Seven pleaded a number of defences including fair comment on a matter of public interest. The particulars of the fair comment defence alleged he had conducted an inadequate investigation and given inaccurate evidence. Dr Manock sought to have paragraphs 3.18 to 3.39 of the fair comment defence struck out. His application to Judge Geoffrey Muecke was partly successful. Dr Manock appealed to the Supreme Court and the Full Court ordered that all of paragraphs 3.18 to 3.39 be struck out. Seven appealed to the High Court seeking to have the paragraphs reinstated. The High Court unanimously dismissed the appeal, granted special leave to Dr Manock to cross- appeal and allowed the cross-appeal. It held that statements in the promotion, taken separately or together, were presented as fact and not recognisable as comment. The alleged comment was also not based on facts which were either expressly stated, sufficiently referred to or notorious. The Court held that the fair comment defence should be struck out.
+HIGH COURT OF AUSTRALIA 24 February 2021 PALMER v THE STATE OF WESTERN AUSTRALIA [2021] HCA 5 On 6 November 2020 the High Court answered questions referred to it in a special case concerning whether the Quarantine (Closing the Border) Directions (WA) ("the Directions") and/or the authorising Emergency Management Act 2005 (WA) ("the Act") were invalid (in whole or in part) for impermissibly infringing s 92 of the Constitution. Today the Court published its reasons for joining in those answers. On 15 March 2020 the Minister for Emergency Services for Western Australia declared a state of emergency in Western Australia in respect of the COVID-19 pandemic. Section 56 of the Act empowered the Minister to declare a state of emergency provided, among other things, they were satisfied of the occurrence of an emergency and that extraordinary measures were required to prevent or minimise "loss of life, prejudice to the safety, or harm to the health, of persons". Section 67 relevantly empowered an authorised officer, "[f]or the purpose of emergency management" during a state of emergency, to direct or prohibit the movement of persons into an emergency area. The Directions, issued by the State Emergency Coordinator, took effect from 5 April 2020. Pursuant to paras 4 and 5, they prohibited entry of persons into Western Australia unless they were the subject of exemption. In proceedings commenced on 25 May 2020 in the original jurisdiction of the High Court, the plaintiffs sought a declaration that the Act and/or the Directions were invalid, either wholly or in part, by reason of s 92 of the Constitution. Section 92 relevantly provides that "trade, commerce, and intercourse among the States ... shall be absolutely free". The plaintiffs claimed that the Directions imposed an effective burden on the freedom of intercourse by prohibiting cross-border movement, or alternatively that the Directions imposed an effective discriminatory burden with protectionist effect and, as a consequence, contravened the freedom of trade and commerce. On 6 November 2020, the High Court answered the principal question stated for its opinion to the effect that ss 56 and 67 of the Act in their application to an emergency constituted by the occurrence of a hazard in the nature of a plague or epidemic complied with each limb of s 92, that the exercise of the power to make paras 4 and 5 of the Directions did not raise a constitutional question, and that as no issue about the authorisation of the Directions by the statutory provisions was raised, there was no other question for determination by a court. Today the High Court unanimously, in separate judgments, found that the principal question reserved could be answered by reference to the provisions of the Act authorising the Directions. Section 92 was concerned with freedom from unjustified burdens of a discriminatory kind. The Court accepted that s 67 did impose a burden on interstate intercourse. However, by reference to the purpose of the provisions and the statutory constraints on the declaration of a state of emergency and the making of directions, the Court found that the burden was justified and the provisions, at least in their application to an emergency constituted by a hazard in the nature of a plague or epidemic, did not infringe the constitutional limitation in s 92.
+HIGH COURT OF AUSTRALIA Public Information Officer 13 June 2006 XYZ v THE COMMONWEALTH OF AUSTRALIA Laws prohibiting Australians from engaging in sexual activity with children in other countries were constitutionally valid, the High Court of Australia held today. A Melbourne man, now 62, known as XYZ, was arrested by the Australian Federal Police in Melbourne in 2002 in relation to offences said to have been committed in Thailand in 2001. He was charged with engaging in sexual intercourse, attempting to engage in sexual intercourse and committing an act of indecency with a child under 16, contrary to sections 50BA and 50BC of the Crimes Act. The child was not a citizen or resident of Australia. Before his trial in the Victorian County Court was to due to be heard, XYZ instituted an action in the High Court seeking a declaration that sections 50BA and 50BC are not valid laws of the Commonwealth. At the conclusion of a hearing on 17 November 2005, the Court held that both sections are laws with respect to external affairs, within section 51(xxix) of the Constitution. The Court handed down its written reasons today for the decision by a 5-2 majority. XYZ’s trial is now due to start in July. The Court held that sections 50BA and 50BC, which relate to conduct outside Australia but are limited in operation to the conduct of Australian citizens or residents, were within the legislative competence of the Commonwealth Parliament as being laws for the peace, order and good government of Australia with respect to external affairs. XYZ had argued that Parliament’s power to make laws with respect to external affairs is limited to making laws with respect to relations between Australia and other countries. The Court held that to do this it would have to depart from its 1991 decision in Polyukhovich v The Commonwealth which held that the War Crimes Amendment Act was a valid law. (Ivan Polyukhovich was charged in 1990 with war crimes committed in Nazi-occupied Ukraine during World War II. He moved to Australia in 1949 and in 1958 became a citizen.) In Polyukhovich, the Court held that the external affairs power was not limited to Australia’s relations with other countries but includes a power to make laws with respect to places, persons, matters or things outside Australia’s geographical limits. This Court declined to depart from the decision in Polyukhovich which was now established doctrine on the scope of the external affairs power. The conduct prohibited under sections 50BA and 50BC involved places, persons, matters or things outside Australia so fell within the meaning of “external affairs”.
+HIGH COURT OF AUSTRALIA 6 August 2004 MAHRAN BEHROOZ v SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS, ATTORNEY-GENERAL FOR THE COMMONWEALTH OF AUSTRALIA, AUSTRALASIAN CORRECTIONAL MANAGEMENT PTY LTD AND AUSTRALASIAN CORRECTIONAL SERVICES PTY LTD Harsh conditions of detention did not provide a defence to a charge of escaping from immigration detention, the High Court of Australia held today. Mr Behrooz, Mahmood Gholani Moggaddam and Davood Amiri were among six detainees who allegedly escaped from the Woomera Detention Centre in South Australia on 18 November 2001. Since the three men were granted special leave to appeal last August Mr Moggaddam and Mr Amiri have been deported and the criminal charges against them dropped, so the Court rescinded their leave to appeal. Mr Behrooz, an Iranian national, remained the sole appellant. In Port Augusta Magistrates Court the three men were charged with escaping from immigration detention contrary to section 197A of the Migration Act. They argued that conditions at Woomera were such that detention was punitive and not a form of detention authorised by the Migration Act, therefore escape did not contravene section 197A. The magistrate granted their application to have summonses issued seeking material dating back to December 1999 about conditions at Woomera, which has since closed. The respondents unsuccessfully sought to have the summonses set aside on the ground that they were an abuse of process because the material had no evidentiary value. The respondents appealed to the SA Supreme Court which upheld the appeal and set aside the summonses. The Full Court of the Supreme Court, by majority, refused leave to appeal, concluding that even if the documents were to show that conditions at Woomera were harsh, this was no defence to charges under section 197A. The three men then appealed to the High Court. The Court held that Mr Behrooz had no right to escape from Woomera, even if he could show that conditions of detention were harsh. The Court held that Mr Behrooz would be entitled to seek legal redress for any civil wrong or criminal offence committed against him. The information yielded by the summonses may have assisted Mr Behrooz to demonstrate that his conditions of detention gave him a case for such redress, but it would not assist his argument that he was not in immigration detention, or that he was entitled to escape. Therefore the summonses did not have a legitimate forensic purpose. The Court, by a 6-1 majority, dismissed the appeal with costs.
+HIGH COURT OF AUSTRALIA Public Information Officer 1 May, 2003 TRUST COMPANY OF AUSTRALIA LIMITED v COMMISSIONER OF STATE REVENUE The High Court of Australia today allowed an appeal against the double imposition of stamp duty on the acquisition of a parcel of Brisbane riverside land for a managed investment scheme. Stamp duty of $654,475 was charged twice – on a contract for sale for $17.5 million of the land on Coronation Drive, Milton, and on the transfer to Trust Company of Australia of the land. Under Commonwealth law, such schemes require the appointment of an independent party to acquire and hold scheme property. The contract was between three parties: the vendor, the scheme investment manager Cromwell Property Securities Ltd to act as custodian of the scheme’s assets, and TCA. TCA held the registered title to the land on trust for Cromwell which in turn was trustee for the syndicate of investors whose money funded the purchase of the land. The Commissioner assessed stamp duty on the basis that Cromwell, not TCA, was the purchaser under the contract but the transfer was to TCA. The question was whether the transfer to TCA was a transfer to the purchaser within the meaning of section 54(6) of the Queensland Stamp Act. If so, only one amount of stamp duty was payable; if not, then stamp duty was payable on both the purchase and the transfer. The Queensland Court of Appeal agreed with the Commissioner, holding that TCA was not the purchaser for the purposes of the Stamp Act. The High Court, by a 4-1 majority, allowed the appeal and held that for the purposes of the Stamp Act the transfer was to the purchaser.
+HIGH COURT OF AUSTRALIA 10 December 2003 BARRY THOMAS BLUNDEN v COMMONWEALTH OF AUSTRALIA The High Court of Australia today unanimously held that an action arising from the Voyager disaster was subject to a limitation regime, in this case the provisions of the ACT Limitation Act. On the night of 10 February 1964, aircraft carrier HMAS Melbourne and the destroyer HMAS Voyager collided during exercises about 30km off Jervis Bay. The Voyager sank, with 82 lives lost. Mr Blunden was serving as an able seaman on the Melbourne. In 1998 he instituted proceedings in the ACT Supreme Court – exercising federal jurisdiction – against the Commonwealth for negligence, seeking damages for injuries including post-traumatic stress disorder, severe depression and alcohol abuse. In March 2003 the part of his action concerning time limits was removed into the High Court for identification of the applicable statute of limitation, if any. The Commonwealth claimed Mr Blunden’s action was barred, extinguished or not maintainable. Mr Blunden argued that the common law, without modification by the ACT Limitation Act, applied to his case. The High Court held that the ACT Limitation Act applied. The Act provides for a six-year limitation period, but section 36 empowers the Supreme Court to order extensions. The Supreme Court initially declined to grant an extension. However, an appeal to the Full Court of the Federal Court from that refusal was allowed, although that court is yet to finalise orders flowing from Mr Blunden’s successful appeal. In the meantime the High Court has established that the ACT Limitation Act is applicable to his action.
+HIGH COURT OF AUSTRALIA 7 April 2021 DQU16 & ORS v MINISTER FOR HOME AFFAIRS & ANOR [2021] HCA 10 Today, the High Court dismissed an appeal from a judgment of the Federal Court of Australia. The sole question for determination was whether, in assessing a claim for a protection visa under the complementary protection criterion in s 36(2)(aa) of the Migration Act 1958 (Cth), a decision-maker commits a jurisdictional error in failing to apply the principle stated in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 ("Appellant S395"). In Appellant S395, this Court held that, in assessing a claim for a protection visa under the refugee criterion in what became s 36(2)(a) of the Migration Act, an asylum seeker cannot be expected to hide or change behaviour that is the manifestation of a protected characteristic under the Convention relating to the Status of Refugees as modified by the Protocol relating to the Status of Refugees in order to avoid persecution. Section 36(2) of the Migration Act relevantly provides two criteria for the grant of a protection visa: that the applicant is a non-citizen in Australia "in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee" under s 36(2)(a); and, if the person does not satisfy that criterion, that the applicant meets the complementary protection criterion under s 36(2)(aa), which gives effect to some of Australia's non-refoulement obligations under the International Covenant on Civil and Political Rights and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Section 36(2)(aa) asks whether there is a real risk that a person will suffer "significant harm" as a "necessary and foreseeable consequence" of the person's return to a receiving country. The first appellant, an Iraqi national, sought a protection visa on the basis that he feared persecution (relying on s 36(2)(a)), and would suffer significant harm (relying on s 36(2)(aa)), if returned to Iraq because he sold alcohol while in Iraq, which is banned by local law in some parts of Iraq and considered "immoral" and "un-Islamic" by Sunni and Shi'ite extremists. The second and third appellants are the wife and child of the first appellant. When considering the first appellant's claim for complementary protection under s 36(2)(aa), the Immigration Assessment Authority ("the Authority") found that the first appellant did not face a real risk of significant harm if returned to Iraq because he would not continue to sell alcohol upon his return. An application for judicial review of the Authority's decision in the Federal Circuit Court of Australia was dismissed. An appeal to the Federal Court on the ground that the Authority committed jurisdictional error by failing to apply the principle in Appellant S395 when considering the complementary protection criterion under s 36(2)(aa) was also dismissed. The appellants were granted special leave to appeal. Dismissing the appeal, the High Court unanimously held that the differences in the text, context and purpose of s 36(2)(a) and s 36(2)(aa) compel the conclusion that the principle in Appellant S395 does not apply to the statutory task when considering the complementary protection criterion in s 36(2)(aa). The statutory question and the nature of the harm at which each provision is directed is different. Assessment of the risk of harm under s 36(2)(a)(a) requires an assessment of the "necessary and foreseeable consequence[s]" of a person's return to a receiving country. It does not involve finding a nexus between the harm feared by a person and that person's beliefs, attributes, characteristics or membership of a particular social group. To the extent that the factual bases for claims under s 36(2)(a) and s 36(2)(aa) overlap, a decision-maker is entitled to refer to and rely on any relevant findings made under the refugee criterion when considering the complementary protection criterion. The Authority's approach to, and determination of, the first appellant's claims under s 36(2)(a) was not in issue in the Federal Court or this Court.
+HIGH COURT OF AUSTRALIA 12 October 2022 SDCV v DIRECTOR-GENERAL OF SECURITY & ANOR [2022] HCA 32 Today, the High Court dismissed an appeal from a decision of the Full Court of the Federal Court of Australia. The appeal concerned a challenge to the validity of s 46(2) of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act") on the basis that it was contrary to Ch III of the Constitution. The appellant's visa was cancelled in consequence of an adverse security assessment certified by the Director-General of Security on behalf of the Australian Security Intelligence Organisation ("the ASA certificate"). The ASA certificate was accompanied by a statement of grounds (together, "the ASA decision"). The appellant applied to the Administrative Appeals Tribunal for merits review of the ASA decision. The Minister administering the Australian Security Intelligence Organisation Act 1979 (Cth) issued certificates under s 39B(2)(a) of the AAT Act stating that disclosure of some of the contents of documents relating to the ASA decision would be contrary to the public interest because it would prejudice the security of Australia ("the certificated matter"). The Tribunal was provided with the certificated matter, but it was not disclosed to the appellant or his legal representatives. The Tribunal affirmed the ASA decision. The appellant appealed to the Federal Court of Australia pursuant to s 44 of the AAT Act, including on the ground that the Tribunal's decision was not open on the evidence before it. The appeal was heard in the original jurisdiction of the Federal Court by a Full Court. By reason of s 46(1) of the AAT Act, the Federal Court was allowed to have regard to the certificated matter in determining the appeal, but the Federal Court was required not to disclose the certificated matter to the appellant or his legal representatives. In that regard, s 46(2) provided that the Federal Court "shall … do all things necessary to ensure that the [certificated] matter is not disclosed to any person other than a member of the court as constituted for the purposes of the proceeding". In the course of the appeal, the appellant also challenged the constitutional validity of s 46(2). The Federal Court rejected the constitutional challenge and dismissed the appeal. The High Court, by majority, held that s 46(2) of the AAT Act was a valid law. There is no "minimum requirement" of procedural fairness applicable to all proceedings in a Ch III court; the ultimate question is whether, taken as a whole, the court's procedures for resolving the dispute accord both parties procedural fairness and avoid practical injustice. An appeal under s 44, to which s 46 applies, is additional to the available remedies under s 75(v) of the Constitution or s 39B of the Judiciary Act 1903 (Cth). As a practical matter, any "disadvantage" occasioned by s 46(2) would have been avoided by the choice of proceedings under these other remedies. But such a choice would have denied the appellant, by the likely operation of the rules of public interest immunity, the forensic advantage offered by s 46(1) in having the certificated matter provided to the Court. Section 46(2) operated inseparably from s 46(1) to provide the appellant with forensic advantages different from those otherwise provided by law. The appellant, having chosen to pursue the remedy that afforded those advantages, suffered no practical injustice.
+HIGH COURT OF AUSTRALIA Public Information Officer 21 March 2007 THE QUEEN v MOTEKIAI TAUFAHEMA A man convicted of the shooting murder of a police officer although he fired no shots himself should have faced a retrial rather than being acquitted on appeal, the High Court of Australia held today. Mr Taufahema, 30, was the unlicensed driver of a stolen car carrying his brother John, Meli Lagi and Sione Penisini, who fired the shot that killed Senior Constable Glenn McEnallay on 27 March 2002 in Hillsdale in Sydney’s south. The car was being driven erratically at excessive speed. Senior Constable McEnallay briefly pursued the car until it struck a gutter and stopped. While he called for back-up, the men, each carrying a loaded gun, leaped from the car. Mr Penisini fired five shots into the police car windscreen, four of which hit Senior Constable McEnallay, one of which caused fatal head wounds. Mr Taufahema was arrested after hiding his gun behind flowerpots, his brother and Mr Penisini were caught after attempting to carjack a passing vehicle, and Mr Lagi was arrested a few days later. Gloves, a hockey mask and bullets were found in the car. Mr Taufahema was convicted of murder and of unlawful possession of a Smith & Wesson .357 revolver. He was sentenced to 23 years’ jail with a non-parole period of 16 years. Mr Penisini pleaded guilty to murder, unauthorised use of a firearm and attempted carjacking. John Taufahema was convicted of murder, attempted carjacking, using a firearm to evade apprehension and using a prohibited firearm. Mr Lagi was acquitted of murder but found guilty of two firearms offences. All four were on parole at the time of the shooting. At Mr Taufahema’s trial, the prosecution contended that he was party to a joint criminal enterprise of using a firearm to prevent arrest of the four men, but by the end of the trial this contention had changed to a joint enterprise to evade arrest, involving the shooting of a police officer as a foreseen possibility. In the Court of Appeal, the prosecution suggested that the joint enterprise was hindering a police officer in the execution of his duty. The Court allowed an appeal by Mr Taufahema against the murder conviction and ordered an acquittal rather than a new trial. Its reasons included flaws in the trial judge’s directions, evading arrest not actually being a crime, and the evidence not supporting that any agreement was made to hinder a police officer. The prosecution sought special leave to appeal against the order of acquittal, even though it had not argued for a new trial at the Court of Criminal Appeal. The application was referred to a Full Court and argued as on appeal. By a 4-3 majority, the High Court granted special leave to appeal, allowed the prosecution appeal, and ordered that the verdict of acquittal be set aside and a new trial held. The prosecution argued that at a retrial it would submit that the four men were engaged in a joint criminal enterprise of armed robbery and that shooting another person was foreseen as a possible incident of that joint enterprise. This issue had not been argued at the trial and arose for the first time in the High Court. The majority said this was regrettable but there was no absolute bar to either side raising fresh points. It held that the prosecution was not prevented from requesting a new trial to be conducted on a different basis, provided the difference was not substantial. The prosecution proposed to rely on the same evidence in a second trial but to characterise it in a different way. The majority held that at the first trial the criminal enterprise revealed by the evidence was not identified as armed robbery but the evidence was capable of supporting an inference that it was. It held that that interpretation should be decided by a second jury.
+HIGH COURT OF AUSTRALIA 25 March 2022 [2022] HCA 9 On 9 March 2022, the High Court answered questions stated in a special case concerning whether items 7, 9, 11 and 14 of Sch 1 to the Electoral Legislation Amendment (Party Registration Integrity) Act 2021 (Cth) ("the 2021 Amendments") which amended the Commonwealth Electoral Act 1918 (Cth) were invalid, in whole or in part, on the grounds that they infringed the implied freedom of communication on government or political matters, or precluded the direct choice by the people of senators and members of the House of Representatives contrary to ss 7 and 24 of the Constitution. Today, the High Court published reasons for that decision. The Commonwealth Electoral Act permitted registered parties to have their name, abbreviation and logo printed on the ballot paper next to the name of a candidate endorsed by the party. Items 7 and 9 of the 2021 Amendments imposed a requirement that the name, abbreviation or logo of a party applying for registration must not, subject to limited exceptions, contain a word that is in the name or abbreviation of a prior registered party without that party's consent. By items 11 and 14, an existing party could not remain registered under its name if an earlier registered party objected to the existing party's name or logo and that name or logo contained a word that was in the name or abbreviation of the earlier registered party. The special case concerned the application of the 2021 Amendments to the Liberal Democratic Party. If applied to the Liberal Democratic Party, it would be precluded from using "Liberal" on the ballot paper in a federal election. The plaintiff, Mr Ruddick, is the lead Senate candidate endorsed by the Liberal Democratic Party for New South Wales. In the 2013 federal election, the Liberal Democratic Party appeared first on the New South Wales Senate ballot paper, and substantially to the left of the "Liberal & Nationals". In that election, the Liberal Democratic Party received approximately three times the vote share it received in its next best election and exceeded its expected vote share by 5.5 percentage points, or almost 241,000 votes. Mr Ruddick admitted, in his pleading, that some voters unintentionally voted for the Liberal Democratic Party instead of the Liberal Party because they were confused as to the party affiliation of Liberal Democratic Party candidates. An issue was whether it could be inferred that a significant part of the increase in that vote was due to the confusion caused by the similar party names. The Court, by majority, held that items 11 and 14 did not infringe the implied freedom or preclude the direct choice by the people of senators and members of the House of Representatives. A threshold issue was whether the 2021 Amendments burdened informed electoral choice or the ability to communicate on government or political matters. The constraint implied by the requirement of "choice" is that the people must have the ability to make an informed choice. Proof that a law burdens the implied freedom requires that the existing freedom is curtailed or restricted in some way. The purpose of the 2021 Amendments was to reduce voter confusion, and their likely effect was to improve the clarity, and hence the quality, of electoral choice and communication on government or political matters. As none of the facts stated in the special case addressed items 7 or 9, it was unnecessary for the Court to answer the stated questions in respect of those items.
+HIGH COURT OF AUSTRALIA 22 February 2007 Public Information Officer COMMISSIONER OF TAXATION v HELEN MARY McNEIL Proceeds of a share buyback scheme are taxable income, the High Court of Australia held today. Ms McNeil’s case is a test case affecting more than 80,000 taxpayers. The costs of the appeal were borne by the Tax Commissioner. In 1987, Ms McNeil acquired a parcel of St George Building Society shares, which in 1992 were converted into ordinary shares in St George Bank Ltd when St George changed from a building society to a banking corporation. St George’s profitability increased and in 2001 St George announced a buy-back of ordinary shares worth $375 million. For every 20 shares held, St George would issue one “sell-back right”, which was an option to oblige St George to buy back one share for $16.50, higher than market value. Ms McNeil held 5,450 shares, meaning she had 272 sell-back rights. The difference between the share buy-back price and the market price meant the value of Ms McNeil’s sell-back rights at the listing date was $514. Shareholders could elect either to obtain legal title to their sell-back rights in order to sell their shares back to St George or to sell the sell-back rights on the Australian Stock Exchange. Ms McNeil made no election. This meant that St George Custodial, holding the sell-back rights as trustee, was obliged to sell those rights to merchant bank Credit Suisse First Boston. Shareholders could buy extra sell-back rights on the ASX, thereby increasing the number of their shares to be acquired by St George, so a market was created for the sell-back rights separately from the shares themselves. Eleven million sell-back rights were sold to CSFB on 20 February 2001 and these were then sold by CSFB on the ASX. Shareholders such as Ms McNeil who gave no directions about their entitlements were paid the proceeds of trading the sell-back rights on their behalf by CSFB and retained their shares. On 2 April 2001, Ms McNeil received her portion of the proceeds, $576.64. Of that amount, $62.64 was the increase in the realisable value of the sell-back rights and Ms McNeil concedes that this was assessable income as a capital gain. The Tax Commissioner argues that the remaining $514 is also subject to tax, either as income or as a capital gain. Ms McNeil succeeded in the Federal Court of Australia and the Full Court, by majority, dismissed an appeal by the Commissioner. The Commissioner appealed to the High Court, which allowed the appeal by a 4-1 majority. The Court held that the majority of the Full Court erred in applying principles relating to the derivation of income. It held that whether money received has the character of income depends upon its quality in the hands of the recipient, not upon the character of the expenditure by the other party. The character of the sell-back rights held for Ms McNeil is not determined by her entitlement arising from St George’s decision to undertake a share buy-back. Her sell-back rights, which were turned to account on her behalf, did not represent any portion of her existing rights as a shareholder under St George’s constitution, but rather were generated by the execution and performance of covenants in the deeds poll establishing the buy-back scheme. The Court held that on the listing date, 19 February 2001, when Ms McNeil’s sell-back rights were granted by St George to St George Custodial for her benefit, there was a derivation of income by her, represented by the market value of her rights, namely $514.
+HIGH COURT OF AUSTRALIA 15 August 2018 CHETAN SHRESTHA v MINISTER FOR IMMIGRATION AND BORDER PROTECTION & ANOR; BISHAL GHIMIRE v MINISTER FOR IMMIGRATION AND BORDER PROTECTION & ANOR; SHIVA PRASAD ACHARYA v MINISTER FOR IMMIGRATION AND BORDER PROTECTION & ANOR [2018] HCA 35 Today the High Court unanimously dismissed three appeals from a judgment of the Full Court of the Federal Court of Australia which rejected the appellants' respective challenges to decisions of the Migration Review Tribunal. In each case, the Tribunal affirmed a decision of a delegate of the Minister for Immigration and Border Protection to cancel the visa holder's student visa pursuant to s 116(1)(a) of the Migration Act 1958 (Cth). Section 116(1)(a) provided that "the Minister may cancel a visa if he or she is satisfied that ... any circumstances which permitted the grant of the visa no longer exist". Each appellant was granted a student visa on the basis that they satisfied the definition of an "eligible higher degree student" under the Migration Regulations 1994 (Cth). That definition required that, if the applicant proposed to undertake a preliminary course of study before and for the purposes of a principal course of study, the applicant had to be enrolled in that preliminary course of study. In each case, the Tribunal found that the visa holder had been enrolled in a preliminary course of study at the time that person was granted a student visa, but was no longer enrolled in that course of study. The Tribunal concluded that the visa holder therefore no longer met the definition of an "eligible higher degree student" and that a "circumstance" within the meaning of s 116(1)(a) no longer existed. The Tribunal in each case decided to cancel the visa holder's visa. Each visa holder applied to the Federal Circuit Court of Australia for judicial review of the Tribunal's decision. In each case, the Federal Circuit Court dismissed the application. Each visa holder appealed to the Federal Court, where their appeals were heard together. The Full Court of the Federal Court held, by majority, that the word "circumstances" in s 116(1)(a) referred to a state of affairs rather than a legal characterisation of a state of affairs, and that in each case the Tribunal had made a legal error by focusing on whether the visa holder met the definition of an "eligible higher degree student" instead of whether the visa holder remained enrolled in that course of study. The majority held that the error was jurisdictional in nature, but that the Tribunal's decisions should not be set aside because the error could have had no impact on the decisions. By special leave, the visa holders appealed to the High Court. A plurality of the Court held that the appeals should be dismissed on the basis that, even if the Tribunal had in each case made the alleged error, that error could have had no impact on the Tribunal's decisions because at most the error caused the Tribunal to ask a superfluous question. Accordingly, the alleged error was not jurisdictional in nature and could not invalidate the Tribunal's decisions.
+HIGH COURT OF AUSTRALIA 13 May 2016 DAY v AUSTRALIAN ELECTORAL OFFICER FOR THE STATE OF SOUTH AUSTRALIA & ANOR; MADDEN & ORS v AUSTRALIAN ELECTORAL OFFICER FOR THE STATE OF TASMANIA & ORS [2016] HCA 20 Today the High Court unanimously upheld amendments to the Commonwealth Electoral Act 1918 (Cth) ("the Act") concerning the new form of the Senate ballot paper and the process for marking it. The Act provides for voting either above or below the dividing line on the Senate ballot paper. Under the new process, electors who wish to vote above the dividing line are required to number at least six squares sequentially. On request, a group of candidates may be granted a square above the line next to which, if they choose, will appear the name of the political party that endorsed them and its logo. The numbering of squares above the line indicates the elector's preference for the candidates in the first numbered group or party in the order in which they appear below the dividing line, followed by the candidates of the second numbered group or party and so on up to the number of the elector's choices. The new process requires electors who vote below the dividing line to number at least twelve candidates in order of preference. Two applications were brought in the original jurisdiction of the High Court challenging the amendments. The plaintiff in the first application is a Senator for the State of South Australia. The first plaintiff in the second application is a candidate for the next Senate election in Tasmania. Each of the remaining plaintiffs in the second application is an elector for one of the States or Territories other than South Australia and Tasmania. The plaintiffs contended, first, that the new form of the ballot paper and the alternative means for marking it above and below the line prescribed more than one method of choosing senators contrary to s 9 of the Constitution. Secondly, that by allowing electors to indicate a vote for a party or group designated above the line on the ballot paper the Act departed from the requirement in s 7 of the Constitution that senators be "directly chosen by the people". Thirdly, that the interaction of those provisions with the prescription of a quota of votes upon which a candidate will be taken to have been elected infringed a principle of "directly proportional representation" and effectively disenfranchised some electors. Fourthly, that the form of the ballot paper misled electors about their voting options and thereby infringed the implied freedom of political communication. Finally, the amendments were said to impair, in a general way, the implied freedom of political communication and the system of representative government provided for in the Constitution. The High Court unanimously dismissed both applications. The High Court held that the term "method" in s 9 of the Constitution is to be construed broadly, allowing for more than one way of indicating choice within a single uniform electoral system. The High Court further held that a vote above the line was a direct vote for individual candidates consistent with s 7 of the Constitution. Finally, there was no disenfranchisement in the legal effect of the voting process and there was no infringement of the implied freedom of political communication or the system of representative government.
+HIGH COURT OF AUSTRALIA 11 May 2011 BRAYSICH v THE QUEEN [2011] HCA 14 Mr Braysich, a stockbroker, was convicted by a jury of 25 counts of creating a false or misleading appearance of active trading in securities on the stock market. The prosecution case before the District Court of Western Australia on each count was that Mr Braysich caused a sale of listed shares to be made in circumstances in which, to his knowledge, there was no change in the beneficial ownership of the shares. If the prosecution established that fact, Mr Braysich was, under the relevant legislation, deemed to have created a false or misleading appearance of active trading in the shares. Mr Braysich sought to rely on a statutory defence, that the purpose or purposes for which he caused the relevant trades to take place was not, or did not include, the purpose of creating a false or misleading appearance of active trading ("the proscribed purpose"). Mr Braysich did not give direct evidence as to the presence or absence of the proscribed purpose. The evidence put forward included character evidence bearing on his honesty, evidence of his awareness of the ASX business rules requiring him to consider whether a client might have an interest in bringing about a false or misleading appearance of active trading, evidence that he acted only upon instructions from people known to him to be reputable business people, and a statement that it did not cross his mind that his co-accused, a client giving instructions on the relevant trades, had an interest in creating a false appearance of active trading. At the close of Mr Braysich's testimony, the trial judge ruled that he had not raised the statutory defence, and on that basis refused to allow him to call expert evidence to rebut an expert witness which the prosecution had called in anticipation of the statutory defence. Counsel for Mr Braysich was not permitted to address the jury on the statutory defence, and the jury was told that it had no application to Mr Braysich. Mr Braysich's appeal to the Court of Appeal of the Supreme Court of Western Australia was dismissed. The Court of Appeal observed that to establish the statutory defence, it was necessary that he prove a negative proposition about his subjective state of mind. It held that Mr Braysich's failure to lead direct evidence as to purpose was a "critical omission", and that the circumstantial evidence was not sufficient to require the trial judge to leave the defence to the jury. Today the High Court, by majority, allowed Mr Braysich's appeal. It held that taking the evidence at its highest, it would be open to a reasonable jury to conclude that, on the balance of probabilities, Mr Braysich did not have the proscribed purpose, and ought therefore to be acquitted. The Court noted that the statutory defence raises an issue of honesty, and that the proscribed purpose is a dishonest purpose. The Court of Appeal therefore erred in dismissing evidence of Mr Braysich's good character, and other evidence upon which he relied, as evidence which did not address his subjective purpose or purposes. The Court quashed his convictions and remitted the matter for retrial in the District Court.
+HIGH COURT OF AUSTRALIA 8 March 2017 MINISTER FOR IMMIGRATION AND BORDER PROTECTION v KUMAR & ORS [2017] HCA 11 Today the High Court, by majority, allowed an appeal from a decision of the Federal Court of Australia. The High Court held that the Federal Court erred in holding that s 36(2) of the Acts Interpretation Act 1901 (Cth) ("the AIA") operated to allow the first respondent's application for a Subclass 572 (Vocational Education and Training Sector) visa ("572 visa") to be assessed as if it had been made before the expiry of his Subclass 485 (Temporary Graduate) visa ("485 visa"). The first respondent applied for a 572 visa. The application was received at an office of the Department of Immigration and Border Protection on Monday 13 January 2014. Clause 572.211 of Schedule 2 to the Migration Regulations 1994 (Cth) specified criteria that had to be satisfied at the time of the making of an application for a 572 visa. The first respondent would have met those criteria if he held a valid 485 visa at the time of the making of his application for a 572 visa. The first respondent's 485 visa had expired on Sunday 12 January 2014. In May 2014, a delegate of the Minister for Immigration and Border Protection refused to grant the 572 visa because, at the date the application was made, the first respondent did not meet the criteria in cl 572.211 in that, as of Monday 13 January 2014, he was not the holder of a 485 visa. The Migration Review Tribunal affirmed that decision, agreeing that the first respondent did not satisfy the criteria in The first respondent sought judicial review in the Federal Circuit Court of Australia, arguing that s 36(2) of the AIA operated so that the first respondent continued to meet the requirements of cl 572.211 on Monday 13 January 2014. Section 36(2) provides that if an Act "requires or allows a thing to be done" and "the last day" for the doing of the thing is a Saturday, Sunday or holiday, then the thing may be done on the next day that is not a Saturday, Sunday or holiday. The Federal Circuit Court, in dismissing the application, held that, because cl 572.211(2) identified a state of affairs that must exist as a criterion for the making of an application, rather than prescribed or allowed a thing to be done, s 36(2) of the AIA had no operation. On appeal, the Federal Court of Australia quashed that decision. The Federal Court held that, because the last day for the first respondent to apply for the 572 visa was, as a matter of fact, Sunday 12 January 2014, s 36(2) operated to allow the application to be made on Monday 13 January 2014. By grant of special leave, the Minister appealed to the High Court. The Court held, by majority, that s 36(2) of the AIA, properly construed, was not engaged. This was because no time limit is imposed expressly, or by implication, under the Migration Act 1958 (Cth) and the Migration Regulations on the making of an application for a 572 visa. Section 36(2) could not deem a thing to be done as if it were done on the earlier date, nor could it deem a state of affairs that existed on the earlier date to exist on the later date. As the first respondent did not meet the criteria for the grant of the 572 visa at the date of his application, the Court made orders effecting a reinstatement of the orders of the Federal Circuit Court.
+HIGH COURT OF AUSTRALIA 7 October 2004 WACB v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS An asylum seeker was not notified that his application for a protection visa had been rejected until he physically received the written decision, pursuant to section 430 of the Migration Act, the High Court of Australia held today. His 28 days in which to lodge an appeal had therefore not started running until he was given this document. WACB claimed he was born in Afghanistan in about 1985 and was of Hazara ethnicity. He had no education apart from lessons in the Koran at his local mosque and spent his life tending sheep. His father, who had supported an anti-Taliban group, had disappeared. His mother arranged with a people smuggler for WACB to escape Afghanistan to avoid either the same fate or being drafted to fight for the Taliban. He arrived in Australia by boat in December 2000 and applied for a protection visa. The Immigration Department and the Refugee Review Tribunal refused the application. On 16 March 2001, the RRT faxed its 14-page decision to the Curtin detention centre in Western Australia where WACB was being held. A covering letter explained he had 28 days to seek judicial review by the Federal Court, pursuant to section 478 of the Migration Act. The Curtin manager told him through an interpreter of the refusal and the 28-day appeal period. A Dari-speaking counsellor explained that the RRT did not believe he was an Afghan. According to WACB, she held on to the document until he asked for it weeks later. He filed his application to the Federal Court on 3 May 2001 for judicial review but the Court held that it was out of time. The Full Court of the Federal Court agreed. WACB then appealed to the High Court. The Migration Act provides five methods by which applicants may be notified of decisions, depending on whether they are in immigration detention and whether they have a representative. Where an applicant is in detention, as in WACB’s case, the RRT must give the applicant and the Department Secretary a copy of the written statement within 14 days of the decision. The High Court held that notification of the decision did not occur until the counsellor gave WACB the written statement. Telling the applicant that the document had arrived or communicating the gist of the document or reading the document to the applicant is insufficient. The written statement must be physically given to the applicant. Only then does the 28-day appeal period begin to run. The Court, by a 4-1 majority, allowed the appeal, and WACB’s substantive application for review can now proceed for hearing and determination.
+HIGH COURT OF AUSTRALIA 5 October 2012 HARBOUR RADIO PTY LIMITED v TRAD [2012] HCA 44 Today the High Court held, by majority, that Harbour Radio Pty Limited ("2GB") established the defence of qualified privilege at common law with respect to a number of imputations defamatory of Mr Trad. The Court granted Mr Trad special leave to cross-appeal on particular grounds but dismissed parts of the cross-appeal. The result was that each side enjoyed partial success. Approximately one week after what have become generally known as the "Cronulla Riots", Mr Trad attended a "peace rally" in Hyde Park, Sydney. Mr Trad spoke at the rally placing at least part of the blame for the Cronulla Riots on 2GB. At about 10:15am the next day 2GB made a broadcast which lasted 11 minutes purportedly responding to the comments made by Mr Trad at the peace rally. Mr Trad commenced proceedings in the Supreme Court of New South Wales alleging that the broadcast conveyed imputations which were defamatory. A jury found eight imputations were conveyed in the 2GB broadcast which were defamatory of Mr Trad. 2GB defended their broadcast relying on the substantial truth and contextual truth of the statements made, on the defence of fair comment on a matter of public interest and also argued that each imputation was published on occasion of qualified privilege at common law. Mr Trad was successful before the primary judge but the decision was reversed in part by the Court of Appeal. The issues before the High Court included whether or not the defence of qualified privilege was available and if so how the defence then applied with respect to each imputation. Mr Trad argued that the defence of qualified privilege should have been rejected because of malice. As to the substantial truth and the contextual truth defences, 2GB submitted that the relevant test was that of a "right-thinking" person as reflective of a community standard. Mr Trad sought to challenge this submission as a matter of law and disputed the factual findings upon which the primary judge found four imputations to be substantially true and related to a matter of public interest. The High Court held, by majority, that qualified privilege applied to a response to an attack where it was commensurate with the attack and when it was made bona fide for the purpose of vindicating one's reputation. The majority held a sufficient connection can be established upon any one of several considerations including the content of the attack, the credibility of the attack or the credibility of the attacker. The majority concluded that the defence of qualified privilege applied to six of the eight imputations relied on by Mr Trad. Mr Trad sought leave to file a notice of cross- appeal which contended that the defence of qualified privilege must fail because of the malice of 2GB. The majority refused to grant such leave. With respect to the defences of substantial truth and contextual truth, the majority preferred an audience composed of ordinary decent persons as opposed to "right-thinking" persons. The Court, by majority, remitted four imputations to the Court of Appeal for consideration of the substantial truth defence, and a further two imputations for consideration of the contextual truth defence. As both sides had some limited success, no order was made as to the costs of the appeal or the cross-appeal.
+HIGH COURT OF AUSTRALIA 20 April 2005 IN THE MATTER OF AN APPLICATION BY THE CHIEF COMMISSIONER OF POLICE (VIC) (four matters) No grounds existed for the permanent suppression of aspects of police operations which led to two murder convictions, the High Court of Australia held today. At the conclusion of an August 2004 hearing, the Court unanimously dismissed all four applications for the identities of undercover police and covert police methods to be permanently suppressed. The Court issued its reasons today. During two unrelated trials of Alipapa Tofilau and Lorenzo Favata for murder in the Victorian Supreme Court in September-October 2003, evidence was presented that had been gathered by undercover police. In each case the trial judge made an order prohibiting publication of the methods used and of any material that would identify the officers involved but the orders had specific expiry dates. The Victorian Court of Appeal dismissed the Commissioner’s two applications for leave to appeal and held that indefinite suppression would be both offensive to the principle of open justice and ineffective in practice. By special leave, the Commissioner appealed to the High Court against each order on the grounds that the Court of Appeal erred in failing to hold that she had an appeal as of right, and that the Court of Appeal had denied her procedural fairness because she was allegedly denied the opportunity to present argument on whether the trial judges were in error in making only limited suppression orders. In the event that the Court of Appeal had no jurisdiction to hear appeals (whether as of right or by leave) against the trial judges’ orders, the Commissioner also applied for further special leave to appeal from those orders. The original suppression orders were extended until the matters were dealt with by the High Court. Those additional applications for special leave were heard by the Court along with the appeals. At the end of the hearing, the Court ordered that both appeals and both applications for special leave be dismissed and that the Commissioner pay the costs of The Age newspaper which had been given leave to intervene. The special leave applications were dismissed because an appeal was deemed to have insufficient prospects of success to warrant the grant of special leave. The Court held that no appeal by the Commissioner lay as of right to the Court of Appeal. If an appeal lay at all to the Court of Appeal it lay only by leave. Orders made by the trial judges did not finally dispose of any rights and no exceptions set out in the Supreme Court Act were engaged. The Court held that the Commissioner had not been denied procedural fairness and that the Court of Appeal had not confined argument to the question about its jurisdiction. It was for the Commissioner to demonstrate to the Court of Appeal why leave should be granted. What arguments were advanced and what evidence was relied on was a matter for her. Filing further evidence and submissions without leave after argument had concluded, as the Commissioner did, did not demonstrate any want of procedural fairness.
+HIGH COURT OF AUSTRALIA 8 December 2021 PORT OF NEWCASTLE OPERATIONS PTY LIMITED v GLENCORE COAL ASSETS AUSTRALIA PTY LTD [2021] HCA 39 Today, the High Court dismissed an appeal from a decision of the Full Court of the Federal Court of Australia ("the Full Court") on an appeal from a determination of the Australian Competition Tribunal ("the Tribunal") concerning the terms of access to a declared service under Pt IIIA of the Competition and Consumer Act 2010 (Cth) ("the Act") at the Port of Newcastle ("the Port"). The High Court held the Full Court was correct to set aside the Tribunal's determination and remit the matter to the Tribunal, but confined the scope of the Tribunal's task on remitter. Since 2014, Port of Newcastle Operations Pty Limited ("PNO") has been the lessee from the State of New South Wales of the Port and has been the "operator" of the Port under the Ports and Maritime Administration Act 1995 (NSW) ("the PMA Act"). PNO relevantly controls the use by others of the Port's loading berths and shipping channels and the PMA Act limits PNO to fixing and recovering a "navigation service charge" for the use of those facilities. Glencore Coal Assets Australia Pty Ltd ("Glencore") exports its coal through the Port. Glencore sells most of its coal to overseas buyers under "free on board" ("FOB") contracts whereby the seller delivers the goods onto a ship nominated by the buyer and typically, the buyer charters the coal transport ship contracting separately with the ship's owner or operator. In 2016, the Tribunal declared a service under Pt IIIA of the Act for the provision of the right to access and use the Port's shipping channels and loading berths ("the Service"). In 2018, the Australian Competition and Consumer Commission ("the ACCC") determined an access dispute about the Service between Glencore and PNO. Glencore applied to the Tribunal for review of the ACCC's determination. Before the Tribunal two aspects of the navigation service charge were controversial. First, the scope of the charge: did Glencore have the right to negotiate about the charge when it sold FOB and did not have a contract with the ship's owner or charterer? Second, the amount of the charge: should one of the components upon which the charge was calculated be adjusted down to account for historical works undertaken by the State in creating the shipping channels? In answering these questions, the Tribunal varied the navigation service charge determined by the ACCC. On appeal the Full Court found the Tribunal's reasoning as to both issues was affected by errors of law. The High Court held that the Tribunal had erred in treating the permissible scope of its determination as confined to circumstances where Glencore exercised some measure of control over the physical activity of moving a vessel through a shipping channel. Glencore is a person who wants "access" to the Service and is thereby a "third party" under Pt IIIA and, by operation of the declaration of the Service, Glencore had a right to negotiate with PNO about the amount of the navigation service charge, including when it sells FOB. This conclusion accords with the ordinary meaning of "access" in Pt IIIA of the Act being the right or opportunity to benefit from or use a service. The High Court otherwise held that the Full Court was wrong in finding the Tribunal erred in determining the amount of the navigation service charge. The approach the Tribunal took on this issue was open to it.
+HIGH COURT OF AUSTRALIA Public Information Officer 9 February 2006 WARREN HALLORAN AND THE PERSONS NOMINATED IN THE ATTACHED SCHEDULE OF OWNERSHIP v MINISTER ADMINISTERING NATIONAL PARKS AND WILDLIFE ACT 1974 A series of steps taken to produce certain stamp duty consequences in connection with changes in the ownership of land the subject of claims for compensation were not effective to achieve their purpose, the High Court of Australia held today. In 1998, the Minister acquired parcels of land totalling about 2,639 hectares to establish the Jervis Bay National Park on the New South Wales south coast. Section 37 of the Land Acquisition (Just Terms Compensation) Act entitles land owners to compensation from the State of NSW when land is resumed. Land in NSW adjacent to the Commonwealth Territory of Jervis Bay, formed in 1915, was subdivided for the building of a town to support a proposed port in the Territory but the town never proceeded. Before the resumption, Mr Halloran and the other appellants sought to transfer lots held by several companies to 770 different owners and claimed more than $46.7 million in compensation under section 37. The transfers were done in May 1998 by way of a 23-step scheme that included the execution of 770 trust deeds, with each trust settled for $10. No stamp duty was paid on the transfers. The Minister disputed that the scheme achieved its intended purpose. In the NSW Land and Environment Court, Justice Angus Talbot found in favour of the parties to the scheme. The Minister successfully appealed to the NSW Court of Appeal, which held that the purported transactions had not in fact occurred. In an appeal to the High Court, the appellants claimed the Court of Appeal erred in concluding that they had not established that equitable interests had been created or acquired so as to attract an entitlement to compensation when the land was resumed. The High Court unanimously dismissed the appeal. It held that the steps taken were ineffective to avoid stamp duty and, because no stamp duty was paid, proof of the transactions was denied by the Stamp Duties Act.
+HIGH COURT OF AUSTRALIA 15 April 2015 INDEPENDENT COMMISSION AGAINST CORRUPTION v MARGARET CUNNEEN & ORS [2015] HCA 14 Today the High Court held, by majority, that the New South Wales Independent Commission Against Corruption ("ICAC") has no power to conduct an inquiry into allegations that were made against the respondents, because the alleged conduct was not "corrupt conduct" as defined in s 8(2) of the Independent Commission Against Corruption Act 1988 (NSW) ("the ICAC Act"). The first respondent is a Deputy Senior Crown Prosecutor of the State of New South Wales. In late 2014, ICAC summoned the respondents to give evidence at a public inquiry. The purpose of the inquiry was to investigate an allegation that the first and second respondents had, with the intention to pervert the course of justice, counselled the third respondent to pretend to have chest pains in order to prevent police officers from obtaining evidence of the third respondent's blood alcohol level at the scene of a motor accident. The respondents commenced proceedings in the Supreme Court of New South Wales seeking, amongst other orders, a declaration that ICAC did not have power to conduct the inquiry. The Supreme Court dismissed the proceedings. But the Court of Appeal allowed an appeal and declared that ICAC did not have power to conduct the inquiry because the alleged conduct was not "corrupt conduct" as defined in the ICAC Act. ICAC applied for special leave to appeal to the High Court, and the application was referred to a Full Court to be heard as on an appeal. Section 8(2) of the ICAC Act relevantly provides that "corrupt conduct" is "any conduct of any person ... that adversely affects, or that could adversely affect, either directly or indirectly, the exercise of official functions by any public official" and which could involve certain kinds of misconduct listed in the sub-section, including perverting the course of justice. The alleged conduct did not concern the exercise of the first respondent's official functions as a Crown Prosecutor. ICAC contended that the alleged conduct was corrupt conduct because it could adversely affect the exercise of official functions by the investigating police officers and by a court that would deal with any charges arising from the motor vehicle accident. The High Court unanimously granted special leave but, by majority, dismissed the appeal. The majority held that the expression "adversely affect" in s 8(2) refers to conduct that adversely affects or could adversely affect the probity of the exercise of an official function by a public official. The definition of "corrupt conduct" does not extend to conduct that adversely affects or could adversely affect merely the efficacy of the exercise of an official function by a public official in the sense that the official could exercise the function in a different manner or make a different decision. The alleged conduct was not conduct that could adversely affect the probity of the exercise of an official function by a public official. The alleged conduct was therefore not corrupt conduct within the meaning of s 8(2) of the ICAC Act and ICAC has no power to conduct the inquiry.
+HIGH COURT OF AUSTRALIA 11 March 2004 NETWORK TEN PTY LIMITED v TCN CHANNEL NINE PTY LIMITED, QUEENSLAND TELEVISION LIMITED AND GENERAL TELEVISION CORPORATION PTY LIMITED The High Court of Australia today held that the Ten network had not infringed copyright laws with its use of snippets from the Nine network’s programs on its weekly comedy chat show, The Panel. The Panel ran extracts from other networks’ programs, including pieces ranging from eight to 42 seconds from Nine’s shows including the news, The Today Show, Midday, Sunday, Wide World of Sports, A Current Affair, Australia’s Most Wanted, Crocodile Hunter, Days of Our Lives, the Academy Awards, and the Allan Border Medal Dinner. The 20 extracts were run on 15 episodes of The Panel broadcast in 1999 and 2000. Nine sought an injunction to restrain Ten from re- broadcasting such segments without consent and claimed a declaration of infringement of the broadcast copyright of Nine in its programs. In the Federal Court of Australia Justice Richard Conti held that Ten had not taken the whole or a substantial part of any of Nine’s broadcasts. He defined “a television broadcast” in the Copyright Act as a broadcaster’s program or discrete segments of a program. The Full Court reversed his decision, holding that every image seen on a television screen and the accompanying sound was a television broadcast in which copyright subsisted. It held that Ten had infringed Nine’s copyright under section 87(a) – subject to fair dealing defences for some segments that did not arise for consideration in the High Court. In the High Court Ten argued that the Full Court of the Federal Court had misread the term “a television broadcast” in the Act and had erred in holding that it had infringed copyright. It also argued that the Full Court’s decision expanded the ambit of copyright monopoly beyond the interests the legislation sought to protect. The High Court, by a 3-2 majority, accepted Ten’s arguments. The majority held that there was no indication that legislative protection was provided for each and every image discernible by viewers, as this would place broadcasters in a position of advantage over other copyright stakeholders, such as the owners of cinema films and sound recordings. It held that to understand “a television broadcast” as a tiny portion of the signal transmitted virtually continuously gave the term a very artificial meaning but did not decide whether a segment of a news or current affairs program constituted a broadcast. The Court allowed the appeal and remitted the case to the Full Court of the Federal Court to determine the remaining grounds of appeal to that Court.
+HIGH COURT OF AUSTRALIA 3 November 2021 HAMILTON (A PSEUDONYM) v THE QUEEN [2021] HCA 33 Today, the High Court dismissed an appeal from a judgment of the Court of Criminal Appeal of the Supreme Court of New South Wales. The appellant was convicted of ten counts of aggravated indecent assault contrary to s 61M(2) of the Crimes Act 1900 (NSW), which were alleged to have been committed on separate occasions against three of his five children. The appeal to this Court concerned whether the trial of the appellant miscarried because the trial judge did not give the jury an "anti-tendency direction", namely, that the jury must not reason, from a finding that the appellant was guilty of one charged offence, to conclude that he was guilty in respect of other charged offences because he was the kind of person who engaged in that kind of misconduct. At trial, the defence had not sought to have the counts tried separately. Rather, the defence embraced the opportunity to have all ten counts tried together as part of a strategy of inviting the jury to consider the evidence of all the complainants on all counts and, from a consideration of the totality of the evidence, to conclude that the children fabricated their allegations against him at the urging of their mother, the appellant's former wife. Defence counsel had not sought an anti-tendency direction. Defence counsel did, however, secure a direction from the trial judge that the jury could not convict the appellant on any count unless they were satisfied beyond a reasonable doubt that the evidence of each child was honest and reliable in relation to each of the counts concerning that child (a "Murray direction"). The trial judge also relevantly directed the jury that they were required to give separate consideration to each count. The majority of the High Court held that, on the issues tendered by the parties to the jury in this case, an anti-tendency direction was not necessary to ensure that the jury did not reason to guilt by reliance on impermissible tendency reasoning. The issue of credibility as between the appellant on the one hand, and each of the complainants and their mother on the other hand, was overwhelmingly likely to be decisive of the appellant's guilt on any count. Confronted with that stark contest of credibility, and in circumstances where the jury had been instructed to consider each count separately and had been given a Murray direction, the jury would have no occasion to resort to tendency reasoning. The jury's satisfaction that each complainant was honest and reliable would lead directly to guilty verdicts. The circumstance that the Crown was scrupulous to put its case to the jury with the evidence of each complainant, and the arguments in favour of accepting that evidence as honest and reliable, summarised separately as to each complainant and as to each count, made the risk of the jury engaging in tendency reasoning even more remote. That view was confirmed by the failure of the defence counsel to seek an anti-tendency direction. Counsel's decision can be seen to have been a deliberate decision based on the circumstance that he did not consider that such a direction was necessary to ensure a fair trial of the appellant. The majority held that the Court of Criminal Appeal was correct in concluding that there was no miscarriage of justice at trial.
+HIGH COURT OF AUSTRALIA 9 October 2019 CONNECTIVE SERVICES PTY LTD & ANOR v SLEA PTY LTD & ORS [2019] HCA 33 Today the High Court unanimously dismissed an appeal from the Court of Appeal of the Supreme Court of Victoria which concerned the scope of s 260A(1) of the Corporations Act 2001 (Cth). In 2003, the appellant companies were incorporated to conduct a mortgage aggregation business ("the Connective companies"). At all relevant times, the shareholders in the Connective companies were Slea Pty Ltd ("Slea"), Millsave Holdings Pty Ltd ("Millsave") and Mr Haron. The constitution of each Connective company contained an identical pre-emption clause. In May 2009, Mr Tsialtas, the sole director and shareholder of Slea, entered into an agreement with Minerva Financial Group Pty Ltd ("Minerva") for the sale of Mr Tsialtas' shares in Slea. A second agreement was entered into by Slea, Minerva and Mr Tsialtas in August 2010. The Connective companies instituted proceedings against Slea and Minerva, also joining Millsave and Mr Haron as defendants claiming that these agreements breached the pre-emptive rights provisions. Slea and Minerva applied to have these proceedings dismissed or stayed and sought, amongst other forms of relief, an injunction under s 1324 of the Corporations Act to restrain the Connective companies from prosecuting the proceedings on the basis that by doing so they were in contravention of the implied prohibition in s 260A(1) of the Corporations Act against financial assistance. Section s 260A(1) of the Corporations Act relevantly provides that a company may financially assist a person to acquire shares in the company only if giving the assistance does not materially prejudice the interests of the company or its shareholders, or the company's ability to pay its creditors. Section 1324(1B)(a) provides that where the ground relied on in an application for an injunction under s 1324 is an alleged contravention of s 260A(1)(a), the Court must assume that the conduct constitutes or would constitute a contravention of s 260A(1)(a) unless the company or person proves otherwise. In order to vindicate their pre-emptive rights, Millsave and Mr Haron were required to bring legal proceedings against Slea. If those proceedings had been commenced by Millsave and Mr Haron, then it would plainly have been financial assistance for the Connective companies to fund those proceedings. Instead, the proceedings were commenced at the expense of the Connective companies, in which Millsave and Mr Haron hold 66.67% of the shareholding. The primary judge held that this did not amount to financial assistance in contravention of s 260A. The Court of Appeal allowed the appeal from that decision. By grant of special leave, the Connective companies appealed to this Court. The High Court held that the commencement of the pre-emptive rights proceeding was financial assistance within the meaning of s 260A(1), and that the Connective companies did not discharge their onus of proving that there was no material prejudice to the Connective companies or their shareholders. The Connective companies eased a financial burden in the process of any acquisition of shares by Millsave and Mr Haron. The commencement of the proceedings by the Connective companies, at their expense, was financial assistance to Millsave and Mr Haron. Further, costs would be incurred by the Connective companies in conducting the proceedings that would not, even if they succeed, be entirely recoverable. Section 260A(1) of the Corporations Act was therefore contravened and an injunction must issue.
+HIGH COURT OF AUSTRALIA 13 August 2014 DANIEL GLENN FITZGERALD v THE QUEEN [2014] HCA 28 On 19 June 2014, the High Court unanimously allowed an appeal against a decision of the Court of Criminal Appeal of the Supreme Court of South Australia, which had upheld the appellant's convictions for murder and aggravated causing serious harm with intent to cause serious harm contrary to ss 11 and 23(1) respectively of the Criminal Law Consolidation Act 1935 (SA). The High Court allowed the appeal, quashed the appellant's convictions and directed that a judgment and verdict of acquittal be entered. Today, the High Court delivered reasons for making those orders. On 19 June 2011, a group of men forced their way into a house in Elizabeth South in South Australia and attacked two of the occupants with weapons including a gardening fork and a pole. One victim died four days after the attack and another sustained serious brain injuries. After a trial before a judge and jury in the Supreme Court of South Australia, the appellant was convicted and was sentenced to a term of life imprisonment with a non-parole period of 20 years. At the appellant's trial, the prosecution contended that the appellant was a member of the group that had forced entry into the house armed with weapons and was a party to a common plan to cause grievous bodily harm to persons inside the house. There was no direct evidence that the appellant inflicted harm on the deceased or the other victim. The prosecution relied on DNA evidence obtained from a sample taken from a didgeridoo found at the crime scene to establish the appellant's involvement in the attack. The prosecution's circumstantial case was that the DNA in the sample derived from the appellant's blood and was transferred by him to the didgeridoo at the time of the attack. The appellant argued that alternative hypotheses consistent with his innocence were open on the evidence. One such hypothesis was that a member of the group who was present at the crime scene had transferred the appellant's DNA onto the didgeridoo, after the two men shook hands the night before the attack. The appellant appealed unsuccessfully against his convictions to the Court of Criminal Appeal, arguing that the verdicts were unreasonable and could not be supported by the evidence. By special leave, the appellant appealed to the High Court. The High Court unanimously held that the prosecution's main contention, that the appellant's DNA in the sample obtained from the didgeridoo derived from his blood, was not made out beyond reasonable doubt. Further, the recovery of the appellant's DNA from the didgeridoo did not raise any inference about the time when or circumstances in which the DNA was deposited there. The Court held that it could not be accepted that the evidence relied on by the prosecution was sufficient to establish beyond reasonable doubt that the appellant was present at, and participated in, the attack. The jury, acting reasonably, should have entertained a reasonable doubt as to the appellant's guilt. As the evidence was not capable of supporting the appellant's conviction for either offence, no question of an order for a new trial arose.
+HIGH COURT OF AUSTRALIA 12 May 2021 JOHN SHI SHENG ZHANG v THE COMMISSIONER OF POLICE & ORS [2021] HCA 16 Today the High Court unanimously answered questions stated in a special case concerning the validity of s 92.3(1) and (2) of the Criminal Code (Cth), which criminalise reckless foreign interference, and the validity of three search warrants and corresponding orders issued in respect of suspected offences against s 92.3(1) and (2). The plaintiff ("Mr Zhang"), an Australian citizen born in the People's Republic of China, was employed at the New South Wales Parliament. In the context of an ongoing investigation, officers of the Australian Federal Police ("the AFP") obtained search warrants issued under s 3E of the Crimes Act 1914 (Cth) purporting to authorise search and seizure of material relevant to offences against s 92.3(1) and (2) of the Criminal Code. Corresponding orders relating to material seized were made under s 3LA of the Crimes Act following execution of those warrants. In a proceeding in the High Court's original jurisdiction, Mr Zhang sought writs of certiorari quashing each warrant and each order together with a mandatory injunction requiring the destruction or return of the seized and copied material. He also sought declarations of invalidity of s 92.3(1) and (2) of the Criminal Code on the basis that they infringed the implied freedom of political communication. Mr Zhang's challenge to the validity of each warrant was on two grounds. The first was that each warrant failed to comply with s 3E(5)(a) of the Crimes Act because it did not identify the substance of the offences with sufficient precision. The second was that each warrant failed to authorise search and seizure of "evidential material" because of the invalidity of s 92.3(1) and (2). The challenge to each order was derivative upon the challenge to the corresponding warrant. By special case in the proceeding, Mr Zhang and the Commissioner of Police agreed in stating questions of law for the opinion of the Full Court. Because Mr Zhang accepted that each warrant was severable and the totality of the search and seizure that occurred pursuant to each warrant was authorised if the warrant was valid in relation to offences against either provision, it was sufficient for the Court to concentrate on the challenge relevant to offences against s 92.3(1). Section 92.3(1) relevantly made it an offence to engage in conduct "on behalf of ... a foreign principal" in circumstances where "the person is reckless as to whether the conduct will: ... influence a political or governmental process of the Commonwealth or a State or Territory; or ... influence the exercise (whether or not in Australia) of an Australian democratic or political right or duty" and "any part of the conduct ... is covert". The High Court unanimously held that Mr Zhang's argument that each warrant failed to comply with s 3E(5)(a) of the Crimes Act because it was "unclear" as to the identity of the foreign principal was untenable. As to the constitutional challenge, the Court found that Mr Zhang, in failing to assert that the word "covert" would be incapable of being read down to ensure validity, implicitly acknowledged that parts of s 92.3(1) supporting the offences against s 92.3(1) to which each warrant related had some valid operation. That being so, his argument that those offences do not exist was rejected without need of determining the constitutional argument he presented. Accordingly, the Court held that the warrants were not wholly invalid on any of the identified grounds and otherwise that the remaining substantive questions reserved were unnecessary or inappropriate to answer.
+HIGH COURT OF AUSTRALIA Public Information Officer 18 June 2008 MZXOT v MINISTER FOR IMMIGRATION AND CITIZENSHIP It was not necessary and incidental to the exercise of the High Court of Australia’s original jurisdiction that, in the absence of a law made by Parliament conferring the relevant jurisdiction on the Federal Magistrates Court, the High Court had the power to decline to exercise its jurisdiction and remit a matter to the FMC, the High Court held today. MZXOT, a Nigerian national, entered Australia in 2006 on a business (short stay) visa. He applied for a protection visa on the basis of persecution due to his religion. The Immigration Department refused the application in April 2006 and sent a letter to his last known address. MZXOT only learned of the decision in January 2007. In February 2007 he applied for judicial review of the decision in the FMC and was given a copy of the letter. The Minister filed an objection to the competency of the application and the proceeding was discontinued. MZXOT also applied to the Refugee Review Tribunal which determined it had no jurisdiction because the application was outside the 28-day time limit. He was deemed to have received the letter 10 days after the letter was posted and the 28-day period for lodging an application expired on 26 May 2006. The Migration Act was amended in 2005 to impose short time limits upon applications to the Federal Magistrates Court, the Federal Court and the High Court. In 2007, the High Court held that the time limits on applications in the Court’s original jurisdiction were invalid. MZXOT then invoked the original jurisdiction of the High Court conferred by section 75(v) of the Constitution to seek orders for certiorari to quash the department’s decision and mandamus to direct the Minister to determine his visa application. He wanted the High Court, where he was not necessarily barred by time limits, to remit these proceedings for constitutional relief to the FMC where he would be eligible for legal aid. Last November High Court Justice Kenneth Hayne stated a case for the Full Court. This asked questions concerning the validity of provisions of the Migration Act and the Judiciary Act in so far as they impaired or frustrated the exercise of what MZXOT argued was an implied power in the High Court to remit his application to another court. The Court unanimously held that remitting MZXOT’s application for constitutional relief to the FMC was not possible under the legislation. Section 44 of the Judiciary Act would empower the Court to remit the application to the FMC, but section 476B of the Migration Act states that the Court must not remit migration matters unless the FMC had jurisdiction under section 476. Section 476 provides that the FMC has the same original jurisdiction under section 75(v) as the High Court, but it has no jurisdiction in relation to “primary decisions” about protection visas that had been reviewed by the RRT if applications were not made within the specified time. The department’s decision was a “primary decision”. The Court held that the power to invest the Court’s original jurisdiction in another court was entirely a matter for Parliament and under section 77 of the Constitution Parliament can define the jurisdiction of any federal court other than the High Court. The FMC lacked authority to deal with the subject matter and accordingly the High Court lacked the authority to remit the matter to the FMC. Because the time limits in relation to the High Court’s original jurisdiction have already been held to be invalid, only the High Court may hear cases such as MZXOT’s. Four Justices held that the burden of exclusive determination of applications made outside the 2005 Act time limits did not sufficiently impair the discharge of the High Court’s constitutional functions so as to call into question the validity of the changes made by that Act.
+HIGH COURT OF AUSTRALIA 16 November 2005 TRAVEL COMPENSATION FUND v ROBERT TAMBREE trading as R Tambree and Associates, PHILLIP ROSEBY trading as PJ Roseby & Co, RENEE JULIE FRY, TREVOR FRY Illegality on the part of a travel agent who had lost her licence did not prevent the Travel Compensation Fund from succeeding in its claim for damages against an accountant and an auditor who had engaged in misleading or deceptive conduct, the High Court of Australia held today. Under a national scheme for regulation of travel agents, a compensation fund reimburses people who suffer loss through an act or omission of a travel agent. Under the New South Wales Travel Agents Act, all travel agents must be licensed and a condition of a licence is that the licensee be a participant in the Travel Compensation Fund (TCF). Continued eligibility depends on financial viability so agents are required periodically to submit audited financial statements. Renee Fry’s Parramatta travel agency, The Travel Shop International, specialising in travel to Fiji and Bali, opened in early 1997. She was a participant in the TCF and obtained an agent’s licence. Her father, Trevor Fry, looked after the accounts. The firm’s financial statements for 1996-97 and 1997-98 were prepared by Mr Tambree, and audited by Mr Roseby and submitted to the TCF. The travel agency collapsed in 1999 after the TCF conducted a field audit in response to complaints from creditors. The financial statements had failed to disclose substantial liabilities and reported a net profit. By 30 June 1998, the firm owed Metro Travel, a wholesaler of airline tickets, $152,615, but a net profit of $8,337 was reported. In February 1999 Ms Fry wrote to the TCF to resign from the scheme, but she continued to trade without a licence until the Department of Fair Trading changed the locks two months later. The TCF arranged for another agency to take over all bookings and paid $143,050 to claimants, with most of the losses accrued between February and April 1999. The TCF began proceedings in the NSW Supreme Court, seeking recovery of the money it had paid out. Justice Robert Austin held that Mr Tambree failed to meet the standard of care required of an accountant, Mr Roseby’s conduct amounted to negligent misrepresentation, and there was a causal connection between their conduct and the TCF’s losses. He held that the TCF’s reliance on the financial statements was reasonable. Mr Tambree and Mr Roseby appealed. They denied their conduct caused the TCF’s losses as most of the TCF claim related to when Ms Fry was trading illegally. The Court of Appeal held that Mr Tambree and Mr Roseby owed the TCF a duty of care and breaching that duty caused the TCF’s losses. However, it held that the illegal trading broke the causal connection as Ms Fry’s conduct was not a normal occurrence so the TCF could not recover the compensation payout from Mr Tambree or Mr Roseby, apart from $13,320 for consumers who made payments for holidays while Ms Fry was still licensed. The TCF appealed to the High Court. The Court unanimously allowed the appeal. It held that the illegal trading did not sever causation. The Court held that the very purpose of the scheme is to protect the public against loss resulting from dealing with defaulting agents. Such default commonly results from financial failure which may lead to some form of illegality while businesses try to trade their way out of difficulty. The TCF required information about the financial position of agents to protect it from the risk of paying compensation to customers of agents who lost their licence. That was the kind of risk against which the TCF sought to protect itself by obtaining audited financial statements from agents.
+HIGH COURT OF AUSTRALIA 8 December 2004 APPLICANT NAFF OF 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS AND REFUGEE REVIEW TRIBUNAL A Refugee Review Tribunal member failed to accord an asylum seeker procedural fairness when she did not send him further questions to clear up apparent inconsistencies in his story, the High Court of Australia held today. NAFF, a Muslim Tamil claiming to have a well-founded fear of political persecution in India, arrived in Australia in 1999. He said he was active in the Indian Union Muslim League and in a committee of the Jihad Movement and was president of an organisation in his village associated with a movement led by Muslim industrialist Dawood Ibrahim. NAFF and other Muslims were arrested in December 1998 and accused of planning bombings. He said he was arrested three times and each time was severely beaten by police or tortured. The Immigration Department rejected those contentions and refused his application for a protection visa. NAFF applied to the RRT for review of that decision. The RRT held a hearing into NAFF’s case on 5 February 2002. NAFF spoke in Tamil using an RRT interpreter. Questioning by the RRT member revealed various inconsistencies in his evidence, including the dates he was detained and the number of detentions. At the end of the hearing, the member told NAFF that given these inconsistencies she would have to write to him and he would have 21 days to answer her questions and to provide any more information. However she never wrote to NAFF. Instead the RRT later wrote to say it would hand down its decision on 19 March. The RRT member rejected his story, saying Dawood Ibrahim was regarded by Indian authorities as a gangster so he was unlikely to have travelled to India and met NAFF. She doubted that NAFF would have been involved at a high level in Dawood Ibrahim’s movement for five years, yet not attract adverse attention until 1998. She said belonging to the Jihad Movement contradicted his claim of opposing violence. He said he was involved with Jihad’s executive committee before that committee had been formed. The member accepted NAFF was in the Muslim League but found it unlikely he was persecuted for belonging to a moderate party. The Federal Court of Australia dismissed his application for orders quashing the RRT decision and requiring the RRT to redetermine his case. The Full Court, by majority, dismissed an appeal. The High Court granted NAFF special leave to appeal concerning the RRT member’s undertaking to write to him about his detentions. The Court held that with her closing remarks the member was herself acknowledging that the review’s purposes had not been completely fulfilled. Failure to complete the process was a failure to comply with the duty imposed by section 414(1) of the Migration Act to conduct the review and the duty under section 425(1) to hear from NAFF. No provisions permitted the affirming of the department’s decision and the handing down of reasons before the review process was complete. The Court held that depriving NAFF of the opportunity to answer questions was a breach of procedural fairness and unanimously allowed NAFF’s appeal. It quashed the RRT’s review decision and ordered it to redetermine the application for review.
+HIGH COURT OF AUSTRALIA 3 November 2010 THE QUEEN v NGUYEN [2010] HCA 38 The HIGH COURT OF AUSTRALIA today granted the prosecution special leave to appeal against the decision of the Court of Appeal of the Supreme Court of Victoria to quash Dang Quang Nguyen's jury convictions on one count of murder and one count of attempted murder. The High Court unanimously allowed the prosecution's appeal. The High Court also unanimously allowed a cross- appeal brought by Dang Quang Nguyen. The High Court found that the trial judge misdirected the jury on the charge of murder by failing to leave open the alternative verdict of manslaughter. The High Court ordered a new trial. In the early hours of 8 November 2004, Dang Quang Nguyen went to a flat in Carlton, Victoria, with Dang Khoa Nguyen and Bill Ho, allegedly to collect a drug debt. Seven young people were in the flat. Dang Quang Nguyen waved a sword about in the lounge room of the flat, cutting two or three people. Bill Ho shot two men: one of those men survived, but the other died. Dang Quang Nguyen, Dang Khoa Nguyen and Bill Ho were each charged with one count of murder and one count of attempted murder. Dang Quang Nguyen was charged on the basis that he had been complicit in crimes committed by Bill Ho. On 13 October 2007, after a Supreme Court trial that lasted several weeks, a jury found all three men guilty on both counts. Dang Quang Nguyen appealed against his convictions. In December 2009, two years after the men had been sentenced, the Court of Appeal allowed Dang Quang Nguyen's appeal, quashed his convictions and directed that he be acquitted. In its reasons, published in February 2010, the Court of Appeal held that Dang Quang Nguyen's convictions could not be supported by the evidence, and were therefore unsafe or unsatisfactory. The High Court today granted the prosecution special leave to appeal against the Court of Appeal's decision to quash Dang Quang Nguyen's convictions, and allowed that appeal. The Court held that, on the whole of the evidence presented at trial, it was open to the jury to be satisfied beyond reasonable doubt that Dang Quang Nguyen agreed in the use of deadly force, contemplated that it might be used, or encouraged its use. The Court of Appeal was therefore wrong to find that the verdicts of the jury in respect of Dang Quang Nguyen were unsafe or unsatisfactory. The High Court also granted Dang Quang Nguyen's application for special leave to cross-appeal in relation to the sufficiency of the directions given by the trial judge to the jury, and allowed that appeal. The Court held that the trial judge's directions did not sufficiently leave manslaughter to the jury as an alternative verdict in respect of Dang Quang Nguyen's murder charge. The Court held that it was open to the jury to conclude that, even though the principal offender Bill Ho was guilty of murder, Dang Quang Nguyen was guilty of the lesser crime of manslaughter because he agreed in, contemplated or encouraged only the infliction of some harm, and not the infliction of really serious injury or death. The Court held that the misdirection constituted a wrong decision on a question of law and that it could not be said that there was no substantial miscarriage of justice in the trial of Dang Quang Nguyen. The Court held that, despite the undue protraction of Dang Quang Nguyen's case in the courts below, the orders of the Court of Appeal should be set aside, Dang Quang Nguyen's convictions quashed, and a new trial had.
+HIGH COURT OF AUSTRALIA 12 August 2021 FREDERICK CHETCUTI v COMMONWEALTH OF AUSTRALIA [2021] HCA 25 Today, the High Court by majority dismissed an appeal from a final judgment given by a single justice of the High Court after a trial on agreed facts in a proceeding in the original jurisdiction of the High Court. The appellant had challenged his detention under the Migration Act 1958 (Cth) on the ground that he was not within the reach of the legislative power concerning aliens conferred by s 51(xix) of the Constitution ("the aliens power"). The appellant was born in Malta on 8 August 1945, then still a colony of the United Kingdom, and arrived in Australia on 31 July 1948. At the time of his arrival, the appellant had the status of a British subject under the Nationality Act 1920 (Cth) and he subsequently retained that status under the Australian Citizenship Act 1948 (Cth) from its commencement on 26 January 1949 through to the abolition of that status on 1 May 1987 (other than during a short period between 1964 and 1965). In 2017 by reference to the appellant's conviction in 1993 of murder, and after having served a 24 year term of imprisonment, a decision was made to cancel the appellant's visa under the Migration Act and the appellant was subsequently taken into detention. In challenging his detention, the appellant argued for an exception to the settled understanding that it is in general open to the Parliament to treat as an alien any person who was born outside Australia, whose parents were not Australians, and who has not been naturalised as an Australian. The exception contended for by the appellant was in respect of a person who was a natural born British subject and who commenced residing permanently in Australia before 26 January 1949. The appellant argued that the status of a non-alien attaches indelibly to a person in that category either by reason of the person having been born within the allegiance of an as yet undivided Imperial Crown or by reason of the Parliament having once and for all determined the person not to be an alien under the Nationality Act. At first instance, the single justice concluded that the appellant was within the reach of the aliens power and gave judgment for the respondent. The High Court, by majority, dismissed the appeal. By majority, the High Court held that it was open to the Parliament in the exercise of the aliens power, through prescription of the criteria for the conferral of Australian citizenship set out in the Australian Citizenship Act, to deny the appellant the status of an Australian citizen and thereby to treat him as an alien in the transition that occurred on the commencement of that Act on 26 January 1949. The appellant's problem was that he did not take the available course of action under the Australian Citizenship Act to become an Australian citizen after that date.
+HIGH COURT OF AUSTRALIA Public Information Officer 11 September, 2003 DOVURO PTY LIMITED v ROBERT JOHN WILKINS, EILEEN JOYCE WILKINS, TREVOR IAN WILKINS, SUSAN CAROLINE WILKINS AND LOCHIEL NOMINEES PTY LIMITED AS TRUSTEE FOR THE R & E WILKINS FAMILY TRUST; CROP MARKETING NEW ZEALAND SOCIETY LIMITED; AND QBE INSURANCE (INTERNATIONAL) LIMITED The High Court of Australia today allowed an appeal by canola seed distributor Dovuro against a finding of negligence after seed it imported contained weed seeds that were declared prohibited species by Western Australian agricultural authorities. Dovuro imported New Zealand-grown canola seed that was cleared by the Australian Quarantine Inspection Service. The seed contained small amounts of seeds from three common weeds, a common occurrence with such a product. The canola was sold in bags labelled “minimum 99% purity”. The weeds were not noxious for humans or animals, and canola seed containing the weed seeds was not prohibited anywhere in Australia. But after Dovuro imported it, distributors had sold it and farmers planted it in 1996, the WA government decided in July 1996 that farmers should take steps to prevent the growth of the weeds and to eradicate any that did grow. None of the many farmers who sowed Dovuro’s seed reported growth of any of the weeds or reported harm to their crops or their land, but they suffered financial loss and expense in preventive measures which they sued to recover. Declarations for two of the three weeds were cancelled in May 1998. The Wilkinses, who planted one tonne of Dovuro’s canola seed in April and May 1996, brought action in the Federal Court against Dovuro claiming damages and alleging negligence and contravention of section 52 of the Trade Practices Act. They brought the action as a class action on behalf of WA canola growers who had bought and planted Dovuro seed in 1996. Justice Murray Wilcox held that Dovuro had been negligent but had not contravened section 52. The Full Court of the Federal Court, by majority, dismissed Dovuro’s appeal and Dovuro appealed to the High Court. The Court, by a 5-2 majority, allowed Dovuro’s appeal. The Court held that Dovuro did have a duty of care not to expose the farmers to harm, including financial loss, but the majority held that it did not breach its duty of care. Where none of the seeds were known to be dangerous or had been prohibited, Dovuro could not reasonably have foreseen the actions of the WA government.
+HIGH COURT OF AUSTRALIA 30 January 2008 Public Information Officer DLSHAD HAMAD MAHMOOD v STATE OF WESTERN AUSTRALIA A judge in a murder trial failed to give a jury appropriate instruction in response to a prosecutor’s argument as to the use that could be made of certain evidence, the High Court of Australia held today. In February 2006, Mr Mahmood was convicted in the WA Supreme Court of the wilful murder of his wife, Chnar Dabag, on 4 July 2004 at their restaurant, the Kebabistan Restaurant, in Mt Lawley in Perth. Mr Mahmood testified that he was cleaning when Ms Dabag visited the toilet. When she did not return he went to find her. She was lying in a passageway bleeding. Her throat had been cut. Mr Mahmood picked his wife up but she was not breathing. He went outside to see if the person responsible was still there but saw no-one. In a distressed state, he called an ambulance. A police record of interview was videotaped that same day. A week later Mr Mahmood did a walk-through of the events for police which was also videotaped. No weapon was ever found. The case against Mr Mahmood was circumstantial, based on his belief that Ms Dabag had been unfaithful. Defence counsel sought to tender a brief extract – showing Mr Mahmood demonstrating how he knelt down and lifted his wife’s body on to his knee – from the video recording. Defence counsel expressed willingness to tender the whole video. The prosecutor did not consent. He told the jury that in the portion of the video tendered, Mr Mahmood’s reaction and demeanour were cold-blooded and clinical. Defence counsel applied to re-open the defence case to tender additional parts of the video to counter that impression. Justice Lindy Jenkins refused the application. Instead she told the jury they would be unwise to draw any adverse view of Mr Mahmood’s demeanour in the walk-through as they had seen only a small portion of the video which was made a week after the murder. The Court of Appeal dismissed an appeal against conviction. Mr Mahmood appealed to the High Court over the treatment of the video recording and the significance of blood stains on his clothes. The Court unanimously allowed the appeal on the first ground and remitted the matter to the Court of Appeal to consider whether or not there had been a substantial miscarriage of justice. It held that while a sufficiently firm direction to the jury may have overcome the prejudicial effects of the prosecutor’s remarks about Mr Mahmood’s demeanour, Justice Jenkins had merely given comment. The Court held that the jury should have been directed unequivocally that they knew so little of the context of the video segment that they should ignore the prosecutor’s remarks. A scientific report referred to the presence of Ms Dabag’s blood in Mr Mahmood’s trouser pocket but expert witnesses were not asked whether this was consistent with a knife being in the pocket. Mr Mahmood denied in cross-examination that he had put the knife in his pocket before disposing of it outside. The High Court held that Mr Mahmood had had the opportunity to explain the presence of blood in his pocket but did not do so. Justice Jenkins’s directions conveyed to the jury that they could not draw the inference suggested by the prosecution so this ground of appeal failed.
+HIGH COURT OF AUSTRALIA 24 August 2016 DEAL v FATHER PIUS KODAKKATHANATH [2016] HCA 31 Today the High Court unanimously allowed an appeal from a decision of the Court of Appeal of the Supreme Court of Victoria. The High Court held that the majority of the Court of Appeal erred in finding that the primary judge was correct to remove from the jury's consideration allegations that the respondent had breached its statutory duties under the Occupational Health and Safety Regulations 2007 (Vic) ("the Regulations"). The appellant ("Ms Deal") was employed by the respondent as a primary school teacher. In 2007, Ms Deal injured her knee in the course of using a step ladder to remove papier mâché displays from a pin-board on a classroom wall. She was descending backwards down the step ladder, carrying multiple displays with both hands, as they were prone to buckle if not supported. Her view of the step ladder was obscured by the displays. She missed a step and fell to the floor, injuring her knee. Ms Deal brought proceedings in the County Court of Victoria alleging that her injury was caused by the respondent's negligence or breach of statutory duty. The Regulations required employers, so far as reasonably practicable, to identify tasks involving hazardous manual handling (reg 3.1.1); control the risk of a musculoskeletal disorder associated with a hazardous manual handling task (reg 3.1.2); and review any risk control measures (reg 3.1.3). Relevantly, hazardous manual handling tasks included the manual handling of unstable loads, or loads that are difficult to hold. The primary judge determined that Ms Deal was not engaged in hazardous manual handling. Consequently, Ms Deal's reliance on the Regulations could not be put to the jury and the trial proceeded on the question of negligence only. The jury returned a verdict for the respondent. Ms Deal appealed. The majority of the Court of Appeal found that, although Ms Deal was engaged in hazardous manual handling, there was no "close connection" between the risk of harm and the injury such that the injury could be said to be "associated with a hazardous manual handling task". Their Honours also held it was not reasonably practicable for an employer considering the generic task of removing the displays to identify the task as one involving hazardous manual handling. By grant of special leave, Ms Deal appealed to the High Court. The High Court allowed the appeal, holding that the Court of Appeal misconstrued the phrase "associated with a hazardous manual handling task" in reg 3.1.2. That regulation extends to the risk of a musculoskeletal disorder caused, in whole or part, by a task meeting the description of hazardous manual handling. On that basis, the High Court held it would have been open to the jury to conclude that the risk of Ms Deal falling from the step ladder, while carrying displays that were unstable or difficult to hold, was a risk "associated with a hazardous manual handling task". The High Court further held that there was evidence from which the jury could have inferred that it was reasonably practicable for the respondent to identify the task as involving hazardous manual handling, and to take steps to eliminate or control the kind of risk which eventuated. The High Court remitted the matter to the Court of Appeal to be dealt with according to law.
+HIGH COURT OF AUSTRALIA 9 September 2020 PRIVATE R v BRIGADIER MICHAEL COWEN & ANOR [2020] HCA 31 Today the High Court unanimously dismissed an application which challenged the jurisdiction of a Defence Force magistrate to try a charge against a member of the Australian Defence Force ("ADF"). The application concerned the extent to which the defence power conferred on the Commonwealth Parliament by s 51(vi) of the Constitution supports the conferral of jurisdiction by the Defence Force Discipline Act 1982 (Cth) ("the Act") upon military service tribunals to hear and determine charges relating to conduct that also constitutes an offence under ordinary criminal law and that is committed in a time of peace when civil courts are reasonably available. On 12 June 2019, the plaintiff was charged by the Director of Military Prosecutions ("DMP") with one count of assault occasioning actual bodily harm against a woman with whom he had previously been in an intimate relationship. The alleged offending occurred after a birthday party in Fortitude Valley, Brisbane. It was alleged that, throughout the night, the plaintiff had made unwanted advances towards the complainant. At the end of the evening in a hotel room, the plaintiff, who was intoxicated and angry, allegedly threw the complainant's phone across the room, grabbed her by the throat and pushed her against the wall, shaking her and yelling at her. After the complainant broke free, the plaintiff tackled her to the ground, placed his knees on her chest and choked her until two security guards entered the room. The plaintiff was and is a member of the ADF and the complainant, at the time of the alleged assault, was a member of the ADF. Neither was on duty or in uniform at the time of the alleged offending. On 26 August 2019, the plaintiff appeared before a Defence Force magistrate on a charge under s 61(3) of the Act, which provides that a defence member is guilty of an offence if the person engages in conduct outside the Jervis Bay Territory and that conduct would be an offence if it took place in the Jervis Bay Territory. Assault occasioning actual bodily harm is an offence under s 61(3) by reason of s 24 of the Crimes Act 1900 (ACT). The plaintiff objected to the Defence Force magistrate's jurisdiction to hear the charge. The Defence Force magistrate dismissed the objection on the basis that it is sufficient to confer jurisdiction on a service tribunal that the accused was a member of the armed forces when the charged offence was allegedly committed. The plaintiff commenced proceedings in the original jurisdiction of the High Court seeking prohibition to prevent the Defence Force magistrate hearing the charge against him. The Court unanimously held that the Defence Force magistrate had jurisdiction to hear the charge. Five Justices of the Court held that s 61(3) of the Act, in obliging defence members to obey the law of the land, is, in all its applications, a valid exercise of the defence power. Two Justices of the Court held that s 61(3) is valid only in its application to offences which, because of their nature or circumstances of commission, have a proven connection with defence force discipline, and that such a threshold was satisfied in the present case.
+HIGH COURT OF AUSTRALIA 13 December 2019 [2019] HCA 48 Today the High Court, by majority, dismissed an appeal from the Court of Appeal of the Supreme Court of Queensland. The appeal concerned whether the trial judge should have given the jury a direction of the type proposed in Liberato v The Queen (1985) 159 CLR 507, known as a "Liberato direction". A Liberato direction is a direction typically given in cases which turn on the conflicting evidence of a prosecution witness and a defence witness. It is to the effect that, even if the jury does not positively believe the defence witness and prefers the evidence of the prosecution witness, they should not convict unless satisfied that the prosecution has proved the defendant's guilt beyond reasonable doubt. The appellant was convicted by a jury of one count of rape. The prosecution case at trial was dependent upon acceptance of the complainant's evidence. The appellant did not give, or call, evidence. A recorded interview between the appellant and the police, in which the appellant denied the offending, was in evidence in the prosecution case. The trial judge was not asked to give, and did not give, a Liberato direction. The appellant appealed against his conviction to the Court of Appeal, arguing that a miscarriage of justice occurred by reason of the trial judge's failure to give a Liberato direction. The Court of Appeal held that, as the appellant had not given sworn evidence before the jury, there was no need for the trial judge to give a Liberato direction. By grant of special leave, the appellant appealed to the High Court. A majority of the Court observed that in some cases it may be appropriate to give a Liberato direction, notwithstanding that the accused's conflicting version of events is not before the jury on oath. The majority explained that a Liberato direction serves to clarify and reinforce directions on the onus and standard of proof in cases in which there is a risk that the jury may be left with the impression that the evidence upon which the accused relies will only give rise to a reasonable doubt if they believe it to be truthful, or that a preference for the evidence of the complainant suffices to establish guilt. As such, a Liberato direction should be given in cases in which the trial judge perceives that there is a real risk that the jury might view their role in this way, whether or not the accused's version of events is on oath or in the form of answers given in a record of police interview. In dismissing the appeal, the majority of the High Court found that a Liberato direction was not needed in the circumstances of this case. The trial judge had given repeated, correct directions as to the onus and standard of proof. Nothing in the summing-up suggested that the jury might have been left with the impression that its verdict turned on a choice between the complainant's evidence and the appellant's account in the interview. In the result, the trial did not miscarry by reason of the omission of a Liberato direction.
+HIGH COURT OF AUSTRALIA 6 September 2017 AARON JOE THOMAS GRAHAM v MINISTER FOR IMMIGRATION AND BORDER PROTECTION; MEHAKA LEE TE PUIA v MINISTER FOR IMMIGRATION AND BORDER PROTECTION [2017] HCA 33 Today the High Court held by majority that s 503A of the Migration Act 1958 (Cth) ("the Act") is invalid to the extent that s 503A(2)(c) would apply to prevent the Minister for Immigration and Border Protection ("the Minister") from being required to divulge or communicate certain information to the High Court when the Court is exercising its jurisdiction under s 75(v) of the Constitution, or to the Federal Court when the Court is exercising its jurisdiction under s 476A(1)(c) and (2) of the Act, to review a purported exercise of power by the Minister under s 501, 501A, 501B or 501C of the Act, to which the information was relevant. Mr Graham is a New Zealand citizen who has resided in Australia since 1976. Mr Te Puia is also a New Zealand citizen and has resided in Australia since 2005. The Minister cancelled Mr Graham's visa and Mr Te Puia's visa under s 501(3) of the Act. Section 501(3) confers power on the Minister to cancel or refuse a visa if the Minister reasonably suspects that the person does not pass the character test set out in the Act, and if the Minister is satisfied that cancellation or refusal is in the national interest. In making each decision, the Minister considered information purportedly protected from disclosure by s 503A of the Act. Section 503A(2)(c) prevents the Minister from being required to divulge or communicate information to a court or a tribunal (among other bodies) when reviewing a purported exercise of power by the Minister under s 501, 501A, 501B or 501C of the Act, to which the information is relevant. Mr Graham brought proceedings in the High Court's original jurisdiction seeking writs of prohibition to prevent the Minister taking action on his decision to cancel his visa, and a writ of certiorari quashing the decision. Mr Te Puia sought to have the Minister's decision set aside. The parties stated a special case and questions of law arising for the opinion of the Full Court. The questions of law included whether s 503A(2) of the Act was invalid on the ground that it required a federal court to exercise judicial power in a manner inconsistent with the essential character of a court or the nature of judicial power, or on the ground that it so limited the right or ability of affected persons to seek relief under s 75(v) of the Constitution as to be inconsistent with the place of that provision in the constitutional structure. A majority of the High Court held that Parliament cannot enact a law which denies to the High Court when exercising jurisdiction under s 75(v) of the Constitution (or to another court when exercising jurisdiction conferred under s 77(i) or (iii) by reference to s 75(v)) the ability to enforce the legislated limits of an officer's power. The practical impact of s 503A(2)(c) was to prevent the High Court and the Federal Court from obtaining access to a category of information which was relevant to the purported exercise of the power of the Minister that was under review, and which was for that reason relevant to the determination of whether or not the legal limits of that power and the conditions of the lawful exercise of that power had been observed. To that extent, s 503A(2)(c) amounted to a substantial curtailment of the capacity of a court exercising jurisdiction under or derived from s 75(v) to discern and declare whether or not the legal limits of power conferred on the Minister by the Act have been observed. The High Court also held by majority that the decisions of the Minister to cancel Mr Graham's visa and Mr Te Puia's visa were invalid by reason that the Minister acted on a wrong construction of s 503A(2), as the Minister wrongly understood the provision to prevent the Minister from in any circumstances being required to divulge or communicate certain information including to a court engaged in judicial review of the impugned decisions.
+HIGH COURT OF AUSTRALIA Manager, Public Information 23 September 2009 ROBYN CHRISTINE FELLOWES MILITARY REHABILITATION AND COMPENSATION COMMISSION [2009] HCA 39 Under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) a person who suffers permanent impairment as a result of a work-related injury is entitled to receive compensation, the amount of which is determined under the Guide to the Assessment of the Degree of Permanent Impairment (the Guide). Where the person suffers a subsequent work- related injury which results in a similar kind and degree of permanent impairment, she is nonetheless entitled to compensation for the subsequent injury, the High Court held today. Robyn Fellowes enlisted in the Australian Army in November 1986. In 1986 she suffered a work-related injury to her left knee, and in 1987 she suffered a work-related injury to her right knee. Ms Fellowes claimed compensation for her injuries under the SRC Act, which at that time was the legislation under which the Military Rehabilitation and Compensation Commission (the Commission) assessed claims for compensation. The Commission determined that Ms Fellowes suffered a degree of permanent impairment assessed at 10% as a result of the injury to her left knee and paid her compensation in respect of the permanent impairment. However, although Ms Fellowes suffered a degree of permanent impairment assessed at 10% resulting from the right knee injury, the Commission determined that under the SRC Act and the Guide it was not liable to pay compensation for that permanent impairment because it had already compensated Ms Fellowes for a degree of permanent impairment assessed at 10%. A Commission review officer affirmed the determination on review, as did the Administrative Appeals Tribunal. Ms Fellowes appealed to the Federal Court of Australia against the Tribunal’s decision and a Full Court of the Federal Court dismissed her appeal. The High Court granted her special leave to appeal. Under section 24 of the SRC Act, where a work-related injury results in a permanent impairment, the Commission was liable to pay compensation in respect of the injury. No compensation was payable if the degree of permanent impairment resulting from the injury was less than 10%. Section 24(5) provides that the degree of permanent impairment resulting from the injury should be determined under the provisions of the Guide approved under section 28 of the SRC Act. The Guide contains Tables which set out criteria against which the degree of permanent impairment is assessed. Under Table 9.5 - “Limb Function – Lower Limb” - the criterion “[c]an rise to standing position and walk BUT has difficulty with grades and steps” described the impairment resulting from each of Ms Fellowes’ injuries. According to the Guide, this criterion was equivalent to a 10% degree of impairment. The issue for the Court to determine was whether separate compensation was payable in respect of each injury; or whether, having already been assessed as having a 10% permanent impairment under Table 9.5 as a result of the left knee injury, Ms Fellowes should be assessed as having a 0% impairment resulting from the right knee injury because the degree of her impairment under Table 9.5 had not increased beyond the level at which she had previously been assessed under that Table. A majority of the Court considered that permanent impairment resulting from an injury is to be identified by the effect of the injury on the functional capacity of a normal healthy person, and not by reference to the pre-existing capacities of the particular applicant for compensation. In the case of Ms Fellowes two separate injuries led to two separate losses of use of, or damage to, two separate parts of her body. The majority concluded that, as the impairment resulting from the injury to Ms Fellowes’ right knee satisfied the criterion “[c]an rise to standing position and walk BUT has difficulty with grades and steps” then, irrespective of the impairment assessment made in relation to her left knee injury, the degree of permanent impairment resulting from the right knee injury should be assessed as 10%. The High Court set aside the decisions of the Federal Court and the Administrative Appeals Tribunal and directed the Commission to determine the lump sum compensation amount payable to Ms Fellowes in respect of the right knee injury on the basis of her having a 10% degree of permanent impairment.
+HIGH COURT OF AUSTRALIA 12 November, 2003 PALIFLEX PTY LTD v CHIEF COMMISSIONER OF STATE REVENUE SOUTH SYDNEY CITY COUNCIL v PALIFLEX PTY LTD Land formerly owned by the Commonwealth became subject to New South Wales land tax and to council rates after its sale to Paliflex in 1998, the High Court of Australia unanimously held today. Paliflex bought the property in the Sydney harbourside suburb of Elizabeth Bay for $9 million. Paliflex challenged the charging of land tax and rates on the basis of section 52(i), which states that Federal Parliament has exclusive powers to make laws for the peace, order and good government of the Commonwealth with respect to places acquired by the Commonwealth for public purposes. Objections to two assessments for land tax were disallowed and the Supreme Court and a unanimous Court of Appeal dismissed Paliflex’s appeals. Paliflex appealed to the High Court. The Court unanimously dismissed Paliflex’s appeal. It held that the land ceased to have the character of a place acquired by the Commonwealth for public purposes on the registration of the transfer of title to Paliflex in 1998. In their application to the land on the dates of land tax imposition, the NSW Land Tax Act and Land Tax Management Act were not laws with respect to a place acquired by the Commonwealth for public purposes. In a related judgment, the High Court also unanimously held that the Local Government Act did not operate with respect to the land while it was a Commonwealth place. There was no invalidity when rates and waste management charges were imposed by the Council after Paliflex acquired the land.
+HIGH COURT OF AUSTRALIA 12 August 2015 FILIPPOU v THE QUEEN [2015] HCA 29 Today the High Court unanimously dismissed an appeal from the Court of Criminal Appeal of the Supreme Court of New South Wales ("the CCA") against the convictions and sentence imposed upon the appellant, Christopher Angelo Filippou, for two counts of murder. In 2010, the appellant shot and killed two brothers, Sam and Luke Willis. During a dispute, the brothers confronted the appellant outside his house. The appellant shot them at close range. The next day, the appellant admitted to police that he had killed the brothers. But he claimed that Luke Willis had pulled out the gun, and that he had taken the gun from Luke before shooting the brothers. The appellant was charged with two counts of murder. To each count, he pleaded not guilty of murder but guilty of manslaughter by reason of provocation. He was tried before a judge of the Supreme Court of New South Wales, sitting without a jury. The sole issue at trial was provocation. The prosecution alleged that the appellant, not one of the brothers, brought the gun. The judge found that the allegation was not proved beyond reasonable doubt. Nevertheless, the judge found that there was no reasonable possibility that the appellant had lost self-control before he shot the brothers, and therefore the partial defence of provocation failed. The appellant was found guilty and convicted of both counts of murder. In sentencing, the trial judge was neither satisfied beyond reasonable doubt that the appellant brought the gun nor satisfied on the balance of probabilities that one of the brothers brought the gun. The origin of the gun was, therefore, not proved to the standard required of either an aggravating factor or a mitigating factor in sentencing. Accordingly, the trial judge sentenced the appellant on the basis that the origin of the gun was unknown. On appeal, the CCA held that the trial judge erred in fact as to the sequence of events before the killings, and possibly erred in law in directing herself as to the requirements of the partial defence of provocation, but that there was no miscarriage of justice because the appellant had been proved guilty beyond reasonable doubt of murder. The CCA found no error in the appellant's sentence. By grant of special leave, the appellant appealed to the High Court against his convictions and sentence. The Court unanimously dismissed the appeal. In relation to the appeal against conviction, the plurality held that the alleged errors of the trial judge were either not made out or of no consequence, and therefore there was no miscarriage of justice that would warrant allowing the appeal and remitting the matter to the CCA. On the appeal against sentence, the Court held that the judge was not bound to adopt the view of the facts most favourable to the appellant, and was therefore correct in sentencing on the basis that the origin of the gun was unknown.
+HIGH COURT OF AUSTRALIA 8 March 2012 EQUUSCORP PTY LTD (FORMERLY EQUUS FINANCIAL SERVICES LTD) v EQUUSCORP PTY LTD (FORMERLY EQUUS FINANCIAL SERVICES LTD) v EQUUSCORP PTY LTD (FORMERLY EQUUS FINANCIAL SERVICES LTD) v CUNNINGHAM'S WAREHOUSE SALES PTY LTD [2012] HCA 7 Today the High Court, by majority, dismissed five appeals from the Court of Appeal of the Supreme Court of Victoria, which had held that Ian Alexander Haxton, Robert Samuel Bassat and Cunningham's Warehouse Sales Pty Ltd ("the respondents") were not liable to repay funds advanced under loans held by Equuscorp Pty Ltd ("Equuscorp"). Equuscorp was not a party to the original loan agreements with the respondents, but was assigned the loan agreements as an arms length financier. The respondents had invested in tax driven blueberry farming schemes promoted by Anthony and Francis Johnson ("the schemes"), by which members of the public could claim tax deductions for amounts invested in farming enterprises. The farming activities were conducted in north-east New South Wales. Under the schemes, each of the respondents executed a management agreement, by which Johnson Farm Management Pty Ltd, a company controlled by the Johnsons, agreed to perform the respondents' farm maintenance and harvesting obligations for an annual fee. Fees could be prepaid in whole or in part, and it was expected that these fees were tax deductible. Each of the respondents also entered into a loan agreement with Rural Finance Pty Ltd ("Rural"), a company also controlled by the Johnsons, to finance their prepayment of the management fees. Contrary to s 170(1) of the Companies Code ("the Code") of each respondent's home State, no valid prospectus in respect of the schemes had been registered when the respondents were offered what was a "prescribed interest" within the meaning of that section. None of the respondents received any proceeds from the sales of farm produce after 1 July 1991 and no repayments were made in reduction of the loans. In 1995, Equuscorp, which had previously granted loan facilities to the group of companies controlled by the Johnsons, sold the farm land as mortgagee in possession. Rural sold the loan agreements between itself and the respondents to Equuscorp in May 1997, under an asset sale agreement. Pursuant to this agreement, Rural executed a deed assigning to Equuscorp its interests under the loan agreements and the amounts of the debts owing ("the Deed"). The Deed was expressed to include an "absolute assignment" of the legal right to debts and interests under the loan agreements and "all legal and other remedies". Between November 1997 and March 1998, Equuscorp commenced proceedings against investors, including the respondents, under the loan agreements. Due to the breach of s 170(1) of the Code, the primary judge held that the loan agreements were unenforceable, on account of the illegality of the investment schemes. As an alternative to claiming under the loan agreements, Equuscorp sought restitution of the funds advanced as money had and received. In relation to that claim, the primary judge held that the respondents were liable to make restitution to Rural, and that the Deed assigned to Equuscorp the benefit of the respondents' liability to make restitution. On appeal, the Court of Appeal held that the right to claim for restitution had not been available to Rural and was therefore unavailable to Equuscorp, and, in any event, the Deed did not effectively assign such relief. Equuscorp appealed, by special leave, to the HIGH COURT OF AUSTRALIA. The scope of the appeals was limited to the availability of restitution; it was not disputed that the loan agreements were unenforceable for illegality. The High Court, by majority, dismissed the appeals, with the result that the respondents are not liable to repay Equuscorp the funds advanced under the loan agreements. Equuscorp characterised its claim as arising from a "failure of consideration", contending that Rural had advanced funds under the loans on the basis that the agreements were enforceable. As that state of affairs did not exist, it was contended that the respondents would be unjustly enriched if they did not make restitution. By majority, the High Court rejected this submission, holding that an entitlement to restitution from the respondents would stultify the policy and objects of the Code, being the protection of investors in the position of the respondents. There was therefore no cause of action available for Rural to assign to Equuscorp. The High Court held further that, if Rural had a right to restitution, such a right was capable of being assigned to Equuscorp. The decision of the Court was evenly divided on the question of whether the Deed assigned Equuscorp any right to restitution.
+HIGH COURT OF AUSTRALIA 6 May 2015 [2015] HCA 16 Today the High Court unanimously allowed an appeal from the Court of Criminal Appeal of the Supreme Court of South Australia ("the CCA"), quashed the appellant's conviction for murder and ordered a new trial. The appellant, an Aboriginal man, was tried before a jury for the murder of Andrew Roger Negre. The appellant, his de facto wife and a friend met the deceased, who was not previously known to them, at a hotel. When they left the hotel, all four went to the appellant's home to have some further drinks. It was open to the jury to find that the deceased made sexual advances towards the appellant at the appellant's home and these culminated in an offer, made in the presence of the appellant's de facto wife and others, to pay the appellant for sex. It was also open to find that the appellant killed the deceased in a state of loss of self-control following the making of that offer. In South Australia, the partial defence of provocation under the common law operates to reduce murder to manslaughter. The trial judge directed the jury that it was incumbent on the prosecution to prove that the appellant was not acting under provocation at the time of the killing. The appellant was convicted of murder. On appeal, a majority of the CCA held that the directions given to the jury on provocation were flawed in respects that amounted to a miscarriage of justice. However, the CCA concluded that the evidence taken at its highest could not satisfy the objective limb of the partial defence of provocation – that is, that no reasonable jury could fail to find that an ordinary person provoked to the degree that the appellant was provoked could not have so far lost his self-control as to form the intention to kill or inflict grievous bodily harm and to act as the appellant did. The CCA majority held that provocation should therefore not have been left for the jury's consideration and it followed that the erroneous directions had not occasioned a substantial miscarriage of justice. The CCA dismissed the appeal under the proviso to s 353(1) of the Criminal Law Consolidation Act 1935 By grant of special leave, the appellant appealed to the High Court. The Court unanimously allowed the appeal, holding that the trial judge was right to leave provocation to the jury. The High Court said there is a need for caution before a court determines as a matter of law that contemporary attitudes to sexual relations are such that conduct is incapable of constituting provocation. The gravity of the provocation must be assessed from the standpoint of the accused. The High Court said it was open to a reasonable jury to consider that an offer of money for sex made by a Caucasian man to an Aboriginal man in the latter's home and in the presence of his wife and family may have had a pungency that an unwelcome sexual advance made by one man toward another in other circumstances would not have. The assessment of the gravity of the provocation and its capacity to satisfy the objective limb of the test were issues for the jury. Accordingly, it was wrong for the CCA to dismiss the appeal under the proviso. The appropriate consequential order was for a new trial.
+HIGH COURT OF AUSTRALIA 8 August 2018 [2018] HCA 32 Today the High Court unanimously allowed an appeal from the Court of Criminal Appeal of the Supreme Court of New South Wales. Following a trial before a jury, the appellant was convicted of the murder of a 15-year-old school girl, TB. The appellant was 16 years old at the time of the offence. The offence took place shortly after TB alighted from her school bus as she was making her way home. TB suffered 48 stab wounds, including to the head, face, chest and back. In interviews, the appellant either denied involvement in the murder or stated he had no memory of it. No defence of mental illness or partial "defence" of substantial impairment by abnormality of mind was run at trial. At the sentencing hearing, psychiatric evidence was led by both the prosecution and the appellant. An expert called by the appellant opined that, at the time of the offence, the appellant had been in an early phase of schizophrenia. The evidence led by the prosecution considered that there might be another, non-psychotic but irrational, reason for the offence. The primary judge favoured the evidence adduced by the appellant, finding that it was probable that the appellant was acting under the influence of some psychosis at the time of the offence. The primary judge found that the evidence did not prove beyond reasonable doubt that the killing was intentional or premeditated, finding instead that there was "much irrationality about what occurred". The appellant was sentenced to a term of 22 years' imprisonment, with a non-parole period of 17 years. The appellant appealed to the Court of Criminal Appeal on the basis that the primary judge had erred in giving primary significance to the standard non-parole period in the determination of the appropriate sentence to be imposed. That error was conceded and the Court of Criminal Appeal's power to re-sentence was enlivened. At the hearing before the Court of Criminal Appeal the parties tendered further evidence on "the usual basis" – a reference to the practice of receiving new evidence on a sentence appeal to enable the Court to assess the offender's progress towards rehabilitation in the period since the original sentencing. The prosecution did not seek to disturb the primary judge's factual findings on the appeal. However, in re-sentencing the appellant, the Court of Criminal Appeal (by majority) proceeded on the footing that it was not bound by those findings and might take into account the new evidence in assessing the appellant's criminality for the offence. While noting that the primary judge's findings had been open, the Court of Criminal Appeal rejected them and found that the appellant intended to kill TB. In the circumstances, the Court of Criminal Appeal concluded that no lesser sentence was warranted and the appeal was dismissed. By grant of special leave, the appellant appealed to the High Court. The High Court found that the Court of Criminal Appeal had denied the appellant procedural fairness in failing to put him on notice that it was minded to depart from the primary judge's factual findings and give him an opportunity to deal with the matter by evidence or submissions. In the absence of such an indication, the High Court said it was reasonable for the appellant to act on the assumption that the prosecution's concession, that it did not seek to disturb the primary judge's findings, would be accepted and acted upon. The failure to accord procedural fairness to the appellant was held to amount to a miscarriage of justice. The appeal was allowed and the matter remitted to the Court of Criminal Appeal for consideration of the re-sentencing of the appellant.
+HIGH COURT OF AUSTRALIA 14 February 2014 MILNE v THE QUEEN [2014] HCA 4 Today the High Court unanimously allowed an appeal from a decision of the Court of Criminal Appeal of the Supreme Court of New South Wales which had upheld the conviction of Michael John Milne for money laundering under s 400.3(1) of the Criminal Code (Cth) ("the Code"). Mr Milne was the sole director and shareholder of Barat Advisory Pty Ltd. Barat Advisory owned shares in a company called Admerex Ltd. In February 2005, Mr Milne arranged for certain Admerex shares to be swapped for shares in another company, Temenos Group AG. He intended at that time that Barat Advisory would not declare, in its income tax return, the capital gain derived from that transaction. An intentional failure by Barat Advisory to declare the capital gain would be an offence against the Code. In November 2006, Mr Milne caused an income tax return to be lodged for Barat Advisory that did not declare the capital gain derived from the swap of Admerex shares. Mr Milne was convicted of money laundering under s 400.3(1) of the Code after a trial by jury in the Supreme Court of New South Wales. Section 400.3(1) makes it a crime for a person to deal with property worth $1,000,000 or more intending that it "will become an instrument of crime". An "instrument of crime" is defined in s 400.1(1) as property that is "used in the commission of, or used to facilitate the commission of, an offence". Mr Milne's appeal against that conviction to the Court of Criminal Appeal was dismissed. By special leave, he appealed to the High Court. He argued that the Court of Criminal Appeal erred in its interpretation of the definition of "instrument of crime" and wrongly held that the Admerex shares were capable of falling within that definition in the circumstances of the case. The question in this appeal was whether the Admerex shares upon which the capital gain was made could be said to have been intended to become an "instrument of crime". Allowing the appeal, the High Court held that s 400.3(1) requires that there be a dealing with the property and an intended future use of the property. On the Crown case, there could not be an intended future use of the Admerex shares after they were swapped for the Temenos shares. The Court quashed Mr Milne's conviction for money laundering and entered a verdict of acquittal on that charge.
+HIGH COURT OF AUSTRALIA 15 February 2023 STANLEY v DIRECTOR OF PUBLIC PROSECUTIONS (NSW) & ANOR [2023] HCA 3 Today, the High Court published its reasons for allowing, by majority, an appeal from a decision of the New South Wales Court of Appeal. The appeal concerned whether the sentencing judge failed to consider community safety, assessed by reference to the relative merits of full-time detention as against intensive correction in the community in addressing an offender's risk of reoffending, before declining to make an intensive correction order ("ICO") under the Crimes (Sentencing Procedure) Act 1999 (NSW) ("Sentencing Procedure Act"), and whether the failure to do so is a jurisdictional error of law. The appellant pleaded guilty in the Local Court of New South Wales to various contraventions of the Firearms Act 1996 (NSW), and was sentenced to an aggregate term of imprisonment of three years with a non-parole period of two years. She appealed to the District Court of New South Wales against the severity of the sentence. On appeal, conducted by way of a rehearing, the appellant asked the District Court to make an ICO that would have directed that her sentence of imprisonment be served "by way of intensive correction in the community". Section 66(1) of the Sentencing Procedure Act provides that community safety must be the "paramount consideration" when deciding whether to make an ICO. Section 66(2) provides that, when considering community safety, the court is to assess whether making the ICO or serving the sentence by way of full-time detention is more likely to address the offender's risk of reoffending. The District Court confirmed the original sentence and dismissed the appeal. The Court's reasons failed to make any express reference to, or findings in relation to, the assessment in s 66(2). Having no further appeal rights, the appellant sought relief in the nature of certiorari from the Court of Appeal quashing the decision of the District Court. The Court of Appeal concluded, by majority, that non-compliance with s 66(2) was not a jurisdictional error of law and that its jurisdiction consequently did not extend to the correction of such an error. The High Court, by majority, allowed the appeal. The Court held that the jurisdiction to make an ICO calls for a subsequent and separate decision to be made after a sentence of imprisonment is imposed. Properly construed, s 66 imposes a limit upon the jurisdiction of the sentencing court to decide whether a sentence of imprisonment is to be served by way of full-time detention or intensive correction in the community. The failure to consider the paramount consideration in s 66(1) by reference to the assessment of community safety in s 66(2) demonstrates a misconception of the function being performed when deciding whether to make an ICO by failing to ask the right question within jurisdiction. Such an error of law does not invalidate a sentence of imprisonment, but means that the court's discretion (and duty) in deciding whether or not to make an ICO has not been exercised. Here, the District Court failed to undertake the assessment required by s 66(2) and thereby fell into jurisdictional error.
+HIGH COURT OF AUSTRALIA 13 December 2017 DWN042 v THE REPUBLIC OF NAURU [2017] HCA 56 Today the High Court unanimously allowed an appeal from the Supreme Court of Nauru. The High Court held that the Supreme Court had failed to accord the appellant procedural fairness by failing to consider a notice of motion. In August 2013, the appellant, a Sunni Muslim of Pashtun ethnicity and a Pakistani national, arrived by boat at Christmas Island. In September 2013, he was transferred to the Republic of Nauru ("the Republic") under a Memorandum of Understanding reached between Australia and the Republic. In November 2013, the appellant attended a transfer interview. As part of that interview, a form was completed which was not signed by the appellant. In December 2013, the appellant applied to the Secretary of the Department of Justice and Border Control of Nauru ("the Secretary") for refugee status. As part of the application, the appellant claimed that he was at risk of arbitrary deprivation of life at the hands of the Taliban. His application was refused by the Secretary. The appellant applied unsuccessfully to the Refugee Status Review Tribunal ("the Tribunal") for review of the Secretary's determination. The Tribunal concluded that there was a less than reasonable possibility that the appellant would be targeted by the Taliban in the reasonably foreseeable future. The appellant appealed from the decision of the Tribunal to the Supreme Court. At the appeal hearing, counsel for the respondent sought to be heard on a motion to strike out grounds 1 and 2 of the amended notice of appeal. The primary judge struck out those grounds, with reasons to be given at a later date. Arguments proceeded on grounds 3 and 4, and judgment was reserved on those grounds. On 20 May 2016, the primary judge gave his reasons for striking out grounds 1 and 2, which both parties accepted were "plainly wrong". The appellant sought leave to appeal to the High Court from the interlocutory decision of the primary judge striking out grounds 1 and 2. In light of assurances given to the High Court by the respondent, and due to the interlocutory nature of the application, the High Court refused leave to appeal. On 6 February 2017, the day before final judgment on grounds 3 and 4 was to be delivered, the appellant filed a notice of motion to reinstate grounds 1 and 2, and to reopen the appeal to further amend those grounds. On 7 February 2017, the primary judge delivered final judgment without hearing that notice of motion. The appellant appealed to the High Court as of right on five grounds. The first ground alleged error by the primary judge in failing to consider the appellant's notice of motion. The second and third grounds concerned the allegedly unconstitutional nature of the appellant's detention at the time of the Tribunal hearing. The fourth ground alleged error by the primary judge in failing to conclude that the Tribunal erred in failing to consider part of the appellant's claim to complementary protection. The fifth ground alleged that the primary judge erred in failing to conclude that the Tribunal erred by relying on the appellant's unsigned and unsworn transfer interview form. The High Court dismissed four of the five grounds of appeal but held that, in all of the circumstances of the case, the Supreme Court's failure to consider the appellant's notice of motion involved a denial of procedural fairness. The High Court therefore allowed the appeal, set aside the order made by the Supreme Court and ordered that the matter be remitted to the Supreme Court of Nauru for reconsideration according to law.
+HIGH COURT OF AUSTRALIA 5 March 2014 ELECTRICITY GENERATION CORPORATION T/AS VERVE ENERGY v WOODSIDE ENERGY LTD & ORS; WOODSIDE ENERGY LTD & ORS v ELECTRICITY GENERATION CORPORATION T/AS VERVE ENERGY [2014] HCA 7 Today the High Court, by majority, held that Woodside Energy Ltd and other gas suppliers in Western Australia ("the Sellers") did not breach their obligation to use "reasonable endeavours" to make a certain quantity of gas available to Electricity Generation Corporation t/as Verve Energy ("Verve") under a long term gas supply agreement. The High Court dismissed Verve's appeal against a decision of the Court of Appeal of the Supreme Court of Western Australia and allowed an appeal from that decision brought by the Sellers. Verve, a statutory corporation, is the major generator and supplier of electricity to a large area in the southwest of Western Australia, including Perth. Verve purchased natural gas from the Sellers for use in its power stations. Under cl 3.3(a) of the agreement, the Sellers were obliged to use "reasonable endeavours" to make available to Verve a supplemental maximum daily quantity of gas ("SMDQ"), in addition to the gas they were ordinarily required to supply to Verve each day. In determining whether they were able to supply SMDQ, cl 3.3(b) provided that the Sellers could take into account "all relevant commercial, economic and operational matters". On 3 June 2008, an explosion occurred at a gas plant on Varanus Island in Western Australia. That explosion caused the cessation of gas production at the plant and effected a temporary reduction in the supply of natural gas to the Western Australian market, which led to demand exceeding supply. After the explosion, the Sellers informed Verve that they would not supply SMDQ to Verve under the agreement between June and September 2008. However, the Sellers offered to supply Verve with an equivalent quantity of gas for the period at a price higher than that applicable to SMDQ, which they were offering to other customers in the Western Australian market. Under protest, Verve agreed to purchase gas from the Sellers at the higher price, which was the prevailing market price. Verve commenced proceedings against the Sellers in the Supreme Court of Western Australia, arguing that the Sellers had breached their obligation to use "reasonable endeavours" to supply SMDQ to Verve. The primary judge found that the Sellers had not breached their obligation to use "reasonable endeavours" to supply SMDQ to Verve between June and September 2008. His Honour found that cl 3.3(b) of the agreement allowed the Sellers to take into account commercial matters, including the sale of gas to other customers and the profitability of such sales, in determining whether they were able to supply SMDQ to Verve. Verve successfully appealed to the Court of Appeal, which held, amongst other things, that the Sellers had breached their obligation under cl 3.3. By special leave, both Verve and the Sellers appealed to the High Court. The High Court, by majority, held that contractual obligations to use "reasonable endeavours" are not absolute, but are conditioned by what is reasonable in the circumstances. What was a "reasonable" standard of endeavours obliged by cl 3.3(a) of the agreement was conditioned by the Sellers' responsibilities to Verve in respect of SMDQ, as well as their express entitlement to take into account "relevant commercial, economic and operational matters". The Court held that the Sellers were not obliged to forego or sacrifice their business interests when using reasonable endeavours to make SMDQ available for delivery to Verve. Accordingly, cl 3.3 did not oblige the Sellers to supply SMDQ to Verve when the explosion at Varanus Island occasioned business conditions which led to a conflict between the Sellers' business interests and Verve's interest in obtaining SMDQ at the price stipulated in the agreement. As the Sellers' construction of the agreement was accepted by the Court, it was unnecessary to consider other issues raised by the appeals.
+HIGH COURT OF AUSTRALIA 6 September 2006 Public Information Officer MICHAEL McKINNON v SECRETARY, DEPARTMENT OF TREASURY No error of law was made by the Administrative Appeals Tribunal in rejecting Mr McKinnon’s claim that he is entitled to receive certain Treasury documents under the Freedom of Information Act, the High Court of Australia held today. In 2002, Mr McKinnon, The Australian newspaper’s FOI editor, requested material relating to “bracket creep” in the income tax system and to the First Home Owners Scheme, including possible fraudulent use of the scheme and the take-up of the $7,000 first home owners’ grant by wealthy individuals. Treasury provided lists of the documents falling within the scope of those requests. Of 40 related to bracket creep all but one were claimed to be exempt. Most of the 47 concerning the First Home Owners Scheme were claimed to be wholly or partly exempt. Under section 36(1) of the FOI Act, internal working documents are exempt from FOI access if disclosure would be contrary to the public interest. Such documents may include opinion, advice or recommendation in the course of, or for the purposes of, the deliberative processes involved in the functions of an agency or minister or of the Commonwealth Government. Section 36(3) provides that a minister, if satisfied that disclosure of such a document would be contrary to the public interest, may sign a certificate specifying the ground of public interest. An internal review upheld the decisions refusing access so Mr McKinnon applied to the AAT for review of those decisions. Section 58(5) of the FOI Act provides that the AAT shall determine whether there exist reasonable grounds for the claim that the disclosure of the document would be contrary to the public interest. Shortly before the case came before the AAT, Treasurer Peter Costello signed two certificates, one covering 36 of the 40 bracket creep documents and the other covering parts of or all of 13 of the 47 First Home Owners Scheme documents. Each certificate set out seven grounds which fell into two broad categories, one that disclosure would compromise confidentiality and candour and the other that disclosure would be likely to mislead due to the provisional nature of the documents and their use of jargon, acronyms and unexplained methodology. The AAT determined that two documents did not fall within section 36(1) but determined that reasonable grounds existed for the claim that disclosure of the other documents covered by the Treasurer’s certificates would be contrary to the public interest. The Full Court of the Federal Court dismissed an appeal. Mr McKinnon then appealed to the High Court. The Court, by a 3-2 majority, dismissed the appeal. Mr McKinnon had argued that section 58(5) of the FOI Act required the AAT to consider and balance competing facets of the public interest. However, the Court held that section 58(5) does not permit the AAT to substitute its opinion about whether the disclosure of particular documents would be contrary to the public interest or to assess for itself what the public interest required. There is no scope for a full merits review. Instead, section 58(5) requires the AAT to answer the question whether there are reasonable grounds for the claim that the disclosure would be contrary to the public interest. The Court held that the AAT had not committed error in this task and it had properly considered the documents in issue and all the grounds said to support the claim.
+HIGH COURT OF AUSTRALIA 3 February 2021 WESTPAC SECURITIES ADMINISTRATION LTD & ANOR V AUSTRALIAN SECURITIES AND INVESTMENTS COMISSION [2021] HCA 3 Today the High Court dismissed an appeal from a judgment of the Full Court of the Federal Court of Australia. The appeal concerned whether financial product advice given by the appellants (collectively, "Westpac") to members of superannuation funds of which they are trustees was "personal advice" within the meaning of s 766B(3)(b) of the Corporations Act 2001 (Cth) (the "Act"). During a campaign, Westpac had contacted members via phone and advised each to accept an offer to roll over their external superannuation accounts into their account with Westpac. Section 766B(3)(b) of the Act defines "personal advice" so as to include "financial product advice" given or directed to a person in circumstances where a reasonable person might expect the provider to have considered one or more of the person's objectives, financial situation and needs. Section 766B(4) defines "general advice" as financial product advice that is not personal advice. The Act imposes more onerous obligations on an adviser who provides personal advice, obligations Westpac accepted they had breached if they had provided personal advice. The Court held that Westpac had provided personal advice to the members during their campaign. "Considered" in s 766B(3) refers not to an active process of evaluation and reflection but rather means "took account of", consistent with its counterpoint in s 949A(2)(a) and the protective purpose of s 766B(3). The words "one or more of the person's objectives, financial situation and needs" in s 766B(3) contemplate that consideration be of at least one aspect of the client's objectives, financial situation or needs. A reasonable person in the position of each of the members called by Westpac might expect Westpac to have in fact taken into account at least one aspect of the member's objectives, financial situation or needs. This expectation was engendered by the fact that Westpac had elicited from each member, with whom Westpac had a pre-existing relationship, an indication of his or her personal objectives of saving on fees and improving the manageability of superannuation; proceeded to confirm the validity of the expressed objectives and appropriateness of the roll-over service to achieve them; and then segued into an offer to effect the roll-over. That the members' objectives were "generic" or generally applicable did not mean they ceased being personal objectives capable of giving rise to that expectation.
+HIGH COURT OF AUSTRALIA 20 October 2010 POLLOCK v THE QUEEN [2010] HCA 35 Today, the High Court quashed Andrew Murray Pollock's conviction for murder and ordered that a new trial be held. In November 2008, Mr Pollock was convicted in the Supreme Court of Queensland of murdering his father. The key issue at trial was whether the prosecution excluded the defence of provocation in s 304 of the Queensland Criminal Code. This was a retrial. His conviction for murder at an earlier trial was overturned on appeal to the Queensland Court of Appeal. The deceased died at his home early in the morning of 31 July 2004. Mr Pollock had spent the previous night before at the deceased's home drinking with a group of people. The group included the deceased, an ex-girlfriend of Mr Pollock and a female friend of hers, Mr Pollock's brother, and a woman that Mr Pollock had met earlier in the evening. During the evening and the early hours of the following morning several events occurred. Mr Pollock told his brother he had been sexually abused as a small boy by the deceased. Mr Pollock and the deceased, who had consumed a significant amount of alcohol, exchanged hostile words. One of the women present engaged in sexual intimacies with the deceased. This last event was said to have upset Mr Pollock significantly and he demanded that the woman and Mr Pollock's ex-girlfriend leave the premises. When the deceased was told of this demand, he became very angry and threatened to kill Mr Pollock. There was physical evidence pointing to a fight having taken place in Mr Pollock's bedroom. There were at least two versions of how the fight may have progressed. The first was that it started in the bedroom, proceeded outside and, during its course, Mr Pollock picked up a rock and struck the deceased. On another version of events, based on admissions made by Mr Pollock to his ex- girlfriend, the deceased had entered his bedroom, they wrestled, Mr Pollock injured the deceased's face and the deceased had gone into the bathroom. Mr Pollock banged on the bathroom door, the deceased jumped out of the bathroom window, Mr Pollock and the deceased fought outside, Mr Pollock picked up a rock and the deceased challenged him in strong language to use the rock. The judgment of the Court of Appeal setting aside Mr Pollock's earlier conviction had set out a seven-part test, any element of which it was said would, if proved beyond reasonable doubt, exclude the defence of provocation. The fifth element was that "the loss of self-control was not sudden". The seventh element was that, when Mr Pollock had killed, "there had been time for his loss of self-control to abate". At Mr Pollock's retrial in 2008, the jury was directed in terms of this test. The prosecution submitted that the interval while the deceased was in the bathroom made out the fifth and seventh elements of the seven-part test. The High Court held that the directions given to the jury wrongly invited them to exclude provocation as a partial defence available to Mr Pollock if they found that there had been any interval between the provocative conduct and the act causing death. The Court ordered that the appeal be allowed, that Mr Pollock's conviction be quashed and that a new trial be held.
+HIGH COURT OF AUSTRALIA 13 June 2018 AMACA PTY LIMITED v LATZ; LATZ v AMACA PTY LIMITED [2018] HCA 22 Today, the High Court published its reasons for orders it made on 11 May 2018, allowing in part, an appeal brought by Amaca Pty Limited ("Amaca") from a decision of the Full Court of the Supreme Court of South Australia, and dismissing an appeal brought by Mr Anthony Latz from that decision. Mr Latz is 71 years old and has been diagnosed with terminal malignant mesothelioma. At the time of his diagnosis, in October 2016, Mr Latz had retired from the public service and was receiving both a superannuation pension under Pt 5 of the Superannuation Act 1988 (SA) ("the superannuation pension") and an age pension under Pt 2.2 of the Social Security Act 1991 (Cth) ("the age pension"). Mr Latz commenced proceedings against Amaca, the manufacturer of asbestos fencing he had cut and installed some 40 years earlier. Mr Latz contended that, but for the negligence of Amaca, he would have continued to receive both the superannuation pension and the age pension for the remainder of his pre-illness life expectancy – around a further 16 years. The Full Court held, by majority, that the value of the superannuation pension and the age pension were compensable losses but reduced the damages award to take into account a reversionary pension payable to Mr Latz's partner on his death under s 38(1)(a) of the Superannuation Act. By grants of special leave, Amaca appealed the holdings of compensable loss in relation to both the superannuation pension and the age pension, and Mr Latz appealed the deduction of the reversionary pension. A majority of the High Court held that the Full Court was correct to include in Mr Latz's damages award an allowance for the superannuation pension that he would have received for the remainder of his pre-illness life expectancy, less the reversionary pension. The majority held that superannuation benefits are intrinsically linked to earning capacity and, like wages, are the product of exploitation of a claimant's "capital asset". On his retirement, Mr Latz had, as a result of the exploitation of his capital asset, a superannuation pension under the Superannuation Act. The value of the capital asset constituted by Mr Latz's rights under the Superannuation Act was diminished by the injury caused by Amaca. Had Mr Latz's illness presented itself before he retired, he would have been awarded the value of those rights. The majority held that there was no principled basis for denying Mr Latz that compensation just because the illness which occasioned his loss became apparent only after he commenced retirement. In valuing Mr Latz's loss, credit should be given for the reversionary pension as it is an offsetting or collateral benefit. The Court unanimously dismissed Mr Latz's appeal regarding the reversionary pension. The Court unanimously held that the loss of expectation of receiving the age pension is not compensable loss. The majority considered that, unlike the superannuation pension, it is not a capital asset. It is not a result of, or intrinsically connected to, a person's capacity to earn. It is also not a form of property. An allowance for the loss of expectation of receiving the age pension should not have been included in Mr Latz's damages award.
+HIGH COURT OF AUSTRALIA 10 December 2020 GERNER & ANOR v THE STATE OF VICTORIA [2020] HCA 48 Today the High Court published unanimous reasons for allowing the defendant's demurrer to the plaintiffs' claim in this proceeding on 6 November 2020. The demurrer concerned whether the Constitution implicitly guarantees a freedom of movement. The Public Health and Wellbeing Act 2008 (Vic) ("the Act") empowers authorised officers to exercise emergency powers when a state of emergency has been declared by the Minister for Health. A state of emergency was declared to exist in the whole of Victoria by reason of the serious risk to public health posed by the COVID-19 pandemic. Directions restricting the movement of people within Victoria ("the Lockdown Directions") had been made from time to time in exercise of emergency powers conferred by s 200(1)(b) and (d) of the Act, and remained in force on 6 November 2020. The plaintiffs sought declarations that s 200(1)(b) and (d) of the Act and the Lockdown Directions made thereunder were invalid as an infringement of a guarantee of freedom of movement said to be implicit in the Constitution. The defendant demurred to the plaintiffs' claim on the ground that the Constitution does not imply the freedom of movement for which the plaintiffs contended. The High Court held that no freestanding guarantee of freedom to move wherever one wishes for whatever reason is implicit in the Constitution on any of the three grounds contended for by the plaintiffs. First, the Court held that such a limitation on the legislative and executive power of the Commonwealth and States could not be implied from the fact of federation. Rather, the legal nature and effect of the federation established by the Constitution can be known only from the terms and structure of the Constitution itself; those terms and that structure provide no support for the limitation on power for which the plaintiffs contended. Secondly, the Court held that while legislated limits on movement that burden political communication may infringe the implied freedom of political communication, a limit on movement which does not have a political character will not. Thirdly, the Court held that s 92 of the Constitution does not imply a freedom of movement of the kind for which the plaintiffs contended. Such an implication would render otiose the delineation clearly drawn by the text of s 92 between protected interstate intercourse and intrastate intercourse which it does not purport to protect. It would also attribute to the text a meaning rejected by the framers of the Constitution.
+HIGH COURT OF AUSTRALIA Public Information Officer 16 July, 2003 STEPHEN ALFRED CATTANACH AND THE STATE OF QUEENSLAND v KERRY ANNE The High Court of Australia today dismissed an appeal by Dr Cattanach and the State of Queensland against an award of damages requiring them to pay the costs of bringing up an unplanned child conceived as a consequence of medical negligence. After having two daughters in 1985 and 1988, Mrs Melchior wanted no more children and consulted Dr Cattanach, an obstetrician and gynaecologist, about sterilisation. She told him that at age 15 her right ovary and fallopian tube had been removed during an appendectomy. When Dr Cattanach performed a tubal ligation on Mrs Melchior in 1992, what he saw was consistent with that history, so he attached a filshie clip to the left fallopian tube. In fact, only the right ovary had been removed, due to a blood clot, but the right fallopian tube had not. Mrs Cattanach became pregnant at age 44 and gave birth to a son on May 29, 1997. Experts for both sides were present at the birth and after a caesarean delivery her uterus was lifted out, showing the right fallopian tube still intact, although twisted out of its normal position. Mrs Cattanach appeared to have conceived by transmigration of an egg from the left ovary to the right fallopian tube. The Melchiors sued both Dr Cattanach and the State of Queensland, as the sterilisation was performed in the Redland Hospital, a public hospital in Brisbane. In a trial in the Queensland Supreme Court, Justice Catherine Holmes held Dr Cattanach was negligent in uncritically accepting Mrs Melchior’s assertion that her right fallopian tube had been removed, failing to inform Mrs Melchior of the risk of pregnancy if the tube was still there, and failing to inform her of a procedure that would reveal the existence of a functioning fallopian tube. But Justice Holmes did hold that Dr Cattanach’s failure to observe the right fallopian tube during the sterilisation procedure was not negligent. She awarded Mrs Melchior $103,672.39 in damages related to the pregnancy and birth, Mr Melchior $3,000 for loss of consortium as a result of his wife’s pregnancy, and Mr and Mrs Melchior jointly $105,249.33 for the costs of raising and maintaining a child to age 18. Dr Cattanach and the State appealed against the awarding of the third category of damages, but the Court of Appeal, by majority, dismissed their appeal. They then appealed to the High Court in relation to the third head of damages. By a 4-3 majority, the High Court also dismissed their appeal. The majority held that the costs of the child’s upbringing were directly connected to Dr Cattanach’s negligence and constituted legally recognisable damage to Mr and Mrs Melchior. The majority also held that the arrival of a healthy child could not be treated as a benefit to be offset against the financial burden suffered as a consequence of negligence.
+HIGH COURT OF AUSTRALIA 15 June 2022 HORE v THE QUEEN; WICHEN v THE QUEEN [2022] HCA 22 Today, the High Court unanimously allowed appeals from two judgments of the Court of Appeal of the Supreme Court of South Australia. The appeals concerned the operation of s 59 of the Sentencing Act 2017 (SA) ("the Act"), under which the Supreme Court of South Australia may authorise the release "on licence" (that is, with conditions attached) of a person subject to an order for indefinite detention. Under Div 5 of Pt 3 of the Act, s 57 provides that the Supreme Court may order that a person who has been convicted of certain sexual offences be detained in custody until further order. Section 58 empowers the Court to discharge the detention order and allow a person to be released from custody, and s 59 empowers the Court to release such a person on licence. Section 59(1a)(a) provides that a person cannot be released on licence unless the person satisfies the Court that the person is, relevantly, "both capable of controlling and willing to control [his or her] sexual instincts". "Willing" is not defined in the Act, but s 57(1) provides that, in that section, a person to whom s 57 applies "will be regarded as unwilling to control [his or her] sexual instincts if there is a significant risk that the person would, given an opportunity to commit a relevant offence, fail to exercise appropriate control of the person's sexual instincts". Before determining an application under s 59, the Court must obtain medical reports as to whether the person is "unwilling" to control his or her sexual instincts, and must consider, relevantly, a report from the Parole Board as to the probable circumstances of the person if he or she were to be released on licence. Each of the appellants is subject to a detention order made under the predecessor to s 57 of the Act. Each appellant applied for, and was refused, release on licence. The primary judge in each application held that "willing" in s 59(1a)(a) means the converse of "unwilling" in s 57(1) ("the first issue"). Each primary judge also held that the Supreme Court, in considering whether to release a person on licence, may not have regard to the likely effect of any conditions of release on licence upon the person's willingness to control his or her sexual instincts ("the second issue"). The Court of Appeal dismissed each appellant's appeal. On the first issue, the High Court held that the construction of "willing" adopted by the courts below was correct. There would be no point in requiring the Supreme Court to obtain and act upon the medical reports if those reports were not directed to the task required of the Court by s 59(1a). The term "significant risk" in the deemed meaning of "unwilling" in s 57(1) serves to establish the level of risk by reference to which the regime is engaged in s 57 or relaxed under s 58 or s 59. On the second issue, the High Court held that the courts below erred in construing s 59(1a)(a) as if it required a determination of "willingness" as a condition precedent to final consideration of the application for release on licence. The text of s 59(1) is clear that there is but one determination to be made, being whether the person should be granted release on licence. The context in which s 59(1a)(a) is found, in particular the requirement to consider the report from the Parole Board, confirms the relevance of the probable circumstances of the person to the determination contemplated by s 59(1a)(a). This conclusion was not inconsistent with the purpose of the amendments which introduced s 59(1a)(a).
+HIGH COURT OF AUSTRALIA 9 October 2019 PETER MANN & ANOR v PATERSON CONSTRUCTIONS PTY LTD [2019] HCA 32 Today the High Court unanimously allowed an appeal from a judgment of the Court of Appeal of the Supreme Court of Victoria concerning remuneration for work and labour done under a contract to which the Domestic Building Contracts Act 1995 (Vic) ("the Act") applied. Mr and Mrs Mann ("the Owners") entered into a "major domestic building contract" (as defined in the Act) with Paterson Constructions Pty Ltd ("the Builder") for the construction of two townhouses on the Owners' land at a fixed price. The contract provided for "progress payments" to be made at the completion of certain stages of the work. During the course of the work, the Owners orally requested 42 variations without giving any written notice in accordance with the contract and as required by s 38 of the Act, and the Builder carried out the requested variations, also without giving written notice as required by s 38. Section 38 relevantly provides that a builder is not entitled to recover any money in respect of a variation unless the builder has complied with the notice requirements of the section (s 38(6)(a)) or the Victorian Civil and Administrative Tribunal ("VCAT") is satisfied: that there are exceptional circumstances or that the builder would suffer significant or exceptional hardship; and that it would not be unfair to the building owner for the builder to recover the money (s 38(6)(b)). After an invoice claiming an amount for variations was raised, the Owners repudiated the contract, and the Builder accepted the repudiation as bringing the contract to an end. The Builder brought a claim in VCAT for damages for breach of contract or alternatively restitution for work and labour done and materials supplied. VCAT upheld the Builder's claim to a restitutionary remedy for an amount reflecting the value of the benefit conferred on the Owners, which was assessed as being the reasonable value of the work and materials requested and the benefit which the Owners received. That was considerably more than the Builder might have recovered had the claim been confined to one for breach of contract. VCAT held that s 38 of the Act did not apply to a claim for restitution. An appeal by the Owners to the Supreme Court of Victoria was substantially dismissed, and the Owners' further appeal to the Court of Appeal of the Supreme Court of Victoria was dismissed, on essentially similar bases. By grant of special leave, the Owners appealed to the High Court. The High Court unanimously held that s 38 of the Act excluded the availability of restitutionary relief for variations implemented otherwise than in accordance with that section, and thus that the Builder's only right of recovery for variations would be under s 38(6)(b) of the Act for the amounts prescribed by s 38(7). As to the remainder of the Builder's claim not in respect of variations, the Court unanimously held: (i) that the Builder's only right to recovery in respect of any stage of the contract completed by the time of termination was for the amount due under the contract on completion of that stage and any damages for breach of contract; and (ii) that, in respect of any uncompleted stage of the contract, the Builder was entitled to claim damages for breach of contract. A majority of the Court further held: (iii) that the Builder was entitled, in the alternative, to recover restitution for work and labour done and materials supplied in respect of uncompleted stages (other than for variations); but (iv) that the amount so recoverable should not in this case exceed a fair value calculated in accordance with the contract price or the appropriate part of the contract price.
+HIGH COURT OF AUSTRALIA 14 August 2013 LEGAL SERVICES BOARD v SIMON GILLESPIE-JONES [2013] HCA 35 Today the High Court unanimously allowed an appeal from a decision of the Court of Appeal of the Supreme Court of Victoria, which had held that the respondent was entitled to make a claim for compensation against the Legal Practitioners Fidelity Fund ("the Fidelity Fund"). The respondent, a barrister, was briefed by a solicitor to appear for a client in criminal proceedings. The client made a series of payments to the solicitor on account of his legal costs, including barristers' fees. However, the solicitor misappropriated most of this money, such that the amount remaining was insufficient to meet the respondent's fees. The respondent made a claim against the Fidelity Fund, which is maintained by the Legal Services Board ("the Board") under the Legal Profession Act 2004 (Vic) ("the Act"). The respondent argued that his claim should be allowed under Pt 3.6 of the Act, on the basis that he had suffered a pecuniary loss as a result of the solicitor's default. The default was said to be that the solicitor had failed to pay or deliver trust money to the respondent. The Board rejected the respondent's claim. The respondent then successfully appealed to the County Court of Victoria. The County Court held that the respondent had suffered a pecuniary loss as a result of the solicitor's default, constituted by the solicitor's failure to pay or deliver trust money to the respondent in accordance with a direction given by the client. The County Court's decision was upheld by the Court of Appeal, which would have allowed the respondent's claim on the basis that the solicitor had failed to pay him money to which he was beneficially entitled. By special leave, the Board appealed to the High Court. The High Court allowed the Board's appeal. The joint reasons of French CJ, Hayne, Crennan and Kiefel JJ held that the respondent's claim against the Fidelity Fund should be disallowed, because he had not suffered a relevant pecuniary loss. There can be no failure to pay or deliver trust money unless there is an instruction to the solicitor to pay or deliver the money, and it is not complied with. The County Court had not made any finding that the instructions the client gave to the solicitor amounted to an instruction to pay the respondent. That Court's findings were not challenged in the Court of Appeal, and could not be revisited by the High Court. Therefore, the joint reasons held that it could not be said that the solicitor had failed to pay or deliver trust money to the respondent. In the reasons of Bell, Gageler and Keane JJ, the respondent had no entitlement to, or expectation of, payment of trust money and suffered no loss by reason of the failure of the solicitor to pay or deliver trust money to him.
+HIGH COURT OF AUSTRALIA 10 March 2005 RYAN D’ORTA-EKENAIKE v VICTORIA LEGAL AID AND IAN DENIS McIVOR Declining to depart from a 1988 decision of the Court, the High Court of Australia today upheld advocates’ immunity from lawsuits for negligence in the conducting of cases and in making decisions about such conduct. In 1996 Mr D’Orta-Ekenaike was charged with rape. He sought legal assistance from Victoria Legal Aid which retained Mr McIvor as his barrister. At the committal proceeding Mr D’Orta- Ekenaike entered a plea of guilty, but on arraignment in the County Court he pleaded not guilty. His guilty plea was led in evidence during the trial. He was convicted and sentenced to three years’ jail. The Victorian Court of Appeal allowed an appeal and ordered a retrial on the ground that the trial judge had failed to give proper directions about the use the jury might make of the original guilty plea. At the retrial evidence of the guilty plea was not admitted and Mr D’Dorta-Ekenaike was acquitted. He then sued VLA and Mr McIvor who had allegedly advised him during conferences before the committal that he had no defence to the rape charge, a guilty plea would earn him leniency. Mr D’Orta-Ekenaike alleged that undue pressure was exerted upon him by both Mr McIvor and Robyn Greensill from the VLA. He claimed that he suffered loss and damage including being jailed between his conviction and the quashing of that conviction, lost income, psychotic illness, and the expense of the appeal, retrial and the civil proceeding. Judge Thomas Wodak in the County Court ordered a permanent stay of proceedings. The Court of Appeal refused leave to appeal. In the High Court, Mr D’Orta-Ekenaike’s application for special leave to appeal was argued as though on appeal. The Court unanimously granted special leave but by a 6-1 majority dismissed the appeal. It declined to depart from the Court’s 1988 decision in Giannarelli v Wraith that an advocate cannot be sued by a client for negligence in the conduct of a case or in out-of-court work affecting the conduct of the case. The Court held that the central concern is the finalisation of controversies which are not to be reopened except in a few narrowly defined circumstances. The judicial system’s concerns are wider than the concerns of the particular parties to the controversy in question. Restraints on the nature and availability of appeals, rules about what points may be taken on appeal and rules about when fresh evidence may be called are all based on the finality principle. Other rules, affecting persons other than the parties in a case, including immunity from suit, are also justified by the need for finality in judicial decisions. Along with advocates, judges, witnesses and jurors enjoy immunity from suit. The Court held that the immunity also extends to advice leading to a decision (such as a guilty plea) which affects the conduct of a case in court.
+HIGH COURT OF AUSTRALIA 20 June 2018 CRAIG WILLIAM JOHN MINOGUE v STATE OF VICTORIA [2018] HCA 27 Today the High Court held, in answer to questions stated in a special case, that s 74AAA of the Corrections Act 1986 (Vic) ("the Act") does not, on its proper construction, apply to the plaintiff, In 1988 the plaintiff was sentenced by the Supreme Court of Victoria to a term of life imprisonment with a non-parole period of 28 years for the murder of Angela Rose Taylor, a constable in the Victorian police force. Constable Taylor was killed following the detonation of an explosive device contained in a car parked in the vicinity of a number of public buildings in Melbourne, including the Russell Street Police Complex and the Melbourne Magistrates' Court building. The plaintiff's non-parole period expired on 30 September 2016 and, on 3 October 2016, he submitted an application for parole. On 20 October 2016, the Adult Parole Board of Victoria ("the Board") decided to proceed with parole planning to consider the plaintiff's suitability for release on parole. On 14 December 2016, s 74AAA was inserted into the Act. Section 74AAA relevantly provides that the Board must not make a parole order in respect of a prisoner "convicted and sentenced" to a term of imprisonment "for the murder of a person who the prisoner knew was, or was reckless as to whether the person was, a police officer" unless the Board is satisfied that the prisoner is in imminent danger of dying or is seriously incapacitated. On 20 December 2017, s 127A was inserted into the Act. Section 127A relevantly provides that s 74AAA applies regardless of whether, before the commencement of s 74AAA, the prisoner had become eligible for parole, the prisoner had taken any steps to ask the Board to grant parole, or the Board had begun consideration of whether the prisoner should be granted parole. Before s 127A was enacted, the plaintiff commenced proceedings in the original jurisdiction of the High Court. After commencing his proceedings, the plaintiff asked the Board not to take any further action in relation to his application for parole until the determination of these proceedings. The Board acceded to that request. In answering questions stated in the special case, the High Court held that s 74AAA, on its proper construction, applies to a prisoner sentenced on the basis that the prisoner knew, or was reckless as to whether, the person murdered was a police officer. The plaintiff was not sentenced on that basis. The remarks of the sentencing judge contain no reference to the plaintiff's state of mind concerning the identity of the police constable who was killed. The offence committed was indiscriminate and no particular person or class of persons was targeted. Therefore, the Court concluded that s 74AAA does not apply to the plaintiff.
+HIGH COURT OF AUSTRALIA 6 October 2021 G CHARISTEAS v Z V CHARISTEAS & ORS [2021] HCA 29 Today the High Court unanimously allowed an appeal from a judgment of the Full Court of the Family Court of Australia dismissing an appeal from the Family Court of Western Australia. The questions for determination were whether the Family Court's orders should be set aside on the ground of apprehended bias and whether the Family Court had power to make orders for the settlement of property under s 79 of the Family Law Act 1975 (Cth) ("the Act"). The appellant ("the husband") and the first respondent ("the wife") married in 1979 and separated in 2005. In 2006, the husband commenced proceedings under s 79 of the Act for orders settling the property of the parties to the marriage. In 2011, Crisford J of the Family Court made orders for the settlement of property ("the 2011 Property Orders"), which included orders providing for the early vesting of an identified trust ("the Early Vesting Orders"). On appeal, a Full Court of the Family Court set aside the Early Vesting Orders but did not make any consequential orders, whether remitting that issue for rehearing or otherwise. In 2015, Walters J of the Family Court ("the trial judge") held that the 2011 Property Orders were not final orders and the Court retained power to make orders under s 79 of the Act. On 12 February 2018, the trial judge purported to make orders under s 79 of the Act which did not set aside or vary the 2011 Property Orders but were inconsistent with them ("the 2018 Property Orders"). In May 2018, in response to an enquiry from the husband's solicitor, the wife's barrister disclosed that, between March 2016 and February 2018, she had communicated with the trial judge in person, by telephone and by text, although she said they had not discussed the substance of the case. The communications took place otherwise than in the presence of or with the previous knowledge and consent of the other parties to the litigation. The husband appealed the 2018 Property Orders on the grounds of apprehended bias and absence of power to make property settlement orders. By majority, the Full Court dismissed the appeal. The High Court held that the 2018 Property Orders should be set aside on the ground of apprehended bias. The apprehension of bias principle is that a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. Once a case is underway or about to get underway, ordinary judicial practice is that, save in the most exceptional of cases, there should be no communication or association between the judge and one of the parties (or the legal advisers or witnesses of such a party), otherwise than in the presence of or with the previous knowledge and consent of the other party. There were no exceptional circumstances in this case. The communications should not have taken place. A fair-minded lay observer would reasonably apprehend that the trial judge might not bring an impartial mind to the resolution of the questions his Honour was required to decide. The High Court held that the matter must be remitted for rehearing before a single judge of the Family Court and that the Family Court retained power under s 79 of the Act to deal with the property the subject of the Early Vesting Orders.
+HIGH COURT OF AUSTRALIA Public Information Officer 14 June 2007 JOHN FAIRFAX PUBLICATIONS PTY LTD AND MATTHEW EVANS v ALEKSANDRA GACIC, LJILJANA GACIC AND BRANISLAV CIRIC The jury in proceedings in a defamation action found that a newspaper had published in a review of the Coco Roco restaurant that its food was unpalatable and the service sometimes bad. However the jury found that the review did not have the tendency to injure the restaurant owners’ business reputation. The NSW Court of Appeal found that the jury’s decision was unreasonable and directed an answer in favour of the restaurant owners on the question put to the jury. The High Court of Australia today upheld the Court of Appeal’s decision. The Coco Roco restaurant complex – comprising the fine dining Coco and the Roco bistro – opened at King Street Wharf at Darling Harbour in Sydney in 2003 after a $3 million fitout. After two dinners at Coco, Sydney Morning Herald restaurant critic Matthew Evans gave it a score of nine out of 20 and said Coco was expensive, with many unpalatable flavours, a menu flawed in concept and execution, and good and bad service, and that the best thing was the view. Coco Roco subsequently closed. The owners sued The Sydney Morning Herald’s publisher, John Fairfax Publications, and Mr Evans for defamation. Before the trial of any issue by a jury, the NSW Supreme Court ruled that four imputations could be drawn from the review and they were reasonable capable of bearing a defamatory meaning: (a) Coco Roco’s owners sell unpalatable food; (b) they charge excessive prices; (c) they provide some bad service; and (d) they are incompetent as restaurant owners because they employ a chef who makes poor-quality food. At the trial, the jury found that imputations (a) and (c) were conveyed but were not defamatory and (b) and (d) were not conveyed. The restaurant owners appealed to the Court of Appeal in respect of the findings on imputations (a), (c) and (d), arguing that the jury’s answers were unreasonable. The Court of Appeal upheld the appeal, finding for the owners on (a) and (c) and remitting (d) for reconsideration by a jury. Fairfax and Mr Evans appealed to the High Court in relation to imputations (a) and (c), arguing that the Court of Appeal exceeded its powers under section 108(3) of the Supreme Court Act. This provides that where it appears to the Court of Appeal that upon the evidence a party is entitled as a matter of law to a verdict in the proceedings the Court may direct a verdict and give judgment accordingly. The Court of Appeal concluded that no reasonable jury, properly instructed, could find that imputations (a) and (c) were not defamatory. The High Court, by a 6-1 majority, dismissed the appeal and upheld the decision of the Court of Appeal. It held that the Court of Appeal properly exercised the power conferred by section 108(3) of the Act to correct unreasonable jury verdicts. As well as the defamatory nature of imputation (d), further litigation will determine any defences available to Fairfax and Mr Evans and questions of damages.
+HIGH COURT OF AUSTRALIA 6 December 2017 ALDI FOODS PTY LTD v SHOP, DISTRIBUTIVE & ALLIED EMPLOYEES ASSOCIATION & ANOR [2017] HCA 53 Today the High Court unanimously allowed, in part, an appeal from the Full Court of the Federal Court of Australia. The High Court held that the Full Court erred in holding that the Fair Work Commission ("the Commission") cannot approve an enterprise agreement under s 186(2)(a) of the Fair Work Act 2009 (Cth) ("the Act") for a new enterprise where the agreement is made with existing employees of an employer who have agreed, but have not yet started, to work as employees in the new enterprise. The High Court further held, however, that the Full Court was correct to hold that the Commission fell into jurisdictional error in being satisfied that the enterprise agreement in this case passed the "better off overall test" ("the BOOT") for the purposes of s 186(2)(d) of the Act. In early 2015, ALDI Foods Pty Ltd ("ALDI") was in the process of establishing a new undertaking in Regency Park in South Australia. It sought from its existing employees in its stores in other regions expressions of interest to work in the Regency Park region. Seventeen employees subsequently accepted offers of employment in the new undertaking. ALDI then commenced a process of bargaining with those employees, without the involvement of any union. That process culminated in the making, under s 172(2)(a) of the Act, of the ALDI Regency Park Agreement ("the Agreement"), in favour of which 15 employees voted. At the time the vote was conducted, the Distribution Centre at Regency Park was still under construction, and trading in the region had not commenced. ALDI applied to the Commission for approval of the Agreement, and the Agreement was approved. Both the Shop, Distributive & Allied Employees Association ("the SDA") and the Transport Workers' Union of Australia filed notices of appeal to the Full Bench of the Commission, contending that the Agreement should have been made as a "greenfields agreement" under s 172(2)(b) of the Act, because ALDI was establishing a new enterprise and had not employed in that new enterprise any of the persons who would be necessary for the normal conduct of that enterprise. It was also argued that the Agreement did not pass the BOOT. The Full Bench rejected both contentions, and dismissed the appeal. The SDA applied to the Full Court for judicial review. Granting the relief sought, the Full Court held by majority, first, that it was not open for the Commission to be satisfied that the Agreement had been genuinely agreed to by the employees "covered by" the agreement in accordance with s 186(2)(a) of the Act, as no employee could be covered until the Agreement came into operation, and second, that the Commission had erred in considering whether the employees were "no worse off", rather than applying the BOOT. By grant of special leave, ALDI appealed to the High Court. The High Court held that the Full Court's reasoning on the coverage issue could not accommodate the distinction expressly drawn by ss 52 and 53 of the Act between coverage and application, and could not stand with the plain and ordinary meaning of s 172(2) and (4), which contemplate the making of non-greenfields agreements with persons already employed. It was held that, once the Agreement was made, the employees were accurately described as being covered by it, even though it did not yet apply to them in the sense of being in operation so as to create rights and liabilities in relation to work actually performed under it. On the BOOT issue, the High Court upheld the Full Court's conclusion, holding that the Full Bench did not engage in any comparison between the Agreement and the modern award, but rather treated a clause in the Agreement granting employees a right to payment of any shortfall in what they would be entitled to under the modern award as showing that the Agreement passed the BOOT. The High Court accordingly allowed the appeal in part, and issued a writ of mandamus requiring the Full Bench to determine the appeal against the Commission's decision according to law.
+HIGH COURT OF AUSTRALIA 1 December 2010 COMMISSIONER OF STATE TAXATION v CYRIL HENSCHKE PTY LTD & ORS [2010] HCA 43 Today the High Court held that a deed of retirement ("the Deed") giving effect to the retirement of one partner from a partnership that carried on a business, which was to be carried on by the other partners after her retirement, attracted stamp duty under the Stamp Duties Act 1923 (SA) ("the Act"). A winemaking business trading as CA Henschke & Co was conducted, prior to execution of the Deed, as a partnership ("the Partnership") comprising four partners. The Deed provided for the retirement of one partner from the Partnership, and stated that the remaining partners "shall continue the Partnership under the Partnership Agreement (without purchasing [the retiring partner's] interest in the Partnership and without the Partnership being dissolved)". It provided for a payment to the retiring partner "in full satisfaction of all claims she has against the Partnership", and a release and indemnity by the remaining partners in favour of the retiring partner. The Deed purported to reallocate the interests in the Partnership to the remaining partners. Under the Act, stamp duty is charged on a conveyance or transfer on sale of any property. A conveyance is defined to include every instrument "by which or by virtue of which or by the operation of which … any … personal property or any estate or interest in any such property is assured to, or vested in, any person". The Treasurer of South Australia upheld an assessment of stamp duty on the Deed made by the Commissioner of State Taxation, which had determined that the Deed conveyed the retiring partner's interest in the partnership property to the remaining partners. In the South Australian Supreme Court, the trial judge upheld the Commissioner's assessment, but this was reversed on appeal to the Full Court of the Supreme Court. The Full Court considered that the effect of the Deed was not to convey the retiring partner's interest but rather to convert her existing partnership interest (an equitable chose in action) into an entitlement to payment of a specific amount. It held that as her interest was not transferred, the transaction was not, and did not effect, a conveyance on sale. The High Court unanimously held that the Deed had the legal effect of dissolving the Partnership, and constituting a new partnership between the remaining partners. The Court accepted that a partner's interest in partnership assets is an equitable chose in action. The Deed extinguished the retiring partner's existing equitable chose in action against the remaining partners, and created a new partnership through which equitable choses in action representing the remaining partners' "reallocated" partnership interests were vested. On this basis, the Deed was a conveyance and attracted stamp duty under the Act. The respondents were ordered to pay the Commissioner's costs.
+HIGH COURT OF AUSTRALIA 6 February 2013 GOOGLE INC v AUSTRALIAN COMPETITION AND CONSUMER COMMISSION [2013] HCA 1 Today the High Court unanimously allowed an appeal from a decision of the Full Court of the Federal Court of Australia, in which it was found that Google Inc ("Google") had engaged in misleading or deceptive conduct contrary to s 52 of the Trade Practices Act 1974 (Cth) ("the Act") by displaying certain internet search results. The Google search engine displayed two types of search results in response to a user's search request: "organic search results" and "sponsored links". Organic search results were links to web pages that were ranked in order of relevance to the search terms entered by the user. A sponsored link was a form of advertisement. Each sponsored link was created by, or at the direction of, an advertiser, who paid Google to display advertising text which directed users to a web site of the advertiser's choosing. The Australian Competition and Consumer Commission ("the ACCC") claimed that particular sponsored links displayed by the Google search engine between 2005 and 2008 had conveyed misleading and deceptive representations. By publishing or displaying those search results, Google was said to have contravened s 52 of the Act, which provided that a corporation shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive. At first instance, the primary judge found that although the impugned representations were misleading and deceptive, those representations had not been made by Google. Ordinary and reasonable members of the relevant class of consumers who might be affected by the alleged conduct would have understood that sponsored links were advertisements and would not have understood Google to have endorsed or to have been responsible in any meaningful way for the content of those advertisements. The ACCC successfully appealed to the Full Court of the Federal Court, which unanimously found that Google had itself engaged in misleading or deceptive conduct by publishing and displaying the sponsored links. By special leave, Google appealed to the High Court. The High Court unanimously allowed the appeal. Google did not create the sponsored links that it published or displayed. Ordinary and reasonable users of the Google search engine would have understood that the representations conveyed by the sponsored links were those of the advertisers, and would not have concluded that Google adopted or endorsed the representations. Accordingly, Google did not engage in conduct that was misleading or deceptive.
+HIGH COURT OF AUSTRALIA 14 November 2012 BRADLEY DOUGLAS COOPER v THE QUEEN [2012] HCA 50 Today a majority of the High Court allowed an appeal by Mr Bradley Douglas Cooper against the decision of the Court of Criminal Appeal of the Supreme Court of New South Wales to uphold his conviction for murder. The appellant was charged with murder. Post mortem examination showed that the deceased had four wounds to the head. At trial, the prosecution presented two alternative cases. The prosecution alleged that either the appellant alone hit and killed the deceased or the appellant's partner struck and killed the deceased as part of a joint criminal enterprise with the appellant to kill the deceased. The appellant was convicted of murder. The appellant appealed to the Court of Criminal Appeal of the Supreme Court of New South Wales. That Court held that there had been an error in the trial because there was no evidence of a joint criminal enterprise, and so the jury should not have been directed to consider that alternative case. But the Court of Criminal Appeal upheld the appellant's conviction on the basis that the error did not result in a "substantial miscarriage of justice" under s 6(1) of the Criminal Appeal Act 1912 (NSW). By special leave, the appellant appealed to the High Court. A majority of the Court allowed the appeal. The majority concluded that, on the evidence admitted at trial, an appellate court could not be satisfied beyond reasonable doubt that only one weapon had been used or that the appellant struck the blow which caused the deceased's death. An appellate court could not therefore be satisfied beyond reasonable doubt that the appellant was guilty of murder. The Court quashed the appellant's conviction and ordered a retrial.
+HIGH COURT OF AUSTRALIA 22 May 2007 Public Information Officer STATE OF NEW SOUTH WALES v GEMMA FAHY The State of New South Wales was not liable in damages for negligence when a police officer was left unassisted with a seriously injured man and later developed post-traumatic stress disorder, the High Court of Australia held today. Gemma Fahy was 25 and had been a police constable for three-and-a-half years when she and her colleague, Senior Constable Steve Evans, were called to a hold-up at the Edensor Park Shopping Centre in western Sydney on 25 August 1999. The video store proprietor had been stabbed and had walked to a nearby medical centre. Ms Fahy went into the treatment room but Mr Evans did not. The victim was drenched in blood and a doctor was dealing with a stab wound to the chest. She asked what she could do to help and he asked her to check the victim’s left side as he was complaining of pain. The victim had a deep laceration from his armpit to his waist and was bleeding profusely. Ms Fahy tried to stop the bleeding by applying medical pads and holding the wound together. At the same time she used her radio to call for an ambulance and to relay descriptions of the two assailants. The victim, who survived the attack, gave her messages for his wife and children and she kept him talking. Ms Fahy then assisted the ambulance officers. The senior officer on the scene, Inspector Alan Whitton, looked in but left immediately and later told her to put hat on as the media were there. She then went to inform the victim’s wife, who collapsed, then returned to help secure the scene from contamination until Inspector Whitton ordered her home because he was not going to pay her overtime. In 2001, Ms Fahy succeeded in an action in the NSW District Court, and was awarded damages for negligence of $469,893. She claimed she had developed post-traumatic stress disorder due to being unreasonably left in a traumatic situation without the support of a fellow police officer, and her injury was in consequence of a breach of duty by her employer to take reasonable care for her safety. Ms Fahy had attended an unusually high number of fatalities but said she always coped because a partner was with her and they could share the tasks. An appeal by the State to the NSW Court of Appeal failed on liability but succeeded on the question of damages. The Court of Appeal remitted the case back to the District Court to reassess damages in light of Ms Fahy’s failure to take prescribed anti-depressants, but the State appealed to the High Court in relation to liability. The Court, by a 4-3 majority, allowed the appeal. The majority held that Ms Fahy had failed to establish that the State breached its duty of care and that it was not sufficient merely to allege that the State should have instructed police officers working in pairs that they should whenever possible remain together and that they should provide psychological support to each other during traumatic incidents. Many circumstances would require them to separate and the support they could give one another varies with the individuals concerned and the situation. An obligation to stay together would create tension between an officer’s duties at a crime scene – which are mandated in the Police Service Act – and the need to protect a fellow officer. The majority held that the system of work was not deficient.
+HIGH COURT OF AUSTRALIA 4 May 2022 CITTA HOBART PTY LTD & ANOR v CAWTHORN [2022] HCA 16 Today, the High Court allowed an appeal from the Full Court of the Supreme Court of Tasmania. The primary issue in the appeal concerned whether the Anti-Discrimination Tribunal had jurisdiction under the Anti-Discrimination Act 1998 (Tas) ("the State Act") to determine a complaint made by the respondent that he had been discriminated against by the appellants, in circumstances where the appellants had asserted that parts of the State Act were inconsistent with the Disability Discrimination Act 1992 (Cth) ("the Commonwealth Act") and a standard made under the Commonwealth Act, and were therefore inoperative by force of s 109 of the Constitution. This issue arose against the background of the High Court's decision in Burns v Corbett (2018) 265 CLR 304, which held that a State Parliament lacks legislative capacity to confer on a State tribunal that is not a court of a State within the meaning of the Constitution judicial power with respect to any matter of a description in ss 75 and 76 of the Constitution including, relevantly, ss 76(i) (matters arising under the Constitution) and 76(ii) (matters arising under a Commonwealth law). The first appellant is undertaking the development of Parliament Square in Hobart on land owned by the second appellant. When the development is completed, one of the entrances will provide access only by way of stairs. The respondent, who relies on a wheelchair for mobility, made a complaint to the Tribunal that this entrance constituted direct and indirect disability discrimination under certain provisions of the State Act. The appellants, as part of their defence ("the constitutional defence"), argued that these provisions were inconsistent with the federal scheme for disability access and that, as a result of this inconsistency, those provisions of the State Act were rendered inoperative because of s 109 of the Constitution. Applying Burns v Corbett, the Tribunal formed the opinion that if it determined the complaint it would be exercising judicial power and, as it was not a court of a State, it did not have jurisdiction to hear the matter because the constitutional defence arose under the Constitution or arose under a law made by the Commonwealth Parliament and was "not colourable". Accordingly, without considering the merits of the constitutional defence, the Tribunal dismissed the complaint for want of jurisdiction. The Full Court, on appeal, addressed the merits of the constitutional defence and rejected it. The Full Court set aside the order of the Tribunal dismissing the complaint and remitted the complaint to the Tribunal for hearing and determination. The High Court held that the Tribunal had reached the correct conclusion on the primary issue of its jurisdiction. The Tribunal exercises judicial power in hearing and determining a complaint under the State Act. The Court, by majority, held that for a claim or defence in reliance on the Constitution or a Commonwealth law to give rise to a matter of a description in ss 76(i) or 76(ii) of the Constitution, it is enough that the claim or defence be genuinely raised and that it not be incapable on its face of legal argument. The constitutional defence had been genuinely raised in answer to the complaint in the Tribunal and, whatever its merits, it was not incapable on its face of legal argument. On that basis, the Tribunal was correct to order that the complaint be dismissed for want of jurisdiction.
+HIGH COURT OF AUSTRALIA 3 August 2006 Public Information Officer DRAGAN VASILJKOVIC v COMMONWEALTH OF AUSTRALIA; MINISTER FOR JUSTICE AND CUSTOMS; THE GOVERNOR, PARKLEA CORRECTIONAL CENTRE; AND MAGISTRATE MOORE, CENTRAL LOCAL COURT, SYDNEY Parliament can decide the conditions under which extradition is carried out and the rules laid down in the Commonwealth Extradition Act conform with both international practice and the Constitution, the High Court of Australia held today. Mr Vasiljkovic, 51, a resident of Perth, is a citizen of both Australia and Serbia, having arrived in Australia with his family from Belgrade in 1954 and taking out Australian citizenship in 1975. He allegedly carried out three offences against the Basic Criminal Code of the Republic of Croatia during the conflict between Croatian armed forces and Serbian paramilitary troops in which he was a captain. Mr Vasiljkovic is alleged to have tortured and murdered civilians and prisoners of war in 1991 and 1993. The offences carry a maximum penalty of 20 years’ imprisonment. A Croatian court issued a warrant for Mr Vasiljkovic’s arrest last December and Croatia sought his extradition. In January a Perth magistrate issued a warrant. Mr Vasiljkovic was then arrested by Australian Federal Police while visiting Sydney and has been in custody at Parklea Correctional Centre in Sydney since. Before extradition proceedings before Magistrate Allan Moore began, Mr Vasiljkovic, by application to the High Court, challenged his detention and the validity of Part II of the Extradition Act to the extent that it confers a power to deprive an Australian citizen of liberty other than in the exercise of the judicial power of the Commonwealth. He also claimed Part II of the Act, read together with the Extradition (Croatia) Regulations, is invalid to the extent to which it confers a power to deprive a citizen of liberty other than upon a finding of a prima facie case of the commission of offences alleged by the State seeking extradition. On 15 June the High Court, by a 4-1 majority, upheld the validity of the Act and the Regulations as they related to Mr Vasiljkovic. Today the Court published reasons for its orders. The Court held that the Act and the Regulations for the treatment of fugitive offenders properly fell within Parliament’s power to make laws related to external affairs, conferred by section 51(xxix) of the Constitution. Australia has no extradition treaty with Croatia, but extradition does not rely upon the existence of a treaty and the Regulations declare Croatia to be an extradition country. Extradition involves no determination of guilt or innocence. The Court held that the Constitution, either expressly or impliedly, did not prevent the “no-evidence” model of extradition from being a valid legislative choice. A magistrate determines whether a person is eligible for extradition – an administrative rather than a judicial process – and the person is only to be surrendered if the Attorney-General is satisfied that there is no extradition objection and if he or she is satisfied that the person will not face torture or the death penalty and will not be tried for additional or alternative offences. Although the Administrative Decisions (Judicial Review) Act does not apply to the extradition process, the Court said extradition decisions are subject to judicial scrutiny in the Federal Court. In accordance with international practice, Parliament has given the executive, subject to the requirements of the Act, the ultimate discretion to decide whether and upon what conditions a person shall be surrendered. The Court held that it is for Parliament to determine criteria for eligibility for surrender. It held that detention is not undertaken as punishment but as a necessary part of the extradition process due to a well-founded fear of flight by those facing extradition and to assist guilt or innocence to be determined in the requesting State.
+HIGH COURT OF AUSTRALIA 12 December 2013 AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v TPG INTERNET PTY LTD [2013] HCA 54 Today a majority of the High Court allowed an appeal from a decision of the Full Court of the Federal Court of Australia, holding that TPG Internet Pty Ltd ("TPG") engaged in misleading and deceptive conduct under the Trade Practices Act 1974 (Cth) ("the TPA") and the Australian Consumer Law in Schedule 2 of the Competition and Consumer Act 2010 (Cth) ("the ACL"). Between 2010 and 2011, TPG deployed a multi-media advertising campaign. The advertisements displayed a prominent offer of unlimited ADSL2+ service for $29.99 per month. Much less prominently, the advertisements displayed the requirement that consumers bundle that service with a home telephone service provided by TPG for an additional $30 per month for a minimum of six months. Further, a setup fee of $129.95 and a $20 deposit for telephone charges also applied. The Australian Competition and Consumer Commission ("the ACCC") claimed that the advertisements were misleading and deceptive contrary to s 52 of the TPA and s 18 of the ACL by reason of the disparity between the prominent headline offer and the less prominent terms qualifying that offer. The ACCC also claimed that some of the advertisements contravened s 53C(1)(c) of the TPA by failing to specify, in a prominent way and as a single figure, the single price for the package of services offered. The primary judge upheld the ACCC's claims and imposed a pecuniary penalty of $2 million. TPG appealed to the Full Court which set aside all but three of the primary judge's findings. The pecuniary penalty was reduced to a total of $50,000. In the High Court, the ACCC argued that it was not open to the Full Court, in the proper exercise of its appellate function, to hold that the advertisements were not misleading. Further, the ACCC contended that the penalty imposed by the primary judge should be restored, given the circumstances of TPG's offending and the need for the penalty to reflect the important considerations of general and specific deterrence. A majority of the High Court held that the Full Court erred, first, in holding that the primary judge was wrong to regard the "dominant message" of the advertisements as critically important; and secondly, in failing to appreciate that the tendency of TPG's advertisements to mislead was not neutralised by the Full Court's attribution to members of the target audience of knowledge that ADSL2+ services may be offered as a "bundle". A majority held that these errors, reflecting differences in point of principle with the approach taken by the primary judge, led the Full Court into error in the performance of its appellate function. The pecuniary penalty of $2 million imposed by the primary judge was reinstated.
+HIGH COURT OF AUSTRALIA 31 August 2016 THE QUEEN v BADEN-CLAY [2016] HCA 35 Today the High Court unanimously allowed an appeal from the Court of Appeal of the Supreme Court of Queensland. The High Court held that the Court of Appeal erred in concluding that the jury's verdict of guilty of murder was unreasonable on the basis that the prosecution had failed to exclude the hypothesis that the respondent unintentionally killed his wife. On 15 July 2014, following a trial in the Supreme Court of Queensland before Byrne SJA and a jury, the respondent was found guilty of the murder of his wife. The respondent gave evidence that he, his wife and their three daughters were at home on the night of 19 April 2012. The respondent said that he went to bed at about 10 pm, leaving his wife in the living room; the next morning, she was not at home. He said that his wife often went for an early morning walk. He said that after a period of time, he attempted to contact his wife, went driving around the suburb looking for her, and finally called 000 to report her missing. On 30 April 2012, the deceased's body was found under a bridge on a bank of Kholo Creek. The respondent had been involved in a sexual relationship with another woman, Ms Toni McHugh, since August 2008. His wife believed that the affair had ended in 2011. On 16 April 2012, on the advice of a counsellor, the respondent's wife spent some time "venting and grilling" the respondent about his affair with Ms McHugh. On the day before the deceased's disappearance, Ms McHugh told the respondent that she would be attending a conference that the deceased was also planning to attend. The respondent had told Ms McHugh that he would be out of his marriage by 1 July. Following the deceased's disappearance, injuries to the respondent's right cheek were examined. He said he cut himself shaving. Three experts gave evidence that one set of scratches was most likely caused by fingernails. The respondent appealed against his conviction to the Court of Appeal on the ground that the jury's verdict was unreasonable. The Court of Appeal upheld the appeal, set aside the respondent's conviction on the charge of murder, and substituted a verdict of manslaughter. The Court held that, although it was open to the jury to find that the respondent had killed his wife, the evidence did not allow the jury to be satisfied beyond reasonable doubt that the respondent intended to kill her, or to cause her grievous bodily harm. In particular, the Court accepted the respondent's submission, made for the first time on appeal, that the prosecution had not excluded the hypothesis that there was a physical confrontation between the appellant and his wife in which he delivered a blow which killed her (for example, by the effects of a fall hitting her head against a hard surface) without intending to cause serious harm. By grant of special leave, the Crown appealed to the High Court. It was common ground on the appeal that the respondent killed his wife. The High Court held that the hypothesis on which the Court of Appeal acted was not available on the evidence. At the trial, the respondent denied that he had fought with his wife, killed her and disposed of her body. His evidence, being the evidence of the only person who could give evidence on the issue, was inconsistent with that hypothesis. Further, the jury were entitled to regard the whole of the evidence as satisfying them beyond reasonable doubt that the respondent acted with intent to kill or cause grievous bodily harm when he killed his wife. The Court ordered that the respondent's conviction for murder be restored.
+HIGH COURT OF AUSTRALIA 16 June 2005 POLYAIRE PTY LTD v K-AIRE PTY LTD, KEMALEX PTY LTD, RICHARD KEMPLEY COLEBATCH, BRUCE VICTOR BENFIELD, K-AIRE SALES PTY LTD, K-AIRE WHOLESALE PTY LTD, CONNECT AIRE PTY LTD AND ACN 079 795 814 PTY LTD K-Aire had infringed copyright of a new kind of air-conditioning outlet, even though some of the design features had been changed, the High Court of Australia held today. Polyaire, a South Australian manufacturer and seller of air-conditioning components, had a registered design for a new grille, which directs the flow of air from the air-conditioning unit into a room. It brought proceedings against K-Aire and the other respondents for infringement of its design. In the SA Supreme Court, Justice Anthony Besanko held that the respondents’ outlet director was a fraudulent imitation of Polyaire’s design. After a K-Aire grille, known as KA1, appeared on the market, Polyaire complained, and a different grille, KA2, appeared in its place. Justice Besanko held that both KA1 and KA2 were fraudulent imitations. He found that industrial designer Andrew Rogers, whom Mr Colebatch asked to design an air-conditioning outlet for Kemalex, had reason to suspect that any outlet director produced by Polyaire was subject to a registered design. Mr Colebatch wanted certain features that were part of Polyaire’s design. Justice Besanko found that KA1 was not distinctly different from Polyaire’s grille. KA1 lacked a chamfered lip and vertical ribs on the outside of the frame but a snap-fit mechanism, control bars and the blade ends including the spigots had been copied. K-Aire successfully appealed to the Full Court of the Federal Court. (Under the Design Act 1906, repealed 12 months ago, appeals lay to the Federal Court from a “prescribed court” which included the Supreme Court.) Polyaire then appealed to the High Court. The appeal turned on the construction of section 30(1)(a) in the Design Act which deemed that a person infringed a registered design if, without permission, they applied the design or any fraudulent or obvious imitation of it to any article in respect of which the design is registered. As Justice Besanko found no obvious imitation in KA1 and KA2 it was necessary for him to decide whether there was nevertheless a fraudulent imitation. The Court upheld Justice Besanko’s judgment that there had been copying of features giving the Polyaire design its distinctive appearance. It held that fraudulent imitation could include a copy with significant differences but which have been made merely to disguise the copying. The Court unanimously allowed the appeal.
+HIGH COURT OF AUSTRALIA 9 March 2021 H. LUNDBECK A/S & ANOR v SANDOZ PTY LTD CNS PHARMA PTY LTD v SANDOZ PTY LTD [2022] HCA 4 Today, the High Court delivered judgment in two related appeals from a decision of the Full Court of the Federal Court of Australia ("the Full Court") each on appeal from a single justice of that Court concerning the extension under the Patents Act 1990 (Cth) ("the Act") of the term of a patent relating to the pharmaceutical substance escitalopram ("the Patent"). The Court unanimously allowed one appeal ("the Lundbeck appeal") primarily on the basis that the Full Court misconstrued the effect of a settlement clause between the parties. The Court unanimously dismissed the other appeal ("the Pharma appeal") holding that the Full Court was correct to find that the respondent had not engaged in misleading or deceptive conduct. The appellants in the Lundbeck appeal were H. Lundbeck A/S ("Lundbeck Denmark") a Danish pharmaceutical company and its Australian subsidiary ("Lundbeck Australia"). Lundbeck Denmark was the owner of the Patent. Lundbeck Australia held an exclusive licence of the Patent. The appellant in the Pharma appeal, CNS Pharma Pty Ltd ("Pharma"), was a subsidiary of Lundbeck Australia, which sold a generic product containing escitalopram in Australia. The respondent in both appeals, Sandoz Pty Ltd ("Sandoz") was a supplier of generic pharmaceuticals products. When the Patent was due to expire in June 2009 Lundbeck Denmark applied under the Act to extend the term until December 2012; this extension was subsequently granted in 2014. During the extended term Sandoz sold generic escitalopram products. In 2014 Lundbeck Denmark and Lundbeck Australia commenced proceedings against Sandoz claiming that Sandoz had infringed the Patent by selling escitalopram during the extended term. Pharma also commenced proceedings against Sandoz claiming that Sandoz had engaged in misleading or deceptive conduct during the extended term by failing to warn its customers that their supply of generic escitalopram might infringe the Patent. The primary judge found against Sandoz in both proceedings. The Full Court allowed the appeals holding that none of Sandoz's sales amounted to acts of infringement as Sandoz held a non-exclusive licence to exploit the Patent through the operation of a settlement clause in an agreement that Sandoz had entered into with Lundbeck Denmark and Lundbeck Australia in 2007. In the Lundbeck appeal, the High Court held that the Full Court had erred in its construction of the settlement clause. Properly construed, the settlement clause gave permission to Sandoz to sell the escitalopram products for the two week period before the expiry of the Patent's original term. Section 79 of the Act operated to confer substantive and exhaustive rights only on Lundbeck Denmark as the patentee to start proceedings against persons who had infringed an exclusive right to exploit the Patent during the extended term. Further, Lundbeck Denmark's cause of action under s 79 of the Act only accrued on the grant of the extension of the Patent in 2014. In the Pharma appeal, the Court held Sandoz's conduct did not amount to misleading or deceptive conduct as the evidence did not establish that its customers had the requisite reasonable expectation that they might be exposed to patent infringement proceedings for supplying Sandoz's escitalopram products.
+HIGH COURT OF AUSTRALIA 28 September 2011 ROY MORGAN RESEARCH PTY LTD v COMMISSIONER OF TAXATION & ANOR [2011] HCA 35 Today the High Court dismissed an appeal by Roy Morgan Research Pty Ltd against the decision of the Full Court of the Federal Court of Australia which had upheld the constitutional validity of the Superannuation Guarantee (Administration) Act 1992 (Cth) ("the Administration Act") and the Superannuation Guarantee Charge Act 1992 (Cth) ("the Charge Act"). The challenged legislation imposes the superannuation guarantee charge ("the Charge") on an employer who fails to provide to all employees a prescribed minimum level of superannuation, specified in the Administration Act. Any shortfall created by the employer's failure to meet the minimum level in full becomes the Charge, which is levied on the employer by the Charge Act. The Charge Act does no more than impose the Charge and fix its rate. The Administration Act deals with the incidence, assessment and collection of the Charge. The Charge is a debt due to the Commonwealth and payable to the respondent, the Commissioner of Taxation. It includes a component for interest and an administration cost. The revenue raised by the Charge is to be paid into the Consolidated Revenue Fund. The lesser of the employee's entitlement and the amount of the Charge actually paid by the employer is then to be paid out to a superannuation fund for the benefit of the relevant employee. The result is to supply an incentive to employers to make contributions to superannuation for their employees without incurring the Charge. The appeal to the High Court concerned the power of the Parliament to make laws with respect to taxation under s 51(ii) of the Constitution. The appellant challenged the validity of the provisions in the Administration Act and the Charge Act dealing with the Charge. The appellant argued that the Charge was not a "tax" because it was not imposed for "public purposes". This was said to be because the Charge conferred "a private and direct benefit" on the relevant employees. It followed, the appellant argued, that neither the Charge Act nor the Administration Act was a law with respect to taxation within the meaning of s 51(ii), and that the legislation establishing the Charge and providing for its administration was invalid. The High Court held unanimously that the Charge was a tax, and that the appellant's constitutional challenge to the Administration Act and the Charge Act failed. The receipt of funds into the Consolidated Revenue Fund established that the Charge was imposed for "public purposes". Once the Charge is paid into the Consolidated Revenue Fund its identity is lost. The funds raised by the Charge are thereafter available under s 83 of the Constitution for an appropriation to be spent on any purpose for which the Commonwealth may lawfully spend money. Where other necessary constitutional criteria of a tax are met, as they were in this case, the receipt of funds into the Consolidated Revenue Fund establishes the character of the Charge as a valid tax.
+HIGH COURT OF AUSTRALIA Public Information Officer 14 May 2008 ROADS AND TRAFFIC AUTHORITY OF NSW v The Roads and Traffic Authority (RTA) was not to blame for a car crash that occurred at an alleged highway black spot as the drivers themselves were at fault, the High Court of Australia held today. Mr Smurthwaite was crossing the northbound lanes of a divided section of the Pacific Highway from Bago Road, just north of Herons Creek, south of Port Macquarie, on 12 March 2001 when his car was struck by a car driven by Mr Royal. Mr Smurthwaite had stopped at a Stop sign where Bago Road met the highway. George Hubbard drew up immediately behind him. Anthony Relf, driving a Telstra van, was behind Mr Royal’s car travelling north. Mr Hubbard and Mr Relf each gave evidence about the actions of the drivers they followed. Mr Royal said he did not expect Mr Smurthwaite to cross the highway in the face of oncoming vehicles. He had his cruise control set at 105kmh while the highway had a maximum speed of 100kmh with an 85kmh advisory sign 300 metres before the intersection. Bago Road crossed the highway’s northbound lanes during a long curve away from the straight southbound lanes. Mr Royal had just moved into the right lane, indicating as he did so, then appeared to cut the curve by driving through the intersection in the right turning lane, the point at which the collision occurred. Mr Smurthwaite was seriously injured and remembered little of the lead-up to the crash. He sued Mr Royal and the RTA for negligence. Both Mr Royal and the RTA denied negligence, alleged contributory negligence by Mr Smurthwaite, and cross-claimed against each other. District Court Judge Joseph Phelan found that the primary cause of the collision was Mr Royal’s breach of his duty of care to Mr Smurthwaite, but reduced Mr Smurthwaite’s damages by one-third to $871,019.50 on account of his contributory negligence. Judge Phelan dismissed the claim and cross-claim against the RTA. The NSW Court of Appeal, by majority, allowed Mr Royal’s appeal against Judge Phelan’s dismissal of his cross-claim against the RTA. The Court held that the RTA knew the intersection was an accident black spot and should have taken steps to change the configuration. It held that the RTA should bear one-third of the damages judgment. The RTA was granted special leave to appeal to the High Court, limited to the question of whether a breach of its duty of care caused Mr Smurthwaite’s injury. Mr Smurthwaite was joined as a second respondent but he filed a submitting appearance as his interests were not affected either way. The High Court, by a 4-1 majority, allowed the appeal. The majority held that any fault in the design of the intersection did not contribute to the particular accident. The cause was error by both drivers. Mr Smurthwaite failed to observe the approaching car. Both Mr Royal and Mr Relf said they had seen Mr Smurthwaite’s car and Mr Hubbard could see Mr Royal approaching, so there was no evidence that Mr Royal’s car was obscured by another vehicle. Mr Royal took no evasive action and his cutting the corner by driving through the right-hand turning lane may have misled Mr Smurthwaite into thinking he was slowing down to turn right off the highway, giving him enough time to cross. The Court held that both drivers were in a position to see each other in time to avoid the collision.
+HIGH COURT OF AUSTRALIA 11 March 2004 JACK PLEDGE v ROADS AND TRAFFIC AUTHORITY, BLUE MOUNTAINS CITY COUNCIL AND NADIA CATHERINE RYAN by her tutor Heather Ryan NADIA CATHERINE RYAN by her tutor Heather Ryan v JACK PLEDGE, BLUE MOUNTAINS CITY COUNCIL AND ROADS AND TRAFFIC AUTHORITY The High Court of Australia today overturned a judgment of the New South Wales Court of Appeal and ordered that the Court of Appeal reapportion liability among Mr Pledge, the RTA and Blue Mountains Council. Nine-year-old Nadia Ryan was severely injured when struck by Mr Pledge’s vehicle on a service road beside the Great Western Highway at Blaxland in the Blue Mountains as she and her father and sister were about to cross the road in July 1994. They had walked through thick shrubbery planted on a nature strip between the service road and the highway. Ryan momentarily released his daughter’s hand and Nadia walked forward on to the roadway. The RTA designed the service road, the Council designed the parking beside the service road and both bodies were responsible for the nature strip. The vegetation prevented the family and Mr Pledge from seeing each other properly. Mr Pledge also claimed he was distracted by another car reversing from a parking space. Nadia sued Mr Pledge, the RTA and the Council for negligence. NSW Supreme Court Justice John Dunford, who visited the service road during the trial, held that Mr Pledge was negligent in driving too fast, although he was within the speed limit, and failing to keep a proper lookout, that the RTA was negligent in the design and construction of the nature strip, and that the Council was negligent in not properly maintaining the vegetation and allowing parking bays at a 90-degree angle. He held that a traffic sign warning drivers of pedestrians or suggesting a slower speed was needed. Justice Dunford ordered Mr Pledge to pay $2,925,000 in damages and the RTA and the Council a total of $3,712,500, adjusted to $4,781,250 against Mr Pledge and $1,856,250 against the RTA and the Council after judgment on cross-claims. Nadia’s damages were reduced by 10 per cent because of her contributory negligence in failing to look both ways before crossing. The High Court held that the Court of Appeal erred in three respects in absolving the RTA and the Blue Mountains Council from responsibility for Nadia’s injuries. The errors were: having no proper basis for preferring photos of the scene over the evidence of witnesses; reliance on time, speed and distance calculations that were too uncertain to be more than mere speculation; and failing to give sufficient weight to the advantage that Justice Dunford had by visiting the accident site. The High Court did however uphold the Court of Appeal’s findings that the absence of traffic signs and provision of perpendicular parking spaces did not amount to negligence by the RTA and the Council. The High Court unanimously allowed both appeals and remitted proceedings to the Court of Appeal for reapportionment of liability between Mr Pledge, the RTA and the Council and for determination of remaining issues not decided by the High Court, including costs.
+HIGH COURT OF AUSTRALIA 7 October 2015 McCLOY & ORS v STATE OF NEW SOUTH WALES & ANOR [2015] HCA 34 Today the High Court upheld the validity of certain provisions of the Election Funding, Expenditure and Disclosures Act 1981 (NSW) ("the EFED Act"), which impose caps on political donations, prohibit property developers from making such donations, and restrict indirect campaign contributions. Division 2A of Pt 6 of the EFED Act ("Div 2A") provides for general caps on the amount of political donations which a person can make to or for the benefit of a particular political party, elected member, group, candidate or third-party campaigner. Division 4A of Pt 6 ("Div 4A") prohibits the making or acceptance, directly or indirectly, of a political donation by a "prohibited donor" or the soliciting of a person by or on behalf of a "prohibited donor" to make a political donation. "Prohibited donor" is defined to include "a property developer". Section 96E prohibits the making or acceptance of "indirect campaign contributions". Div 4A and s 96E apply in New South Wales to State and local government elections and to elected members of Parliament and councils. Div 2A applies only to State elections and elected members of Parliament. The first and third plaintiffs are "property developers" and the second plaintiff made an "indirect campaign contribution" within the meaning of each expression in the EFED Act. Each of the plaintiffs intended, if permitted by law, to make donations in excess of the caps imposed by Div 2A. The plaintiffs brought proceedings in the original jurisdiction of the High Court, challenging the validity of Div 2A, Div 4A (as it applied to "property developers") and s 96E on the basis that these provisions impermissibly burden the implied constitutional freedom of communication on governmental and political matters. They submitted that the impugned provisions burden the freedom of political communication by restricting the funds available to political parties and candidates to meet the costs of political communication, and further that the restrictions imposed upon the plaintiffs' ability to gain access and make representations to politicians and political parties were also such a burden. The High Court accepted that the impugned provisions indirectly burden political communication by restricting the funds available to political parties and candidates. However, the Court unanimously held that the burden imposed by the donation caps in Div 2A is not impermissible and the provisions are a legitimate means of pursuing the legitimate objective of removing the risk and perception of corruption and undue influence in New South Wales politics. The Court held that the provisions in fact enhance the system of representative government which the implied freedom of political communication protects. Section 96E was also held to be valid, on the basis that as an anti-avoidance provision its validity depends on that of Div 2A. By majority the Court held, taking note of a history of corruption in New South Wales, that the prohibition on donations by property developers in Div 4A is also valid.
+HIGH COURT OF AUSTRALIA 3 February 2016 MINISTER FOR IMMIGRATION AND BORDER PROTECTION & ORS [2016] HCA 1 Today the High Court held, by majority, that the plaintiff was not entitled to a declaration that the conduct of the first and second defendants in relation to the plaintiff's past detention at the Nauru Regional Processing Centre ("the Centre") was unlawful. The majority of the Court held that s 198AHA of the Migration Act 1958 (Cth) ("the Act") authorised the Commonwealth's participation, to the extent that the Commonwealth did participate, in the plaintiff's detention. The plaintiff is a Bangladeshi national who was an "unauthorised maritime arrival" as defined by s 5AA of the Act upon entering Australia's migration zone. She was detained by officers of the second defendant and taken to Nauru pursuant to s 198AD(2) of the Act. Nauru is a country designated by the first defendant as a "regional processing country" under s 198AB(1) of the Act. On 3 August 2013, the Commonwealth and Nauru entered into an arrangement relating to persons who have travelled irregularly by sea to Australia and who Australian law authorises to be transferred to Nauru ("the second MOU"). By the second MOU and administrative arrangements entered into in support of the second MOU (including arrangements for the establishment and operation of the Centre) ("the Administrative Arrangements"), Nauru undertook to allow transferees to remain on its territory whilst the transferees' claims to refugee status were processed. The Commonwealth was to bear the costs associated with the second MOU. Since March 2014, the third defendant has been a service provider at the Centre pursuant to a contract with the Commonwealth to provide "garrison and welfare services" ("the Transfield Contract"). Section 198AHA applies if the Commonwealth enters into an arrangement with a person or body in relation to the regional processing functions of a country. Sub-section (2) provides, in summary, that the Commonwealth may take any action, and make payments, in relation to the arrangement or the regional processing functions of the country, or do anything incidental or conducive to taking such actions or making such payments. The plaintiff brought proceedings in the original jurisdiction of the High Court seeking, amongst other things, a declaration that the Commonwealth's conduct (summarised as the imposition, enforcement or procurement of constraints upon the plaintiff's liberty, including her detention, or the Commonwealth's entry into contracts in connection with those constraints, or the Commonwealth having effective control over those constraints) was unlawful by reason that such conduct was not authorised by any valid law of the Commonwealth. The Court held, by majority, that the plaintiff was not entitled to the declaration sought. The conduct of the Commonwealth in signing the second MOU with Nauru was authorised by s 61 of the Constitution. The Court further held that the conduct of the Commonwealth in giving effect to the second MOU (including by entry into the Administrative Arrangements and the Transfield Contract) was authorised by s 198AHA of the Act, which is a valid law of the Commonwealth.
+HIGH COURT OF AUSTRALIA Public Information Officer 7 March 2006 THE TRUSTEES OF THE PROPERTY OF JOHN DANIEL CUMMINS A BANKRUPT v MARY ELIZABETH CUMMINS AND AYMCOPIC PTY LTD Property and shares transferred to a spouse before barrister John Cummins was made bankrupt were available to trustees acting for his creditors, the High Court of Australia held today. Mr Cummins became bankrupt in December 2000. At 30 January 2001, his assets totalled $259,614 and his liabilities $1.04 million. His largest creditor is the Australian Taxation Office which instituted proceedings to recover $955,672.92, following the lodging of income tax returns in February 2000 for the years 1991-92 to 1998-99. Mr Cummins had not lodged any returns since 1955. He was admitted as a solicitor in 1957, then practised at the NSW Bar from 1961, becoming a Queen's Counsel in 1980. He married Mary Elizabeth Power in 1964 but they separated in February 2002. Aymcopic is the trustee of the Cummins family trust, of which Mrs Cummins and their four children are the beneficiaries. In August 1987, Mr Cummins transferred to his wife his interest in the family home in Hunters Hill in Sydney and transferred to Aymcopic his shares in Wentworth Chambers in Phillip Street, Sydney. The trustees in bankruptcy sought declarations that the transfers were void, pursuant to section 121 of the Commonwealth Bankruptcy Act. In the Federal Court, Justice Ronald Sackville made the declarations and ordered consequential relief. He held that the main purpose of the transfers was to prevent property becoming divisible among Mr Cummins's creditors or to hinder or delay the process of making property available for division among creditors. Mrs Cummins and Aymcopic appealed to the Full Court which, by majority, allowed the appeal. The trustees appealed to the High Court. The High Court unanimously allowed the appeal by the trustees and ordered that Justice Sackville's orders be reinstated.
+HIGH COURT OF AUSTRALIA 7 September 2011 JEMENA ASSET MANAGEMENT (3) PTY LTD & ORS v COINVEST LIMITED [2011] HCA 33 Today the High Court dismissed an appeal from a decision of the Full Court of the Federal Court which held that the Construction Industry Long Service Leave Act 1997 (Vic) ("the State Act") was not inconsistent with federal industrial instruments made under the Workplace Relations Act 1996 (Cth) ("the Commonwealth Act") in relation to long service leave ("the federal instruments") within the meaning of s 109 of the Constitution. The appellant companies carried on businesses in the operation of electricity infrastructure assets. In the course of business, the appellants employed persons to perform construction work and were bound by the federal instruments. The federal instruments imposed obligations on employers to grant, and pay for, long service leave in relation to their qualifying employees and governed the circumstances in which such entitlements would accrue. The Commonwealth Act provided for the paramountcy of industrial instruments made under federal legislation over State laws. The State Act provided for a scheme for portable long service leave benefits in the construction industry. The respondent was the trustee of the Construction Industry Long Service Leave Fund established by the State Act under a trust deed ("the trust deed"). The State Act obliged the appellants to register with the respondent and pay the respondent a long service leave charge in respect of every worker employed by them to perform construction work. Fund Rules made by the respondent under the trust deed provided that every worker was entitled to a long service leave benefit in respect of continuous service performing construction work for an employer. On 24 February 2006 the respondent requested the appellants to provide relevant details of their workers and to make payments pursuant to the State Act. Between May 2006 and July 2007, the respondent issued the appellants with notices requesting information regarding certain of the appellants' employees. On 3 October 2007, the respondent advised the second appellant that it would commence proceedings against the second appellant in relation to its failure to comply with one of the notices. On 5 October 2007 the appellants brought proceedings against the respondent in the Federal Court because they feared imminent prosecution under the State Act. The issue was whether the State Act, including the scheme established under it, was inconsistent with certain provisions of the Commonwealth Act embodied in the federal instruments and therefore invalid by reason of s 109 of the Constitution. The primary judge and the Full Court of the Federal Court held that the State Act was not inconsistent with the federal instruments within the meaning of s 109 of the Constitution. The appellants appealed, by special leave, to the High Court. The High Court held that the State Act was not inconsistent with the federal instruments within the meaning of s 109 of the Constitution. The Court held that employees' entitlements to long service leave benefits under the State Act could only be in the form of payment from the Fund. There was no provision for the grant of any long service leave, a subject which was covered by the federal instruments. While the federal instruments dealt with all the obligations and entitlements of employers and employees in respect of the grant of, and payment for, long service leave arising in the employment relationship, they did not deal with, or even mention, portable long service leave benefits for workers in continuous service within the construction industry. The Court also held that the State Act did not undermine an employer's obligations under the federal instruments to grant, and pay for, long service leave or an employee's entitlement to receive such leave.
+HIGH COURT OF AUSTRALIA 2 April 2014 TAYLOR v THE OWNERS – STRATA PLAN NO 11564 & ORS [2014] HCA 9 Today the High Court, by majority, allowed an appeal brought by Susan Joy Taylor from a decision of the Court of Appeal of the Supreme Court of New South Wales. The Court of Appeal had found, by majority, that section 12(2) of the Civil Liability Act 2002 (NSW) ("the CLA") applied to and limited awards of damages under sections 3 and 4 of the Compensation to Relatives Act 1897 (NSW) ("the CRA"). Mrs Taylor is the widow of the late Mr Taylor. Mr Taylor died when an awning outside a shop collapsed on him in 2007. Mrs Taylor commenced proceedings in the Supreme Court of New South Wales claiming damages pursuant to sections 3 and 4 of the CRA against some of the respondents. The proceedings were brought for the benefit of Mrs Taylor and children of the late Mr Taylor. A preliminary question arose before the primary judge for separate determination as to whether any award of damages claimed by the plaintiffs pursuant to sections 3 and 4 of the CRA would be limited by the operation of section 12(2) of the CLA. Section 12(2) of the CLA directs a court when awarding damages to disregard the amount (if any) by which a claimant's gross weekly earnings would, but for the injury or death, have exceeded three times the average weekly earnings at the date of the award. The limitation invoked by section 12(2) applies to specified heads of damages, including, relevantly, for the loss of expectation of financial support. The primary judge held that insofar as the damages claimed included damages for the loss of expectation of financial support, the court is to disregard the amount (if any) by which the deceased's gross weekly earnings would (but for his death) have exceeded three times the average weekly earnings at the date of the award. An appeal to the Court of Appeal of the Supreme Court of New South Wales was dismissed by majority. By special leave, Mrs Taylor appealed to the High Court. The issue on appeal was whether in the case of an award of damages for the loss of expectation of financial support, the limitation in section 12(2) ought to be construed as applying to the deceased's gross weekly earnings. The High Court, allowing Mrs Taylor's appeal by majority, held that on no view could the word "claimant" as it is used in section 12(2) of the CLA be read as referring to the gross weekly earnings of the deceased. That construction, which was adopted by the primary judge and the majority of the Court of Appeal, could not be reconciled with the language of the statute as enacted by Parliament. The High Court held that the court is not required to disregard the amount by which the gross weekly earnings of Mr Taylor, but for his death, would have exceeded three times the average weekly earnings.
+HIGH COURT OF AUSTRALIA 27 July 2016 MINISTER FOR IMMIGRATION AND BORDER PROTECTION & ANOR v SZSSJ & ANOR MINISTER FOR IMMIGRATION AND BORDER PROTECTION & ORS v SZTZI [2016] HCA 29 Today the High Court unanimously held that the Department of Immigration and Border Protection's processes in response to an unauthorised release of personal information of two former protection visa applicants did not deny those applicants procedural fairness. The Department made available on its website an electronic document containing embedded information disclosing the identities of 9,258 applicants for protection visas then in immigration detention ("Data Breach"), including SZSSJ and SZTZI. The Data Breach continued for two weeks. The Department retained external consultants KPMG to investigate the Data Breach. A report produced by KPMG ("KPMG Report") identified 104 unique IP addresses from which the electronic document had been accessed. The Department then notified applicants affected by the Data Breach. It began to conduct "International Treaties Obligations Assessments" ("ITOAs"), through standardised procedures prescribed in a publicly available document ("Procedures Advice Manual"), to assess the Data Breach's effect on Australia's non-refoulement obligations to those applicants. Officers conducting ITOAs were instructed to assume that an affected applicant's personal information may have been accessed by authorities in the country in which he or she feared persecution or other relevant harm. SZSSJ and SZTZI were informed that ITOAs were being conducted in respect of their protection claims in accordance with the Procedures Advice Manual. An abridged version of the KPMG Report having been made publicly available, SZSSJ and SZTZI requested unabridged copies of the KPMG Report. Those requests were refused. SZSSJ commenced proceedings in the Federal Circuit Court of Australia seeking relief in respect of the Data Breach before an ITOA had been completed. SZTZI commenced proceedings in that Court after an ITOA concluded that her claims did not engage Australia's non-refoulement obligations. Both those proceedings were dismissed. The Full Court of the Federal Court of Australia allowed their appeals, holding that they were denied procedural fairness by virtue of the Department's failures adequately to explain the ITOA processes and to provide the unabridged KPMG Report. The Full Court also rejected a submission that the Federal Circuit Court's jurisdiction to hear SZSSJ's and SZTZI's claims was excluded by s 476(2)(d) of the Migration Act 1958 (Cth). By grants of special leave, the Minister appealed to the High Court, which unanimously allowed the appeals. The High Court held that SZSSJ and SZTZI were owed a duty to be afforded procedural fairness in the ITOA process but that they were not denied procedural fairness. The applicants were squarely put on notice of the nature and purpose of the ITOAs and of the issues to be considered. The instruction given to officers conducting ITOAs to assume that SZSSJ's and SZTZI's personal information may have been accessed by authorities in the countries in which they feared persecution or other relevant harm meant that not providing the unabridged KPMG Report did not constitute a denial of procedural fairness. The High Court also held that the Full Court correctly concluded that the Federal Circuit Court had jurisdiction to hear SZSSJ's and SZTZI's claims.
+HIGH COURT OF AUSTRALIA 12 November 2020 CALIDAD PTY LTD v SEIKO EPSON CORPORATION [2020] HCA 41 Today the High Court allowed an appeal from a judgment of the Full Court of the Federal Court of Australia. The appeal concerned the scope of a patentee's exclusive statutory rights to exploit an invention which is a product, and whether modifications made to a product to enable its re-use amounted to a making of a new product and infringed the patentee's exclusive rights on that basis. The first respondent manufactures and sells printer ink cartridges under the brand name "Epson" ("the original Epson cartridges"). After the original Epson cartridges have been used, a third party ("Ninestar") obtains them from a number of sources and modifies them to be refilled and re-used. The appellants ("Calidad") acquire the modified cartridges from Ninestar and import them into Australia for sale to the public. The first respondent is the patentee of two patents in which the inventions embodied in the original Epson cartridges are claimed. Section 13(1) of the Patents Act 1990 (Cth) relevantly provides that "a patent gives the patentee the exclusive rights ... to exploit the invention". The term "exploit" is defined to include "make, hire, sell or otherwise dispose of the product" and to "use" it. The respondents (together "Seiko") commenced proceedings in the Federal Court of Australia alleging that Calidad had infringed the first respondent's rights as patentee. The proceedings were conducted by reference to the principle that the purchaser of patented goods that are obtained without restriction on their sale or use has the ordinary rights of ownership because the law implies a full licence (the "implied licence doctrine"). The primary judge found that the modifications made to certain categories of the original Epson cartridges were such as to extinguish any implied licence. On appeal the Full Court of the Federal Court, in separate judgments, found that in none of the categories of the original Epson cartridges were the modifications authorised by any implied licence, and that the modifications to the original Epson cartridges constituted a making of a new embodiment of the invention claimed in the patents. Calidad appealed from the Full Court's decision and asked that the High Court hold that, in cases of this kind, a doctrine that a patentee's monopoly rights of use and sale with respect to a product arising from statute are exhausted upon the first sale of that product (the "exhaustion doctrine") should be applied instead of the implied licence doctrine. Allowing the appeal, a majority of the High Court found that the modifications to the original Epson cartridges did not amount to an impermissible making of a new product and that the exhaustion doctrine should be accepted. The refilled and restored cartridges were merely modified versions of the products sold by Seiko. The modifications were within the scope of the rights of an owner of a chattel to prolong the life of a product and make it more useful. The result reached by the Full Court of the Federal Court would likely have been different if that Court had been in a position to apply the exhaustion doctrine. Matters informing the adoption of a policy of the law as to the scope of the patent rights to sell and use a product pointed strongly to an acceptance of the exhaustion doctrine and away from the implied licence doctrine. Further, principle, authority and the provisions of the Patents Act did not require that the implied licence doctrine continue to be applied.
+HIGH COURT OF AUSTRALIA 5 August 2020 BENOY BERRY & ANOR v CCL SECURE PTY LTD [2020] HCA 27 Today the High Court unanimously allowed an appeal from part of a judgment of the Full Court of the Federal Court of Australia. The appeal concerned the assessment of damages under s 82 of the Trade Practices Act 1974 (Cth) ("the TPA") in a case of misleading or deceptive conduct in contravention of s 52 of the TPA where the contravener contended that, but for its misleading or deceptive conduct, it would otherwise have used lawful means to bring about the same result. The appellants entered into an agency agreement with the respondent, a producer of polymer banknotes, pursuant to which the appellants were to act as the respondent's agent in Nigeria in relation to the sale of opacified polymer to the Nigerian government. Under the agreement, the appellants were to receive commissions of 15% on the net invoiced sale value of opacified polymer sold to the Nigerian government. The agreement provided for its automatic renewal every two years unless terminated in accordance with its termination clauses, which provided that the agreement was terminable upon either party giving 30 days' written notice on or after the date 30 days before the contract was due to renew or upon the respondent giving 60 days' written notice at any time. In early 2008, the respondent conceived of a plan to deprive the appellants of the commissions to which they would otherwise be entitled under the agreement. Pursuant to that plan, on 24 February 2008 a representative of the respondent induced the first appellant to sign a letter terminating the agreement by falsely representing that the execution of the letter was a matter of routine administration and that the existing financial terms of the agreement would continue. The appellants commenced proceedings in the Federal Court seeking damages under s 82 of the TPA referable to the amount of the commissions that would have been payable had the termination letter not been signed in reliance on the respondent's misleading or deceptive conduct. The primary judge found that damages should be assessed by reference to the presumed continuation of the agency agreement as automatically renewed every two years up to the date of trial and held that, having deliberately engaged in misleading or deceptive conduct in contravention of s 52 of the TPA, the respondent could not be heard to complain that it had a lawful alternative means of termination which it elected not to take. On appeal, the Full Court considered that the primary judge's approach gave insufficient weight to the counterfactual possibility of lawful termination and concluded that it was to be inferred that, but for the misleading or deceptive conduct, the respondent would lawfully have terminated the agreement on 30 June 2008. By grant of special leave, the appellants appealed to the High Court. Unanimously allowing the appeal, the High Court held that, since it was established on the balance of probabilities that the respondent terminated the agency agreement by deliberately deceiving the first appellant, the natural inference was that the respondent was not and would not have been prepared to terminate the agreement by lawful means. The evidential burden thereupon shifted to the respondent to adduce evidence sufficient to establish that there was a real (not negligible) possibility that it would have been prepared to terminate the agreement by lawful means at some date before June 2010. The respondent adduced no such evidence. To the contrary, the available evidence established was that it was highly improbable that the respondent would have exercised its right to terminate the agreement lawfully prior to June 2010. It followed that the appellants were entitled to damages representing the commissions to which they would have been entitled under the agency agreement up to June 2010.
+HIGH COURT OF AUSTRALIA 31 August 2016 THE MARITIME UNION OF AUSTRALIA & ANOR v MINISTER FOR IMMIGRATION AND BORDER PROTECTION & ANOR [2016] HCA 34 Today the High Court unanimously held that a determination made by the Minister for Immigration and Border Protection ("the Minister") pursuant to s 9A(6) of the Migration Act 1958 (Cth) ("the Act") exceeded the limits of the power conferred on the Minister by s 9A(6) and for that reason is invalid. The determination had purported to negate certain visa requirements for non-citizens engaged in the offshore resources industry. The plaintiffs are associations of employees including persons employed in the offshore resources industry. The offshore resources industry is concerned with the exploration and exploitation of offshore natural resources including greenhouse gas, petroleum and other minerals. Since 1982, provisions of the Act have provided to the effect that the migration zone, and therefore the requirement for a non-citizen to hold a visa, extends to non-citizens working on "Australian resources installations". In 2013, the Act was amended to extend Australia's migration zone to non-citizens participating in or supporting an "offshore resources activity" and to impose specified visa requirements in respect of those persons. The amendments also conferred power on the Minister under s 9A(6) to make a determination excepting an operation or activity from the statutory definition of "offshore resources activity". In 2015, the Minister made a determination excepting from that definition all operations and activities to the extent that they use any vessel or structure that is not an Australian resources installation. The purported effect of the determination was thus to negate the operation of the specified visa requirements in relation to non-citizens engaged in operations and activities to the extent that they use any vessel or structure that is not an Australian resources installation. The parties stated a special case and questions of law arising for the opinion of the Full Court. The questions of law were directed to whether the determination was beyond power and therefore invalid, and, if so, what relief should flow from that. The High Court unanimously held that the broad-ranging exception contemplated by the determination exceeded the limited terms of the power conferred on the Minister by s 9A(6) of the Act. The text and context of s 9A(6) imply that its purpose is to provide for limited exceptions for particular activities or operations to which it may be determined from time to time the visa regime should not apply. By entirely negating the extension of the visa regime to non-citizens on vessels and structures that are not Australian resources installations, where those non-citizens are in an area in order to participate in or support an offshore resources activity, the determination purported in effect to repeal the operation of the amending provisions' extension of the visa regime, and thereby to thwart that legislative purpose. Accordingly, the High Court declared the determination is invalid and of no effect.
+HIGH COURT OF AUSTRALIA 26 October 2011 ADAM JOHN HARGRAVES v THE QUEEN [2011] HCA 44 Today the High Court dismissed appeals by Adam John Hargraves and Daniel Aran Stoten against the decision of the Court of Appeal of the Supreme Court of Queensland, which had upheld each appellant's conviction for conspiracy to dishonestly cause a loss to the Commonwealth contrary to s 135.4(3) of the Criminal Code (Cth) ("the Code"). The High Court rejected the appellants' argument that the judge at trial had misdirected the jury by inviting it to assess the appellants' credibility as witnesses by reference to their interests in self-protection. Mr Hargraves and Mr Stoten were each charged with one count of conspiracy to defraud the Commonwealth contrary to ss 29D and 86(1) of the Crimes Act 1914 (Cth) ("the Act") and one count of conspiracy to dishonestly cause a loss to the Commonwealth contrary to s 135.4(3) of the Code. Each appellant held shares in Phone Directories Company Pty Ltd ("PDC"). It was alleged that each of the appellants and others had conspired to defraud the Commonwealth by making false representations about the amount of allowable deductions that were to be made from the assessable income of PDC. At trial each appellant was convicted of the offence charged in the second count but acquitted on the first count. In the course of summing up, the trial judge gave directions to the jury on a number of subjects related to "the process of assessing evidence and assessing credibility". On the subject of "Interest" the judge relevantly said: "Does the witness have an interest in the subject matter of the evidence? For example, friendship, self-protection, protection of the witness's own ego." Each appellant appealed to the Court of Appeal against his conviction. The Court of Appeal held that the trial judge had misdirected the jury about how to assess the appellants' evidence but, applying the proviso in s 668E(1A) of the Criminal Code (Q), dismissed the appeals because there had been no substantial miscarriage of justice. Each appellant then appealed to the High Court alleging that the Court of Appeal was wrong to conclude that there had been no substantial miscarriage of justice, and further alleging that application of the proviso in the circumstances of the case contravened s 80 of the Constitution, which provides that "[t]he trial on indictment of any offence against any law of the Commonwealth shall be by jury". The prosecution as respondent argued that the trial judge had not misdirected the jury. The High Court unanimously dismissed the appeals. The High Court considered that the Court of Appeal was wrong to hold that the trial judge had misdirected the jury. Read as a whole, the instructions which the trial judge gave were not such as would deflect the jury from its task of deciding whether the prosecution had proved its case beyond reasonable doubt. The impugned directions given by the trial judge did not occasion a miscarriage of justice on any ground. Accordingly, it was not necessary for the High Court to consider whether the proviso had been applied correctly, and the constitutional issue which the appellants sought to raise was not reached.
+HIGH COURT OF AUSTRALIA 12 June 2019 PLAINTIFF M47/2018 v MINISTER FOR HOME AFFAIRS & ANOR [2019] HCA 17 Today the High Court published its reasons for orders made on 13 February 2019 answering questions stated in a special case. The Court unanimously held that the special case raised no factual basis for consideration of the lawfulness of the plaintiff's detention under ss 189 and 196 of the Migration Act 1958 (Cth). Section 189 of the Act provides that an officer who knows or reasonably suspects that a person in the migration zone is an unlawful non-citizen must detain the person. Section 196 of the Act requires that an unlawful non-citizen who is detained under s 189 be kept in immigration detention until he or she is removed from Australia under s 198 or s 199, deported under s 200, or granted a visa. The plaintiff is an unlawful non-citizen who has been in immigration detention since his arrival in the migration zone in 2010. When the plaintiff travelled to Australia, he did so using a Norwegian passport under a name that was different to at least three other names he had previously used in dealings with overseas authorities. The plaintiff destroyed that passport and presented himself to immigration officers in Australia under a different name, purporting to be a "citizen" of Western Sahara. In a number of visa applications between 2010 and 2017, the plaintiff admitted that he had in the past used false names, personal details and passports. In dealings with Australian immigration authorities, the plaintiff gave inconsistent accounts of his personal and family background. The plaintiff also adopted a posture of non-cooperation towards meetings arranged or proposed by those authorities between the plaintiff and the Moroccan and Algerian Embassies in Canberra aimed at establishing his identity and nationality. The plaintiff commenced proceedings in the original jurisdiction of the High Court seeking a declaration that his detention is unlawful because it is not authorised by ss 189 and 196 of the Act. He argued that the mandate in ss 189 and 196 to keep an unlawful non-citizen in custodial detention suspends when removal is not practicable at all, or in the reasonably foreseeable future, so that those provisions have ceased to authorise the plaintiff's detention. Alternatively, the plaintiff claimed that the provisions, in their purported application to him, exceed the legislative power of the Commonwealth because his continued detention is not sufficiently connected to a constitutionally- permissible purpose of administrative detention. While the special case contained no agreement between the parties to the effect that there is no real prospect or likelihood that the plaintiff will be deported from Australia in the reasonably foreseeable future, the plaintiff submitted that the Court should draw inferences to that effect. The Court unanimously held that the necessary inferences could not be drawn because it cannot be assumed that it is beyond the plaintiff's power to provide further information concerning his identity that may shed positive light on his prospects of removal. In particular, in the absence of the plaintiff's cooperation, it cannot be concluded that the options for his removal within a reasonable time have been exhausted. Accordingly, the Court concluded that no factual basis had been established to call into question the lawfulness of the plaintiff's detention.
+HIGH COURT OF AUSTRALIA 10 September 2014 MAXWELL v HIGHWAY HAULIERS PTY LTD [2014] HCA 33 Today the High Court unanimously dismissed an appeal from a decision of the Court of Appeal of the Supreme Court of Western Australia, and held that s 54(1) of the Insurance Contracts Act 1984 (Cth) operated to prevent the insurers from refusing to pay claims for indemnity made by the insured, in circumstances where the insured failed to comply with an endorsement forming part of the contract of insurance. Section 54(1) of the Act states that "where the effect of a contract of insurance would, but for [that] section, be that the insurer may refuse to pay a claim, either in whole or in part, by reason of some act of the insured or of some other person, being an act that occurred after the contract was entered into ... the insurer may not refuse to pay the claim by reason only of that act", but that "the insurer's liability in respect of the claim is reduced by the amount that fairly represents the extent to which the insurer's interests were prejudiced" by that act. Section 54(2) provides that the insurer may nonetheless refuse to pay a claim where the relevant act could reasonably be regarded as being capable of causing or contributing to a loss in respect of which insurance cover is provided by the contract. The respondent, Highway Hauliers Pty Ltd, had been refused indemnity for two accidents involving its vehicles. An endorsement forming part of the contract of insurance stated that no indemnity was provided when a vehicle was being operated by a driver unless, among other things, the driver had a PAQS driver profile score of at least 36 (or an approved equivalent). Drivers of the respondent's vehicles in both accidents had not undertaken a PAQS test or an equivalent. It was conceded that the fact that each vehicle was being operated by an untested driver could not reasonably be regarded as being capable of causing or contributing to any loss incurred by the respondent as a result of each accident, and that the insurers' interests were not prejudiced as result of the vehicles being operated, at the time of the accidents, by untested drivers. The respondent was successful in proceedings for indemnity under the policy and for damages for breach of the insurance contract in the Supreme Court of Western Australia and before the Court of Appeal. By special leave, the appellant, a nominated authorised representative of the insurers, appealed to the High Court. Rejecting the appellant's argument that the "claim" to which s 54(1) refers is a claim for an insured risk, the High Court held that, the respondent having made claims in relation to accidents which occurred during the period of insurance, it was sufficient to engage s 54(1) that the effect of the contract of insurance was that the insurer may refuse to pay those claims by reason only of acts which occurred after entry into the contract. Section 54(1) applied to the respondent's claims because the operation of each vehicle by an untested driver was properly characterised as having been by reason of an "act" that occurred after entry into the contract of insurance.
+HIGH COURT OF AUSTRALIA 10 November 2009 Manager, Public Information CAL NO 14 PTY LTD t/as TANDARA MOTOR INN & ANOR v MOTOR ACCIDENTS INSURANCE BOARD CAL NO 14 PTY LTD t/as TANDARA MOTOR INN & ANOR v SANDRA SCOTT [2009] HCA 47 A hotel licensee and a customer made an informal arrangement to avoid the potential consequences of the customer being breathalysed. The customer handed over his motorcycle and its keys to the licensee. Later, having consumed a considerable quantity of alcohol, he required their return. On the way home, riding the motorcycle, the customer had an accident and was killed. The High Court today held that neither the proprietor of the hotel nor the licensee had a legal duty to refuse the customer access to the motorcycle and the keys to prevent him suffering an injury which might result from his consumption of alcohol. On 24 January 2002 Shane Scott met a friend at the Tandara Motor Inn at about 5.15pm for a drink. A rumour circulated through the hotel that a police breathalyser was operating near Mr Scott’s home. At the urging of his friend Mr Scott made an informal arrangement with the licensee to hand over the keys of his wife’s motorcycle (which he was driving) and have the motorcycle secured in a storeroom, in order to avoid the police breathalyser. The licensee understood, when the arrangement was made, that Mrs Scott would be called to collect her husband when he wanted to leave. At about 8.15pm Mr Scott decided to go home but emphatically refused the licensee’s offer that his wife be called. He requested the keys to the bike and, to three separate enquiries as to whether he was “right to ride” replied, “Yes, I’m fine”. The licensee retrieved the motorcycle from the storeroom and handed the keys over to Mr Scott. He then rode off. Seven hundred metres from his home, which was about seven kilometres from the hotel, he ran off the road and suffered fatal injuries. At the time of the accident his blood alcohol content was 0.253. In proceedings in the Supreme Court of Tasmania Mrs Scott and the Motor Accidents Insurance Board of Tasmania (MAIB) (which, pursuant to applicable Tasmanian legislation, had paid sums to or on behalf of Mrs Scott) alleged that CAL No 14 Pty Ltd (the proprietor of the Tandara Motor Inn) and the licensee both owed duties of care to Mr Scott, which they had breached. The trial judge held that neither owed any relevant duty of care to Mr Scott. However the Full Court of the Supreme Court of Tasmania, by a majority, held that each of the proprietor and the licensee owed a duty of care to Mr Scott and that their breach of that duty had caused his death. The High Court granted special leave to appeal the Full Court’s decision. In the High Court the MAIB and Mrs Scott (the respondents) argued that the licensee had a duty to comply with the agreement reached between him and Mr Scott to ring Mrs Scott when Mr Scott decided he wanted to go home. In failing to make the call the licensee breached that duty of care, thereby causing Mr Scott’s death. The High Court rejected this argument. Even if the licensee had owed such a duty to Mr Scott it was impossible to conclude on the basis of the evidence either that he could have made such a call or, if he had made such a call, that it would have prevented Mr Scott’s death. The Court also considered that, if the licensee had owed such a duty to Mr Scott, he had complied with the duty when he offered to call Mrs Scott at around 8.15pm - an offer which was rejected. The High Court held that the licensee owed no relevant duty of care to Mr Scott. The informal arrangement for the storage of the motorcycle was made for Mr Scott’s convenience, and did not empower the licensee to deny Mr Scott’s right to recover the keys and the motorcycle, should he request them. The Court also held that the duty argued for by the respondents would have conflicted with Mr Scott’s right and capacity to act in accordance with his own wishes, and would also have been incompatible with other legal duties which bound the licensee. The High Court allowed each appeal and ordered judgment in favour of the proprietor and the licensee.
+HIGH COURT OF AUSTRALIA 13 November 2019 HT v THE QUEEN & ANOR [2019] HCA 40 Today the High Court unanimously allowed an appeal from the New South Wales Court of Criminal Appeal ("the CCA") concerning circumstances in which, in a Crown appeal against sentence under s 5D(1) of the Criminal Appeal Act 1912 (NSW), the CCA denied the appellant and her legal representatives access to confidential evidence which it had taken into account when deciding to allow the appeal and exercise its discretion under s 5D(1) to re-sentence the appellant. The appellant pleaded guilty in the District Court of New South Wales to 11 counts comprising fraud offences which each carried a maximum penalty of either five years' or ten years' imprisonment. A factor of significance to the appellant on sentencing was the assistance that she had provided, and was anticipated to provide, to a law enforcement authority as a registered police informer. The sentencing judge was required by statute to take such assistance into account. An affidavit outlining the appellant's assistance was admitted into evidence in the sentencing proceedings and marked "Exhibit C". It included criminal intelligence of a highly sensitive nature. The Crown had seen Exhibit C, but the appellant and her counsel had not seen, and did not see, its contents. The appellant's counsel had agreed to this course in circumstances in which the only alternative that had been presented by the Crown Solicitor was to receive, and have provided to the Court, a highly redacted version of Exhibit C. The sentencing judge specified a combined discount of 35 per cent for the assistance and guilty pleas and sentenced the appellant to an aggregate sentence of three years and six months' imprisonment, with a non-parole period of 18 months. The Crown appealed to the CCA on the ground that the sentence was manifestly inadequate. The CCA allowed the appeal. On appeal, the appellant's counsel sought access to Exhibit C. The Commissioner of Police (NSW), supported by the Crown, opposed access on the basis of public interest immunity ("PII"). The CCA upheld the PII claim, holding that the information came within a particular class of documents to which PII attaches, but allowed disclosure of one sentence from Exhibit C to the appellant's counsel. The CCA proceeded to determine for itself the appropriate discount for the appellant's assistance. It increased the combined discount for her assistance and guilty pleas to 40 per cent, but also increased the aggregate sentence to six years and six months' imprisonment, with a non-parole period of three years and six months. By grant of special leave, the appellant appealed to the High Court. The Court unanimously held that the appellant was denied procedural fairness in the CCA. Having been denied access to Exhibit C, the appellant was denied a reasonable opportunity of being heard, including testing and responding to evidence which was relevant to whether the sentence was manifestly inadequate and, if so, whether the CCA should exercise its discretion to re-sentence the appellant. The Court did not consider the denial of procedural fairness to be justified by PII, holding that the doctrine of PII does not extend to permitting material to be admitted in evidence in proceedings, but kept confidential from one party to those proceedings. Nor was the withholding of Exhibit C permitted by an alternative source of power. In the circumstances of this case, the Court held that the proper exercise of its discretion should have led the CCA to dismiss the Crown's appeal against sentence and that the denial of procedural fairness was, alone, a reason for doing so.
+HIGH COURT OF AUSTRALIA 26 April 2007 Public Information Officer BRENT BURGE, TREVOR ROGERS, BENJAMIN WARREN, BOLD GOLD INVESTMENTS, GLEN PETER BOSMAN AND SERGIO EDWARD ZAZA v JOHN HARLEY SWARBRICK Moulds used in the reproduction of a high-speed yacht did not attract copyright protection as works of artistic craftsmanship, the High Court of Australia held today. Mr Swarbrick is a naval architect whose Perth company Swarbrick Yachts International Pty Ltd manufactures fibreglass yachts called the JS 9000, sold in Australia and around the world for up to $65,000. He designed the JS 9000 as a fast boat sailed easily by two or three people. Mr Swarbrick has also designed America’s Cup and Whitbread racing yachts. Mr Rogers and Mr Warren were employed by Swarbrick Yachts in the moulding of hulls and decks but left to work for Bold Gold to build a JS 9000 yacht using a hull and deck moulding which Bold Gold bought from Mr Rogers for $7,500. In late 2002, Mr Swarbrick gave Mr Rogers the moulding in disputed circumstances which have not been resolved. Mr Bosman and Mr Zaza formed Bold Gold Investments for the purpose of acquiring the moulding from Mr Rogers. Mr Burge was engaged as factory operation manager. Work at Bold Gold’s factory ceased in September 2003 after Justice Christopher Carr in the Federal Court of Australia granted Mr Swarbrick an interim injunction. The injunction prevents the manufacture of any mould using the JS 9000 hull and deck mouldings and the reproduction of the object called “the plug”, a hand-crafted full-scale model of the hull and deck sections of a finished JS 9000. The moulds are exact, although inverted, copies of the plug. Section 77 of the Copyright Act provides for the limitation of copyright protection resulting from use of a corresponding but unregistered design but an exception is provided for “a work of artistic craftsmanship”. Justice Carr held that Bold Gold had infringed Mr Swarbrick’s copyright in the plug, the hull mould and the hull moulding, being artistic works, and had engaged in conduct which, but for the interim injunction, would have resulted in infringement of his copyright in artistic works being the deck mould and deck moulding. The Full Court dismissed an appeal. Bold Gold and its personnel then appealed to the High Court. The Court unanimously allowed the appeal. It held that determining whether a work is “a work of artistic craftsmanship” does not turn on assessing the work’s beauty or aesthetic appeal or on assessing any harmony between its visual appeal and its utility. The determination turns on the extent to which the work’s artistic expression is unconstrained by functional considerations. Whether the plug was a work of artistic craftsmanship did not depend on Mr Swarbrick’s intention to design and build a yacht of great aesthetic appeal or on his belief that the JS 9000 had a high level of aesthetic appeal. The visual appeal was secondary to the functional aspects of a sports boat of high speed. The Court held that Justice Carr should have concluded that the plug was not a work of artistic craftsmanship because Mr Swarbrick’s work in designing it was not that of an artist- craftsman. It held that Justice Carr was however correct to describe the hull and deck mouldings as manifestations of the plug. The Court rejected a claim that the mouldings are independently works of artistic craftsmanship. It set aside all orders, including the injunction, made by Justice Carr and held that remaining cross-claims be stood over for determination by the Federal Court.
+HIGH COURT OF AUSTRALIA 11 November 2010 COMMISSIONER OF TAXATION v ANSTIS [2010] HCA 40 Today the High Court held that a university student in receipt of youth allowance payments was entitled to claim various self-education expenses as income tax deductions. Symone Anstis was enrolled as a full-time student in a teaching degree at the Australian Catholic University. In the 2006 income year she earned $14,946 in wages as a part-time sales assistant, and $3,622 in youth allowance payments. In her tax return for that period she claimed a $920 deduction for self-education expenses, comprising the depreciation in value of a computer, textbooks and stationery, a student administration fee, supplies for children during her teaching rounds, and travel expenses other than to university. Section 8-1 of the Income Tax Assessment Act 1997 (Cth) ("the 1997 Act") relevantly provides that a person can deduct from their assessable income any loss or outgoing to the extent that it is incurred in gaining or producing their assessable income except to the extent that it is a loss or outgoing of a private or domestic nature. The Commissioner of Taxation disallowed the deduction, and Ms Anstis was unsuccessful in an application for review by the Administrative Appeals Tribunal ("AAT"). In 2009, the AAT's decision was reversed by the Federal Court. The Full Federal Court dismissed an appeal by the Commissioner against that decision. The High Court unanimously dismissed an appeal by the Commissioner of Taxation. The Court held that youth allowance payments amounted to assessable income under the 1997 Act as they fell within the concept of "ordinary income". Because Ms Anstis' entitlement to youth allowance arose from her undertaking full-time study, the expenses claimed were incurred in gaining or producing her assessable income. The Court also held that the expenses were not of a private or domestic nature, and as such were deductible under s 8-1 of the 1997 Act. The Commissioner of Taxation was ordered to pay Ms Anstis' costs.
+HIGH COURT OF AUSTRALIA 14 March 2018 JOSHUA JAMES PIKE & ANOR v KYM LOUISE TIGHE AND MICHAEL JAMES TIGHE & ANOR [2018] HCA 9 Today the High Court unanimously allowed an appeal from the Court of Appeal of the Supreme Court of Queensland. The Court held that s 245 of the Sustainable Planning Act 2009 (Q) ("the Act") obliges a successor in title to ownership of a parcel of land created by the reconfiguration of a larger parcel to comply with a condition of the approval for the reconfiguration that should have been, but was not, satisfied by the original owner prior to completion of the reconfiguration. The Townsville City Council ("the Council") approved an application by the then registered proprietors of land for development by way of reconfiguration of an existing lot into two lots. The approval was subject to certain conditions, including a condition ("condition 2") that required that an easement be provided over lot 1 for the benefit of lot 2. The schedule to the approval provided that, unless explicitly stated elsewhere in the approval, all conditions had to be satisfied prior to the Council signing the survey plan. The registered proprietors of the original lot executed an easement in terms which did not reflect condition 2. Despite this omission, the Council approved the relevant survey plan to give effect to the reconfiguration. The registered proprietors later executed a second easement that was relevantly identical to the first easement. Subsequently, the titles for lots 1 and 2 were created and the second easement was registered in relation to each title. The first respondents, the Tighes, were later registered as the owners of lot 1 and the appellants, the Pikes, were registered as the owners of lot 2. In the Planning and Environment Court of Queensland, the Pikes sought a declaration that condition 2 of the development approval had been contravened and an enforcement order directing the Tighes to comply with that condition. The primary judge granted the Pikes' application, holding that s 245 of the Act had the effect that the conditions stipulated in the development approval ran with the land. His Honour held that the Tighes had committed a development offence which warranted the making of an enforcement order to provide the Pikes with an easement conforming to condition 2. The Court of Appeal allowed the Tighes' appeal, holding that s 245 binds only the person permitted by the approval to carry out the subdivision of the original lot. By grant of special leave, the Pikes appealed to the High Court. The Court held that s 245(1) of the Act expressly gives the conditions of a development approval the character of personal obligations capable of enduring in their effect beyond the completion of the development which the development approval authorised. It was held that the land to which the development approval attaches is all the land the subject of the development application. The Court held that, by failing to provide the easement required by condition 2 after being requested to do so, the Tighes contravened s 580 of the Act. Consequently, the Planning and Environment Court could make an enforcement order under ss 601, 604 and 605 requiring the Tighes to fulfil the condition. The High Court therefore allowed the appeal and remitted the matter to the primary judge for the making of final orders.
+HIGH COURT OF AUSTRALIA 2 October 2013 WILLIAM DAVID BUGMY v THE QUEEN [2013] HCA 37 Today the High Court unanimously allowed an appeal from a decision of the Court of Criminal Appeal of the Supreme Court of New South Wales, which had increased the sentence imposed on William David Bugmy for intentionally causing grievous bodily harm to a correctional services officer. Mr Bugmy, an Aboriginal Australian who grew up in circumstances of social deprivation, had been sentenced for the offence in the District Court of New South Wales to a term of imprisonment comprising a non-parole period of four years with a balance of term of two years. The Director of Public Prosecutions appealed to the Court of Criminal Appeal on the ground that the sentence was manifestly inadequate. The Court of Criminal Appeal, allowing the Director's appeal, re-sentenced Mr Bugmy for the offence to a non-parole period of five years with a balance of term of two years and six months. In the High Court, Mr Bugmy argued that the Court of Criminal Appeal erred in allowing the Director's appeal without having held that the original sentence was manifestly inadequate and without having considered the exercise of its residual discretion to dismiss an appeal by the Director. Mr Bugmy also argued that the Court of Criminal Appeal erred in holding that the extent to which his deprived background as an Aboriginal Australian could be taken into account in sentencing diminished with time and repeat offending. The High Court unanimously allowed Mr Bugmy's appeal. The High Court held that since the Court of Criminal Appeal had not addressed the question of whether the original sentence was manifestly inadequate, which was in truth the sole ground of the Director's challenge, and had not considered its residual discretion to dismiss the Director's appeal, its authority to re-sentence the appellant had not been enlivened. The High Court therefore set aside the order of the Court of Criminal Appeal relating to the offence and remitted the Director's appeal to that Court. The High Court also held that the same sentencing principles apply irrespective of the identity of a particular offender or his or her membership of an ethnic or other group. Additionally, the joint reasons held that the effects upon an offender of profound deprivation do not diminish over time and should be given full weight when sentencing the offender. However, those effects do not necessarily serve to mitigate an offender's sentence given the conflicting purposes of punishment, such as rehabilitation and personal and general deterrence, which must be balanced in each individual case.
+HIGH COURT OF AUSTRALIA 8 November 2017 FRITS GEORGE VAN BEELEN v THE QUEEN [2017] HCA 48 Today the High Court unanimously dismissed an appeal from the Full Court of the Supreme Court of South Australia. The appeal concerned s 353A(1) of the Criminal Law Consolidation Act 1935 (SA) ("the Act"), which confers a novel jurisdiction on the Full Court to determine a second or subsequent appeal against conviction in the case of fresh and compelling evidence. The Full Court had refused the appellant's application for permission to bring a second appeal on the basis of new evidence. In 1973, the appellant was convicted of the murder of a 15 year old school girl at Taperoo Beach in South Australia. The prosecution case was circumstantial and depended upon evidence that, given the time of death, the appellant was one of the few male persons with the opportunity to have committed the offence and upon evidence of the similarity between fibres found on the clothing of the appellant and of the deceased. At trial, the pathologist who conducted the autopsy gave evidence, based on the rate of stomach emptying, that the deceased must have died by 4:30pm. The deceased had last been seen alive at around 4:00pm. There was unchallenged evidence that the appellant left Taperoo Beach not later than 4:30pm. In 2015, the appellant applied to the Full Court for permission to bring a second appeal pursuant to s 353A(1) of the Act. A second or subsequent appeal may only be brought under s 353A(1) if the court is satisfied that there is fresh and compelling evidence that should, in the interests of justice, be considered on the appeal. Evidence is "compelling" if it is reliable, substantial and highly probative in the context of the issues in dispute at the trial. The appellant applied for permission to appeal on the basis of fresh expert evidence of the results of studies conducted since the date of the trial which was said to demonstrate that the pathologist's opinion concerning the rate of stomach emptying was "unequivocally highly erroneous". The fresh evidence falsified the basis for the opinion that the deceased must have been dead by 4:30pm. The majority in the Full Court concluded that the fresh evidence was not "compelling" because it only confirmed the correctness of evidence given at the trial by an opposing defence expert. The majority concluded that the evidence did not possess high probative value in the context of the issues in dispute at the trial, again because the evidence of the time of death based on stomach emptying had been the subject of challenge at trial. By grant of special leave, the appellant appealed to the High Court. The High Court unanimously held that the evidence was "compelling" within the meaning of s 353A(1) and that it was in the interests of justice for it to be considered on appeal. After reviewing the evidence given at the trial, the Court concluded that the prosecution had established beyond reasonable doubt that the deceased was dead by 4:50pm. In the absence of the pathologist's opinion concerning the time of death, there was a window of 20 minutes after the appellant left Taperoo Beach during which the expert evidence could not exclude the possibility that death occurred. The Court held, however, that this did not significantly reduce the improbability of a person other than the appellant being the killer. The Court held that the majority of the Full Court had been right to conclude that there was not a significant possibility that a properly instructed jury, acting reasonably, would have acquitted the appellant even if the pathologist's opinion concerning the time of death had not been admitted. Accordingly, the appeal was dismissed.
+HIGH COURT OF AUSTRALIA 29 February 2012 LEX PATRICK WOTTON v THE STATE OF QUEENSLAND & ANOR [2011] HCA 2 Today the High Court held that ss 132(1)(a) and 200(2) of the Corrective Services Act 2006 (Q) ("the Act") are not invalid, in their application to prisoners on parole, for impermissibly burdening the implied constitutional freedom of communication about government and political matters. The Court considered that both sections were reasonably appropriate and adapted to serve a legitimate end in a manner compatible with the maintenance of the constitutionally prescribed system of representative government. The plaintiff is an Aboriginal person who was born on Palm Island and has resided there for a substantial part of his life. On 26 November 2004 the plaintiff participated in a riot on Palm Island following the death of an Aboriginal man, Mr Mulrunji Doomadgee, in police custody. The plaintiff was convicted of rioting causing destruction contrary to ss 61 and 65 of the Criminal Code (Q) ("the Code") and sentenced to six years' imprisonment with a parole eligibility date after two years served. The second defendant ("the Parole Board") is a regional parole board established pursuant to ss 230-240 of the Act. One of its functions is to decide applications for parole orders. Under s 180(1) of the Act a prisoner may apply for a parole order if the prisoner has reached the applicable parole eligibility date. Section 200(2) of the Act provides that a parole order may contain conditions the board reasonably considers necessary to "ensure the prisoner's good conduct" or "stop the prisoner committing an offence." The Parole Board directed that the plaintiff be released on parole, upon 22 conditions identified in the Parole Order as (a)-(v). Conditions (t) and (v) were to be supported as an exercise of the power conferred by s 200(2), and prohibited the plaintiff from attending public meetings on Palm Island without the prior approval of the corrective services officer and from receiving any direct or indirect payment or benefit from the media. Condition (g) of the Parole Order required that the plaintiff "not commit an offence". Section 132(1)(a) of the Act makes it an offence for a person to "interview a prisoner, or obtain a written or recorded statement from a prisoner" including a prisoner released on parole. Section 132(2)(d), however, provides that a person does not commit an offence against s 132(1) if the person has the chief executive's written approval to carry out the relevant activity. Section 7 of the Code deems a person who, among other things, does any act for the purpose of enabling or aiding another to commit an offence, to have taken part in the commission of an offence. If the plaintiff were liable for an offence by the application of s 7, he would breach condition (g) of the Parole Order. The plaintiff brought proceedings in the original jurisdiction of the High Court challenging the constitutional validity of ss 132(1)(a) and 200(2) of the Act, as they apply to prisoners on parole, on the basis that they impermissibly burden the implied constitutional freedom of communication about government and political matters. The plaintiff also challenged conditions (t) and (v) of the Parole Order on the same basis. The Court held unanimously that both s 132(1)(a), as qualified by s 132(2)(d), and s 200(2), comply with this constitutional limitation upon the legislative power of the State. A majority held that both sections effectively burden freedom of communication about government or political matters, but that the sections are nevertheless each reasonably appropriate and adapted to serve a legitimate end in a manner compatible with the maintenance of the constitutionally prescribed system of government. The legitimate end of s 132(1)(a), as qualified by s 132(2)(d), is community safety and crime prevention through humane containment, supervision and rehabilitation of offenders. The legitimate end of s 200(2) is the imposition of conditions the Parole Board considers reasonably necessary to ensure good conduct and to stop the parolee committing an offence. In light of the validity of s 200(2), the validity of conditions (t) and (v) then depends on whether, in implementing them, the Parole Board exceeded the authority conferred upon it by s 200(2). That question did not arise in this proceeding.
+HIGH COURT OF AUSTRALIA 18 October 2017 BROWN & ANOR v THE STATE OF TASMANIA [2017] HCA 43 Today the High Court held invalid certain provisions of the Workplaces (Protection from Protesters) Act 2014 (Tas) ("the Protesters Act") in their operation in respect of forestry land and business access areas relating to forestry land. Various provisions of the Protesters Act prohibit "protesters" – that is, persons engaging in conduct in furtherance of, or for the purposes of promoting awareness of or support for, "an opinion, or belief, in respect of a political, environmental, social, cultural or economic issue" – from engaging in certain conduct on "business premises" or "business access areas". "Business premises" relevantly comprises "forestry land", which includes land on which "forest operations" are being carried out. "Business access area" is defined as so much of an area of land, outside business premises, as is reasonably necessary to enable access to an entrance to, or to an exit from, business premises. Police officers may direct any person to leave or stay away from "business premises" or "business access areas" in certain circumstances under pain of arrest or criminal penalty. The plaintiffs were present in the Lapoinya Forest in North West Tasmania when forest operations were being conducted there. The plaintiffs were each arrested and charged with offences under the Protesters Act in relation to their conduct in opposing the logging of part of a coupe in that forest. The charges against each plaintiff were not later pursued. It was not disputed that, but for directions made under the Protesters Act, and to the extent permitted by other laws, the plaintiffs would have gone back to the Lapoinya Forest for the purpose of raising public awareness of logging in that forest. In the High Court, the plaintiffs challenged the validity of certain provisions of the Protesters Act on the basis that the Constitution protects freedom of political communication and that those provisions impermissibly burden that freedom. A majority of the High Court held that, in their operation in respect of forestry land and business access areas relating to forestry land, the impugned provisions of the Protesters Act effectively burdened the implied freedom of political communication. A majority of the Court held that the Protesters Act pursued the legitimate purpose of protecting businesses and their operations by ensuring that protesters do not prevent, hinder or obstruct the carrying out of business activities on business premises. However, by majority, the Court held that the burden imposed by the impugned provisions on the implied freedom of political communication was impermissible because those provisions were not reasonably appropriate and adapted, or proportionate, to the pursuit of that purpose in a manner compatible with the maintenance of the system of representative and responsible government that the Constitution requires. A majority of the Court therefore declared that the impugned provisions were invalid in their operation in respect of forestry land and related business access areas.
+HIGH COURT OF AUSTRALIA 13 December 2018 AUSTRALIAN SECURITIES & INVESTMENTS COMMISSION v LEWSKI & ANOR; AUSTRALIAN SECURITIES & INVESTMENTS COMMISSION v WOOLDRIDGE & ANOR; AUSTRALIAN SECURITIES & INVESTMENTS COMMISSION v BUTLER & ANOR; AUSTRALIAN SECURITIES & INVESTMENTS COMMISSION v JAQUES & ANOR; AUSTRALIAN SECURITIES & INVESTMENTS COMMISSION v CLARKE & ANOR [2018] HCA 63 Today the High Court unanimously allowed, in part, four appeals from a decision of the Full Court of the Federal Court of Australia. The High Court reinstated declarations, made by the primary judge, that the respondent director in each of the four appeals ("the four directors") had contravened the Corporations Act 2001 (Cth), and remitted those matters to the Full Court for determination of penalties, disqualification orders, costs, and a cross-appeal to that Court. The orders of the Full Court in relation to Mr Clarke, the director in the fifth appeal, were not in dispute. Each of the four directors was a director of the second respondent, Australian Property Custodian Holdings Ltd ("APCHL"), the responsible entity of a managed investment scheme. On 19 July 2006, the four directors resolved to amend the scheme's constitution (without member approval) to introduce, without corresponding benefit to the members of the scheme, substantial new fees payable to APCHL ("the Amendment Resolution"). One of the new fees was a "Listing Fee" payable upon listing of the scheme's units on the Australian Securities Exchange. On 22 August 2006, all five directors resolved to lodge the amended constitution with the Australian Securities & Investments Commission ("ASIC") ("the Lodgement Resolution"). The amended constitution was lodged the next day and would have taken effect then if valid. In 2007, the directors acted to cause the Listing Fee to be paid to companies associated with one of the directors ("the Payment Resolutions"). Since more than six years had elapsed since 19 July 2006, ASIC was time-barred from bringing proceedings alleging breaches of the Corporations Act in relation to the Amendment Resolution. Instead, ASIC commenced proceedings in the Federal Court of Australia alleging breaches of duties concerning the Lodgement and Payment Resolutions, and contraventions of related party transactions provisions (ss 208 and 209(2)) of the Corporations Act by payment of the Listing Fee. The primary judge held that the Amendment Resolution was invalid for non-compliance with s 601GC(1)(b) of the Corporations Act, and that the contraventions alleged by ASIC were established. His Honour disqualified each of the four directors from managing corporations and ordered pecuniary penalties against all five directors. On appeal, the Full Court set aside the orders and declarations made by the primary judge. The Full Court held that although the Amendment Resolution was invalid the lodged amendments were valid until set aside, and the directors were entitled to act in accordance with the amended constitution that they honestly believed existed. The Full Court did not need to consider ASIC's cross-appeal in relation to the adequacy of the pecuniary penalties and disqualifications imposed on the directors. On appeal, the High Court held that each of the Lodgement Resolution and Payment Resolutions was invalid. Those resolutions adversely affected members' rights, so the amendments did not comply with s 601GC(1) of the Corporations Act. The concept of interim validity relied upon by the Full Court is not supported by the text or protective purpose of s 601GC. The Court held that the duties of APCHL and the directors were not satisfied by an honest or reasonable belief in the validity of the amendments and that each of the alleged breaches had occurred, with the exception of the alleged contravention of s 209. ASIC could not prove that the directors knew that the Listing Fee was unauthorised. This meant that an essential element of the contravention of s 209 was absent.
+HIGH COURT OF AUSTRALIA 3 December 2014 CANTARELLA BROS PTY LIMITED v MODENA TRADING PTY LIMITED [2014] HCA 48 Today the High Court, by majority, held that the trade marks "ORO" and "CINQUE STELLE" — registered by the appellant, Cantarella Bros Pty Limited ("Cantarella"), in respect of products including coffee — were inherently adapted to distinguish the goods for which they were registered from the goods of other persons, within the meaning of s 41 of the Trade Marks Act 1995 (Cth). Both Cantarella and the respondent, Modena Trading Pty Limited ("Modena"), advertise, offer for sale and sell coffee products in Australia. Cantarella brought proceedings in the Federal Court of Australia claiming that Modena had infringed its registered trade marks "ORO" and "CINQUE STELLE" (meaning "gold" and "five stars" respectively in Italian). By cross-claim, Modena argued that the registration of the trade marks should be cancelled, on the basis that the trade marks were not inherently adapted to distinguish the goods for which they were registered. At the relevant time, s 41(2) of the Act provided that the Registrar of Trade Marks must reject an application for registration of a trade mark if the trade mark "is not capable of distinguishing the applicant's goods ... in respect of which the trade mark is sought to be registered ... from the goods ... of other persons". Section 41(3) stated that, in deciding whether s 41(2) applies to an application, the Registrar must first take into account the extent to which the trade mark "is inherently adapted to distinguish the designated goods ... from the goods ... of other persons". In the Federal Court, Cantarella succeeded in establishing infringement and Modena failed in its cross-claim. Modena appealed on the cross-claim. The Full Court of the Federal Court allowed the appeal and held that the registration of the trade marks should be cancelled. By special leave, Cantarella appealed to the High Court. The High Court, by majority, allowed the appeal. The Court emphasised that, in determining whether a trade mark consisting of a word or words (English or foreign) is "inherently adapted to distinguish", it is necessary to consider the "ordinary signification" of the word or words to persons in Australia concerned with the goods to which the trade mark is to be applied. The Court found that "ORO" and "CINQUE STELLE" were not shown to convey a meaning or idea sufficiently tangible to anyone in Australia concerned with coffee goods as to be words having a direct reference to the character or quality of the goods. Accordingly, the Court held that the trade marks were inherently adapted to distinguish the goods for which they were registered from the goods of other persons.
+HIGH COURT OF AUSTRALIA 26 June 2013 X7 v AUSTRALIAN CRIME COMMISSION & ANOR [2013] HCA 29 Today a majority of the High Court held that the Australian Crime Commission Act 2002 (Cth) ("the Act") did not authorise an examiner, appointed under the Act, to require a person charged with an indictable Commonwealth offence to answer questions before his or her trial about the subject matter of the offence. On 23 November 2010, the plaintiff was arrested and subsequently charged with three indictable Commonwealth offences in relation to alleged conspiracies to import and traffic in a commercial quantity of a controlled drug, and to deal with money that was the proceeds of crime. Whilst in custody, the plaintiff was served with a summons, issued pursuant to the Act, which required him to answer questions before an examiner for the purposes of a special investigation by the Australian Crime Commission ("the ACC"). At the examination, the plaintiff was asked, and answered, questions about the subject matter of the offences with which he had been charged. Following an adjournment of the examination, the plaintiff refused to answer further questions about that subject matter. The plaintiff was told that he would be charged with the offence of failing to answer a question that he was required, by the examiner, to answer. The plaintiff applied to the High Court for an injunction to prevent the ACC, by its officers and examiners, from examining him in relation to the subject matter of the charged offences. The plaintiff sought a declaration that the examination provisions of the Act were beyond the power of the Commonwealth Parliament to the extent that they permitted the compulsory examination of a person charged with an indictable offence about the subject matter of that offence. He also sought a declaration that any such examination contravened Ch III of the Constitution because it interfered with his right to a fair trial. A majority of the High Court held that the examination provisions of the Act did not permit an examiner of the ACC to require a person charged with, but not yet tried for, an indictable Commonwealth offence to answer questions about the subject matter of the charged offence. The Court held that if the examination provisions of the Act were interpreted to permit compulsory examination in such circumstances, the provisions would effect a fundamental alteration to the accusatorial and adversarial process of criminal justice. Such an alteration could only be effected by express statutory language or by necessary implication. The Court held that examination provisions of the Act did not, expressly or impliedly, effect such an alteration. Having so held, the majority of the Court did not need to consider the plaintiff's constitutional arguments.
+HIGH COURT OF AUSTRALIA 13 December 2019 FRANZ BOENSCH AS TRUSTEE OF THE BOENSCH TRUST v SCOTT DARREN PASCOE [2019] HCA 49 Today the High Court unanimously dismissed an appeal from a judgment of the Full Court of the Federal Court of Australia concerning whether property held by a bankrupt on trust for another vested in the bankrupt's trustee in bankruptcy. Relevantly, s 5(1) of the Bankruptcy Act 1966 (Cth) defines "the property of the bankrupt" as including "the property divisible among the bankrupt's creditors", from which s 116(2)(a) excludes "property held by the bankrupt in trust for another person". Section 58 of the Bankruptcy Act vests "the property of the bankrupt" in the bankrupt's trustee in bankruptcy, but further provides that, where a Commonwealth, State or Territory law requires registration of a transmission of property and enables a trustee in bankruptcy to be registered as owner, the property vests only in equity, until compliance with the requirements of the law. Section 90 of the Real Property Act 1900 (NSW) is such a State law. The appellant (Mr Boensch) and his former wife were registered as joint proprietors in fee simple of a property subject to the Real Property Act ("the Rydalmere property"). Mr Boensch claimed that, some four years before he was served with a bankruptcy notice, he and his former wife had executed a memorandum of trust over the Rydalmere property and that, later, they executed a deed of trust confirming the settlement upon him as trustee for their children. A transfer of their joint estate to Mr Boensch alone was then executed, but not registered at that time. Thereafter, a sequestration order against Mr Boensch was made, and the respondent (Mr Pascoe) was appointed as his trustee in bankruptcy. Two days later, Mr Pascoe lodged a caveat against dealings over the Rydalmere property, claiming a "Legal Interest pursuant to the Bankruptcy Act 1966" in accordance with his usual practice. On advice from counsel, he also instituted proceedings for relief under s 120 or s 121 of the Bankruptcy Act, which were ultimately dismissed after a determination that the trust was validly constituted. Mr Boensch instituted proceedings in the Supreme Court of New South Wales for compensation under s 74P(1) of the Real Property Act, alleging that Mr Pascoe had lodged, and later refused or failed to withdraw, the caveat without reasonable cause. The primary judge, and the Full Court of the Federal Court on appeal, held that, upon the making of a sequestration order against a bankrupt who holds property subject to the Real Property Act on trust, s 58 of the Bankruptcy Act vested the property in equity in the trustee in bankruptcy subject to the trust. In turn, the primary judge and Full Court held that the Rydalmere property vested in equity in Mr Pascoe on that basis, and that the existence of that caveatable interest sufficed to dismiss Mr Boensch's claim for compensation according to the test of "reasonable cause" laid down in Beca Developments Pty Ltd v Idameneo (No 92) Pty Ltd (1990) 21 NSWLR 459. By grant of special leave, Mr Boensch appealed to the High Court. In dismissing the appeal, the High Court unanimously held that, provided a bankrupt has a valid beneficial interest in trust property (whether vested or contingent), that property will vest in the trustee in bankruptcy under s 58 of the Bankruptcy Act, subject to equities in favour of third parties; and that, where the property is subject to the Real Property Act, it vests forthwith in equity in the trustee in bankruptcy, who may then apply to be registered as legal proprietor, although he or she will continue to hold the estate or interest subject to such equities. In the circumstances, the Court determined that Mr Boensch had a beneficial interest in the Rydalmere property to the extent of his right of indemnity; and, by reason of that interest, an equitable estate in the Rydalmere property vested forthwith in Mr Pascoe, who thus had a caveatable interest. There being no cause to depart from the Beca Developments test, the Court unanimously concluded that Mr Pascoe did not lodge or maintain the caveat without reasonable cause.
+HIGH COURT OF AUSTRALIA 20 June 2012 RONALD WILLIAMS v THE COMMONWEALTH OF AUSTRALIA & ORS [2012] HCA 23 Today the High Court, by majority, held that a funding agreement between the Commonwealth of Australia and Scripture Union Queensland ("SUQ") for the provision of chaplaincy services at a State school in Queensland ("the Funding Agreement") is invalid. A majority of the Court also held that payments made by the Commonwealth to SUQ under the Funding Agreement were not supported by s 61 of the Constitution. SUQ, a public company, entered into the Funding Agreement with the Commonwealth to provide certain chaplaincy services at the Darling Heights State School in Queensland ("the School") in accordance with certain guidelines ("the NSCP Guidelines"). Those services included assisting the School and community "in supporting the spiritual wellbeing of students" and "being approachable by all students, staff and members of the school community of all religious affiliations". The Funding Agreement was entered into pursuant to the Commonwealth's National School Chaplaincy Program ("the NSCP"). The funding of the NSCP is not provided under legislation, but under a series of funding arrangements administered by the Commonwealth of which the Funding Agreement is one example. Ronald Williams, the plaintiff, is the father of four children who attended the School. In 2010, Mr Williams commenced proceedings in the original jurisdiction of the High Court challenging the Commonwealth's authority to enter into the Funding Agreement with SUQ, to draw money from the Consolidated Revenue Fund ("the CRF") for each of the financial years from 2007-2008 to 2011-2012 inclusive, and to pay the appropriated moneys to SUQ pursuant to the Funding Agreement. In addition to the Commonwealth, the Minister for School Education, Early Childhood and Youth, and the Minister for Finance and Deregulation were defendants to the proceeding (collectively, "the Commonwealth parties"). Under the Rules of the Court, the parties agreed to submit a special case to the High Court for determination. Relevantly, the special case asked: 1. Does Mr Williams have standing to challenge the Funding Agreement, the drawing of money from the CRF, and the Commonwealth's payments to SUQ? Is the Funding Agreement invalid because it is: (a) beyond the executive power of the Commonwealth under s 61 of the Constitution, or (b) prohibited by s 116 of the Constitution? 3. Was the drawing of money from the CRF to make payments under the Funding Agreement authorised by the relevant Appropriation Acts? 4. Were the payments made by the Commonwealth to SUQ pursuant to the Funding Agreement: (a) beyond the executive power of the Commonwealth under s 61 of the Constitution, or (b) prohibited by s 116 of the Constitution? Standing (Question 1): The High Court unanimously held that Mr Williams had standing to challenge the validity of the Funding Agreement. A majority of the Court also held that Mr Williams had standing to challenge the validity of each of the payments made to SUQ, and that it was unnecessary to answer whether Mr Williams had standing to challenge the Commonwealth's appropriations of money from the CRF. Executive Power (Questions 2(a) and 4(a)): By majority, the High Court held that the Funding Agreement and payments made to SUQ under that agreement were invalid because they were beyond the executive power of the Commonwealth. In the absence of legislation authorising the Commonwealth to enter into the Funding Agreement, the Commonwealth parties relied upon the executive power granted by s 61 of the Constitution. Relevantly, s 61 provides that the executive power of the Commonwealth "extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth". A majority of the High Court held that, in the absence of statutory authority, s 61 did not empower the Commonwealth to enter into the Funding Agreement or to make the challenged payments. In particular, a majority of the Court held that the Commonwealth's executive power does not include a power to do what the Commonwealth Parliament could authorise the Executive to do, such as entering into agreements or contracts, whether or not the Parliament had actually enacted the legislation. A majority also held that s 44 of the Financial Management and Accountability Act 1997 (Cth) did not provide the Commonwealth with the necessary statutory authorisation to enter into the Funding Agreement or to make payments to SUQ under that agreement. Freedom of Religion (Questions 2(b) and 4(b)): The High Court unanimously dismissed that part of Mr Williams' challenge based on s 116 of the Constitution. Relevantly, s 116 provides that "no religious test shall be required as a qualification for any office or public trust under the Commonwealth". Mr Williams contended that the definition of "school chaplain" in the NSCP Guidelines imposed a religious test for that office, and that the position of a "school chaplain" was an "office ... under the Commonwealth". The High Court held that the school chaplain engaged by SUQ to provide services at the School did not hold office under the Commonwealth. The chaplain did not enter into any contractual or other arrangement with the Commonwealth. Appropriations (Question 3): In light of the answer given to Question 1, a majority of the High Court held that it was unnecessary to answer this question.
+HIGH COURT OF AUSTRALIA 10 August 2012 THE QUEEN v KHAZAAL [2012] HCA 26 Today the High Court unanimously allowed an appeal from a decision of the Court of Criminal Appeal of the Supreme Court of New South Wales, which had allowed an appeal by the respondent, Belal Saadallah Khazaal, against his conviction for making a document connected with assistance in a terrorist act, knowing of that connection, contrary to s 101.5(1) of the Criminal Code (Cth) ("the Code"). In September 2003, the respondent compiled and edited an electronic book ("the e-book"), which he subsequently submitted for publication online. The e-book comprised material written in Arabic concerning Islam and jihad that the respondent had downloaded from the internet, together with a dedication, foreword and other short passages written by the respondent. Among other things, the e-book advocated the widespread use of assassination, described numerous methods of carrying out assassinations, and identified particular targets for assassination. The respondent was charged under s 101.5(1) of the Code with making a document "connected with ... assistance in a terrorist act" while knowing of that connection. Section 101.5(5) of the Code provides that no offence is committed under s 101.5(1) "if the ... making of the document was not intended to facilitate ... assistance in a terrorist act". Under s 13.3 of the Code, the respondent bore the burden of "adducing or pointing to evidence that suggest[ed] a reasonable possibility" that the making of the e-book was not intended to facilitate assistance in a terrorist act ("the evidential burden"). The respondent stood trial in the Supreme Court of New South Wales in August and September 2008. He did not give evidence at his trial, but did point to evidence adduced by the prosecution concerning his status as an accredited journalist and researcher with an academic interest in Islam, the circumstances in which he made the e-book, and some parts of the e-book's contents. The respondent argued that this evidence suggested a reasonable possibility that the making of the e- book was not intended to facilitate assistance in a terrorist act. The trial judge rejected this argument. The respondent was convicted and sentenced to 12 years' imprisonment, with a non- parole period of 9 years. The respondent successfully appealed to the Court of Criminal Appeal. A majority of the Court of Criminal Appeal held that the evidence pointed to by the respondent was sufficient to discharge the evidential burden imposed by ss 13.3 and 101.5(5) of the Code. By special leave, the prosecution appealed to the High Court. The prosecution argued that the evidence pointed to by the respondent was not sufficient to discharge the evidential burden imposed by ss 13.3 and 101.5(5) of the Code. By notice of contention, the respondent argued that the trial judge had misdirected the jury by not giving adequate directions in relation to the words "connected with ... assistance in a terrorist act" in s 101.5(1). The High Court unanimously allowed the appeal. In relation to the argument on the appeal, the Court held that the evidence pointed to by the respondent did not suggest a reasonable possibility that the making of the e-book was not intended to facilitate assistance in a terrorist act. In relation to the notice of contention, the Court held that no error had been shown in the trial judge's directions.
+HIGH COURT OF AUSTRALIA 8 February 2005 CHIEF COMMISSIONER OF STATE REVENUE v DICK SMITH ELECTRONICS HOLDINGS PTY LTD The High Court of Australia today held that stamp duty had been correctly assessed in a transaction involving the sale of shares. Dick Smith Electronics agreed in 2001 to buy all the shares in InterTAN Australia Ltd, which operates the Tandy Electronics and RadioShack stores. The shares were held by InterTAN Inc, based in Delaware, and InterTAN Canada Ltd. InterTAN Australia is incorporated in New South Wales. The Commissioner assessed duty at $684,838.20, rather than the $531,330.60 proffered by Dick Smith. The difference was due to the Commissioner’s conclusion that the consideration for the transaction was $114,139,649, not $88,555,552 as Dick Smith contended. The difference of $25,585,097 was a pre-transfer dividend which Dick Smith, under the purchase agreement, was obliged to fund via a loan to InterTAN Australia. The NSW Supreme Court and the majority of the Court of Appeal accepted Dick Smith’s argument that the relevant amount on which duty should be assessed was $88,555,552. The Commissioner appealed to the High Court, which allowed the appeal by a 3-2 majority. The High Court majority held that the Commissioner’s position that the intended result of the transaction was that the North American vendors received $114,139,649 was correct. The vendors had bargained for an obligation on Dick Smith to bring about that result. The requirement that Dick Smith fund InterTAN Australia to discharge the debt created by the declaration of the dividend formed part of the consideration for the transfer of the shares to Dick Smith.
+HIGH COURT OF AUSTRALIA 7 December 2016 DANIEL MATTHEW SIMIC & ORS v NEW SOUTH WALES LAND AND HOUSING CORPORATION & ORS [2016] HCA 47 to construe Today the High Court unanimously allowed an appeal and cross-appeals from a decision of the Court of Appeal of the Supreme Court of New South Wales. The High Court held that it was not possible instruments ("the Undertakings") and underlying finance applications ("the applications") as references to the first respondent, the New South Wales Land and Housing Corporation ("the Corporation"). However, the High Court held that the Undertakings and the applications should be rectified to refer to the Corporation. to a non-existent entity references two In March 2010, the Corporation and the third respondent ("Nebax") executed a contract for the demolition of existing buildings and construction of unit blocks ("the Construction Contract"). The Corporation required Nebax to provide, as security, unconditional undertakings by a financial institution to pay on demand. Mr Simic, a director of Nebax, gave the details required to generate the Undertakings and the applications to an employee of the second respondent ("ANZ"). The appellants ("the guarantors") were guarantors of Nebax's obligations to ANZ. There were errors in the details Mr Simic gave, such that the Undertakings and the applications referred to a non-existent "Department", not the Corporation. The Corporation later sought to make a demand on ANZ for payment under each Undertaking. ANZ refused the demand on the basis that the Corporation was not the entity named in the Undertakings. The Corporation issued proceedings in the Supreme Court of New South Wales seeking payment. The primary judge (Kunc J) held that the Undertakings should be construed as referring to the Corporation. His Honour entered judgment for the Corporation against ANZ and declared that ANZ was entitled to be indemnified by Nebax. The Court of Appeal dismissed an appeal by the guarantors. By grant of special leave, the guarantors appealed to the High Court. ANZ and the Corporation each sought special leave to cross-appeal, seeking rectification of the Undertakings and the applications so that each referred to the Corporation. The High Court held that it was not possible to construe the Undertakings as being in favour of the Corporation because such a construction was inconsistent with both the express terms of the Undertakings and the commercial purpose of such instruments. It therefore allowed the guarantors' appeal. However, the High Court also held that the Undertakings and the applications should be rectified to refer to the Corporation because it was the actual common intention of the parties that the Undertakings should enure to the benefit of the party with which Nebax entered into the Construction Contract – namely, the Corporation. It therefore granted special leave to cross- appeal and allowed each of ANZ's and the Corporation's cross-appeals.
+HIGH COURT OF AUSTRALIA 26 April 2005 COMMISSIONER OF TAXATION v JOANNA STONE Prize money, grants and sponsorship received by a professional athlete constituted income and was subject to taxation, the High Court of Australia held today. Ms Stone, while working as a Queensland police officer, competed in the 1996 and 2000 Olympic Games as well as in other international competitions during her athletic career, winning first place in the World Cup and Goodwill Games in 1998 and several national titles. In 1998-99, on top of her salary of $39,832 as a senior constable, she received prize money of $93,429, grants from the Australian Olympic Committee and Queensland Academy of Sport (QAS) amounting to $27,900, sponsorships worth $12,419, and $2,700 in appearance fees, a total of $136,448. The Commissioner contended that all these sums formed part of her assessable income. Ms Stone objected to her tax assessment and the Commissioner disallowed the objection. Ms Stone appealed to the Federal Court of Australia, where she conceded that sponsorship in cash or kind was assessable income. Justice Graham Hill found that all the receipts except for the QAS grant constituted income assessable as it was the reward for or incidental to her carrying on a business. The Full Court of the Federal Court allowed an appeal in part, holding that neither prize money nor grants were assessable income but appearance fees were. The Commissioner appealed to the High Court, with an undertaking to pay Ms Stone’s costs. She cross-appealed from the ruling that appearance fees were assessable income. The Commissioner argued that because Ms Stone had turned her athletic talent to account for money, the returns were business income and that her contention that she had never sought to profit financially from her sport was irrelevant. Ms Stone argued that she was not conducting a business and her motivation was a desire to excel and to represent her country. The High Court unanimously allowed the appeal and dismissed the cross-appeal and held that all her income from sport was assessable.
+HIGH COURT OF AUSTRALIA 10 October 2018 ANCIENT ORDER OF FORESTERS IN VICTORIA FRIENDLY SOCIETY LIMITED v LIFEPLAN AUSTRALIA FRIENDLY SOCIETY LIMITED & ANOR [2018] HCA 43 Today the High Court unanimously dismissed an appeal from a judgment of the Full Court of the Federal Court of Australia and by majority allowed a cross-appeal from the same judgment. The appellant was ordered to account to the respondents in the sum of $14,838,063. Lifeplan Australia Friendly Society Limited ("Lifeplan"), through its subsidiary Funeral Plan Management Pty Ltd ("FPM"), engaged in the funeral products business, providing investment products to meet the cost of pre-arranged funerals. Ancient Order of Foresters in Victoria Friendly Society Limited ("Foresters") was also involved in the funeral products business although its market share was significantly smaller than that of Lifeplan. Woff and Corby were employed by Lifeplan in management positions at FPM. In 2010, they approached Foresters with a plan to divert as much of Lifeplan's existing funeral products business as possible to Foresters. They formalised their proposal in a five-year business concept plan ("the BCP") which utilised Lifeplan's confidential information and business records to win over Lifeplan's client base and take that business for Foresters. Following the implementation of the BCP, the Foresters funeral products business proved highly successful. Foresters' annual inflows into its funeral products business grew from $1.6 million in 2010 to $24 million in 2012. Over the same period, Lifeplan's inflows correspondingly fell from $68 million to $45 million. Lifeplan and FPM commenced proceedings against Woff and Corby for breaches of fiduciary duties and contraventions of the Corporations Act 2001 (Cth), and subsequently joined Foresters, alleging that it had knowingly assisted in those breaches. At an early stage, Lifeplan and FPM elected to claim an account of profits for the entire value of Foresters' funeral products business, rather than damages. The primary judge found Woff and Corby had breached fiduciary and statutory duties and Foresters had knowingly assisted in those breaches. While the primary judge ordered an account of profits in equity and under the Corporations Act against each of Woff and Corby, his Honour declined to order an account of profits against Foresters, finding that confidential information was not itself "used to generate profits" by Foresters. The Full Court allowed Lifeplan's appeal on the basis that the primary judge's formulation of the causal nexus required was unduly narrow. The Full Court ordered Foresters to account for profits in the sum of $6,558,495, representing the net present value of profits made and projected to be made on contracts entered during the five-year period of operation contemplated by the BCP, with a modest deduction of six months. On appeal to the High Court, Foresters contended that the Full Court erred in concluding there was a sufficient causal nexus between the profits and Foresters' knowing participation in the breaches of Woff and Corby. The High Court held that Foresters' knowing assistance of Woff and Corby's breaches had at least some bearing on the success of its funeral products business, rendering it liable to disgorge profits thereby generated. A majority of the Court allowed Lifeplan's and FPM's cross-appeal on the basis there was no reason in principle to restrict Foresters' obligation to disgorge less than the entire capital value of the business it acquired. The Court held Foresters should account to Lifeplan and FPM in the sum of $14,838,063.
+HIGH COURT OF AUSTRALIA 8 August 2018 THE COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA v MARTIN ANDREW THOMAS; THE COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA v MARTIN ANDREW PTY LTD; THE COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA v THOMAS NOMINEES PTY LTD; THE COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA v MARTIN ANDREW THOMAS [2018] HCA 31 Today the High Court unanimously allowed two appeals (one in part) and dismissed two appeals from the Full Court of the Federal Court of Australia. The High Court held that the Full Court erred in concluding that "directions" given by the Supreme Court of Queensland pursuant to s 96 of the Trusts Act 1973 (Q) determined conclusively, against the Federal Commissioner of Taxation, the application of Div 207 in Pt 3-6 of the Income Tax Assessment Act 1997 (Cth) to certain franked distributions. Division 207 sets out the effects, for tax, of beneficiaries of a trust having received income which includes franked distributions. In certain income years, the trustee of a trust ("the Trustee") received franked distributions within the meaning of Div 207. The Trustee passed resolutions that sought to distribute franking credits between beneficiaries separately from, and in different proportions to, the income comprising the franked distributions. The resolutions were intended to maximise refundable tax offsets and "stream" the income between beneficiaries to attract the most favourable marginal tax rates. In the appeals, the assumption that franking credits could be so distributed was referred to as the "Bifurcation Assumption". The income tax returns for the Trustee and beneficiaries were prepared and lodged on the basis that the Bifurcation Assumption was legally effective under Div 207. Those returns produced deemed assessments. After the Commissioner gave notice of an audit, the Trustee applied for and obtained from the Supreme Court of Queensland "directions" that the resolutions gave effect to the Bifurcation Assumption, which was correct in law. The Commissioner completed his audit and issued Notices of Amended Assessment. Two beneficiaries filed appeals, pursuant to Pt IVC of the Taxation Administration Act 1953 (Cth), contending that Executor Trustee and Agency Co of South Australia Ltd v Deputy Federal Commissioner of Taxes (SA) (1939) 62 CLR 545; [1939] HCA 35 required that the "directions" conclusively determined the rights between the parties, even if the result was wrong in law. The primary judge dismissed the appeals, holding that the Bifurcation Assumption was flawed in law, and Executor Trustee did not require the Commissioner to give effect to the "directions". On appeal, the Full Court held, applying Executor Trustee, that the "directions" determined conclusively against the Commissioner the application of Div 207 to the franked distributions. By grant of special leave, the Commissioner appealed to the High Court. Before the High Court, the Trustee and two beneficiaries accepted that the Bifurcation Assumption was legally ineffective under Div 207. The High Court held that the "directions" did not determine, against the Commissioner, the application of Div 207.
+HIGH COURT OF AUSTRALIA 14 June 2006 Public Information Officer AVON PRODUCTS PTY LIMITED v COMMISSIONER OF TAXATION Avon could not claim back overpayments of sales tax because it failed to prove that the excess amounts were not passed on to customers, the High Court of Australia held today. Avon representatives sell cosmetics, fragrance, toiletries and other products door to door. Before introducing any product, Avon undertook a cost analysis and assigned each product a “regular price”, based on prices charged by competitors on comparable products or on what the market would bear, and including an acceptable profit margin. Most products were sold at discount during Avon’s 18 marketing campaigns a year and these discounts still covered Avon’s costs, including sales tax. The overpayments occurred before Avon obtained a sales tax private binding ruling in 1999 from the Australian Tax Office which determined that the taxable value of its products should be the “store cost of the goods plus 11.63 per cent”. This taxable value was lower than that on which Avon had previously based its payments. It submitted claims for credits of $3,610,261 for the period from March 1993 to August 1999. There is no dispute that this amount was overpaid. The Sales Tax Assessment Act contains a statutory code for relief against overpaid sales tax. The credit that can be claimed is the amount of overpaid tax the claimant has not passed on to customers. Therefore, the Act takes a stance against automatic recovery of sales tax merely because it has been overpaid. The claimant must show they have borne the cost and not passed it on. The taxpayer bore the onus of proof of the extent that the overpayment has not been passed on. The Commissioner disallowed Avon’s claims on the basis that Avon had passed on the overpaid sales tax to its customers at point of sale and had not subsequently refunded them. In the Federal Court of Australia, Justice Graham Hill upheld the Commissioner’s decision. He held that Avon’s goods were always priced at a figure which exceeded cost plus sales tax and ensured a profit. Justice Hill held that Avon failed to satisfy the burden of proof imposed by the Act. The Full Court, by majority, dismissed an appeal. It held that where the facts disclose that the taxpayer has set prices at a level to ensure that they exceed costs, including sales tax, it will be difficult for the taxpayer to satisfy the onus under the Act to show it has borne the tax burden itself. Avon appealed to the High Court, which unanimously dismissed the appeal. Avon contended that a tax is only passed on if the price at which goods are sold is increased by the amount of the tax. It submitted that since its regular prices remained constant and were fixed by reference to market benchmarks without reference to cost, and since its discounting policy remained constant, then its test was satisfied. Since buyers were no worse off when sales tax was overpaid and Avon was worse off, the tax was absorbed by Avon. However, the Court held that such tests were different from the language in the Act and that in the ordinary course of things sales tax will be passed on. It held that Avon had failed to demonstrate any error in the approach of the majority of the Full Court in rejecting Avon’s purported test and in affirming Justice Hill’s decision that Avon had failed to establish that it had not passed on the overpaid sales tax.
+HIGH COURT OF AUSTRALIA 7 December 2004 BHP BILLITON LIMITED v TREVOR JOHN SCHULTZ, WALLABY GRIP LIMITED, WALLABY GRIP (BAE) PTY LTD (in liquidation), WALLABY GRIP (NSW) PTY LTD (in liquidation), AMACA PTY LTD (formerly James Hardie and Co Pty Ltd) The South Australian Supreme Court was the appropriate forum in which to determine damages for Mr Schultz’s asbestos-related personal injuries, the High Court of Australia held today. Mr Schultz, who lives in SA, suffers from asbestosis and asbestos-related pleural disease. He worked at the BHP shipyard in Whyalla from 1957 to 1964 and from 1968 to 1977. In 2002 he commenced proceedings in the New South Wales Dust Diseases Tribunal (DDT) against BHP, claiming negligence, breach of contract and breach of statutory duty. Mr Schultz also took action against the other corporations for negligent manufacture and supply of materials used in Whyalla. These other companies took no part in the NSW Supreme Court or the High Court, but there are cross-claims between them and BHP. Subject to proof of Mr Schultz’s exposure and diagnosis, liability of the companies is not in issue and the trial will be limited to assessment of damages. BHP unsuccessfully applied to the Supreme Court before Justice Brian Sully to remove the matter from the DDT into that Court pursuant to the Jurisdiction of Courts (Cross-vesting) Act and then to transfer the matter to the SA Supreme Court under section 5. The law of SA would be the substantive law governing Mr Schultz’s claim and the lay witnesses and most medical witnesses are in SA. Mr Schultz argued that NSW law could govern some of the claims against the other companies and the cross-claims. Section 11A of the Dust Diseases Tribunal Act provides that the DDT may award damages at a future date if the injured person develops another dust-related condition. Mr Schultz sought an order from the DDT preserving his right to make such a future claim. Under section 30B of the SA Supreme Court Act, there is only one assessment of damages, although there is scope for an interim payment. Under section 5 of the Cross-vesting Act, the court in which proceedings are to be determined is dictated by the interests of justice. It is not necessary that the first court should be a clearly inappropriate forum, rather that the second court is more appropriate. The capacity of a court to deal with a case expeditiously may be in the interests of justice. Justice Sully refused BHP’s application, holding that the interests of justice did not require the making of orders for the removal and cross-vesting of the proceedings. He held that the choice of forum of the plaintiff (Mr Schultz) was not to be lightly overridden and that he should retain the advantages of section 11A of the DDT Act. BHP appealed to the High Court. (No appeal lay to the NSW Court of Appeal.) The Court unanimously allowed the appeal. It held that the emphasis given to both Mr Schultz’s choice of forum and section 11A as factors against making the transfer order involved error in the application of section 5 of the Cross-vesting Act. By a 4-3 majority the Court held it need not remit the matter to the NSW Supreme Court for reconsideration, instead ordering that Mr Schultz’s case be removed from the DDT into the Supreme Court and then transferred to the SA Supreme Court.
+HIGH COURT OF AUSTRALIA Public Information Officer 29 August 2007 SHU-LING CHANG AND TAI-HSING CHANG v LAIDLEY SHIRE COUNCIL An application to subdivide land for a housing development was rightly refused by the Laidley Council as it did not comply with legislation then in force, the High Court of Australia held today. In 2004 the Changs applied to Laidley Council to subdivide their 16.67-hectare block at Blenheim near Laidley in south-eastern Queensland into 25 lots. The reconfiguration was not permitted under revised planning provisions. Under the Council’s 1996 town plan, the subdivision was permissible. A new planning scheme adopted in March 2003 meant the 25 lots would be too small as new rural subdivisions had to be at least 100 hectares, the reconfiguration could not take place, and the value of the Changs’ interest would be reduced. However, Queensland’s 1997 Integrated Planning Act allowed affected land owners to seek redress from their Council within two years of the adoption of such a planning scheme. Within that period, expiring in March 2005, the Changs could make a “development application (superseded planning scheme)” (DA(SPS)). The Council could then either pay compensation or consent, in whole or in part, to the development sought. The Changs lodged their DA(SPS) in December 2004. However in September 2004 the earlier Act was superseded by the Integrated Planning and Other Legislation Amendment Act (IPOLA), which cut short the two-year period. IPOLA provided for a completely revised regional planning scheme for south-eastern Queensland. The Council did not accept the Changs’ DA(SPS) as the development was contrary to the draft regulatory provisions for the regional plan provided for by IPOLA. The Changs sought to recover compensation for the diminished value of their land. The Planning and Environment Court held that the Changs’ development application was not a “properly made application”. The Court of Appeal refused them leave to appeal. The Changs then appealed to the High Court. They argued their entitlement to make a DA(SPS) had accrued under the 1997 Act, that they had applied for the DA(SPS) within the two-year leeway provided by that Act, and that because the 2004 changes did not expressly or impliedly repeal the compensation provisions of the 1997 Act their entitlement to compensation survived even if the Council could no longer give approval for their proposed development. The Court unanimously dismissed the appeal. It held that the effect of IPOLA was to deprive the Changs of what would otherwise have been an entitlement to compensation if they had made a DA(SPS) within time. Under IPOLA, the Changs’ application was not a properly made application. As the application was made after IPOLA came into effect, their application fell to be determined in accordance with the legislative provisions that were then in force. The Court held that IPOLA did not have retrospective operation and that no right to compensation had accrued to the Changs.
+HIGH COURT OF AUSTRALIA 29 August 2007 Public Information Officer CGU INSURANCE LIMITED v AMP FINANCIAL PLANNING PTY LTD (two matters) AMP was not entitled to be indemnified by its insurer for payouts it made to investors because it had not established by appropriate evidence that the payments were reasonable, the High Court of Australia held today. In 1999, AMP entered into a professional risks insurance contract with CGU. That same year, Ashok Pal and Anthony Howarth, who conducted the Macquarie Advisory Group (MAG) and were representatives of AMP, were found to have invested $3.4 million of clients’ funds in a company already in deep financial trouble and the investors lost their money. Mr Pal and Mr Howarth became bankrupt, and the Australian Securities and Investments Commission (ASIC) banned them from the securities industry and from company management. On becoming aware of the large losses, AMP notified CGU, its insurer, and sought indemnity under the policy. AMP drew up a protocol for handling claims in which AMP would notify CGU of each claim and prepare a liability report and CGU would decide within 14 days whether to settle or defend the claim. CGU agreed in principle to the protocol, but held off deciding whether it would indemnify AMP for the losses and repeatedly told AMP to act as a “prudent uninsured”. AMP, under pressure from ASIC to resolve claims promptly and after repeated requests to CGU for determination of AMP’s liability, went ahead and paid out more than $3.24 million for 47 claims in October and November 2001. CGU eventually denied AMP indemnity and AMP commenced proceedings alleging that CGU was in breach of its policy. It sought damages for the investors’ claims paid, interest and investigation costs and sought a declaration that AMP was entitled to indemnity for outstanding claims. In the Federal Court, Justice Peter Heerey dismissed the application. He held that AMP had no belief that CGU had accepted liability and that AMP paid the settlement amounts because it considered this was in its own best interests to do so, not because of any representation by CGU that it would not require AMP to prove its liability to the investors. AMP had also not shown that the settlements were reasonable and had failed to take into account whether section 819(4) of the Corporations Law could have made MAG rather than AMP liable. The Full Court of the Federal Court, by majority, allowed an appeal by AMP and remitted to Justice Heerey questions on whether AMP was induced by CGU into settling the claims. CGU appealed to the High Court. The Court, by a 4-1 majority, allowed the appeal. It held that nothing in CGU’s conduct conveyed a representation to AMP that it would not be required to prove its liability to investors to receive indemnity. Nothing in AMP’s conduct showed that it relied on such a representation. AMP had no belief that CGU accepted liability, instead making payments for its own commercial reasons to ensure legal proceedings for determining investors’ claims did not occur and to preserve relations with ASIC. It was open to Justice Heerey to conclude that AMP had not shown the settlements were reasonable. In the Full Court of the Federal Court, CGU had cross-appealed against Justice Heerey’s costs order. The Full Court, in allowing the appeal by AMP, did not deal with the cross-appeal, and CGU brought a second appeal to the High Court. The High Court ordered that the matter should be remitted to the Full Court for consideration of CGU’s cross-appeal.
+HIGH COURT OF AUSTRALIA 19 June 2007 Public Information Officer ANNE MARGARET WHITE v DIRECTOR OF MILITARY PROSECUTIONS AND COMMONWEALTH OF AUSTRALIA Offences committed by Australian Defence Force personnel can be tried by Defence disciplinary bodies rather than by civilian courts, the High Court of Australia held today. Ms White is a chief petty officer in the Royal Australian Navy, serving on HMAS Manoora. At a house and then a hotel at Williamstown in Victoria in June 2005, she allegedly engaged in acts of indecency, or assaults, against five other navy women. The women were all off duty and not in uniform and the incidents did not occur on Commonwealth property. Ms White has been charged under the Defence Force Discipline Act. She denies the charges. Before the charges could be heard, Ms White brought a challenge in the High Court to the Act’s provisions which create the offences and lay down the procedure for trial and punishment of such offences. She asked the High Court to overrule three previous decisions. Ms White seeks an order prohibiting the Director of Military Prosecutions from proceeding with the charges, a declaration that she may only be tried by a federal court exercising the judicial power of the Commonwealth under Chapter III of the Constitution, and a declaration that provisions of the Act purporting to confer jurisdiction on courts martial and defence force magistrates are invalid because they are not courts invested with federal jurisdiction in accordance with section 71 of the Constitution. Ms White argued that trial and punishment involve an exercise of the judicial power of the Commonwealth and may occur only within the limits of Chapter III. She claimed that this is because the defence power conferred by section 51(vi) of the Constitution is subject to Chapter III and the separation of powers inherent in the Constitution. Secondly, she argued that only exclusive disciplinary offences could be dealt with by the military justice system. These are offences which have no civilian equivalent, pertain to service discipline, and involve no exposure to imprisonment. Ms White said that even if accepted that military tribunals do not exercise the judicial power of the Commonwealth, this only applies when such tribunals deal with disciplinary offences. The Court unanimously rejected Ms White’s first argument, rejected the second by a 6-1 majority and declined to overrule any earlier decisions. In respect of the first argument, the Court held that the defence power authorises Parliament to grant disciplinary powers to be exercised judicially by officers of the armed forces. The power exercised is not the judicial power of the Commonwealth but is supported solely by section 51(vi) to maintain or enforce discipline. In relation to the second argument, the majority held that the distinction between exclusive disciplinary offences and other offences is not feasible. Whether an offence is to be regarded as an offence against military discipline or a breach of civil order will often depend, not upon the elements of the offence, but upon the circumstances in which it is committed. Proceedings may be brought for a service offence in a tribunal established outside Chapter III if those proceedings can reasonably be regarded as substantially serving the purpose of maintaining or enforcing service discipline.
+HIGH COURT OF AUSTRALIA Manager, Public Information 16 June 2010 DUPAS v THE QUEEN [2010] HCA 20 On 15 April 2010, the High Court pronounced orders dismissing this appeal, in which the appellant sought to challenge a refusal by the Victorian Supreme Court and Court of Appeal to grant a permanent stay of his murder trial. Today the Court published its reasons for making those orders. The appellant was charged with the murder, on 1 November 1997, of Mersina Halvagis at Fawkner Cemetery in Melbourne. He applied to the trial judge for a permanent stay of the trial on the ground that the adverse pre-trial publicity about his two previous murder convictions and the current murder charge made a fair trial impossible. The appellant had been convicted in August 2000 of the murder of Nicole Patterson and again in August 2004 of the murder of Margaret Maher. He had been sentenced to life imprisonment upon both convictions. All three women had been killed by knife attack. The two prior convictions and the murder charge had received extensive media publicity over a number of years in newspapers and books, and on internet sites and television programs. The appellant had been identified in the media from an early stage in police investigations as a suspect in the murder of Ms Halvagis. The trial judge refused the application and concluded that a jury, properly directed, could be trusted to decide whether the appellant's guilt had been established on the basis of the evidence led in court and without regard to information from other sources. The appellant was convicted on 9 August 2007 and thereafter sentenced to life imprisonment. The Court of Appeal of the Supreme Court of Victoria held that the trial judge had not erred in refusing to grant a permanent stay. A majority of the Court, however, allowed the appeal on other grounds and ordered a re-trial. The appellant was granted special leave to appeal to the High Court on 12 February 2010 on the question of the permanent stay only. The appellant sought orders for the imposition of a permanent stay or a stay until further order. At the conclusion of the hearing on 15 April 2010, the Court pronounced orders dismissing the appeal. In its reasons published today, the Court held that the relevant question in determining whether to grant a stay is whether an apprehended defect in a trial is of such a nature that there is nothing the trial judge could do in the conduct of the trial to relieve against its unfair consequences. The Court held that the apprehended defect in the appellant's trial – the prejudice to the appellant arising out of extensive adverse pre-trial publicity – was capable of being remedied by the trial judge giving thorough and appropriate directions to the jury. The trial judge committed no error of principle in deciding that the appellant's trial, if allowed to proceed, would be fair. Furthermore, in all of the circumstances of this trial, the pre-trial publicity was not such as to give rise to an unacceptable risk that it had deprived the appellant of a fair trial.
+HIGH COURT OF AUSTRALIA 31 August 2005 MOHAMMAD ARIF RUHANI v DIRECTOR OF POLICE (THROUGH THE SECRETARY OF JUSTICE AS DIRECTOR OF PUBLIC PROSECUTOR) [No 2] The High Court of Australia today upheld a decision of the Supreme Court of Nauru which in turn upheld the lawfulness of Mr Ruhani’s detention in Nauru. Mr Ruhani is an Afghan national of apparently Hazara ethnicity. He was among a group of 319 asylum seekers rescued by the Norwegian vessel MV Tampa in the Indian Ocean in August 2001. The group was denied access to Australia to make refugee claims and was transferred to an Australian navy ship and taken to Nauru in December 2001. Mr Ruhani was then aged about 18. Nauru issued a special-purpose visa for entry and stay in Nauru on humanitarian grounds. The visa, renewed every six months, was subject to certain restrictions governing residence and movement within Nauru. Australia’s Immigration Department found that Mr Ruhani was not a person in need of protection under the Refugees Convention, a decision affirmed on review. In the Supreme Court of Nauru, Chief Justice Barry Connell heard an application for an order for Mr Ruhani’s release based on a claim that his detention was unlawful according to the law of Nauru. Chief Justice Connell discharged the order nisi, holding that Nauru’s principal immigration officer (PIO) could issue a special-purpose visa under Nauru’s Immigration Act without an application by or the consent of the visa holder. He held that asylum seekers who entered and were accommodated on Nauru in accordance with the conditions in the special-purpose visa were not unlawfully detained. Chief Justice Connell also rejected a submission that the visa went beyond the power conferred upon the PIO to impose such conditions as the PIO thought fit because they constituted a form of punishment that could only be imposed by a court. In the High Court, Mr Ruhani sought a declaration that the visa was invalid and of no effect and sought an order absolute for habeus corpus directed to the Director of Police to order Mr Ruhani’s release from detention. He also reagitated his submission that the PIO exceeded their power to attach conditions to visas. The High Court held that the attack upon the validity of the conditions was rightly rejected by the Supreme Court because it was for Nauru, as a sovereign state, to annex what conditions it wished to permission given to an alien to enter it. Mr Ruhani objected to the visa being issued as he had neither applied for nor consented to it, and no-one was authorised to apply on his behalf. The High Court noted that Nauru’s Immigration Regulations do not state that no visa may be issued except upon application, but instead provide for a variety of visa classifications to cover many circumstances, including for emergency entrants and entrants without passports. The Court, by a 4-1 majority, dismissed the appeal and held that Mr Ruhani had shown no error in Chief Justice Connell’s decision.
+HIGH COURT OF AUSTRALIA 11 November 2004 TOLL (FGCT) PTY LTD (formerly FINEMORES GCT PTY LTD) v ALPHAPHARM PTY LTD, EBOS GROUP LIMITED AND RICHARD THOMSON PTY LTD In a case relating to a transport contract the High Court of Australia today reaffirmed the principle that a party who has signed a written contract is bound by the terms of the contract, despite the party not taking the trouble to read the document. Alphapharm supplied customers across Australia during the 1999 flu season with the vaccine Fluvirin which it bought from Ebos, a New Zealand company which was South Pacific distributor for the British-made Fluvirin. Ebos had a sub-distribution agreement with Alphapharm in Australia. Richard Thomson, a medical supplies wholesaler and Ebos’s wholly-owned Australian subsidiary, looked after the collection, storage and regulatory approval for Fluvirin sent to Australia. By arrangement with Alphapharm, it undertook to arrange for the vaccine to be stored at Finemores’ warehouse in Greenacre in Sydney and to be transported by Finemores on refrigerated road transport to other destinations. Richard Thomson’s operations manager signed a written application for credit but failed to read the 15 conditions of contract on the back of the application despite a request to do so printed just above where he signed the form. Conditions included that customers and customers’ associates, and not Finemores, bore responsibility for any loss or damage and for taking out insurance. Finemores collected 72,240 doses of Fluvirin from the airport. At the warehouse Alphapharm’s business manager Ronald van der Pliujm prepared the goods for delivery to his customers, including inserting temperature monitors. Consignments of 28,160 each for Queensland Health and New South Wales Health were rejected because they had become too cold and could not be used. In the NSW Supreme Court Alphapharm and Ebos sued Finemores and obtained judgment for $683,061.86 in damages and interest for Finemore’s alleged negligence. Although Alphapharm fell within the contract’s definition of “customer’s associate” it argued it was not bound by the contract. Alphapharm claimed the conditions on the credit application did not form part of the contract, and it denied that Richard Thomson had authority to act as agent on its behalf. Both these arguments succeeded in the Supreme Court and in the Court of Appeal. The High Court unanimously allowed the appeal and rejected both of Alphapharm’s arguments. It was bound by the conditions on the credit application. Richard Thomson was acting as agent for Alphapharm in contracting for Finemores’ services. The Court held that rights and liabilities of parties to a contract are determined objectively, not by the subjective beliefs or understandings of the parties themselves. A signature on a contract carried significance, particularly when it appears below a request to read the document first. There was no question of misrepresentation, duress or mistake vitiating the contract. The contract was binding according to its terms, and the exclusion clauses applied to relieve Finemores of liability.
+HIGH COURT OF AUSTRALIA 5 August 2015 [2015] HCA 26 Today the High Court unanimously allowed an appeal from a decision of the Full Court of the Supreme Court of South Australia. The High Court held that, in dismissing a charge of drink- driving against the respondent, the Magistrates Court of South Australia had erroneously excluded evidence of the respondent's breath analysis reading, and the Supreme Court of South Australia and the Full Court had erred in upholding that decision on appeal. Section 47B(1)(a) of the Road Traffic Act 1961 (SA) makes it an offence for a person to drive a motor vehicle while the prescribed concentration of alcohol is present in his or her blood. Under certain conditions, the Act creates a presumption that the concentration of alcohol indicated by a breath analysing instrument as being present in the driver's blood was the concentration of alcohol in the driver's blood at the time of the breath analysis ("the presumption"). The presumption may only be rebutted if the defendant arranges for a sample of his or her blood to be taken by a medical practitioner in accordance with prescribed procedures and adduces evidence that analysis of the blood demonstrates that the breath analysing instrument gave an exaggerated reading. The respondent was stopped by police while driving a motor vehicle. A breath analysing instrument recorded that the concentration of alcohol in his blood was 0.155 grams of alcohol per 100 millilitres, which was above the prescribed concentration. The respondent was supplied with a blood test kit and arranged for a sample of his blood to be taken by a medical practitioner. It was not possible to analyse the sample because the medical practitioner failed to take a sufficient quantity of blood. The respondent was charged with an offence against s 47B(1)(a) of the Act, to which he pleaded not guilty in the Magistrates Court. The magistrate held that the breath analysis reading should be disregarded because the respondent, through no fault of his own, had lost his only opportunity to adduce evidence which may have rebutted the presumption. His Honour dismissed the charge. The police appealed unsuccessfully to the Supreme Court and subsequently, by leave, to the Full Court. Both Courts held that it had been open to the magistrate to exclude the evidence of the breath analysis reading in the exercise of a "general unfairness discretion" to exclude probative evidence untainted by illegality, impropriety or risk of prejudice where its admission would be unfair to the defendant in that it would make the trial unfair. By grant of special leave, the police appealed to the High Court. In unanimously allowing the appeal, the Court held that admission of the evidence of the breath analysis reading would not make the respondent's trial unfair in the relevant sense. The respondent did not have a statutory right to have a sample of blood taken and dealt with in accordance with the prescribed procedures; rather, the onus was upon him to bring himself within the confines of the rule allowing for rebuttal of the presumption. Having determined that the magistrate erred in excluding the evidence of the breath analysis reading, the Court held the appropriate course was to remit the matter for further hearing before the Magistrates Court.
+HIGH COURT OF AUSTRALIA Public Information Officer 5 August, 2003 KAMALJEET DHANHOA v THE QUEEN The convictions of the appellant, Mr Dhanhoa, for kidnapping and robbery in company with wounding were upheld by the High Court of Australia. The victim, Anthony Herbert Schembri, invited four men with whom he had been playing pool at the Bridge Hotel, Rozelle, in Sydney, back to his flat to smoke marijuana on January 19, 1999. At the flat, he was head-butted, grabbed around the throat, kicked and punched, and stabbed in the liver and lungs, and his wallet was stolen. He escaped as his attackers tried to bundle him into their car at knifepoint to take him to an automatic teller machine. He later found he had also been stabbed in the back. Mr Schembri could not say with certainty who committed each assault but said all four men participated. Two neighbours said they glimpsed Mr Schembri scuffling with three men. Mr Schembri identified Mr Dhanhoa from photographs as one of the four men. Mr Dhanhoa's fingerprints were found at the flat. He claimed in evidence at his trial in the New South Wales District Court that he had already left the flat and caught a taxi home before the attack took place. The principal question for the jury was whether Mr Dhanhoa was still at the flat when the attack occurred. Mr Dhanhoa initially told police he had never been to either Mr Schembri’s flat or the Bridge Hotel but at his trial admitted having been to both places. He also told police he knew nothing about the stabbing or the robbery. He appealed on the grounds that the trial judge's directions and warnings about identification evidence, and lies, were inadequate. His convictions were upheld by the NSW Court of Criminal Appeal. The High Court, by a 4-1 majority, dismissed his appeal. The majority held that section 116 of the Evidence Act, which is concerned with warnings to juries about warning juries in relation to identification evidence, was not mandatory unless the reliability of the identification was disputed. Mr Dhanhoa’s identification as one of the four men who went to the flat was not in dispute; only whether he was still present during the attack. On the issue of inconsistencies between what Mr Dhanhoa told police and his evidence at the trial, the prosecutor ran the case on the basis that such inconsistencies raised questions about his reliability. They were not relied upon as evidence of guilt. The Court held that there were no material misdirections.
+HIGH COURT OF AUSTRALIA 14 February 2018 MAXCON CONSTRUCTIONS PTY LTD v MICHAEL CHRISTOPHER VADASZ (TRADING AS AUSTRALASIAN PILING COMPANY) & ORS [2018] HCA 5 Today the High Court unanimously dismissed an appeal from the Full Court of the Supreme Court of South Australia. The Court held that an adjudicator appointed to resolve a disputed payment claim under the Building and Construction Industry Security of Payment Act 2009 (SA) ("the Security of Payment Act") did not make an error of law, and that in any event the Supreme Court’s jurisdiction to quash non-jurisdictional errors of law on the face of the record had been ousted by the Security of Payment Act. Maxcon Constructions Pty Ltd ("Maxcon") and Mr Vadasz were parties to a construction subcontract under which Mr Vadasz agreed to design and construct piling for a development. Certain "retention provisions" in the subcontract required Mr Vadasz to provide a sum of money as security. Maxcon was required to release the retention sum within a certain time after a certificate of occupancy for the development was issued under State planning legislation. In 2016 Mr Vadasz served on Maxcon a payment claim under the Security of Payment Act, stating that a progress payment was due. Maxcon responded that it was entitled to deduct the retention sum and other administrative charges from the amount in the payment claim. Mr Vadasz applied for adjudication of his payment claim. The adjudicator concluded that the retention provisions made release of the retention sum contingent or dependent on the operation of another contract, namely the head contract between Maxcon and the owner of the land. The retention provisions were therefore found to be "pay when paid provisions" which were ineffective by reason of the Security of Payment Act, and Maxcon was not entitled to retain the retention sum. Maxcon commenced judicial review proceedings in the Supreme Court, alleging that the adjudicator was wrong to decide that the retention provisions were “pay when paid provisions”, and seeking an order setting aside the adjudicator's determination. The primary judge dismissed the application for judicial review. By majority, the Full Court dismissed Maxcon's subsequent appeal, following the decision of the Court of Appeal of the Supreme Court of New South Wales in Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd (No 2) (2016) 344 ALR 355 on the basis that the decision dealt with uniform national legislation and was not plainly wrong. By grant of special leave, Maxcon appealed to the High Court. The Court unanimously concluded, consistently with the decision in Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [2018] HCA 4, that the Security of Payment Act ousted the jurisdiction of the Supreme Court to make an order in the nature of certiorari quashing the adjudicator's determination for error of law on the face of the record that is not a jurisdictional error. The High Court further held that the adjudicator did nor err in law in determining that the retention provisions were “pay when paid provisions”. Under the subcontract, the due dates for payment of the retention sum depended on the issue of a certificate of occupancy, which in turn required satisfactory completion of the head contract. Therefore, the due dates for payment of the retention sum were contingent or dependent upon the operation of the head contract.
+HIGH COURT OF AUSTRALIA 20 July 2006 Public Information Officer COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA v CITYLINK MELBOURNE (formerly known as Transurban City Link Limited) Concession fees paid by Citylink to the State of Victoria are allowable tax deductions, the High Court of Australia held today. The State contracted with Citylink to design, construct and operate the City Link system of roads connecting three Melbourne freeways. City Link opened on 15 August 1999 with tolls imposed from 3 January 2000. Under a concession deed signed in 1995, Victoria contributed the land and enabled Citylink to levy tolls. In return, Citylink pays an annual concession fee of at least $95.6 million during the first 25 years of the concession period of 1996 to 2034 then $45.2 million a year for nine years and $1 million a year until it eventually transferred the road system to Victoria. Citylink pays the concession fees by issuing to Victoria financial instruments known as concession notes, which entitle Victoria to claim payment at a later date after certain conditions are satisfied. Citylink claimed its concession fees as tax deductions in the 1996, 1997 and 1998 years of income. It claimed $31.25 million in 1995-96 and $95.6 million in both 1996-97 and 1997-98. Allowing the deductions would reduce to nil Citylink’s taxable income for these years. The Commissioner of Taxation disallowed the deductions. The Federal Court dismissed an appeal but the Full Court of the Federal Court allowed an appeal by Citylink. The Commissioner appealed to the High Court. The Commissioner contended that the Full Court erred in holding that the concession fees were deductible on two bases. First, the Commissioner submitted that the fees were not “incurred” in producing Citylink’s assessable income in the relevant income years because Victoria’s right to redeem the concession notes depended upon various conditions being satisfied, including some relating to traffic levels, revenue and cash flow. Citylink argued the fees were outgoings to produce income because Citylink was committed to make payments each June and December once City Link was in profit. Fees owed were referable to particular years of income even if the concession notes were not redeemed in that year. The Commissioner’s second submission was that the concession fees were not deductible because they were outgoings of a capital nature, paid to secure to Citylink a profitable business structure. Citylink argued the fees were a periodic recurrent expense. The High Court, by a 5-1 majority, dismissed the appeal and upheld the decision of the Full Court on both bases. First, the deduction was “incurred” in the relevant year of income because Citylink was subject to a contractual liability to pay the concession fees twice a year and this obligation did not depend on the commercial operating risks of City Link. It did not matter that Citylink paid the fees by issuing concession notes which it did not have to pay until a later date. Secondly, the High Court held that the concession fees were not of a capital nature as Citylink did not acquire permanent ownership rights over the roads or land. All rights revert to Victoria at the end of the concession period. Citylink’s rights were to build, operate and derive profit from the roads for a set period of time. Unlike periodic payments on the purchase price of a capital asset, the concession fees are periodic licence fees for infrastructure from which Citylink derives income. Since the fees were “incurred” in the relevant income year, and were not of a capital nature, the Court held that they satisfied the test for deductibility at their full face value for each of the income years in which they were claimed as deductions.
+HIGH COURT OF AUSTRALIA 12 April 2023 KINGDOM OF SPAIN v INFRASTRUCTURE SERVICES LUXEMBOURG S.À.R.L. & ANOR [2023] HCA 11 Today, the High Court unanimously dismissed an appeal from the Full Court of the Federal Court of Australia relating to the interpretation of the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (1965) ("the ICSID Convention"). The issues before the Court concerned whether, and to what extent, entry by a foreign State into the ICSID Convention, and concomitant agreement to Arts 53, 54 and 55, constitutes a waiver of foreign State immunity under the Foreign States Immunities Act 1985 (Cth) ("the Act") from Australian court processes concerning recognition and enforcement of arbitral awards. The respondents, relying on the Energy Charter Treaty (1994), commenced arbitral proceedings against the Kingdom of Spain ("Spain") under the ICSID Convention. The respondents obtained an award of €101m and brought proceedings in the Federal Court of Australia to enforce the award under the International Arbitration Act 1974 (Cth), which gives effect to the ICSID Convention in Australia. The issue was whether Spain had waived foreign State immunity under ss 9 and 10 of the Act, which relevantly provide that a foreign State is immune from the jurisdiction of Australian courts except where it has submitted to that jurisdiction by agreement (including by a treaty). The primary judge held that Spain's agreement to Arts 53, 54 and 55 constituted a waiver of its immunity from recognition and enforcement, but not from execution of the award. Spain was ordered to pay the respondents €101m together with interest on that sum. On appeal, the Full Court held that immunity from recognition had been waived, but immunity from court processes of execution (and perhaps also from enforcement) had not. New orders were made, including for the award to be recognised as binding and for judgment to be entered against Spain for €101m. The High Court, in dismissing the appeal, held that as Spain was the subject of a binding ICSID award, its agreement to Arts 53, 54 and 55 of the ICSID Convention amounted to a waiver of foreign State immunity from the jurisdiction of Australian courts to recognise and enforce, but not to execute, that award. The Court held that the international law principle that a waiver of immunity under s 10 of the Act must be "express" should not be understood as denying the ordinary and natural role of implications in elucidating the meaning of express words. The Court determined that the words "recognition", "enforcement", and "execution" in Arts 53, 54 and 55 of the ICSID Convention are used separately and with different meanings. Recognition is the obligation to recognise the award as binding, enforcement is the obligation to enforce any pecuniary obligations imposed by the award as if the award were a final judgment of a court in the Contracting State, and execution refers to the means by which a judgment enforcing the award is given effect. There is no real difference between the English text and the French and Spanish texts of Arts 53, 54 and 55 in respect of the distinction between recognition and enforcement, on the one hand, and execution, on the other. The Court concluded that the orders made by the courts below were properly characterised as orders for recognition and enforcement.
+HIGH COURT OF AUSTRALIA Public Information Officer 27 September 2007 EAST AUSTRALIAN PIPELINE PTY LIMITED v AUSTRALIAN COMPETITION AND CONSUMER COMMISSION AND AUSTRALIAN COMPETITION TRIBUNAL The Competition Tribunal had been correct in overruling a decision of the ACCC concerning charges to be fixed for third-party access to a natural gas pipeline, the High Court of Australia held today. East Australian Pipeline (EAPL) purchased the natural gas pipeline running from Moomba in South Australia to Sydney from the Commonwealth in 1994 for $534.3 million. The regulatory regime required EAPL to establish a system for third-party access to the pipeline within the framework of national competition policy. If the ACCC withheld approval it could approve its own access arrangement. Section 8 of the National Third-Party Access Code for Natural Gas Pipeline Systems sets out the objectives to be considered by the ACCC in determining whether to approve tariffs charged to third parties. The charges are calculated by reference to the capital assets of the pipeline, in particular the initial capital base (ICB). In 1999, EAPL proposed an access arrangement with an ICB value of $666.7 million based on the depreciated optimised replacement cost of the pipeline. In 2003, after various exchanges and revisions, the ACCC ultimately rejected EAPL’s proposed access arrangement and substituted its own, which set an ICB of $545.4 million. EAPL then applied to the Competition Tribunal for a review of the ACCC’s decision. The Tribunal found that the ACCC had wrongly exercised its discretion by substituting its own access arrangement. It was incorrect and unreasonable for the ACCC to put aside known valuation methods and devise a method which adjusted the optimised replacement cost in a novel fashion after misconstruing section 8.10 of the Code. Section 8.10 deals with the methodology for establishing the ICB for existing pipelines. The Tribunal construed section 8.10 as setting out the 11 factors to be considered in order and that the sequential process mandated by the section was important to the integrity of any determination of an ICB. It varied the ACCC’s decision and substituted an ICB of $834.66 million. The ACCC sought judicial review in the Full Court of the Federal Court which concluded that the ACCC had not erred in exercising its discretion in substituting its own access arrangement and utilising a novel method for calculating the ICB. While the Full Court recognised that the ACCC did not use known valuation methods in determining the ICB, it concluded that the ACCC had considered all the factors set out in section 8.10. EAPL appealed to the High Court. The Court unanimously allowed the appeal and held that the Tribunal was correct in its construction and in its application of section 8.10.
+HIGH COURT OF AUSTRALIA 20 June 2012 TRENT NATHAN KING v THE QUEEN [2012] HCA 24 Today the High Court by majority dismissed an appeal by Trent Nathan King against two convictions under s 318(1) of the Crimes Act 1958 (Vic) (“the Act”) for “culpable driving causing death”. The Court held that there was no miscarriage of justice in the way in which alternative verdicts for the lesser offence of “dangerous driving causing death” under s 319(1) of the Act were left to the trial jury. In 2005 Mr King was the driver of a car which was involved in a collision. Mr King’s two passengers died in the collision. Following a jury trial in the County Court of Victoria Mr King was found guilty of two counts of culpable driving causing death and sentenced to a term of imprisonment. Mr King filed applications in the Court of Appeal of the Supreme Court of Victoria for leave to appeal against his convictions and sentence. The Court of Appeal allowed the appeals against sentence, and reduced his total effective sentence, but otherwise dismissed the applications for leave to appeal. By special leave, Mr King appealed to the High Court against the decision of the Court of Appeal dismissing his applications for leave to appeal against his convictions. The sole ground of appeal related to the standard of culpability applied in the direction of the trial judge to the jury concerning the lesser alternative verdicts of dangerous driving causing death contrary to s 319(1) of the Act. The trial judge told the jury that dangerous driving was established by proof that the accused drove in a way that “significantly increased the risk of harming others” and that it was not necessary for the Crown to prove that the driving was “deserving of criminal punishment”. The jury’s authority to return a verdict of guilty of an offence against s 319(1) was conferred by s 422A(1) of the Act, which conditioned the power to deliver an alternative verdict upon the jury not being satisfied that the accused was guilty of the offence charged under s 318. Mr King complained that the trial judge had pitched the level of culpability for the lesser offence of dangerous driving causing death at such an erroneously low level that the jury would have been less inclined to consider convicting him of that offence. At the time it was made, the trial judge’s direction accorded with existing authority in Victoria. However, the subsequent decision of the Court of Appeal in R v De Montero (2009) 25 VR 694 construed s 319(1) as imposing a higher level of culpability. It required driving that created “a considerable risk of serious injury or death to members of the public.” It also required conduct by the accused in his manner of driving which was such as to merit punishment by the criminal law. De Montero was applied by the Court of Appeal in Mr King’s case. The High Court by majority dismissed Mr King’s appeal. The majority held that, subject to one qualification, the trial judge did not err in her direction to the jury relating to the alternative verdicts of guilty of offences against s 319. The decision in De Montero was wrong and should not be followed. The qualification was that it was unnecessary and possibly confusing for her Honour to direct the jury that, in order to prove the commission of an offence against s 319(1), the Crown did not have to satisfy them that the accused’s driving was deserving of criminal punishment. That direction did not, however, constitute a departure from trial according to law or a miscarriage of justice.
+HIGH COURT OF AUSTRALIA 6 December 2005 APPLICANT VEAL OF 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS AND REFUGEE REVIEW TRIBUNAL A failure to inform a visa applicant of adverse information so that the applicant could have the opportunity to respond led to a denial of procedural fairness, the High Court of Australia held today. Applicant VEAL and his wife, an Eritrean couple, applied for protection visas in 2001 but were refused. They sought review by the Refugee Review Tribunal. In the meantime the Immigration Department received a letter about VEAL. The letter, which included the author’s name and address, said VEAL had admitted being accused of killing a prominent political figure in Eritrea and that VEAL supported and worked for the Eritrean government. The writer asked that the information remain confidential. The department sent the letter to the RRT but the RRT did not tell VEAL about the letter or the allegations in it. It affirmed the decision not to grant protection visas. The RRT, in its written reasons, said it gave no weight to the letter as it had been unable to test the claims. The Federal Court allowed an appeal, but the Minister successfully appealed to the Full Court of the Federal Court. VEAL then appealed to the High Court. The Court unanimously held that procedural fairness required the RRT to inform VEAL of the existence of the letter and the substance (although not the detail) of its contents before affirming the refusal to grant a visa, although the RRT was correct in this case not to have provided the letter or its author’s identity to VEAL. The Court held that because the information was credible, relevant and significant the RRT was required to give VEAL an opportunity to deal with that information. Deciding it could reach the conclusion to withhold a visa on other grounds did not discharge the obligation on the RRT to accord VEAL procedural fairness by giving him an opportunity to respond. The Court held that the material in the letter did pertain to whether he had a well-founded fear of persecution for reasons covered by the Refugees Convention. The Court held that the application of principles of procedural fairness depend on the particular circumstances of each case, so there are no absolute rules about disclosure of information from an informer or disclosure of the informer’s identity to an interested person such as VEAL. In this case, procedural fairness at least required that VEAL know the substance of what was said about him in the letter. It did not however mean that the RRT was bound to give him a copy of the letter, or to tell him who sent it, or even to tell him the allegations were in writing. This balanced the principles of procedural fairness against the public interest in ensuring that informers came forward with information about asylum seekers.
+HIGH COURT OF AUSTRALIA 8 September 2004 JOHN VINCENT MULHOLLAND v AUSTRALIAN ELECTORAL COMMISSION Provisions of the Commonwealth Electoral Act concerning registration of political parties that require registered parties to have 500 members and that none of those members be shared with another party were constitutionally valid, the High Court of Australia held today. The AEC in 2001 asked Mr Mulholland, the registered officer of the Democratic Labor Party, to provide names and details of at least 500 DLP members so it could check that these people were indeed DLP members and ensure there was no overlap with other parties’ membership. Mr Mulholland refused to comply with the request and the AEC gave notice, pursuant to section 137 of the Electoral Act, that it was considering deregistering the DLP. Mr Mulholland argued that the 500 rule and the no-overlap rule infringed the implied constitutional freedom of political communication because the ballot paper was a form of communication with voters and an unregistered party cannot have its name printed on it. The scheme for registering parties to receive public funding was introduced in 1983, with the DLP registered since 1984, and the no-overlap rule was added to the scheme in 2000. Mr Mulholland issued proceedings in the Federal Court seeking an order restraining the AEC from deregistering the party on grounds including that the 500 and no-overlap rules were invalid. Justice Shane Marshall dismissed the application and the Full Court dismissed an appeal. The Court unanimously dismissed the appeal in May and today handed down its written reasons for judgment. Mr Mulholland submitted that the two rules contravened the constitutional requirement of direct choice by the people because they impaired the making of an informed choice by voters and they unreasonably discriminated between candidates from registered and unregistered parties. The Court rejected both reasons, holding that electors retained a full and free choice between competing candidates and that Parliament’s requirement of a minimum level of public support for a party before it received election funding did not involve unreasonable discrimination. The no-overlap rule was designed to avoid confusion, deception and frustration of the democratic process by using the same block of members to register multiple parties, including front parties channelling voters’ preferences to another party. The Court held that both rules were consistent with the constitutional requirements of direct choice by the people and with representative government.
+HIGH COURT OF AUSTRALIA 14 November 2014 KUCZBORSKI v THE STATE OF QUEENSLAND [2014] HCA 46 Today the High Court, by majority, rejected a challenge to the validity of certain provisions of the Criminal Code (Q) and the Liquor Act 1992 (Q). The Court also held that the plaintiff lacked standing to challenge the Vicious Lawless Association Disestablishment Act 2013 (Q) ("the VLAD Act") and certain other provisions of the Criminal Code and the Bail Act 1980 (Q) introduced by the Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 (Q) ("the Disruption Act"). The Disruption Act and the Tattoo Parlours Act 2013 (Q) inserted new offences into the Criminal Code and Liquor Act respectively, elements of which involved being a "participant" in a "criminal organisation", or wearing symbols of membership of a "declared criminal organisation". The VLAD Act introduced penalties for a person convicted of a designated offence, which were more severe than would otherwise be applicable, if that individual was also proved to be a "participant in the affairs of an association". The Disruption Act amended the Criminal Code by providing for mandatory minimum penalties and increasing the maximum penalties for certain existing offences, in circumstances where the individual charged was found to be a participant in a criminal organisation. It also amended the Bail Act by introducing more stringent criteria for the grant of bail, in circumstances where a person was alleged to be a participant in a criminal organisation. In March 2014, the plaintiff commenced proceedings in the original jurisdiction of the Court seeking declarations that the challenged laws were invalid on the ground that they were incompatible with the institutional integrity of the Supreme Court of Queensland. The plaintiff had not been charged with, and did not suggest that he had committed, or intended to commit, any offence. Accordingly, no restriction was imposed upon the plaintiff's freedom of action by the VLAD Act, the new penalty provisions of the Criminal Code or the new provisions of the Bail Act. The High Court unanimously held that the plaintiff lacked standing to seek a declaration that those laws were invalid. The plaintiff argued that the laws creating the new offences in the Criminal Code and the Liquor Act impermissibly enlisted the court to give effect to the Parliament's or the executive's intention to destroy criminal organisations. This argument was not accepted. The majority of the Court held that these laws did not require the courts to proceed otherwise than in accordance with the processes which are understood to characterise the exercise of judicial power.
+HIGH COURT OF AUSTRALIA 7 May 2014 AUSTRALIAN FINANCIAL SERVICES AND LEASING PTY LIMITED v HILLS INDUSTRIES LIMITED & ANOR [2014] HCA 14 Today the High Court unanimously held that the first and second respondents would not be required to repay monies that had been mistakenly transferred to them by the appellant as a result of a fraud committed by a third party, because each respondent had established a defence that they had changed their position on the faith of the receipt of the payments. The appellant, Australian Financial Services and Leasing Pty Ltd ("AFSL"), provided businesses with finance to purchase commercial equipment. The respondents, Hills Industries Ltd ("Hills") and Bosch Security Systems Pty Ltd ("Bosch"), were manufacturers and suppliers of such equipment. Hills and Bosch were both owed debts by various companies in a corporate group (referred to collectively as "TCP"). A director and shareholder of TCP created false invoices suggesting that TCP had purchased equipment from each of Hills and Bosch. On the basis of these invoices, AFSL agreed to purchase the equipment and lease it back to TCP. AFSL paid the amounts of the false invoices to Hills and Bosch. AFSL later discovered the fraud and sought repayment from Hills and Bosch. Hills and Bosch resisted AFSL's claim on the basis of their change of position. In particular, both companies relied upon the application of AFSL's payments to the discharge of TCP's debts, and the circumstances that they had ceased pursuing the recovery of the debts and continued to trade with TCP. It was not in dispute that Hills and Bosch had both acted on the faith of the receipt of AFSL's payments. In the Supreme Court of New South Wales, the primary judge rejected Hills' defence of change of position, but held that the defence had been made out in relation to Bosch. AFSL and Hills both appealed to the Court of Appeal, which held that each of Hills and Bosch was entitled to rely on a defence of change of position in response to AFSL's claim for repayment. By grant of special leave, AFSL appealed to the High Court. The High Court unanimously dismissed AFSL's appeal. A majority of the Court held that the relevant enquiry was whether retention of the monies by Hills and Bosch would be inequitable in all the circumstances. The Court rejected the approach argued by AFSL, which focused on the extent to which Hills and Bosch had been "disenriched" subsequent to the receipt. The principle of disenrichment, like that of unjust enrichment, is inconsistent with the law of restitution as it has developed in Australia. The Court concluded that, in the circumstances of this case, the disadvantages which would enure to Hills and Bosch if they were required to repay AFSL are such that it would be inequitable to require them to do so.
+HIGH COURT OF AUSTRALIA 4 December 2019 BMW AUSTRALIA LTD v BREWSTER & ANOR; WESTPAC BANKING CORPORATION & ANOR v LENTHALL & ORS [2019] HCA 45 Today the High Court allowed an appeal from a decision of the Full Court of the Federal Court of Australia and an appeal from a decision of the Court of Appeal of the Supreme Court of New South Wales. The principal issue in each appeal was whether, in representative proceedings, s 33ZF of the Federal Court of Australia Act 1976 (Cth) ("the FCA") and s 183 of the Civil Procedure Act 2005 (NSW) ("the CPA") empower the Federal Court of Australia and the Supreme Court of New South Wales, respectively, to make what is known as a "common fund order" ("CFO"). The first to fourth respondents in the Westpac matter (No S154 of 2019) commenced representative proceedings in the Federal Court of Australia alleging that Westpac's financial advisers breached their obligations to the respondents in relation to advice given regarding insurance policies. In the BMW matter (No S152 of 2019), the first respondent commenced representative proceedings in the Supreme Court of New South Wales against BMW Australia Ltd relating to the national recall of BMW vehicles fitted with defective airbags. Both proceedings were funded by litigation funders. In each proceeding, the litigation funder had entered into a litigation funding agreement with a small number of group members. The representative parties applied to the court in each representative proceeding for a CFO. A CFO is an order characteristically made at an early stage in representative proceedings that provides for the quantum of a litigation funder's remuneration to be fixed as a proportion of any moneys ultimately recovered in the proceedings, for all group members to bear a proportionate share of that liability, and for that liability to be discharged as a first priority from any moneys so recovered. Section 33ZF of the FCA and s 183 of the CPA each provide that in a representative proceeding, the court may make any order that the court thinks appropriate or necessary to ensure that justice is done in the proceeding. The Full Court of the Federal Court of Australia and the Court of Appeal of the Supreme Court of New South Wales held that s 33ZF of the FCA and s 183 of the CPA, respectively, empowered the court to make a CFO. By grants of special leave, the appellants appealed to the High Court. A majority of the Court allowed the appeals, holding that, properly construed, neither s 33ZF of the FCA nor s 183 of the CPA empowers a court to make a CFO. Considerations of text, context and purpose all point to the conclusion that it is not appropriate or necessary to ensure that justice is done in a representative proceeding for a court to promote the prosecution of the proceeding by the making of a CFO. Because the principal issue was resolved in favour of the appellants by a majority of the Court, the issues of whether the relevant provisions of the FCA and the CPA infringe Ch III of the Constitution and the principle in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 and whether the provisions are contrary to s 51(xxxi) of the Constitution did not arise for determination.
+HIGH COURT OF AUSTRALIA 9 March 2011 LEONILDA MARCOLONGO v YU PO CHEN & ANOR [2011] HCA 3 Today the High Court allowed an appeal from the New South Wales Court of Appeal and set aside a registered transfer of land from Lym International Pty Limited ("Lym") to Mr Chen by application of s 37A of the Conveyancing Act 1919 (NSW). Section 37A(1) provides that, except for certain specified exceptions, every alienation of property made with the intent to defraud creditors shall be voidable at the instance of any person thereby prejudiced. Mrs Marcolongo owned and lived on a property adjacent to a property development project in which Lym was involved. Mrs Marcolongo sued Lym in the New South Wales District Court for damages for the removal of support during the building operations. During 2004 and 2005 the solicitors for Mrs Marcolongo and Lym corresponded concerning Mrs Marcolongo's desire to obtain a property preservation order over a second property development project, in which Lym was also involved, so as to protect Mrs Marcolongo's position in her District Court action against Lym. Later in 2005, the second property development project was valued with the result that the expected proceeds of sale would not exceed Lym's liabilities. In 2006, Lym transferred the property comprising the second project to Mr Chen to hinder Mrs Marcolongo's claim. On 26 November 2009, Mrs Marcolongo recovered a judgment against Lym for the damage caused to her property for $388,643.62 with costs. In a Supreme Court action against Lym and Mr Chen, Mrs Marcolongo relied upon s 37A to have the contract declared voidable at her instance and to require Mr Chen to transfer the property back to Lym. The result would be Lym retaining a substantial asset to meet any order for damages. The trial judge found in favour of Mrs Marcolongo. The Court of Appeal reversed the trial judge's decision on the basis that Lym had not been dishonest, and the transfer was not "predominantly" motivated by the intent to defeat the claim of Mrs Marcolongo as a creditor. French CJ, Gummow, Crennan and Bell JJ considered that s 37A should receive a liberal construction in accordance with the provenance of the provision. Their Honours held that "defraud" includes the hindering or delaying of creditors in the exercise of their legal remedies. The plurality further held that s 37A requires a finding of intent to achieve the proscribed prejudice. French CJ, Gummow, Crennan and Bell JJ held that s 37A is not qualified by a notion of constructive fraud, does not require an element of dishonesty and does not require a predominant or sole intent to defraud. Heydon J held that whatever the precise test called for by s 37A, the intent underlying Lym's conduct was enough to satisfy it. The intent was as "actual" and "dishonest" as it is possible to have. The High Court held that s 37A applied despite the transferor having formed the proscribed intent by reason of the misconduct of another. The Court also held that Mr Chen was not within an exception to s 37A for purchasers in good faith not having, at the time of the alienation, notice of the intent to defraud creditors.
+HIGH COURT OF AUSTRALIA 6 October 2004 DIRECTOR OF PUBLIC PROSECUTIONS FOR THE NORTHERN TERRITORY v WJI The High Court of Australia today upheld the directions to the jury of NT Supreme Court Justice Trevor Riley in relation to consent in WJI’s rape trial, and agreed with a decision of the NT Court of Criminal Appeal on the appropriateness of the directions. In May 2001 WJI was found not guilty of sexual intercourse with a female without her consent. Justice Riley had told the jury the charge had three elements: that WJI had sexual intercourse with TRR at Palmerston on or about 27 January 1988; that TRR did not give her consent; and that WJI intended to have sexual intercourse with TRR without her consent. Justice Riley directed that if WJI had mistakenly believed that TRR consented to sexual intercourse, he will not have intended to have sex with her without her consent. Therefore the Crown must prove beyond reasonable doubt that WJI had no mistaken belief about consent. The DPP contended that the prosecution was only required to establish that WJI intended to have sex with TRR, but was not required to establish that he intended to have non-consensual sex. The DPP said that WJI may have been able to use the excuse that he had an honest and reasonable, but mistaken, belief that TRR was consenting. The prosecution would then have needed to negate this excuse to establish the third element. The NT Court of Criminal Appeal dismissed an appeal from the DPP by a 4-1 majority. The DPP then appealed to the High Court. The Court held that the absence of consent was a part of the deed which attracted criminal responsibility. Criminal responsibility only arose if there was intent to have sexual intercourse without consent. An intention to have sexual intercourse was not sufficient to establish criminal responsibility. The Court held that Justice Riley’s directions were correct and dismissed the appeal by a 4-1 majority.
+HIGH COURT OF AUSTRALIA 18 December 2013 GRAEME STEPHEN REEVES v THE QUEEN [2013] HCA 57 Today the High Court unanimously dismissed an appeal against conviction and upheld an appeal against sentence from a decision of the New South Wales Court of Criminal Appeal, brought by Graeme Stephen Reeves. Mr Reeves was convicted following a trial by jury in the District Court of New South Wales of malicious infliction of grievous bodily harm with intent to inflict harm of that kind. Mr Reeves was a gynaecologist and the complainant, CDW, was his patient. The harm inflicted on CDW was the surgical removal of her vulva, including her labia and clitoris. Mr Reeves was sentenced to a term of two and a half years' imprisonment with a non-parole period of one year. The Court of Criminal Appeal confirmed his conviction and allowed an appeal by the Director of Public Prosecutions against the inadequacy of the sentence. CDW had been referred to Mr Reeves by her general practitioner for treatment of a pre-cancerous lesion on her left labia. She gave evidence that she had agreed to the surgical removal of a small flap of skin containing the lesion and not to the removal of her entire vulva, including her labia and clitoris. Mr Reeves' case was that CDW had consented to the surgery knowing that it entailed the removal of her entire vulva. The direction given to the jury by the trial judge stated that there would not be a lawful cause or excuse for the surgery if Mr Reeves did not honestly believe that CDW had given her informed consent to the full extent of the operation, including removal of the labia and clitoris. The direction stated that for consent to be "informed" the medical practitioner must at least explain the purpose of the operation, the part or parts of the body to be cut or removed, the possible major consequences of the operation and any options or alternative treatments which may be reasonably available. The Court of Criminal Appeal found that the introduction of the concept of "informed consent" was an error, but that in light of the conduct of the trial, this error had not occasioned a substantial miscarriage of justice. Mr Reeves' appeal was dismissed. Mr Reeves applied for special leave to appeal to the High Court. The Court found that the Court of Criminal Appeal identified and applied the correct test for consent to surgery, which requires that the patient be informed in broad terms of the nature of the procedure. The High Court found that in the context of this trial, the use of the phrase "informed consent" and the reference to possible major consequences and alternative treatments had not distracted the jury from the one issue on consent, which was whether the prosecution had excluded beyond reasonable doubt that CDW had been informed that the surgery involved the removal of her vulva, including her labia and clitoris. The High Court agreed with the Court of Criminal Appeal that the misdirection had not occasioned a substantial miscarriage of justice. The Director of Public Prosecutions conceded that the Court of Criminal Appeal erred by failing to consider the exercise of its residual discretion to dismiss the appeal taking into account the medical evidence of Mr Reeves' deteriorating health and the imminent expiry of his non-parole period. In light of that concession, the High Court allowed Mr Reeves' appeal against sentence on this ground and remitted the matter to the Court of Criminal Appeal for it to consider the residual discretion.
+HIGH COURT OF AUSTRALIA 16 May 2018 CRI026 v THE REPUBLIC OF NAURU [2018] HCA 19 Today the High Court unanimously dismissed an appeal from a decision of the Supreme Court of Nauru that the Refugee Status Review Tribunal ("the Tribunal") had not erred in dismissing the appellant's claim for complementary protection under the Refugees Convention Act 2012 (Nr) ("the Refugees Act"). The appellant was born in Sialkot in Pakistan but had lived most of his life in Karachi. His family lived in Sialkot. He arrived in the Republic of Nauru ("Nauru") in 2013 and shortly thereafter applied to the Secretary of the Department of Justice and Border Control of Nauru ("the Secretary") to be recognised as a refugee under the Refugees Act or, alternatively, as a person to whom Nauru owed complementary protection under the Act. He claimed that he could not or did not want to return to Pakistan because he feared that upon his return he would be harmed by members of the Muttahida Qaumi Movement ("the MQM") by reason of an injury he had inflicted on one of their senior members, and also because they viewed him as a political dissident. The Secretary rejected the application. The Tribunal affirmed the Secretary's decision on the basis that it would be reasonable in the circumstances for him to relocate to Punjab in Pakistan where the MQM had no power or influence and the risk of being harmed was remote and not a real possibility. Towards the end of their reasons, the Tribunal made the evidently incongruous observation that the appellant would not face a real possibility of persecution in Sri Lanka and referred to him being of Tamil ethnicity. The Supreme Court dismissed an appeal against the Tribunal's decision. The appellant appealed as of right to the High Court, alleging that the Tribunal had erred in determining his claim for complementary protection by reference to his ability reasonably to relocate within Pakistan and his circumstances in the event he were returned to Sri Lanka, as opposed to Pakistan. He further alleged that the Tribunal erred in failing to consider whether it was reasonable for his family to relocate to Punjab and in finding that the MQM had no power or influence in Punjab. The High Court held that, having regard to international jurisprudence, unless the feared persecution emanates from or is condoned or tolerated by State actors (which was not an issue in this case), an applicant's ability reasonably to relocate within his or her country of origin, including the ability safely and legally to travel to the place of relocation, is relevant to whether the applicant is in need of complementary protection. Further, the Court held that, reading the Tribunal's reasons as a whole, the incongruous observation which referred to Sri Lanka and Tamils rather than Karachi and the MQM was a typographical error and did not disclose that the Tribunal's reasoning process was affected by error. Accordingly, it was not necessary to consider whether the Tribunal had the power to issue the corrigendum correcting the error. In relation to the alleged failure to take into account the appellant's family in determining his claim for complementary protection, the Court found that there was no substantial, clearly articulated argument of the kind suggested by the appellant and thus the Tribunal was not required to consider it. As regards the finding that the MQM had no power or influence in Punjab, the Court concluded that there was nothing to say that there was insufficient evidence to sustain the Tribunal's finding. The Court therefore dismissed the appeal.
+HIGH COURT OF AUSTRALIA 20 June 2012 KINZA CLODUMAR v NAURU LANDS COMMITTEE & ORS [2012] HCA 22 On 20 April 2012, the High Court allowed an appeal by Kinza Clodumar from the Supreme Court of Nauru. A majority of the High Court held that, on appeal from the Supreme Court of Nauru, the High Court may receive evidence that was not before the Supreme Court, where that evidence was not discoverable by the exercise of reasonable diligence on the part of the party seeking now to adduce the evidence. Today, the High Court published its reasons for allowing the appeal. Mr Clodumar is a citizen of Nauru. In 2000, Mr Clodumar commenced proceedings in the Supreme Court of Nauru, to prevent the Nauru Lands Committee from distributing certain interests in land. The Nauru Lands Committee ("the Committee") is a statutory body empowered, under Nauruan legislation, to determine questions concerning land ownership. Mr Clodumar claimed that certain interests in the land had been transferred to him by the previous, now deceased, landowner. The Supreme Court held that the asserted transfer was void because there was no evidence that the President of Nauru had consented to the transfer. Under s 3 of the Lands Act 1976 (Nauru), the President's consent in writing is required for the transfer of any interest or estate in Nauruan land. However, for other reasons, the Supreme Court ordered the Committee not to distribute the land and to call a meeting of interested parties to determine the ownership of the land. In 2010, following these meetings, the Committee re-determined the distribution of the land. The distribution did not give effect to the transfer asserted by Mr Clodumar, who appealed to the Supreme Court of Nauru. According to Mr Clodumar, during the course of this hearing in the Supreme Court, he was given some documents by a pleader of the Supreme Court. One of the documents was a copy of a signed Presidential Approval of the asserted transfer of interests in the disputed land to Mr Clodumar ("the Approval"). The Supreme Court adjourned the further hearing of the appeal to allow Mr Clodumar to appeal to the High Court from the Supreme Court's decision in 2000. Pursuant to s 5 of the Nauru (High Court Appeals) Act 1976 (Cth) ("the Nauru Appeals Act"), appeals lie to the High Court from the Supreme Court of Nauru. In the High Court, the Committee did not contest the authenticity of the Approval. According to an affidavit sworn by a former Minister of Nauru, the Approval had been removed from a ministerial office following a change in government, and remained in that person's home until being discovered in November 2011. However, the Committee contended that the High Court could not receive the Approval because it had not been in evidence before the Supreme Court in 2000. The Committee submitted that the use of the term "appeal" in s 5 of the Nauru Appeals Act indicates that an appeal under that section is an appeal in the strict sense and is to be decided on the basis of the evidence before the Supreme Court. The Committee also opposed Mr Clodumar's application for an extension of time to appeal to the High Court. By majority, the High Court held that an appeal under s 5 of the Nauru Appeals Act is not limited to the hearing of an appeal in the strict sense because it engages the High Court's original jurisdiction under s 76(ii) of the Constitution. For the purpose of an appeal under s 5 of the Nauru Appeals Act, the High Court can therefore receive fresh evidence. The Court held that, in light of the circumstances, even if Mr Clodumar had exercised reasonable diligence, he could not have discovered the Approval before the proceedings commenced in 2000. Furthermore, Mr Clodumar sought to adduce evidence of some cogency, which, if accepted on a retrial in the Supreme Court, would be likely to determine the outcome of those proceedings. The High Court therefore granted the necessary extension of time, allowed the appeal and remitted the matter to the Supreme Court for retrial.
+HIGH COURT OF AUSTRALIA 11 February 2004 REX ANTHONY BASHFORD v INFORMATION AUSTRALIA (NEWSLETTERS) PTY LIMITED The High Court of Australia today dismissed an appeal by Mr Bashford, who claimed a trade journal defamed him when it said he, rather than his consultancy, was liable for a false report that caused another company harm and loss. In 1993, Mr Bashford’s company, RA Bashford Consulting Pty Ltd, and Risk Management Concepts Pty Ltd ran an item headed “Chemwatch wins copyright case” in a newsletter the two companies were involved in, called Infax. The Infax article erroneously asserted that Chemwatch had successfully challenged two companies for breaching copyright by using Chemwatch’s material safety data sheets (MSDS) on their database. The item implied that Chemwatch competitor Acohs Pty Ltd was one of the two companies, but Chemwatch had not in fact succeeded in its copyright action. In 1997, the Federal Court found Bashford Consulting and Risk Management Concepts had engaged in misleading or deceptive conduct contravening the Trade Practices and ordered the two companies and Chemwatch’s proprietor Bernie Bialkower to pay $20,000 in damages to Acohs. The Occupational Health and Safety Bulletin, published by Information Australia, ran an article on the Federal Court case, and referred to RA Bashford, rather than to RA Bashford Consulting. Mr Bashford sued for defamation, and in the High Court he claimed both the New South Wales Supreme Court and the Court of Appeal had erred in finding that the Bulletin article attracted the defence of qualified privilege. He alleged the defence was not available because the report was inaccurate and because there was not the necessary reciprocal interest or duty between the Bulletin’s publishers and its subscribers. The High Court held, by a 5-2 majority, that there was the necessary reciprocity of duty or interest as the subscribers to the Bulletin were people responsible for health and safety in the workplace. The narrow focus of the Bulletin’s subject matter and its readership was different from general news media. The Court held that misidentification of Mr Bashford as the publisher of the Infax article did not alter or reduce the connection between the privileged occasion and the defamatory matter. Communication of the statement – that to assert successful prosecution for MSDS copyright infringement had been held to be false and misleading conduct – fulfilled the reciprocal duties or interests involved in communication of health and safety information. The Bulletin could not rely on the defence of a fair and accurate report of judicial proceedings, but the qualified privilege defence was available.
+HIGH COURT OF AUSTRALIA Public Information Officer 12 November 2008 JANINA PUTTICK (as executor of the estate of Russell Simon Puttick) v TENON LIMITED (formerly called Fletcher Challenge Forests Limited) Victoria was not a clearly inappropriate forum to decide a claim for damages arising from the asbestos- related death of a former employee of a New Zealand company, the High Court of Australia held today. Janina Puttick’s late husband, Russell Puttick, was employed by Tasman Pulp and Paper Company in NZ between 1981 and 1989. He allegedly contracted malignant mesothelioma from exposure to asbestos during visits to factories in Belgium and Malaysia. Mr Puttick, a NZ citizen who had moved to Melbourne, died in 2005, just after commencing proceedings for damages in the Victorian Supreme Court. Mrs Puttick continued the claim. Tasman was a subsidiary of Tenon Limited. Tenon allegedly owed Mr Puttick a duty of care through the control it had over Tasman and its employees. Mr Puttick claimed that it had breached that duty. Tenon was incorporated in NZ. It sought an order permanently staying the proceedings or dismissing them summarily. Tenon contended that the alleged negligence occurred in NZ, that the law to be applied to determine the claim was NZ law, and that NZ’s statutory compensation scheme barred a common law claim. In 2006 Justice David Harper held that the proceedings should be permanently stayed on grounds that Victoria was an inconvenient or inappropriate forum. It was then not necessary to decide Tenon’s application for summary judgment so Justice Harper did not express an opinion about the effect of the NZ no-fault compensation scheme on Mrs Puttick’s claim. Justice Harper held that NZ was the more appropriate forum because many witnesses and the relevant documents were in NZ. He held that the law governing substantive issues was the law of the place where the tort occurred, which he said was NZ, so the action should be permanently stayed. Mrs Puttick appealed to the Victorian Court of Appeal, alleging that Justice Harper had made an error of law. Tenon cross-appealed, alleging that, because NZ law was the governing law and NZ law regulating the no-fault compensation scheme should preclude the negligence claim, her action should be dismissed as bound to fail. The Court of Appeal, by majority, dismissed Mrs Puttick’s appeal and held that the relevant law was the law of NZ. She appealed to the High Court. The Court unanimously allowed the appeal. It held it was not yet possible to decide whether NZ law was the applicable law to decide the case. The Court held that the Court of Appeal and Justice Harper erred in deciding that the material available in this matter was sufficient to decide what law governed the rights and duties of the parties. Details about Mr Puttick’s factory visits and the relationships between Tenon, Tasman and Mr Puttick were lacking or ambiguous and were not resolved by determining Tenon’s application for a permanent stay. The Court held that, without those issues being resolved, not even a provisional finding could be made about where the alleged tort occurred. It was not possible, on the material available, to decide which legal system was applicable. All that Justice Harper and the Court of Appeal could decide was that NZ law was arguably the law that governed the dispute. Assuming the dispute was governed by NZ law, Tenon had not established that Victoria was a clearly inappropriate forum to try the dispute. Geographical proximity, similarities between legal systems and legislation for the determination of some trans-Tasman litigation meant Victoria was potentially an appropriate forum. The Court ordered that Justice Harper’s orders be set aside and that Tenon’s original summons be dismissed with costs.
+HIGH COURT OF AUSTRALIA Public Information Officer 5 August, 2003 IAN WAYNE GIBBS AND PARAGLIDE PTY LTD v MERCANTILE MUTUAL INSURANCE (AUSTRALIA) LTD A parasailing company cannot claim on its insurance policy to cover injuries to a customer after the High Court of Australia today held that the policy was covered by the federal Marine Insurance Act, rather than the Insurance Contracts Act. The High Court, by a 3-2 majority, upheld a decision of the Full Court of the Western Australian Supreme Court that the Marine Insurance Act applied. Helen Morrell was seriously injured on January 30, 1989, when the power boat driven by Mr Gibbs came too close to Heirisson Island in Perth's Swan River and she was dragged through trees. Mr Gibbs and Paraglide did not inform Mercantile of the accident for another four years and had also not informed Mercantile of another accident in February 1988. Paraglide ceased trading in January 1990. Mrs Morrell successfully sued Mr Gibbs and Paraglide. They sought indemnity under the policy but Mercantile denied liability. Mr Gibbs and Paraglide claimed the policy was for public liability, not marine losses, and that the accident was unrelated to the sea, and so was covered by the Insurance Contracts Act. The failure to give timely notice to Mercantile may not then have barred a claim for indemnity. The WA District Court held that the policy was not a contract for marine insurance. This decision was reversed by the Full Court of the WA Supreme Court. Mr Gibbs and Paraglide then appealed to the High Court. The majority of the Court held that the cover provided by the policy was for liability arising from events occurring during the navigation of the boat and from exposure to maritime perils. Indemnity against legal liability to third parties had long been a form of marine insurance. Careless operation of the boat that caused Mrs Morrell to crash into trees was a form of maritime peril. The policy was one for marine insurance and the Marine Insurance Act applied.
+HIGH COURT OF AUSTRALIA Manager, Public Information 21 April 2009 Today, the High Court allowed Mr Carroll’s appeal and remitted to the Court of Criminal Appeal of the Supreme Court of New South Wales for reconsideration the Director of Public Prosecution’s appeal against the sentence imposed on Mr Carroll for his plea of guilty to manslaughter. The decision of the five member High Court was unanimous. One evening in May 2007 Mr Carroll and his friends left a hotel at about the same time as Mr Criniti. A dispute arose between some members of the group and Mr Criniti and Mr Criniti made some threats to harm them. Mr Carroll responded by head-butting Mr Criniti, who fell backwards onto the road and hit the back of his head on the roadway. Ten days later Mr Criniti died. Mr Carroll pleaded guilty to manslaughter and was sentenced by a judge of the District Court of New South Wales to a three-year term of imprisonment, to be served by way of periodic detention, with a non-parole period of 18 months. The sentencing judge gave detailed reasons for that decision. The DPP appealed against that sentence to the Court of Criminal Appeal and submitted that the sentence was manifestly inadequate. By majority, the Court of Criminal Appeal accepted the submissions put by the DPP and re-sentenced Mr Carroll to a period of full- time incarceration. Mr Carroll was granted special leave to appeal to the High Court on the question of whether the majority of the Court of Criminal Appeal erred in concluding that the sentence imposed by the primary judge was manifestly inadequate. The High Court found that the majority in the Court of Criminal Appeal was wrong to assess the adequacy of the sentence on the footing that Mr Carroll should not have been provoked by Mr Criniti’s conduct. The primary judge had found that Mr Carroll had been subject to some provocation and the Crown had not challenged this finding. Secondly, the High Court said that it was an error for the Court of Criminal Appeal to assess the seriousness of the offence by characterising it as one in which “severe injury was clearly foreseeable and death at least a possibility”. Mr Carroll’s admission of guilt acknowledged no more than that his act in striking Mr Criniti carried an appreciable risk of serious injury. The High Court remitted the DPP’s appeal against the inadequacy of the sentence to the Court of Criminal Appeal for determination because the task of deciding that question is better undertaken by that Court.
+HIGH COURT OF AUSTRALIA 4 March 2003 THE QUEEN v SIPAI SOMA The High Court of Australia today dismissed a prosecution appeal against a decision of the Queensland Court of Appeal, quashing Mr Soma’s conviction on the ground that the prosecution had impermissibly split its case at trial and ordering a new trial. Mr Soma had been charged with rape. He admitted to having had carnal knowledge of the complainant, but claimed that he had acted with the complainant's consent. During an interview with police, which was tape-recorded, Mr Soma gave an account of what happened between him and the complainant on the night of the alleged rape. At trial, when it presented its case, the prosecution did not lead any evidence of Mr Soma’s police interview. When Mr Soma then gave evidence in his defence, extracts from the tape-recorded police interview became the subject of cross-examination and the recorded interview was tendered in evidence. Mr Soma appealed. The Court of Appeal allowed the appeal. The prosecutor then appealed to the High Court, arguing that the Court of Appeal had failed to give proper effect to certain provisions of Queensland’s Evidence Act. By majority, the High Court dismissed the appeal, applying the general principle that the prosecution must offer all its proof during the progress of its case. The Evidence Act provisions do not modify this general principle.
+HIGH COURT OF AUSTRALIA Public Information Officer 10 April, 2003 ANTHONY GORDON OATES v THE ATTORNEY-GENERAL FOR THE COMMONWEALTH AND THE COMMONWEALTH OF AUSTRALIA The High Court of Australia dismissed Oates’s appeal against extradition from Poland on March 4 and today handed down its reasons for judgment. Oates, a former Bond Corporation executive, is accused under the Western Australian Criminal Code of one count of conspiracy to defraud, and under the WA Companies Code of eight counts of improper use of his position as a company director and eight counts of acting dishonestly as a company director. He has lived in Poland since 1991. In response to Australia’s extradition request, Oates was arrested by Polish authorities in October 1996 and held in custody for seven months. He sought leave to appeal in the High Court from a decision of the Full Court of the Federal Court that the extradition request was valid. In his application for special leave to appeal, Oates sought a declaration that the extradition request was invalid. He claimed the offences were not among those listed in the 1932 extradition treaty between Poland and the United Kingdom on Australia and New Zealand’s behalf. (A new Australia- Poland treaty took effect in 1999, but the relevant events took place when the first treaty was in operative.) The High Court found it unnecessary to decide that issue. The Court held that neither a UK Order in Council (by which the 1932 treaty became applicable in Australia), nor the treaty itself, nor Australia’s Extradition (Foreign States) Act imposed any limitations, conditions, exceptions or qualifications which affected the Attorney-General’s power to
+HIGH COURT OF AUSTRALIA 31 August 2011 PLAINTIFF M70/2011 v MINISTER FOR IMMIGRATION AND CITIZENSHIP PLAINTIFF M106 OF 2011 BY HIS LITIGATION GUARDIAN, PLAINTIFF M70/2011 v MINISTER FOR IMMIGRATION AND CITIZENSHIP [2011] HCA 32 Today the High Court held invalid the Minister for Immigration and Citizenship's declaration of Malaysia as a country to which asylum seekers who entered Australia at Christmas Island can be taken for processing of their asylum claims. After an expedited hearing before the Full Bench, the Court by majority made permanent the injunctions that had been granted earlier and restrained the Minister from taking to Malaysia two asylum seekers who arrived at Christmas Island, as part of a larger group, less than four weeks ago. The Court also decided that an unaccompanied asylum seeker who is under 18 years of age may not lawfully be taken from Australia without the Minister's written consent under the Immigration (Guardianship of Children) Act 1946 (Cth). The Court granted an injunction restraining the Minister from removing the second plaintiff, an Afghan citizen aged 16, from Australia without that consent. The Court held that, under s 198A of the Migration Act 1958 (Cth), the Minister cannot validly declare a country (as a country to which asylum seekers can be taken for processing) unless that country is legally bound to meet three criteria. The country must be legally bound by international law or its own domestic law to: provide access for asylum seekers to effective procedures for assessing their need for protection; provide protection for asylum seekers pending determination of their refugee status; and provide protection for persons given refugee status pending their voluntary return to their country of origin or their resettlement in another country. In addition to these criteria, the Migration Act requires that the country meet certain human rights standards in providing that protection. The Court also held that the Minister has no other power under the Migration Act to remove from Australia asylum seekers whose claims for protection have not been determined. They can only be taken to a country validly declared under s 198A to be a country that provides the access and the protections and meets the standards described above. The general powers of removal of "unlawful non-citizens" given by the Migration Act (in particular s 198) cannot be used when the Migration Act has made specific provision for the taking of asylum seekers who are offshore entry persons and whose claims have not been processed to another country, and has specified particular statutory criteria that the country of removal must meet. On the facts which the parties had agreed, the Court held that Malaysia is not legally bound to provide the access and protections the Migration Act requires for a valid declaration. Malaysia is not a party to the Refugees Convention or its Protocol. The Arrangement which the Minister signed with the Malaysian Minister for Home Affairs on 25 July 2011 said expressly that it was not legally binding. The parties agreed that Malaysia is not legally bound to, and does not, recognise the status of refugee in its domestic law. They agreed that Malaysia does not itself undertake any activities related to the reception, registration, documentation or status determination of asylum seekers and refugees. Rather, the parties agreed, Malaysia permits the United Nations High Commissioner for Refugees ("UNHCR") to undertake those activities in Malaysia and allows asylum seekers to remain in Malaysia while UNHCR does so. The Court emphasised that, in deciding whether the Minister's declaration of Malaysia was valid, it expressed no view about whether Malaysia in fact meets relevant human rights standards in dealing with asylum seekers or refugees or whether asylum seekers in that country are treated fairly or appropriately. The Court's decision was based upon the criteria which the Minister must apply before he could make a declaration under s 198A.
+HIGH COURT OF AUSTRALIA 14 October 2015 PT BAYAN RESOURCES TBK v BCBC SINGAPORE PTE LTD & ORS [2015] HCA 36 Today the High Court unanimously dismissed an appeal from the Court of Appeal of the Supreme Court of Western Australia. The High Court held that it is within the inherent power of the Supreme Court of Western Australia to make a freezing order in relation to an anticipated judgment of a foreign court which, when delivered, would be registrable by order of the Supreme Court under the Foreign Judgments Act 1991 (Cth) ("the Act"). The appellant, a company incorporated in Indonesia, owns shares in the second respondent, a company incorporated in Australia. The first respondent is a company incorporated in Singapore. The appellant and the first respondent are parties to a joint venture agreement which is governed by the law of Singapore. The first respondent commenced a proceeding against the appellant in the High Court of Singapore, claiming, amongst other things, damages for breach of that agreement. That proceeding remains pending. After commencing the Singaporean proceeding, the first respondent applied ex parte to the Supreme Court of Western Australia for freezing orders against the appellant and the second respondent in respect of the appellant's shares in the second respondent. The application was made pursuant to O 52A of the Rules of the Supreme Court 1971 (WA) ("the Rules"). The Supreme Court made interim freezing orders. The appellant and the second respondent then commenced a separate proceeding in the original jurisdiction of the High Court seeking declaratory relief on the basis that the interim freezing orders were beyond power. That proceeding was remitted to the Supreme Court and determined concurrently with the first respondent's application for continuation of the interim freezing orders. The primary judge dismissed the remitted proceeding, discharged the interim freezing order against the second respondent and continued the freezing order against the appellant. The primary judge made detailed findings of fact in relation to the continuation of the freezing order against the appellant, including that there was a real and sensible risk that any judgment by the High Court of Singapore in favour of the first respondent would remain unsatisfied. The Court of Appeal unanimously dismissed an appeal by the appellant from the orders of the primary judge. On appeal to the High Court, the appellant accepted that the findings of the primary judge established a factual foundation for the continuation of the freezing order in accordance with the criteria set out in O 52A r 5 of the Rules, but contended that the Supreme Court lacked power to make a freezing order in accordance with those criteria. The High Court unanimously held that the power to make a freezing order in relation to an anticipated judgment of a foreign court, which when delivered would be registrable by order of the Supreme Court under the Act, is within the inherent power of the Supreme Court. The Court so held because the making of the freezing order is to protect a process of registration and enforcement in the Supreme Court which is in prospect of being invoked. The Court determined that the criteria set out in O 52A r 5 of the Rules are appropriately tailored to the exercise of that inherent power.
+HIGH COURT OF AUSTRALIA 10 November 2021 [2021] HCA 36 Today, the High Court dismissed an appeal from a judgment of the Court of Criminal Appeal of the Supreme Court of New South Wales. The appeal concerned whether certain questions asked by the Crown prosecutor in cross-examination of the appellant were impermissible and prejudicial such that they resulted in a miscarriage of justice within s 6(1) of the Criminal Appeal Act 1912 (NSW). It also concerned whether the trial miscarried on account of the alleged incompetence of the appellant's counsel. The Court then considered whether, despite those errors, the proviso in s 6(1) applied, in that no substantial miscarriage of justice actually occurred. The appellant was convicted of eight counts of having sexual intercourse with another person knowing that the other person does not consent. The offences were committed against two complainants on consecutive days in similar circumstances. The appellant's belief as to consent was the key issue at trial and accordingly his credibility was important. During cross-examination of the appellant, it became apparent that certain of his evidence which contradicted that of the complainants had not been put to them by defence counsel for comment, in breach of the rule in Browne v Dunn. On each occasion, the prosecutor asked the appellant to acknowledge the omission. In respect of two of these omissions, the prosecutor put to the appellant that those aspects of his evidence were, in effect, of recent invention. Defence counsel did not pursue objections to these suggestions of recent invention and the trial judge did not direct the jury as to the use which could be made of this evidence. The High Court unanimously held that the prosecutor's questioning amounted to a miscarriage of justice. The questioning was highly prejudicial because, absent any directions from the trial judge, there was a real chance that the jury may have assumed that the appellant had recently made up his story and rejected his evidence as not credible. The Court found it unnecessary to consider whether the inaction of the appellant's counsel separately resulted in a miscarriage. However, a majority of the Court held that the proviso in s 6(1) of the Criminal Appeal Act applied because no substantial miscarriage of justice had actually occurred. In applying the proviso, an appellate court must decide whether, notwithstanding the error, guilt was proved to the criminal standard on the admissible evidence at the trial that was had. Here, the appellant's evidence was so glaringly improbable as to be incapable of belief, such that it could not have given rise to a reasonable doubt as to his guilt. Nor was this a case where there had been a failure of process that involved a serious breach of the presuppositions of the trial, such that the proviso could not be applied; rather, the Crown's impermissible contention of recent invention was of little significance in the determination of the real issue in the trial.
+HIGH COURT OF AUSTRALIA 12 February 2014 PASQUALE BARBARO v THE QUEEN [2014] HCA 2 Today the High Court rejected the argument of Mr Barbaro and Mr Zirilli (the applicants) that they suffered unfairness at their sentencing hearing because the sentencing judge refused to receive any submission from the prosecution about what range of sentences could be imposed on each applicant. The High Court held, by majority, that the practice in Victoria of permitting or requiring counsel for the prosecution, in certain circumstances, to make a submission as to the available range of sentences for an offence is wrong in principle and should cease. The applicants each pleaded guilty in the Supreme Court of Victoria to three offences: conspiring to traffic a commercial quantity of MDMA, trafficking a commercial quantity of MDMA and attempting to possess a commercial quantity of cocaine. They agreed to enter pleas of guilty in relation to those offences following discussions between their lawyers and the prosecution. During those discussions, the prosecution expressed its view as to the range of sentences that might be imposed on each applicant. In R v MacNeil-Brown (2008) 20 VR 677, the Court of Appeal of the Supreme Court of Victoria held that if a sentencing judge asked, the prosecution was bound to submit what the prosecution considered to be the available range of sentences that could be imposed on an offender. At the applicants' sentencing hearing, the sentencing judge made it plain that she did not intend to ask any party for submissions about sentencing range. Counsel for the prosecution, therefore, made no submission about what range of sentences could be imposed. Mr Barbaro was sentenced to life imprisonment with a non-parole period of 30 years. Mr Zirilli was sentenced to 26 years' imprisonment with a non-parole period of 18 years. The applicants sought to challenge their sentences in the Court of Appeal on the basis (among others) that it was procedurally unfair for the sentencing judge to have refused to hear a submission from the prosecution on the available range of sentences in light of the discussions between the applicants and the prosecution. The Court of Appeal rejected this challenge to the sentences. By special leave, the applicants appealed to the High Court. The High Court dismissed the appeals. The Court held, by majority, that it is neither the role nor the duty of the prosecution to proffer some statement of the bounds within which a sentence may be imposed. It is for the sentencing judge alone to decide what sentence will be imposed. The practice which resulted from the decision in MacNeil-Brown was therefore wrong in principle and should cease. The Court held that because the prosecution's submission as to an available sentencing range is no more than a statement of opinion, it was not unfair for the sentencing judge to have refused to receive such a submission. The Court also held that this refusal did not amount to a failure to take into account a relevant consideration in sentencing the applicants.
+HIGH COURT OF AUSTRALIA 12 November 2004 PERMANENT TRUSTEE AUSTRALIA LIMITED v COMMISSIONER OF STATE REVENUE The States could impose stamp duty and other taxes on Commonwealth places, the High Court of Australia held today as it upheld the validity of the Commonwealth Places (Mirror Taxes) Act. In 1998 Permanent Trustee entered into a development agreement with Australia Pacific Airports (Melbourne) Pty Ltd (APAM) and Folkestone Limited for the building of a hotel at Melbourne Airport. Permanent sub-leased the premises from APAM – which leased the airport land from the Commonwealth – and procured Hilton International to operate a four-star hotel. In March 2001, the Commissioner assessed stamp duty on the sub-lease at $762,583.20. The assessment was made under Victoria’s Stamps Act, which applied in relation to Commonwealth places by reason of the Mirror Taxes Act. Permanent’s objection to the assessment is before the Victorian Supreme Court. In October 2003 the High Court ordered that the part of the objection concerning the validity of the Mirror Taxes Act be removed into that Court. Section 52(i) of the Constitution gives the Commonwealth Parliament exclusive power to make laws with respect to Commonwealth places. The Mirror Taxes Act was part of a package of Commonwealth legislation dealing with the consequences of the High Court’s 1996 decision in Allders International Pty Ltd v Commissioner of State Revenue (Victoria) concerning stamp duty on an area of Melbourne Airport leased to a duty-free store. The Court held, by a 5-2 majority, that laws such as Victoria’s Stamps Act did not apply to Commonwealth places. The Mirror Taxes Act was designed to ensure that Commonwealth places within States were not immune from State taxes of general application by endowing such a tax law with the character of a Commonwealth law to the extent it applies to Commonwealth places. The High Court was called on to decide on several grounds whether the Mirror Taxes Act was invalid or ineffective to apply State tax laws to Commonwealth places. One ground was whether, contrary to section 55 of the Constitution, the Act is a law imposing tax which deals with a matter other than the imposition of tax. The Court held that although the Mirror Taxes Act applied both taxing provisions and provisions for the assessment, collection and recovery of that tax, the inclusion of the latter class of provisions did not offend section 55. Those provisions did not deal with a subject matter other than the imposition of taxation. Similarly, the Mirror Taxes Act was not invalid as a law imposing taxation and dealing with more than one subject of taxation. Although the Act applied a range of different State tax laws, it has been formulated with respect to one subject matter, namely the application of State tax laws to Commonwealth places, and thereby dealt only with one subject of taxation. By a 5-2 majority, the High Court rejected arguments that the Act was invalid for discriminating between States or parts of States, contrary to section 51(ii) of the Constitution, and invalid on the ground that the Act as a revenue law gives preference to one State or part thereof over another State or part thereof, contrary to section 99 of the Constitution. The Court decided that while the Act’s scheme may produce differences in the rate of tax applied in Commonwealth places in each State that was due to differences existing between the tax regimes from State to State. A Commonwealth place is treated for tax purposes in the same way as other parts of the State in which it is located. The Court ordered Permanent to pay the costs of the case before it and remitted the cause to the Victorian Supreme Court to determine the remaining issues.
+HIGH COURT OF AUSTRALIA 4 December, 2003 BRADLEY JOHN DOSSETT v TKJ NOMINEES PTY LTD The High Court of Australia today allowed an appeal by an injured worker after courts in Western Australia held he could not take action against his employer because of a change in the law. Mr Dossett suffered back and shoulder injuries in 1996 while operating a front-end loader at the Moore River limestone quarry. At that time, he required the leave of the WA District Court to commence proceedings at common law to recover damages for personal injury if there was a serious disability. On 1 July 1998, by originating summons filed in the Court, Mr Dossett sought such leave under section 93D of the Workers’ Compensation and Rehabilitation Act 1981. The application was listed for hearing on 8 October 1999, but on 5 October the Workers’ Compensation and Rehabilitation Amendment Act received royal assent and came into effect. The amendment Act replaced several sections including section 93D. A transitional provision, section 32, said the new Act did not apply to proceedings commenced before 5 October, or to proceedings where the District Court had already given leave. Mr Dossett said he was entitled to proceed under the earlier regime even though his application did not fall within section 32, because his application was saved by section 37 of the Interpretation Act. This provides that a repeal does not affect any legal proceeding in respect of a right created under an earlier proceeding so that the proceeding may be continued as if the repeal had not happened. The District Court held that it lacked power to grant leave to commence proceedings because his injury did not meet criteria under the new Act. The Full Court of the WA Supreme Court dismissed Mr Dossett’s appeal, holding that because his application for leave had not been determined before 5 October 1999 the transitional provision did not save his application. The High Court overturned the Full Court’s decision. It rejected the employer’s submission that there was no repeal in the sense required by the Interpretation Act because new provisions were substituted for the old ones. The High Court held that section 32 of the amendment Act contained no intention to oust section 37 of the Interpretation Act. The Court unanimously allowed the appeal, holding that section 93D of the 1981 Act continued to apply to Mr Dossett’s pending application and that the District Court erred in dismissing the application. It remitted the application for leave to the District Court for determination.
+HIGH COURT OF AUSTRALIA 14 December 2006 Public Information Officer STCB v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS AND REFUGEE REVIEW TRIBUNAL STCB’s claim for refugee status based on fear of an Albanian blood feud is defeated by section 91S of the Migration Act, the High Court of Australia held today. In November 2000, STCB applied for a protection visa, based on the claim that in 1944-45 his grandfather had sparked a blood feud by killing a member of the Paja family. He said the Pajas were obliged by the customary law of Albania known as the Kanun, or Code of Lekë Dukagjini, to kill a male member of STCB’s family. He feared he would be killed by the Paja family if he returned to Albania and he claimed the Albanian police were powerless to stop this. He claimed he had a well-founded fear of persecution due to being a member of two social groups: his family and Albanian citizens who are subject to customary law. In January 2002, the Immigration Department refused STCB’s application for a protection visa because Australia did not owe protection responsibilities to someone whose claims for protection derive from their association with another person who did not have refugee status, in this case STCB’s grandfather. This decision reflected a new section, section 91S, inserted into the Migration Act in October 2001. In September 2003, the Refugee Review Tribunal affirmed the decision not to grant a protection visa. It accepted STCB’s claim that his family was involved in a blood feud with the Paja family and found there was a tradition of blood feuds, particularly in northern Albania, but that Albanian authorities were addressing the problem. The RRT held that fear of revenge for a criminal act was not fear of persecution for a reason falling within the Refugees Convention definition of persecution. It held that section 91S prevented it from having regard to any fear of persecution arising from STCB’s being a member of a family. The RRT also rejected his alternative claim to be a member of a social group of Albanians subject to customary law. For people to form a particular social group they needed to share a characteristic, other than a common fear of persecution, which sets them apart from society at large, but the population affected was too diverse to be regarded as having such a distinguishing characteristic. The Federal Court of Australia and the Full Court of the Federal Court upheld the RRT decision. STCB appealed to the High Court. The Court, by a 4-1 majority, dismissed the appeal. It held that section 91S is fatal to STCB’s claim that he fears persecution from membership of his family. The grandfather had a fear of persecution for a reason other than those listed in the Convention, namely revenge for murder. Section 91S requires that STCB’s fear of persecution be disregarded as that fear would not exist if the grandfather’s fear had never existed. The Court held that the RRT had considered the questions posed by section 91S to the extent necessary before determining that it could disregard his fear of persecution. On the question of whether he was among Albanians subject to customary law, the Court held that STCB failed to show that possession of a particular characteristic or attribute distinguished the group from society at large. The Court noted that Albanians are not subject to customary law but rather to criminal gangs acting in the name of customary law.
+HIGH COURT OF AUSTRALIA Public Information Officer 7 February, 2003 BORAL BESSER MASONRY LTD (now Boral Masonry Ltd) v AUSTRALIAN COMPETITION AND CONSUMER COMMISSION The High Court of Australia today allowed an appeal by concrete brick and paver manufacturer Boral Besser Masonry Ltd (BBM) against a finding that it contravened section 46 of the Trade Practices Act by its conduct during a price war in Victoria between 1994 and 1996. The price war, sparked by a severe downturn in the Victorian building industry, broke out in 1993 between BBM and its four rivals in tendering for major projects. The ACCC alleged BBM used its market power for a proscribed purpose between April 1994 and October 1996. In the Federal Court, Justice Peter Heerey at first instance found against the ACCC, holding that BBM did not have substantial market power and did not take advantage of that power in pricing its products. The Full Court of the Federal Court unanimously allowed an appeal, upholding the contention of the ACCC. The High Court, by a 6-1 majority, allowed BBM’s appeal and reversed the decision of the Full Court and upheld the decision of Justice Heerey.
+HIGH COURT OF AUSTRALIA 27 April 2005 ANGAS LAW SERVICES PTY LTD (in liquidation) AND ALAN SCOTT v GEORGE CARABELAS AND VIRGINIA CARABELAS The liquidator of an insolvent company formerly controlled by Mr Carabelas, a South Australian legal practitioner, failed in an attempt to have the High Court of Australia overturn a decision of the Full Court of the SA Supreme Court, which rejected his claim to recover damages from Mr and Mrs Carabelas. Angas Law Services (ALS), of which Mr and Mrs Carabelas were the directors and shareholders, was wound up for insolvency by order of the Supreme Court in April 1994. The petitioning creditor was the Australian Tax Office, owed $25,408 for capital gains tax incurred upon the October 1989 sale of premises in Angas Street, Adelaide, the company’s main asset. Mr Scott, the liquidator of ALS, and ALS brought claims against the Carabelases in the Supreme Court. ALS sought compensation for alleged contraventions of provisions in the Companies (South Australia) Code relating to directors’ duties. The loss allegedly suffered was $474,950, due to two particular transactions, with the second of these directly causing the loss. In July 1988, the Commonwealth Bank advanced Mr Carabelas $1.75 million. The manager estimated that properties owned by Mr Carabelas and his companies were worth $3.6 million. The Angas Street property was subject to a mortgage to the Hindmarsh Building Society to secure a debt of $435,040. Mr Carabelas lent this amount to ALS to discharge the mortgage. ALS then gave a mortgage over the property to the bank as consideration for its advance to him. This arrangement was the first transaction. In October 1989, when the fortunes of Mr Carabelas and his companies declined, the Angas Street property was sold for $910,000, which was used to reduce his debt to the bank. After the sale he then owed ALS $446,710.31 – the difference between the sale price and the $435,040 that ALS owed him, adjusted for agent’s fees and other items. A journal entry showed that the $446,710.31 was all owed by five of his companies, all by then insolvent. This purported to correct a previous entry showing Mr Carabelas himself owed ALS. Mr Scott sought to show that the journal entries reflected an unlawful transaction in the form of a novation, in which the debt owed to ALS by Mr Carabelas was discharged and in its place there was a series of debts owed to ALS by the insolvent companies. These constituted the second alleged transaction. In the Supreme Court, Mr Carabelas sought to establish that his companies were engaged in a joint venture and that in borrowing money from the bank he was merely acting as agent for each one, not as a principal. The Court held that he was borrowing as a principal and then lending to his companies, a finding upheld by the Full Court. The Supreme Court found in favour of ALS and held the Carabelases liable for compensation of $474,950, plus interest of $731,423, totalling $1,206,373 plus costs. The Full Court allowed an appeal by Mr and Mrs Carabelas and reversed the decision of the Supreme Court. In a unanimous decision, the High Court held that if there had been a novation, by which a series of debts owed by insolvent companies to ALS were substituted for Mr Carabelas’s debt, the transaction would have contravened section 229 of the Companies Code and resulted in loss to ALS. However, the Court held there was no evidence of any contract of novation beyond erroneous journal entries which reflected Mr Carabelas’s contention that he merely acted as an agent. Rejection of the agency theory did not necessarily lead to a conclusion that there had been a novation resulting in a discharge of Mr Carabelas’s liability to ALS. ALS may also have owed him money. The Court remitted the matter to the Full Court to consider a proposed amendment to the statement of claim aimed at sorting out the state of the accounts between ALS and Mr Carabelas. Beyond that, the appeal by ALS and Mr Scott was dismissed.
+HIGH COURT OF AUSTRALIA 5 August 2020 ULEWIS v AUSTRALIAN CAPITAL TERRITORY [2020] HCA 26 Today the High Court unanimously dismissed an appeal from a decision of the Court of Appeal of the Australian Capital Territory ("the Territory"). The appellant had been unlawfully imprisoned in full-time detention for 82 days by reason of an invalid decision of the Territory's Sentence Administration Board ("the Board") to cancel his periodic detention. The issue considered in this appeal was whether the appellant was entitled to substantial damages to compensate him or vindicate his rights, even though the Board was required by statute to decide to cancel his periodic detention so that he would otherwise have been lawfully imprisoned in full-time detention. The Court held that the appellant was not entitled to substantial damages. The appellant was sentenced to a term of 12 months' imprisonment for recklessly or intentionally inflicting actual bodily harm on another person by smashing a glass into a man's face during a fight in Canberra. Pursuant to provisions of the Crimes (Sentence Administration) Act 2005 (ACT) in effect at the time, his sentence was to be served by a regime of periodic detention on weekends instead of full-time imprisonment. Under those provisions, the appellant was obliged to report for each period of detention. The appellant failed to report for periodic detention on multiple occasions. For this reason, the Board was required by statute to decide to cancel the appellant's periodic detention, and it did so decide. The appellant was then arrested and imprisoned for 82 days until he was released on bail pending a challenge to the lawfulness of his imprisonment. The primary judge found that the appellant's imprisonment was without lawful authority because the Board's decision to cancel his periodic detention was invalid due to a denial of procedural fairness. This finding was not subsequently challenged. The primary judge also held that the appellant was not entitled to substantial damages to compensate for the wrongful act attributed to the Board or for its consequences, because the appellant's imprisonment in full-time detention was inevitable following his breaches of the periodic detention obligations. The primary judge awarded him nominal damages of $1, which recognised that although his imprisonment was inevitable his right to be at liberty had been violated. The appellant challenged the award of only nominal damages. The award was upheld in the Court of Appeal and in the High Court. The High Court held that an independent species of "vindicatory damages", or substantial damages merely for the infringement of a right, and not for other purposes including to rectify the wrongful act or compensate for loss, is unsupported by authority or principle. And, since the same imprisonment would have occurred lawfully even if the Board had not made an invalid decision, there was no loss for which to compensate. Two justices considered that this particular appeal failed at a point anterior to the application of the compensatory principle because the appellant's right to be at liberty was already so qualified and attenuated, due to his sentence of imprisonment together with the operation of the Act, that he suffered no real loss.
+HIGH COURT OF AUSTRALIA Public Information Officer 17 June, 2003 RE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS; EX PARTE APPLICANT S20/2002 APPELLANT S106/2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Both matters concern a claim to refugee status by a Sri Lankan man. The first matter concerned an application for remedies available under section 75(v) of the Constitution against the Minister and the RRT. The second matter is an appeal from a decision of the Full Court of the Federal Court. The man arrived in Australia in 1995 on a two-month visa. Just before a temporary resident visa ran out he applied for a protection visa, claiming to be a refugee. He claimed he had been taken into custody in Sri Lanka and tortured for two months because he gave accommodation to two Tamil Tigers (members of the Liberation Tigers of Tamil Eelam). After his release he fled to Australia. The man’s claim was rejected by a delegate of the Minister in 1997. The RRT in 1999 and the Federal Court in 2000 affirmed the decision. The Full Court of the Federal Court dismissed an appeal in 2001. The man alleged the RRT’s determination refusing a protection visa was irrational, illogical and not properly based on findings or inferences of fact. The RRT held his evidence, including that his whole family had been arrested and killed by security forces, was implausible and lacked credibility. The RRT then discounted evidence from three witnesses: a former Sri Lankan Air Force flight engineer who saw that the man on his release from Colombo Fort could not walk properly, and had facial injuries and broken teeth; a Sri Lankan dentist who wrote a report saying the state of his teeth could have resulted from an assault; and an Australian doctor who wrote a report that the man had had surgery for a hernia, uncommon in 27-year-olds, and which was consistent with the man telling him he had been beaten with rifle butts. The High Court of Australia, by majority, held that the RRT’s decision had not been shown to have been illogical, irrational or lacking a basis in findings or inferences of fact supported on logical grounds. It held that someone’s credibility could be so weakened in cross-examination that a tribunal may well treat any corroborative evidence as of no weight. The Court also held that the grounds of judicial review under section 476(1) of the Migration Act had not been established and no other ground was shown for the Court to exercise its original jurisdiction. The Court rejected the application for constitutional writs and by a 4-1 majority dismissed the man’s appeal.
+HIGH COURT OF AUSTRALIA 29 September 2010 MILLER & ASSOCIATES INSURANCE BROKING PTY LTD v BMW AUSTRALIA FINANCE LIMITED [2010] HCA 31 The applicant ("Miller"), an insurance broker, negotiated a $3.975 million loan with the respondent ("BMW") on behalf of a client, Consolidated Timber Holdings Ltd ("Consolidated Timber"). The loan was sought to fund a premium for an insurance policy insuring against credit risks in connection with a plantation investment scheme. In the course of negotiations, BMW requested details of the insurance policy from Miller. In response, Miller provided a certificate of insurance issued by HIH Casualty and General Insurance Limited that included a list of four properties on which plantations were operated. Premium funding lenders generally require the insurance policy for which a loan is sought to be cancellable. Cancellable policies provide the lender with a form of security: the lender can require the borrower to assign its rights under the policy, including cancellation rights, and in the event of default the lender may cancel the policy and recover the unused premium. BMW concluded from the list of properties on the certificate of insurance that it concerned property insurance, which is generally cancellable. Later, Miller provided the policy itself as part of a bundle of materials. The policy in respect of which Miller negotiated the loan with BMW was a cost-of-production policy and was not cancellable. Miller did not explicitly draw BMW's attention to this fact. After the third repayment, Consolidated Timber defaulted on the loan. BMW sued Miller in the Supreme Court of Victoria for recovery of its loss, alleging among other things that Miller had engaged in misleading or deceptive conduct contrary to s 52 of the Trade Practices Act 1974 (Cth). The claim was put in two ways. The first was that Miller's supply of the certificate of insurance in response to BMW's request for details of the insurance policy was misleading or deceptive. The second was that Miller's failure to tell BMW that the policy for which funding was sought was not cancellable constituted misleading or deceptive conduct. The primary judge found against BMW. His Honour also rejected oral evidence given by the two employees of BMW who had responsibility for the loan that they had not understood that the policy later provided by Miller was connected to the loan. BMW successfully appealed against the primary judge's decision to the Court of Appeal. The Court overturned the rejection by the primary judge of the BMW employees' evidence on the ground that the finding was based on a mistaken understanding of an agreed fact and the inferences arising from it. The Court also held that Miller's provision of the certificate of insurance conveyed a representation that the policy was cancellable. As a result of a combination of this and Miller's failure to inform BMW about the policy's non-cancellability, the Court of Appeal considered Miller to have engaged in misleading or deceptive conduct. Miller applied to the High Court for special leave to appeal against the decision of the Court of Appeal. Its application was referred for consideration by the Full Court, which heard the application on 16 April 2010 as if on appeal. The Court today overturned the Court of Appeal's decision and reinstated the decision of the primary judge. It held that the Court of Appeal had erred in overturning the primary judge's rejection of the oral evidence. The Court of Appeal had mistaken the basis of that finding by the primary judge. The High Court also held that the Court of Appeal's finding that Miller had engaged in misleading or deceptive conduct could not be sustained. There was no foundation for the conclusion that the known importance of the cancellability of the insurance policy gave rise to a reasonable expectation, in the circumstances of the particular transaction, that Miller would not supply the certificate of insurance without disclosing that the policy was non-cancellable.
+HIGH COURT OF AUSTRALIA 14 May 2014 MACARTHURCOOK FUND MANAGEMENT LIMITED & ANOR v TFML LIMITED [2014] HCA 17 Today the High Court unanimously allowed an appeal from a decision of the Court of Appeal of the Supreme Court of New South Wales. The High Court held that redemption of certain interests in a managed investment scheme did not constitute a withdrawal from that scheme within the meaning of Part 5C.6 of the Corporations Act 2001 (Cth) ("the Act"). RFML Ltd ("RFML") (subsequently replaced by the respondent, TFML Ltd) was the responsible entity of an unlisted unit trust ("the Trust") which was a registered scheme. The constitution of the Trust complemented s 601KA(3)(b) of the Act by providing that a unitholder had no right to withdraw when the Trust was not liquid, unless there was a withdrawal offer currently open for acceptance by unitholders. The trustee was given power to suspend withdrawals if it was not in the best interests of unitholders for withdrawals to be made. In October 2006 and December 2007, RFML sought to raise funds by an open-ended public offer of ordinary units in the Trust. Through a series of facility agreements, the first appellant, MacarthurCook Fund Management Ltd ("MacarthurCook") underwrote the public offer by subscribing for units in the Trust. One of the terms of the facility agreements was that "[s]ubject to compliance with any requirements under the Corporations Act and the Constitution, during the Subscription Period, Subscription Units held by MacarthurCook must be redeemed by [RFML] for their Issue Price". On 29 September 2008, RFML gave notice that it had suspended all "withdrawals" from the Trust until further notice. MacarthurCook instituted proceedings in the Supreme Court of New South Wales on the basis of RFML's failure to redeem Subscription Units in accordance with the relevant term of their issue. The Court of Appeal held that RFML's redemption would have constituted a withdrawal within the meaning of Pt 5C.6 of the Act. However, as RFML had not complied with the requirements prescribed by the Act, and because the relevant term of issue of the Subscription Units expressed RFML's obligation to redeem to be subject to compliance with the Act, RFML was not in breach. By special leave, MacarthurCook appealed to the High Court. The High Court held that a member does not withdraw from a scheme merely by reason of a responsible entity performing an obligation (or exercising a power compulsorily) to redeem the interest of the member. The Court held that the withdrawal by a member that is regulated by Pt 5C.6 of the Act involves some act of volition on the part of the member. It followed that RFML had breached its obligation to redeem the Subscription Units as s 601KA(3)(b) had no application in this case.
+HIGH COURT OF AUSTRALIA 3 February 2021 OAKEY COAL ACTION ALLIANCE INC v NEW ACLAND COAL PTY LTD & ORS [2021] HCA 2 Today the High Court unanimously allowed an appeal from a judgment of the Court of Appeal of the Supreme Court of Queensland. The issue raised by the appeal was whether, after finding that recommendations made by the Land Court of Queensland ("Land Court") were affected by apprehended bias, the Court of Appeal ought to have referred the entirety of the matters to which the recommendations related back to the Land Court for full reconsideration, instead of making consequential orders limited to a declaration that procedural fairness had not been observed. New Acland Coal Pty Ltd ("New Acland") operated an open-cut coal mine near Oakey in Queensland. In seeking to expand the mine, New Acland applied for additional mining leases and for an amendment to its existing environmental authority. Oakey Coal Action Alliance Inc ("Oakey") and others lodged objections to each application. The Land Court recommended that both applications be rejected, including on the basis of issues relating to noise, groundwater and intergenerational equity ("Land Court's first decision"). On judicial review, the Supreme Court of Queensland rejected New Acland's arguments that the Member's conduct during the hearing gave rise to apprehended bias, but held that the recommendations were affected by errors of law and that certain matters should be referred back to the Land Court for further consideration by a different Member. In remitting matters to the Land Court for reconsideration, the Supreme Court directed that the parties were bound by the findings and conclusions reached in the Land Court's first decision on all issues other than those affected by errors of law, and also by the factual findings made in relation to noise. Following reconsideration by a different Member, the Land Court made recommendations that New Acland's applications for mining leases and an amendment to its environmental authority be approved subject to conditions ("Land Court's second decision"). The amendment to New Acland's environmental authority was subsequently granted by a delegate of the Chief Executive of the Department of Environment and Science ("Chief Executive"). On appeal from the Supreme Court's decision, the Court of Appeal allowed a cross-appeal by New Acland, holding that the recommendations made in the Land Court's first decision were affected by apprehended bias. However, rather than setting aside the qualified order for referral back made by the Supreme Court and remitting the matter to the Land Court for full reconsideration, the Court of Appeal made consequential orders limited to a declaration that the Land Court failed to observe procedural fairness in making the first decision. Following a grant of special leave to appeal to the High Court, Oakey argued that as the Land Court's second decision was affected by the same apprehended bias found by the Court of Appeal to have affected the Land Court's first decision, being based in part on the first decision-maker's findings and conclusions, the Court of Appeal should have set aside the Land Court's second decision and the Chief Executive's subsequent decision to approve the variation to New Acland's environmental authority. The High Court held that by adopting the findings and conclusions in the Land Court's first decision, the Land Court's second decision involved jurisdictional error in that it failed to observe the requirements of procedural fairness by reason of apprehended bias. Accordingly, the Court made orders setting aside the declaration made by the Court of Appeal and in its place ordered that the qualified order for referral back made by the Supreme Court be set aside, that New Acland's applications be referred back to the Land Court to be reconsidered according to law, and that the decision of the delegate of the Chief Executive be set aside.
+HIGH COURT OF AUSTRALIA 10 November 2004 The conduct of Ms Subramaniam’s trial under the New South Wales Mental Health (Criminal Procedure) Act did not fully comply with the Act, the High Court of Australia held today. In August 1995, a car owned by Sydney solicitor Leigh Johnson failed to stop at a red light on Crown Street, Surry Hills. The driver’s identity could not be made out from the red-light camera photograph. Ms Johnson contested the charge. In February 1996, her employee Ms Subramaniam made a statutory declaration that she had been driving the car. However, the prosecutor refused to discontinue the case and to send an infringement notice to Ms Subramaniam. Ms Johnson was convicted in absentia in the NSW Local Court but successfully appealed to the District Court. In December 1996, Ms Subramaniam was charged with knowingly making a false statutory declaration and giving false evidence to the District Court. She was committed to stand trial. At her first trial in the NSW District Court in August 1999 the jury failed to reach a verdict. Her mental health had begun to deteriorate and she applied for a permanent stay of proceedings. The District Court rejected this and the Court of Criminal Appeal dismissed an appeal. In March 2001, the District Court directed that there be a hearing with respect to Ms Subramaniam’s fitness to stand trial. In September 2001, the Mental Health Review Tribunal found she was unfit to stand trial. She had been diagnosed with an adjustment disorder with severe anxiety and depressive features. The NSW Attorney-General, in accordance with section 19 of the Act, directed that a special hearing be conducted into the charges. The late Judge Charles Luland refused an application for a permanent stay and the trial by special hearing before a jury of 12 proceeded. A special hearing is similar to a criminal trial, with some added requirements. Among these, section 21(4) of the Act specifies that the judge at the outset must explain to the jury that the accused is unfit to be tried under normal procedures, the meaning of unfitness to be tried, the purpose of the special hearing, the verdicts available and the legal and practical consequences of those verdicts. Ms Subramaniam was found not guilty of giving false evidence but guilty of making the false statutory declaration. The Court of Criminal Appeal, by majority, dismissed an appeal. Ms Subramaniam appealed to the High Court on a number of grounds, including the ground that the special hearing miscarried because Judge Luland failed to comply with requirements imposed by section 21(4). The Court unanimously allowed the appeal on this ground, holding that his introductory remarks fell short of what was required. The mandatory nature of section 21(4) was not satisfied by Judge Luland’s other remarks during the trial, his summing-up, his answer to a question from the jury, or counsel’s submissions. Such a departure from section 21(4) constituted a miscarriage of justice which required the conviction to be quashed. The Court ordered a new trial, pointing out that it would be for the prosecution to decide whether to proceed.
+HIGH COURT OF AUSTRALIA 8 June 2016 HALL v HALL [2016] HCA 23 Today the High Court dismissed an appeal from the Full Court of the Family Court of Australia. The High Court held, by majority, that the Full Court had correctly concluded that just cause had been shown for the discharge of an interim spousal maintenance order pursuant to s 83(1)(c) of the Family Law Act 1975 (Cth) ("the Act"). Under the Act, a person is liable to maintain their spouse to the extent that person is reasonably able to do so, if their spouse is unable to support herself or himself adequately. The appellant ("the wife") and the respondent ("the husband") were separated. The wife commenced proceedings against the husband in the Family Court seeking, among other relief, an interim spousal maintenance order. Her financial circumstances included ownership of two luxury cars which her brothers had purchased for her and an "interest", the value of which she did not know, in the estate of her late father that related to a family business ("the Group") founded by her father and controlled by her brothers. In the absence of information about the nature and extent of that interest, the primary judge did not take it into account as a financial resource of the wife. The primary judge made an interim spousal maintenance order. The husband applied for the discharge of that order. He relied on new evidence of the father's testamentary "wish[es]" that, first, the wife should receive from the Group a lump sum cash payment of $16,500,000 in the event of her divorce from the husband, and, second, that the wife should receive from the Group an annual payment of $150,000 until the date (if any) of the lump sum payment. The wife stated that she had not received any income or capital payment from the father's estate, but did not state whether she had requested payment from the Group. The primary judge dismissed the husband's application for discharge. On appeal, the Full Court found that the primary judge erred in failing to consider, and make any finding, as to whether there was sufficient new evidence before her to discharge the interim spousal maintenance order. Although the Full Court accepted that the making of the annual payment from the Group would have been voluntary, it found that the wife would have received the annual payment had she requested it of her brothers. The Full Court held that just cause had been shown for the discharge of the interim spousal maintenance order because, on the evidence before it, the wife was able to support herself adequately. By grant of special leave, the wife appealed to the High Court. By majority, the High Court held that the Full Court's finding that the wife would have received the annual payment had she requested it was well open on the evidence before it. On that finding, the annual payment was both a "financial resource" under s 75(2)(b) of the Act and a "fact or circumstance" under s 75(2)(o) of the Act, relevant to whether the wife was able to support herself adequately. The wife was also on notice of the risk of the Full Court's finding being made, such that she had not been deprived of any opportunity to lead further evidence.
+HIGH COURT OF AUSTRALIA 5 December 2012 TONY PAPACONSTUNTINOS v PETER HOLMES A COURT [2012] HCA 53 Today a majority of the High Court dismissed an appeal brought by the appellant, Mr Tony Papaconstuntinos, against a finding that the respondent, Mr Peter Holmes à Court, had successfully made out a defence to a defamation claim brought against him by the appellant. The defamation claim arose out of events surrounding a proposal put forward by the respondent in 2005, according to which he and Mr Russell Crowe would inject $3 million into the South Sydney District Rugby League Football Club ("the Club") in exchange for a controlling interest in its management. The proposal was to be put to a vote of the Club's members at a general meeting. The appellant, a board member of the Club, was firmly opposed to the proposal. Two days prior to the scheduled meeting, the respondent sent a letter to the appellant's employer making certain allegations about the appellant. At a trial in the Supreme Court of New South Wales, it was found that the letter conveyed three imputations that were defamatory of the appellant. The respondent pleaded the common law defence of qualified privilege. The trial judge rejected that defence on the basis that the respondent lacked a sufficient interest in making the statements complained of. The respondent successfully appealed to the Court of Appeal of the Supreme Court of New South Wales. In his appeal to the High Court, the appellant submitted that the respondent could only make out the defence of qualified privilege if he could show that there had been a "pressing need" for him to make the statements. The requirement of "pressing need" was said to arise from the fact that the respondent's statements were made voluntarily and in the protection of interests that were purely personal. The High Court, by majority, rejected that contention. The defence of qualified privilege requires the maker of a defamatory statement to demonstrate reciprocity of duty and interest: that the maker had a duty to make, or an interest in making, the statement and that the recipient of the statement had a duty to hear, or an interest in hearing, that statement. There is no superadded requirement of "pressing need" that arises in circumstances where a defamatory statement was made voluntarily and to protect personal interests. The appeal was dismissed with costs.
+HIGH COURT OF AUSTRALIA Public Information Officer 26 September 2007 VICKIE LEE ROACH v ELECTORAL COMMISSIONER AND COMMONWEALTH OF AUSTRALIA Amendments made in 2006 to the Commonwealth Electoral Act to disqualify all prisoners from voting were invalid, but previous legislation disqualifying prisoners serving sentences of three years or more was valid and remained operative, the High Court held in reasons published today for orders announced on 30 August 2007. Ms Roach was convicted in Victoria in 2004 on charges relating to a robbery and to seriously injuring a man when she crashed into his car while being chased by police and was sentenced to a total of six years’ jail with a four-year non-parole period. She challenged the 2006 amendments and, in addition, the previous legislation. The Court, by a 4-2 majority, held that the 2006 amendments were inconsistent with the system of representative democracy established by the Constitution. The Court held that voting in elections lies at the heart of that system of representative government and disenfranchisement of a group of adult citizens without a substantial reason would not be consistent with it. Since 1902, Commonwealth legislation has provided that certain prisoners were not entitled to vote. Until 1983, persons sentenced or subject to be sentenced for an offence punishable by imprisonment for one year or longer could not vote. From 1983 to 1995, the period was five years. From 1995 to 2004, the reference to an offence punishable by imprisonment for five years or longer was altered to refer to those serving a sentence of five years or longer. From 2004 to 2006, the threshold was reduced to three years. In 2006, the Commonwealth Electoral Act was amended to provide that people serving any sentence of imprisonment were disqualified from voting in federal elections. The Court held that the 2006 amendments did not sufficiently distinguish more culpable conduct from conduct that was still criminal but less culpable, as they treated indifferently imprisonment for a few days, mandatory sentences and sentences for offences of strict liability. The amendments did not relate to all people in prison. At 30 June 2006, 22 per cent of 25,790 people in Australian prisons were unsentenced prisoners who could vote by postal vote or at mobile polling booths. Conversely, fines, community service, home detention and periodic detention did not lead to loss of the vote but such alternatives to prison were not available all over Australia and may not be practical due to poverty, homelessness or mental instability. The net of disqualification was cast too wide and went beyond the rationale for justifying a suspension of a fundamental incident of citizenship. By contrast, the three-year criterion in the pre-2006 legislation did sufficiently distinguish between serious lawlessness and less serious but still reprehensible conduct. The Court also observed that a prohibition on prisoners voting imposed stricter standards upon eligibility to vote than the Constitution imposes upon eligibility to stand for election to be a senator or member of the House of Representatives. Section 44 of the Constitution provides that anyone serving or facing a sentence of one year or longer is disqualified from standing for federal election or from remaining in Parliament.
+HIGH COURT OF AUSTRALIA 15 June 2016 HAMDI ALQUDSI v THE QUEEN [2016] HCA 24 Today the High Court published its reasons for orders made after a hearing on 10 February 2016 dismissing the applicant's motion for an order that he be tried by a judge without a jury. The High Court held that provisions of the Criminal Procedure Act 1986 (NSW) ("the CPA") which provided for trial by a judge without a jury were not capable of being applied to the applicant's trial because their application would be inconsistent with s 80 of the Constitution. The applicant was charged on indictment with seven offences under the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth) ("the Act"). Section 9A of the Act provided that a prosecution for an offence against the Act "shall be on indictment". Section 68 of the Judiciary Act 1903 (Cth) ("the Judiciary Act") confers jurisdiction on the courts of a State or Territory to try offences against a law of the Commonwealth and applies the laws of the State or Territory respecting procedures for trials on indictment. The applicant was arraigned on the indictment in the Supreme Court of New South Wales and pleaded "not guilty" to each charge. His trial was listed to commence on 1 February 2016 before a judge and jury. By notice of motion filed in the Supreme Court, the applicant sought an order under s 132 of the CPA that he be tried by a judge alone. That notice of motion was removed into the High Court and a case stated for consideration by the Full Court. The question referred to the Full Court by the case stated was whether s 132(1) to (6) of the CPA were incapable of being applied to the applicant's trial by s 68 of the Judiciary Act because their application would be inconsistent with s 80 of the Constitution, which states, "[t]he trial on indictment of any offence against any law of the Commonwealth shall be by jury". The majority found that that question could only be answered favourably to the applicant by overruling Brown v The Queen (1986) 160 CLR 171; [1986] HCA 11. The majority declined to do so, holding there was no reason to doubt the correctness of Brown. Their Honours rejected the argument that s 80 could be read as subject to exception when, for example, a court assesses it is in the interests of justice that the trial on indictment of an offence against a law of the Commonwealth be by judge alone.
+HIGH COURT OF AUSTRALIA 14 November 2012 ANDREW VINCENT MILLS v COMMISSIONER OF TAXATION [2012] HCA 51 Today the High Court allowed an appeal against a decision of the Full Court of the Federal Court of Australia and set aside a determination of the Commissioner of Taxation ("the Commissioner") that no franking credit is to arise in respect of distributions made on certain securities issued by the Commonwealth Bank of Australia ("the Bank"). On 14 October 2009 the Bank issued ten million "Perpetual Exchangeable Resaleable Listed Securities V" ("PERLS V"), each comprising a preference share stapled to an unsecured promissory note issued out of the Bank's New Zealand branch, and with an aggregate issue price of $2 billion. The Bank issued PERLS V to meet projected capital requirements cost-effectively and consistently with applicable prudential standards requiring a certain proportion of "Tier 1" capital. Holders of PERLS V were entitled to quarterly distributions, which were expected to be fully franked and paid by the Bank's New Zealand branch out of funds earned by the New Zealand branch. The Commissioner and the Bank agreed to test in a court the application of s 177EA of the Income Tax Assessment Act 1936 (Cth) ("the ITAA 1936") to the arrangements for the franking of distributions on PERLS V and for the Bank, if unsuccessful, to make a cash payment to the Commissioner settling the obligations of PERLS V holders. On 14 December 2009 the Commissioner made a determination under s 177EA(5)(b) of the ITAA 1936 in relation to Mr Andrew Mills, a holder of PERLS V and an Australian resident, that no imputation benefit was to arise in respect of the first franked distribution that the Bank was to make on PERLS V. The Commissioner disallowed an objection to that determination and Mr Mills commenced a proceeding in the Federal Court of Australia under Pt IVC of the Taxation Administration Act 1953 (Cth). The primary judge, and a majority of the Full Court of the Federal Court, found for the Commissioner, holding that having regard to the "relevant circumstances" of the arrangements for the issue of PERLS V, it would, within the meaning of s 177EA(3)(e) of the ITAA 1936, be concluded from the perspective of a reasonable person that the Bank entered into and carried out those arrangements "for a purpose (whether or not the dominant purpose but not including an incidental purpose) of enabling" a holder of PERLS V to obtain an imputation benefit. The High Court held unanimously that the relevant circumstances to be taken into account included that distributions on the securities were to be paid by the New Zealand branch of the Bank without payment of Australian income tax by the Bank on the source of funding and that without the issue of PERLS V the Bank would have raised Tier 1 capital by other means at higher cost. The High Court held that although it would be concluded that the Bank had a purpose of enabling PERLS V holders to obtain an imputation benefit, that purpose was incidental to its purpose of raising Tier 1 capital. As the purpose was an incidental purpose, a necessary precondition to the Commissioner's power to make the determination was not satisfied.
+HIGH COURT OF AUSTRALIA 21 October 2005 The High Court of Australia today ordered a retrial for Mr Stevens who was convicted of the shooting murder of his friend and business partner Murray Cameron Brockhurst. Mr Stevens and Mr Brockhurst co-owned Australian Carbide Saws in the Brisbane suburb of Newmarket. They were also friends who holidayed, fished, dived and socialised together. However, Mr Brockhurst wished to buy out Mr Stevens’s interest in their company and to sell him his interest in another company, JLM Grinding. Negotiations were inconclusive. On the day of his death, 22 June 2000, Mr Brockhurst bought into another competing business, Stotts Saws. Mr Stevens arrived at their premises to discuss their business affairs. He said he walked into Mr Brockhurst’s office to find him with Mr Stevens’s old .22 calibre rifle held up in front of him. Fearing his friend was about to commit suicide, he lunged for the rifle but it discharged and Mr Brockhurst was shot in the head. Mr Stevens attempted to revive Mr Brockhurst and called an ambulance, telling the operator the shooting had been an accident. Scientific officers and a ballistics expert called by the prosecution found that the rifle was prone to discharge if dropped on its butt. The ballistics expert found that striking the gun with his hand caused it to discharge one in five times. There had been conflicting evidence about Mr Brockhurst’s state of mind. In 2002, Mr Stevens was charged with murdering Mr Brockhurst. At his first trial in the Queensland Supreme Court, the jury could not reach a verdict. He was later convicted at another trial in 2003. He unsuccessfully appealed to the Court of Appeal. Mr Stevens contended that the trial judge had failed to direct the jury on the defence of accident. He appealed to the High Court, which allowed his appeal by a 3-2 majority. The majority held that the evidence did raise a defence of accident which was for the prosecution to negative. It held that the trial judge should have instructed the jury that Mr Stevens could not be convicted of murder unless the prosecution had satisfied it beyond reasonable doubt that the death of Mr Brockhurst was not an accident.
+HIGH COURT OF AUSTRALIA 16 May 2007 Public Information Officer GENERAL MOTORS ACCEPTANCE CORPORATION AUSTRALIA AND AUTO GROUP LIMITED (receivers and managers appointed) (administrators appointed) v SOUTHBANK TRADERS PTY LTD A vendor of motor vehicles sold on terms in which title did not pass to the purchaser until the total purchase price was paid had a security interest in the vehicles within the meaning of the Victorian Chattel Securities Act, the High Court of Australia held today. In 2002, Southbank Traders, a motor vehicle wholesaler, sold 10 vehicles to Kingstrate Pty Ltd, trading as Dandenong Suzuki. The sale agreement contained a clause by which the vendor retained title to the goods until the purchase price was paid. Kingstrate took possession of the vehicles. While the purchase price was still unpaid, Kingstrate sold on the vehicles to a financier, General Motors Acceptance Corporation (GMAC), while still displaying them for sale. One vehicle was later sold to a member of the public and is not the subject of litigation. GMAC registered a security interest under the Chattel Securities Act in December 2002. Southbank did not register a security interest at the time of the original sale. The Act defines “security interest” as an interest in or a power over goods which secures payment of a debt or the performance of any other obligation and includes an interest in or power over goods of a lessor, owner or other supplier of goods. Section 7(1) of the Act provides that, where a secured party has an unregistered security interest or a registered inventory security interest in goods but is not in possession of them, and a purchaser purchases or purports to purchase the goods for value in good faith and without notice of the security interest from a supplier who is the debtor or another person in possession of the goods, the security interest of the secured party is extinguished. In May 2003, Southbank sued GMAC for conversion (wrongful dealing with goods inconsistently with the owner’s rights) or alternatively for detinue (wrongful detention of goods). Southbank denied that its interest was a “security interest”. It also disputed that GMAC’s purchase or purported purchase was for value in good faith and without notice. In the Victorian County Court, Judge Timothy Holt dismissed Southbank’s claim on the ground that it had an unregistered security interest in the vehicles which had been extinguished upon the purchase or purported purchase of the vehicles by GMAC by the operation of section 7(1). Judge Holt’s decision was reversed by the Victorian Court of Appeal, which held that Southbank did not have a security interest and that section 7(1) did not apply to extinguish its interest, so it was entitled to succeed. GMAC appealed to the High Court. The High Court unanimously allowed the appeal. It held that Southbank, as a vendor of motor vehicles sold by way of conditional sale, on terms that title did not pass to Kingstrate until the purchase price was paid in full, had a security interest in the vehicles within the meaning of the Chattel Securities Act and that this interest was extinguished by section 7(1). The Court held that a conclusion that “security interest” includes conditional sales is consistent with the purpose of the legislation, the statutory context, and the text itself. Outstanding issues were remitted to the Court of Appeal, which may then be remitted to the County Court for further trial.
+HIGH COURT OF AUSTRALIA 6 April 2016 [2016] HCA 12 Today the High Court unanimously allowed an appeal from a decision of the Court of Appeal of the Supreme Court of Queensland. The High Court held that where proof of intention to produce a particular result is made an element of liability for an offence, the prosecution is required to establish that the accused meant to produce that result by his or her conduct. The majority reasoned that knowledge or foresight of result, whether possible, probable or certain, is not a substitute for proof of specific intent. The appellant was convicted by a jury in the District Court of Queensland of unlawfully transmitting a serious disease to another with intent to do so under s 317(b) of the Criminal Code (Q). The serious disease that he transmitted to the complainant was the human immunodeficiency virus ("HIV"). The appellant was diagnosed with HIV in 1998 and was informed then that there was a risk of transmission of the disease through unprotected sexual intercourse. He commenced a relationship with the complainant in 2007 but did not disclose to her that he was HIV positive. They engaged in frequent unprotected sexual intercourse during their relationship, which lasted until September 2008. The complainant was diagnosed as HIV positive a year after their relationship ended. The appellant lied to the complainant about his HIV status several times during and after their relationship. The appellant appealed against his conviction to the Court of Appeal contending, that the verdict was unreasonable as the evidence did not establish that he intended to transmit HIV to the complainant. The Court of Appeal dismissed the appeal. The majority held that it was open to the jury to be satisfied beyond reasonable doubt that the appellant intended to transmit HIV to the complainant, in circumstances in which he had engaged in frequent acts of unprotected sexual intercourse with her, knowing that he was HIV positive. By grant of special leave, the appellant appealed to the High Court. The High Court held that where liability for an offence requires proof of intention to produce a particular result, the prosecution must establish that the accused had that result as his or her purpose or object at the time of engaging in the conduct. Purpose is not to be equated with motive and a person may engage in conduct having more than one purpose. A person's awareness of the risk that his or her conduct may result in harm does not, without more, support the inference that the person intended to produce the harm. The High Court held that, apart from the evidence that the appellant engaged in frequent unprotected sexual intercourse with the complainant, there was no evidence to support the inference that the appellant had the intention to transmit HIV to her. It followed that the conviction must be quashed. The Court set aside the orders of the Court of Appeal and substituted for the verdict of the jury a verdict of guilty of unlawfully doing grievous bodily harm to the complainant, to which the appellant had pleaded guilty. The proceedings were remitted to the District Court of Queensland for sentence.
+HIGH COURT OF AUSTRALIA Public Information Officer 28 February 2007 Z v NEW SOUTH WALES CRIME COMMISSION A solicitor appearing before the New South Wales Crime Commission was obliged to provide the name and address of a client and could not rely on legal professional privilege, the High Court of Australia held today. In September 2003, the solicitor, Z, was summonsed to attend the Commission to give evidence in relation to an investigation into the attempted murder of M. Z’s client, X, had twice given Z certain information about M and, as instructed by X, Z had passed on that information to police. M was attacked in 2002, some years after X had consulted Z. When asked at a Commission hearing who had provided the information he had passed on to police and where that person could be contacted, Z declined to answer on the ground that the communications conveying that information were the subject of legal professional privilege. The Commission member conducting the hearing ruled that the communications were not privileged. Section 18B(4) of the New South Wales Crime Commission Act provides that, if a lawyer is required to answer a question at a hearing and the answer would disclose a privileged communication with someone else, the lawyer is entitled to refuse to comply, but if required the lawyer must provide the Commission with the name and address of the person with whom the communication was conducted. The NSW Supreme Court dismissed an application for review of that ruling and the Court of Appeal refused Z leave to appeal. Z then appealed to the High Court. In a 5-0 decision, the Court dismissed the appeal. Three members of the Court held that even if the communication of X’s name and address to Z were otherwise subject to legal professional privilege, the qualification in section 18B(4) gave the Commission power to require disclosure of the name and address. Two members held that, because what X told Z was for the express purpose of being passed on to the police, the communications were not privileged, not confidential and not for the dominant purpose of obtaining legal advice.
+HIGH COURT OF AUSTRALIA Public Information Officer 12 December 2007 The date that a man had sexual intercourse with a teenage girl was not essential to proving the offence of having sex with a child aged between 12 and 17, the High Court of Australia held today. WGC, 58, a general practitioner, was charged with two counts of sexual intercourse with a girl aged between 12 and 17 between 31 January and 28 February 1986 around Renmark in South Australia. At that time, the girl, the daughter of friends of WGC, was 13. She is now 35. At his trial in the SA District Court in July 2006, WGC alleged that the offences, which arose from a single sexual encounter on a houseboat, occurred when the girl was 16 and relied on a defence under section 49(4) of the Criminal Law Consolidation Act that he believed on reasonable grounds that she was 17. Her family went on several summer houseboat holidays during the 1980s accompanied by WGC and other family friends. In December 1986 when the girl was 14 she consulted WGC professionally and he took a pap smear. WGC said they had sex in 1989 and believed she was 17 because she had finished school, her friend was 20 and he thought she was two or three years younger, and he was aware the girl had had sex with a friend of his and he believed the other man would not have done so if she were under age. Her date of birth was recorded in his clinical notes. WGC was convicted on both counts, but has not yet been sentenced. The uncertainty about whether the jury had decided on the basis that the offences took place in either 1986 or 1989 or whether they divided on the year and whether, if any members accepted that the offences occurred in 1989, they accepted the defence under section 49(4) of the Act gave rise to WGC’s unsuccessful appeal to the SA Court of Criminal Appeal (CCA). He then appealed to the High Court. WGC alleged that the CCA and the trial judge erred in failing to treat the date of the offences as material which had to be proven beyond reasonable doubt. He also alleged that the verdicts were uncertain or void in that they jury’s reasoning may have taken different paths. WGC argued that two sets of offences should have been identified, one where the complainant was alleged to be 16 and one where she was not. The High Court, by a 3-2 majority, dismissed the appeal. The majority held that date was not material and all that the prosecution was required to prove was that the girl was aged somewhere between 12 and 17, as the sexual intercourse was criminal whether it occurred in 1986 or 1989. Because the date was not essential, WGC was able to seek to confess and avoid the charge by admitting that intercourse occurred but alleging that it occurred in circumstances in which he had a defence under section 49(4) of the Act. The trial was conducted on the basis that the offences could have occurred when the girl was either 13 or 16 and no amendment was ever made to the particulars of the offence. In relation to uncertainty of verdicts, the majority held that the guilty verdicts showed no more than that the jurors agreed that WGC had not established the defence on which he relied. The jury’s verdicts did not reveal which elements of that defence were found not to have been proved. The different routes that the jury may have taken would be taken into account in sentencing.
+HIGH COURT OF AUSTRALIA 9 October 2013 JASON LEE (AKA DO YOUNG LEE) & ANOR v NEW SOUTH WALES CRIME COMMISSION [2013] HCA 39 Today the High Court, by majority, dismissed an appeal from the Court of Appeal of the Supreme Court of New South Wales, which had ordered that the appellants be compulsorily examined under oath before a registrar of the Supreme Court of New South Wales pursuant to s 31D of the Criminal Assets Recovery Act 1990 (NSW) ("the Act"). The appellants were each charged with drug and firearm offences and the first appellant was also charged with an offence of money laundering. The New South Wales Crime Commission ("the Commission") applied to the Supreme Court for orders under s 31D(1)(a) of the Act that the first appellant be examined on oath concerning his own affairs and that the second appellant be examined on oath concerning the affairs of the first appellant and a third party. There was a risk that the subject matter of those examinations would overlap with the subject matter of the pending criminal proceedings. A judge of the Supreme Court declined to make the orders sought by the Commission, holding that the risk such examinations posed to the appellants’ pending trials may not be avoided by provisions of the Act. The Commission applied for leave to appeal to the Court of Appeal. At that time, the appellants had been convicted of some of the drug and firearm charges and had lodged appeals against those convictions. The original money laundering charge and further money laundering charges against the first appellant were listed for trial. The Court of Appeal granted the Commission leave to appeal, allowed the appeal and made orders for the examination of the appellants. By special leave, the appellants appealed to the High Court. In the High Court, the appellants argued that s 31D of the Act should not be construed as conferring power to order the examination on oath of a person against whom criminal proceedings have been commenced but not completed, to the extent that the subject matter of the examination would overlap with the subject matter of those proceedings. The High Court, by majority, dismissed the appeal. The Court held that s 31D, when read in the context of the Act, authorised the Supreme Court to order such an examination. The potential prejudice to the fair trial of the examinee was mitigated by limitations on how information elicited from an examination could be used in criminal proceedings and by the discretion of the Supreme Court to decline to make an examination order in exercise of its inherent power to prevent the misuse of its processes. The minority Justices held that the case was governed by the High Court’s decision in X7 v Australian Crime Commission (2013) 87 ALJR 858; (2013) 298 ALR 570; [2013] HCA 29 and that the appeal should be allowed.
+HIGH COURT OF AUSTRALIA 9 December 2020 [2020] HCA 47 Today, the High Court, by majority, allowed an appeal from the Court of Appeal of the Supreme Court of Queensland ("the QCA") concerning the partial defence of provocation, which, under s 304 of the Criminal Code (Qld), reduces what would otherwise be murder to manslaughter. Section 304(3) excludes the defence (save in extreme and exceptional circumstances) in the case of the unlawful killing of the accused's domestic partner where the sudden provocation is "based on" anything done, or believed to have been done, by the deceased to end or change the relationship or indicate such an end or change (collectively, "to change the relationship"). The appellant killed his wife with sustained ferocity in circumstances in which it was open to find that he was angered by a belief that she had been unfaithful to him and that she may have been planning to leave him and take their four children with her. In conversations with police the appellant said that during an argument the deceased threatened him with a knife and, in trying to disarm her, he sustained a deep cut to his hand (the "conduct with the knife"). The appellant's case was that he lost control because of the conduct with the knife. The jury was directed that in order to rely on provocation the appellant had to prove, on the balance of probabilities, that: (1) he killed the deceased while in a state of temporary loss of self-control induced by her conduct with the knife; (2) an ordinary person in his position might have been induced to so lose self-control as to form, and act upon, an intention to kill or do grievous bodily harm; and (3) the appellant's loss of self-control was not "based on" anything done, or believed to have been done, by the deceased to change the relationship ("the sub-s (3) limb"). The jury found the appellant guilty of murder. The appellant challenged his conviction in the QCA, arguing that the trial judge erred in directing the jury that he was required to prove the sub-s (3) limb when he had contended his loss of self-control was caused only by the conduct with the knife. By majority, the QCA dismissed his appeal, holding that the use of the words "based on" in s 304(3), in contrast with "caused by" elsewhere in s 304, invites consideration of whether the sudden provocation is, in fact, founded upon something done by the deceased to change the relationship. On this view, notwithstanding that the jury may have been satisfied that the conduct with the knife caused the appellant to lose his self-control, the trial judge was right to instruct the jury to go on to consider the sub-s (3) limb. A majority of the High Court held that s 304 requires an accused first to nominate something done, or believed to have been done, by the deceased and secondly to prove not only that the killing was done in a state of loss of self-control but that the state was induced by the nominated conduct. Leaving aside extreme and exceptional circumstances, whether s 304(3) excludes the defence is a question of law requiring consideration only of whether the nominated conduct was something done to change the relationship. Here, it was fanciful to suggest that the conduct with the knife was itself such an act and the trial judge was wrong to direct the jury that the appellant was required to prove the sub-s (3) limb. The appeal was allowed and a new trial ordered.
+HIGH COURT OF AUSTRALIA 16 March 2022 UNS nsNSW COMMISSIONER OF POLICE v TREVOR COTTLE & ANOR [2022] HCA 7 Today, the High Court unanimously dismissed an appeal from a decision of the Court of Appeal of the Supreme Court of New South Wales. The appeal concerned whether the first respondent, who had been retired on medical grounds as a non-executive police officer by the appellant ("the Police Commissioner") under s 72A of the Police Act 1990 (NSW), could make an unfair dismissal application to the Industrial Relations Commission of New South Wales ("the IR Commission") pursuant to s 84(1) of Pt 6 of the Industrial Relations Act 1996 (NSW) ("the IR Act"). The High Court held that s 72A of the Police Act did not expressly, or by necessary implication, exclude or modify the operation of Pt 6 of Ch 2 of the IR Act. Accepting that the NSW Police Force performs unique functions within the community, the plurality concluded that that characterisation must yield to the express terms of Pt 6 of Ch 2, and ss 85 and 218 of the Police Act. Relevantly, Pt 6 of Ch 2 applied to the dismissal of "any public sector employee", which was further defined to include a member of the NSW Police Force; s 85 provided that the Police Commissioner was to be the employer of non-executive police officers for proceedings dealing with industrial matters; and s 218(1) evinced a parliamentary intention that, subject to sub-s (2), the IR Act was not affected by the Police Act. The majority distinguished s 72A from the power to dismiss probationary police officers in s 80(3) of the Police Act, which was found to be inconsistent with s 84(1) of the IR Act in Commissioner of Police (NSW) v Eaton (2013) 252 CLR 1. Section 72A was also distinguishable from the very similar power under s 50 to cause the retirement of executive police officers, which was expressly immunised from the reach of Pt 6 of The High Court therefore held that the Court of Appeal was correct to conclude that the IR Commission had jurisdiction to hear and determine the first respondent's application for unfair dismissal. The plurality concluded that, although the Police Commissioner was under no obligation to give reasons for an exercise of power under s 72A of the Police Act, the three objective criteria in s 72A provided a stable basis for the IR Commission to assess whether a non-executive police officer's retirement was "harsh, unreasonable or unjust". A similar power to s 72A existed in respect of other public sector employees, who enjoyed rights to seek review in the IR Commission for unfair dismissal. Even where the primary remedies for unfair dismissal – reinstatement or re- employment – were not apt to be applied in respect of non-executive police officers, the IR Commission would still have the power to order compensation.
+HIGH COURT OF AUSTRALIA 4 August 2005 THE QUEEN v WAYNE KELVIN LAVENDER Malice is not an element of the offence of manslaughter either at common law or under the New South Wales Crimes Act, the High Court of Australia held today. On 2 October 2001, Mr Lavender ran over a 13-year-old boy with a front-end loader when he pursued four boys trespassing at the sand mine at Redhead near Newcastle where he worked. The loader travelled at four kilometres per hour. The driver’s vision was obscured by a bucket on the front. Mr Lavender was driving the loader through thick vegetation after the boys when he ran over the victim. He was convicted in 2003 of manslaughter by criminal negligence and was sentenced to four years’ imprisonment with a non-parole period of 18 months. The conviction came at the end of his third trial, the first ending in a jury disagreement and the second ending when an unrelated point of law was referred for decision. Mr Lavender successfully appealed against his conviction. The NSW Court of Criminal Appeal, by majority, held that the trial judge’s directions to the jury on manslaughter by criminal negligence were inadequate because he failed to address whether the act causing death was done maliciously. The prosecution appealed to the High Court, contending that malice is not an element of involuntary manslaughter, either at common law or under the Crimes Act. The Court unanimously allowed the appeal and overturned the Court of Criminal Appeal’s decision. At common law, murder was the form of unlawful homicide accompanied by malice aforethought, while manslaughter was unlawful homicide not involving malice aforethought. That distinction was reflected in section 376 of the Crimes Act which provided that in an indictment for murder the accused would be charged with feloniously and maliciously murdering the deceased and in an indictment for manslaughter with feloniously slaying the deceased. Section 18 defines the crime of murder, and goes on to provide that every other punishable homicide shall be taken to be manslaughter. It also states: “No act or omission which was not malicious … shall be within this section”. The Court held that section 18, understood in context, did not alter the common law of unlawful homicide by involuntary manslaughter. The words “within this section” refer to the work done by the section in defining the crime of murder. Mr Lavender was released from prison after the Court of Criminal Appeal decision, seven months before the end of the 18-month non-parole period. In view of the three trials and the time elapsed, the High Court stayed its orders for 28 days to allow Mr Lavender to seek leave from the Court of Criminal Appeal to appeal against his sentence.
+HIGH COURT OF AUSTRALIA 26 October 2011 COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS v MALGORZATA [2011] HCA 43 Today the High Court granted special leave to appeal but dismissed an appeal by the Commonwealth Director of Public Prosecutions against the decision of the Full Court of the Supreme Court of South Australia, which had set aside the respondent's convictions under s 135.2(1) of the Criminal Code (Cth) ("the Code"). Section 135.2(1) of the Code makes it an offence for a person to engage in conduct and, as a result of that conduct, to obtain a financial advantage from a Commonwealth entity, knowing or believing that he or she is not eligible to receive that financial advantage. Section 4.1(2) of the Code relevantly defines "conduct" as including "an omission to perform an act" and "engage in conduct" as including "omit to perform an act". Section 4.3(a) of the Code provides that an omission to perform an act can only be a physical element of an offence if the law creating the offence makes it The respondent was charged with 17 counts of obtaining a financial advantage contrary to s 135.2(1). Each of the charges against the respondent related to her receipt of part-payments of the Parenting Payment Single ("PPS") from the Commonwealth entity "Centrelink". The allegation in each case was that the respondent was not entitled to part-payment of the PPS because she had failed to advise Centrelink of her receipt of payments of commission from her employer. It was not alleged that the respondent was under a duty imposed by a law of the Commonwealth to advise Centrelink of the receipt of those commission payments. The respondent pleaded guilty before the Magistrates Court of South Australia to each of the charges and was sentenced to 21 months' imprisonment, subject to the direction that she be released immediately upon entering a bond to be of good behaviour for two years. The respondent unsuccessfully appealed against the severity of the sentence to the Supreme Court of South Australia. The respondent then appealed to the Full Court of the Supreme Court of South Australia, challenging her convictions on the grounds that the counts did not charge offences known to law, and that the counts were deficient in their failure to identify the transaction, act or omission on which liability was said to depend. The Full Court allowed the appeal and set aside the respondent's convictions. The Commonwealth Director of Public Prosecutions' application for special leave to appeal to the High Court was referred to the Full Court, where it was heard as on appeal. The central issue on appeal was whether the omission to perform an act that a person is not under a legal obligation to perform may be a physical element of the offence created by s 135.2(1) of the Code. The Court held by majority that the law creating the offence in s 135.2(1) does not make the omission of an act a physical element of the offence, either expressly or impliedly, within the meaning of s 4.3(a).
+H IG H CO U RT O F A U S T RA L IA 3 June 2020 BINSARIS v NORTHERN TERRITORY OF AUSTRALIA; WEBSTER v NORTHERN TERRITORY OF AUSTRALIA; O'SHEA v NORTHERN TERRITORY OF AUSTRALIA; AUSTRAL v NORTHERN TERRITORY OF AUSTRALIA [2020] HCA 22 Today the High Court unanimously allowed four appeals from a judgment of the Court of Appeal of the Supreme Court of the Northern Territory. The appeals concerned the use in the Don Dale Youth Detention Centre in Darwin ("the Detention Centre") of a CS fogger, which is a dispersal device for CS gas (a form of tear gas) and a prohibited weapon under the Weapons Control Act (NT). The appellants were exposed to CS gas on 21 August 2014 whilst detained in the Behavioural Management Unit ("BMU") of the Detention Centre. The prison officer who deployed the CS gas using a CS fogger was a member of an Immediate Action Team from Berrimah Correctional Centre, an adult prison. The team had been mobilised to respond to an emergency situation in the BMU and deployed the CS gas to render one detainee compliant. The appellants were exposed to and affected by the CS gas. Section 6 of the Weapons Control Act provides that a person must not "possess, use or carry ... a prohibited weapon except if permitted to do so by an exemption under section 12". Section 12(2)(a) exempts a "prescribed person acting in the course of his or her duties as a prescribed person in respect of a prohibited weapon" that is supplied to him or her by his or her employer "for the performance of his or her duties as a prescribed person". A prison officer under the Prisons (Correctional Services) Act (NT) is a prescribed person, however a youth justice officer and the superintendent of a youth detention centre are not. The appellants commenced proceedings in the Supreme Court of the Northern Territory against the respondent, relevantly claiming damages for batteries alleged to have been committed by the prison officer who deployed CS gas in the Detention Centre on 21 August 2014. The primary judge dismissed those claims. Her Honour found that the prison officer was acting in the course of his duties, having been called upon to assist in an emergency situation under s 157(2) of the Youth Justice Act (NT) and directed by the Director of Correctional Services to deploy the gas; that the exemption under s 12(2) of the Weapons Control Act was engaged; and that the prison officer had been delegated all powers necessary for the superintendent to maintain order and ensure the safe custody and protection of persons within the precincts of the Detention Centre. The appellants' appeals to the Court of Appeal were dismissed. By grant of special leave, the appellants appealed to the High Court in relation to their exposure to CS gas. Allowing the appeal, the High Court unanimously held that the appellants were entitled to damages in respect of their claims for battery. By majority, the Court found that the deliberate and intentional use by the prison officer of a CS fogger to deploy CS gas in the Detention Centre was not lawful. The use of the CS fogger was not authorised by s 157(2) or other provisions of the Youth Justice Act. Nor was it authorised by provisions of the Prisons (Correctional Services) Act that conferred the powers of police officers on prison officers acting in the course of their duties, or authorised prison officers to possess and use a weapon in a prison. The exemption in s 12(2) of the Weapons Control Act was not therefore engaged.
+HIGH COURT OF AUSTRALIA 27 June 2014 FTZK v MINISTER FOR IMMIGRATION AND BORDER PROTECTION & ANOR [2014] HCA 26 Today the High Court unanimously allowed an appeal against a decision of the Full Court of the Federal Court of Australia and held that the Administrative Appeals Tribunal ("the AAT") committed jurisdictional error in affirming the decision of the Minister for Immigration and Border Protection ("the Minister") to refuse the appellant a protection visa. The appellant, a national of the People's Republic of China ("the PRC"), applied for a protection visa under s 36 of the Migration Act 1958 (Cth) ("the Act"), claiming to be a person in respect of whom Australia owed protection obligations under the Refugees Convention ("the Convention"). In refusing the appellant a protection visa, the Minister found that notwithstanding that the appellant was a refugee within the meaning of Art 1A(2) of the Convention, he was excluded from protection under the Convention by Art 1F(b) on account of his alleged involvement in the crimes of kidnapping and murder in the PRC in 1996. Article 1F(b) provides that the Convention shall not apply to any person with respect to whom there are serious reasons for considering that he or she has committed a serious non-political crime outside the country of refuge prior to admission to that country as a refugee. In the exercise of its review function, the AAT applied Art 1F(b) to affirm the Minister's decision. The AAT recorded that it was not in dispute that the crimes alleged against the appellant were serious non-political crimes for the purposes of Art 1F(b). The AAT was satisfied, on the basis of several findings, that there were serious reasons for considering that the appellant had committed serious non-political crimes. An appeal against the orders made by the AAT to the Full Court of the Federal Court of Australia was dismissed. By grant of special leave, the appellant appealed to the High Court. The High Court unanimously held that the reasons of the AAT revealed jurisdictional error. The factors relied upon by the AAT were not logically probative of the appellant having committed one or more of the crimes alleged. Accordingly, the AAT misconstrued the test it had to apply. The Court quashed the AAT's decision and ordered that a differently constituted AAT review the Minister's decision according to law.
+HIGH COURT OF AUSTRALIA 18 March 2020 STATE OF WESTERN AUSTRALIA v MANADO & ORS; STATE OF WESTERN AUSTRALIA v AUGUSTINE & ORS; COMMONWEALTH OF AUSTRALIA v AUGUSTINE & ORS; COMMONWEALTH OF AUSTRALIA v MANADO & ORS [2020] HCA 9 Today the High Court unanimously allowed four appeals from a judgment of the Full Court of the Federal Court of Australia. The appeals concerned the confirmation of existing public access to and enjoyment of land or waters which are the subject of native title determinations under the Native Title Act 1993 (Cth). Section 212(2) of the Native Title Act relevantly reposes in the Commonwealth, a State or a Territory the authority to, by legislation, "confirm any existing public access to and enjoyment of" waterways, beds and banks or foreshores of waterways, coastal waters, or beaches ("beaches and foreshores"). Pursuant to s 212(2), the Parliament of Western Australia enacted s 14 of the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) ("the Titles Validation Act"), which confirmed the ability of members of the public as of 1 January 1994 (being the date s 212(2) commenced) to access and enjoy beaches and foreshores. Section 225(c) of the Native Title Act requires a determination of the existence of native title in relation to a particular area to include a determination of "the nature and extent of any other interests in relation to the determination area". Section 253 relevantly defines "interest" as including "any other right" or "privilege" over or in connection with land or waters. A judge of the Federal Court made two determinations of native title over land and waters in the Dampier Peninsula, Western Australia, which relevantly included areas of unallocated Crown land comprised of beaches and foreshores. In doing so, the judge recorded the existing public access to and enjoyment of these beaches and foreshores pursuant to the confirmation by s 14 of the Titles Validation Act, within the category of "Other Interests". The primary judge held that because public access to and enjoyment of the relevant land and waters was not proscribed, it was a "privilege" which, as confirmed by s 14 of the Titles Validation Act, fell within the definition of "interest" as defined in s 253 of the Native Title Act, and was accordingly within the category of "other interests" in relation to the determination areas within the meaning of s 225(c). On appeal, the Full Court held that the primary judge erred in the construction of these terms because the ability of the public to access and enjoy the beaches and foreshores was neither a "privilege" nor an "other interest". By grant of special leave, the appellants appealed to the High Court. Allowing the appeals, the Court held that the confirmation of existing public access and enjoyment through legislation enacted in reliance on s 212(2) of the Native Title Act amounted to an "interest" in relation to land or waters within the meaning of the definition in s 253 of the Native Title Act and was therefore an "other interest" within the meaning of s 225(c) of that Act. The Justices reasoned differently as to whether this was because the "interest" was a "privilege" or a "right". The confirmation of existing public access to and enjoyment of beaches and foreshores pursuant to s 212(2) must therefore be recorded in a native title determination.
+HIGH COURT OF AUSTRALIA 1 March 2007 Public Information Officer ROSS FORSYTH v DEPUTY COMMISSIONER OF TAXATION The District Court of New South Wales had jurisdiction to hear and determine an action by the Deputy Commissioner against Mr Forsyth to recover a penalty for failure to remit income tax deducted from employees’ wages, the High Court of Australia held today. Mr Forsyth was a director of Premium Technology Pty Ltd. Between 1 August 1997 and 31 May 1999, Premium deducted PAYE instalments totalling $668,845.97 from the salary and wages of its employees but failed to remit the full amount to the Commissioner. Directors are personally liable to pay penalties for failure to comply with the obligation to pass on the deductions. The Deputy Commissioner issued penalty notices to Mr Forsyth on 27 October 1998 and 15 June 1999. The unpaid amount was ultimately assessed at $414,326.45. On 29 August 2001, the Deputy Commissioner instituted action in the District Court against Mr Forsyth to recover this money. Under section 39(2) of the Judiciary Act, state courts are invested with federal jurisdiction in all matters in which the High Court has original jurisdiction. Judgment was entered in favour of the Deputy Commissioner. Mr Forsyth had not objected to the District Court determining proceedings, but he appealed in the NSW Court of Appeal, claiming the District Court lacked jurisdiction. Two Acts, both called the Courts Legislation Further Amendment Act, took effect in 1998 and 1999. The first Amendment Act introduced the current form of section 44(1)(a) to the District Court Act. This provided that the Court has jurisdiction to hear any action relating to claims of up to $750,000 which if brought in the Supreme Court would be assigned to the Common Law Division. The second Amendment Act reduced the divisions of the Supreme Court to two, Common Law and Equity, and the business of the Court was reassigned between them. Mr Forsyth argued that the District Court was deprived of jurisdiction when an amendment to the Supreme Court Rules in 2000 assigned to the Equity Division of the Supreme Court any proceedings relating to a tax, fee, duty or other impost levied, collected or administered by or on behalf of the State or the Commonwealth. (These matters were transferred to the Common Law Division by a 2004 change to the Rules.) The Court of Appeal dismissed the appeal. Mr Forsyth appealed to the High Court which, by a 6-1 majority, dismissed the appeal. It held that the jurisdiction of the District Court was to be identified by reference to the time the first Amendment Act introduced section 44(1)(a), not at 29 August 2001 when the action against Mr Forsyth was instituted. It held that when the first Amendment Act commenced, cases such as his would have been assigned to the Common Law Division of the Supreme Court. Therefore the action was within the section 44(1)(a) jurisdiction of the District Court. The Court noted that, even if Mr Forsyth had succeeded, a fresh action by the Deputy Commissioner could still have been brought in a court of competent jurisdiction.
+HIGH COURT OF AUSTRALIA 8 November 2018 TONY STRICKLAND (A PSEUDONYM) v COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS & ORS; DONALD GALLOWAY (A PSEUDONYM) v COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS & ORS; EDMUND HODGES (A PSEUDONYM) v COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS & ORS; RICK TUCKER (A PSEUDONYM) v COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS & ORS [2018] HCA 53 Today, the High Court, by majority, allowed appeals from a decision of the Court of Appeal of the Supreme Court of Victoria and ordered that prosecutions of the appellants for offences against the Criminal Code (Cth) and the Crimes Act 1958 (Vic) be permanently stayed. Pursuant to the Australian Crime Commission Act 2002 (Cth) ("the ACC Act"), the Australian Crime Commission ("the ACC") may conduct a special investigation into matters relating to federally relevant criminal activity and an examiner may conduct an examination of a witness for the purposes of that investigation. A person appearing as a witness at such an examination is prohibited from refusing to answer a question that the examiner requires the person to answer. In December 2008, the ACC received information concerning allegations that a company, XYZ Limited (a pseudonym), was involved in criminal activity. The ACC did not undertake any investigation of its own but instead referred the allegations to the Australian Federal Police ("the AFP") and offered to allow the AFP to utilise for the AFP's own purposes the ACC's coercive powers to examine witnesses. In 2010, the ACC compulsorily examined the appellants. Prior to their examinations, each appellant had declined to participate in a cautioned record of interview with the AFP. Several AFP officers watched each examination from a nearby room and their presence was not disclosed to the appellant under examination. Following each examination, the examiner appointed under the ACC Act made orders permitting the dissemination of examination material to the AFP and the Commonwealth Director of Public Prosecutions ("the CDPP"). The ACC then provided audio recordings of the examinations to both the AFP and the CDPP. The appellants were later charged with Commonwealth and Victorian offences. On the pre-trial applications of each appellant to the Supreme Court of Victoria, the primary judge ordered that the proceedings on each indictment be permanently stayed as an abuse of process. The primary judge found that the ACC had been conducting a special investigation but that the entire examination process had been driven by the AFP for the purposes of its own investigation into the allegations. Her Honour found that information obtained from the examinations was used to compile the prosecution brief and obtain evidence against the appellants in circumstances where the prosecution would not have been able to do so if the examiner had exercised his powers appropriately. The prosecution had therefore gained an unfair forensic advantage. In addition, the practical effect of each examination had been to constrain the appellants' legitimate forensic choices in the conduct of their trials, because of the answers that three appellants were compelled to give during those examinations, and because all appellants had been deprived of the ability to test the basis upon which the documents in the prosecution brief had been selected. Finally, her Honour held that the examiner had been "reckless" as to the discharge of his statutory responsibilities and that, if he had exercised his powers independently and with appropriate diligence, those responsible for investigating the alleged offences and for preparing the prosecution brief would never have received the information which they received. On appeal, the Court of Appeal set aside the orders of the primary judge and concluded that the stay applications should be refused. The Court of Appeal held that the decisions to conduct the appellants' examinations and permit the disclosure of examination material to the AFP and CDPP were unlawful, because the examinations had not been conducted for the purposes of a special investigation by the ACC but rather, for the improper purpose of assisting an AFP investigation. The Court of Appeal held, however, that it had not been open to the primary judge to conclude that the examiner had acted recklessly. The Court of Appeal also held that the primary judge had erred in holding that the prosecution had been unfairly advantaged by the examinations and in holding that the appellants had suffered an unfair disadvantage which could not be sufficiently ameliorated by trial directions. By grants of special leave, the appellants appealed to the High Court. The Court held, unanimously, that the ACC had acted unlawfully: the ACC had not conducted a special investigation into the matters the subject of the AFP investigation or matters otherwise relevant to the examination of the appellants but had acted at all times simply as a facility for the AFP to cross-examine the appellants under oath for the AFP's own purposes. A majority of the Court held, consequently, that the appellants' prosecutions ought to be stayed, as, in the circumstances of the case, to allow the prosecutions to proceed would bring the administration of justice into disrepute. A plurality of the Court held that this conclusion was further supported by the fact that the prosecution had derived a forensic advantage, which the examinations were expressly calculated to achieve, of compelling the appellants to answer questions that they had lawfully declined to answer and thereby locking them into a version of events from which they could not credibly depart at trial. For the same reason, at least three of the appellants had suffered a forensic disadvantage as a result of the examinations. The plurality held that given the wide dissemination of the examination product within the AFP and the Office of the CDPP, the forensic disadvantage and consequent prejudice to the fair trials of the appellants were incurable.
+HIGH COURT OF AUSTRALIA 8 April 2015 QUEENSLAND NICKEL PTY LIMITED v THE COMMONWEALTH OF AUSTRALIA [2015] HCA 12 Today the High Court unanimously upheld the validity of provisions of the Clean Energy Regulations 2011 (Cth) that provided for the free issue of carbon "units" to entities engaged in the production of nickel. The Clean Energy Act 2011 (Cth), Clean Energy (Charges – Excise) Act 2011 (Cth), Clean Energy (Charges – Customs) Act 2011 (Cth) and Clean Energy (Unit Shortfall Charge – General) Act 2011 (Cth) established and imposed a tax on liable entities for certain greenhouse gas emissions in excess of a specified threshold volume. Entities could reduce their tax liability by surrendering "units" that were set-off against emissions in excess of the threshold. Schedule 1 to the Clean Energy Regulations 2011 (Cth), titled the "Jobs and Competitiveness Program" ("JCP"), provided for the issue of free units to entities engaged in "emissions-intensive trade-exposed" activities. One such activity was the "production of nickel", which was defined in Div 48 of Pt 3 of the JCP ("Div 48"). The number of free units issued to nickel producers was calculated by reference to the volume of nickel produced and industry averages for greenhouse gas emissions per unit volume of nickel production. The plaintiff, Queensland Nickel Pty Limited, carried out the production of nickel at a refinery in Queensland. Its major competitors carried out the production of nickel in Western Australia. Due to differences in the kinds of ore processed, the production processes employed and the types of nickel products produced, the plaintiff's refinery emitted more greenhouse gases per unit volume of nickel than its Western Australian competitors. The issue of free units under the JCP therefore effected a proportionately smaller reduction in the plaintiff's overall tax liability than it did for the plaintiff's competitors. Section 99 of the Constitution prohibits the Commonwealth, by any law or regulation of trade, commerce, or revenue, giving preference to one State or any part thereof over another State or any part thereof. The plaintiff commenced proceedings in the High Court, claiming that Div 48 contravened s 99 because it made no allowance for the differences in inputs, production processes and outputs between the plaintiff and the Western Australian nickel producers. The plaintiff argued those differences were caused, at least to some extent, by differences in natural, business or other circumstances between Queensland and Western Australia. The Court found that the differences between the plaintiff's and the Western Australian producers' inputs, production processes and outputs were not due to differences between Queensland and Western Australia in natural, business or other circumstances. As a matter of fact, therefore, the Court held that Div 48 did not give a preference to one State over other States and did not contravene s 99 of the Constitution.
+HIGH COURT OF AUSTRALIA 6 December 2017 IN THE MATTER OF QUESTIONS REFERRED TO THE COURT OF DISPUTED RETURNS PURSUANT TO SECTION 376 OF THE COMMONWEALTH ELECTORAL ACT 1918 (CTH) CONCERNING THE HON MS FIONA NASH [2017] HCA 52 On 27 October 2017, the High Court sitting as the Court of Disputed Returns answered questions referred to it by the Senate under s 376 of the Commonwealth Electoral Act 1918 ("the Act") concerning the Hon Ms Fiona Nash. The answers given to the questions referred in that reference included answers to the effect that, by reason of s 44(i) of the Constitution, there was a vacancy in the representation of New South Wales in the Senate for the place for which Ms Nash was returned and that the vacancy should be filled by a special count of the ballot papers. The candidate ascertained by the special count to be entitled to be elected to the place left unfilled by Ms Nash was Ms Hollie Hughes. By summons dated 7 November 2017, the Attorney-General of the Commonwealth sought an order that Ms Hughes be declared duly elected for that place. An affidavit was filed on behalf of Ms Hughes which raised an issue as to whether Ms Hughes was disqualified from being elected by reason of having been rendered "incapable of being chosen" by operation of s 44(iv) of the Constitution. The question of whether the order sought in the summons should be made was referred to the Full Court for consideration. On 15 November 2017, the High Court answered the question in the negative and dismissed the summons. Today the High Court published unanimous reasons for making those orders. On 15 June 2017, Ms Hughes was appointed as a part-time member of the Administrative Appeals Tribunal ("the Tribunal") for a period of seven years commencing on 1 July 2017. She resigned from that position on 27 October 2017. There was no dispute that the position Ms Hughes held between 1 July and 27 October 2017 answered the description of an "office of profit under the Crown" within the meaning of s 44(iv) of the Constitution. The issue before the Court was whether holding that office during the discrete period between 1 July and 27 October 2017 rendered Ms Hughes "incapable of being chosen" as a senator. The Court held that the position held by Ms Hughes rendered her "incapable of being chosen" under s 44(iv). Those words refer to the process of being chosen. The Court held that it is the Act which establishes the structure by which the choice by the people is to be made and the processes established by the Act do not end with polling. They are brought to an end only with the declaration of the result of the election and of the names of the candidates elected and they are not completed when an unqualified candidate is returned. Therefore, Ms Hughes was disqualified by operation of s 44(iv) of the Constitution from being elected as a senator for the State of New South Wales for the place for which Ms Nash was returned. Ms Hughes was disqualified because she held an office of profit under the Crown during a period in which Ms Nash's disqualification meant that the process of choice prescribed by the Parliament for the purpose of s 7 of the Constitution remained incomplete.
+HIGH COURT OF AUSTRALIA 30 March 2011 STUBLEY v THE STATE OF WESTERN AUSTRALIA [2011] HCA 7 On 20 October 2010, at the conclusion of the hearing of oral argument on the appeal, the High Court ordered that the appeal of Dr Alan John Stubley against his conviction for various sexual offences be allowed, that his convictions be set aside and that a new trial be held. Today the High Court published its reasons for the making of those orders. Dr Stubley, a psychiatrist, was charged under the Criminal Code (WA) with 14 offences which included rape, attempting to commit rape, and unlawful and indecent assault, relating to sexual activity with two women who were his patients, JG and CL. The charges were founded on incidents alleged by JG and CL to have occurred between 1975 and 1978 during treatment sessions with Dr Stubley. At trial, Dr Stubley stated that he had been sexually intimate with the two women, however he maintained that JG and CL had consented on each occasion. Following the trial in the Supreme Court of Western Australia, Dr Stubley was found guilty of 10 offences. An appeal to the Court of Appeal against his conviction was unsuccessful. At issue in the appeal to the High Court was whether the prosecution was entitled to adduce the evidence of three other women who each alleged that Dr Stubley had engaged in sexual activity with them while they were his patients. These allegations were not the subject of the charges against Dr Stubley, however the prosecution at trial successfully submitted that the evidence was admissible against him as "propensity evidence" or "relationship evidence" within the meaning of s 31A of the Evidence Act 1906 (WA). However, by majority, the High Court held that the evidence of the three other women did not have significant probative value as propensity evidence or relationship evidence, and therefore that it should not have been admitted at the trial. This was because the only issue at the trial was whether the sexual activity between Dr Stubley and JG and CL was consensual, and the evidence of the three other women could not have probative value with respect to whether JG or CL consented to the sexual activity.
+HIGH COURT OF AUSTRALIA 8 June 2022 THOMS v COMMONWEALTH OF AUSTRALIA [2022] HCA 20 Today, the High Court answered in the negative a question as to whether the detention of the applicant under s 189(1) of the Migration Act 1958 (Cth) was unlawful. Section 189(1) provides that, if an officer knows or reasonably suspects that a person in the migration zone is an unlawful non-citizen, they must detain that person. The applicant was a citizen of New Zealand and held a temporary visa to reside in Australia. On 27 September 2018, his visa was cancelled by the Minister pursuant to s 501(3A) of the Migration Act. Thereafter he was an "unlawful non-citizen" within the meaning of s 14(1) of the Migration Act. On 28 September 2018, the applicant was detained by an officer of the Department of Home Affairs in the purported exercise of s 189(1) of the Migration Act. His detention was continued by two other officers subsequently involved with reviewing his case. On 11 February 2020, the High Court delivered judgment in Love v The Commonwealth (2020) 270 CLR 152 ("Love"), in which a majority of the Court relevantly determined that the applicant was not an "alien" within the meaning of s 51(xix) of the Constitution. The applicant was released from detention on the same day. The balance of the applicant's matter, including relevantly a claim for damages for wrongful imprisonment, was remitted to the Federal Court of Australia for determination. On 6 July 2021, a judge of that Court ordered that the question of whether the applicant's detention was unlawful be heard and determined separately. On 11 October 2021, that question was removed into the High Court. The applicant's primary argument before the High Court was that his detention was unlawful because s 189(1) of the Migration Act is not supported by s 51(xix) of the Constitution in its application to a person who is reasonably suspected of being an unlawful non-citizen but who is in fact not an alien. The High Court unanimously rejected the applicant's argument. All members of the Court held that Ruddock v Taylor (2005) 222 CLR 612 ("Ruddock") was dispositive of the applicant's case. Ruddock held that s 189(1) of the Migration Act could validly apply to non-aliens who are reasonably suspected of being unlawful non-citizens. It followed from Ruddock that the lawfulness of the applicant's detention was to be determined by reference to the terms of s 189(1), judged as at the time of detention. The Court therefore concluded that the applicant's detention was lawful because the objective facts at the time provided reasonable grounds for each of the officers to suspect that he was an unlawful non-citizen. The decision of the majority in Love did not retrospectively make the suspicion unreasonable.
+HIGH COURT OF AUSTRALIA Public Information Officer 2 February 2006 CSR LIMITED AND MIDALCO PTY LTD v ARTURO DELLA MADDALENA A retrial of a former asbestos worker’s claim for psychiatric injury was required to explore fully questions left unresolved by the original trial and an appeal, the High Court of Australia held today. Mr Della Maddalena, 63, worked for either CSR or Midalco at the asbestos mine and mill in Wittenoom, in north-western Western Australia, for a total of three-and-a-half years from 1961 until the Wittenoom operation closed in 1966. He alleged that in the course of his work he was negligently exposed to asbestos, causing him to suffer asbestosis, pleural disease, respiratory degeneration, pain and breathlessness, and psychiatric injury. He claimed the psychiatric injury was caused by anxiety about his exposure to asbestos and a belief that he was suffering from asbestosis. At age 18, Mr Della Maddalena had followed his older stepbrother, Walter, from Italy to Australia to work at Wittenoom. Walter died of mesothelioma in 1988. In 1990, Mr Della Maddalena began to experience shortness of breath, chest pain and tiredness. Specialists found some presence of asbestos in his lungs. Mr Della Maddalena had seen friends die of asbestos-related diseases and all but four of the 13 people who had come to Wittenoom from his village had died of mesothelioma. Doctors noted symptoms of depression and he was treated by psychiatrists and a clinical psychologist and also examined by Salvatore Febbo, a psychiatrist retained by CSR and Midalco. Mr Della Maddalena was kept under surveillance and videoed for 150 hours, of which 82 minutes was tendered in evidence at the WA District Court trial. The tapes showed him performing activities allegedly inconsistent with breathlessness or chest pain. The psychiatrists gave evidence that he was suffering from a major depression associated with significant anxiety arising from concern about the effects of asbestos exposure. His own two psychiatrists said their diagnoses were not affected by the videotape, but Dr Febbo said he changed his mind after seeing the tape as he believed Mr Della Maddalena’s description of what he could do and not do was unreliable. Judge Michael O’Sullivan concluded Dr Febbo’s opinion was to be preferred and dismissed Mr Della Maddalena’s claim, holding that the evidence did not show he had suffered any physical or psychiatric injury. Mr Della Maddalena successfully appealed to the Full Court of the WA Supreme Court, which held that he did suffer from a psychiatric injury and remitted the matter to Judge O’Sullivan to determine damages against one or both of the two companies. CSR and Midalco appealed to the High Court against those orders. The Court, by a 3-2 majority, held that the appeal should be allowed in part and ordered that the proceedings be remitted to the District Court for retrial. The Court held that the issue required an examination of why the psychiatrists differed in their opinions, not just a preference for particular witnesses over others. Because questions remained about Mr Della Maddalena’s condition, the Court ordered a new trial of the action, rather than a hearing restricted to questions of which of the two companies bore liability and what damages should be awarded.
+HIGH COURT OF AUSTRALIA Public Information Officer 16 April 2008 BRETT DWYER v CALCO TIMBERS PTY LTD The Victorian Court of Appeal failed to exercise its jurisdiction under section 134AD of the Victorian Accident Compensation Act to decide for itself whether an injured worker met the definition of “serious injury”, the High Court of Australia held today. Mr Dwyer was injured on 27 March 2000 by a crane mounted on the back of a semitrailer with which he delivered timber products. One arm of the crane became disengaged and fell on Mr Dwyer’s right arm. The rights he had against his employer, Calco Timbers, were limited by the Accident Compensation Act which provided that a worker in Mr Dwyer’s position may recover damages for a serious injury. “Serious injury” was defined as including “permanent serious disfigurement” and “permanent serious impairment or loss of body function”. If the degree of impairment was assessed as less than 30 per cent, as was the case with Mr Dwyer, the worker could not bring legal proceedings for damages unless the County Court had given leave under section 134AB(16) of the Act to bring the proceedings. The Court was obliged not to give leave unless satisfied on the balance of probabilities that the injury was a “serious injury”. In the County Court, Judge Frances Millane held that the impairment and loss of function in Mr Dwyer’s right arm and his disfigurement were not a “serious injury” within the meaning of the Act. Accordingly on 1 December 2005 she refused him leave to bring proceedings to recover damages. Section 134AD of the Act stated that on applications made under section 134AB(16) the Court of Appeal shall decide for itself whether the injury is a serious injury on the evidence before the judge who heard the application and on any other evidence which the Court of Appeal may receive. On 8 September 2006, the Court of Appeal dismissed Mr Dwyer’s appeal. Mr Dwyer appealed to the High Court on the ground that the Court of Appeal had erred in its approach to the nature of the appeal provided under the Act and consequently failed to exercise its jurisdiction. The High Court unanimously allowed the appeal and held that the Court of Appeal erred in its construction of the provisions providing for the appeal from the County Court. The Court of Appeal’s emphasis on the importance of demonstration by Mr Dwyer of specific error by Judge Millane when deciding whether there was “serious injury” distracted attention from the terms of section 134AD, which required the Court of Appeal to decide for itself whether an injury was a “serious injury”. The High Court ordered that the appeal to the Court of Appeal be reheard.
+HIGH COURT OF AUSTRALIA 8 November 2006 Public Information Officer MINISTER FOR IMMIGRATION AND INDIGENOUS AFFAIRS v STEFAN NYSTROM The cancellation of one of Mr Nystrom’s two visas should be taken to have cancelled the other, the High Court of Australia held today. Mr Nystrom was born in Sweden on 31 December 1973 while his mother was visiting relatives. His parents had migrated to Australia in 1966. Mr Nystrom and his mother returned to Australia on 27 January 1974 and he has not left Australia since. He knows little of his Swedish relatives and does not speak Swedish. Mr Nystom has a criminal record of 87 offences dating back to when he was aged 10 and he has served eight prison terms. His convictions include theft, burglary, criminal damage, armed robbery, drug offences, driving offences, arson, intentionally causing serious injury and aggravated rape. In 2004 the Minister cancelled Mr Nystrom’s transitional (permanent) visa because, based on his substantial criminal record, he failed to meet the character test specified in section 501(6) of the Migration Act. He claimed he also held an absorbed person visa. There is no difference in the substantive rights conferred by the two visas. Mr Nystrom argued that because he had been a permanent resident for 10 years before the commission of the crimes he was not liable to removal from Australia on cancellation of a visa. He also argued that the Minister had either cancelled the wrong visa or failed to take his absorbed person visa into account. A federal magistrate upheld the Minister’s decision on the basis that, even if accepted that Mr Nystrom was deemed to hold an absorbed person visa, section 501F(3) of the Act applied. This provides that if the Minister cancels a person’s visa and the person holds another visa, the Minister is also taken to have decided to cancel that other visa. When Mr Nystrom appealed to the Full Court of the Federal Court, the Minister argued that an absorbed person visa only applied to those who became absorbed persons before 1984 although they had originally been illegal immigrants and Mr Nystrom was not such a person. The Full Court, by majority, held that Mr Nystrom met the criteria for the visa. It set aside the Minister’s decision to cancel the transitional visa and held that the Minister had committed jurisdictional error. If Mr Nystrom did not hold a transitional visa then cancelling a non-existent visa is not a valid exercise of statutory power. If he held both visas, the Minister had not considered the fact that he held an absorbed person visa which would also be cancelled by operation of section 501F(3). The Minister appealed to the High Court. The High Court unanimously allowed the appeal. It held that the Minister did not fail to take into account a relevant consideration when she did not refer Mr Nystrom also holding an absorbed person visa. The Court held that he qualified for and acquired simultaneously each of the deemed visas. Accordingly, the absorbed person visa was also cancelled upon cancellation of his transitional (permanent) visa in accordance with section 501F(3) of the Act. Both visas conferred the same rights, so the same considerations applied whichever visa was cancelled. The power conferred on the Minister by section 501(2) to cancel a visa could be exercised in Mr Nystrom’s case. The Court also held that this power is not restricted by the deportation power in sections 200 and 201 of the Act which enables the deportation of non-citizens convicted of an offence attracting at least one year’s jail and who had been in Australia for less than 10 years. It held that the provisions are capable of operating concurrently and the deportation provisions did not “protect” Mr Nystrom from removal via visa cancellation.
+HIGH COURT OF AUSTRALIA 10 March 2004 SHANE LESLIE KELLY v THE QUEEN The High Court of Australia today unanimously dismissed an appeal from a Tasmanian man who had argued that an alleged confession was inadmissible at his trial for murder. Mr Kelly was convicted in 2001 along with Michael John Marlow of murdering Tony George Tanner, who had admitted to police his involvement in a robbery and implicated Mr Marlow. A third man was acquitted of the murder. Mr Tanner disappeared in November 1990 after his girlfriend heard him on the telephone arranging to meet “Ned” (Mr Kelly). In November 1999 Mr Kelly allegedly told police that he and Mr Marlow had murdered Mr Tanner and asked about indemnity in return for his cooperation. Mr Tanner’s body was found in March 2000 with shotgun wounds in a hole dug in the Tasmanian Central Highlands by a skilled excavator operator, which Mr Kelly was. He was arrested and in a video-taped police interview he retracted his confession, giving various explanations for having made it. Sometime later, while police were taking him to Launceston General Hospital for blood and hair samples to be taken, Mr Kelly allegedly said: “Sorry about the interview – no hard feelings, I was just playing the game.” The Supreme Court trial judge ruled this statement to be admissible as it was not made in the course of official questioning, with the result that section 8 of the Criminal Law (Detention and Interrogation) Act did not apply. The Court of Criminal Appeal, by majority, upheld the trial judge’s reasoning. The minority judge disagreed but also dismissed Mr Kelly’s appeal on the ground that no substantial miscarriage of justice had occurred. The primary issue for the High Court was whether the impugned statement was made in the course of official questioning. Under section 8, no confession made by a person suspected by police of having committed an offence was admissible if made in the course of official questioning unless video-taped (subject to some exceptions). Three members of the Court held that the statement was not made in the course of official questioning so section 8 did not apply, as the course of official questioning ended when police ceased to ask questions. They also held that even if the Court of Criminal Appeal majority had erred no miscarriage of justice had occurred. Two members of the High Court held that the confession was inadmissible as it was made within the course of official questioning but not video-taped, but agreed that other evidence against Mr Kelly was so overwhelming that no miscarriage of justice had occurred.
+HIGH COURT OF AUSTRALIA 28 September 2011 LITHGOW CITY COUNCIL v JACKSON [2011] HCA 36 Today the High Court allowed an appeal against the decision of the Court of Appeal of the Supreme Court of New South Wales which had upheld a claim in negligence by Mr Craig William Jackson against Lithgow City Council. On 18 July 2002, Mr Jackson was found unconscious and badly injured in a concrete drain in an area of parkland in Lithgow, New South Wales. The western end of the drain had a 1.41m vertical face topped by a small retaining wall partially concealed by foliage. Mr Jackson brought proceedings in negligence against Lithgow City Council, arguing that his injuries were caused by tripping from the small retaining wall. Mr Jackson's injuries prevented him from recalling how he came to be injured, and he sought to rely on a statement contained in a record made by the ambulance officer or officers summoned to assist him, which was: "? Fall from 1.5 metres onto concrete" ("the Statement"). The trial judge relevantly found that Mr Jackson had not established whether his injuries were caused by Lithgow City Council's breach of duty, because he had not established that he had fallen over the western vertical face after walking over it, as distinct from stumbling down one of the sloping sides, or standing on the top of the northern face and losing his balance. Her Honour did not refer to the Statement in her reasons. On appeal to the New South Wales Court of Appeal, the appeal books before the Court truncated the question mark in the Statement, and the Court considered the truncated statement to be an opinion, admissible under s 78 of the Evidence Act 1995 (NSW) ("the Act"), that Mr Jackson had fallen down the vertical western face of the drain. The Statement was crucial to their Honours' conclusion that Mr Jackson had established causation. Following a grant of special leave by the High Court, an appeal by the Council was heard instanter and allowed, and the matter was remitted to the Court of Appeal for a rehearing in light of the accurate trial record. On the rehearing, the Statement, including the question mark, was held to be an admissible opinion, and the Court adhered to its original conclusion that Mr Jackson had proved causation. Basten JA concluded that the evidence established causation even without the Statement. Two issues were presented in the High Court. The first was whether the Court of Appeal in its second decision was correct to hold that the Statement was admissible. The second was whether, even if the Statement was not admissible, the conclusion that causation was established could be supported by other evidence. The High Court held unanimously that the Court of Appeal erred in treating the Statement as an admissible opinion under s 78 of the Act. The Statement was so ambiguous as to be irrelevant. In any event, the nature of the Statement was such that it was not possible to find positively that it stated an opinion. Moreover, even if it was assumed that the Statement did express an opinion, it was not one which satisfied s 78 of the Act. The Court held by majority that Mr Jackson had not established causation because the conclusion that a fall from the vertical western face of the drain caused his injuries could not be drawn on the balance of probabilities.
+HIGH COURT OF AUSTRALIA Public Information Officer 4 March, 2003 THE QUEEN v ROBERT GORDON GEE & ANOR The High Court of Australia today overturned a decision of the Full Court of the Supreme Court of South Australia which held that it did not have jurisdiction to deal with certain questions of law referred to it by the District Court. While the Full Court ordinarily has the statutory power to hear a question of law referred to it by the District Court, in this case, the District Court was exercising federal jurisdiction and hearing a case of persons charged with Commonwealth offences. The respondents were charged on information filed by the Commonwealth Director of Public Prosecutions in the District Court on nine counts of defrauding the Commonwealth in relation to income tax. They pleaded not guilty. Before a jury was empanelled, the trial judge ruled on the admissibility of certain evidence. It was that ruling that was the subject of questions of law reserved for the Full Court. When it came to consider the questions of law reserved to it, the Full Court held that it did not have jurisdiction to deal with them. The DPP appealed against this decision. The High Court unanimously allowed the DPP's appeal, holding that the Full Court had jurisdiction.
+HIGH COURT OF AUSTRALIA Public Information Officer 24 September 2008 BHP BILLITON IRON ORE PTY LTD v THE NATIONAL COMPETITION COUNCIL AND FORTESCUE METALS GROUP LIMITED BHP BILLITON IRON ORE PTY LTD AND BHP BILLITON MINERALS PTY LTD v THE NATIONAL COMPETITION COUNCIL AND FORTESCUE METALS GROUP LIMITED The use by Fortescue of a railway line that was integral to BHP Billiton Iron Ore’s (BHPBIO) production process would not amount to the use by Fortescue of that production process, the High Court of Australia held today. Fortescue Metals Group applied to the National Competition Council (NCC) in 2004 for access to parts of the Mt Newman and Goldsworthy railway lines in north-western Western Australia by having them declared a service under Part IIIA of the Trade Practices Act (TPA). Declaration of a service meant that a party seeking access was given a right to negotiate access to the service. Fortescue sought access to the Mt Newman railway line from Mindy Mindy in the Pilbara region to Port Hedland, 295km away, and access to 17km of the Goldsworthy railway line from where it crossed the Mt Newman line to Port Hedland. Fortescue planned to build a 17km siding linking Mindy Mindy to the Mt Newman line. BHPBIO was the manager of joint mining ventures in four areas in the Pilbara and it operated the railway lines on behalf of each group of owners. Each line was a single-gauge heavy haulage railway line constructed upon WA Crown land leased at a peppercorn rental. Fortescue was a publicly listed company and a party to an agreement with the State relating to the development of multi-user railway and port facilities. It did not seek access to BHPBIO’s locomotives and rolling stock as it would use its own. The NCC invited submissions about whether the facilities were a service as defined by section 44B of the TPA. BHPBIO submitted that the railway lines were integral to its iron ore production process. In November 2004, the NCC determined that it had jurisdiction over the application as it pertained to the Mt Newman railway line but not with respect to the Goldsworthy line and that the application should be treated as two separate applications, which led to two appeals coming before the High Court. Section 44B provided that “service” did not include “the use of a production process”. The NCC concluded that the relevant part of the Mt Newman line was a service to which Part IIIA applied, but that the Goldsworthy line was subject to the production process exception. On 24 December 2004, BHPBIO applied to the Federal Court seeking declarations that the Mt Newman railway line was not a service within the meaning of section 44B and that the NCC did not have jurisdiction to recommend that the railway line be declared. On 22 February 2005, Fortescue applied to the Federal Court seeking declarations that the Goldsworthy line is a service under section 44B and that the NCC had jurisdiction with respect to it. Justice John Middleton heard the two cases together and in December 2006 dismissed BHPBIO’s application and made the declarations that Fortescue sought in respect of the Goldsworthy line. The Full Court of the Federal Court dismissed appeals by BHPBIO on 5 October 2007. BHPBIO appealed to the High Court. The High Court unanimously dismissed the appeals. It held that the subject of Fortescue’s application answered the description of a service provided by the use of an infrastructure facility such as a railway line, in accordance with section 44B of the TPA. BHPBIO submitted that the access sought would be to a production process. The Court held that “a production process” meant the creation or manufacture by a series of operations of some marketable commodity. Although BHPBIO used the track and associated infrastructure as part of its production process, it did not follow that use by Fortescue of that track and infrastructure would be excluded from the definition of “service” as being “the use of a production process”. Fortescue’s proposed use of the railway lines did not constitute use of BHPBIO’s production process.
+HIGH COURT OF AUSTRALIA 17 November 2005 THE COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA v SUN ALLIANCE INVESTMENTS PTY LIMITED (in liquidation) The High Court of Australia today upheld a tax assessment that reduced by more than $17 million capital losses claimed by Sun Alliance and consequently increased its taxable income. Sun Alliance objected to an amended income tax assessment for the income year ending 31 December 1997. The losses it wished to claim had been incurred by Royal and Sun Alliance Insurance Australia Holdings (RSA) and had been transferred to its wholly owned subsidiary, Sun Alliance. The Royal Insurance group of companies underwent a restructure in 1992, with the British parent company selling its entire shareholding in Royal Australia Holdings Limited to RSA (then known as Sun Alliance Australian Limited) for $125 million plus 40 per cent of RSA shares. The Royal and Sun Alliance Group was thus formed via a merger on 8 October 1992 between the Royal Group and the Sun Alliance Group, with RSA as its Australian holding company. Phoenix Securities Pty Ltd and Sun Alliance Australia Ltd (SAIL) were wholly owned subsidiaries of RSA. SAIL’s assets included land and buildings in Bridge Street, Sydney, valued at $57,050,000 at the merger date. The assets of Phoenix included shares in publicly listed companies. The proceedings relate to capital losses claimed by RSA upon its disposal of shares in both Phoenix and SAIL. At issue was whether RSA had incurred the losses that were transferred. In dispute was the meaning of “profits that were derived by the company” in section 160ZK(5) of the Income Tax Assessment Act. In particular, the question was whether and in what circumstances a profit can be said to have been derived at a time before the acquisition of shares by the taxpayer if at the acquisition date a gain to the company, specifically increases in the value of assets, remained unrealised. The Tax Commissioner disallowed Sun Alliance’s objection to the amended assessment and Sun Alliance appealed to the Federal Court. Justice Margaret Stone upheld the disallowance. The Full Court held that increases in the value of Phoenix’s share portfolio as at the merger date did not have a sufficiently permanent character to be regarded as profit. However, it held that no error was made by the Commissioner or by Justice Stone in describing as profits derived by SAIL before the merger date an amount related to an increase in the value of SAIL’s real estate. The Commissioner appealed to the High Court against the first finding and Sun Alliance cross-appealed against the second part of the decision. The Court unanimously allowed the appeal by the Commissioner and dismissed the cross-appeal. It held that profit did not have an inherently permanent character and could be constituted by unrealised gains. Increases in value of Phoenix shares before the merger date, which may be understood as profits already derived by Phoenix, were a partial cause of dividends paid to RSA after 30 October 1992. Dividends paid by SAIL to RSA in 1996 may also be seen as partly attributable to the unrealised increase in the value of the Bridge Street properties at the merger date.
+HIGH COURT OF AUSTRALIA 19 April 2007 Public Information Officer GOLDEN EAGLE INTERNATIONAL TRADING PTY LTD AND CHEN GUANG v YU ZHANG by his tutor the Protective Commissioner AND RUI MANUEL SOUSA MENONGA AND JOSE ALCIVO DE FREITAS trading as DMP AUTOMOTIVE REPAIRS Third-party insurance pay-outs should be taken into account when reducing damages when a claimant’s own fault such as failing to wear a seatbelt has contributed to their injuries, the High Court of Australia held today. Mr Zhang, 33, suffered serious injuries as a passenger in a traffic accident on 24 December 1997 on the F6 freeway between Sydney and Wollongong. The driver, Mr Guang, lost control when the tread came off a tyre. Mr Zhang was thrown from the van. The accident occurred in his employment by Golden Eagle International Trading. In the New South Wales District Court, Mr Zhang sued Golden Eagle, Mr Guang and DMP, which had serviced the vehicle and certified it as roadworthy less than a month before. The action against DMP failed and DMP entered a submitting appearance in the appeal to the High Court. Golden Eagle and Mr Guang admitted liability but alleged that Mr Zhang was contributorily negligent because he did not wear a seatbelt. Section 45 of the NSW Motor Accidents Act imposes a duty on third-party insurers to make certain payments once liability for an accident has been admitted by a person against whom a damages claim is made. Section 45(4) provides that payments made before a claimant obtains a damages judgment is a defence, to the extent of the amount paid, against a damages claim. At trial, Judge Audrey Balla assessed Mr Zhang’s damages at $2,791,761, reduced that by 30 per cent for contributory negligence, allowed an amount for funds management, then deducted the third-party insurance payment of $409,906, leaving $1,768,362. The Court of Appeal held that the $409,906 should have been deducted first from the total damages before the reduction of 30 per cent for contributory negligence. This left Mr Zhang better off. The Court of Appeal also ordered that the recalculation should use prospective life expectancy tables, not historical tables, both from the Australian Bureau of Statistics. Golden Eagle and Mr Guang appealed to the High Court, seeking reinstatement of Judge Balla’s decision. They submitted that the whole of the damages assessment, including the section 45 payment, is apportioned for contributory negligence, and only then are the section 45 payments deducted from the balance to reach the final amount. Mr Zhang submitted that effect would not then be given to the defence stipulated in section 45(4) if the insurer’s payments were treated as part of the total assessment. The High Court, by a 3-2 majority, allowed the appeal and upheld Judge Balla’s method of calculating damages. It held that Mr Zhang’s argument would mean that section 45 payments are immunised from the effects of reducing damages for contributory negligence, which would mean an unjust result for the insurer and a windfall to Mr Zhang. The Court unanimously rejected a ground of appeal relating to life expectancy tables and held that the Court of Appeal was correct to use prospective rather than historic tables to get a more accurate assessment of life expectancy.
+HIGH COURT OF AUSTRALIA 11 December 2008 Public Information Officer AGRICULTURAL AND RURAL FINANCE PTY LIMITED v BRUCE WALTER GARDINER AND OCEANIA AGRICULTURE LIMITED Indemnity for a loan was unavailable when loan payments were late, even if the lender accepted the payments as “punctual”, the High Court of Australia held today. In 1997, Oceania Agriculture (OAL) promoted a tea tree plantation investment scheme that was marketed as having tax advantages for investors. Each participant was granted a 17-year licence over an allotment of land on which would be planted at least 18,000 tea trees for the production of tea tree oil. They paid OAL annual licence and management fees. OAL managed the project and established and maintained the trees. Investors could obtain finance under a loan agreement to fund the initial management fees and those who accepted finance from Agricultural and Rural Finance (ARF) had the option of entering into a loan indemnity agreement with OAL and ARF. For a flat fee, if amounts due under the loan agreement were paid punctually, OAL would indemnify obligations under the loan contracts if the business ceased due to certain events. Between October 1997 and May 1999, ARF made four loans to investor Bruce Gardiner. Each loan agreement required periodic payments and provided that the whole of the principal outstanding was immediately payable, at the option of ARF, if Mr Gardiner defaulted in the punctual payment of interest or any repayment instalment. Mr Gardiner did not pay certain amounts under three of the four loan agreements on the due date. When payments were late, ARF accepted payment and did not choose to accelerate repayment of the outstanding principal. Mr Gardiner ceased to carry on the tea tree business due to an event of a kind specified in the indemnity agreement. When the scheme collapsed, ARF sought to recover its loans and sued Mr Gardiner and 215 other borrowers in the New South Wales Supreme Court. The Chief Judge in Equity, Justice Peter Young, rejected all of Mr Gardiner’s defences to ARF’s claims for payment and dismissed his cross-claims against ARF and OAL. ARF obtained judgment for the whole of the amounts it claimed as principal and most of its claim for interest. In the NSW Court of Appeal, ARF obtained judgment for its claim under Mr Gardiner’s fourth loan agreement, but lost its claims to recover principal or interest in respect of the first three loan agreements. ARF appealed to the High Court in respect of the first two agreements. The third loan agreement was performed punctually and ARF no longer disputed that the indemnity agreement was effective and enforceable and that it could only look to OAL for repayment. In the High Court, Mr Gardiner sought to rely on the indemnity agreements for both loans, claiming that his overdue payments should be regarded as “punctual” and that ARF, in its statements and actions, had waived compliance with due dates by accepting late payments. Mr Gardiner submitted that the waiver took the form of an election between inconsistent rights, forbearance from exercising a contractual right, or the abandonment or renunciation of a right. The High Court unanimously allowed the appeal with costs. It held that Mr Gardiner did not pay punctually, indemnities for the first and second loans were therefore not effective and enforceable, and there had been no waiver by ARF or OAL. “Punctual” had its ordinary meaning and did not depend on ARF’s attitude to late payments. The Court held that, in the circumstances of the case, none of the three forms of waiver contended for by Mr Gardiner applied. Even if ARF had waived its rights to punctual payment, that did not bind OAL to indemnify the loans. The obligation for punctual payments was imposed by the loan agreements and was owed to ARF, not to OAL. ARF was entitled to judgment for the amounts owing for the first and second loans as well as for the fourth loan.
+HIGH COURT OF AUSTRALIA 14 December 2011 Matter No S219/2011 AMACA PTY LTD (UNDER NSW ADMINISTERED WINDING UP) Matter No S220/2011 AMABA PTY LTD (UNDER NSW ADMINISTERED WINDING UP) JOHN WILLIAM BOOTH & ANOR [2011] HCA 53 Today the High Court held that there was sufficient evidence to justify a finding by the Dust Diseases Tribunal of New South Wales that brake linings containing asbestos manufactured by Amaca Pty Ltd and Amaba Pty Ltd caused Mr John Booth's malignant pleural mesothelioma. Mr John Booth is a retired motor and brake mechanic suffering from malignant pleural mesothelioma. This disease is caused by the inhalation of asbestos fibres. Mr Booth had three brief exposures to asbestos between 1943 and 1959, two as a child and youth when helping his father with home renovations and another when he spent about 20 minutes loading bags containing asbestos onto a truck in 1959. In addition, Mr Booth was exposed to asbestos in brake linings during his career as a motor and brake mechanic between 1953 and 1983 with a three-year interregnum. His work included the replacement of brake linings made from asbestos. The frequency of the replacement tasks varied from twice a month to three times a week. Amaca manufactured brake linings containing asbestos between 1953 and 1962. Amaba manufactured brake linings containing asbestos from 1962 to 1982. Seventy per cent of the asbestos fibres to which Mr Booth was exposed occupationally were released from brake linings manufactured by Amaca and Amaba. In July 2008, Mr Booth commenced proceedings in the Dust Diseases Tribunal of New South Wales against Amaca and Amaba in negligence. Mr Booth alleged that Amaca and Amaba had failed to warn about the dangers of use of their brake linings. The primary judge held that exposure to asbestos dust liberated from brake linings manufactured by Amaca and Amaba materially contributed to Mr Booth's contraction of mesothelioma. The Court of Appeal of the Supreme Court of New South Wales dismissed Amaca and Amaba's appeals. Amaca and Amaba appealed to the High Court by special leave. Special leave was limited, in effect, to the question of the sufficiency of the evidence to support the primary judge's finding that exposures to asbestos in the brake linings manufactured by Amaca and Amaba had each been a cause of Mr Booth's mesothelioma. The High Court held by majority that the evidence was sufficient to support the Tribunal's conclusion that Amaca's and Amaba's products were a cause of Mr Booth's mesothelioma.
+HIGH COURT OF AUSTRALIA 13 August 2020 STATE OF QUEENSLAND v THE ESTATE OF THE LATE JENNIFER LEANNE MASSON [2020] HCA 28 Today, the High Court unanimously allowed an appeal from the Court of Appeal of the Supreme Court of Queensland ("the QCA"). The High Court held that the State of Queensland, as provider of ambulance services under the name "Queensland Ambulance Service" ("QAS"), was not liable in negligence, either vicariously or directly, by reason of the failure of its ambulance officers to promptly administer adrenaline to Jennifer Masson, a chronic asthmatic, who suffered a severe asthma attack. On the night of 21 July 2002, Ms Masson collapsed outside a friend's house in Cairns. On arrival, Clinton Peters, the intensive care paramedic responsible for treating Ms Masson, observed that she was in respiratory arrest and had high blood pressure and a very high heart rate. He elected to administer intravenous salbutamol, which like adrenaline acts as a bronchodilator. Initially, Mr Peters considered Ms Masson's condition to be improving, however during transportation to hospital her vital signs worsened. At this point, the officers switched to administering adrenaline but, by the time of arrival at Cairns Base Hospital, Ms Masson had sustained severe, irreversible brain damage due to oxygen deprivation. She lived in a vegetative state until her death in 2016. Proceedings were commenced on Ms Masson's behalf seeking damages in negligence and the claim survived in the hands of her estate. The trial judge found that: (1) Mr Peters had considered administering adrenaline at the outset, as recommended by the QAS Clinical Practice Manual ("the CPM"), but decided against doing so because of the risks associated with using adrenaline on a patient with Ms Masson's high heart rate and blood pressure; and (2) in 2002 a responsible body of opinion within the medical profession supported the view that those presenting symptoms provided a sound basis for preferring salbutamol to adrenaline in the initial stage of treatment ("the body of opinion finding"). On appeal, the QCA determined that Mr Peters had failed to consider using adrenaline, as he mistakenly regarded himself as precluded from doing so by the CPM. Additionally, their Honours held that the body of opinion finding was not supported by evidence, and that even if there had been such a body of opinion and Mr Peters had been aware of it, departing from the CPM by not administering adrenaline would nonetheless have amounted to a want of reasonable care. Having granted special leave to appeal, the High Court restored the findings of the trial judge. In two sets of reasons the Court stated that the trial judge's conclusion, that Mr Peters made a clinical judgment not to administer adrenaline because of Ms Masson's high heart rate and blood pressure, was neither contrary to compelling inferences nor glaringly improbable – it should not have been overturned. Contrary to the QCA's reasons, the decision not to administer adrenaline did not contravene the guidance in the CPM, which was a flexible document that permitted the exercise of clinical judgment. Nor was the decision negligent, as it conformed with a responsible body of professional opinion. The plurality observed that, in concluding otherwise and rejecting the body of opinion finding, the QCA disregarded the evidence of expert witnesses called by the State by reason of their Honours' acceptance of a submission as to the superiority of adrenaline. That submission was based on a contention that had not been put to any of the expert witnesses at the trial and should not have been accepted. Nettle and Gordon JJ stated that the QCA's reasoning effectively required that in order to constitute a "responsible" or "respectable" body of opinion, a view must be shared by a majority of the relevant profession; this is not so. In the circumstances, Mr Peters' treatment of Ms Masson did not fall below the standard of care expected of an ordinary skilled intensive care paramedic.
+HIGH COURT OF AUSTRALIA Public Information Officer 20 July 2006 NIGEL CUNNINGHAM MANSFIELD v DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA The WA Supreme Court had the power to make orders to require the DPP to undertake to compensate Mr Mansfield for any damage resulting from the freezing of assets and to enable him to access some of his frozen assets to pay his legal costs, the High Court of Australia held today. Mr Mansfield, facing insider trading charges, has had all property owned or controlled by him frozen since 2002 when the Supreme Court granted the DPP’s application under WA’s Criminal Property Confiscation Act for a freezing order. The order was granted because the DPP was seeking to examine Mr Mansfield about suspected confiscable property and was also likely to apply for a criminal benefits declaration which if granted would require Mr Mansfield to pay to the State the amount equivalent to the criminal benefit acquired. “Criminal benefits” are certain property, services, advantages and benefits obtained as a result of a person’s alleged involvement in a “confiscation offence”, whether or not it was committed in WA and whether or not anyone has been charged or convicted. The Act provides for automatic confiscation of frozen property unless an objection is taken to the freezing order within a certain time. Mr Mansfield lodged an objection so no confiscation has occurred. In 2004, the freezing order was varied to release $2,500 a fortnight for the reasonable living expenses of Mr Mansfield and his wife, with $102,500 also released to cover their living expenses since the order was made in 2002. Neither the application for a criminal benefits declaration nor the criminal proceedings have yet been dealt with by the Supreme Court. Mr Mansfield sought leave to appeal to the WA Court of Appeal, claiming that Justice Leonard Roberts- Smith had erred in two respects when granting the freezing order. First, the judge found the Court had no power to require an undertaking by the DPP on damages to protect the interests of parties like Mr Mansfield whose property is bound by the order. Second, the judge found the Court had no power to make allowance in a freezing order for payment of reasonable legal costs incurred in related civil or criminal proceedings. Mr Mansfield argued the Court did have jurisdiction to make both kinds of orders. The Court of Appeal, by majority, refused to grant him leave to appeal on these two grounds. He appealed to the High Court. The Court, by a 5-1 majority, allowed the appeal on both grounds. It held that the Supreme Court had the power to require the DPP’s undertaking before granting an application for a freezing order. Earlier legislation expressly provided for power to grant an undertaking as to damages in what were then called “restraining orders”, but the Court held that the absence of an express limitation in the Act upon the scope of the power to grant freezing orders meant the Supreme Court’s inherent jurisdiction when granting a discretionary remedy to act judicially and to have regard to considerations of justice was not displaced. Other sections in the Act upon which the DPP relied did not prevent the Supreme Court from exercising its discretion to require an undertaking to pay compensation if Mr Mansfield suffered loss. The High Court also held that the Supreme Court had power to vary the freezing order to allow him to pay legal costs. The DPP argued that the Act implicitly denied the Supreme Court the power to make such an order. The Court said legal representation of parties benefits the adversarial system of litigation. While the Second Reading Speech stated that no property could be released for legal expenses, neither the Bill nor the Act did so. The Court adopted Justice Christopher Pullin’s dissenting view in the Court of Appeal that the Supreme Court may exempt some property from a freezing order on condition that it is used for legal expenses. Such conditions would need careful framing to ensure exempted funds were not misused or abused, such as by overservicing or overcharging by lawyers. The High Court ordered that Mr Mansfield’s applications be referred to a single Supreme Court judge for determination in light of its reasons.
+HIGH COURT OF AUSTRALIA 18 April 2018 PLAINTIFF M174/2016 v MINISTER FOR IMMIGRATION AND BORDER PROTECTION & ANOR [2018] HCA 16 Today the High Court unanimously held, answering questions stated in a special case, that a failure by a delegate of the Minister for Immigration and Border Protection ("the Minister") to comply with s 57(2) of the Migration Act 1958 (Cth) ("the Act") in the course of making a decision to refuse to grant a protection visa to a "fast track applicant" does not deprive the Immigration Assessment Authority ("the Authority") of jurisdiction to review the delegate's decision. The Court also held that, in this case, the delegate had not failed to comply with s 57(2) and the Authority had not acted unreasonably by not getting new information from the plaintiff, who was a "fast track applicant". Section 57(2) of the Act provides that, in considering a visa application, the Minister or delegate must provide "relevant information" to the applicant and invite the applicant to comment on it. "Relevant information" includes information that would be the reason, or part of the reason, for refusing to grant the visa; that is specifically about the applicant; and that was not provided by the applicant. Part 7AA of the Act provides for review of "fast track reviewable decisions" – decisions to refuse to grant protection visas to certain "fast track applicants", which includes persons who arrived in Australia as "unauthorised maritime arrivals" on or after 13 August 2012 and before 1 January 2014. When such a decision is made, it must be referred to the Authority for review together with specified "review material". The Authority may either affirm the decision or remit the decision to the Minister for reconsideration, but the Authority is not authorised to set the decision aside or to substitute its own decision. Subject to exceptions, the Authority is required to review decisions on the papers. One exception is that the Authority may invite a person, including an applicant, to provide "new information" in writing or at an interview. However, the Authority is not permitted to consider any new information unless it is satisfied that there are exceptional circumstances and that the information either was not and could not have been before the Minister or is credible personal information which was not previously known. The plaintiff is a citizen of Iran who entered Australia on 11 October 2012 as an unauthorised maritime arrival and subsequently applied for a temporary protection visa. He claimed that he would face a real chance of harm if he returned to Iran because he is a Christian. In support of his claim to be a committed Christian, he told the Minister's delegate that he had regularly attended a particular church since his release from immigration detention and provided material including a letter from the reverend of the church. The delegate called the reverend, who told the delegate that the plaintiff had attended the church, but had stopped attending two years earlier and had only attended on a few occasions since then. The delegate made a file note of the telephone call, but did not give to the plaintiff particulars of what the reverend had said. The delegate refused to grant a protection visa to the plaintiff because she did not accept that he had genuinely converted to Christianity. She set out the information provided by the reverend in her reasons for decision. On review, the delegate's file note was included in the review material provided to the Authority. The plaintiff requested that the Authority interview him, the reverend and other congregants, and also provided further letters of support from the reverend and other congregants. The Authority affirmed the delegate's decision without conducting interviews. It took into account the further letters only to the extent that the reverend's further letter stated that the plaintiff had occasionally attended church in 2016. Like the delegate, the Authority did not accept that the plaintiff had genuinely converted to Christianity or that he would be at risk of harm for that reason if he returned to Iran. In its reasons, the Authority explained that, having regard to the requirement for exceptional circumstances to exist before it could consider any new information, it had chosen not to conduct any interviews because it considered that the plaintiff had been given an opportunity to present his claims and to respond to relevant issues in his interview with the delegate. The High Court held that the jurisdiction of the Authority under Pt 7AA is to review decisions that are made in fact, with no requirement that those decisions be legally effective. The Authority's task is to consider the merits of a decision under review by determining for itself whether it is satisfied that the criteria for the grant of the visa are met. Further, if the decision under review is affected by jurisdictional error because of a failure to provide relevant information to an applicant in compliance with s 57(2), a failure by the Authority to exercise its powers to get and consider new information about the relevant information may be legally unreasonable. The Court held that the information provided by the reverend in the telephone call with the delegate was not "relevant information" because it supported the plaintiff's claim, so far as it went, and accordingly the delegate had not failed to comply with s 57(2). Nor had the Authority acted unreasonably by declining to exercise its powers to interview the reverend and other congregants: that exercise of discretion was open to it and was justified by the reasons it gave.
+HIGH COURT OF AUSTRALIA Public Information Officer 11 May 2006 ANDREW CHARLES THEOPHANOUS v COMMONWEALTH OF AUSTRALIA A law exposing a former MP to loss of superannuation benefits following his conviction and imprisonment on corruption charges was upheld by the High Court of Australia today. Dr Theophanous was a Labor member of the House of Representatives from 1980 to 2001. Since then he has received a retirement allowance under the parliamentary superannuation scheme. Dr Theophanous elected to convert half of his allowance to a lump sum of $367,763.37, and also receives a gross fortnightly payment of $1,575.32. Should he die before his wife, Dr Kathryn Eriksson, she would continue to receive benefits under the Parliamentary Contribution Superannuation Act. In May 2002, Dr Theophanous was convicted of defrauding the Commonwealth by making false representations in relation to an immigration matter, taking an unlawful inducement, and soliciting an unlawful inducement. He was also convicted of conspiring to defraud the Commonwealth by making false representations in relation to an immigration matter, but this was overturned on appeal and a retrial is pending. Dr Theophanous was sentenced to three years’ imprisonment for the other three offences. In 2004, the Justice Minister, pursuant to section 16 in Part 2 of the Crimes (Superannuation Benefits) Act (CSB Act), authorised the Director of Public Prosecutions to apply to the Victorian County Court for a “superannuation order” in respect of Dr Theophanous. That application has yet to be heard. Section 16 provides for a superannuation order when a current or former employee is convicted of an offence and the Minister is of the opinion that the offence is a corruption offence. “Employee” includes a member of Parliament. A superannuation order means all rights to future super benefits would cease, employer contributions must be repaid to the Commonwealth, plus interest, and the employee keeps only their own super contributions. Dr Eriksson would not be entitled to a benefit as a surviving spouse. The County Court has restrained Dr Theophanous from disposing of his interest in two parcels of land without the DPP’s written consent. In the High Court, Dr Theophanous issued a writ of summons seeking a declaration that Part 2 of the CSB Act is invalid so far as it applied to him. He argued that the relevant provisions are invalid as they provide for the acquisition of property – his parliamentary superannuation entitlement – but such acquisition was not on just terms in accordance with section 51(xxxi) of the Constitution. Dr Theophanous also asserts the operation of the Act on the contingent interest of his wife is invalid. The High Court unanimously held that section 51(xxxi) is irrelevant to the application of Part 2 of the CSB Act to Dr Theophanous and that Part 2 is a valid law of the Commonwealth. A law such as Part 2 of the CSB Act which qualifies MPs’ rights to remuneration by way of a sanction for corrupt abuse of office is within the power to grant remuneration. To place the law within section 51(xxxi) would weaken or destroy the sanction. The Court held that Dr Eriksson would only have an entitlement as a surviving spouse if her husband, at the time of his death, were entitled to a retirement allowance. If the superannuation order against Dr Theophanous is made, his wife will not become entitled to any such benefit.
+HIGH COURT OF AUSTRALIA Public Information Officer 7 March, 2003 KATHRYN FAY BARNS v MALCOLM PHILLIP BARNS (first respondent), ALICE ELIZABETH BARNS (second respondent), and MICHELLE LOUISE FISHER and RHIANNA KATE FISHER by their next friend PETER CHARLES SYMES (third respondents) The High Court of Australia today allowed an appeal from Kathryn Barns against a decision by the Full Court of the South Australian Supreme Court that a deed entered into by her parents effectively excluded her from making a claim under the Inheritance (Family Provision) Act in respect of the estate of her late father, Lyle Phillip Barns. Kathryn Barns is the adopted daughter of Lyle and Alice Barns. Malcolm Barns is the Barneses’ natural son who took over the running of their farm near Wudinna in SA and is also the executor of his father’s will. The Barnses made some financial provision for their daughter but wished their son to inherit the farm. To try to protect the property from any claim by Kathryn Barns, the parents entered into a deed in 1996 under which they agreed to make mutual wills under which their son would inherit the whole estate from the surviving parent. Lyle Barns died in 1998. The Full Court of the Supreme Court held that the deed and accompanying wills did preclude Kathryn Barns and her children though this was not contrary to public policy. Her claim was dismissed and she appealed to the High Court. The merits of her claim have yet to be litigated. The point of law involved was upon which there were conflicting decisions of the Privy Council but no decision of the High Court. The High Court, by a 4-1 majority, overturned the Full Court’s orders and held that the deed did not prevent Kathryn Barns and her children from seeking access to her father’s estate.
+HIGH COURT OF AUSTRALIA Public Information Officer 2 August 2007 JOSEPH TERRENCE THOMAS v GRAHAM MOWBRAY, FEDERAL MAGISTRATE; MANAGER, COUNTER-TERRORISM – DOMESTIC, AUSTRALIAN FEDERAL POLICE; AND COMMONWEALTH OF AUSTRALIA The High Court of Australia today upheld the constitutional validity of that part of the anti- terrorism laws under which an interim control order was made in respect of Mr Thomas. Mr Thomas allegedly undertook paramilitary training, including in the use of firearms and explosives, at Al Qa’ida’s Al Farooq training camp in Afghanistan in 2001. He was arrested in Pakistan in 2003 and in 2004 was charged in Australia with terrorism-related and passport offences. Mr Thomas was convicted in the Victorian Supreme Court of intentionally receiving funds from a terrorist organisation and of possession of a false passport. The Victorian Court of Appeal set aside the convictions in August 2006 and last December ordered a retrial which has yet to be held. After the convictions were quashed, the AFP applied, with the consent of the federal Attorney-General, for an interim control order (ICO) under Division 104 of the Criminal Code Act. At a hearing on 27 August 2006, Federal Magistrate Mowbray issued the ICO on grounds that related to allegations concerning Mr Thomas’s Al Qa’ida training and his links to extremists. The ICO imposed conditions which include a midnight to 5am curfew, reporting to police three times a week, and prohibitions from contacting particular individuals and from using certain communications technology. A Federal Magistrates Court hearing to determine whether the ICO should be confirmed for a specified period was listed for 1 September 2006 but was postponed until after Mr Thomas’s challenge to the validity of Division 104 was heard by the High Court. The questions agreed by the parties for determination by the Court were whether Division 104 is invalid because it confers on a federal court non-judicial power contrary to Chapter III of the Constitution, whether it is invalid because in so far as it confers judicial power on a federal court it authorises the power to be exercised in a manner contrary to Chapter III; and whether it is invalid because it is not supported by one or more express or implied heads of legislative power under the Constitution. By a 5-2 majority, the High Court held that Subdivision B of Division 104 is valid. It held that the subdivision is supported by at least the defence power. The Court held that the defence power is not limited to external threats or to war between nations but extends to protecting the public from terrorist acts. Mr Thomas contended that Subdivision B invalidly confers non-judicial power on federal courts. This contention was rejected. The functions exercised in making ICOs, and the standards according to which they are to be exercised, are such that they involve an exercise of judicial power and thus may be conferred upon the federal judiciary.
+HIGH COURT OF AUSTRALIA 1 September 2004 PATRICK JOHN COLEMAN v BRENDAN JASON POWER, ADAM CARNES AND ATTORNEY-GENERAL (QUEENSLAND) The High Court of Australia today overturned Mr Coleman’s convictions for insulting police but upheld his convictions for obstructing police and assaulting police. The case raised issues concerning freedom of political communication. Mr Coleman was arrested in Townsville Mall where he was distributing pamphlets alleging four police officers, including Constable Power, were corrupt. He stood in front of a placard which read, “Get to know your local corrupt type coppers, please take one.” When Constable Power approached, Mr Coleman loudly accused him of being a corrupt officer. He resisted arrest by locking his arms around a power pole, and hit and kicked officers during the struggle to put him in a police van. Mr Coleman was convicted in Townsville Magistrates Court of two counts of serious assault, two of obstructing police, one count of insulting words and one count of publishing insulting words. Under section 7(1)(d) of Queensland’s Vagrants, Gaming and Other Offences Act (which has since been repealed) it was an offence to use threatening, abusive or insulting words to a person in a public place or where they could be heard in a public place. The offence attracted penalties of $100 or six months’ jail. The District Court dismissed an appeal and the Queensland Court of Appeal allowed an appeal only against conviction for publishing insulting words. Mr Coleman appealed to the High Court, which focused on construction of section 7(1)(d). Mr Coleman contended that in relation to his conduct the provisions was invalid for contravening the implied constitutional freedom of communication concerning political or government matters. The Queensland Attorney-General agreed that the practical operation of section 7(1)(d) may in some cases burden the freedom of political communication but argued that the section was valid because it was proportional to the objective of maintaining public order. By a 4-3 majority, the High Court allowed the appeal in relation to the conviction for using insulting words. Six members of the Court held that section 7(1)(d) was not invalid but three members of the majority held that its operation was limited to situations which could lead to violence. The use of words such as those used by Mr Coleman would constitute no offence unless those hearing him were reasonably likely to be provoked to physically retaliate. Police would be expected to be able to resist reacting to insults directed at them. The other member of the majority held that the legislation was invalid. The majority held that Mr Coleman’s convictions for insulting words should be quashed. However a majority of the Court dismissed appeals against convictions for obstructing police and assaulting police.
+HIGH COURT OF AUSTRALIA 18 December 2013 COMMONWEALTH MINISTER FOR JUSTICE v ADRIAN ADAMAS & ANOR [2013] HCA 59 Today the High Court held that the Commonwealth Minister for Home Affairs and Justice correctly determined to surrender to Indonesia an Australian citizen who, in his absence, had been convicted by an Indonesian court of an offence under Indonesian law and sentenced to life imprisonment. The Court, unanimously allowing the Minister's appeal from a decision of the Full Court of the Federal Court of Australia, held that Australian standards of a fair trial were relevant to, but not determinative of, the Minister's decision. Mr Adamas was the President Director of Bank Surya in Indonesia between 1989 and 1998. He moved to Australia in 1999 and became an Australian citizen in 2002. In 2002, in his absence, an Indonesian court convicted Mr Adamas of a corruption offence, involving misuse of bank funds that caused liquidity problems for Bank Surya and extensive losses to the Indonesian Central Bank. He was sentenced to life imprisonment. Indonesian authorities sought his extradition from Australia. The Minister was required to determine whether Mr Adamas should be surrendered to Indonesia. By force of an extradition treaty between Australia and Indonesia given effect in domestic legislation, Mr Adamas was to be surrendered only if, among other things, the Minister was satisfied that, in the circumstances of the case and taking into account the nature of the offence and the interests of Indonesia, surrender would not be "unjust, oppressive or incompatible with humanitarian considerations". Adopting the analysis and recommendation of officers of the Attorney-General's Department, the Minister determined that Mr Adamas should be surrendered to Indonesia. Mr Adamas sought judicial review of the Minister's determination. The Federal Court, both at first instance and on appeal to the Full Court, held that the Minister applied a wrong legal test because the analysis that he adopted failed to recognise that whether or not it would be unjust, oppressive or incompatible with humanitarian considerations to surrender Mr Adamas was to be determined according to "Australian standards", which would not ordinarily permit the trial and conviction of a person for a serious criminal offence in his or her absence. By special leave, the Minister appealed to the High Court. The High Court held that the standard of "unjust, oppressive or incompatible with humanitarian considerations", being contained in a bilateral treaty between Australia and Indonesia, encapsulated a single broad evaluative standard to be applied alike by Australia and Indonesia. Domestic standards, and international standards to which Australia and Indonesia had assented, were relevant to the application of the standard in the treaty but were not determinative. The Minister was correct not to confine his consideration to the application of Australian standards.
+HIGH COURT OF AUSTRALIA 28 August 2008 The High Court of Australia today upheld the slavery convictions of a Melbourne brothel owner and overturned the orders of the Victorian Court of Appeal for a new trial. Ms Tang was convicted in 2006 of five counts of intentionally possessing a slave and five counts of intentionally exercising a power of ownership over a slave, contrary to section 270.3(1)(a) of the Commonwealth Criminal Code. She was sentenced to 10 years’ imprisonment, with a non-parole period of six years. Ms Tang was the first person convicted under the anti-slavery laws, introduced in 1999. The charges related to five women, all Thai nationals. Ms Tang owned a licensed brothel, Club 417, at 417 Brunswick Street, Fitzroy, in Melbourne. She held a 70 per cent interest in a syndicate which bought four of the women with the remaining 30 per cent held by a co- accused, DS, who negotiated with recruiters in Thailand, and her associates. The fifth woman was brought to Australia by other “owners”. She worked in another brothel, then was moved to Club 417. Customers at Club 417 were charged $110. Ms Tang retained $43 in her capacity as brothel owner plus 70 per cent of the remaining $67 for four of the women and DS and her associates received 30 per cent. In relation to the fifth woman, after Ms Tang took her $43 fee, the other $67 was divided between her owners. Each woman had a debt of $45,000. It reduced by $50 per customer. The women worked six days a week, serving up to 900 customers to pay off their debt. If they worked a seventh day, they could keep the $50 per customer, while Ms Tang got $43 and the remaining $17 was divided among syndicate members. The women were not usually under lock and key, but they had little money and limited English, their passports were retained, their visas had been obtained illegally, they feared detection by immigration authorities, and they worked long hours. The evidence was that they were well provided for. Two women paid off their debts in six months and restrictions on them were lifted, their passports were returned, they were paid and they could choose their hours of work. The Court of Appeal of the Supreme Court of Victoria held that the directions given to the jury were inadequate, quashed each conviction, and ordered a new trial on all counts. It held that the jury should have been instructed that the prosecution had to prove that Ms Tang had the knowledge or belief that the powers being exercised were through ownership, as well as proving an intention to exercise those powers. The prosecution appealed to the High Court and Ms Tang sought special leave to cross-appeal on three grounds against the order for a new trial rather than an acquittal. The High Court allowed the appeal by a 6-1 majority and overturned the order for a new trial. It held that the prosecution had made out the required elements of the offences and did not need to prove what Ms Tang knew or believed about her rights of ownership. The prosecution did not need to prove that she knew or believed that the women were slaves. The critical powers she exercised were the power to make each woman an object of purchase, the capacity to use the women in a substantially unrestricted manner for the duration of their contracts, the power to control and restrict their movements, and the power to use their services without commensurate compensation. The Court unanimously granted Ms Tang special leave to cross-appeal on the first two grounds concerning the meaning and constitutional validity of section 270.3(1)(a) but dismissed the cross-appeal. It held that Parliament had the power to make laws with respect to external affairs, in this case by section 270 giving effect to Australia's obligations under the Slavery Convention. The Court refused special leave on the third ground, that the Court of Appeal failed to hold that the jury’s verdicts were unreasonable or could not be supported by the evidence. Because the Court of Appeal allowed the appeal against conviction, it did not deal with Ms Tang’s sentence, so the High Court remitted that question to the Court of Appeal for its consideration.
+HIGH COURT OF AUSTRALIA Public Information Officer 9 November 2006 LIAM NEIL MAGILL v MEREDITH JANE MAGILL An action for the tort of deceit brought by a man said to be the victim of paternity fraud failed, the High Court of Australia held today. The Magills married in April 1988 and separated in November 1992, divorcing in 1998. They had two sons and a daughter between April 1989 and November 1991. After separation Mr Magill paid child support for all three children. After each birth, Ms Magill gave him birth registration forms to sign with him named as the father. In 1995, Mr Magill learned that Ms Magill at least suspected that her second son was not her husband’s child. In April 2000, DNA testing established that Mr Magill had fathered neither this boy nor the girl. Child support payments were adjusted to allow for past overpayments and an extinguishment of arrears. In January 2001, Mr Magill commenced proceedings against his ex-wife in the Victorian County Court for deceit. He claimed damages for personal injury in the form of anxiety and depression resulting from Ms Magill’s fraudulent misrepresentations. He also claimed financial loss, including loss of earning capacity by reason of his psychiatric problems and expenditure on the children under the mistaken belief he was their father, and exemplary damages. Mr Magill did not claim in respect of the child support payments. He was awarded $70,000: $30,000 for general pain and suffering, $35,000 for past economic loss and $5,000 for future economic loss. The County Court found Ms Magill’s presentation of the birth registration forms to Mr Magill constituted the representation by Ms Magill that he was the father. The Victorian Court of Appeal reversed that decision on the ground that Mr Magill had failed to establish the essential elements of the tort of deceit. He appealed to the High Court. The Court unanimously dismissed the appeal. It rejected Ms Magill’s contention that section 119 of the Family Law Act, which permits spouses to sue each other, and section 120, which abolishes certain actions such as damages for adultery, exclude any action for deceit. However, three members of the Court held that no action for deceit could lie for representations about paternity made between spouses, and three members of the Court held that, while there could be circumstances in which such an action might succeed, they were exceptional and did not cover Mr Magill’s case.
+HIGH COURT OF AUSTRALIA 12 December 2012 THE PUBLIC SERVICE ASSOCIATION AND PROFESSIONAL OFFICERS' ASSOCIATION AMALGAMATED OF NSW v DIRECTOR OF PUBLIC EMPLOYMENT & ORS [2012] HCA 58 Today the High Court unanimously upheld the validity of a provision of the Industrial Relations Act 1996 (NSW) which requires the Industrial Relations Commission of New South Wales to give effect to regulations declaring aspects of government policy. The Industrial Relations Commission is constituted by judicial and non-judicial members and it exercises certain functions conferred upon it by the Act. Other functions conferred by the Act are exercised by the Industrial Court of New South Wales, and that Court is constituted only by the judicial members of the Commission. The central provision in this appeal was s 146C(1) of the Act. That sub-section provides that the Industrial Relations Commission must "give effect to any policy on conditions of employment of public sector employees ... that is declared by the regulations to be an aspect of government policy that is required to be given effect to by the Commission" when making or varying any award or order. The Industrial Relations (Public Sector Conditions of Employment) Regulation 2011 (NSW) stated policies affecting the conditions of employment of public sector employees, among which was a limitation upon the increases in remuneration that the Commission could award. The appellant brought proceedings in the Industrial Court challenging the validity of s 146C(1). The appellant claimed that it undermined the integrity of the Industrial Court for its judicial members to be required to give effect to policy declared in regulations when sitting as, and exercising the functions of, the Commission. The Industrial Court rejected that claim and the appellant, by special leave, appealed to the High Court. The High Court unanimously dismissed the appeal. Although s 146C(1) and the Industrial Relations (Public Sector Conditions of Employment) Regulation used the words "policy" and "government policy", the policies contemplated by s 146C(1) (and those contained in the Regulation) were no different from any other laws (including any applicable statutes and regulations) which the Industrial Relations Commission must apply in exercising its functions. It cannot undermine the integrity of the Industrial Court for its judicial members to apply the law as it stands from time to time when sitting as, and exercising the functions of, the Commission.
+HIGH COURT OF AUSTRALIA 17 August 2022 GOOGLE LLC v DEFTEROS [2022] HCA 27 Today, the High Court allowed an appeal from a judgment of the Court of Appeal of the Supreme Court of Victoria. The appeal primarily concerned whether, by operating an internet search engine which, in response to a user-designed search query, provided search results including a link to the webpage of another containing defamatory matter, the appellant had published the defamatory matter. The appellant is a technology company that operated an internet search engine which allowed users to navigate information on the World Wide Web through user-designed search queries. In response to a search query, the search engine used computer programs and algorithms to return search results in the form of a list of links to webpages that were likely to be of interest to the user, ranked according to relevance. Each search result relevantly consisted of the title of a webpage, a snippet of the content found on that webpage and a hyperlink that, when clicked, would take the user to that webpage. In early 2016, the respondent became aware that inputting his name as a search query in the appellant's search engine returned a search result ("the Search Result"), which hyperlinked to an article published by The Age newspaper in 2004 ("the Underworld article"). He alleged the Underworld article defamed him, although there was no suggestion that the Search Result itself was defamatory. The respondent requested the appellant to remove the Search Result, which the appellant did not do. The respondent commenced proceedings, claiming damages for defamation from the appellant as publisher of the Search Result and the Underworld article. The trial judge held, in a finding that was unchallenged on appeal, that the Underworld article defamed the respondent. In the courts below, the appellant was found to have published the defamatory matter because the provision of the Search Result was instrumental to the communication of the content of the Underworld article to the user, in that it lent assistance to its publication. The courts below rejected, in part, the appellant's reliance on the statutory and common law defences of innocent dissemination and qualified privilege. The High Court, by majority, found that the appellant was not a publisher of the defamatory matter. A majority of the Court held that the appellant did not lend assistance to The Age in communicating the defamatory matter contained in the Underworld article to the third party users. The provision of a hyperlink in the Search Result merely facilitated access to the Underworld article and was not an act of participation in the bilateral process of communicating the contents of that article to a third party. There was no other basis for finding publication because the appellant had not participated in the writing or disseminating of the defamatory matter. There being no publication, the majority found it unnecessary to consider the defences raised by the appellant.
+HIGH COURT OF AUSTRALIA 7 September 2005 BELINDA ANN WILLETT (AN INFANT BY HER LITIGATION GUARDIANS DEBORAH ANN WILLETT AND PATRICK WILLETT) v DUDLEY D FUTCHER A disabled woman who requires an administrator to manage her affairs was entitled to damages to cover the administrator’s costs of overseeing investments on her behalf, the High Court of Australia held today. In July 1979, at nine weeks of age, Ms Willett suffered severe brain and other injuries as a result of a motor vehicle collision. When she was 23 her action against Mr Futcher went to mediation. He admitted liability and they settled for $3.85 million compensation plus trustee administration and management charges. As Ms Willett was incapable of managing her affairs she was unable to make a binding agreement to settle her litigation so application was made to the Queensland Supreme Court for approval. Justice John Byrne made orders approving the settlement and appointed Perpetual Trustees Queensland as administrator of Ms Willett’s financial affairs. He also gave directions for the subsequent determination of what management fees should be paid to Perpetual. At the determination hearing before Justice Margaret White, evidence was given as to what fees would be charged by both Perpetual and the Public Trustee based on the fund being reduced to zero when Ms Willett reached the end of her life expectancy of 59. Perpetual anticipated that the present value of the fees it would charge and the outgoings it would incur would total $876,506 and the Public Trustee expected its fees and outgoings would total $969,336. Mr Futcher disputed some categories of the charges Ms Willett sought. Justice White allowed an amount of $180,000 to cover the management fees to be paid by Mr Futcher. This figure covered only an establishment fee and a discretionary portfolio management fee. Justice White disallowed other categories relating to investing Ms Willett’s money. After an unsuccessful appeal to the Court of Appeal, Ms Willett appealed to the High Court. The Court unanimously allowed the appeal. It held that the kinds of costs of managing the damages awarded to persons incapable of managing their own affairs should allow for remuneration and expenditure properly charged or incurred by the administrator of the fund during the life of the fund. No distinction of the kind made by Justice White between investment advice and other services should be drawn in assessing that amount. The Court ordered that the matter be remitted to the Court of Appeal to reassess the damages to be allowed.
+HIGH COURT OF AUSTRALIA 6 November 2013 EXPENSE REDUCTION ANALYSTS GROUP PTY LTD & ORS v ARMSTRONG STRATEGIC MANAGEMENT AND MARKETING PTY LIMITED & ORS [2013] HCA 46 Today the High Court unanimously held that the Supreme Court of New South Wales should have ordered that the respondents return 13 privileged documents which had been inadvertently disclosed to them by the appellants' solicitors during a court-ordered process of discovery. The parties have been involved in commercial proceedings in the Supreme Court since 2010. In 2011, the Supreme Court ordered that the parties give verified, general discovery. During this process, a number of documents, which were subject to client legal privilege, were mistakenly listed in the non-privileged section of the appellants' verified Lists of Documents. Electronic copies of these documents were inadvertently disclosed to the respondents' solicitors, Marque Lawyers. Marque Lawyers refused to return the documents, asserting that their clients had no obligation to do so and that privilege in the documents had been waived by the disclosure. The appellants sought orders in the Supreme Court to the effect that Marque Lawyers return 13 of the inadvertently disclosed documents. The Supreme Court ordered the return of nine documents, but considered that privilege in the four remaining documents had been waived, and so declined to order the return of those documents. The Court of Appeal overturned the Supreme Court's decision. It held that the Supreme Court did not have power to order the return of any of the 13 documents. According to the Court of Appeal, the orders sought could only be granted in the exercise of the Court's equitable jurisdiction, on the basis of the law of confidential information. The Court of Appeal found that there was no equitable obligation of confidence upon Marque Lawyers and so held that the orders sought by the appellants should have been refused. By grant of special leave, the appellants appealed to the High Court. The High Court unanimously allowed the appeal. The Court held that the issue of waiver should never have been raised. There was no evidence that the appellants had acted inconsistently with the maintenance of their claims to privilege. There was also no need to resort to the Court's equitable jurisdiction. If a privileged document is inadvertently disclosed during discovery, the Supreme Court ordinarily has all powers necessary to permit the correction of that mistake and to order the return of the documents (if the party receiving the documents refuses to do so). These powers exist by virtue of the Supreme Court's role in the supervision of the process of discovery and the express powers given to it by Pt 6 of the Civil Procedure Act 2005 (NSW) to ensure the "just, quick and cheap resolution of the real issues" in proceedings. The High Court held that, in this case, the Supreme Court should have promptly exercised these powers to permit the appellants to correct their solicitors' mistake.
+HIGH COURT OF AUSTRALIA 24 August 2016 SIO v THE QUEEN [2016] HCA 32 Today the High Court unanimously allowed an appeal from the Court of Criminal Appeal of the Supreme Court of New South Wales. The High Court quashed the conviction of the appellant ("Mr Sio") for armed robbery with wounding because the trial judge omitted an element of the offence in directing the jury. The Court also held that the trial judge erred in admitting hearsay evidence, given by the person who stabbed the victim, that Mr Sio gave him the knife. On 24 October 2012, Mr Sio drove Mr Filihia to a brothel in Clyde in New South Wales. Mr Filihia entered the brothel alone, armed with a knife, intending to commit robbery. During an altercation, Mr Filihia fatally stabbed Mr Gaudry, who worked at the brothel. Mr Filihia removed from Mr Gaudry's back pocket a pencil case which contained cash and left the brothel, running past Mr Sio's car. Mr Sio caught up with and collected Mr Filihia, and accelerated away from the scene. Mr Sio was charged with the murder of Mr Gaudry and with armed robbery with wounding. Mr Filihia refused to give evidence at Mr Sio's trial. The prosecution tendered two electronically recorded interviews, and two supplementary statements, given by Mr Filihia in which he named Mr Sio as the driver of the car and as the person who had given him the knife. The trial judge admitted this evidence under s 65 of the Evidence Act 1995 (NSW), which provides an exception to the hearsay rule where the maker of the representation is unavailable, and where the representation was against the interests of the person who made it at the time it was made and was made in circumstances that make it likely that the representation was reliable. In directions to the jury, the trial judge instructed them that they must be satisfied that Mr Sio foresaw the possibility of the use of the knife by Mr Filihia to wound Mr Gaudry in relation to the murder charge, but omitted this element in relation to the armed robbery with wounding charge. Mr Sio was acquitted of murder, but convicted of armed robbery with wounding. The Court of Criminal Appeal granted leave to appeal to Mr Sio, but dismissed the appeal, holding that the trial judge did not err in admitting Mr Filihia's evidence, and that the verdict on the armed robbery with wounding charge was not unreasonable. The High Court held that the conviction of armed robbery with wounding must be quashed because of the trial judge's misdirection and because the trial judge erred in admitting the hearsay evidence. With respect to the evidence of the representation that Mr Sio gave Mr Filihia the knife, the Court held that it was not open to the trial judge to be satisfied positively that the representation was made in circumstances that made it likely that it was reliable. A new trial on the charge of armed robbery with wounding was not possible, as that would traverse the jury's verdict on the murder charge. It was also not open to substitute a conviction for armed robbery because of the wrongful admission of the hearsay evidence. The Court ordered that there be a new trial on the charge of armed robbery.
+HIGH COURT OF AUSTRALIA 13 May 2015 RONALD SELIG & ANOR v WEALTHSURE PTY LTD & ORS [2015] HCA 18 Today the High Court unanimously allowed an appeal against a decision of the Full Court of the Federal Court of Australia and held that the proportionate liability regime in Div 2A of Pt 7.10 ("Div 2A") of the Corporations Act 2001 (Cth) ("the Act") applies only to claims of misleading or deceptive conduct based upon a contravention of s 1041H of the Act. The Court also made a costs order against the first respondent's professional indemnity insurer, a non-party to the proceedings. The appellants made an investment on the advice of the second respondent, an authorised representative of the first respondent. The scheme invested in was, in effect, a "Ponzi scheme" and the appellants lost their initial investment and suffered consequential losses. The appellants claimed the first and second respondents had contravened a number of provisions of the Act and the Australian Securities and Investments Commission Act 2001 (Cth) ("the ASIC Act"), including s 1041H of the Act and its analogue in the ASIC Act, s 12DA. Section 1041H(1) prohibits conduct, in relation to a financial product or service, that is misleading or deceptive, or is likely to mislead or deceive. Section 1041L(1) in Div 2A defines an "apportionable claim" as a claim for loss or damage "caused by conduct that was done in a contravention of section 1041H". The first and second respondents submitted that Div 2A and the corresponding provisions of the ASIC Act applied to limit their liability to a proportion of the appellants' loss and damage, having regard to the comparative responsibility of a number of other parties, including the company the appellants invested in and its directors. The High Court held that an "apportionable claim" for the purposes of Div 2A is, relevantly, a claim based upon a contravention of s 1041H. The term does not extend to claims based upon conduct of a different kind, and therefore the proportionate liability regime established by Div 2A does not apply to other statutory or common law causes of action. The Court held that this reasoning applied equally to the analogue provisions of the ASIC Act. The High Court further held that the circumstances justified an award of costs against a non-party to the proceedings, the first respondent's professional indemnity insurer. The insurer had the conduct of the defence at trial and made the decision to appeal to the Court below. As the first respondent's cover under the policy was capped, the decision to appeal meant that monies which it would otherwise have been obliged to pay the appellants would be diverted to meet the insurer's legal costs. The Court held that as the insurer was acting for itself in seeking to better its position by bringing the appeal, there was no reason it should be regarded as immune from a costs order.
+HIGH COURT OF AUSTRALIA 9 September 2004 RE AN APPLICATION FOR WRITS OF CERTIORARI AND PROHIBITION AGAINST COURT MARTIAL MEMBERS COLONEL STEVEN AIRD, LIEUTENANT COLONEL BRYCE TITCUME, MAJOR PETER THUAUX, CAPTAIN SHANNON CALLAGHAN AND CAPTAIN SIMON WORBOYS , JUDGE ADVOCATE WING COMMANDER MICHAEL BURNETT, AND THE COMMONWEALTH; EX PARTE STEWART WAYNE ALPERT Legislation under which an Australian soldier stationed at Butterworth air force base in Malaysia and accused of rape while on leave in Thailand could be dealt with by a court martial rather than by the civil courts was constitutionally valid, the High Court of Australia held today. Private Alpert, 23, was deployed with the 6th Battalion’s Delta Company at Butterworth from August to November 2001. The company had infantry training with the Malaysian armed forces and was responsible for securing RAAF aircraft and other Australian Defence Force (ADF) assets at Butterworth. Private Alpert and other members of Delta Company had recreation leave from 22 to 30 September which they could take in Thailand, Singapore or on the Malaysian peninsula. He was in a group that went to Phuket in Thailand. He travelled on a civilian passport, wore civilian clothes and paid his own way. On 28 September at a nightclub he met up with an 18-year-old British woman who was in Thailand for her gap year. Private Alpert allegedly raped her on Patong Beach. On 2 October, when he was back in Phuket for training, the woman asked an officer for Private Alpert’s name and details and told the officer she was going to try to have him charged with rape. She later wrote to the commanding officer of 6RAR. In February 2003 he was charged before a general court martial with non-consensual sexual intercourse. Private Alpert challenged the validity of Defence Force Discipline Act (DFDA) provisions which made his alleged conduct a service offence. He contended that the constitutional defence power did not extend to authorise Parliament to make laws criminalising conduct by ADF personnel during leave when serving overseas. By a 4-3 majority, the Court held that it was within the constitutional defence power for Parliament to make Private Alpert’s alleged conduct a service offence. DFDA provisions were sufficiently connected with military discipline and the proper administration of the ADF to be a law with respect to defence for constitutional purposes. The Court held Parliament therefore did have power to extend the DFDA’s code of behaviour should extend to soldiers while on leave during overseas service and to permit the trial by general court martial for the offence of rape in Thailand.
+HIGH COURT OF AUSTRALIA Public Information Officer 1 March 2006 DANIEL CRIS PHILLIPS v THE QUEEN Mr Phillips should have been tried separately on sexual assault charges related to each of six female teenagers, the High Court has held. The Court today published its reasons for orders it made on 9 December 2005 that Mr Phillips face five new trials for the charges on which he was convicted in relation to five of the six teenagers. Mr Phillips, now 21, was charged with six counts of rape, one count of indecent assault and one count of assault with intent to rape. The first seven counts relate to five girls aged between 14 and 16 around Innisfail in northern Queensland between August 2000 and November 2001. The eighth count involved an 18-year-old woman in May 2003 in Brisbane. In the Queensland District Court, Judge Peter White dismissed Mr Phillips's applications for separate trials. Mr Phillips argued that the evidence of a complainant was admissible only on any charges relating to her, not on charges relating to other complainants. He argued that rules for reception of similar fact evidence were not satisfied, so trying all eight charges against him in a single trial was prejudicial. In March 2004, he was convicted of three counts of rape, assault with intent to rape, and two counts of unlawful carnal knowledge as alternative charges to two of the rape charges. Mr Phillips was acquitted of indecent assault and one rape count and cannot be retried on these charges. He was jailed for a total of 12 years, made up of four years for each of two rapes, nine years on the third, and three months on each carnal knowledge count, to be served concurrently, plus three years for assault with intent to rape, to be served cumulatively. Mr Phillips unsuccessfully appealed to the Court of Appeal (but succeeded in having his sentence reduced from a total of 12 years' imprisonment to a total of 10 years due to the nine-year sentence for one rape being cut to seven years) and appealed to the High Court. The Court unanimously allowed the appeal. Similar fact evidence requires a strong degree of probative force and must have a material bearing on the issues. In Mr Phillips's case the threshold was not met. The test for the admissibility of similar fact evidence expressed in the 1995 case of Pfennig v The Queen continued to be the applicable test. The High Court ordered retrials on the six counts for which Mr Phillips was convicted in relation to five of the teenagers. Because Mr Phillips has now served terms for some offences on which he was convicted, it was for the prosecuting authorities to decide whether such retrials should proceed in these cases.
+HIGH COURT OF AUSTRALIA 3 March 2005 GRIFFITH UNIVERSITY v VIVIAN TANG Exclusion from a PhD program was not a decision which was susceptible to review under Queensland’s Judicial Review Act, the High Court of Australia held today. Ms Tang was excluded from Griffith University’s PhD program on the ground of alleged academic misconduct in the form of the presentation of falsified or improperly obtained data as if it resulted from laboratory work. The Assessment Board, a sub-committee of the university’s Research and Postgraduate Studies Committee, found she had engaged in academic misconduct. After receiving submissions from Ms Tang the board determined that she should be excluded from the PhD program on the ground that she had undertaken research without regard to ethical and scientific standards. The Appeals Committee upheld this decision and dismissed the appeal. Ms Tang contended that there had been breaches of the requirements of natural justice, failures to comply with mandatory procedures, improper exercises of power and errors of law. She said her prospects of a career in molecular biology and bioscience had been destroyed. Ms Tang commenced action against the University under the Judicial Review Act. The University unsuccessfully sought to have the action dismissed in both the Queensland Supreme Court and the Court of Appeal. It then appealed to the High Court. The issue in the appeal was whether the decision to exclude Ms Tang was a decision to which the Judicial Review Act applied. This depended on whether it was a decision of an administrative character made under an enactment, namely the Griffith University Act. Nothing in this Act dealt specifically with admission to or exclusion from a research program, academic misconduct or procedures for dealing with such cases. These powers flowed from a general description in section 5 of the university’s functions, the general powers in section 6, and the powers of the University Council, including its powers of delegation. The High Court held, by a 4-1 majority, that Ms Tang was not entitled to a review under the Judicial Review Act because the decision to exclude her was not made under the Griffith University Act. Griffith University’s decision to terminate its relationship with Ms Tang did not take legal force or effect from the Griffith University Act. Rather, the termination occurred under the general law and under the terms and conditions on which Griffith University had been willing to enter into a relationship with Ms Tang.
+HIGH COURT OF AUSTRALIA 15 June 2005 THE TRUSTEES OF THE ROMAN CATHOLIC CHURCH FOR THE DIOCESE OF CANBERRA AND GOULBURN (AS ST ANTHONY’S PRIMARY SCHOOL) v FARRAH HADBA BY HER NEXT FRIEND AND FATHER NOUHAD HADBA A schoolgirl injured after two schoolchildren pulled her legs while on a “flying fox” had failed to make out a case of negligence against the school, the High Court of Australia held today. Farrah Hadba was eight years old and in Year 3 at St Anthony’s Primary School in the Canberra suburb of Wanniassa in February 1999 when she was injured by another child while using the flying fox, an apparatus consisting of a platform and vertical pole at each end, linked by a horizontal pole to which a sliding triangle was attached. A child grasped the triangle, stepped off the platform and slid to the other end. In the six years it had been in use, no serious accidents had occurred on the flying fox. Classes only used the flying fox at rostered times. The school enforced a hands-off rule, requiring children not to touch each other during play, and frequently reminded them of this rule. Farrah’s teacher had also explained that no-one was to touch another child using the flying fox. Despite this, two children grabbed Farrah’s legs as she grasped the triangle. One child eventually let go but the other held on and Farrah was pulled from the flying fox. Her face struck the platform as she fell to the ground. The teacher on playground duty in the area was checking water bubblers and toilets and ordering children out of a nearby classroom when the accident happened. Four of the school’s 20 teachers were on playground duty in assigned sections of the school during each break. In the ACT Supreme Court Justice Terence Connolly held that the flying fox was not inherently dangerous and that the cause of the accident was the other child continuing to pull Farrah’s legs. He was satisfied that the school had fulfilled its duty of care. The Court of Appeal, by majority, allowed an appeal, holding that the school’s system of supervision in the play area was inadequate. The school appealed to the High Court. The Court, by a 4-1 majority, allowed the school’s appeal. It held that having more teachers supervising children during recesses so that one teacher could watch the play equipment exclusively was unreasonable and would not necessarily have prevented the accident which happened within a few seconds. There was no evidence of serious accidents on the flying fox or of children pulling each other from the flying fox in breach of the well-known hands-off policy so the risk and probability of injury were not high. Dangers could also arise elsewhere, such as children going into untended classrooms. Farrah had been unable to show that any reasonably practicable alternative system of supervision would have been more effective.
+HIGH COURT OF AUSTRALIA Manager, Public Information 7 July 2009 JONATHAN PETER BAKEWELL v THE QUEEN [2009] HCA 24 Today the High Court determined that section 19 of the Sentencing (Crime of Murder) and Parole Reform Act 2003 (NT), relied on by the Director of Public Prosecutions for the Northern Territory (“the Director”) in an application to the Supreme Court of the Northern Territory to have Mr Bakewell’s non- parole period fixed at 25 years, does not apply to Mr Bakewell. In 1989 Mr Bakewell was convicted on charges of aggravated unlawful entry, aggravated sexual assault, stealing, and murder. As the law then stood in the Northern Territory the only sentence that could be imposed for murder was imprisonment for life, with no minimum term able to be fixed. Mr Bakewell was sentenced to life imprisonment. The Sentencing (Crime of Murder) and Parole Reform Act 2003 (NT) (“the 2003 Reform Act”) commenced in 2004. Section 18 of the 2003 Reform Act deemed Mr Bakewell’s sentence to include a 20 year non-parole period. Section 19 provided that the Supreme Court may, or in certain circumstances, must revoke the 20 year non-parole period and fix a longer period or no period on the application of the Director. After the commencement of the 2003 Reform Act but before the Director had made an application Mr Bakewell was transferred to South Australia and has remained in custody in that State. In 2007 the Director sought to have Mr Bakewell’s minimum term fixed at 25 years, pursuant to section 19 of the 2003 Reform Act. The primary judge allowed the Director’s application but the Court of Criminal Appeal of the Northern Territory overturned the decision. Following the appeal, an Act was passed (“the 2008 Amendment Act”) which amended the 2003 Reform Act. The Director made a second application to fix Mr Bakewell’s non-parole period, relying on the 2008 Amendment Act. Mr Bakewell challenged the constitutional validity of section 19 of the 2003 Reform Act, as amended by the 2008 Amendment Act. A majority of the Full Court of the Supreme Court of the Northern Territory rejected his constitutional challenge. The High Court granted Mr Bakewell leave to appeal against the Full Court’s decision. In a unanimous decision the High Court considered that, by the operation of prisoner transfer legislation applicable in the Northern Territory and South Australia at the time Mr Bakewell was transferred to South Australia, three outcomes resulted: the life sentence imposed on him in the Northern Territory ceased to have effect in the Territory; a life sentence was deemed to have been imposed on him by the Supreme Court of South Australia; and the 20 year non-parole period fixed under Northern Territory legislation was deemed to have been fixed by the Supreme Court of South Australia. From the date of Mr Bakewell’s transfer to South Australia the Supreme Court of the Northern Territory had no authority to revoke his 20 year non-parole period, or to fix a 25 year non-parole period. The Court determined it was unnecessary to answer four of the five questions posed by the parties concerning the constitutional validity of the 2003 Reform Act as amended by the 2008 Amendment Act and other matters. The fifth question asked whether section 19 of the Reform Act, as amended, applied to Mr Bakewell. The Court determined that it did not.
+HIGH COURT OF AUSTRALIA 17 June 2015 CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION v BORAL RESOURCES (VIC) PTY LTD & ORS [2015] HCA 21 Today the High Court unanimously dismissed an appeal from the Court of Appeal of the Supreme Court of Victoria and held that the appellant was amenable to an order under r 29.07(2) of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) ("the Rules") to make discovery of particular documents in proceedings brought to punish it for contempt of court. The first to sixth respondents (together, "Boral") applied under r 75.06(2) of the Rules to punish the appellant for contempt of court, alleging that the appellant had disobeyed court orders by establishing a blockade of a construction site. The blockade was alleged to have been organised and implemented by an employee of the appellant. Boral sought an order under r 29.07(2) directing the appellant to make discovery of particular documents going to the question of whether the appellant had authorised its employee to establish the blockade. The appellant's status as a corporation meant it could not invoke either the privilege against self-incrimination or the privilege against self-exposure to a penalty to resist the order sought by Boral. In the Supreme Court of Victoria, Daly AsJ refused to make an order for discovery under r 29.07(2) on the basis that the contempt proceeding was properly characterised as a criminal proceeding, and so the Rules did not apply. Digby J allowed an appeal from that decision, holding that the contempt proceeding was a civil proceeding to which the Rules did apply, and that it was appropriate to order discovery in the circumstances. The Court of Appeal refused the appellant leave to appeal from that decision on the basis that there was insufficient reason to doubt its correctness and the appellant would suffer no substantial injustice if the order for discovery were permitted to stand. By grant of special leave, the appellant appealed to the High Court. The appellant contended that it could not be ordered to make discovery under r 29.07(2) because to do so would conflict with the principle that a defendant to an accusatorial proceeding cannot be required to assist the prosecution to prove its case. The Court accepted that this principle applies to criminal proceedings but held that the contempt proceeding was a civil proceeding. Rule 29.07(2) applied to the contempt proceeding according to its tenor enabling an order for discovery to be made.
+HIGH COURT OF AUSTRALIA 8 May 2013 [2013] HCA 19 Today the High Court unanimously dismissed an appeal from a decision of the Court of Appeal of the Supreme Court of New South Wales, which held that even if the respondent, Dr Kam, had failed to warn the appellant, his patient Mr Wallace, of all the material risks inherent in a surgical procedure, that failure did not cause the injury suffered by Mr Wallace as a result of one of those risks eventuating. Dr Kam performed a surgical procedure on Mr Wallace in an effort to relieve him of a condition of his lumbar spine. The surgical procedure had inherent risks, one of which was of temporary damage to Mr Wallace's thighs, or "neurapraxia". Another was a one-in-twenty chance of permanent and catastrophic paralysis. The first risk materialised. The second risk did not. At trial, the Supreme Court of New South Wales found that while Dr Kam negligently failed to warn Mr Wallace of the risk of neurapraxia, Mr Wallace would have chosen to undergo the surgical procedure even if warned of that risk. The Supreme Court also concluded that the legal cause of the neurapraxia could not be the failure to warn of some other risk that did not materialise. On appeal to the Court of Appeal, Mr Wallace argued that the Supreme Court erred in holding that the legal cause of the neurapraxia could not be the failure to warn of the risk of paralysis. The Court of Appeal assumed that Dr Kam negligently failed to warn Mr Wallace of the risk of paralysis and that, if warned of that risk, Mr Wallace would not have undergone the surgical procedure. On that assumption, a majority of the Court of Appeal found that Dr Kam was not liable for the neurapraxia. Mr Wallace appealed by special leave to the High Court. The High Court held that it was not appropriate for Dr Kam's liability to extend to the physical injury in fact sustained by Mr Wallace, in circumstances where Mr Wallace would not have chosen to undergo the surgical procedure had he been properly warned of all material risks, but where he would have chosen to undergo the surgical procedure even if he had been warned of the risk that in fact materialised. The policy underlying the requirement that a medical practitioner exercise reasonable care and skill in warning a patient of material risks inherent in proposed treatment is to protect the patient from the occurrence of physical injury the risk of which is unacceptable to the patient. The High Court held that Mr Wallace was not to be compensated for the occurrence of physical injury, the risk of which he was willing to accept.
+HIGH COURT OF AUSTRALIA Public Information Officer 16 October 2008 MATINA LUJANS v YARRABEE COAL COMPANY PTY LTD AND JALGRID PTY LTD The High Court of Australia today allowed an appeal against a decision of the New South Wales Court of Appeal which had overturned a decision of the NSW Supreme Court awarding damages to the victim of a road accident. The High Court held that the Court of Appeal had not discharged its legal duty on the appeal, which required it to review the evidence before the trial judge. At 6.20am on Friday 18 September 1998 Matina Lujans, then aged 28, was driving to work at a central Queensland coal mine when she had an accident that left her a quadriplegic. She turned off the Capricorn Highway on to a mining road controlled by Yarrabee Coal. Almost 6km along the road where Ms Lujans was out of sight of two drivers behind her, the left wheels of her Toyota HiLux gradually went on to the shoulder of the road at the start of a sweeping right-hand bend. The vehicle swung sharply right, travelled across the road and rolled over. Ms Lujans said she had slowed from 100km per hour to between 80 and 90km per hour before the accident because for a reason she could not identify she felt unsafe. The edge of the road was a ridge of soil left after grading operations, known as a rill. The 35km clay and gravel road was graded every week to remove a build-up of coal dust from 500 loads carried on large road trains, each hauling 400 tons of coal. The road was graded in 7km sections from Sunday to Thursday nights. The section where Ms Lujans had her accident on a Friday had not been graded since the previous Sunday night. The road was also watered each night to reduce dust and there was evidence that it was still wet or moist at the time of the accident. Ms Lujans sued Yarrabee Coal and its road maintenance contractor, Jalgrid, in the NSW Supreme Court. Acting Justice Harvey Cooper found that, due to coal and dust being spread over the road from rill to rill, drivers had difficulty distinguishing between the hard roadway surface and the softer shoulder. Ms Lujans was awarded $10,802,980.43 in damages against Yarrabee and Jalgrid, which was reduced by 20 per cent for contributory negligence to $8,759,510.55 by her failure to stay on the hard compacted centre of the road. The Court of Appeal allowed an appeal by Yarrabee and Jalgrid. It held that the sole cause of the accident was driver error because Ms Lujans had not kept a proper lookout. The Court of Appeal noted that the road’s appearance was not deceptive and the shoulder was not so soft as to contribute to the accident. Ms Lujans sought special leave to appeal to the High Court. She complained that although the appeal rehearing lasted more than two days the Court of Appeal failed to conduct the rehearing required by law as it did not consider a substantial body of evidence, it did not refer to Acting Justice Cooper’s assimilation of that evidence into his judgment, it misunderstood evidence and proceeded on wrong factual bases, and it wrongly relied on its own interpretations of photographs over those of Justice Cooper. The application for special leave to appeal to the High Court was referred to a five-member Bench and argued as if on an appeal. The Court unanimously granted special leave to appeal, allowed the appeal and remitted the proceedings to the Court of Appeal for rehearing. It held that the Court of Appeal had wrongly relied on copies of photographs in appeal books while the originals – to which the Court of Appeal had access – arguably showed a layer of black coal dust all the way across the road. Acting Justice Cooper and witnesses at the trial had used originals, not copies. The High Court held that the Court of Appeal overlooked the cross-examination of experts about speed and the condition of the road at the time of the accident. It made errors in its analysis of evidence about the vehicle’s speed and did not explain why it had not taken account of evidence about the trajectory of the vehicle and how Ms Lujans lost control of it. The High Court held that the Court of Appeal’s conclusions were not necessarily wrong but that important steps in its reasoning were shown not to be valid, which meant that it had not reheard the matter as it should.
+HIGH COURT OF AUSTRALIA 11 September 2014 PLAINTIFF S4/2014 v MINISTER FOR IMMIGRATION AND BORDER PROTECTION & ANOR [2014] HCA 34 Today the High Court unanimously held invalid the grant by the Minister for Immigration and Border Protection of a temporary safe haven visa to the plaintiff which had the effect of precluding the plaintiff making a valid application for a protection visa, in circumstances where the plaintiff's detention had been prolonged for the purpose of the Minister considering the exercise of power to allow the plaintiff to make a valid application for a visa of his choice. The plaintiff arrived at Christmas Island without a visa to enter or remain in Australia and was lawfully taken into immigration detention. Section 46A(1) of the Migration Act 1958 (Cth) prevented the plaintiff from making a valid application for any visa unless the Minister determined, under s 46A(2), that the prohibition in s 46A(1) did not apply to an application by the plaintiff. The Minister decided to consider whether to exercise his power under s 46A(2) to permit the plaintiff to apply for a protection visa. The plaintiff remained in detention for more than two years while the Minister's department inquired into the plaintiff's eligibility for such a visa. The department determined that the plaintiff satisfied the requirements for the grant of the visa. However, the Minister made no decision to permit or refuse the making of a valid application. Instead, the Minister, acting of his own motion under s 195A(2) – which gives the Minister power to grant a visa to a person in immigration detention if the Minister thinks it is in the public interest to do so – granted the plaintiff a temporary safe haven visa and a temporary humanitarian concern visa. Although the prohibition in s 46A(1) no longer applied once the plaintiff became a lawful non-citizen by reason of the grant of the visas, the grant of the temporary safe haven visa engaged a similar prohibition in s 91K. In proceedings commenced in the High Court, the plaintiff claimed that the grants of the visas were invalid and that, that being so, the Minister must determine under s 46A(2) that the plaintiff may make a valid application for a protection visa or, alternatively, determine how the s 46A(2) power will be exercised. A special case stated questions of law for determination by the Full Court. The High Court held that where a person's detention is prolonged for the purpose of considering the exercise of power under s 46A(2), other powers given by the Act do not permit the making of a decision which would foreclose the exercise of the power under s 46A(2) before a decision is made, thus depriving the prolongation of detention of its purpose. The Court quashed the decision to grant both visas and held that it was not appropriate to answer the questions stated about whether and how the Minister is bound to exercise his power under s 46A(2).
+HIGH COURT OF AUSTRALIA 17 August 2017 RAMSAY HEALTH CARE AUSTRALIA PTY LTD v ADRIAN JOHN COMPTON [2017] HCA 28 Today the High Court published reasons for dismissing an appeal on 4 May 2017 from a decision of the Full Court of the Federal Court of Australia. The appeal concerned the circumstances in which a Bankruptcy Court may “go behind” a judgment in order to be satisfied that the debt relied upon by the petitioning creditor is truly owing. A majority of the High Court held that where a creditor’s petition is based upon a judgment debt resulting from a contested hearing, yet there are substantial reasons for questioning whether behind that judgment there was in truth and reality a debt due to the petitioner, the Bankruptcy Court has a discretion to “go behind” the judgment to investigate whether the debt relied upon is truly owing. In November 2012, Ramsay Health Care Australia Pty Ltd (“Ramsay”) entered into an agreement with Compton Fellers Pty Ltd (trading as Medichoice), of which Adrian Compton was a director, for the importation and distribution of medical products. The agreement expired on 30 June 2013 and Medichoice subsequently went into liquidation. Ramsay commenced proceedings in the Supreme Court of New South Wales against Mr Compton, claiming that $9,810,312.33 was owing to it under the agreement. Mr Compton raised a defence disputing liability, but not the quantum of his indebtedness. The defence was unsuccessful, and the Court entered judgment for the amount claimed. Ramsay served a bankruptcy notice on Mr Compton requiring that he pay the judgment debt. He did not comply. On 4 June 2015, Ramsay presented a creditor’s petition in reliance upon Mr Compton’s failure to comply with the bankruptcy notice. Mr Compton applied for a separate determination of the question of whether the Bankruptcy Court should exercise its discretion to go behind the judgment to investigate the debt. Mr Compton adduced evidence suggesting that it was in fact Ramsay that owed money to Medichoice and not vice versa. The primary judge in the Federal Court declined to go behind the judgment, noting that Mr Compton’s counsel before the Supreme Court had made a forensic decision not to dispute quantum. Mr Compton appealed to the Full Court, which unanimously allowed his appeal, holding that the primary judge had erred by focussing on the way in which Mr Compton had conducted his case in the Supreme Court, rather than on the central issue of whether reason was shown for questioning whether the debt was truly owing to Ramsay, which the Court found there was. By grant of special leave, Ramsay appealed to the High Court, arguing that the power to go behind a judgment after a contested hearing exists only in the event of “fraud, collusion or miscarriage of justice” and that “miscarriage of justice” here refers only to matters impeaching the judgment such that it should never have been obtained (there being no suggestion of fraud or collusion in this case). A majority of the Court rejected that argument, relying on Wren v Mahony (1972) 126 CLR 212 as authority for the propositions that: first, the fact that a judgment was obtained without collusion or fraud after a contested hearing does not preclude the possibility of there being sufficient reason for questioning the underlying debt; and second, that “miscarriage of justice” is not limited to cases where the judgment is so tainted that it may be set aside. The Court emphasised that s 52(1) of the Bankruptcy Act 1966 (Cth) imposes an obligation on the Bankruptcy Court to be satisfied that the debt on which the petitioning creditor relies is still owing. The majority held that, in light of the evidence adduced by Mr Compton, the Full Court was correct to conclude that the Bankruptcy Court should proceed to investigate the question of whether the debt relied upon by Ramsay was owing.
+HIGH COURT OF AUSTRALIA 13 March 2013 TCL AIR CONDITIONER (ZHONGSHAN) CO LTD v THE JUDGES OF THE FEDERAL COURT OF AUSTRALIA & ANOR [2013] HCA 5 Today the High Court unanimously dismissed an application by TCL Air Conditioner (Zhongshan) Co Ltd ("TCL") for constitutional writs directed to the judges of the Federal Court of Australia. The High Court held that s 16(1) of the International Arbitration Act 1974 (Cth), which gives "the force of law in Australia" to the UNCITRAL Model Law on International Commercial Arbitration ("the Model Law"), is not invalid. TCL entered into a written distribution agreement with Castel Electronics Pty Ltd ("Castel"). The agreement provided for the submission of disputes to arbitration. Following an arbitration, awards were made which required TCL to pay Castel a sum of money ("the awards"). In default of payment, Castel applied to the Federal Court for enforcement of the awards in accordance with Art 35 of the Model Law. In separate proceedings instituted in the High Court, TCL applied for an order restraining the judges of the Federal Court from enforcing the awards, and for an order quashing decisions of that Court in relation to the awards. TCL submitted that the Model Law provided for the exercise of the judicial power of the Commonwealth in a manner contrary to Ch III of the Constitution. Under the Model Law, the Federal Court has no power to refuse to enforce an arbitral award on the ground that an error of law is apparent on the face of the award. TCL argued that consequently, the jurisdiction conferred on the Federal Court under the Act requires that Court to act in a manner which substantially impairs its institutional integrity. Further, the Model Law was said to vest the judicial power of the Commonwealth in arbitral tribunals. The High Court unanimously dismissed the application.
+HIGH COURT OF AUSTRALIA 5 December 2018 THE REPUBLIC OF NAURU v WET040 [2018] HCA 60 Today, the High Court unanimously allowed an appeal from a decision of the Supreme Court of Nauru, holding that the Refugee Status Review Tribunal ("the Tribunal") had not erred in dismissing the respondent's application to be recognised as a refugee or as person owed complementary protection by the Republic of Nauru ("Nauru") under the Refugees Convention Act The respondent is an Iranian national who arrived in Nauru in January 2014. In his Refugee Status Determination application, he claimed to have married in 2010, and that the first two years of his marriage were relatively problem free. Some five or six months before he left Iran, he discovered, for the first time, that his wife had previously married and divorced. He claimed that his wife's family then took a number of steps to induce him not to divorce his wife, including pouring acid on his car. He claimed that his father-in-law was using his connections to a state paramilitary organisation to have him followed. The respondent claimed to fear that, if returned to Iran, he would be detained, imprisoned, tortured, attacked with acid or killed, either through the justice system at his father-in-law's behest or extra judicially by his brothers-in-law, and that there was no place in Iran where he would be safe. The Secretary of the Department of Justice and Border Control ("the Secretary") rejected the respondent's application. On his application to the Tribunal for review of the Secretary's determination, the respondent claimed, for the first time, that the main reasons he fled Iran and feared returning were: that he would be perceived as having a political and religious opinion that was anti-government, anti-regime and anti-Islamic; that his status as a failed asylum seeker would further be seen as reflecting his imputed anti-regime sentiments; and that he would be prejudiced because of his lack of religious beliefs and his ethnicity as an Azeri Turk. He also made new claims about his wife's family. The Tribunal rejected the respondent's claims and affirmed the Secretary's determination, holding that there were good reasons to doubt the truth of the respondent's claims concerning the enmity of his wife's family towards him. The respondent appealed to the Supreme Court, which allowed his appeal on the basis that the Tribunal had erred by finding that certain claimed events were "implausible" without any rational basis and without pointing to "basic inconsistencies in the evidence", or "probative material" or "independent country information". The appellant appealed as of right to the High Court, arguing that the Tribunal had not failed to give adequate reasons for their decision. The High Court unanimously held that the Supreme Court's reasoning was erroneous. The Tribunal had provided sufficient reasons for why it found the respondent's account of events to be implausible. The Tribunal's conclusions were not speculative or matters of conjecture or unsupported by basic inconsistencies but were the result of logical inferences grounded in the inherent improbability of the respondent's account of events and in the fact that his claims had shifted from time to time.
+HIGH COURT OF AUSTRALIA 15 February 2023 UNIONS NSW & ORS v STATE OF NEW SOUTH WALES [2023] HCA 4 Today, the High Court answered questions in a special case concerning whether ss 29(11) and 35 of the Electoral Funding Act 2018 (NSW) ("the EF Act") were invalid under the Constitution because they impermissibly burdened the implied freedom of political communication. The EF Act, among other things, provides for the capping of electoral expenditure for election campaigns in NSW. The plaintiffs were registered third-party campaigners ("TPCs") under the EF Act, defined broadly as a person or entity, other than a political party, elected member or candidate, who seeks to participate in an election campaign and incurs over $2,000. Section 29(11) capped electoral expenditure by TPCs before a State by-election for the Legislative Assembly to $20,000 (indexed to inflation). The parties accepted that s 29(11) imposed an effective and direct burden on political communication and that the State of NSW bore the persuasive onus of establishing that the burden was justified. After the Court reserved its decision, the State informed the High Court that the NSW Joint Standing Committee on Electoral Matters had delivered a report to Parliament that recommended the expenditure cap in s 29(11) be increased to $198,750. In light of that report, the State conceded that the answer to Question 1 in the special case (which asked whether s 29(11) was invalid) should be answered "Yes". By majority, the High Court answered Question 1 that way, holding that the law was invalid because the State did not seek to justify, and had not justified, the burden that s 29(11) imposed on political communication. The plaintiffs had a sufficient interest to seek that relief because s 29(11) remained a purported law of NSW affecting their expenditure in future by-elections. Section 35 created an offence, applicable only to TPCs, to act in concert with another person or persons to incur electoral expenditure that exceeded the cap applicable to the TPC for the election. Two weeks before the hearing, the Parliament repealed s 35. The plaintiffs sought a declaration that s 35, as it stood from 1 July 2018 to 2 November 2022, was invalid. The amended questions in the special case asked whether the Court had jurisdiction to determine the validity of s 35 and, if so, whether it should in its discretion hear and determine the question. The High Court unanimously held that there was no longer a "matter" within federal jurisdiction with respect to the purported invalidity of s 35, because the plaintiffs did not have standing to seek a declaration of invalidity following its repeal. The plaintiffs did not demonstrate that they had a sufficient interest to seek a declaration or that there would be any foreseeable consequences from the grant of a declaration.
+HIGH COURT OF AUSTRALIA 4 November 2020 GBF v THE QUEEN [2020] HCA 40 Today, the High Court unanimously allowed an appeal from the Court of Appeal of the Supreme Court of Queensland ("the QCA"). The appeal concerned whether a statement made by a trial judge to a jury about an accused's failure to give evidence occasioned a miscarriage of justice. An indictment presented in the District Court of Queensland charged the appellant in seven counts with sexual offences alleged to have been committed against his half-sister ("the complainant") when she was aged 13 and 14 years. The prosecution case was wholly dependent upon acceptance of the complainant's evidence. The appellant did not give or call evidence. The trial judge directed the jury in unexceptional terms with respect to the presumption of innocence and the onus and standard of proof, instructing the jury that the appellant's silence could not be used as a makeweight, to fill gaps in the prosecution's evidence or to strengthen its case. However, later in the trial judge's charge, after referring to the complainant's evidence, his Honour instructed the jury to: "bear in mind that [the complainant] gave evidence and there is no evidence, no sworn evidence, by the [appellant] to the contrary of her account. That may make it easier" ("the impugned statement"). The jury returned verdicts of guilty with respect to six counts. The appellant challenged his convictions in the QCA, contending that, in effect, the impugned statement was a direction to the jury that the absence of evidence from him might make it easier to find him guilty. The QCA acknowledged that the impugned statement should not have been made but found that there was no real possibility: (1) that the jury may have misunderstood the earlier correct directions; and (2) that the appellant had been deprived of a real chance of acquittal. Their Honours held that the impugned statement had not occasioned a miscarriage of justice. This conclusion took into account the fact that neither the prosecutor nor defence counsel applied for any redirection arising from the making of that statement. By grant of special leave, the appellant appealed to the High Court. The Court accepted his submission that the effect of the impugned statement was to invite the jury to engage in a process of reasoning that was contrary to the earlier correct directions. The impugned statement encouraged the jury to find it easier to accept the complainant's allegations because the appellant had not given sworn evidence denying them. Such a process of reasoning is false because it proceeds upon a view that an accused may ordinarily be expected to give evidence, which is insupportable in an accusatorial system of criminal justice. It followed that the QCA was wrong in finding that the impugned statement was not an irregularity amounting to a miscarriage of justice. Further, as the impugned statement had the capacity to affect the jury's assessment of the complainant's evidence it was not open to find, and indeed the respondent appropriately did not contend, that the proviso, which permits the Court to dismiss an appeal against conviction if it considers that no substantial miscarriage of justice has actually occurred, had been engaged. Accordingly, the Court allowed the appeal, set aside the appellant's convictions and ordered that a new trial be had.
+HIGH COURT OF AUSTRALIA Manager, Public Information 21 April 2010 REEMA TABET (BY HER TUTOR GHASSAN SHEIBAN) v MAURICE GETT [2010] HCA 12 The law of negligence does not provide for compensation where negligence causes a plaintiff to lose only a less than 50 per cent chance of a better medical outcome, the High Court held today. At six years old the appellant was suffering from headaches, nausea and vomiting and was admitted to hospital under the care of the respondent. At trial, the respondent was found negligent in not ordering a CT scan after a particular incident. The day after the incident, the appellant suffered a seizure. A CT scan on that day revealed that the appellant had a brain tumour. The appellant suffered irreversible brain damage, 25 per cent of which was caused by the increased intracranial pressure between the time the scan should have been ordered and it being undertaken. Due to the appellant's age, she brought an action in negligence against the respondent through her tutor, her uncle, in the Supreme Court of New South Wales. The trial judge was not satisfied that the respondent's negligence caused, on the balance of probabilities, any part of the appellant's brain damage; rather, if a scan had been administered when it should have been, there was only a 40 per cent chance that she would have avoided some of the brain damage she suffered. Finding that such a loss of chance constituted "damage" for the purposes of the law of negligence, the trial judge awarded the appellant compensation proportional to that lost chance. The Court of Appeal of the Supreme Court of New South Wales upheld the respondent's appeal, finding that the loss of a 40 per cent chance of a better medical outcome did not constitute the required "damage" for a cause of action in negligence. Accordingly, the appellant had not proved on the balance of probabilities that the negligence of the respondent caused her damage and the respondent, therefore, was not liable. On appeal to the High Court, the appellant argued that a loss of a chance of a better medical outcome should be considered as "damage" giving rise to a cause of action in negligence. The High Court held that to allow a plaintiff to recover compensation in negligence actions for only the loss of a chance of a better medical outcome would diminish the requirement for a plaintiff to prove on the balance of probabilities that his or her damage was caused by the negligence of the defendant and extend liability too far in medical negligence cases. The appeal was dismissed with costs.
+HIGH COURT OF AUSTRALIA 12 October 2016 CUNNINGHAM & ORS v COMMONWEALTH OF AUSTRALIA & ANOR [2016] HCA 39 Today the High Court unanimously held that amendments to the Parliamentary Contributory Superannuation Act 1948 (Cth) ("the Superannuation Act") and the Remuneration Tribunal Act 1973 (Cth) ("the Remuneration Tribunal Act") and certain Determinations made by the Remuneration Tribunal did not constitute an acquisition of property otherwise than on just terms within the meaning of s 51(xxxi) of the Constitution. The Court further held, by majority, that the enactment of and subsequent amendment to the Members of Parliament (Life Gold Pass) Act 2002 (Cth) ("the Life Gold Pass Act") also did not constitute an acquisition of property otherwise than on just terms. The Superannuation Act provides for the payment of certain "retiring allowances" to retired members of Parliament. Prior to 2011, the method of calculating retiring allowances was by reference to a fixed percentage of the parliamentary allowance for the time being payable to members of Parliament. Another benefit historically provided to retired members of Parliament was the "Life Gold Pass", which provided for domestic travel at Commonwealth expense. In 1976, the relevant Minister requested the Remuneration Tribunal enquire into the matter of the Life Gold Pass. Since that time, the Remuneration Tribunal has altered the benefits conferred by the Life Gold Pass a number of times. Each of the four plaintiffs served as a member of the House of Representatives of the Commonwealth Parliament for not less than eight years between 1969 and 2001. Three of the plaintiffs also held parliamentary offices and two were Ministers of State. On ceasing to serve as a member of Parliament, each of the plaintiffs became entitled to various retiring allowances under the Superannuation Act. Two of the plaintiffs were also entitled to a Life Gold Pass. In 2011 and 2012, amendments were made to the Superannuation Act and the Remuneration Tribunal Act, which enabled the Remuneration Tribunal to determine that a proportion of the amount paid to current members of Parliament would be excluded from the amount of "parliamentary allowance" for the purposes of calculating the retiring allowances ("retiring allowance amendments"), and the Remuneration Tribunal subsequently did so ("the Determinations"). In 2002 the Life Gold Pass Act was enacted, which restricted a holder of a Life Gold Pass, other than a former Prime Minister, to 25 domestic return trips per annum, and an amendment in 2012 reduced the number of trips to 10 per annum. The parties stated a special case and questions of law arising for the opinion of the Full Court. The questions of law included whether the retiring allowance amendments, the Determinations, and the enactment of and amendment to the Life Gold Pass Act, constitute or authorise an acquisition of property otherwise than on just terms, within the meaning of s 51(xxxi) of the Constitution. The High Court unanimously held that the retiring allowance amendments were not laws with respect to the acquisition of property, nor did the Determinations constitute an acquisition of property. A majority of the Court held that the entitlements to retiring allowances were inherently liable to variation, because the rights stipulated in the Superannuation Act depended for their content upon the will of the Parliament as exercised from time to time. As such, the variation effected by the amendments and the Determinations could not properly be described as an acquisition of property. The High Court further held, by a majority, that the Life Gold Pass Act and its subsequent amendment were similarly not laws with respect to the acquisition of property.
+HIGH COURT OF AUSTRALIA 13 November, 2003 ATTORNEY-GENERAL FOR THE STATE OF WESTERN AUSTRALIA AND THE STATE OF WESTERN AUSTRALIA v LAURENCE BERNHARD MARQUET (CLERK OF THE PARLIAMENTS OF WESTERN AUSTRALIA) (two matters) Two pieces of legislation aimed at changing Western Australia’s electoral laws could not be presented to the WA Governor for assent as neither Bill was passed by an absolute majority of all Legislative Council members, the High Court of Australia held today, confirming a decision of the Supreme Court of WA. On 19 and 20 December, 2001, the Electoral Distribution Repeal Bill and Electoral Amendment Bill were passed by a majority of Legislative Council members present, but not by an absolute majority. The Bills had already been passed by an absolute majority of the Legislative Assembly. The first Bill would have repealed the Electoral Distribution Act 1947 which currently provides for the drawing of electoral boundaries for both houses of the WA Parliament. Section 13 of the Act, a “manner and form” provision, stated the Act could not be amended unless a Bill had concurrence of an absolute majority of both houses. The second Bill would have inserted a new electoral boundaries’ regime into the Electoral Act to reduce the disparity between voter numbers in various electorates and would have increased the number of Legislative Council members from 34 to 36. On 21 December, Mr Marquet began proceedings in the WA Supreme Court seeking declarations about the lawfulness of presenting each Bill to the Governor for assent. Each Bill was the subject of separate proceedings. The proceedings were referred to a specially constituted five-member Full Court of the Supreme Court, which decided by a 4-1 majority that the Bills could not be lawfully presented. The WA Attorney-General and the State of WA then sought special leave to appeal to the High Court. The special leave application was referred by a Full Court of three Justices to an enlarged Bench and argued as on appeal. In the High Court, those who had argued in the Full Court that the Bills were not validly passed (including political parties and rural groups) appeared to present arguments against the validity of the Bills. The Attorneys-General for the Commonwealth, Queensland and New South Wales also appeared. The High Court granted special to leave to appeal in each matter, but by a 5-1 majority dismissed each appeal. It held that “amend” in section 13 of the Electoral Distribution Act included “repeal” and held that compliance with section 13 was mandatory. Because each Bill was a law in respect of the constitution of a state parliament, section 6 of the Australia Act 1986 required compliance with manner and form provisions. It also held that section 2(3) of WA’s Acts Amendment Act 1978, stating that every Bill after its passage through both houses shall be presented to the Governor for assent, did not impliedly repeal section 13, as “passage” meant “due passage” or “passage in accordance with applicable requirements”.
+HIGH COURT OF AUSTRALIA 16 May 2014 ADCO CONSTRUCTIONS PTY LTD v GOUDAPPEL & ANOR [2014] HCA 18 Today the High Court unanimously allowed an appeal from a decision of the Court of Appeal of the Supreme Court of New South Wales. The High Court held that a regulation was validly made under a power to make savings and transitional regulations having the effect of amending the Workers Compensation Act 1987 (NSW) ("the WCA") and that the regulation extinguished Ronald Goudappel's entitlement to permanent impairment compensation under the WCA. On 17 April 2010, Mr Goudappel, an employee of ADCO Constructions Pty Ltd ("ADCO"), was injured at work and became entitled under the WCA to receive compensation from ADCO. He made a claim for compensation on 19 April 2010 ("the initial claim"). He was later assessed as having a six percent permanent impairment with respect to the injuries he sustained. On 20 June 2012, he made a specific claim for permanent impairment compensation. ADCO's workers compensation insurer declined liability for permanent impairment compensation, on the basis that amendments to the WCA, introduced by the Workers Compensation Legislation Amendment Act 2012 (NSW) ("the Amendment Act"), applied to Mr Goudappel's claim. The amendments limited the entitlement to permanent impairment compensation to workers who had suffered injury resulting in permanent impairment exceeding ten percent. If applicable to Mr Goudappel's claim, the amendments would have had the effect that he had no entitlement to permanent impairment compensation. However, the Amendment Act's savings and transitional provisions protected the entitlements of workers who had claimed permanent impairment compensation before 19 June 2012 from the disentitling effect of the amendments. It was accepted in the High Court that Mr Goudappel's initial claim covered any entitlement to permanent impairment compensation. Notwithstanding that, ADCO argued that the protection conferred by the Amendment Act's savings and transitional provisions was displaced by a transitional regulation made pursuant to those provisions. The transitional regulation was said to extend the disentitling operation of the amendments to claims for compensation made before 19 June 2012, except for claims which "specifically sought" permanent impairment compensation. The Court of Appeal held that the transitional regulation did not apply to extinguish Mr Goudappel's entitlement to permanent impairment compensation. By special leave, ADCO appealed to the High Court. Allowing the appeal, the High Court held that the transitional regulation was valid and applied to extinguish Mr Goudappel's entitlement to permanent impairment compensation. Mr Goudappel's initial claim was not a claim which "specifically sought" permanent impairment compensation. The regulation could not be interpreted so as to avoid its application to his entitlement.
+HIGH COURT OF AUSTRALIA 2 October 2012 JOHN ANDREW HENRY FORREST v AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION & ANOR FORTESCUE METALS GROUP LTD v AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION & ANOR [2012] HCA 39 Today the High Court unanimously held that Fortescue Metals Group Ltd and Andrew Forrest did not contravene the Corporations Act 2001 (Cth) in connection with public statements about agreements Fortescue made with three Chinese state-owned entities to build, finance and transfer the railway, port and mine components of Fortescue's proposed Pilbara Iron Ore and Infrastructure Project in Western Australia. Each of the agreements was headed "Framework Agreement" and was four pages long. Each agreement recorded that it was to become binding upon approval by the parties' respective boards, and that the parties were jointly to agree and develop further general conditions of contract at a later date. The parties' boards approved the agreements. Fortescue and Mr Forrest, as Fortescue's chairman and chief executive, made public statements that Fortescue had entered into a "binding contract" with each of the Chinese entities to build, finance and transfer the relevant construction works. In March 2006, ASIC commenced proceedings in the Federal Court of Australia alleging that because the agreements would not be enforceable under Australian law, Fortescue had therefore engaged in misleading or deceptive conduct when Fortescue and Mr Forrest represented that the agreements were "binding". ASIC further alleged that Fortescue and Mr Forrest had contravened the continuous disclosure requirements of the Corporations Act by not correcting the false or misleading information and that Mr Forrest had failed to discharge his duties as a director of Fortescue with the degree of care and diligence required by s 180(1). The trial judge dismissed ASIC's claims, but the Full Court of the Federal Court allowed ASIC's appeal and made declarations that Fortescue had engaged in misleading or deceptive conduct and contravened its continuous disclosure obligations and that Mr Forrest had contravened his continuous disclosure obligations and directors' duties. In particular, the Full Court concluded that, because the agreements would not be enforceable under Australian law, it was misleading or deceptive to describe them as "binding" contracts. By special leave, Fortescue and Mr Forrest appealed to the High Court. The High Court unanimously allowed the appeal. Four members of the Court held that the statements made by Fortescue and Mr Forrest represented to those hearing or reading them that Fortescue and the Chinese state-owned entities had entered into agreements that each intended to be binding. This representation was neither false nor misleading. There was no evidential basis for assuming that a person hearing or reading these statements would understand that the parties had entered into agreements that would be enforced by an Australian court according to Australian law should a dispute ever arise between them. Because the statements were neither misleading nor deceptive, the Court further found that Fortescue and Mr Forrest had not failed to meet their obligations under the Corporations Act. The Court therefore set aside the Full Court's decision and declarations and reinstated the primary judge's decision that Fortescue and Mr Forrest had not contravened the Corporations Act.
+HIGH COURT OF AUSTRALIA Public Information Officer 31 July 2008 W.R. CARPENTER HOLDINGS PTY LIMITED v COMMISSIONER OF TAXATION W.R. CARPENTER AUSTRALIA PTY LIMITED v COMMISSIONER OF TAXATION Two companies which allegedly owe income tax in relation to various international transactions could not compel the Commissioner to provide certain information which they sought in connection with their appeals against their tax bills, the High Court of Australia held today. The WR Carpenter companies are members of Perth businessman Ric Stowe’s Griffin Group of companies. The group disputed 44 income tax assessment notices issued by the Australian Tax Office (ATO) in 2004 to seven members of the group in respect of income between 1986 and 2002, following an audit of the group. Decisions on 42 assessments are pending in the Administrative Appeals Tribunal. With the other two, both involving international transactions, the Carpenter companies instituted proceedings in the Federal Court of Australia by way of appeal under the Taxation Administration Act (TAA). Those appeals are also still pending. Carpenter Holdings claimed that an assessment for 1986-87 was excessive while Carpenter Australia disputed the assessment for 1992-93. The 1987 assessment concerned a transaction in which Carpenter Holdings sold to the Cyprus-based Griffin company, Carpenter Holdings International Limited (CHIL), shares in other companies in the group. The cost was $129 million of which $79 million was to be paid after 15 years. CHIL was not charged any interest. The ATO deemed the interest that would have been due over that period was $167.3 million, including $17.9 million for 1986-87. The 1993 assessment involved loans by Carpenter Australia to a group company based in the United States. No interest was charged and the loans were written off in the 1993 and 1994 years. The ATO deemed total interest payable as $4.77 million, including $986,180 in 1992-93. It said tax was owed on both transactions as neither was carried out “at arm’s length”. Under the TAA, the companies had the burden of proving that assessments were excessive. By motions filed in the Federal Court on 19 May 2006, the Carpenter companies sought orders that the ATO provide certain particulars of matters taken into account in determinations that sections 136AD(1) or 136AD(2) of the Income Tax Assessment Act should apply to the international transactions so as to produce the interest deemed or imputed to have been paid to the companies. The motions were dismissed by Justice Kevin Lindgren on 20 September 2006. The ATO had already filed a statement outlining its contentions and the facts and issues in the case. Appeals to the Full Court against Justice Lindgren’s ruling were dismissed on 11 July 2007. The companies appealed to the High Court. The Court unanimously dismissed the appeals. It held that the requests for information made by the companies were not directed to any issue that arose in the appeals and that provision of the information as requested was neither necessary nor appropriate for the resolution of the issues in the appeals.
+HIGH COURT OF AUSTRALIA 17 August 2022 NATHANSON v MINISTER FOR HOME AFFAIRS & ANOR [2022] HCA 26 Today, the High Court unanimously allowed an appeal from the Full Court of the Federal Court of Australia. The appeal concerned the question of whether the Administrative Appeals Tribunal's denial of procedural fairness to the appellant was material, in that it deprived the appellant of a realistic possibility that the decision made by the Tribunal could have been different if a fair hearing had been provided, so as to give rise to jurisdictional error. In 2018, the appellant's visa was mandatorily cancelled by a delegate of the then Minister for Home Affairs pursuant to s 501(3A) of the Migration Act 1958 (Cth). Another delegate of the Minister made a decision, pursuant to s 501CA(4), not to revoke the cancellation of the visa. The appellant applied to the Tribunal for a review of the delegate's decision. The Tribunal affirmed the decision to refuse to revoke the visa cancellation. In making its decision, the Tribunal was required to comply with the Minister's direction known as "Ministerial Direction 79". That Direction prescribed as a factor for consideration (in assessing the "primary consideration" of the protection of the Australian community from criminal or other serious conduct) "[t]he principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed". It was not in dispute that the Tribunal denied the appellant procedural fairness in that the Tribunal misled the appellant in relation to the significance of certain changes brought about by Ministerial Direction 79 to the considerations applicable to the Tribunal's decision, and in that the appellant was not given an opportunity to give or adduce evidence or to make submissions on the way in which two domestic violence incidents should have affected the Tribunal's consideration of the primary consideration of the protection of the Australian community. In proceedings for judicial review of the Tribunal's decision, the Federal Court at first instance, and a majority of the Full Federal Court on appeal, found that the denial of procedural fairness affecting the Tribunal's decision was not material, and so did not constitute jurisdictional error. The High Court unanimously found that the denial of procedural fairness was material, and so did constitute jurisdictional error. In reaching that finding, a majority of the Court held that in many, if not most, cases where an applicant has been deprived of a chance to make submissions on a topic of relevance, reasonable conjecture from established facts about the decision-making process will readily show a reasonable possibility that the outcome would have been different. In the appellant's case, additional evidence and submissions directed to mitigating the significance of the evidence of domestic violence could realistically have affected the outcome of the Tribunal's review. There was no need for the appellant to establish the nature of any additional evidence or submissions that might have been presented at the Tribunal hearing, had that hearing been procedurally fair.
+HIGH COURT OF AUSTRALIA Public Information Officer 18 May 2006 NICHOLAS TERRENCE FISH AND NISHA NOMINEES PTY LIMITED v SOLUTION 6 HOLDINGS LIMITED, SOLUTION 6 PTY LIMITED, NEVILLE BUCH, NEIL GAMBLE AND INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES The jurisdiction of the Industrial Relations Commission of New South Wales did not extend to a review of the terms of a share acquisition agreement, the High Court of Australia held today. Mr Fish controlled Nisha Nominees which owned FishTech and Partners, an information technology company. In 2000, Nisha sold FishTech to Solution 6 Holdings for $19 million in shares in Solution 6 at an issue price of $9.75 per share. The share purchase agreement also provided that Mr Fish would work for Solution 6 Holdings’ subsidiary, Solution 6 Pty Ltd, as executive manager – enterprise integration services. When the share purchase agreement was executed, Solution 6 shares were trading at $13.30, but by the time of completion the share price had dropped to about $3. In November 2001, Mr Fish’s employment was terminated. He and Nisha applied to the IRC seeking orders under Part 9 of Chapter 2 of the Industrial Relations Act declaring the share purchase agreement to have operated in an unfair, harsh and unconscionable manner and contrary to the public interest, and seeking orders varying that agreement to provide Mr Fish with the difference between the current price of the Solution 6 shares and the issue price of $9.75. The Solution 6 companies and Mr Buch and Mr Gamble, two directors of those companies, successfully applied to the NSW Court of Appeal for an order prohibiting the IRC from taking steps to exercise its powers regarding the share purchase agreement. Mr Fish and Nisha appealed to the High Court. The principal question for the Court was whether the Court of Appeal was right to hold that the share purchase agreement was not a contract of a kind in respect of which the IRC could exercise its powers under the IR Act. The High Court, by a 5-2 majority, upheld the Court of Appeal’s decision and dismissed the appeal. Section 106(1) of the Act provides that the IRC may make an order declaring wholly or partly void, or varying, any contract whereby a person performs work in any industry if the IRC finds the contract is unfair. The agreement in question was not a contract whereby Mr Fish performed work in an industry.
+HIGH COURT OF AUSTRALIA 12 March 2009 Manager, Public Information GLEN ANDREW JOSEPH HICKSON v GOODMAN FIELDER PTY LTD Today the High Court decided that Glen Hickson may apportion the amount of workers’ compensation payments he must repay to Goodman Fielder to the same extent that damages he recovered through settling a negligence claim may have been reduced because he contributed to the cause of his injury. In 2003 Mr Hickson suffered serious injury after colliding with a car while riding his push bike from work. He settled a claim for damages against the driver of the car for an amount of $2.8 million on 6 June 2006. As the collision happened on Mr Hickson’s way from work he was also entitled to receive workers’ compensation payments from his employer, Goodman Fielder. Prior to settling his damages claim, Mr Hickson received $607,315.43 from Goodman Fielder in workers’ compensation. The law in New South Wales provides that a person who first receives workers’ compensation payments and then damages for the same injury must repay the workers’ compensation payments to his or her employer. It also provides that if the amount of damages received by the injured person has been reduced to take account of that person’s contributory negligence, then the amount repayable to the employer should be reduced to the same extent that the damages had been reduced. On 7 June 2006 Goodman Fielder filed a claim in the NSW District Court for repayment of the $607,315.43 it had paid to Mr Hickson in workers’ compensation. Mr Hickson responded that the amount he had received in settlement of his damages claim had been reduced because his actions had contributed to his injury. He argued that the amount he should repay to Goodman Fielder ought to be reduced to the same extent as his damages had been reduced. Goodman Fielder in turn argued that as Mr Hickson’s damages claim had been settled there was no court record to establish how the damages of $2.8 million had been calculated. The parties asked a District Court judge to decide whether the law concerning the reduction of workers’ compensation payments to be repaid to an employer applies when a damages claim is settled and there is no court determination about contributory negligence or the calculation of the damages. If the judge answered “yes” to that question the parties also wanted the judge to decide whether the District Court could hear evidence concerning the extent to which the amount recovered by Mr Hickson when his damages claim was settled had been reduced because of his contributory negligence, the degree of his contributory negligence and the calculation of the damages he would have been likely to recover if there had been no reduction for contributory negligence. The District Court judge answered “yes” to all of those questions. Goodman Fielder appealed to the NSW Court of Appeal which held, by majority, that the answer to the first question ought to have been “no”, in which case the following questions did not need to be answered. Mr Hickson appealed to the High Court and today the High Court unanimously held that the District Court judge’s answers to the questions raised by the parties should be reinstated and that Goodman Fielder’s appeal to the NSW Court of Appeal should be dismissed. The fact that there may have to be “a trial within a trial” - to determine what damages were recoverable by Mr Hickson, whether his actions had contributed to causing his injury and the extent of the reduction of any damages because of his contributory negligence - was not a reason to prevent Mr Hickson from being able to reduce the amount he must repay to Goodman Fielder to the same extent that the damages he recovered had been reduced because of his contributory negligence.
+HIGH COURT OF AUSTRALIA 6 September 2017 THE QUEEN v AARON JAMES HOLLIDAY [2017] HCA 35 Today the High Court unanimously dismissed an appeal from the Court of Appeal of the Supreme Court of the Australian Capital Territory. The High Court held that it was not possible to convict the respondent, Holliday, of inciting another person to procure a third person to commit a criminal offence under the Criminal Code 2002 (ACT). Holliday was in custody pending sentence for sexual offences. The prosecution alleged that, while in custody, Holliday offered another inmate, Powell, a reward for organising people outside prison to kidnap two witnesses, to force the witnesses to adopt a statement prepared by Holliday that was designed to exculpate him of the offences, and then to kill the witnesses. Powell did not go through with the plan and reported Holliday. Holliday was tried on indictment before a judge and jury in the Supreme Court of the Australian Capital Territory on five counts. Counts 4 and 5 charged that Holliday "committed the offence of incitement in that he urged [Powell] to kidnap" each witness contrary to s 47 of the Criminal Code and s 38 of the Crimes Act 1900 (ACT). However, at trial, the prosecution did not allege that Holliday urged Powell to commit the kidnappings personally. The prosecution case was that Holliday urged Powell to procure a third person to commit the kidnappings. Holliday was convicted on these counts. He appealed to the Court of Appeal, which set aside the verdicts and entered verdicts of not guilty on counts 4 and 5. By grant of special leave, the prosecution appealed to the High Court. The High Court unanimously dismissed the prosecution's appeal. The principal issue was whether Holliday could be convicted of an offence – specifically, an offence of inciting the commission of an offence – by urging Powell to procure a third person to commit the substantive offence of kidnapping. The Court held that, at least in circumstances where no offence of kidnapping was committed, Holliday could not be convicted of urging Powell to commit the offence of kidnapping contrary to s 47 of the Criminal Code. A majority of the High Court reached that conclusion on the basis that in order for a person to be convicted of an offence of incitement under s 47 of the Criminal Code, that person must have urged the commission of a discrete offence. The majority concluded that procuring the commission of an offence is not a discrete offence under the Criminal Code.
+HIGH COURT OF AUSTRALIA 9 March 2005 MINISTER FOR EMPLOYMENT AND WORKPLACE RELATIONS v GRIBBLES RADIOLOGY PTY LTD AND HEALTH SERVICES UNION OF AUSTRALIA GRIBBLES RADIOLOGY PTY LTD v HEALTH SERVICES UNION OF AUSTRALIA AND MINISTER FOR EMPLOYMENT AND WORKPLACE RELATIONS Gribbles Radiology was not the successor to a business so was not bound to pay severance pay to employees of that other business, the High Court of Australia held today. Region Dell Pty Ltd operated a number of medical clinics including the Moorabbin Heritage Clinic in Melbourne. At some of those clinics it licensed part of the premises to radiology practices. Region Dell provided radiology equipment and the practice provided radiographers and consumables. At Moorabbin it licensed Gribbles in 1999 after the Melbourne Diagnostic Imaging Group licence ended. Gribbles obtained MDIG’s permission to contact its Moorabbin staff and four radiographers accepted its offer of continued employment on the same award conditions, but in 2000 Gribbles closed its practice at Moorabbin and terminated the radiographers’ employment. The Health Services Union claimed Gribbles owed severance pay to the radiographers based on their years of service with MDIG and its predecessor Southern Radiology. Both MDIG and Southern Radiology were parties to the Health Services Union of Australia (Private Radiology – Victoria) Award 1993, but Gribbles was not. If Gribbles were a successor to MDIG then section 149(1)(d) of the Workplace Relations Act provided that it was bound by the award. The union brought proceedings against Gribbles in the Federal Court of Australia for its alleged failure to pay severance pay in accordance with the award and claimed penalties for breaching the award. The Court ordered Gribbles to pay the severance pay plus interest and a $50 penalty to the union. The Full Court of the Federal Court dismissed the appeal. Gribbles and the Minister, who had intervened in the Federal Court proceedings, each appealed to the High Court. The High Court, by a 4-1 majority, allowed the appeals. It held that Gribbles was not a successor to any part of the MDIG business so was not bound by the award. Apart from contacting MDIG about recruiting staff, there was no evidence of any dealing between MDIG and Gribbles about Gribbles taking over the Moorabbin practice. No assets, tangible or intangible, were sold or transferred from MDIG to Gribbles. Gribbles did not negotiate with MDIG to take over the practice at Moorabbin but negotiated with Region Dell about the licence agreement. Both Gribbles and MDIG used Region Dell’s equipment and premises and each had a separate licence from Region Dell. The fact that both conducted the same business activity – operating radiology practices – was not enough to satisfy section 149(1)(d).
+HIGH COURT OF AUSTRALIA 25 May 2005 PALGO HOLDINGS PTY LTD (trading as CASH COUNTERS BYRON) v KELVIN GOWANS, A PUBLIC OFFICER ON BEHALF OF DIRECTOR-GENERAL OF DEPARTMENT OF FAIR TRADING Lending money with goods provided as security was not necessarily pawnbroking, the High Court of Australia held today. Palgo was charged in the New South Wales Local Court at Lismore with carrying on business as a pawnbroker in Byron Bay without a licence in 2001 and was fined $6,000. It made short-term loans, usually for seven days, of small amounts. Loans were secured by the borrower transferring title in the goods to Palgo. The schedule of terms referred to in the bill of sale/goods mortgage document required the borrower to keep the mortgaged property in their possession and to have insurance. In eight cases in which evidence was given to the Lismore Local Court the goods were left with Palgo, except for one case where a car was provided as security. The documents recorded the location of the goods in seven cases as being in storage at the borrower’s request. Sometimes borrowers were told this was necessary and sometimes they assumed they had to leave their goods. Palgo said keeping the goods on its premises meant they were covered by its insurance policy. Its appeals to the Supreme Court and the Court of Appeal against the conviction and fine were dismissed. Both Courts held that mortgages of chattels could also be characterised as pawnbroking transactions. They held that if the meaning of pawned goods did not embrace all transactions in which a lender had possession of goods as security it would defeat the purposes of the Pawnbrokers and Second-had Dealers Act. Palgo appealed to the High Court. The Court held that pledges or pawns (the terms are interchangeable) could not include mortgages, and transactions cannot be a combined pledge and mortgage. Nothing in the Act allows scope for arguing that pawned goods include goods that are the subject of other forms of security transaction. Pawn and pledge refer to a bailment of personal property as security for a debt, distinct from a chattel mortgage, and one kind of transaction cannot be treated as being subsumed in the other. The Court held that because the transactions were mortgages of chattels they were bills of sale, regulated by the Bills of Sale Act rather than the Pawnbrokers Act. The Court held that there was no basis for reading the definition of pawnbroker as extending to a business embracing all kinds of transaction in which a lender of money takes possession or custody of goods. Palgo’s business fell outside the definition. The Pawnbrokers Act was one just one of several Acts regulating provision of credit. The presence of such other statutes reveals no reason to read the Pawnbrokers Act as designed to cover a field wider than its own words mark out. The Court, by a 4-1 majority, allowed the appeal.
+HIGH COURT OF AUSTRALIA Public Information Officer 2 February 2009 REGGIE WURRIDJAL, JOY GARLBIN AND BAWINANGA ABORIGINAL CORPORATION v THE COMMONWEALTH OF AUSTRALIA AND ARNHEM LAND ABORIGINAL LAND TRUST Proper provision had been made for compensation of Aboriginal organisations and people in the Northern Territory where property rights had been affected by the Commonwealth’s NT intervention laws, the High Court of Australia held today. In August 2007, the federal government introduced a package of legislation designed to support an emergency response to deal with sexual abuse of Aboriginal children in the NT, along with alcohol and drug abuse, pornography and gambling. The response included improving living conditions and reducing overcrowding by building houses and providing other facilities and infrastructure. To do this the government took control of certain townships for a limited period. Under the Northern Territory National Emergency Response Act (NER Act), five-year leases were created over Aboriginal land, communities and town camps. Any pre-existing right, title or interest in land was preserved and provision made for compensation to be paid where required by section 51(xxxi) of the Constitution. Section 51(xxxi) gives Parliament power to make laws for the acquisition of property on just terms from any State or person for any purpose in respect of which Parliament has power to make laws. The Families, Community Services and Indigenous Affairs and Other Legislation Amendment (Northern Territory National Emergency Response and Other Measures) Act (FaCSIA Act) amended the Commonwealth Aboriginal Land Rights (Northern Territory) Act (Land Rights Act) to provide that permits for entry onto Aboriginal land would no longer be required for townships and roads. The FaCSIA Act also provided for reasonable compensation if action under the amendments to the Land Rights Act would result in an acquisition of property to which section 51(xxxi) applied. Reggie Wurridjal and Joy Garlbin are senior members of the Dhukurrdji clan, the traditional Aboriginal owners of Maningrida land. The land, measuring 10.456 square kilometres, includes a township, four sacred sites, an outstation, a sand quarry, a billabong and a ceremonial site. It is part of a total land grant of almost 90,000 square kilometres held by the Arnhem Land Aboriginal Land Trust under the Land Rights Act as an estate in fee simple. A five-year lease on Maningrida land was granted to the Commonwealth under the NER Act. Mr Wurridjal and Ms Garlbin claimed that the grant of the lease constituted an acquisition of Land Trust property that was not on just terms within the meaning of section 51(xxxi) of the Constitution. They also alleged that their entitlement under section 71 of the Land Rights Act to enter, use or occupy Maningrida land in accordance with Aboriginal tradition constituted property that had been acquired by the Commonwealth other than on just terms. They argued that their property had been acquired because their section 71 entitlement could be terminated at any time by the Minister under the NER Act and/or was effectively suspended by the grant of the lease. No party submitted that the Commonwealth had acquired any native title rights held by the Dhukurrdji clan. Mr Wurridjal, Ms Garlbin and the Bawinanga Aboriginal Corporation began proceedings in the original jurisdiction of the High Court in October 2007 to challenge the validity of certain provisions of the NER and FaCSIA Acts. In March 2008, the Commonwealth demurred to their claim on the ground that it did not show any cause of action to which the Court could give effect. The Commonwealth alleged that the Acts were not subject to the just terms requirement in section 51(xxxi) of the Constitution because they were supported by section 122 of the Constitution, which gives Parliament the power to make laws for the governing of any territory; that if they were subject to it they provided for compensation amounting to just terms; and that any property affected was not property within the meaning of section 51(xxxi) or was not property capable of being acquired. The High Court, by a 6-1 majority, held that the demurrer should be allowed. A majority held that the creation of the statutory lease on the Maningrida land constituted an acquisition of property from the Land Trust but the acquisition was on just terms due to the compensation provisions in the NER Act. There was no acquisition of Mr Wurridjal and Ms Garlbin’s rights under section 71 of the Land Rights Act because those rights had been preserved throughout the intervention and could not be extinguished by the Commonwealth pursuant to the NER Act. Their interests in their sacred sites also remained protected under section 69 of the Land Rights Act, which makes intruding on a sacred site a criminal offence. To the extent that abolition of the permit system had resulted in an acquisition of property, just terms were afforded by the compensation provisions of the FaCSIA Act. A majority of the Justices overruled a 1969 decision of the High Court, Teori Tau v The Commonwealth, which held that the just terms requirement in section 51(xxxi) did not apply to laws made by the Commonwealth for the governing of the territories. Therefore, section 122 of the Constitution is subject to the just terms requirement in section 51(xxxi).
+HIGH COURT OF AUSTRALIA 15 November 2005 MICHAEL JOHN COVENTRY AND LYNETTE HELEN COVENTRY (AS TRUSTEES OF THE MIKE AND LYN COVENTRY FAMILY TRUST) AND ANDREW COVENTRY v CHARTER PACIFIC CORPORATION LIMITED AND BARRY TABE (AS TRUSTEE OF THE TABE FAMILY TRUST) A damages claim by Charter Pacific could be pursued against discharged bankrupts as the circumstances of the claim meant it was not a debt provable in bankruptcy, the High Court of Australia held today. The Coventrys were directors of Evtech Pty Ltd. Michael and Andrew Coventry made certain representations to Charter Pacific about the viability of a computer technology project. These induced Charter Pacific to enter into a deed in March 1993. Parties to the deed were Charter Pacific, Evtech, Barry Tabe as trustee of the Tabe Trust, Michael and Lynette Coventry as trustees of their family trust, and Belrida Enterprises Pty Ltd as trustee of the Quinn Family Trust. Andrew Coventry was not a party. Under the deed, Charter Pacific agreed to buy Evtech shares from the other parties and to lend money to Evtech. The Coventry brothers’ representations were found to have been misleading. The loan and some further money lent, totalling $604,634, were not repaid and the Evtech shares proved to be worthless. The brothers were made bankrupt in 1994 and were discharged from bankruptcy in 1997. In the Queensland Supreme Court, Charter Pacific brought proceedings for misleading and deceptive conduct contrary to the Corporations Law against the Coventrys and other parties. The Coventrys denied that any misrepresentation occurred or that Charter Pacific suffered loss but alleged that any claims were provable debts from which they had been discharged through bankruptcy. In August 2002, after a 157-day trial, the Court found that the Coventrys had contravened the Corporations Law and gave judgment in favour of Charter Pacific. It held that the claims were not invalidated by the Coventrys’ bankruptcy so could be pursued after their discharge. The Coventrys appealed unsuccessfully to the Queensland Court of Appeal, then appealed to the High Court. They contended that the Court of Appeal erred in its construction of the Bankruptcy Act, as section 82(2) provides that demands in the nature of unspecified damages arising other than by way of a contract, promise or breach of trust are not provable in bankruptcy. Just before the High Court appeal hearing in March 2005, Michael Coventry was again made bankrupt. Neither the Coventry trustees nor Michael Coventry’s trustee in bankruptcy appeared and neither provided written submissions. The Court ordered that the appeal of the Coventry trustees be dismissed for want of prosecution. Andrew Coventry was effectively the sole appellant. The High Court unanimously dismissed the appeal by Andrew Coventry with costs. It held that because the as yet unspecified damages claim arose through misleading conduct, rather than in breach of a promise in the deed, the damages are not provable debts in the Coventry brothers’ bankruptcies pursuant to section 82(2) and therefore remain recoverable after discharge from bankruptcy.
+HIGH COURT OF AUSTRALIA 1 March 2017 [2017] HCA 9 Today the High Court, by majority, dismissed an appeal from the Full Court of the Supreme Court of South Australia. Following a trial in the District Court of South Australia, the appellant was convicted of one count of rape and one count of threaten to kill. He appealed against the convictions to the Full Court, sitting as the Court of Criminal Appeal, on grounds including that the trial judge erred in directing the jury under s 34R of the Evidence Act 1929 (SA) ("the Evidence Act") as to the permissible and impermissible uses of discreditable conduct evidence admitted under s 34P. The discreditable conduct evidence was that the appellant was in possession of an amount of cannabis, less than an ounce, which the police had found at his home seven days after the alleged offending ("the cannabis evidence"). The Full Court (Kourakis CJ, Gray and Stanley JJ) unanimously held that the cannabis evidence was admissible pursuant to s 34P of the Evidence Act. As to the sufficiency of the trial judge's directions to the jury, Kourakis CJ concluded that the directions did not comply with s 34R as to the permissible and impermissible use of the cannabis evidence. Kourakis CJ would have allowed the appeal, holding that it was not open in the circumstances of the case to apply the proviso; Gray J considered that the directions complied with s 34R and, accordingly, would have dismissed the appeal; and Stanley J held that the directions given by the trial judge did not meet the requirements of s 34R but was satisfied that no substantial miscarriage of justice had actually occurred, and so would have dismissed the appeal. In the result, the appeal to the Full Court was dismissed. Special leave to appeal to the High Court was granted on the question whether the order of the Full Court dismissing the appeal could not be sustained by s 353(1) of the Criminal Law Consolidation Act 1935 (SA) ("the CLC Act"), given the conclusion of a majority of the Court that the verdict was attended by an error of law and the absence of a conclusion by a majority of the Court that no substantial miscarriage of justice had occurred. By way of notice of contention, the respondent argued that the trial judge's directions to the jury met the requirements of s 34R(1) of the Evidence Act. The High Court held, by majority, that the appeal should be dismissed on the basis of the respondent's notice of contention. The trial judge's directions to the jury were sufficient to identify the permissible and impermissible uses of the cannabis evidence for the purposes of s 34R(1) of the Evidence Act. The verdict at trial was therefore not attended by an error of law. A majority of the High Court also considered that, under s 353(1) of the CLC Act, two questions arose for determination before the Full Court: whether the Full Court thought that the verdict of the jury should be set aside on any one or more of the three grounds there stated; and whether the Full Court considered that no substantial miscarriage of justice had actually occurred. By virtue of s 349 of the CLC Act, each of these questions was to be determined according to the opinion of the majority of the members of the Court hearing the case. In the result, the appeal was dismissed.
+HIGH COURT OF AUSTRALIA Manager, Public Information 10 November 2009 ADEELS PALACE PTY LTD v ANTHONY MOUBARAK ADEELS PALACE PTY LTD v ANTOIN FAYEZ BOU NAJEM [2009] HCA 48 Adeels Palace should not be held liable for injuries arising from violent conduct, in the circumstances where the evidence did not establish there was action it could have taken which would, on the balance of probabilities, have prevented that conduct from occurring, the High Court held today. In the early hours of New Year’s Day 2003 a dispute arose on the dance floor of the Adeels Palace Restaurant, after a female patron accused another of brushing her hand with a lighted cigarette. Fighting erupted and became “more ferocious very quickly”. One of the patrons left the restaurant after he was struck in the face. He returned soon after with a gun. In an unprovoked act he shot Mr Bou Najem in the leg in the restaurant’s kitchen. He then went into the restaurant proper and found Mr Moubarak, the man who had struck him. He shot Mr Moubarak in the stomach. Mr Moubarak and Mr Bou Najem both sued Adeels Palace, alleging that they had suffered their injuries as a result of the negligence of Adeels Palace in failing to provide any or any sufficient security during the New Year’s Eve function. Both men were successful in the NSW District Court. The Court of Appeal for NSW dismissed appeals filed by Adeels Palace. The High Court granted Adeels Palace special leave to appeal. The High Court held that the issues in the case had to be determined in the light of the relevant provisions of the Liquor Act 1982 (NSW) and the Civil Liability Act 2002 (NSW). The High Court concluded that, concomitant with its responsibilities under the Liquor Act to not permit indecent, violent or quarrelsome behaviour on licensed premises and to eject persons who engaged in such behaviour, Adeels Palace owed a duty to all of its patrons (including Mr Moubarak and Mr Bou Najem) to take reasonable care to prevent injury arising from the violent, quarrelsome or disorderly conduct of other persons. However, the High Court held it was unnecessary to determine whether there had been a breach of the duty. That was because the evidence did not establish that the provision of greater security, to the level which Mr Moubarak and Mr Bou Najem argued should have been provided, would have either deterred or prevented the gunman from re-entering the restaurant. Section 5D of the Civil Liability Act required Mr Moubarak and Mr Bou Najem to establish that the restaurant’s negligence in failing to provide any or any sufficient security was a necessary cause of the damage they each suffered, but the evidence only went so far as to establish that if there had been more security in the restaurant on New Year’s Eve that might have prevented the damage caused by the gunman. It did not show that more security would, on the balance of probabilities, have prevented their injuries. The High Court allowed each appeal and ordered that the decisions of both the Court of Appeal and the District Court be set aside.
+HIGH COURT OF AUSTRALIA 8 September 2005 PHILIP RUDDOCK, KAY PATTERSON AND COMMONWEALTH OF AUSTRALIA v The High Court of Australia today overturned an award of damages of $116,000 paid to Mr Taylor after he was put into immigration detention when his visa was cancelled on character grounds. British-born Mr Taylor, 45, came to Australia with his family in 1966. He is not an Australian citizen but has held a permanent transitional visa. In 1996, Mr Taylor pleaded guilty to a number of sexual offences and served three-and-a-half years in jail. Twice after his release in 1999 his visa was cancelled on character grounds under section 501 of the Migration Act due to his criminal record and he was taken into immigration detention. Both decisions cancelling his visa were quashed by the High Court, the first by Justice Callinan and the second by the Full Court. Mr Taylor’s periods in detention in 1999-2000 totalled 316 days. Mr Taylor sued the then Immigration Minister Mr Ruddock, the then Parliamentary Secretary Senator Patterson and the Commonwealth for damages for false imprisonment. The New South Wales District Court awarded him $116,000. The Ministers and the Commonwealth appealed unsuccessfully to the NSW Court of Appeal. They then appealed to the High Court. In 2003, between the Court of Appeal decision and today’s appeal, the High Court held in Shaw v Minister for Immigration and Multicultural Affairs that anyone born outside Australia to non-Australian parents, including British subjects, was, unless naturalised, an alien. The effect of the Shaw judgment was to support the legal basis upon which the authorities had acted in Mr Taylor’s case. Today’s appeal turned on section 189 of the Act which provides that if an officer knows or reasonably suspects that a person is an unlawful non-citizen the officer must detain the person. That section was held to apply to the present case. The High Court, by a 5-2 majority, allowed the appeal.
+HIGH COURT OF AUSTRALIA Public Information Officer 30 July 2008 NELSON GUANG LAI SHI v MIGRATION AGENTS REGISTRATION AUTHORITY The Administrative Appeals Tribunal (AAT) was entitled to take account of fresh evidence when reviewing a decision by the Migration Agents Registration Authority (MARA) to cancel a migration agent’s registration, the High Court of Australia held today. The Court held that the AAT was entitled to lift a caution imposed on an agent in the light of the evidence of subsequent events. In July 2003, MARA cancelled Mr Shi’s registration. It refused to renew his registration in October 2003, suspended his registration in April 2004, and again refused to renew his registration in August 2004. Each decision was stayed, enabling Mr Shi to continue acting under supervision as a migration agent. The stay of the cancellation was conditional upon his undertaking not to handle protection visas and upon his being supervised by another agent. MARA had found 98 breaches of the Code of Conduct prescribed under the Migration Act. These related to Mr Shi’s dealings with clients; his knowledge of the Act and regulations; his control of his office, financial and other records; and his supervision of staff. Most of the breaches of the Code concerned applications for protection visas. MARA was satisfied Mr Shi was not a person of integrity or a fit or proper person to give immigration assistance. He applied to the AAT for review of the cancellation decision. On 6 April 2005, the AAT published its findings about the breaches of the Code of Conduct. It found 51 breaches, concluding that other breaches had not been established. On 2 September 2005, the AAT published its decision on the review of MARA’s decision about Mr Shi’s registration. It concluded that it was not satisfied that he was not a person of integrity or not otherwise a fit and proper person to give immigration assistance, and set aside the cancellation decision and the other decisions. The AAT decided Mr Shi should instead be cautioned and that the caution would be lifted on 1 September 2008 so long as he did not assist with protection visas and if he were supervised by another migration agent. In deciding whether or not Mr Shi was person of integrity or was a fit and proper person, the AAT took into account evidence of his conduct since July 2003 when MARA cancelled his registration. MARA appealed to the Federal Court of Australia, which accepted its submission that the AAT had made an error of law by asking whether, at the time the AAT made its decision in September 2005, Mr Shi was shown not to be a person of integrity or was not a fit and proper person to give immigration assistance. MARA argued that the appropriate time for consideration of the evidence was July 2003 and that the AAT should have considered whether at that date the proper action was to cancel Mr Shi’s registration. Justice Richard Edmonds held that neither MARA nor the AAT could set conditions for the lifting of a caution given to a migration agent if those conditions could not be imposed as conditions of registration. Mr Shi appealed to the Full Court of the Federal Court which, by majority, dismissed the appeal. He then appealed to the High Court. The Court, by a 4-1 majority, allowed the appeal and ordered that the AAT decision be restored. The Court unanimously held that the AAT was not restricted to considering evidence of the facts and circumstances as they existed at the time of MARA’s decision. The AAT was empowered under the AAT Act to exercise all the powers and discretions conferred on MARA by the Migration Act. The majority further held that the AAT was entitled to impose the conditions it did when cautioning Mr Shi and to lift the caution. The Migration Act provides for MARA to caution an agent and to set conditions for the lifting of a caution and the majority held that the AAT could also exercise these powers.
+HIGH COURT OF AUSTRALIA Manager, Public Information 29 July 2009 MALCOLM GEOFFREY VALE v RODERICK MACKAY SUTHERLAND [2009] HCA 26 Today the High Court handed down a decision about notices which the Official Receiver may issue under the Bankruptcy Act to recover money or property received by a third party through a void transaction with a bankrupt. Significantly, the Court held that in general any dispute between parties about the value of property that is the subject of such a notice should be determined in proceedings to recover the debt rather than in a proceeding to set the notice aside. On 23 April 1999 Mr Vale became the sole proprietor of seven parcels of land (“the property”) after his wife transferred her half share in the property to him for $2.00. Mr and Mrs Vale obtained two separate valuations of the property prior to the transfer. The first valuation dated 28 September 1998 valued the property in a range between $520,000 and $540,000 and contained a disclaimer that it was “an opinion of a reasonable asking price only and not to be taken as a sworn valuation”. The second valuation dated 31 March 1999 was undertaken by a registered valuer. It valued the property at $416,700 and contained no disclaimer. Mrs Vale committed an act of bankruptcy on 26 February 2001. A sequestration order was made against Mrs Vale in April 2001 and a Trustee was appointed to manage her estate on behalf of her creditors. In May 2002, relying on the fact that the transfer of the property to Mr Vale was void against the Trustee because it had occurred within 5 years of the commencement of Mrs Vale’s bankruptcy and Mr Vale had paid less than market value for the property, the Official Receiver, on application by the Trustee, issued a notice to Mr Vale, pursuant to section 139ZQ of the Bankruptcy Act. The notice required him to pay $270,000 to the Trustee, being one half of the highest assessed value of the property. Eventually the Trustee sought to recover judgment against Mr Vale for $270,000 in the Federal Magistrates Court. Mr Vale disputed the validity of the notice, arguing that it did not comply with section 139ZQ. The Federal Magistrate agreed, set aside the notice and refused the Trustee’s claim. By majority, the Full Court of the Federal Court allowed the Trustee’s appeal. The High Court granted special leave to appeal the Full Court’s decision. At hearing both parties agreed that the transfer of Mrs Vale’s share of the property to Mr Vale was void as against the Trustee. However the parties disagreed on the value of Mrs Vale’s share and thus the amount Mr Vale had to pay to the Trustee in respect of that share. All members of the High Court accepted the Trustee’s submissions that the section 139ZQ notice was not invalid for having arguably misstated the value of the property and the amount Mr Vale owed to the Trustee. Any disagreement between the parties about the value of the property referred to in the notice should be determined in proceedings to recover the debt, rather than in an argument about the validity of the notice. The Court referred the parties to the definition of “value” in section 139K of the Bankruptcy Act to establish that the relevant “value of the property received” in respect of a notice issued under section 139ZQ was the value of the property at the date the notice was given. The parties themselves eventually agreed before the High Court that the best evidence about the value of the property at the date the notice was given was the valuation of the registered valuer dated 31 March 1999, of $416,700. The High Court ordered that judgment be entered for the Trustee in the amount of $208,350 (one half of $416,700) and that all question concerning the award of interest on that sum be remitted to the Federal Magistrates Court for determination. The Trustee agreed to pay Mr Vale’s costs of the appeal to the High Court.
+HIGH COURT OF AUSTRALIA 12 November 2009 Manager, Public Information INTERNATIONAL FINANCE TRUST COMPANY LTD & ANOR v NEW SOUTH WALES CRIME COMMISSION & ORS [2009] HCA 49 Section 10 of the Criminal Assets Recovery Act 1990 (NSW) (the Act) is constitutionally invalid, a majority of the High Court held today. On 13 May 2008 the New South Wales Crime Commission commenced proceedings in the New South Wales Supreme Court which sought, amongst other things, restraining orders under section 10 of the Act in relation to various bank and share trading accounts over which the appellants in this case (International Finance Trust Company Ltd and International Finance Trust Company Broking Services Ltd) exercised effective control. Section 10(2)(b) of the Act effectively provides that the Commission may make an ex parte application (ie – an application made without notice to the affected party and determined in the absence of that party) to the Supreme Court for a restraining order preventing dealings with interests in property which is suspected to have been derived from serious crime related activity. Under section 10(3) of the Act the Supreme Court must make the order if the application for the order is supported by an affidavit of an authorised officer which deposes to the grounds upon which the officer suspects the property is serious crime derived property, and, having regard to the matters raised in the affidavit, the Supreme Court considers there are reasonable grounds for the suspicion. The party whose property interest is affected by the order may apply under section 25 of the Act for orders excluding those interests from the operation of the restraining order, but must prove that it is more probable than not that the property was not acquired fraudulently or illegally. A single judge of the Supreme Court made the order sought. On appeal the Court of Appeal of the Supreme Court of New South Wales set aside the restraining order – a majority of that court found there was no admissible evidence before the primary judge that provided reasonable grounds for the suspicion asserted by the authorised officer in the affidavit supporting the original application. However, the Court of Appeal unanimously rejected an argument that section 10 was constitutionally invalid. The High Court granted special leave to appeal against that decision. By majority the High Court determined that section 10 was invalid. The majority considered that section 10 did not require the Commission to make ex parte applications for restraining orders. However, if the Commission did make an ex parte application, then the Supreme Court was required to make the restraining order if it was satisfied that the authorised officer’s affidavit reasonably supported that officer’s suspicions about the derivation of the property the subject of the application. Once the order was made, it could only be discharged in two circumstances: if an application for assets forfeiture was no longer pending in the Supreme Court (however the legislation imposed no limit on the time within which an assets forfeiture application had to be determined); or upon an application by the affected party under section 25 of the Act, which could only succeed if the affected party was able to prove it was more probable than not that the relevant property was not fraudulently or illegally acquired – a negative proposition of broad import. The majority concluded that in these circumstances section 10 was “repugnant to the judicial process in a fundamental degree”. The Court allowed the appeal, ordered that the relevant proceedings in the Supreme Court should be dismissed with costs, and declared section 10 invalid.
+HIGH COURT OF AUSTRALIA 30 October 2013 [2013] HCA 41 Today the High Court, by majority, held that Comcare, the appellant, was not liable to pay compensation to a Commonwealth government employee who, whilst staying overnight on a work-related trip to a regional town, suffered injuries whilst engaging in sexual intercourse in the motel room her employer had booked for her. The respondent had been required by her employer to work for two consecutive days in a regional town away from her ordinary place of residence. She stayed overnight at a local motel which had been booked by her employer. Whilst at the motel, the respondent engaged in sexual intercourse with an acquaintance. In that process, a glass light fitting above the bed was pulled from its mount and struck the respondent on her nose and mouth, causing her physical injuries and a subsequent psychological injury. The respondent sought compensation from Comcare under the Safety, Rehabilitation and Compensation Act 1988 (Cth) ("the Act"). She argued that her injuries were suffered "in the course of" her employment and that she was, therefore, entitled to compensation. The Administrative Appeals Tribunal ("the Tribunal") held that the respondent's injuries were unrelated to her employment. On appeal, the Federal Court of Australia set aside the Tribunal's decision. The Federal Court's decision was then upheld by the Full Court of the Federal Court. The Full Court held that the respondent's injuries occurred in an "interval or interlude" during an overall period of work and, therefore, arose in the course of her employment. An interval or interlude existed because the respondent's employer had induced or encouraged her to spend the night at a particular place – the motel. It was not necessary to show that the respondent's employer had induced or encouraged her to engage in the particular activity in which she was engaged when her injuries were suffered. By special leave, Comcare appealed to the High Court. The High Court allowed Comcare's appeal. A majority of the High Court held that in order for an injury sustained in an interval or interlude during an overall period of work to be in the course of an employee's employment, the circumstances in which the employee was injured must be connected to an inducement or encouragement by the employer. If the employee is injured whilst engaged in an activity at a certain place, that connection does not exist merely because of an inducement or encouragement to be at that place. When the circumstances of an injury involve the employee engaging in an activity at the time of the injury, the relevant question is: did the employer induce or encourage the employee to engage in that activity? On the facts of the respondent's case, the majority held that the answer to that question was 'no'.
+HIGH COURT OF AUSTRALIA 13 June 2006 Public Information Officer The High Court of Australia today upheld a tree feller’s claim that he had suffered injury as a result of negligent instructions given to him by Forestry Tasmania. In September 1998, Mr Coote, who had 20 years’ experience as a tree feller, was working for AG & GR Padgett Pty Ltd in a logging coupe in a State forest in northern Tasmania. Two sawlog trees he felled brushed a third tree as they fell. Mr Coote later walked under that tree. A branch fell and hit him, leaving him a paraplegic. Mr Coote contended that he would have felled the brushed tree, a pulpwood tree, before felling the two sawlog trees but he had been directed not to fell pulp trees unless they posed a real danger. Ordinarily, felling operations permitted removal of both sawlogs and pulpwood, but the timber harvesting plan for the coupe required mainly sawlogs. Forestry Tasmania’s officer, Peter Johnstone, Padgett’s former logging foreman, allegedly told Mr Coote to cut sawlogs and only to remove pulpwood trees if they would be directly struck, rather than merely brushed, by another falling tree. Mr Coote brought an action in the Tasmanian Supreme Court for damages for breach of statutory duty and negligence against four defendants. Claims against Padgett and Wesley Vale Engineering Pty Ltd, which had engaged Padgett to harvest timber from the coupe, were settled and the action against the State of Tasmania was discontinued early. Justice Alan Blow found Mr Coote had been injured as a result of Forestry Tasmania’s negligence as it failed to instruct him to fell first any trees that “potentially posed a danger” when the risk of injury from falling trees was reasonably foreseeable. Instead, Mr Coote was only told to remove trees he considered “too much of a danger to leave standing”. Justice Blow reduced the recoverable damages by one-sixth for Mr Coote’s contributory negligence of walking under the pulp tree shortly after it was brushed. Damages and questions of contribution to those damages between the defendants have yet to be assessed. The Full Court of the Supreme Court allowed an appeal by Forestry Tasmania. It held that Mr Coote’s failure to fell the pulp tree first was an error of judgment by him and that he understood he had the right to fell any trees that potentially posed a danger. He appealed to the High Court, which unanimously allowed the appeal. It held that the Full Court fell into factual error by holding that Mr Coote was free to fell any tree that posed a potential danger, rather than any tree that posed too much of a danger, during the harvest of this particular coupe. The Full Court erred in failing to treat the unusual requirements of this harvest, with Mr Johnstone’s particular instructions about not felling pulp trees as Mr Coote normally would, as significant. The High Court held that there was no error in Justice Blow’s reasoning. It ordered that, because Forestry Tasmania’s Full Court appeal against Justice Blow’s findings about contributory negligence and contribution between defendants remains undetermined, the matter be remitted to the Full Court for consideration of the remainder of that appeal.
+HIGH COURT OF AUSTRALIA 4 September 2019 BRISBANE CITY COUNCIL v AMOS [2019] HCA 27 Today the High Court unanimously dismissed an appeal from a decision of the Court of Appeal of the Supreme Court of Queensland. The High Court unanimously upheld the conclusion of the majority of the Court of Appeal that s 26(1) of the Limitation of Actions Act 1974 (Qld) does not extend or exclude the operation of s 10(1) of that Act. This means that a defendant is entitled to plead the shorter limitation period under s 10(1) where those limitation periods overlap. The appellant, Brisbane City Council, sought to recover overdue and unpaid rates, with interest, which were levied upon the rateable land of the respondent, Mr Amos, by rates notices issued in the period from 30 April 1999 to 9 January 2012. Under the Local Government Act 1993 (Qld) and later the City of Brisbane Act 2010 (Qld), overdue and unpaid rates are a charge on the land. At issue was which of two potentially applicable limitation periods, a 12 year limitation period under s 26(1) of the Limitation of Actions Act or a six year limitation period under s 10(1)(d) of the Limitation of Actions Act, applied to the Council's claim. Relevantly to this appeal, s 26(1) applies a limitation period for debts created by statute and secured by charge, whilst s 10(1)(d) applies a limitation period to "an action to recover a sum recoverable by virtue of any enactment". Before the late nineteenth century, any overlap that would otherwise have occurred between these provisions was resolved by applying the limitation period in the predecessor provision to s 26(1) only to real or proprietary claims and confining the limitation period in the predecessor provision to s 10(1)(d) to personal claims. However, from the late nineteenth century, the limitation period for sums of money secured by charge was extended also to bar personal claims. In Barnes v Glenton [1899] 1 QB 885, the Court of Appeal of England and Wales held that while there may be overlapping limitation periods for a personal claim to recover a sum secured by a mortgage or other charge, any longer limitation period in the predecessor provision to s 26(1) would not extend the shorter limitation period applicable under the predecessor to s 10(1)(d). When Parliament re-enacts provisions with a well-understood meaning, it will generally be assumed that Parliament intended the words to have that meaning. Barnes v Glenton had been consistently followed by judicial authority and textbook writers when the Limitation of Actions Act was enacted in 1974 in light of this history. The more recent authorities, including ANZ Banking Group Limited v Douglas Morris Investments Pty Ltd [1992] 1 Qd R 478, do not gainsay the approach set out in Barnes v Glenton. On this basis, the High Court dismissed the appeal.
+HIGH COURT OF AUSTRALIA Public Information Officer 10 December, 2002 DOW JONES & COMPANY INC v JOSEPH GUTNICK The High Court of Australia has unanimously dismissed an appeal brought by Dow Jones in connection with a defamation action commenced against it in the Supreme Court of Victoria. The action was brought by Melbourne businessman Mr Joe Gutnick, who claims to have been defamed in an article made available on a subscription website on the Internet. The Court was asked to determine where that article was published. It has made no findings on the merits of the defamation action itself. Dow Jones publishes Barron’s Magazine, an American high-circulation weekly investment and finance magazine, available both in hard copy and on the Internet. Dow Jones’s website servers are located in New Jersey in the United States. An October 2000 edition of Barron’s Magazine carried an article making several references to Mr Gutnick. Mr Gutnick is a resident of Victoria and has his business headquarters there. He commenced proceedings in the Supreme Court of Victoria claiming damages for being defamed in Victoria. Dow Jones applied to have the proceedings stayed. It raised an issue as to whether the allegedly defamatory material was published in Victoria. Dow Jones claimed it was published only in New Jersey. The Supreme Court held that publication of the web article occurred in Victoria, where the article was available for viewing. The Supreme Court refused Dow Jones’s application. The Victorian Court of Appeal refused Dow Jones leave to appeal. Dow Jones then obtained special leave to appeal to the High Court, which heard and dismissed the appeal. Mr Gutnick’s action can now proceed in the Supreme Court.
+HIGH COURT OF AUSTRALIA 11 April 2018 WET044 v THE REPUBLIC OF NAURU [2018] HCA 14 Today the High Court unanimously dismissed an appeal from the Supreme Court of Nauru. The Court held that there was no merit to the appellant's contentions that the Refugee Status Review Tribunal ("the Tribunal") had failed to consider relevant country information or that he had been denied procedural fairness. The appellant is an Iranian citizen of Faili Kurdish ethnicity. He arrived by boat at Christmas Island in 2013 and was subsequently transferred to Nauru. There he applied under the Refugees Convention Act 2012 (Nr) to be recognised as a refugee or, alternatively, as a person to whom Nauru owed complementary protection under its other international obligations. The application was refused by the Secretary of the Department of Justice and Border Control ("the Secretary"). The appellant appealed to the Tribunal. The appellant's legal representative placed before the Tribunal additional evidence, submissions, and material in support of those submissions, including country information. The Tribunal accepted that failed asylum seekers may be at risk if returned to Iran, but did not accept that mere membership of that group gave rise to a well-founded fear of persecution. The Tribunal adopted the reasons and affirmed the decision of the Secretary. The appellant appealed this decision to the Supreme Court of Nauru. The Supreme Court dismissed the appeal. The appellant appealed as of right to the High Court. The appellant alleged error by the Tribunal, arguing that it failed to deal with the country information submitted by the appellant regarding the risk of returning to Iran as a failed asylum seeker. The appellant subsequently sought leave to amend his notice of appeal to expand the first ground and insert a new ground contending that the Tribunal acted in a way that was procedurally unfair by failing to put to him the nature and content of country information it relied upon concerning the risk of harm to Kurds who are Shia Muslim. Neither ground was raised before the Supreme Court of Nauru. The High Court considered there to be no merit in either ground of appeal. The country information regarding failed asylum seekers was read by the Tribunal. Further, most of the additional information was before the Secretary in one form or another and did not contradict the opinions stated by the Secretary. In relation to the second ground, the Court found that the country information relied upon by the Tribunal was in fact known to the appellant. The Court therefore refused leave to amend the notice of appeal and dismissed the appeal.
+HIGH COURT OF AUSTRALIA 29 March 2017 DAVID KENDIRJIAN v EUGENE LEPORE & ANOR [2017] HCA 13 Today the High Court unanimously allowed an appeal from the Court of Appeal of the Supreme Court of New South Wales in relation to the second respondent to the appeal. The High Court held that advocates' immunity from suit does not extend to negligent advice not to compromise a proceeding which then proceeds to a judicial decision. In November 1999, the appellant was injured in a car accident. In 2004, he commenced legal proceedings in the District Court of New South Wales against the other driver involved in the accident, who admitted liability. On the first day of the trial on quantum, the other driver's legal representatives made a settlement offer to the appellant's solicitor (the first respondent) and barrister (the second respondent) of $600,000 plus costs. The settlement offer was not accepted so the trial proceeded. Ultimately, the appellant obtained judgment for $308,432.75 plus costs. An appeal to the Court of Appeal in relation to quantum was dismissed. In 2012, the appellant brought a claim in the District Court against the respondents. The appellant alleged that the respondents were negligent in advising him in relation to the settlement offer. Central to his claim were allegations that the respondents did not advise him of the amount of the settlement offer, "but merely of the fact that an offer had been made". The appellant also pleaded that the respondents rejected the settlement offer, "absent any express instructions" from him, because the offer was "too low". The respondents successfully brought an application in the District Court for summary judgment. The District Court held that the respondents' conduct was covered by advocates' immunity. This conclusion was upheld by the Court of Appeal. By grant of special leave, the appellant appealed to the High Court. In November 2016, the Court made orders by consent allowing the appeal in relation to the first respondent. Today, the Court unanimously allowed the appeal in relation to the second respondent. The Court held that advocates' immunity did not extend to the advice given in relation to the settlement offer because the advice did not affect the judicial determination of the case. The Court declined to distinguish or reopen its most recent decision on advocates' immunity, Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 90 ALJR 572; 331 ALR 1; [2016] HCA 16.
+HIGH COURT OF AUSTRALIA Public Information Officer 30 August 2006 MOBIL OIL AUSTRALIA PTY LIMITED v TRENDLEN PTY LIMITED A single petrol retailer could not commence representative proceedings to recover invalid licensing fees from Mobil on the basis that other retailers may join in the proceedings later, the High Court of Australia held today. The appeal raised many of the same issues as those raised in the Campbells Cash and Carry v Fostif group of cases heard at the same time. Five States and the ACT had schemes for the licensing of petroleum sellers. The relevant legislation was similar to tobacco licensing legislation struck down by the High Court’s 1997 decision in Ha v New South Wales which held that tobacco licensing fees amounted to constitutionally invalid excise duties. (Only the Commonwealth can impose excise.) Mobil is a petrol wholesaler and Trendlen a retailer. Mobil had paid licence fees to the State of New South Wales based on the value of petrol sold and passed those fees on to retailers including Trendlen. Trendlen contends it was entitled to recover fees paid to Mobil but which Mobil no longer had to pay to NSW following the Ha decision. Trendlen brought proceedings in the NSW Supreme Court against Mobil and these proceedings were commenced as representative proceedings. Two other representative proceedings were commenced at the same time by other petroleum retailers against petrol wholesalers. All three were commenced on their behalf by litigation funder Firmstones Pty Ltd which was to receive one-third of any amounts recovered from wholesalers plus any costs awarded to the retailers. Firmstones would bear any costs made against the retailers. The Trendlen summons claimed the refund of fees on behalf of itself and a class of unnamed persons who could potentially opt in to be represented by it. Trendlen also sought discovery of the names of other petroleum retailers supplied by Mobil. Justice Robert McDougall, in light of what the NSW Court of Appeal had already decided in the Fostif group of cases, dismissed Mobil’s application for orders terminating proceedings or requiring that the proceedings not continue as representative proceedings. He ordered Mobil to provide Trendlen with a list of petrol retailers across five States and the ACT. Mobil appealed directly to the High Court, which allowed the appeal by a 5-2 majority.
+HIGH COURT OF AUSTRALIA 6 November 2019 FENNELL v THE QUEEN [2019] HCA 37 Today the High Court published its reasons for unanimously allowing an appeal from the Court of Appeal of the Supreme Court of Queensland. On 11 September 2019, the High Court quashed the appellant's ("Mr Fennell") conviction for murder and ordered that a verdict of acquittal be entered. In March 2016, Mr Fennell was convicted by a jury of the murder of Liselotte Watson in her home on Macleay Island and sentenced to life imprisonment. The Crown case at trial was entirely circumstantial: it relied on opportunity in the form of Mr Fennell's access to Mrs Watson's home where she was known to keep large amounts of cash; motive in the form of Mr Fennell's interest in concealing alleged thefts by him from Mrs Watson and his gambling habits; and a miscellany of other allegedly inculpatory matters, including evidence from a couple, Mr and Mrs Matheson, that a number of years before the murder, they lent Mr Fennell a hammer which they identified as the hammer alleged to be the murder weapon. The hammer alleged to be the murder weapon was found in mangroves off Macleay Island, a short distance from banking documents and a shaving bag belonging to Mrs Watson. The Court of Appeal dismissed Mr Fennell's appeal and held that the jury could have regarded Mr Matheson's evidence as convincing proof linking Mr Fennell to the alleged murder weapon. The Court of Appeal also found that there was sufficient evidence to support the Crown case on motive and opportunity. In the High Court, Mr Fennell appealed his conviction on the sole ground that the verdict was unreasonable or could not be supported having regard to the evidence. The High Court unanimously held that the Crown case on opportunity and motive was extremely weak and it did not put Mr Fennell in a relevantly different position from numerous other residents of Macleay Island who had the common knowledge that Mrs Watson kept large amounts of cash in her house. Police had searched Mr Fennell's home and examined his person and found nothing linking him to the murder. Neither his DNA nor fingerprints were found at the crime scene and he was excluded as a contributor of DNA taken from the shaving bag. In light of CCTV footage, his opportunity was, at best, a very small window of time, which required an assumption about the time of the murder that was contradicted by other evidence. Accounting evidence showed that his gambling habits had not changed, that he was not in debt, and that he was ahead on his mortgage repayments. The Crown conceded that if the Crown case on opportunity and motive was weak, Mr and Mrs Matheson's identification of the hammer found in the mangroves became essential evidence for a reasonable jury to convict Mr Fennell. The Court held that the evidence of Mr and Mrs Matheson identifying the hammer was glaringly improbable. Their evidence should have been given so little weight that, at best, it was barely admissible. The Court unanimously held that on the evidence it was not open for the jury to be satisfied of Mr Fennell's guilt beyond a reasonable doubt.
+HIGH COURT OF AUSTRALIA 22 September 2010 [2010] HCA 30 In 2008, Kevin Dickson was convicted in the Supreme Court of Victoria of conspiracy to steal under s 321 of the Crimes Act 1958 (Vic) ("the Victorian Crimes Act"). He was sentenced to imprisonment for five years and six months. The conspiracy involved an agreement to steal, contrary to s 74 of the Victorian Crimes Act, a large quantity of cigarettes. The cigarettes had been seized by the Australian Customs Service ("Customs") and transferred to a storage facility within a secured warehouse operated by Dominion Group (Vic) Pty Ltd ("Dominion"). Customs paid storage fees to Dominion for exclusive use of a padlocked area of the warehouse. A month after their transfer, the cigarettes were removed from the storage area by cutting the padlock that secured The charge against Mr Dickson and the conduct of his prosecution were based on there having been an offence committed against the law of Victoria alone. At trial, the judge directed the jury that they could assume that the cigarettes had been under the control of, and thus belonged to, Dominion. The Court of Appeal dismissed an application by Mr Dickson to appeal against his conviction and sentence. Mr Dickson then sought special leave to appeal to the High Court against the Court of Appeal's decision. On 23 April 2010, three Justices of the High Court referred some of the proposed grounds of appeal in his application for special leave for further consideration by an enlarged Bench of the Court. At the hearing, Mr Dickson sought and was granted special leave to appeal on a further ground based on the operation of s 109 of the Constitution. His submission was that the section of the Victorian Crimes Act under which he had been charged was inconsistent with provisions of the Criminal Code (Cth) ("the Commonwealth Criminal Code") concerning theft of Commonwealth property and conspiracy under federal law. He argued that, by operation of s 109 of the Constitution, the Victorian Crimes Act provision was therefore invalid to the extent of the inconsistency. The High Court today upheld Mr Dickson's appeal on this constitutional ground, quashing the presentment preferred against him and his conviction and setting aside his sentence of imprisonment. The Court held that the cigarettes that formed the basis of the offence with which he had been charged were property belonging to the Commonwealth because they were in the possession of Customs at the time they were stolen. That meant that the theft provision in s 131.1 of the Commonwealth Criminal Code applied and that the conspiracy provision in s 11.5 of the Commonwealth Criminal Code could attach to it. It also meant that, if the Victorian provisions had a relevant valid operation, the cigarettes were property belonging to the Commonwealth for the purposes of s 72 of the Victorian Crimes Act, which informs the meaning of the offence of theft found in s 74. The Court held that the Victorian conspiracy provision was directly inconsistent with the Commonwealth conspiracy provision because s 321 of the Victorian Crimes Act, if valid, effectively defined the offence of conspiracy more widely than conspiracy under s 11.5 of the Commonwealth Criminal Code. The Victorian provision would thereby alter, impair or detract from the operation of the Commonwealth law. The Victorian law was thus invalid to the extent of the inconsistency. By virtue of the Court's decision on the constitutional question, it was unnecessary for the Court to consider the remainder of Mr Dickson's application for special leave to appeal. The proposed grounds of appeal remaining in that application were thus dismissed.
+HIGH COURT OF AUSTRALIA 6 November 2013 OWEN JOHN KARPANY & ANOR v PETER JOHN DIETMAN [2013] HCA 47 Today the High Court unanimously allowed an appeal from a decision of the Full Court of the Supreme Court of South Australia, which had overturned a decision of the Magistrates Court of South Australia finding the applicants not guilty of possessing undersize abalone. The applicants are Aboriginal and members of the Narrunga People. They had taken undersize Greenlip abalone in accordance with their traditional laws and customs. They were charged with possessing undersize abalone contrary to s 72(2)(c) of the Fisheries Management Act 2007 (SA). In the Magistrates Court, the respondent conceded that the applicants' native title right to take fish from the relevant waters subsisted. The applicants argued that, by reason of s 211 of the Native Title Act 1993 (Cth), the prohibition in s 72(2)(c) of the Fisheries Management Act did not apply to their activities in taking abalone. Section 211 of the Native Title Act provides that, if a law prohibits a person from carrying on certain activities other than in accordance with a "licence, permit or other instrument" granted under that law, that law does not prohibit a native title holder from carrying on those activities for the purpose of satisfying their personal, domestic or non-commercial communal needs. Section 115 of the Fisheries Management Act allowed the Minister to exempt a person from provisions of that Act. The Magistrate found that that an exemption under s 115 amounted to a "licence, permit or other instrument" and therefore that s 72(2)(c) did not prohibit the applicants' conduct. On appeal to the Full Court, the respondent argued that the applicants' native title right had been extinguished by the Fisheries Act 1971 (SA) and that the magistrate had erred by characterising an exemption under s 115 of the Fisheries Management Act as a "licence, permit or other instrument". The Full Court, by majority, held that the applicants' native title right had been extinguished and, unanimously, held that in any event s 211 of the Native Title Act did not apply. It remitted the matter for re-sentencing. The applicants applied for special leave to appeal to the High Court and the application was referred to an enlarged bench. The High Court unanimously held that the applicants' native title right had not been extinguished because, for the reasons given in Akiba v The Commonwealth (2013) 87 ALJR 916; 300 ALR 1; [2013] HCA 33, the Fisheries Act regulated but was not inconsistent with the continued enjoyment of native title rights. It further held that an exemption under s 115 of the Fisheries Management Act was a "licence, permit or other instrument". The consequence, provided by s 211 of the Native Title Act, was that s 72(2)(c) of the Fisheries Management Act did not prohibit the applicants, as native title holders, from gathering or fishing for undersize abalone in the waters concerned, where they did so for the purpose of satisfying their personal, domestic or non-commercial communal needs and in exercise or enjoyment of their native title rights and interests.
+HIGH COURT OF AUSTRALIA 27 September 2005 PAUL JOSEPH FAVELL AND DIANA GRACE FAVELL v QUEENSLAND NEWSPAPERS A story in Brisbane’s Sunday Mail newspaper was capable of bearing the defamatory meanings complained of by Mr and Mrs Favell, the High Court of Australia held today. The story, written by Ms Lawrence and published on 19 January 2003, reported that a fire had destroyed a riverside Brisbane home on a site where the Favells hoped to build a five-storey block of units. The Favell family was holidaying overseas and house-sitting relatives were absent at the time of the fire. The story quoted neighbours opposed to the development while Mrs Favell was quoted as saying that neighbours had been given the plans and “were fine about it”. A detective from the arson squad was quoted as saying all fires were treated as suspicious until proven otherwise. The link between the house burning down and what the story said was the controversial plan to redevelop the New Farm site was at the centre of the Favells’ defamation action. The headline was “Development site destroyed – Fire guts riverside mansion”. In the Queensland Supreme Court Justice John Helman struck out a large number of imputations that could not easily be differentiated from each other. He also rejected the claim that the story was capable of conveying the imputations that the Favells committed the crime of arson, that they were reasonably suspected by the police of committing arson, and that Mrs Favell lied about neighbourhood reaction to the proposed development. The Court of Appeal dismissed an appeal by the Favells, although it held that the story was capable of conveying an imputation similar to the second imputation. They appealed to the High Court. The Court held that Justice Helman was incorrect to hold that the article reported the fire and the circumstances surrounding it without comment and went no further that recording that the fire was under investigation. It unanimously allowed the appeal and held that the story was capable of conveying all three meanings complained of. It is now for a jury to determine whether the story did in fact convey those meanings. The Court held that factors which a jury could find pointed to the Favells being responsible for the fire included: the headline; opposition to the plan to build the block of units; the prospect of getting approval for the plan improving if the site were vacant; the unexplained absence of the house-sitters; the fire starting at 4am; security gates preventing access to strangers; Mrs Favell creating the impression that the development was not controversial; and the Favells’ absence overseas. The Court ordered that Queensland Newspapers’ application be remitted to the Supreme Court for further consideration of other unresolved issues about the pleading.
+HIGH COURT OF AUSTRALIA 18 October 2017 CHRISTOPHER CHARLES KOANI v THE QUEEN [2017] HCA 42 Today the High Court published its reasons for allowing an appeal from the Court of Appeal of the Supreme Court of Queensland on 17 August 2017. The High Court held unanimously that the Court of Appeal erred in concluding that a criminally negligent act or omission could found a conviction for the offence of murder under s 302(1)(a) of the Criminal Code (Q) ("the Code"). The appellant was charged with the murder of his de facto partner. The deceased's death was caused by a single gunshot wound to the head. The appellant had loaded a shotgun, presented it to the deceased and pulled the hammer back to be at least almost fully cocked at the time of discharge. The expert evidence was that the gun, which had been modified, might discharge when not fully cocked as the result of the shooter's finger slipping off the shortened hammer spur. The trial judge considered that, under the Code, the "act" causing death in a firearms case is the pulling of the trigger or another deliberate act causing the weapon to discharge. In these circumstances, the trial judge left the prosecution's alternative case to the jury: if the jury was not satisfied that the discharge of the gun was caused by a willed act, but was satisfied that the deceased's death was the result of the appellant's failure to use reasonable care in his management of the gun at a time at which he intended to kill or inflict grievous bodily harm on the deceased, he would be guilty of murder. The jury returned a verdict of guilty of murder and the appellant was later sentenced to life imprisonment. By majority, the Court of Appeal dismissed the appellant's appeal against his conviction. By grant of special leave, the appellant appealed to the High Court. The High Court held that it was an error of law to leave the alternative case for the jury's consideration: the act causing death and the intention to kill or inflict grievous bodily harm must coincide for a person to be found guilty of murder under s 302(1)(a) of the Code. It is incongruous to attach a requirement of proof of intent to conduct that is made an offence because it falls short of an objectively determined standard of reasonableness. The High Court further held that the perceived need to leave the alternative case to the jury was based on a wrongly confined understanding of the "act" to which criminal responsibility attaches. Under the Code, as under the common law, it was open to the jury to find that the appellant's actions in loading the gun, presenting it to the deceased and pulling back the hammer were connected, willed, acts, which caused the death of the deceased. The appellant's conviction was quashed and a new trial was ordered.
+HIGH COURT OF AUSTRALIA 14 October 2020 [2020] HCA 36 Today the High Court, by majority, allowed an appeal against a judgment and orders of the Full Court of the Supreme Court of South Australia sitting as the Court of Criminal Appeal. The appeal concerned whether the majority of the Full Court erred in quashing the respondent's conviction of an offence of intentionally being a member of a terrorist organisation contrary to s 102.3(1) of the Criminal Code (Cth) ("the Code"). On 13 July 2016, the respondent purchased a one-way ticket for a flight from Adelaide to Istanbul, Turkey. The following day, she was detained at Adelaide Airport whilst attempting to board the flight and was interviewed by Australian Federal Police ("AFP") officers about her reasons for travelling. The respondent's mobile phone was seized and was found to contain propaganda and extremist material produced by and expressing support for Islamic State, a "terrorist organisation" within the meaning of s 102.1 of the Code. Upon her phone being returned to her, the respondent used the phone to communicate with women who later carried out a terrorist attack in Mombasa, Kenya, in the name of Islamic State. A laptop computer subsequently seized from the respondent's home revealed that the respondent had accessed numerous blog posts containing practical advice for women travelling to Islamic State-controlled territory, which at that time included regions of Syria and Iraq bordering Turkey. A covert listening device installed in the respondent's home captured the respondent swearing a bay'ah (pledge of allegiance) to the then leader of Islamic State. On 23 May 2017, the respondent was charged with intentionally being a member of a terrorist organisation, namely Islamic State, contrary to s 102.3(1) of the Code. Section 102.1 of the Code defined "member of an organisation" as including "a person who has taken steps to become a member of the organisation". The Crown case at trial was that the respondent had intentionally taken steps to become a member of Islamic State. In addition to evidence of the respondent's attempted travel to Istanbul, evidence extracted from the respondent's electronic devices, records of the respondent's interviews with AFP officers and transcripts of audio files captured by listening devices installed in the respondent's home, the Crown adduced expert evidence as to the nature and activities of Islamic State, its aims and ideology, and its methods of attracting recruits and communicating with those adhering to its ideology. The jury returned a unanimous verdict of guilty. The respondent appealed against her conviction to the Full Court. By majority, the Full Court allowed the appeal and ordered that the respondent's conviction be quashed, finding that the evidence adduced at trial was incapable of sustaining the conviction because it did not establish how members of the terrorist organisation were recruited or selected or the process by which members were inducted and accepted into the organisation. By grant of special leave, the Crown appealed to the High Court. By notice of contention, the respondent contended that the trial judge's summing up was unbalanced and that the trial judge failed to properly direct the jury as to the elements of the offence. By majority, the High Court allowed the appeal and dismissed each of the grounds raised in the respondent's notice of contention, holding that it was open to the jury to be satisfied beyond reasonable doubt on the evidence adduced that the respondent intentionally took steps to become a member of Islamic State. The nature and purpose of the offence-creating provisions in Pt 5.3 of the Code dictate that they must be taken to extend to groups devoid of structural hierarchy that function in secrecy, with little formality, without a written constitution or set of rules, and without a contractual relationship between members. The offence of taking steps to become a member of a terrorist organisation in s 102.3(1) of the Code allows for the practical difficulties associated with the penetration of the unstructured and opaque nature of terrorist organisations to be surmounted by proof falling short of evidence establishing the process by which a terrorist organisation recruits, inducts and accepts members. The majority further held that the trial judge neither conflated the physical and mental elements of the offence nor failed to give the jury sufficient guidance as to what constituted steps to become a member of a terrorist organisation. The trial judge's summing up, though imperfect, was not unbalanced.
+HIGH COURT OF AUSTRALIA 9 December, 2003 APPELLANT S395 OF 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS APPELLANT S396 OF 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS The High Court of Australia today allowed an appeal from two men who claimed to have a well- founded fear of persecution in their native Bangladesh because of their homosexuality. The men arrived in Australia in 1999 and applied for protection visas, claiming refugee status. Their application was rejected by the Immigration Department, the Refugee Review Tribunal, the Federal Court and the Full Court of the Federal Court. The RRT raised doubts about their credibility, rejecting claims they were forced to leave their Dhaka home, that they had lost their jobs and that a religious court had issued a fatwa sentencing them to death by stoning. It also rejected the claim by one that he could not get work between 1980 and 1991, was sentenced to 300 lashes in 1985, and was attacked in his home with a previous male partner. The RRT said the men had conducted themselves discreetly in the past and rejected their claims that they had suffered, and would suffer, serious harm. The RRT did accept that the men were shunned by their families and may have been the subject of neighbours’ gossip, but held that this did not constitute persecution. The men claimed the Federal Court erred in failing to hold that the RRT’s decision involved an error of law, involving incorrect interpretation of the Migration Act or an incorrect application of the Act to the facts. They said that, having determined that homosexuality was unacceptable in Bangladesh and could lead to potential harm such as being bashed by police, the RRT erred in then holding that the men did not have a well-founded fear of persecution. The High Court, by a 4-3 majority, allowed the men’s appeals. It held that the RRT should have considered what might happen if they had lived openly as a homosexual couple. The majority held that the RRT also fell into jurisdictional error by dividing Bangladeshi homosexuals into two groups – discreet and non-discreet – and failed to consider whether the men might suffer harm if police, employers or others became aware of their homosexuality. Although they were discreet, it did not necessarily follow that they would not be persecuted. The question was whether particular individuals had a well-founded fear of being persecuted even though other members of a particular social group had not suffered persecution. The Court ordered the RRT to redetermine its review of the Immigration Department’s decision.
+HIGH COURT OF AUSTRALIA 10 February 2004 BROADCAST AUSTRALIA PTY LTD v MINISTER ASSISTING THE MINISTER FOR NATURAL RESOURCES (LANDS) A piece of land that the New South Wales government allowed the Commonwealth to use to build a television transmitter could validly be handed over to a company after the Commonwealth privatised its transmission network, the High Court of Australia held today. In 1961 the Minister granted a permissive occupancy to the Commonwealth over land at Mt Sugarloaf, near Newcastle, to build a transmission station. In 1998 the Minister gave notice of a redetermination of the rent. The Commonwealth objected but rent was set at $74,000 a year and in April 1999 the Commonwealth appealed to the NSW Land and Environment Court. Later that month, pursuant to the National Transmission Network Sale Act 1998, the Commonwealth Minister for Finance and Administration made a declaration vesting the Commonwealth’s entitlement to certain sites, including Mt Sugarloaf, in the company now known as Broadcast Australia. The company was then substituted for the Commonwealth in the Land and Environment Court proceedings. The Minister claimed the 1961 permissive occupancy was revoked by the Commonwealth ministerial declaration. This claim was rejected by the Land and Environment Court but upheld by a majority of the NSW Court of Appeal which held that without the Minister consenting to the transfer, the permissive occupancy would be terminated. In the High Court the Minister argued that while the permissive occupancy was in a sense a Commonwealth asset, it was a creation under NSW law and not an asset capable of being vested by Commonwealth statute in another body. The High Court unanimously held that for the Minister’s argument to be correct there had to be some provision of State law preventing the Commonwealth Act from taking effect and insulating the permissive occupancy from Commonwealth law. If there was such a State law it would have altered, impaired or detracted from the operation of the Commonwealth Act and would thus be invalid under section 109 of the Constitution to the extent of the inconsistency. Therefore, both the Commonwealth Act and the Commonwealth ministerial declaration took effect. The Court also held that the ministerial declaration did not revoke the permissive occupancy. It allowed Broadcast Australia’s appeal.
+HIGH COURT OF AUSTRALIA Public Information Officer 21 March 2007 ATTORNEY-GENERAL FOR THE STATE OF VICTORIA v KEVIN JAMES ANDREWS, MINISTER FOR EMPLOYMENT AND WORKPLACE RELATIONS; MEMBERS OF THE SAFETY, REHABILITATION AND COMPENSATION COMMISSION; OPTUS ADMINISTRATION PTY LTD AND VICTORIAN WORKCOVER AUTHORITY The High Court of Australia today upheld workers’ compensation laws which allowed large companies to opt out of compulsory State schemes. Optus argued that to have a level playing field it should be subject to the same Commonwealth workers’ compensation scheme as its main competitor, Telstra. It applied to the Minister to be declared an eligible corporation and to be licensed under the federal Safety, Rehabilitation and Compensation (SRC) Act. The licence was granted by the SRC Commission and took effect on 30 June 2005. Under the licence it is left to a corporation to organise its own insurance cover in respect of its liabilities for death or injury of workers. Optus expects to save $186,000 a month, or $2,232,000 a year, by opting out of Victorian WorkCover. Victoria and the Victorian WorkCover Authority (VWA) argue that the relevant provisions of the SRC Act are beyond Commonwealth legislative power to the extent that they purport to authorise the grant to Optus of a licence, authorise Optus to accept liability for workers’ compensation, and remove Optus from the scheme of State insurance. They say the provisions infringe the constitutional insurance power, section 51(xiv), which provides that Parliament has the power to make laws with respect to insurance, other than State insurance. The Minister argues that the power to enact the provisions is conferred by section 51(xx) (the corporations power) and/or by section 51(v) (dealing with postal, telegraphic, telephonic and other like services). The VWA issued proceedings in the Federal Court of Australia, seeking declarations that the licence granted to Optus was invalid and that the relevant provisions of the SRC Act were beyond the legislative power of the Commonwealth. Justice Bradley Selway dismissed the application. He found there was no basis for treating “State insurance” in section 51(xiv) as extending to State laws requiring persons to insure with a State insurer or conferring an economic monopoly on a State insurer. The Victorian Attorney-General appealed to the Full Court of the Federal Court and successfully applied to have the matter removed into the High Court. The High Court, by a 5-2 majority, dismissed the appeal and held that the licensing provisions of the SRC Act are valid. They were not laws with respect to insurance, whether State insurance or otherwise, but were rather supported by other heads of Commonwealth legislative power, including the corporations power in section 51(xx) of the Constitution. It held that a State law requiring Optus to meet liabilities under a State compensation scheme would alter, impair or detract from a federal scheme, so the State law would be invalid to the extent of the inconsistency under section 109 of the Constitution. The result of the operation of section 109 upon Victoria’s Accident Compensation Act is that Optus is not subject to compulsory WorkCover insurance. The Court held that Victorian provisions which are rendered invalid to the extent of inconsistency with federal licensing provisions share the character of laws with respect to workers’ compensation. The federal law did not otherwise impair Victoria’s capacity to conduct insurance business.
+HIGH COURT OF AUSTRALIA 7 October 2020 NORTHERN LAND COUNCIL & ANOR V QUALL & ANOR [2020] HCA 33 Today the High Court unanimously allowed an appeal from a judgment of the Full Court of the Federal Court of Australia. The issue raised by the appeal was whether the Northern Land Council ("the NLC") has the power to delegate to its Chief Executive Officer ("the CEO") the function conferred on it by s 203BE(1)(b) of the Native Title Act 1993 (Cth) ("the NT Act") of certifying applications for registration of indigenous land use agreements ("ILUAs"). Under s 203BE(5) of the NT Act, a representative body must not certify an application for registration of an ILUA unless it is of the opinion that all reasonable efforts have been made to ensure that all persons who hold or may hold native title in relation to land or waters in the area covered by the agreement have been identified and that those persons have authorised the making of the agreement. Under s 203BE(6), a certification of an application for registration of an ILUA must include a statement to the effect that the representative body is of the opinion that the requirements of s 203BE(5) have been met and briefly set out its reasons for being of that opinion. Section 27(1) of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) ("ALR Act") relevantly provides that, subject to the ALR Act, a Land Council may do all things necessary or convenient to be done for or in connection with the performance of its functions. In 2016, the NLC made an ILUA in relation to land and waters at the Cox Peninsula near Darwin which was varied in February 2017 ("the Kenbi ILUA"). In March 2017, the CEO signed a certificate purporting to act as a delegate of the NLC stating that the NLC certified the application for registration of the Kenbi ILUA pursuant to s 203BE(1)(b) of the NT Act and that the NLC was of the opinion that the requirements of s 203BE(5) were met. Mr Quall and Mr Fejo commenced judicial review proceedings in the Federal Court challenging the efficacy of the certificate on the grounds that the NLC's certification function under s 203BE(1)(b) was not delegable or, if it was delegable, it was not validly delegated by the NLC to the CEO. The primary judge rejected the first ground but accepted the second, with the result that the certificate was declared not to amount to certification pursuant to s 203BE(1)(b) of the NT Act. The NLC and the CEO appealed to the Full Court of the Federal Court, and Mr Quall and Mr Fejo brought a cross-appeal in which they argued that the NLC's certification function was not delegable. The Full Court allowed the cross-appeal on the basis that the certification function conferred by s 203BE(1)(b) was incapable of delegation, and as a result the issues in the appeal were not determined. The NLC and the CEO appealed to the High Court, contending that the Full Court erred in holding that the NLC did not have the power to delegate the certification function conferred by s 203BE(1)(b) of the NT Act to the CEO. The High Court unanimously allowed the appeal. The majority of the Court held that the NLC has power under s 27(1) of the ALR Act to delegate the certification function conferred by s 203BE(1)(b) of the NT Act to the CEO if and to the extent that such delegation is objectively necessary or convenient to be done for or in connection with the performance of the certification function or other functions of the NLC. The minority held that, while the certification function under s 203BE(1)(b) of the NT Act is not delegable, the CEO can perform this function as an agent of the NLC. The appeal to the Full Court was remitted for determination of whether the certification function conferred by s 203BE(1)(b) of the NT Act was in fact duly delegated by the NLC to the CEO under s 27(1) of the ALR Act.
+HIGH COURT OF AUSTRALIA 8 May 2019 BIANCA HOPE RINEHART & ANOR v HANCOCK PROSPECTING PTY LTD & ORS; BIANCA HOPE RINEHART & ANOR v GEORGINA HOPE RINEHART (IN HER PERSONAL CAPACITY AND AS TRUSTEE OF THE HOPE MARGARET HANCOCK TRUST AND AS TRUSTEE OF THE HFMF TRUST) & ORS [2019] HCA 13 Today the High Court unanimously dismissed appeals from two decisions of the Full Court of the Federal Court of Australia. The High Court found that disputes as to the validity of certain deeds are subject to arbitral clauses in those deeds. By majority, the High Court also allowed a cross-appeal from one of the decisions, finding that three companies who were not parties to the deeds were "part[ies]" within the meaning of s 2(1) of the Commercial Arbitration Act 2010 (NSW) ("the NSW Act"). The appeals and cross-appeal arise out of proceedings brought in the Federal Court of Australia by the appellants, Ms Bianca Rinehart and Mr John Hancock, in which they make a number of claims concerning the conduct of Mrs Gina Rinehart, Hancock Prospecting Pty Ltd ("HPPL") and others, which is said to have diminished the assets of trusts of which the appellants are beneficiaries ("the substantive claims"). Mrs Rinehart sought an order pursuant to s 8(1) of the NSW Act that the matters the subject of the proceedings be referred to arbitration. That sub-section relevantly provides that a court before which an action is brought in a matter which is the subject of an arbitration agreement must in certain circumstances refer the parties to arbitration. Mrs Rinehart, HPPL and other related companies also sought orders including that the proceedings be dismissed or permanently stayed. All of these applications relied upon a number of deeds between one or both of the appellants and various of the respondents. The three deeds the subject of the appeals ("the Deeds") came into existence against the background of and were addressed to claims and threats of litigation made publicly by Mr Hancock in relation to the substantive claims. Each Deed contains an arbitral clause providing that in the event of a dispute "under this deed" (or, in one of the Deeds, "hereunder") there is to be a confidential arbitration. The appellants claimed that the Deeds are void as against them because their assent was procured by misconduct on the part of Mrs Rinehart, HPPL and others ("the validity claims"). The primary judge held that the validity claims are not subject to the arbitral clauses, based on a perceived limitation on the scope of the clause resulting from the words "under this [deed]". The Full Court disagreed, holding that the arbitral clauses should be given a liberal interpretation, such that the arbitrator could deal with all issues, including the validity claims. The High Court unanimously held that it is clear that the arbitral clauses, construed in context, include as their subjects the validity claims. It could not have been understood by the parties to the Deeds that any challenge to the efficacy of the Deeds was to be determined in the public spotlight. In relation to the cross-appeal, at first instance three companies who are not parties to the Deeds applied for orders that the claims against them be referred to arbitration pursuant to s 8(1) of the NSW Act on the basis that each was a person claiming "through or under" a party to one of the Deeds, and, therefore, a "party" within the extended definition in s 2(1) of the NSW Act. The primary judge rejected the application, and the Full Court upheld the rejection. By majority, the High Court found that, having regard to the subject matter in controversy, the third party companies, as assignees of mining tenements from parties to the relevant Deed, are persons claiming "through or under" a party to that Deed and, therefore, are parties for the purposes of s 8 of the NSW Act.
+HIGH COURT OF AUSTRALIA 8 December 2005 A home owner holding a garage sale had not been negligent in failing to take measures to stop a customer tripping on an uneven driveway surface, the High Court of Australia held today. Ms Junkovic, then 53, attended the garage sale Ms Neindorf held at her home on Saturday, 5 February 2000. As she walked up the driveway she tripped on an uneven join in the concrete. One slab of concrete was 10 to 12mm higher than the other. The difference in height was clearly visible. Ms Junkovic fractured a bone in her right foot. She successfully sued Ms Neindorf in the Magistrates Court of South Australia. The Magistrate held that Ms Neindorf had breached the duty of care she owed Ms Junkovic and awarded damages of $24,464. Ms Neindorf successfully appealed to a single judge of the Supreme Court but this decision was overturned by a majority of the Full Court. She then appealed to the High Court. The Court, by a 4-1 majority, allowed the appeal. It held that Ms Neindorf had a duty to take reasonable care but in the circumstances this did not extend to taking action such as painting lines, erecting warning signs, carpeting over the join or placing a table over it. The Court said that the danger was minor and obvious and such cracks and unevenness were to be found in footpaths and driveways throughout suburban Australia. Eliminating or warning against all potential hazards encountered at most homes was not practicable. The SA Wrongs Act listed factors to be taken into account in assessing the appropriate standard of care owed by an occupier such as a home owner. However, section 17(3) provided that the fact that an occupier had not taken measures to eliminate, reduce or warn against a danger arising from the condition of premises does not necessarily show that the occupier had failed to exercise a reasonable standard of care. The Court held that there was no failure to exercise reasonable care in this case.
+HIGH COURT OF AUSTRALIA 21 October 2005 ERNEST VAIRY v WYONG SHIRE COUNCIL; GARRY SEAN MULLIGAN v COFFS HARBOUR CITY COUNCIL, STATE OF NEW SOUTH WALES, COFFS HARBOUR JETTY FORESHORE RESERVE TRUST AND WAL HAMBLEY Two men seriously injured in separate water recreation activities were unable to recover damages for their injuries, the High Court of Australia held today. Mr Vairy, now 46, became a tetraplegic when he dived off a rock platform at Soldiers Beach on 24 January 1993 during an outing with his sister’s family. Other people were jumping and diving off the rocks and Mr Vairy decided to do the same. He frequently swam, snorkelled and fished at Soldiers Beach but had never dived off the rocks. Mr Vairy could not see the seabed and did nothing to assess the water’s depth before diving. He sued the Wyong Council in the NSW Supreme Court, claiming the council was negligent by failing to erect signs prohibiting diving. Mr Vairy said he had hit his head on the seabed but the council said a collision with another person was more likely. Justice Virginia Bell held that he had struck his head on the ocean floor and that such a risk was foreseeable while signs banning or warning against diving were inexpensive. In 1978, another diver had struck his head on the ocean floor in the same spot and become a tetraplegic. Lifesavers often warned people not to dive from the platform but were often rudely rebuffed. Justice Bell awarded damages for the council’s negligence, but reduced them by 25 per cent for Mr Vairy’s contributory negligence to $5,054,753.25. The Court of Appeal, by majority, allowed the council’s appeal. Mr Vairy appealed to the High Court. Mr Mulligan, now 36, from Ireland, was in Australia on holiday with his girlfriend when he was rendered a quadriplegic while diving in Coffs Creek at Park Beach near Coffs Harbour on 24 January 1999. The creek had been altered to create a pool of sheltered water for swimming. Rock retaining walls created a fast-flowing channel into the pool. People regularly jumped and dived into the channel to be carried along by the water to the beach. Several times Mr Mulligan waded out into the water until the level of the creek bed fell, made a shallow dive and rode the water to the beach. He then struck his head on an elevated part of the creek bed. Mr Mulligan unsuccessfully sued the respondents for negligence for a lack of warning signs. The Court of Appeal unanimously dismissed an appeal and he appealed to the High Court. The appeals by Mr Mulligan and Mr Vairy were heard together in both the Court of Appeal and the High Court. The High Court dismissed both appeals, the appeal by Mr Vairy by a 4-3 majority, and the appeal by Mr Mulligan unanimously. In respect of Mr Vairy’s appeal, it held that Wyong Council’s duty of care did not include erecting signs warning against or prohibiting diving at Soldiers Beach, just one beach on the council’s 27km of coastline. Seawaters carry inherent risks and an experienced adult could be assumed to appreciate the risks of diving into the sea from a rock platform. In respect of Mr Mulligan’s appeal, the Court also held that Coffs Harbour Council’s duty of care did not extend to posting warning signs at Coffs Creek when the danger of diving into water of variable depth exists at most beaches and most waterways.
+HIGH COURT OF AUSTRALIA 5 October 2011 MULDROCK v THE QUEEN [2011] HCA 39 Today the High Court allowed an appeal from the Court of Criminal Appeal of the Supreme Court of New South Wales which had increased the non-parole period imposed on a mentally retarded sex offender from 96 days to six years and eight months. Mr Muldrock pleaded guilty before the District Court of New South Wales to the offence of sexual intercourse with a child aged under 10 years. Mr Muldrock is mentally retarded. He was sentenced to nine years' imprisonment with a non-parole period of 96 days. The judge imposed a condition of parole that Mr Muldrock reside at a residential treatment facility with a program designed to assist intellectually handicapped individuals to moderate their sexually inappropriate behaviour until it was determined that he be discharged. Mr Muldrock's application for leave to appeal against the severity of sentence was refused by the Court of Criminal Appeal and the respondent's appeal against the inadequacy of the length of the non-parole period was allowed. It was common ground that the sentencing judge's discretion had miscarried because he did not have the power to impose conditions on a parole order for a sentence of nine years' imprisonment. The Court of Criminal Appeal held that the non-parole period imposed upon Mr Muldrock was inappropriate and was critical of the sentencing judge's failure to consider the "objective seriousness" of the offence and the part that the standard non-parole period should play in determining the appropriate sentence. In doing so, the Court applied its earlier decision in R v Way (2004) 60 NSWLR 168 ("Way") on the application of Division 1A of Part 4 of the Crimes (Sentencing Procedure) Act 1999 (NSW), which prescribed standard non-parole periods for specified offences. Mr Muldrock was re-sentenced to a non-parole period of six years and eight months. Mr Muldrock appealed to the High Court by special leave. The High Court held that the Court of Criminal Appeal erred in refusing Mr Muldrock leave to appeal his sentence and that Way was wrongly decided with respect to the operation of standard non-parole periods. The High Court held that in sentencing for an offence to which standard non- parole periods applied a court is not required or permitted to engage in a two-stage approach and that the standard non-parole period should not have been determinative in sentencing Mr Muldrock. The High Court also held that, in re-sentencing Mr Muldrock, the Court of Criminal Appeal made various errors. In particular, the Court of Criminal Appeal did not take sufficient account of Mr Muldrock's mental retardation and erred in finding that Mr Muldrock would receive treatment in the prison system. The High Court held that the desirability of Mr Muldrock undergoing suitable rehabilitative treatment was capable of being a special circumstance justifying departure from the statutory proportion between the non-parole period and the term of the sentence and that the sentencing principles of punishment and denunciation did not require significant emphasis in light of Mr Muldrock's limited moral culpability for his offence. The Court held that nine years' imprisonment was manifestly excessive. The Court further held that the availability of orders under the Crimes (Serious Sex Offenders) Act 2006 (NSW) was not relevant to sentencing Mr Muldrock.
+HIGH COURT OF AUSTRALIA 4 March 2015 KORDA & ORS v AUSTRALIAN EXECUTOR TRUSTEES (SA) LIMITED [2015] HCA 6 Today the High Court unanimously allowed an appeal from a decision of the Court of Appeal of the Supreme Court of Victoria. The Court held that the proceeds of the sale of timber and scheme land, which were payable to the operators of a timber plantation investment scheme, were not subject to an express trust in favour of the scheme investors. The third appellant, "the Forest Company", planted pine trees on land it owned or leased. When the trees were mature, they were felled and the logs were sold by the fourth appellant, "the Milling Company". After making certain allowances and deductions, the Milling Company was to pay the residue of the proceeds of sale of the timber to the Forest Company by instalments. Prospectuses were issued seeking investment in the scheme. The scheme investors, "Covenantholders", entered into "Covenants" with the Forest Company. Each Covenant recorded that it entitled the Covenantholder to "the net proceeds from the timber apportionable" to a specified portion of the area planted by the Forest Company in the year stated in the Covenantholder's application. As the relevant legislation required, the Forest Company also made a deed with the respondent, "the Trustee Company", as trustee for the Covenantholders. Upon receiving the proceeds of sale of the timber from the Milling Company, the Forest Company was to retain specified expenses and then pay the balance of the proceeds to the Trustee Company for distribution to Covenantholders. The Trust Deed imposed numerous obligations on the Forest Company, but contained no provision expressly declaring or providing that the Forest Company was, or was to act as, a trustee. In September 2012, the first and second appellants were appointed as the receivers and managers over the Forest Company and Milling Company. The Trustee Company claimed on behalf of the Covenantholders that the proceeds of a sale of timber which was payable to the Milling Company, and the proceeds of a sale of land on which timber was grown which was payable to the Forest Company, were subject to an express trust in the hands of the Forest Company or the Milling Company in favour of the Covenantholders, and thus not available to the receivers and managers. The Trustee Company succeeded in the Supreme Court of Victoria and declarations were made that it was beneficially entitled to the tree sale proceeds and a proportion of the land sale proceeds. An appeal to the Court of Appeal of the Supreme Court of Victoria was dismissed by majority. By special leave, the receivers and managers and others appealed to the High Court. The High Court held that the scheme documentation did not support the existence of a trust or trusts over the proceeds in the hands of the Forest Company and Milling Company.
+HIGH COURT OF AUSTRALIA 3 April 2013 HUNT & HUNT LAWYERS v MITCHELL MORGAN NOMINEES PTY LTD & ORS [2013] HCA 10 Today a majority of the High Court allowed an appeal from a decision of the Court of Appeal of the Supreme Court of New South Wales, which held that the loss caused to the first and second respondents (together "Mitchell Morgan") by the negligent drafting of a mortgage by the appellant ("Hunt & Hunt") was distinct from the loss caused by two fraudsters who induced Mitchell Morgan to advance money on the security of the mortgage. On the basis of a fraudulently obtained certificate of title and forged documentation presented by the fraudsters, Mitchell Morgan advanced a sum of money to a bank account. The money was advanced on the security of a mortgage over a property. One of the fraudsters withdrew the money using forged cheques and then closed the account. Hunt & Hunt, a firm of lawyers, acted for Mitchell Morgan on the transaction and drafted the mortgage. Mitchell Morgan sought compensation from Hunt & Hunt. In the Supreme Court of New South Wales, Hunt & Hunt was held to have drafted the mortgage negligently, causing the loss claimed by Mitchell Morgan. However, the primary judge held that the conduct of each of the fraudsters was also a cause of that loss. Hunt & Hunt, together with each of the fraudsters, was therefore a concurrent wrongdoer and, under s 35(1) of the Civil Liability Act 2002 (NSW), the loss was apportioned between them according to what the primary judge considered was just. The Court of Appeal allowed Mitchell Morgan's appeal from that decision and held that Hunt & Hunt was wholly responsible for Mitchell Morgan's loss. The Court held that the loss suffered by Mitchell Morgan due to Hunt & Hunt's negligence was different from the loss suffered due to the fraudsters' conduct. Therefore, the fraudsters did not cause the loss claimed by Mitchell Morgan against Hunt & Hunt and they were not liable as concurrent wrongdoers in respect of it. By special leave, Hunt & Hunt appealed to the High Court. A majority of the High Court held that the loss suffered by Mitchell Morgan was its inability to recover the money advanced. While Hunt & Hunt's negligent drafting of the mortgage was a cause of that loss, Mitchell Morgan would never have needed to take a mortgage had it not been induced by the fraudsters to enter into the transaction. The fraudsters' conduct was a material cause of the loss Mitchell Morgan suffered. The majority reinstated the primary judge's conclusion on apportioning loss between the concurrent wrongdoers.
+HIGH COURT OF AUSTRALIA 12 November 2008 COMMISSIONER OF TAXATION v SHANE DAY Public Information Officer A Customs officer charged with misconduct offences could claim a tax deduction for his legal expenses as the offences were connected with his work, the High Court of Australia held today. Shane Day was charged with failure of duty in 1998 and in 1999 and obtained legal advice and representation. The 1998 charge was of improper conduct by presenting his Customs identification to a clerk at the Downing Centre Local Court in Sydney to try to obtain information about a search warrant which had been executed on the Australian Customs Service. Mr Day was unsuccessful. The warrant had authorised the Australian Federal Police to search his workstation. An authorised Customs officer found that it was improper for Mr Day to have conveyed that his purpose was official. He was demoted and his salary reduced. The Disciplinary Appeal Committee found the charge proved but upgraded the position and salary from that directed by the inquiry officer. In judicial review proceedings in the Federal Court, Justice Roger Gyles held that the conduct was not improper and remitted the case to the Committee which set aside the direction of the inquiry officer and ordered the Commonwealth to pay Mr Day’s costs. A Full Court of the Federal Court dismissed the Commonwealth’s appeal from Justice Gyles’s decision. Mr Day was charged with a set of seven charges in 1999 and suspended without pay. Three charges related to his conduct in connection with a claim for a diesel fuel rebate by the partner of another Customs officer, including helping to create a false diary. The fourth charge was that he had acquired a work vehicle for a fellow officer to transport Mr Day’s daughter. Two charges involved his actions to conceal absences from work, by asking a colleague to cover for him and to switch his computer on, and by submitting a false attendance record. The seventh charge was that he failed to communicate information concerning an investigation into an individual. Mr Day commenced proceedings in the Federal Court to have the charges set aside, alleging that information obtained by the AFP through telephone intercepts as part of a criminal investigation was wrongly made available to Customs officials. That application, an appeal to a Full Court, and an application for special leave to appeal to the High Court were refused with costs. For the financial year 2001-02, Mr Day claimed that $37,077 of outstanding legal expenses should have been allowed as a tax deduction. The deduction was refused and the Tax Commissioner disallowed his objection to his income tax assessment. Mr Day appealed to the Federal Court. Justice Arthur Emmett held that the legal expenses were not deductible as they were not incurred in gaining or producing taxable income in accordance with section 8-1(1)(a) of the Income Tax Assessment Act, but also held that the Commissioner be estopped from contending that expenses from the 1999 charges were not deductible as it had earlier consented to a deduction for fees paid to one counsel for legal advice. The Full Court of the Federal Court, by majority, allowed the Commissioner’s appeal on the issue of estoppel, but allowed Mr Day’s cross-appeal, holding the expenses to have been properly deductible under section 8-1(1)(a). The Commissioner appealed to the High Court. The Court dismissed the appeal by a 4-1 majority. It held that Mr Day’s legal expenses were properly allowable as deductions. What was productive of his income was to be found in all the incidents of his position in Customs, including his obligation to observe standards of conduct which if breached might entail disciplinary charges. Mr Day’s outgoings by way of legal expenses followed upon the bringing of the charges with respect to his conduct, or misconduct. He was exposed to those charges and consequential expenses by reason of his office. The charges could not be viewed as remote from his office or of a private nature. Whether the charges were well-founded was not relevant to the question of deductibility. The Court held that the incurring of expenses by an employee to defend a charge that may result in their dismissal may not always establish a necessary connection to the employment which was productive of income. Much depended on what was entailed in the employment and duties it imposed upon an employee. In Mr Day’s case, the requisite connection was present.
+HIGH COURT OF AUSTRALIA 4 March 2015 AUSTRALIAN COMMUNICATIONS AND MEDIA AUTHORITY v TODAY FM (SYDNEY) PTY LTD [2015] HCA 7 Today the High Court unanimously held that the Australian Communications and Media Authority has power to make an administrative finding or express an opinion that a person has committed a criminal offence for the purpose of determining whether the holder of a commercial radio broadcasting licence ("a licensee") has breached the licence condition prescribed by cl 8(1)(g) of Sched 2 to the Broadcasting Services Act 1992 (Cth) ("the BSA"). That condition requires that a licensee not use its broadcasting service in the commission of an offence against a Commonwealth Act (other than the BSA) or a law of a State or Territory. In December 2012, Today FM (Sydney) Pty Ltd, a licensee, recorded a telephone call between two presenters of one of its radio programs and two members of the staff of the King Edward VII Hospital in London, at which the Duchess of Cambridge was an in-patient. Today FM did not obtain the consent of either of the hospital staff to the recording. The recording was broadcast during the program some hours later and re-broadcast the following day. The Authority initiated an investigation into the broadcast under the BSA and produced a preliminary investigation report, a copy of which was provided to Today FM. The report contained a preliminary finding that, in broadcasting the recording, Today FM had committed an offence under s 11 of the Surveillance Devices Act 2007 (NSW) ("the SDA") (which, relevantly, prohibits the communication of a private conversation obtained, without the consent of the principal parties to that conversation, through the use of a listening device) and, consequently, had breached the cl 8(1)(g) licence condition. The Authority later finalised its report and determined that Today FM had breached the cl 8(1)(g) licence condition. In June 2013, Today FM commenced proceedings in the Federal Court of Australia seeking declaratory and injunctive relief. It contended, first, that the Authority was not authorised to find that it had breached the cl 8(1)(g) licence condition unless and until a competent court adjudicated that it had committed the SDA offence. In the alternative, Today FM argued that, if the Authority was so authorised, the authorising legislative provisions are invalid because they are inconsistent with the separation of executive and judicial power under the Constitution. At first instance, the Federal Court rejected both of Today FM's arguments and dismissed the proceedings but, on appeal, the Full Court of the Federal Court accepted Today FM's first argument and set aside the Authority's determination. By grant of special leave, the Authority appealed to the High Court. In allowing the appeal, the Court held that the Authority does have power to make an administrative determination that a licensee has committed a criminal offence as a preliminary to taking enforcement action under the BSA, notwithstanding that there has been no finding by a court exercising criminal jurisdiction that the offence has been proven. This is because, in making such a determination, the Authority is not adjudging and punishing criminal guilt. The Court also held that, in making a determination, the Authority is not exercising judicial power.
+HIGH COURT OF AUSTRALIA 10 May 2013 ARISTOCRAT TECHNOLOGIES AUSTRALIA PTY LTD & ORS v GLOBAL GAMING SUPPLIES PTY LTD & ORS; ARISTOCRAT TECHNOLOGIES AUSTRALIA PTY LTD & ORS v ALLAM & ORS [2013] HCA 21 On 2 May 2013, the HIGH COURT OF AUSTRALIA refused special leave to appeal against two decisions of the Full Court of the Federal Court of Australia in which the Full Court characterised evidence as tendency evidence, but held that it could not be relied upon as tendency evidence because there had been no compliance with the tendency evidence rule in s 97(1) of the Evidence Act 1995 (Cth) ("the Act") at first instance. Today the High Court delivered its reasons for refusing special leave. The respondents were in the business of refurbishing and selling second-hand gaming machines in overseas markets. The applicants alleged that the respondents had infringed their copyright under the Copyright Act 1968 (Cth) by selling second-hand gaming machines assembled using pirated copies of material in which the applicants held the copyright. At first instance, a single judge of the Federal Court admitted email communications of the respondents which were used by the primary judge to satisfy the knowledge element of the alleged copyright infringements. The applicants succeeded at first instance. On appeal, the Full Court held that the primary judge had relied on those email communications to infer that the respondents had a tendency to engage in copyright infringing conduct, thereby satisfying the knowledge element of the alleged infringement. Section 97(1) of the Act provides that evidence of a person's tendency to act in a particular way is not admissible to prove that tendency unless reasonable notice is given and the court thinks that the evidence has significant probative value. As there had been no compliance with the tendency rule at first instance, the Full Court held that the email communications could not be used as tendency evidence. The applicants were unable to otherwise prove the knowledge element of the relevant infringements and the appeals were allowed. The applicants applied for special leave to appeal the decisions of the Full Court to the High Court. The High Court held that it was open to the Full Court to characterise the primary judge's reasoning as based upon the discernment of a tendency on the part of the respondents, that the applications did not raise any question of public importance and that the Full Court's decisions were not attended with sufficient doubt to warrant a grant of special leave.
+HIGH COURT OF AUSTRALIA 4 May 2016 GREGORY IAN ATTWELLS & ANOR v JACKSON LALIC LAWYERS PTY LTD [2016] HCA 16 Today the High Court, by majority, allowed an appeal against a decision of the Court of Appeal of the Supreme Court of New South Wales. A majority of the High Court held that the advocate's immunity from suit does not extend to negligent advice given by a lawyer which leads to the settlement of a case by agreement between the parties embodied in consent orders. The first appellant and another person guaranteed payment of the liabilities of a company to a bank. The company defaulted on its obligations to the bank and the bank commenced proceedings against the guarantors in the Supreme Court of New South Wales ("the guarantee proceedings"). The guarantors and the company retained the respondent firm of solicitors to act for them. The amount of the company's debt to the bank was $3.4 million. The guarantors' liability under the guarantee was limited to $1.5 million. The proceedings were settled on the opening day of the trial on terms that judgment would be entered against the guarantors and the company for almost $3.4 million, but the bank would not seek to enforce payment of that amount if the guarantors paid to the bank the sum of $1.75 million before a specified date. The terms of the settlement were reflected in a consent order for judgment in the amount of $3.4 million and the Court's noting of the non-enforcement agreement between the parties. The guarantors failed to meet their payment obligation under the settlement before the specified date. The appellants then brought proceedings in the Supreme Court against the respondent ("the negligence proceedings") alleging that it was negligent in advising them to consent to judgment being entered in the terms of the consent orders and in failing to advise them as to the effect of the consent orders. The respondent asserted that it was immune from suit by virtue of the advocate's immunity. The immunity question was ordered to be determined separately from the negligence proceedings. The primary judge declined to answer the separate question on the basis that, without further evidence in relation to the respondent's alleged negligence, his Honour could only form a view about the application of the advocate's immunity on a hypothetical basis. The Court of Appeal granted leave to appeal and held that the respondent was immune from suit because the negligence proceedings would necessarily involve a re-agitation of the issues raised in the guarantee proceedings. By grant of special leave, the appellants appealed to the High Court. The Court, by majority, allowed the appeal. The Court unanimously declined to reconsider its previous decisions on the advocate's immunity, which confirmed that the immunity extends to "work done out of court which leads to a decision affecting the conduct of the case in court". Nevertheless, the Court held, by majority, that the respondent was not immune from suit, because the advice to settle the proceedings was not intimately connected with the conduct of the case in court in that it did not contribute to a judicial determination of issues in the case. This conclusion was not affected by the circumstance that the parties' settlement agreement was embodied in consent orders.
+HIGH COURT OF AUSTRALIA 2 September 2004 ELECTROLUX HOME PRODUCTS PTY LIMITED v AUSTRALIAN WORKERS UNION, AUTOMOTIVE FOOD METAL ENGINEERING PRINTING AND KINDRED INDUSTRIES UNION, COMMUNICATIONS ELECTRICAL ELECTRONIC ENERGY INFORMATION POSTAL PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA, AND THE MINISTER FOR EMPLOYMENT AND WORKPLACE RELATIONS A certified agreement could not include a provision requiring employers to collect on behalf of unions a bargaining agent’s fee from non-union employees, the High Court of Australia held today. During negotiations with the AWU, AMWU and CEPU over a new certified agreement in 2001, whitegoods manufacturer Electrolux objected to the inclusion of a $500 bargaining agent’s fee to be deducted from non-union employees’ wages. No agreement was forthcoming and in September 2001 the unions gave Electrolux notice of intended industrial action, in the form of rolling stoppages. The union claimed the stoppages were a protected action, pursuant to section 170ML of the Workplace Relations Act. Electrolux claimed the industrial action was not protected because the issue of a bargaining agent’s fee was not a matter pertaining to the relationship between employer and employee, within the meaning of section 170LI of the Act. Electrolux commenced litigation in the Federal Court which made declarations that the industrial action was not protected action and breached the Act. The declarations made by Justice Ronald Merkel were set aside by the Full Court of the Federal Court. Electrolux then appealed to the High Court in each of three related matters. The unions argued even if the bargaining agent’s fee was not a matter pertaining to the employer- employee relationship referred to in section 170LI that did not necessarily mean an agreement containing such a term was not an agreement in accordance with section 170LI. The Court held that the principle was well-established that matters pertaining to the relationship between employers and employees are matters which affect them in their capacity as employers and employees. A particular application of the principle, as decided by a line of earlier cases, was that a proposal for an employer to deduct union fees from employees’ wages and remit them to a trade union was not one that affected employers and employees in their capacity as such. The introduction of certified agreements via the Workplace Relations Act did not change the meaning of matters pertaining to the employer-employee relationship. If any objectionable provisions were included in a proposed agreement then that agreement could not be certified by the Australian Industrial Relations Commission. The Court, by a 6-1 majority, allowed the three appeals and restored the orders of Justice Merkel.
+HIGH COURT OF AUSTRALIA 2 September 2015 ASTRAZENECA AB & ANOR v APOTEX PTY LTD; ASTRAZENECA AB & ANOR v WATSON PHARMA PTY LTD; ASTRAZENECA AB & ANOR v ASCENT PHARMA PTY LTD [2015] HCA 30 Today the High Court unanimously held that a patent which disclosed a method of treatment for hypercholesterolemia was invalid because it lacked an inventive step within the meaning of s 7(2) and 7(3) of the Patents Act 1990 (Cth) ("the Act"). Section 18(1)(b)(ii) of the Act provided as a requirement for a patentable invention that the invention must involve an inventive step. Sections 7(2) and 7(3) defined the condition on satisfaction of which an invention would not be taken to involve an inventive step. Relevantly, that condition was satisfied if the invention would have been obvious to a person skilled in the relevant art in light of the common general knowledge considered separately or together with prior art information publicly available in a single document before the priority date of the patent. The single document had to contain prior art information which could reasonably be expected to have been ascertained, understood and regarded by the skilled person, before the priority date, as relevant to work in the relevant art in the patent area. The first appellant in each appeal is the registered proprietor of Australian Patent Number AU200023051 ("the Patent"). The second appellant is the exclusive licensee of the Patent. The Patent disclosed as a method of treatment for hypercholesterolemia the administration of rosuvastatin and its pharmaceutically acceptable salts at a starting dosage of 5-10 milligrams per day. The respondents supplied generic compounds using rosuvastatin at like dosages. The appellants commenced proceedings in the Federal Court of Australia claiming infringement of the Patent by that supply and obtained interlocutory injunctions. The respondents sought revocation of the Patent. The primary judge found the Patent invalid on three grounds: that the appellants were not entitled to the Patent; that the invention disclosed in the Patent was not novel in light of two prior art publications; and that the invention disclosed in the Patent did not involve an inventive step and was obvious within the meaning of s 7(2) of the Act. The Full Court of the Federal Court of Australia overturned only the finding of lack of novelty and dismissed the appeals from the primary judge's decision. On its appeals to the High Court, the appellants sought to agitate all grounds of invalidity which had been upheld by the Full Court. The respondents raised other issues by notice of contention. The High Court unanimously dismissed the appeals on the basis that the invention claimed lacked an inventive step and was obvious in light of the common general knowledge together with either of the two prior art publications considered separately. It was unnecessary for the Court to consider the other ground of invalidity and issues raised in the notice of contention. This statement is not intended to be a substitute for the reasons of the High Court or to be used in any later consideration of the Court’s reasons.
+HIGH COURT OF AUSTRALIA 6 August 2008 COPYRIGHT AGENCY LIMITED v STATE OF NEW SOUTH WALES The State of New South Wales was not entitled to use surveyors’ plans without fairly remunerating copyright owners, the High Court of Australia held today. Members of the Copyright Agency Limited (CAL) include consulting surveyors. They own the copyright in their survey plans, which are “artistic works” protected by the Commonwealth Copyright Act. CAL is the relevant collecting society distributing remuneration to copyright owners. It applied to the Copyright Tribunal to determine the terms upon which the State could copy the survey plans and provide them to the public. Part VII, Division 2 of the Act provides for the use of copyright material by the Crown where “the Crown” includes the government of a State, and provides for an exception to infringement provisions which would otherwise apply. Because section 183(1) exempts the copying and distribution of plans from infringement if done for the services of a State, CAL did not contend that NSW was infringing the copyright in survey plans. The Act provides that a State, doing any acts within the copyright, must inform the copyright owner. Section 183A(2) provides that the government must pay the collecting society fair remuneration for the making of government copies using a method agreed on by the collecting society and the government or, if there were no agreement, determined by the Tribunal. The Copyright Tribunal referred 11 questions of law to a Full Court of the Federal Court of Australia. The appeal to the High Court related to questions 5 and 6. Question 5 asked whether the State, other than by operation of section 183 of the Act, was entitled to a licence to reproduce survey plans and to communicate them to the public. Question 6 asked if the answer to question 5 is “yes”, what were the terms of the licence. The Full Court answered “yes” to question 5 and answered question 6 by saying that the licence which they found was for the State to do everything it was obliged to do under the statutory and regulatory framework that governed registered plans. CAL appealed to the High Court on the issue of whether the Full Court erred in finding that the State had a licence to reproduce the plans and to communicate them to the public, independently of section 183 of the Act. CAL contended that section 183 was a statutory licence scheme leaving no room for the implication of a licence to copy the plans to communicate them to the public. The State relied upon a licence said to be implied by the conduct of a surveyor permitting survey plans to be registered in the knowledge of the uses to which they would be put. The High Court unanimously allowed the appeal. It answered “no” to question 5, making it unnecessary to answer question 6. The Court held that Part VII, Division 2 of the Copyright Act contained a comprehensive licence scheme for government use of copyright material. Copyright owners such as surveyors had a statutory right to seek terms upon which the State did any act within copyright and to receive remuneration for any government copying. The Court held that various factors militate against implying a licence in favour of the State in respect of its dealings with survey plans. First, nothing in the conduct of a surveyor in preparing plans for registration involved abandoning exclusive rights bestowed by the Act, particularly since the statutory licence scheme qualified those rights on condition that remuneration be paid for permitted uses. Secondly, surveyors could not practise their profession without consenting to the provision of survey plans for registration, knowing the subsequent uses to which plans would be put. Thirdly, an application by a surveyor for fair remuneration for government uses of survey plans involving copying and communication of the plans to the public after registration did not undermine clients’ use of the survey plans for lodgement for registration and issue of title. Fourthly, neither a surveyor nor their client could factor into fees under the contract between them, copying for public uses done by the State. Fifthly, the State charged for copies issued to the public. Sixthly, nothing in the express terms of section 183(1) could justify reading down the expression “for the services of the ... State” to exclude copying and communication of plans to the public.
+HIGH COURT OF AUSTRALIA 6 April 2022 TAPP v AUSTRALIAN BUSHMEN'S CAMPDRAFT & RODEO ASSOCIATION LIMITED [2022] HCA 11 Today, the High Court, by majority, allowed an appeal from a judgment of the Court of Appeal of the Supreme Court of New South Wales. The appeal concerned whether the respondent breached its duty of care, whether that breach caused the appellant's injuries, and whether the harm was the result of the materialisation of an obvious risk of a dangerous recreational activity. The appellant, Ms Tapp, was an experienced and very able horse rider and campdraft contestant. On 8 January 2011, during a multi-day campdrafting event organised by the respondent, in a time period of around 45 minutes, four other contestants had falls while competing. After the first three falls, an experienced campdrafter, Mr Stanton, approached one of the event organisers and said that the competition should be stopped because the ground was becoming slippery. After discussing the ground condition and speaking with two of the contestants who fell, the organisers continued the competition. After the fourth fall, Mr Stanton again approached an organiser and said that he thought the ground was "unsafe". The organisers delayed the competition to discuss the conditions, but decided to continue. Shortly thereafter, Ms Tapp competed and fell when her horse slipped on the ground of the arena. She suffered a serious spinal injury. The four falls prior to the appellant's fall were described in the Open Draft Draw as "bad falls". The Supreme Court of New South Wales held that the respondent had not breached its duty, that any breach had not caused Ms Tapp's injuries, and that Ms Tapp's injuries were the result of the materialisation of an obvious risk. A majority of the Court of Appeal dismissed Ms Tapp's appeal. The High Court, by majority, allowed Ms Tapp's appeal, holding that the respondent had breached its duty of care, that breach of duty caused Ms Tapp's injuries, and Ms Tapp's injuries were not the result of the materialisation of an obvious risk of a dangerous recreational activity. A reasonable person in the respondent's position would have foreseen a probability that harm would occur if the competition were not stopped until the arena could be inspected for safety. Given that the probability of physical injury could be catastrophic, the competition could be easily stopped, and there was minimal social disutility of disadvantage to contestants who had already competed, the respondent should have stopped the competition until the arena was inspected and found to be reasonably safe. The inference that the condition of the ground caused Ms Tapp's fall was drawn from the following: the evidence of four falls in a short period of time where falls in campdrafting were rare; Mr Stanton's warnings; the organiser's concessions (including that the ground was dangerous); and the time taken to subsequently remediate the ground. While campdrafting was a dangerous recreational activity, the harm was not the materialisation of an obvious risk of that activity. The risk was properly characterised as a substantially elevated risk of physical injury by falling from a horse that slipped due to the deterioration of the arena surface. That risk would not have been obvious to a reasonable person in Ms Tapp's position, so the respondent was liable in negligence.
+HIGH COURT OF AUSTRALIA 20 July 2006 Public Information Officer LEONARDUS GERARDUS SMITS AND JOHN ANTHONY LESLIE v WALTER EDWARD ROACH, WINNOTE PTY LIMITED (in liquidation) AND SYDTECH PTY LIMITED (in liquidation) A judge whose brother chaired a major law firm which Mr Roach and his companies were suing in separate proceedings did not have to disqualify himself from hearing a dispute between Mr Roach and the principals of a small law firm which he had engaged to conduct the litigation, the High Court of Australia held today. Mr Roach and companies formerly controlled by him sued Freehills, claiming damages for loss of profits of $1 billion after it allegedly gave him negligent advice in relation to a peat deposit in Victoria which he wished to exploit. To act in these proceedings they retained Mr Leslie, who went into partnership with Mr Smits in 1995. A retainer agreement was signed in 1998 on a contingency basis, under which Smits Leslie was entitled to receive 10 per cent of any amount recovered from Freehills under $10 million and five per cent of amounts recovered beyond that. The relationship between Smits Leslie and Mr Roach broke down, principally because of a lack of funding for preparing and prosecuting the case against Freehills. In April 1999, Smits Leslie ceased dealing with Mr Roach and soon after commenced proceedings against him and his companies for $675,000 in professional fees and expenses plus 10 per cent of proceeds in the Freehills litigation. Smits Leslie claimed Mr Roach had wrongfully repudiated the retainer agreement. He claimed the agreement was illegal and unenforceable. Proceedings came before the NSW Supreme Court in March 2002. Justice Peter McClellan asked the parties whether they objected to his sitting, apparently because he and Mr Leslie, a former Supreme Court registrar, had played golf together. Neither party objected and Justice McClellan heard the case. He found the retainer agreement was illegal but even if enforceable the right of Smits Leslie to be paid was contingent upon success in the Freehills action. Before publishing his judgment, Justice McClellan gave a draft to the parties and to Freehills for comment in case it inadvertently disclosed potentially privileged information in the Freehills litigation. At a hearing for this purpose, Justice McClellan revealed that his brother, Geoff McClellan, was chairman of partners at Freehills, and although he would not normally sit he did not believe he had a choice given the way in which the issue involving Freehills had arisen. Mr Smits and Mr Leslie sought to have Justice McClellan disqualify himself because they had not known of the relationship and that a finding against them in the litigation against the Roach interests would benefit Freehills by minimising the legal costs for which it would be liable if the Roach interests won the Freehills litigation. Justice McClellan dismissed the application after satisfying himself that senior counsel for Smits Leslie, Geoffrey Lindsay SC, had known of the relationship between him and Mr McClellan. The Court of Appeal reversed Justice McClellan’s finding that the retainer agreement was invalid but held that the parties had made no provision for Smits Leslie to be paid if it ceased acting for the Roach interests before a successful outcome in the Freehills litigation could be achieved. It held that Justice McClellan should have disclosed his brother was chairman of Freehills at the start of proceedings, but held that Smits Leslie had by Mr Lindsay’s conduct waived any objection. Smits Leslie appealed to the High Court on the issue of disqualification. The Court unanimously dismissed the appeal. All Justices held that the Court of Appeal’s decision on waiver was correct and four Justices dismissed the appeal on that basis. Five Justices also held that the Court of Appeal failed to articulate a logical connection between the relationship of Justice McClellan and Mr McClellan and any reasonable apprehension of bias and two Justices would have dismissed the appeal on that basis rather than on the issue of waiver. On waiver, the Court held that Smits Leslie was bound by Mr Lindsay’s conduct in not objecting to Justice McClellan sitting when he at least knew of the relationship of the judge to Mr McClellan. On the bias issue, a majority held that a court must both identify what might lead a judge to decide a case other than on its legal and factual merits, and also articulate the logical connection between the matter complained of and the feared deviation from impartial decision-making.
+HIGH COURT OF AUSTRALIA 9 October 2019 BVD17 v MINISTER FOR IMMIGRATION AND BORDER PROTECTION & ANOR [2019] HCA 34 Today the High Court unanimously dismissed an appeal from a decision of the Full Court of the Federal Court of Australia concerning the procedural fairness obligations of the Immigration Assessment Authority ("the Authority") in a review under Pt 7AA of the Migration Act 1958 (Cth) following a notification to the Authority under s 473GB(2)(a) of the Migration Act. Part 7AA of the Migration Act establishes a scheme for the ministerial referral of decisions refusing protection visas to certain applicants to the Authority for review. Within Pt 7AA, s 473GB relevantly applies to a document or information given to the Minister for Immigration and Border Protection ("the Minister") or an officer of the Department of Immigration and Border Protection ("the Department") in confidence. Where s 473GB applies to a document or information given by the Secretary of the Department to the Authority, s 473GB(2)(a) obliges the Secretary to notify the Authority in writing that s 473GB applies in relation to the document or information. The Authority may then, under s 473GB(3), have regard to any matter contained in the document or to the information and may, in certain circumstances, disclose any matter contained in the document, or the information, to the referred applicant. Section 473DA(1) provides that Div 3 of Pt 7AA, together with ss 473GA and 473GB, "is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the [Authority]". The appellant arrived in Australia as an unauthorised maritime arrival in October 2012 and applied for a protection visa. The Minister referred a decision by his delegate to refuse the application to the Authority for review. The Authority affirmed the delegate's decision. The Authority found that the appellant had fabricated his claim to have been of interest to authorities in Sri Lanka. In so finding, the Authority placed weight on the absence of corroboration of one of the appellant's claims in a departmental file relating to an application for a protection visa made by a member of the appellant's family. The file had been before the delegate at the time of making the decision to refuse the appellant's protection visa but had not been relied on adversely by the delegate. The file had then been included in the review material given to the Authority by the Secretary. It was accompanied by a notification under s 473GB(2)(a) that s 473GB applied to the documents and information in the file. The Authority did not disclose any of the documents or information in the file to the appellant and did not disclose to the appellant the fact of the notification. In Minister for Immigration and Border Protection v SZMTA (2019) 93 ALJR 252; 363 ALR 599; [2019] HCA 3, the High Court accepted that the giving of a notification under s 438(2)(a) of the Migration Act triggers an obligation of procedural fairness on the part of the Administrative Appeals Tribunal to disclose the fact of notification to an applicant for review under Pt 7. By majority, the High Court found today that s 473DA of the Migration Act precludes an equivalent procedural fairness obligation on the part of the Authority to disclose to a referred applicant in a review under Pt 7AA the fact of notification under s 473GB(2)(a). The High Court unanimously found there was insufficient evidence to infer that the Authority failed to consider exercising the discretion conferred by s 473GB(3)(b).
+HIGH COURT OF AUSTRALIA Manager, Public Information 26 August 2009 BRIAN GEORGE LANE v COLONEL PETER JOHN MORRISON [2009] HCA 29 The High Court today determined that Colonel Peter Morrison, a Military Judge, may not proceed with trying charges against Mr Brian Lane, a former member of the Royal Australian Navy (RAN), because the legislation creating the Australian Military Court, in which the charges were to be heard, is constitutionally invalid. Mr Lane was a member of the RAN before transferring to the Naval Reserve on 14 March 2007. On 8 August 2007 he was charged with offences alleged to have occurred in August 2005 when he was still a member of the RAN. He was discharged from the Naval Reserve with effect from 3 September 2007. On 26 November 2007 the Chief Military Judge of the Australian Military Court (AMC) nominated Colonel Morrison to try the charges against Mr Lane. When the matter first came before the AMC on 25 March 2008, Mr Lane objected to the jurisdiction of the AMC. In May 2008 he filed an application in the High Court seeking an order prohibiting Colonel Morrison from hearing the charges, and a declaration that the provisions of the legislation which created the AMC are invalid. The AMC was created by the insertion of new provisions into the Defence Force Discipline Act 1982 (Cth), to replace the system of courts-martial which had previously existed. The new provisions state that the AMC is a court of record, and that it consists of a Chief Military Judge and such other Military Judges as hold office from time to time in accordance with the Act. A Note to section 114 of the Act specifically states the AMC is not a court for the purpose of Chapter III of the Constitution. Having regard to the attributes of the AMC and the way in which it operates, the Court concluded that the legislation requires the AMC to exercise the judicial power of the Commonwealth, without being set up as a court established under Chapter III of the Constitution (in which the power to create the federal judiciary is contained). For that reason the legislation creating the AMC was invalid. The High Court ordered that a writ of prohibition should issue, prohibiting Colonel Morrison from proceeding with the charges against Mr Lane, and made a declaration that Division 3 of Part VII of the Defence Force Discipline Act 1982 (Cth), which created the AMC, was invalid.
+HIGH COURT OF AUSTRALIA Manager, Public Information 21 May 2009 THE QUEEN v PETER EDWARDS & ANOR The High Court today decided that a judge of the Supreme Court of Tasmania applied a wrong principle and took account of irrelevant issues when he granted a permanent stay of the trial of two pilots charged with reckless operation of an aircraft. The pilots’ trial will now proceed in the Supreme Court of Tasmania. Captain Peter Edwards and First Officer Stephen Sarunic were the pilots in charge of a Qantas aircraft which arrived at Launceston Airport on 23 October 2001 to collect 70 passengers who had been stranded. The aircraft arrived at about 10.30pm and took off just after 11pm. The control tower was not staffed between 10pm and 6am, and the pilots themselves were responsible for turning on the runway lighting when arriving at and departing from the airport. While there was no issue concerning the runway lights when the plane landed, witnesses provided inconsistent statements about whether the runway lights were on or off when the aircraft taxied along the runway and took off. Electronic records, which could have assisted in determining whether the runway lights had been activated or whether the pilots had attempted to activate the runway lights, were overwritten before attempts were made to retrieve them. CASA investigated the incident and in April 2002 referred the matter to the Commonwealth DPP. Complaints against the pilots were not sworn until March 2004. The pilots were committed for trial, but the trial had still not commenced by November 2006. In November 2007 their application for a permanent stay of the trial was heard by a judge of the Supreme Court of Tasmania. The High Court held that the primary judge had applied a test of whether, on the material before him, a continuation of the trial could constitute an unacceptable injustice or unfairness. The primary judge concluded that the factors of overall delay and lost evidence made it appropriate to grant the stay. The High Court granted the Commonwealth DPP special leave to appeal that decision. In a unanimous decision the High Court confirmed that in exercising the discretion to grant a permanent stay of proceedings, a court should consider whether, in all the circumstances, the continuation of the proceedings would involve unacceptable injustice or unfairness, or whether continuation would be so unfairly and unjustifiably oppressive as to constitute an abuse of process. The Court noted that it is not uncommon for trials to proceed despite the unavailability of relevant evidence and held that the loss of evidence did not prejudice the pilots. It concluded that no feature of the delay or loss of evidence justified the extreme step of permanently staying the proceedings. The Court set aside the order of the Supreme Court of Tasmania and dismissed the pilots’ application for a permanent stay.
+HIGH COURT OF AUSTRALIA 11 March 2015 GRANT SAMUEL CORPORATE FINANCE PTY LIMITED v FLETCHER & ORS JP MORGAN CHASE BANK, NATIONAL ASSOCIATION & ANOR v FLETCHER & ORS [2015] HCA 8 Today the High Court unanimously held that the rules of courts of the States and Territories cannot apply so as to vary the time dictated by s 588FF(3) of the Corporations Act 2001 (Cth) for the bringing of proceedings for orders with respect to voidable transactions. The first respondents in these appeals are the liquidators of the second and third respondents. Section 588FF(1) of the Corporations Act provides that a court, on the application of a company's liquidator, may make certain orders where the court is satisfied that a transaction of the company is voidable because of s 588FE. Section 588FF(3) provides that an application under s 588FF(1) "may only be made" during a period of limitation set out in par (a) ("the par (a) period") or "within such longer period as the Court orders" on an application made by the liquidator during the par (a) period. The effect of s 588FF(3) was to require an application under s 588FF(1) to be made by the liquidators of the second respondents by 4 June 2011, unless the court ordered that an application could be made within a longer period under s 588FF(3)(b). On 10 May 2011, the liquidators applied for an order extending the period within which they might bring proceedings under s 588FF(1). On 30 May 2011, the Supreme Court of New South Wales extended that period to 3 October 2011 ("the extension order"). A further application was made to the Supreme Court within the period of that extension, but after the par (a) period had expired. On 19 September 2011, the Supreme Court made an order on that application, under r 36.16(2)(b) of the Uniform Civil Procedure Rules 2005 (NSW) ("the UCPR"), varying the extension order by changing the date by which the liquidators could make an application under s 588FF(1) to 3 April 2012 ("the variation order"). Under s 79(1) of the Judiciary Act 1903 (Cth), the UCPR is binding on all courts exercising federal jurisdiction in New South Wales, "except as otherwise provided by the Constitution or the laws of the Commonwealth". The appellants' applications to set aside the variation order were dismissed by the Supreme Court and appeals from that decision were dismissed by a majority of the Court of Appeal. By grant of special leave, the appellants appealed to the High Court. The High Court unanimously allowed the appeals. The Court held that the bringing of an application within the time required by s 588FF(3) is a precondition to the court's jurisdiction under s 588FF(1), and that the only power given to a court to vary the par (a) period is that given by s 588FF(3)(b). The Court concluded that, once the par (a) period had elapsed, the UCPR could not be utilised to further extend the time within which proceedings under s 588FF(1) could be brought, because s 588FF(3) "otherwise provided".
+HIGH COURT OF AUSTRALIA 6 September 2017 SZTAL v MINISTER FOR IMMIGRATION AND BORDER PROTECTION & ANOR; SZTGM v MINISTER FOR IMMIGRATION AND BORDER PROTECTION & ANOR [2017] HCA 34 Today the High Court, by majority, dismissed two appeals from a decision of the Full Court of the Federal Court of Australia. The High Court held that "cruel or inhuman treatment or punishment" or "degrading treatment or punishment" within the complementary protection regime in s 36 of the Migration Act 1958 (Cth) require the existence of an actual subjective intention by a person to inflict pain or suffering or to cause extreme humiliation. SZTAL and SZTGM ("the appellants") came to Australia from Sri Lanka and applied for protection visas under the complementary protection regime. The appellants' applications for protection visas were refused by delegates of the Minister for Immigration and Border Protection. The appellants each applied for review of these decisions by the Refugee Review Tribunal ("the Tribunal"). The issue for the Tribunal was whether the appellants were eligible for protection visas under the complementary protection regime in the Migration Act. The complementary protection regime allows a protection visa to be granted to a non-citizen if there is a real risk that the non-citizen would suffer "significant harm" as a consequence of being removed from Australia. The definition of "significant harm" includes "cruel or inhuman treatment or punishment", relevantly defined as an act or omission by which pain or suffering is "intentionally inflicted", and "degrading treatment or punishment", relevantly defined as an act or omission which is "intended to cause" extreme humiliation. The Tribunal found that the appellants would likely be held in remand for a short period if they were returned to Sri Lanka and accepted that prison conditions in Sri Lanka were such that the appellants may be subjected to pain or suffering, or humiliation. However, the Tribunal concluded that there was no intention to inflict pain or suffering, or to cause extreme humiliation. Country information indicated that the conditions in prisons in Sri Lanka were the result of a lack of resources, which the Sri Lankan government acknowledged and was taking steps to improve. On applications for judicial review, the Federal Circuit Court of Australia considered that the Tribunal did not err in concluding that "intentionally inflicted" and "intended to cause" connote the existence of an actual subjective intention on the part of a person to bring about pain or suffering, or extreme humiliation. A majority of the Full Court of the Federal Court agreed. By grant of special leave, the appellants appealed to the High Court. The High Court dismissed the appeal. A majority of the Court held that the expressions "intentionally inflicted" and "intended to cause" require actual subjective intention to bring about pain or suffering or humiliation. The majority rejected the appellants' contention that the element of intention was satisfied where a person did an act knowing that the act would, in the ordinary course of events, inflict pain or suffering or cause extreme humiliation.
+HIGH COURT OF AUSTRALIA 7 August 2013 FORTESCUE METALS GROUP LIMITED AND ORS v THE COMMONWEALTH OF AUSTRALIA [2013] HCA 34 Today the High Court unanimously dismissed proceedings brought by Fortescue Metals Group Limited (and certain of its wholly-owned subsidiaries) ("Fortescue") claiming that some provisions of the Minerals Resource Rent Tax Act 2012 (Cth) ("MRRT Act") and the Minerals Resource Rent Tax (Imposition–Customs) Act 2012 (Cth), Minerals Resource Rent Tax (Imposition–Excise) Act 2012 (Cth) and Minerals Resource Rent Tax (Imposition–General) Act 2012 (Cth) ("the Imposition Acts") were not valid laws of the Commonwealth. The MRRT Act and the Imposition Acts created and imposed a minerals resource rent tax ("MRRT"), which commenced on 1 July 2012. Under the MRRT Act, liability to pay MRRT arises only when a miner derives an annual profit of $75 million or more after taking into account certain deductions for expenditure and allowances. Once MRRT is payable, it is calculated so that a reduction in the mining royalty payable to a State government would, all other things being equal, result in an equivalent increase in a taxpayer's liability and vice versa. The State legislative regimes for mining royalties are different and may be varied from time to time. Fortescue's wholly-owned subsidiaries held registered mining leases in Western Australia and were required to pay MRRT. Fortescue brought proceedings in the High Court in its original jurisdiction, contending that certain provisions of the MRRT Act and Imposition Acts were invalid on four bases: first, as laws with respect to taxation which discriminate between States contrary to s 51(ii) of the Constitution; second, as laws or regulations of trade, commerce or revenue, which, contrary to s 99 of the Constitution, give preference to one State over another State; third, as laws which contravene the Melbourne Corporation doctrine, on the basis that the legislative powers of the Commonwealth do not authorise legislation directed to the control or hindrance of the States in the execution of their governmental functions; and fourth, as laws that are inconsistent with s 91 of the Constitution, which preserves a State's power to grant an aid or bounty on the mining for other metals. The Attorneys-General for Western Australia and Queensland intervened in support of Fortescue's challenge to the validity of the MRRT Act and the Imposition Acts. Pursuant to s 18 of the Judiciary Act 1903 (Cth), questions were reserved for determination by the Full Court of the High Court on the basis of the parties' pleadings and documents referred to in the pleadings. The Full Court unanimously dismissed the challenge to the validity of the Acts. The Court held that the treatment of State mining royalties by the MRRT Act and the Imposition Acts did not discriminate between States and that the Acts did not give preference to one State over another. The Court also rejected the submissions that the Acts breached the Melbourne Corporation doctrine or contravened s 91 of the Constitution.
+HIGH COURT OF AUSTRALIA 15 March 2023 SELF CARE IP HOLDINGS PTY LTD & ANOR v ALLERGAN AUSTRALIA PTY LTD & ANOR [2023] HCA 8 Today, the High Court allowed two appeals from the Full Court of the Federal Court of Australia. The appeals concerned whether Self Care IP Holdings Pty Ltd and Self Care Corporation Pty Ltd (collectively, "Self Care") infringed one of Allergan Inc's BOTOX trade marks under the Trade Marks Act 1995 (Cth) ("the TM Act") and whether Self Care contravened the Australian Consumer Law in Sch 2 of the Competition and Consumer Act 2010 (Cth) ("the ACL"). Allergan Inc manufactures Botox, an injectable pharmaceutical product containing botulinum toxin, and is the registered owner of the BOTOX trade mark. Self Care supplied cosmetic products, including the anti-wrinkle skincare products Inhibox (which it described on its packaging and website as an "instant Botox® alternative") and Protox (which used the trade mark PROTOX on its packaging and website). Allergan Inc, and its subsidiary Allergan Australia Pty Ltd (collectively, "Allergan") brought proceedings in the Federal Court of Australia claiming, among other things, that Self Care had infringed the BOTOX trade mark under s 120(1) of the TM Act by using deceptively similar trade marks –"instant Botox® alternative" and PROTOX – and had contravened ss 18(1) and 29(1)(a) and (g) of the ACL by conveying misleading representations about the long term efficacy of Inhibox. The primary judge found that Self Care's use of "instant Botox® alternative" and PROTOX did not infringe the BOTOX trade mark and that Self Care's use of "instant Botox® alternative" in relation to Inhibox did not contravene the ACL. On appeal, the Full Court of the Federal Court held that both "instant Botox® alternative" and PROTOX infringed the BOTOX trade mark. The Full Court relied on the reputation of BOTOX, holding that PROTOX was deceptively similar because some potential customers would wonder whether Allergan had decided to expand into topical cosmetic anti-wrinkle products. The Full Court also held that Self Care's use of "instant Botox® alternative" contravened the ACL by representing that the wrinkle reducing effects of Inhibox would last, after treatment, for a period equivalent to that which would be achieved with treatment by a Botox injection ("the long term efficacy representation"). Self Care appealed to the High Court. The High Court unanimously held that Self Care did not use "instant Botox® alternative" as a trade mark and therefore the question of deceptive similarity under s 120(1) of the TM Act did not arise. As the parties did not dispute that Self Care used PROTOX as a trade mark, the determinative question was whether PROTOX was deceptively similar to BOTOX. The Court held that, when assessing deceptive similarity under s 120(1), reputation of the registered trade mark and that of its owner is not relevant. PROTOX was not deceptively similar to BOTOX because the similarities between the marks, considered in the circumstances, were not such that the notional buyer was likely to wonder whether the products came from the same trade source. Self Care did not contravene the ACL because the reasonable consumer would not have understood that the phrase "instant Botox® alternative", in context, conveyed the long term efficacy representation.
+HIGH COURT OF AUSTRALIA Public Information Officer May 7, 2003 ROBERT JAMES MACLEOD v THE QUEEN The High Court of Australia today unanimously dismissed an appeal from Mr Macleod against conviction of five offences of fraud. The charges related to an enterprise run by Mr Macleod between 1989 and 1994. He controlled three companies, including Trainex Pty Ltd, which were designed to obtain tax concessions for film production. Investors contributed more than $6 million but only $718,000 was used to make films or videos. Mr Macleod allegedly used more than $2.2 million for his own benefit, including buying a $1 million Gold Coast unit. The five charges with which the appeal to the High Court was concerned involved the fraudulent misuse during 1991 of $1.3 million of Trainex funds in contravention of section 173 of the New South Wales Crimes Act. The NSW Court of Criminal Appeal rejected Mr Macleod’s claim that as the sole shareholder and director of Trainex he, and therefore Trainex, consented to the particular applications of company property. It also rejected challenges to the District Court trial judge’s directions to the jury on the question of what constituted fraud. The High Court rejected Mr Macleod’s submission that the prosecution had failed to prove lack of consent by the victim of the fraud, as the self-interested consent of the controller could not be said to represent the consent of the company. The Court held that under section 173 criminal liability depended upon the application of company property by an accused for his own benefit and in a manner inconsistent with the purposes of the company. The Court also rejected claims that the jury was misdirected. It said the judge correctly directed the jury that it should decide whether Mr Macleod was acting honestly by the standards of ordinary decent people, and that it was open to the jury to conclude that he knew his actions were dishonest. There was ample evidence of a deliberate and sustained course of deception to indicate a lack of genuine belief in an entitlement to use Trainex’s property for his own benefit instead of fulfilling his obligations to investors.
+HIGH COURT OF AUSTRALIA 14 October 2020 AUS17 v MINISTER FOR IMMIGRATION AND BORDER PROTECTION & ANOR [2020] HCA 37 Today the High Court unanimously allowed an appeal from a judgment of the Federal Court of Australia ("the Federal Court") concerning a review by the Immigration Assessment Authority ("the Authority") under Pt 7AA of the Migration Act 1958 (Cth) ("the Act") of a decision by the Minister for Immigration and Border Protection ("the Minister") to refuse to grant the appellant a protection visa. Section 473DD of the Act relevantly provides that the Authority must not consider "new information" unless: the Authority is satisfied that there are exceptional circumstances to justify considering the new information (s 473DD(a)); and the applicant satisfies the Authority that the new information was not, and could not have been, provided to the Minister before the Minister made the decision (s 473DD(b)(i)) or that it is "credible personal information" which was not previously known and, had it been known, may have affected the consideration of the applicant's claims (s 473DD(b)(ii)). The issue on appeal was whether in finding that "new information" could not be considered, the Authority was required to assess the information against the criteria in both ss 473DD(b)(i) and 473DD(b)(ii) before assessing whether there were "exceptional circumstances" under s 473DD(a). The Minister's delegate refused to grant the appellant a protection visa. On review by the Authority, the appellant's representative provided the Authority with a letter that post-dated the decision of the delegate and was supportive of the appellant's claims. The Authority found that the letter was "new information" and did not take it into account in reaching its decision. In doing so, the Authority assessed the letter against the criterion in s 473DD(b)(i), finding that criterion not to be met. It went on to assess the letter against the criterion in s 473DD(a), finding that criterion to also not be met. It did not assess the letter against the criterion in s 473DD(b)(ii). The Federal Circuit Court relevantly held that the Authority fell into error by not considering both sub- paragraphs of s 473DD(b) so as to inform its consideration of s 473DD(a). The Federal Court allowed an appeal from the Federal Circuit Court's decision. The High Court unanimously overturned the Federal Court's decision, holding that the Authority erred by not considering both sub-paragraphs of s 473DD(b) and then taking those assessments into account in its consideration of s 473DD(a). The Court held that s 473DD requires the Authority to assess new information against the criteria in both ss 473DD(b)(i) and 473DD(b)(ii), and then, providing that at least one of those criteria are met, take that assessment into account in its consideration of whether there are exceptional circumstances under s 473DD(a), before concluding that it is prohibited from considering the new information. This statement is not intended to be a substitute for the reasons of the High Court or to be used in any later consideration of the Court’s reasons.
+HIGH COURT OF AUSTRALIA 11 November, 2003 ALEXANDER PURVIS on behalf of DANIEL HOGGAN v THE STATE OF NEW SOUTH WALES (DEPARTMENT OF EDUCATION AND TRAINING AND THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION The High Court of Australia today dismissed an appeal from the foster father of a boy expelled from South Grafton High School for violent behaviour towards teachers and fellow students. Daniel, now 18, attended the school from April to September 1997 and was suspended five times and finally expelled for repeated kicking, punching and swearing. Daniel, born on December 8, 1984, suffered encephalopathic illness at six months of age which left him with brain damage, intellectual disabilities, sight problems and epilepsy. He had difficulty communicating which led to frustration and behavioural problems, including offensive language, lack of self-control and violence. In 1996, his foster parents sought to have Daniel enrolled at South Grafton High School for the 1997 school year. A teacher’s aide and a casual teacher were engaged to assist Daniel. After the fifth suspension, the principal recommended that he be taught at home, apart from sport and school excursions, or be transferred to the Special Unit at Grafton High School. He cited his responsibility for the welfare and safety of other students and staff as his reason for his decision ultimately to expel Daniel. Mr Purvis complained to HREOC that Daniel had been discriminated against by the State of NSW, alleged that Daniel had been suspended, and later excluded, and been subjected to various detriments in his education, on the ground of his disability, in contravention of the federal Disability Discrimination Act. HREOC Commissioner Graeme Innes found that the State had discriminated against Daniel on the grounds of his disability and ordered the State to pay $49,000 in compensation. The State sought judicial review in the Federal Court of Australia, which set aside Mr Innes’s decision. The Full Court of the Federal Court unanimously dismissed Mr Purvis’s appeal and he appealed to the High Court. The Court, by a 5-2 majority, dismissed the appeal. It held that the principal had not discriminated against Daniel on the ground of his disability.
+HIGH COURT OF AUSTRALIA 13 April 2022 AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER v PATTINSON & ANOR [2022] HCA 13 Today, the High Court allowed an appeal from a judgment of the Full Court of the Federal Court of Australia. The appeal concerned the scope of the power conferred on the Federal Court of Australia by s 546 of the Fair Work Act 2009 (Cth) ("the Act") to impose civil pecuniary penalties in respect of contraventions of the civil remedy provisions of the Act. The contraventions occurred in September 2018 on a building site in Frankston, Victoria. The site was occupied by Multiplex Constructions Pty Ltd ("Multiplex"), the principal contractor. The first respondent ("Mr Pattinson") was an employee of Multiplex and the site delegate of the second respondent union ("the CFMMEU"). Mr Pattinson told two employees of a subcontractor engaged by Multiplex that, in order to perform work on the site, they were required to become a member of an industrial association ("the misrepresentations"). The CFMMEU had a longstanding "no ticket, no start" policy, pursuant to which all workers were required to hold union membership in order to work on construction sites where the CFMMEU had a presence. Since at least the advent of the Workplace Relations Act 1996 (Cth), the implementation of such a policy has been unlawful. The appellant instituted civil penalty proceedings in the Federal Court. The respondents accepted that, by the misrepresentations, Mr Pattinson twice contravened s 349(1) of the Act in that he knowingly or recklessly made a false or misleading representation about the supposed obligation of the two employees to become members of an industrial association, and his actions were attributable to the CFMMEU such that it also contravened s 349(1). The primary judge imposed civil pecuniary penalties on each respondent. The total penalties imposed on the CFMMEU reflected the maximum penalty for a single contravention, with the primary judge having regard to the CFMMEU's longstanding history of contraventions of the Act in furtherance of its "no ticket, no start" policy. The Full Court overturned that decision, holding that the penalties were disproportionate to the nature, gravity and seriousness of the contraventions, and imposed lower penalties on each respondent. The High Court unanimously held that the Full Court erred in concluding that it was not open to the primary judge to impose the maximum penalty on the CFMMEU. Under the civil penalty regime provided by the Act, the purpose of a civil penalty imposed under s 546 is primarily, if not solely, the promotion of the public interest in compliance with the provisions of the Act by the deterrence of further contraventions of the Act. The plurality reasoned that nothing in the text, context or purpose of s 546 of the Act requires that the maximum penalty be reserved for the most serious examples of misconduct within s 349(1) of the Act. What is required is that there be some reasonable relationship between the theoretical maximum and the final penalty imposed. The penalties imposed by the primary judge represented a reasonable assessment of what was necessary to make the continuation of the CFMMEU's non-compliance with the law, demonstrated by the history of its contraventions, too expensive to maintain. For the same reasons, the Court, by majority, held that the Full Court erred in reducing the penalty imposed on Mr Pattinson.
+HIGH COURT OF AUSTRALIA 16 February 2022 ARS WWALTON & ANOR v ACN 004 410 833 LTD (FORMERLY ARRIUM LIMITED) (IN LIQUIDATION) & ORS [2022] HCA 3 Today, the High Court allowed an appeal from a judgment of the Court of Appeal of the Supreme Court of New South Wales. The appeal concerned the purposes for which a court may, on the application of an eligible applicant, summon an officer or provisional liquidator of a corporation in external administration for examination about the corporation's examinable affairs pursuant to s 596A of the Corporations Act 2001 (Cth). The appellants were shareholders of the first respondent, formerly Arrium Limited ("Arrium"). In October 2014, Arrium completed a capital raising, having published its 2014 financial results and provided shareholders with an Information Memorandum for that purpose. In January 2015, Arrium announced the suspension or closure of one of its principal mining operations. In April 2016, Arrium was placed into administration and, in June 2019, liquidators were appointed. The appellants, having been authorised by the Australian Securities and Investments Commission to do so, applied to the Supreme Court of New South Wales for an order pursuant to s 596A of the Corporations Act 2001 (Cth) that a summons be issued for the examination of the third respondent, a former director of Arrium. A Registrar in Equity duly made that order. The appellants' purpose was to investigate and pursue potential personal claims arising from the 2014 capital raising in their capacity as shareholders against the former directors and auditors of Arrium. It was accepted that any future proceedings would be confined to a limited class of shareholders of Arrium. Arrium applied to the Supreme Court for that order to be stayed or set aside as an abuse of process. The Supreme Court declined to stay or set aside the order. The Court of Appeal allowed Arrium's appeal and decided that an examination sought predominantly for the purpose of pursuing private litigation against third parties, and not for the purposes of conferring a demonstrable or commercial benefit on the corporation or its creditors, was an abuse of process. By majority, the High Court allowed the appeal. In deciding if the use of a court process authorised by statute is an abuse of process, the question is whether the litigant's predominant purpose is inconsistent with the scope and purpose of the statutory process. The purpose and concern of s 596A is not confined to the interests of the corporation, its creditors, or its contributories, or to the bringing of criminal or regulatory proceedings in connection with the affairs of the corporation. Examining an officer of a corporation for the purpose of pursuing a claim against the corporation in external administration or one of its officers or advisers for the enforcement of the law can be a legitimate use of the power conferred by s 596A, irrespective of whether it is in the interests of the corporation or whether the claim relates to all or only some of the corporation's creditors or contributories. The summons was therefore not issued for a purpose that was an abuse of process.
+HIGH COURT OF AUSTRALIA 16 October 2019 COMMISSIONER OF TAXATION v SHARPCAN PTY LTD [2019] HCA 36 Today the High Court unanimously allowed an appeal from a judgment of the Full Court of the Federal Court of Australia concerning the deductibility under the Income Tax Assessment Act 1997 (Cth) ("the 1997 Act") of payments to acquire gaming machine entitlements ("GMEs") under the Gambling Regulation Act 2003 (Vic). Spazor Pty Ltd ("the Trustee"), as trustee of a trust of which the respondent was the beneficiary, purchased a hotel business. The Trustee did not purchase the 18 gaming machines at the premises but, in accordance with the purchase agreement, was paid a percentage of the income derived by the owner of the machines, an authorised gaming operator under the Gambling Regulation Act. After that Act was amended to provide for GMEs to be put up for auction and allocated directly to gaming venue operators, the Trustee bid for, and was allocated, 18 GMEs, each permitting it to operate a gaming machine for ten years, and each being capable of sale and transfer to other venue operators, subject to approvals. To fund the purchase price of $600,300, the Trustee entered an agreement with the Minister for Gaming providing for deferred payment by instalments and forfeiture in default of payment. After payment, the Trustee claimed the purchase price as a deduction under s 8-1 of the 1997 Act or one-fifth of that price under s 40-880 of the 1997 Act. The appellant Commissioner disallowed both claims. On review, that decision was set aside by the Administrative Appeals Tribunal, which held that the purchase price was not an outgoing of a capital nature and was therefore deductible under s 8-1 of the 1997 Act. In dismissing an appeal by the Commissioner, a majority of the Full Court held that the outgoing was not on capital account because: (i) it had to be recouped out of every day's trading across the business; (ii) it reflected the economic value of the income stream expected from using the gaming machines which the GMEs permitted; (iii) it was incurred in relation to an integrated hotel business; and (iv) the Trustee, confronted with changed circumstances from government intervention by the amendment of the Gambling Regulation Act, had to respond to the possible loss of gaming revenue. Alternatively, the majority reasoned that one-fifth of the purchase price would have been deductible under s 40-880 because the purpose of the expenditure was to preserve the goodwill of the hotel business and the value to the Trustee of the GMEs was solely attributable to their effect on the goodwill of the business. The High Court unanimously held that the GMEs were assets of enduring value acquired by the Trustee as the means of production, necessary for the structure of the business, and a barrier to entry, and that the four factors identified by the Full Court were not to the point. The Court therefore held that the purchase price, although paid in instalments, was in the nature of a once- and-for-all outgoing for the acquisition of a capital asset, and thus not deductible under s 8-1 of the 1997 Act. The Court further held that the evidence did not establish that the subjective or objective purpose of purchasing the GMEs was to preserve but not enhance the goodwill of the hotel business, and that the value of the GMEs was not solely attributable to their effect on goodwill, but resided in their capacity to generate gaming income and to be sold and transferred. The Court therefore held that no deduction under s 40-880 of the 1997 Act was permitted.
+HIGH COURT OF AUSTRALIA Manager, Public Information 22 April 2009 DAVID STUART & ANOR v TANIA KIRKLAND-VEENSTRA & ANOR Today the High Court decided that two police officers did not owe Mrs Kirkland-Veenstra's husband, Ronald Veenstra, a duty of care to take steps to prevent him from committing suicide. At about 5.40am on 22 August 1999, two police officers observed Mr Veenstra in his car at a beachside car park. There was a hose pipe leading from the exhaust into the interior of the car, but the car engine was not running. The officers spoke with Mr Veenstra who indicated that he had thought about doing something stupid but had changed his mind. The officers offered to contact various people, including his wife or a doctor, but Mr Veenstra said that he would go home and talk to his wife. The officers considered that Mr Veenstra was rational and cooperative and showed no sign of mental illness. They allowed him to leave. Later that day, Mr Veenstra committed suicide at his home by securing a hose from the exhaust of his car and starting the engine. Under section 10 of the Mental Health Act (Victoria), the police officers were empowered (though not obliged) to apprehend a person and take him or her to be assessed by a medical practitioner if he or she appeared to them to be mentally ill ("mental illness" being defined in the Act to mean "a medical condition that is characterised by a significant disturbance of thought, mood, perception or memory") and they reasonably believed that he or she had recently attempted suicide or was likely to do so. Mrs Kirkland-Veenstra sued the officers and the State of Victoria, arguing that the officers owed duties of care, both to her husband to protect his health and safety, and to her to avoid the foreseeable psychiatric injury consequential upon her husband committing suicide. In the Victorian County Court, the trial judge held that, as a matter of law, the officers owed neither Mr Veenstra nor Mrs Kirkland-Veenstra a duty of care. On appeal to the Victorian Court of Appeal, it was held by majority that the officers did owe those duties of care. The two officers appealed to the High Court and the High Court today allowed their appeal. In three separate judgments, all six Justices decided that the officers owed no duty of care to either Mr Veenstra or Mrs Kirkland-Veenstra. It was explained that historically the law did not oblige a person to rescue another from harm. In one judgment it was held that the circumstances present in this case did not contain special features to take the case outside of that general rule; no duty of care arose. The Justices held that the control of the risk of the harm to himself remained with Mr Veenstra. In each of the judgments it was pointed out that the Mental Health Act was not designed to prevent suicide; it was addressed to the protection of mentally ill persons. It would be wrong to assume that all persons who attempted suicide were mentally ill; the Mental Health Act contained no such assumption. Three Justices considered the fact that the police officers had not formed the view that Mr Veenstra was mentally ill to be critical. Unless they had that opinion they were not permitted to apprehend him pursuant to section 10 and take him to be assessed. They did not have that power. The High Court set aside the decision of the Victorian Court of Appeal and reinstated the trial judge's finding that the officers owed no duty of care to Mrs Kirkland-Veenstra.
+HIGH COURT OF AUSTRALIA 3 December 2014 COMMISSIONER OF TAXATION v MBI PROPERTIES PTY LTD [2014] HCA 49 Today the High Court unanimously allowed an appeal from a decision of the Full Court of the Federal Court of Australia, and held that the respondent's assumption of a lessor's rights and obligations following its purchase of premises, subject to an existing lease, involved the making of supplies which were neither taxable supplies nor GST-free supplies. The making of those supplies subjected the respondent to assessment for GST under s 135-5 of the A New Tax System (Goods and Services Tax) Act 1999 (Cth) ("the GST Act"). Section 135-5 of the GST Act sets out the circumstances in which the recipient of a supply of a going concern is subject to liability for GST under the "increasing adjustment" for which that section provides. That increasing adjustment applies where an entity is the recipient of a supply of a going concern and the entity intends that some or all of the supplies made through the enterprise to which the supply relates will be supplies that are input taxed supplies, and that are therefore neither taxable supplies nor GST-free supplies. The respondent, MBI Properties Pty Ltd, acquired three apartments in a hotel complex each of which was subject to a lease between the vendor, South Steyne Hotel Pty Ltd ("South Steyne"), and the operator of the hotel, Mirvac Management Ltd ("MML"). The respondent, on acquiring the rights of the lessor, became the recipient of a supply of a going concern. The Commissioner assessed the respondent to GST on the basis of it having an increasing adjustment under s 135-5. On disallowance of its objection to that decision, the respondent appealed to the Federal Court. At first instance, the respondent's appeal was dismissed, with the primary judge accepting the Commissioner's argument that the continuation of the apartment leases resulted in a continuation of an input taxed supply of residential premises by way of lease from South Steyne to MML. The Full Court allowed the respondent's appeal, holding that the only relevant supply occurred, and was completed, on the grant of the leases by South Steyne to MML and, therefore, there was no input taxed supply which the respondent could have intended would be made through the enterprise it acquired from South Steyne as a going concern. Allowing the appeal, the High Court held that each apartment lease, as an executory contract, obliged the respondent to give MML use and occupation of the apartment throughout the term of the lease in consideration for the periodic payment of rent. The respondent's observance of this continuing obligation was properly characterised as an intended supply of residential premises by way of lease by the respondent to MML which was input taxed under s 40-35 of the GST Act. The Court also rejected the respondent's argument, raised by a notice of contention, that no increasing adjustment could be calculated in accordance with s 135-5 because the rent paid by MML was exclusively the price for the grant of the lease by South Steyne to MML and could not also be the price for the supply made by the respondent to MML. The respondent was therefore subject to assessment for GST under s 135-5 of the GST Act.
+HIGH COURT OF AUSTRALIA Public Information Officer 13 February, 2003 ANTHONY PHILLIP MAURICI v CHIEF COMMISSIONER OF STATE REVENUE The High Court of Australia today allowed an appeal from a resident of the Hunters Hill municipality in Sydney who objected to having the value of his land gauged against sales of the few vacant blocks left in the district. A 1998 assessment for land tax was based on an unimproved value of Mr Maurici’s land in Woolwich of $2.44 million, later reduced to $2 million. Mr Maurici argued the unimproved value was $1.25 million, derived by deducting improvements including a substantial house from a notional selling price, rather than by comparison with recent sales of vacant land. The valuation relied on only four sales, including a quick resale, of vacant land. Commissioner Anthony Nott, of the Land and Environment Court, accepted the method of valuation by comparison with sales of rare vacant blocks, but reduced the unimproved value by $50,000 to $1.95 million. Justice Dennis Cowdroy accepted Mr Maurici’s argument that sales of vacant blocks were inflated due to the scarcity factor, but the New South Wales Court of Appeal reversed that decision. It held that land was to be valued as though vacant and without improvements. The High Court unanimously upheld Justice Cowdroy’s ruling. It held that the valuation method was unduly selective and that a few sales of vacant land were unrepresentative of sales in Hunters Hill. The Court held that the Valuation of Land Act did not require valuations to be made in comparison with vacant blocks whose buyers may constitute a special class. The Court ordered that the case be remitted to Commissioner Nott for rehearing and awarded costs to Mr Maurici for his appeals to the Court of Appeal and the High Court.
+HIGH COURT OF AUSTRALIA 12 December 2013 PLAINTIFF M76/2013 v MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS AND CITIZENSHIP & ORS [2013] HCA 53 Today the High Court unanimously declared that an error of law affected the exercise of power by the Minister for Immigration, Multicultural Affairs and Citizenship to determine whether to permit the plaintiff to make a valid application for a visa. The error of law was that an officer of the Commonwealth, in deciding not to refer the plaintiff's case to the Minister, acted upon an incorrect view of the law by considering an invalid regulation to be relevant to the decision. The plaintiff arrived in Australia at Christmas Island by boat in 2010 without a visa. She is a Sri Lankan national of Tamil ethnic origin and had been a member of the Liberation Tigers of Tamil Eelam. Because the plaintiff arrived at Christmas Island without a visa, the Migration Act 1958 (Cth) prevented her from making a valid application for a visa unless the Minister exercised his power under the Act to permit her to do so. In order to consider whether to exercise that power, the Minister had in place processes by which his department assessed whether the plaintiff was a person in respect of whom Australia owed protection obligations under the Refugees Convention. The plaintiff was assessed to be such a person. The plaintiff was also the subject of an adverse security assessment made by the Australian Security Intelligence Organisation. The Minister's department took that adverse security assessment to mean that the plaintiff could not satisfy a criterion for the grant of a visa (public interest criterion 4002). On that basis, it did not refer the plaintiff's case to the Minister for his consideration. Subsequently, in Plaintiff M47/2012 v Director-General of Security (2012) 86 ALJR 1372; 292 ALR 243; [2012] HCA 46, the High Court held that public interest criterion 4002 was invalid. The plaintiff is currently in immigration detention. Due to her refugee status, she cannot be returned to Sri Lanka. Approaches to third countries for her resettlement have been unsuccessful. In the original jurisdiction of the High Court, the plaintiff sought habeas corpus and declaratory relief, claiming on both statutory and constitutional grounds that her detention is unauthorised. She invited the High Court to re-open and overrule its decision in Al-Kateb v Godwin (2004) 219 CLR 562; [2004] HCA 37. A special case stated questions of law for the determination of the Court. The High Court unanimously held that the exercise of the Minister's power was affected by an error of law, in that the Minister's department acted upon an invalid regulation in deciding not to refer the plaintiff's case to the Minister. The Court held that, because the Minister, as a result of the error of law, has yet to complete his consideration of whether to permit the plaintiff to make a valid application for a visa, the plaintiff's present detention, being for the purpose of allowing that consideration to be completed according to law, is authorised by the Act. A majority of the Court found that it was therefore unnecessary to decide the plaintiff's constitutional claim or whether Al-Kateb v Godwin should be re-opened.
+HIGH COURT OF AUSTRALIA 4 May 2011 [2011] HCA 13 SKA was convicted of five counts of sexual offences against a child committed when the child was staying at the house of SKA and his family. The offences were alleged to have been committed in two time periods. Three counts were alleged to have occurred in 2004. Counts four and five were alleged to have occurred between 1 December 2006 and 25 December 2006. In relation to counts four and five, the child was unable to specify a date on which the incidents took place but gave evidence that it was around Christmas 2006. The date on which these two offences were said to have occurred was critical because SKA led evidence at trial which provided an alibi for the period from the evening of 22 December 2006 up to and including Christmas Eve. SKA appealed to the Court of Criminal Appeal of New South Wales against conviction and sentence, including under s 6(1) of the Criminal Appeal Act 1912 (NSW) on the ground that the verdicts of the jury were perverse and not supported by the evidence. Section 6(1) states that the Court of Criminal Appeal "shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence". The Court of Criminal Appeal dismissed SKA's appeals and allowed the Crown's cross-appeal against sentence. SKA's application for special leave to appeal to the High Court from the Court of Criminal Appeal's decision was referred to the Full Court. Today, the High Court granted special leave on three grounds of appeal, and a majority of the Court allowed the appeal, holding that the Court of Criminal Appeal had incorrectly concerned itself with whether, as a question of law, there was evidence to support the verdicts, rather than making its own assessment of the evidence. The High Court held that it was critical for the Court of Criminal Appeal to determine the date at which it was alleged, in the evidence, that SKA committed the offences the subject of counts four and five. The Court of Criminal Appeal's failure to do so led the Court into error when considering the sufficiency of evidence to support the jury's verdict. The High Court also refused special leave to appeal on two grounds of appeal, holding that the Court of Criminal Appeal was not in error in not viewing a video recording of an interview between the child and the police, instead relying on a transcript of the recording. The order of the Court of Criminal Appeal dismissing SKA's appeal against conviction to that Court was set aside and the matter was remitted to the Court of Criminal Appeal for rehearing.
+HIGH COURT OF AUSTRALIA 18 March 2020 THE QUEEN v GUODE [2020] HCA 8 Today the High Court by majority allowed an appeal from the Court of Appeal of the Supreme Court of Victoria concerning whether the Court of Appeal took into account an irrelevant consideration when determining the respondent's appeal against sentence. The respondent was arraigned before the Supreme Court of Victoria on an indictment alleging one charge of infanticide ("Charge 1"), two charges of murder ("Charges 2 and 3") and one charge of attempted murder ("Charge 4"). The events comprising those offences took place on 8 April 2015, when the respondent drove a car carrying four of her children into a lake with the intention of killing each of the children. The three youngest children, including the respondent's infant son, died as a result. Section 6(1) of the Crimes Act 1958 (Vic) provided that a woman is guilty of infanticide and not murder if she carried out conduct causing the death of her child in circumstances that would constitute murder and, at the time of carrying out that conduct, the "balance of her mind was disturbed" because of her not having fully recovered from the effect of giving birth to that child within the preceding two years, or because of a disorder consequent upon giving birth to that child within the preceding two years. Section 6(1) of the Crimes Act provided that the maximum penalty for the offence of infanticide is five years' imprisonment; a significantly shorter maximum penalty than that for murder, being life imprisonment, and for attempted murder, being 25 years' imprisonment. The sentencing judge found that the respondent was affected by a depressive disorder that was relevant to the sentencing for all four offences, and that consequently the sentencing principles stated in R v Verdins (2007) 16 VR 269 applied to mitigate the sentences that might have otherwise been imposed. The sentencing judge sentenced the respondent to 12 months' imprisonment in respect of Charge 1, 22 years' imprisonment for each of Charges 2 and 3, and six years' imprisonment in respect of Charge 4. Cumulatively, the sentencing judge sentenced the respondent to a total effective sentence of 26 years and six months' imprisonment with a non-parole period of 20 years. The Court of Appeal allowed the respondent's appeal against sentence and determined that the sentencing judge had erred by giving insufficient weight to the respondent's mental condition and other mitigating factors, with the consequence that the sentences imposed for Charges 2, 3 and 4 were manifestly excessive. The Court of Appeal re- sentenced the respondent to 16 years' imprisonment for each of Charges 2 and 3, and to four years' imprisonment in respect of Charge 4. The Court of Appeal imposed a total effective sentence of 18 years' imprisonment and a non-parole period of 14 years. By grant of special leave, the Crown appealed against the Court of Appeal's decision on the sole ground that the Court erred by taking into account an irrelevant consideration when assessing whether the sentences imposed at first instance were manifestly excessive. A majority of the High Court held that the Court of Appeal erred by taking into account the Crown's acceptance of the respondent's plea of guilty to the charge of infanticide when considering whether the sentences imposed for Charges 2, 3 and 4 were manifestly excessive. The majority observed that although the evidence of the mental condition operative at the time infanticide is committed is likely to be the same as that to be considered for the purpose of applying the Verdins considerations, satisfaction of the elements of infanticide under the Crimes Act says nothing sufficiently specific about the nature and gravity of the mental condition for the purposes of applying the Verdins considerations to the other offences.
+HIGH COURT OF AUSTRALIA 23 September 2009 Manager, Public Information MINISTER FOR IMMIGRATION & CITIZENSHIP v SZIAI & ANOR [2009] HCA 39 The High Court today held that the Refugee Review Tribunal (RRT) had not fallen into jurisdictional error when it failed to make further inquiry concerning the authenticity of certain certificates relied on by an applicant in his claim for a protection visa. SZIAI, a Bangladeshi citizen, claimed to have a well-founded fear of persecution if he were to return to Bangladesh. While living in Bangladesh he had converted from the Sunni Muslim faith to become an Ahmadi Muslim. He said that, following his conversion, his life had been threatened by Sunni Muslims and would be again if he were to return. He supported his claims with certificates signed by persons who were purportedly associated with the Ahmadiyya Muslim Jamaat at Khulna in Bangladesh (AMJ Khulna). The certificates stated that SZIAI had taken a responsible role in AMJ Khulna and was always engaged in its activities. The RRT wrote to the Ahmadiyya Muslim Association Australia Inc, enclosing copies of the certificates and asking whether SZIAI was known to Ahmadiyya Muslim Jamaat in Bangladesh (AMJ Bangladesh). The Association responded, enclosing a letter from the National Ameer of AMJ Bangladesh which stated that AMJ Bangladesh had no record of SZIAI and that the certificates were “fake and forged”. In accordance with section 424A of the Migration Act 1958 (Cth) the RRT wrote to SZIAI’s solicitors seeking comment on a number of things, including the letter from the National Ameer. The solicitors responded to the suggestion that SZIAI was not an Ahmadi, stating “…the applicant disagrees with the information forwarded and states that he is an Ahmadi. He cannot, however, otherwise prove that to be so.” Having regard to the information in the National Ameer’s letter and the response from SZIAI’s solicitors, the RRT concluded that SZIAI was not a witness of truth and that there was no truth to the claims made in support of his application for a protection visa. As a result, the RRT affirmed the decision of a delegate of the Minister for Immigration and Citizenship refusing SZIAI a protection visa. SZIAI’s application to the Federal Magistrates Court for judicial review was dismissed. On appeal, a judge of the Federal Court considered that the RRT ought to have made inquiries of the authors of the certificates concerning the National Ameer’s statement that they were forged. The Federal Court held that the RRT’s failure to inquire had rendered its decision manifestly unreasonable, and this constituted a jurisdictional error on the part of the RRT. The High Court granted the Minister special leave to appeal against the Federal Court’s decision. The High Court noted that a failure on the part of the RRT to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could in some circumstances be sufficient to constitute a failure by the RRT to undertake its core function, which is to review decisions. However, the High Court found that it was not necessary to explore that principle in this case, for two reasons. First, none of the information available to the RRT indicated that any further inquiry into the authenticity of the certificates would yield a useful result. Secondly, the response from SZIAI’s solicitors indicated that SZIAI could add nothing beyond a bare denial of the assertions in the National Ameer’s letter. There was no factual basis to conclude that the RRT’s failure to inquire meant it had failed to exercise its jurisdiction or committed jurisdictional error. The Court also held that, by giving SZIAI an opportunity to respond to the information in the National Ameer’s letter, the RRT had discharged its responsibility to alert SZIAI to any information the RRT considered would be the reason, or part of the reason, for affirming the decision under review. The High Court allowed the Minister’s appeal and set aside the decision of the Federal Court.
+HIGH COURT OF AUSTRALIA 6 September 2012 ANDREWS v AUSTRALIA AND NEW ZEALAND BANKING GROUP LTD [2012] HCA 30 Today the High Court granted leave to appeal against a decision of the Federal Court of Australia and allowed the appeal. The Court held that the fact that particular fees were not charged by the respondent, Australia and New Zealand Banking Group Ltd ("the ANZ"), upon breach of contract did not render the fees incapable of being characterised as penalties. The applicants, approximately 38,000 group members, commenced representative proceedings in the Federal Court of Australia. They sought, amongst other remedies, declaratory relief that certain provisions between each of them and the ANZ were void or unenforceable as penalties. On that basis, the applicants claimed repayment of fees charged to them by way of "honour fees", "dishonour fees", "late payment fees", "non-payment fees" and "over limit fees" (collectively, "exception fees"). The applicants asked the Federal Court, by way of separate questions, whether the exception fees were payable by the applicants upon breach of contractual obligations owed to the ANZ, and, in the alternative, whether it had been the responsibility of the applicants to see that the circumstances occasioning the imposition of the exception fees did not arise. If either question was answered in the affirmative, the applicants then asked whether such fees were capable of being characterised as penalties. On 5 December 2011, the Federal Court held that only the late payment fees were payable upon breach of contract. Following the decision of the New South Wales Court of Appeal in Interstar Wholesale Finance Pty Ltd v Integral Home Loans Pty Ltd (2008) 257 ALR 292, the primary judge held that the penalty doctrine was limited to breaches of contract and thus could only be applied to the late payment fees. The applicants sought leave to appeal to the Full Court of the Federal Court of Australia. On 11 May 2012 the High Court, acting pursuant to s 40(2) of the Judiciary Act 1903 (Cth), removed the application for leave. A question before the Court was whether the Interstar decision correctly stated the law with respect to penalties and whether the modern doctrine respecting penalties had become wholly a doctrine of the common law, rather than of Equity. The High Court unanimously rejected the proposition that the penalty doctrine applies only where there has been a breach of contract. The question is one of substance rather than form. The Court also rejected the proposition in Interstar that the doctrine had been absorbed into the common law. The fact that the honour, dishonour, non-payment and over limit fees were not payable for breach of contract did not prevent them from being characterised as penalties. It will be for the Federal Court on the further hearing of the matter to decide whether these exception fees are penalties.
+HIGH COURT OF AUSTRALIA Public Information Officer 12 March, 2003 MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS v JI DONG WANG The High Court of Australia today overturned a decision by the Full Court of the Federal Court directing a Refugee Review Tribunal matter be reheard by the same tribunal member because that member had made findings of fact favourable to Mr Wang. Mr Wang arrived in Australia from China in 1997, claiming persecution as a Protestant Christian after being repeatedly detained for attending unregistered religious meetings rather than worshipping in official churches. He was refused a protection visa. A review by RRT member Kerry Boland confirmed that decision. The Federal Court dismissed Mr Wang’s application for review of Ms Boland’s decision. On appeal, the Full Court set aside the decision and ordered that the matter be remitted to the RRT as previously constituted, that is, to be reheard by Ms Boland. The Full Court held that her findings of fact were generally favourable to Mr Wang but deficient in some respects. The Full Court was concerned that Mr Wang might be treated less favourably by other RRT members. At first, the Full Court did not order that Ms Boland review Mr Wang’s case, but that if there was a dispute over the constitution of the RRT the parties had liberty to apply for a fresh order. When his matter was not relisted before Ms Boland Mr Wang exercised the liberty to apply and the Full Court ordered that Ms Boland rehear the case. The Minister argued that the Federal Court lacked the power to make this order or that it erred in the exercise of its discretion. The High Court held that neither Ms Boland nor any other RRT member would be bound by her earlier findings of fact, even if the circumstances of Mr Wang’s religious status in China was unchanged. The RRT was required to decide whether a person had a well-founded fear of persecution, a decision to be made on its merits on the basis of information the RRT had before it at the time, not according to earlier findings of fact preserved for the person’s benefit. The Federal Court could possibly direct the RRT to correct a legal error or to make a particular finding as a matter of law, but directing the RRT to act on facts found at a previous hearing was not open to it. The High Court, by a 4-1 majority, held that the orders of the Full Court of the Federal Court should be set aside and substituted with an order to dismiss Mr Wang’s application to have Ms Boland conduct another review of his case.
+HIGH COURT OF AUSTRALIA 1 October 2004 ROBERT JOHN FARDON v RODNEY JON WELFORD, ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND Queensland legislation under which dangerous sexual offenders can continue to be held in detention after serving their prison terms in certain circumstances is valid, the High Court of Australia held today. Mr Fardon was sentenced in 1980 to 13 years’ imprisonment for rape and after eight years was released on parole. Twenty days later he committed rape, sodomy and assault occasioning actual body harm. He was sentenced to a 14-year jail term which expired 27 June 2003. The Dangerous Prisoners (Sexual Offenders) Act came into force on 6 June 2003. Mr Welford applied for an order that Mr Fardon be detained indefinitely under section 13 of the Act. Pursuant to section 8, Supreme Court Justice John Muir granted an interim detention order on 27 June, pending a final hearing of Mr Welford’s application. The Court of Appeal, by majority, dismissed an appeal against Justice Muir’s order and his judgment affirming the validity of the Act. After a four-day hearing, Justice Margaret White last November made an order for continuing detention. She said the major concern was Mr Fardon’s refusal to participate in therapy to treat his sexual violence and alcohol and drug abuse. Mr Fardon also instituted an appeal against Justice White’s order. The High Court granted Mr Fardon special leave to appeal against the Court of Appeal decision relating to Justice Muir’s order and later removed into the High Court so much of the cause pending in the Court of Appeal relating to Justice White’s order. Mr Fardon challenged the validity of both section 8 concerning interim detention orders and section 13 concerning the process for granting continuing detention orders. The Court, by a 6-1 majority, held that the Act was valid and dismissed the appeal. It held that the Act did not compromise the integrity of the Supreme Court or conflict with the power conferred on Federal Parliament by the Constitution to invest State courts with federal jurisdiction. The Act contained many safeguards of a trial, unlike the NSW Community Protection Act. The Court held in 1996 that the NSW Act, which provided for the continuing detention of convicted wife killer Gregory Wayne Kable, was invalid. By contrast, the Queensland Act is directed at a class of offenders rather than at one particular person, the Supreme Court exercises judicial power in determining whether the release of a sexual offender is an unacceptable risk, the Attorney-General bore the onus of proving a prisoner is a serious danger to the community, if the Supreme Court is satisfied a prisoner is a serious danger it had discretion to order a continuing detention order or a supervision order, such orders are subject to periodic review, the issue of unacceptable risk must be satisfied to a high degree of probability having regard to matters listed in section 13(4), detailed reasons must be given for any order, and there is a right of appeal.
+HIGH COURT OF AUSTRALIA 7 February 2018 COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE v STEVEN IRVINE HART & ORS; COMMONWEALTH OF AUSTRALIA v YAK 3 INVESTMENTS PTY LTD AS TRUSTEE FOR YAK 3 DISCRETIONARY TRUST & ORS; COMMONWEALTH OF AUSTRALIA & ANOR v FLYING FIGHTERS PTY LTD & ORS [2018] HCA 1 Today the High Court unanimously allowed two appeals from a decision of the Court of Appeal of the Supreme Court of Queensland concerning the Proceeds of Crime Act 2002 (Cth) ("the POCA"). The appeals related to whether property that was forfeited to the Commonwealth under the POCA could be recovered by, or an amount equivalent to its value paid to, companies which held an interest in the property immediately prior to its forfeiture. The High Court unanimously dismissed a further appeal from the same decision regarding the date at which a court must be satisfied that particular property is subject to the effective control of a person, in order that the court may declare that the whole or part of that property is available to satisfy a pecuniary penalty order made against the person. In May 2003, the Commonwealth Director of Public Prosecutions ("the CDPP") obtained restraining orders under the POCA prohibiting disposal of, or other dealing with, certain property suspected of being under the effective control of Mr Steven Hart, who was suspected of committing offences in operating tax minimisation schemes. The restrained property included aircraft, a car and real property. In May 2005, Mr Hart was convicted of nine offences of defrauding the Commonwealth. In April 2006, the restrained property was automatically forfeited to the Commonwealth under s 92 of the POCA. Following the automatic forfeiture, a number of companies with which Mr Hart was affiliated applied to the District Court of Queensland under s 102 of the POCA to recover their respective interests, or an amount equal to the value of their interests, in some of the forfeited property. The companies contended that, for the purposes of s 102(3), the property was not "used in, or in connection with, any unlawful activity" ("the use condition"); was not "derived or realised, directly or indirectly" from any unlawful activity ("the derivation condition"); and had been "acquired ... lawfully" ("the acquisition condition"). The CDPP also applied to the District Court under s 141 of the POCA for a declaration that any property recovered by the companies was available to satisfy any pecuniary penalty order made against Mr Hart. Under s 141, a precondition to the District Court making that order was that the District Court be satisfied that the relevant property "is subject to the effective control" of Mr Hart. A pecuniary penalty order was subsequently made requiring Mr Hart to pay $14,757,287.35 to the Commonwealth. The District Court ordered the recovery, under s 102, of some of the real property and some of the aircraft, on condition that the companies pay to the Commonwealth $1.6 million in respect of fixed and floating charges (over some of the forfeited property) which had also been automatically forfeited to the Commonwealth. The District Court dismissed the CDPP's application under s 141 on discretionary grounds. The companies, the Commonwealth, and the Commissioner of the Australian Federal Police (replacing the CDPP) each appealed. On appeal, the Court of Appeal held, by majority, that the companies had proved that the use condition, the derivation condition, and the acquisition condition were each satisfied in respect of the relevant forfeited property and that the orders under s 102 sought by the companies should be made without the condition imposed by the District Court. A key element of the majority's reasoning was that property would only be "derived" from unlawful activity if it was wholly derived from the commission of a relevant offence. The majority also held that effective control of the property for the purposes of s 141 was to be assessed at the date of the determination of the CDPP's application under that provision, meaning that the application should be dismissed because it could not be established that Mr Hart had effective control of the property at that date. By special leave, the Commonwealth and the Commissioner of the Australian Federal Police appealed to the High Court. The High Court held that property will be "derived" from unlawful activity for the purposes of the derivation condition if it is wholly or partly derived from an act or omission constituting a relevant offence. For property to be "partly derived" from unlawful activity, the degree of derivation must be more than trivial, but beyond that there is no requirement that the degree of derivation must be substantial. Regarding the use condition, the Court held that "use in, or in connection with, unlawful activity" is a broad conception that involves practical considerations that will vary from case to case. However, "use" does not require a causal link between the property and a relevant offence or that the property was necessary for or made a unique contribution to the offence, nor does the degree of use need to be proportionate to the forfeiture of the property. Regarding the acquisition condition, the Court held that the applicant must prove that each step in the process by which the applicant came to hold a relevant interest in the property was lawful, including that all of the consideration paid by the applicant for the interest was lawfully acquired. In the result, the companies' application under s 102 failed in respect of all of the forfeited property except for one item of real property, the proceeds of which (if any) were to be paid by the Commonwealth to one of the companies following satisfaction of $1.6 million secured by two security interests. Accordingly, the appeals in respect of the s 102 application were allowed. The High Court also held that effective control of property for the purposes of s 141 is to be assessed at the date of the determination of an application under that provision. Accordingly, the appeal in respect of the s 141 application was dismissed.
+HIGH COURT OF AUSTRALIA 4 November 2020 DEGUISA & ANOR v LYNN & ORS [2020] HCA 39 Today the High Court unanimously allowed an appeal from a judgment of the Full Court of the Supreme Court of South Australia. The appeal concerned the requirement of notification in s 69 of the Real Property Act 1886 (SA) ("the Act") in relation to the burden of restrictive covenants which are part of a common building scheme affecting land. Section 69 of the Act provides, subject to immaterial exceptions, "[t]he title of every registered proprietor of land shall, subject to such encumbrances, liens, estates, or interests as may be notified on the original certificate of such land, be absolute and indefeasible". Restrictive covenants in common building schemes cannot be registered under the Act. The appellants are the registered proprietors of land situated at 538 Henley Beach Road, Fulham ("Lot 3"). The appellants obtained planning approval to subdivide Lot 3 and build two townhouses. Lot 3 and 51 other allotments were once part of a large parcel of land which was subdivided and sold in the mid-1960s as part of what was claimed by the respondents to be a common building scheme. The present certificate of title for Lot 3 referred in its schedule of dealings to a memorandum of encumbrance ("the Memorandum of Encumbrance"). The Memorandum of Encumbrance was lodged for registration and recorded on the now cancelled certificate of title for Lot 3 when in 1965 it was first sold. The terms of the Memorandum of Encumbrance relevantly prohibited the erection of any building or buildings other than "a dwellinghouse", and also prohibited the erection of "multiple dwellings". On the back-cover sheet of the Memorandum of Encumbrance there appeared a handwritten requisition by the Land Titles Office, stating "[i]s the encumbrance part of a common building scheme? If not to what land is it appurtenant". The handwritten requisition gave rise to the Memorandum of Encumbrance being relodged, with a typed statement by a land broker that "[t]his encumbrance forms portion of a common Building Scheme". Neither the Memorandum of Encumbrance itself nor the present certificate of title identified the other lots intended to be benefited by the restrictive covenants in the Memorandum of Encumbrance. The respondents, contending that building two townhouses on Lot 3 would infringe the restrictive covenants in the Memorandum of Encumbrance, commenced proceedings in the District Court of South Australia to prevent the construction. The primary judge held that the appellants were sufficiently notified of the restrictive covenants and were therefore bound by them. The primary judge held further that the respondents had standing to bring the proceedings, and the terms of the Memorandum of Encumbrance prohibited the appellants' proposed construction of the townhouses. Those conclusions were upheld by a majority of the Full Court of the Supreme Court. By grant of special leave, the appellants appealed to the High Court. The High Court held that the appellants were not notified of the restrictive covenants in accordance with s 69 of the Act. A person is not notified of an encumbrance or qualification upon the title of the registered proprietor of land that cannot be ascertained from a search of the certificate of title or from a registered instrument referred to in a memorial on the certificate of title. The appellants were not required to undertake further inquiries and searches to ascertain the extent of the common building scheme referred to in the land broker's notation in the Memorandum of Encumbrance. Given this conclusion, the Court found it unnecessary to consider whether the respondents had standing to enforce the common building scheme or whether the covenant on its terms prevented the appellants' proposed construction.
+HIGH COURT OF AUSTRALIA 17 August 2022 TU'UTA KATOA v MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS & ANOR [2022] HCA 28. Today, the High Court unanimously dismissed an application, brought in the Court's original jurisdiction, seeking writs to quash, and require the remaking of, the Federal Court of Australia's decision to refuse an extension of time for the plaintiff to seek judicial review of a ministerial decision to cancel the plaintiff's visa. The plaintiff, a citizen of New Zealand, held a Class TY Subclass 444 Special Category (Temporary) visa. That visa was cancelled by the then Minister for Home Affairs pursuant to s 501(3)(b) of the Migration Act 1958 (Cth) ("the Act") on the basis that the Minister reasonably suspected that the plaintiff did not pass the character test and was satisfied that the cancellation of the visa was in the national interest. The plaintiff did not apply to the Federal Court of Australia for review of that decision within the time allowed by s 477A(1) of the Act. The plaintiff later applied to the Federal Court pursuant to s 477A(2) of the Act for an extension of time in which to file an application for review of the Minister's decision. Under s 477A(2), an extension could only be granted if the Federal Court was satisfied that an extension was necessary in the interests of the administration of justice. The primary judge heard the application for an extension of time concurrently with the underlying substantive application for judicial review. The primary judge dismissed the extension of time application after failing to be persuaded that the single ground of review in the proposed substantive application had any merit. Subsections 476A(3)(b) and (4) of the Act had the effect that the plaintiff was not able to bring an appeal from the decision of the primary judge to refuse to grant an extension of time. In the High Court, the plaintiff contended that the primary judge's decision involved jurisdictional error because the judge misapprehended or misconceived the nature and purpose of the statutory power in s 477A(2) to extend time. The plaintiff argued that this error was revealed by the primary judge's reasons, which were said to extend beyond an assessment of the merits of the application for review on an "impressionistic" basis for the limited purpose of assessing whether the application was reasonably arguable. In dismissing the application, the High Court accepted that, in determining what is necessary in the interests of the administration of justice for the purposes of s 477A(2), it will often be appropriate to assess the merits of the proposed grounds of review at a "reasonably impressionistic level". However, there will also be circumstances in which it is appropriate for the Federal Court to engage in more than an impressionistic assessment of the merits. As the merits of a proposed application are a consideration permitted by the terms of s 477A(2), it is within the Federal Court's jurisdiction to have regard to that factor in such manner as it considers appropriate in the circumstances. It was permissible, and in this case appropriate, for the primary judge to assess whether the proposed ground of appeal had any merit in order to decide the extension of time application.
+HIGH COURT OF AUSTRALIA 12 February 2004 CHARLES DELIUS SOMERVILLE ALEXANDER AND OTHERS trading as MINTER ELLISON v PERPETUAL TRUSTEES WA LIMITED AND PERPETUAL TRUSTEES COMPANY LIMITED The High Court of Australia today dismissed an appeal by Minter Ellison, which had sought to have the Perpetual Trustees companies contribute to repayment of trust money lost by 40 investors. The decision follows a related April 2003 decision, Youyang Pty Ltd as trustee of the Bill Hayward Discretionary Trust v Minter Ellison Morris Fletcher (later Minter Ellison), in which the Court unanimously held Minters liable in respect of an investment by a family trust and ordered the law firm to restore the lost $500,000, plus interest and costs, to the trust fund. In both cases, investors had invested substantial amounts in a preference share issue by EC Consolidated Capital Limited (ECCCL) which went into liquidation in 1997, resulting in the loss of all money invested. In today’s decision, investments were made via the Perpetual Trustees companies, which were trustees of two managed superannuation funds, identified as first-level trusts. Minters were both solicitors for ECCCL and agents for Perpetual Trustees. Perpetual Trustees handed over investors’ subscriptions which Minters held in its trust account, constituting the second-level trust. ECCCL was to receive the money only after providing deposit certificates, issued by a Dresdner Bank subsidiary as security for subscribers’ investments. Minters never received the deposit certificates, but released the funds to ECCCL. Perpetual Trustees failed to ensure subscriptions conformed with the required terms. The investors, some of whom were trustees for other investors, successfully sued Perpetual Trustees in the New South Wales Supreme Court. Minters were then found liable to the Perpetual Trustees companies for $12.44 million to replenish trust funds or to repay investors. Minters claimed Perpetual Trustees should share this liability. The NSW Court of Appeal dismissed an appeal by Minters, which appealed to the High Court, claiming the Court of Appeal erred in holding that it was not entitled to contribution from Perpetual Trustees to the repayments. The High Court appeal turned on construction of sections of Victoria’s Wrongs Act concerning contribution. Section 23B provides for claims for contribution from anyone liable for the same damage. Minters was not liable to the investors. Perpetual Trustees were liable to the investors for breach of the first-level trusts. Minters were liable to Perpetual Trustees for breach of the second- level trusts. The question was whether Minters and Perpetual Trustees were liable for the same damage. Only six members of the Court sat on the appeal, the other member of the court having been involved in the proceedings as counsel. The High Court being evenly divided, the appeal failed and was dismissed (Judiciary Act section 23(2)(b)).
+HIGH COURT OF AUSTRALIA 6 October 2005 EDDY STEVENS v KABUSHIKI KAISHA SONY COMPUTER ENTERTAINMENT, SONY COMPUTER ENTERTAINMENT EUROPE LIMITED AND SONY COMPUTER ENTERTAINMENT AUSTRALIA PTY LIMITED The High Court of Australia today allowed an appeal against a finding that Mr Stevens’s modifications to Sony PlayStation consoles to allow unauthorised copies of games to be played were illegal. With effect from 4 March 2001, the Copyright Amendment (Digital Agenda) Act introduced provisions relating to “circumvention devices” into the Copyright Act. The appeal concerned the meaning of that term. The Sony companies manufactured and distributed both PlayStation consoles for playing computer games on television sets and the computer games on CD-ROMs. Sony owned the copyright in both the hardware and the software. Each CD contains an access code and the circuit boards of the PlayStation consoles contain a chip described as a boot ROM. An unauthorised copy of a PlayStation CD does not replicate the access code so the boot ROM of the console denies it access so that the game cannot be played. Sony claimed that the access code and boot ROM, either separately or together, constituted a “technological protection measure”, as defined in section 10(1) of the Copyright Act. Section 116A of the Copyright Act gives an owner of copyright in an item protected by a “technological protection measure” a right of action against someone who makes or sells “circumvention devices”, devices capable of overcoming the protection measure. On two occasions in 2001, after the Amendment Act took effect, Mr Stevens sold unauthorised copies of the PlayStation games Croc 2, Medi Evil, Motor Races World Tour and Porsche 2000. On three occasions he also sold “mod chips” and installed them in PlayStation consoles to bypass the boot ROM anti-infringement device and allow the copies to be played. These mod chips would constitute “circumvention devices” – and Sony would have a right of action against Mr Stevens – only if Sony’s device was found to be a “technological protection measure”. In the Federal Court, Justice Ronald Sackville held that they were not such measures, because in order to be a “technological protection measure” a device must be designed to prevent or inhibit copying in breach of copyright. The Full Court of the Federal Court unanimously allowed an appeal by Sony, holding that its device inhibiting infringement by making unauthorised copies unusable was sufficient. A majority of the Full Court did agree with Justice Sackville that when a game is played computer programs are not reproduced in a material form in the Random Access Memory of the console, and a copy of the game fulfilling the definition of “cinematograph film” is not made in RAM. The Court granted Sony a declaration, an injunction and costs and ordered that the question of damages be remitted to Justice Sackville. Mr Stevens appealed to the High Court. The Court unanimously allowed the appeal. It accepted Justice Sackville’s construction of a “technological protection measure” as a device which denies access to a copyright work or which limits capacity to make copies of a work and thereby prevents or inhibits the undertaking of acts which would infringe copyright. The Court upheld the finding by Justice Sackville and the Full Court majority that computer programs are not reproduced in a material form in RAM and copies of cinematograph films are not made in RAM when games are played.
+HIGH COURT OF AUSTRALIA Public Information Officer 2 October, 2003 RE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS The High Court of Australia today upheld a decision of the Minister Philip Ruddock to revoke the visa of a German man who had lived in Australia since he was 10 years old. Mr Palme sought relief under section 75(v) of the Constitution against Mr Ruddock, but the Court, by a 4-1 majority, dismissed his application. Mr Palme, 42, was born in Germany and brought up by a foster family who moved to Australia in 1971. He never took out Australian citizenship, but contended he had been effectively absorbed into the Australian community. He is divorced and has two teenage children. In 1992, Mr Palme pleaded guilty in the New South Wales Supreme Court to murdering David Roberts who disappeared during a fishing trip in 1989. Although a coronial inquiry found Mr Roberts had drowned, Mr Palme later told two friends he had smashed a rock over Mr Roberts’s head and thrown him into the water. He alleged he had killed Mr Roberts to extricate Mr Roberts’s wife and her children from intolerable abuse. Mr Palme was jailed for 16 years with a minimum sentence of 10 years, but is now in an immigration detention centre. Mr Ruddock exercised his discretion to cancel Mr Palme’s visa before Mr Palme was due for release in 2002. Under section 501(2) of the Migration Act, the Minister could cancel a visa if a person did not pass the character test, in this case by having been jailed for 12 months or more. The majority of the High Court held that Mr Palme had not made out his entitlement to relief under section 75(v) of the Constitution and declined to issue the writs of certiorari to quash Mr Ruddock’s decision and prohibition to prevent his decision being implemented. The majority held that Mr Ruddock had not failed to observe procedural fairness in making his decision to cancel the visa and that other grounds of complaint had not been made out.
+HIGH COURT OF AUSTRALIA 2 February 2009 CHEE KAN KENNETH WONG v COMMONWEALTH OF AUSTRALIA Public Information Officer ASHRAF THABIT SELIM v VINAYAK (VINOO) LELE, PATRICK TAN and DAVID RIVETT constituting the Professional Services Review Committee No. 309; THE DETERMINING AUTHORITY established under section 106Q of the Health Insurance Act 1973 (Cth); HEALTH INSURANCE COMMISSION; AND ALAN JOHN HOLMES in his capacity as Director, Professional Services Review The Medicare system does not amount to civil conscription of doctors in contravention of the Constitution, the High Court of Australia held today. Dr Wong and Dr Selim have each been found by a Professional Services Review (PSR) Committee, set up under the Commonwealth Health Insurance Act, to have engaged in conduct amounting to “inappropriate practice” due to seeing very high numbers of patients in a given time. In April 2006, Dr Wong commenced an action in the High Court, seeking declarations that sections 10, 20 and 20A and Part VAA of the Act were invalid because they amounted to civil conscription, within the meaning of section 51(xxiiiA) of the Constitution. Section 51(xxiiiA), added to the Constitution after a referendum in 1946, gives Parliament the power to make laws with respect to “provision of maternity allowances, widows’ pensions, child endowment, unemployment, pharmaceutical, sickness and hospital benefits, medical and dental services (but not so as to authorise any form of civil conscription), benefits to students and family allowances”. Sections 10, 20 and 20A deal respectively with entitlement to a Medicare benefit, payment to persons incurring medical expenses, and assignment of a Medicare benefit to the relevant medical practitioner. Part VAA of the Act sets up the PSR Scheme and contains the provisions relating to inappropriate practice. The doctors said all their professional activities were controlled by the Commonwealth and that Part VAA dealt so extensively with doctors’ conduct as to cover everything a doctor might do. A Justice of the High Court remitted Dr Wong’s action to the Federal Court of Australia in October 2006. In that Court, Dr Wong’s action was heard together with an appeal by Dr Selim from a decision of Justice Margaret Stone denying Dr Selim’s application for judicial review. The Full Court’s decision was adverse to both doctors. It held that the impugned sections did not compel a practitioner to render any professional service to any person. Rather, they compelled doctors to conduct their practices with the care and skill that would be acceptable to the general body of medical practitioners. Dr Wong and Dr Selim both appealed to the High Court. The High Court, by a 6-1 majority, dismissed both appeals. It held that sections 10, 20 and 20A of the Act do not amount to a form of civil conscription, because doctors do not compulsorily provide service for the Commonwealth, or for other bodies on the Commonwealth’s behalf. The Act does not force doctors to treat or not treat particular patients. Doctors are free to choose where and when they practise. The PSR scheme requires doctors to conform to certain norms, which are calculated to ensure that doctors perform professionally. Aspects of the Medicare scheme, such as denial of payment where there is a failure to record details such as item numbers, are conditions of participation in the scheme but these aspects do not amount to a practical compulsion to perform a professional service.
+HIGH COURT OF AUSTRALIA 13 April 2022 [2022] HCA 14 Today, the High Court unanimously allowed appeals from a decision of the Court of Criminal Appeal of the Supreme Court of New South Wales concerning the mandatory discharge of a juror under s 53A(1)(c) of the Jury Act 1977 (NSW) where the juror has engaged in "misconduct". "[M]isconduct" includes "conduct that constitutes an offence against" the Jury Act. It is an offence against s 68C(1) for a juror for the trial of any criminal proceedings to make an inquiry – such as conducting research by using the internet – for the purpose of obtaining information about any matters relevant to the trial. The appellant was tried in the District Court of New South Wales on an indictment charging him with 12 counts of sexual offences against children, which were alleged to have been committed whilst the appellant was a mathematics tutor. As part of its case, the Crown led evidence that the appellant did not hold a Working with Children Check. Character evidence was adduced by the appellant to counter that evidence, and his counsel made submissions about that evidence, which the trial judge then referred to in her summing up. During their deliberations, the jury provided a note to the trial judge stating they had reached unanimous verdicts on eight counts. The following day, the foreperson provided a note to the trial judge stating that a juror had disclosed that they had Googled the requirements for a Working with Children Check and discovered the relevant legislation. The note stated that the juror had been a teacher and was curious as to why they did not have a check. The trial judge then proceeded to take ten verdicts, eight of which the jury had indicated they had reached the day prior to the juror's Google search, and only then discharged the juror under s 53A(1)(c). The remaining jurors later delivered guilty verdicts in respect of the two remaining counts. A majority of the Court of Criminal Appeal dismissed the appellant's appeal, holding that the juror had not engaged in misconduct because the juror had made the inquiry for the purpose of "satisfying herself as to why she did not require a Working with Children Check", which was not a matter relevant to the trial. The Court of Criminal Appeal also held that mandatory discharge under s 53A(1)(c) was not required before the trial judge took the ten verdicts as her Honour had only tentatively formed the view that there was misconduct before taking those verdicts. The High Court unanimously held that the juror did engage in misconduct and the trial judge erred in taking the verdicts before discharging the juror. The phrase "information about ... any matters relevant to the trial" is to be understood as including, at least, information about matters of evidence given or addresses to the jury at the trial. Section 68C(1) is not concerned with the juror's motive. It is the fact of the inquiry, and that the purpose of the inquiry was to obtain information about a particular matter relevant to the trial, which is the subject of the prohibition. In this case, the matter about which the juror made the inquiry was the Working with Children Check, which was the subject of evidence and was referred to in defence counsel's submissions and the trial judge's summing up. Discharge was therefore mandatory. The High Court quashed the appellant's convictions on the counts in respect of which verdicts of guilty were entered before the juror was discharged, ordered there be a new trial on those counts, and remitted the matter to the Court of Criminal Appeal in respect of the appellant's sentence on the remaining counts.
+HIGH COURT OF AUSTRALIA 23 June 2021 COMMONWEALTH OF AUSTRALIA V AJL20 [2021] HCA 21 Today the High Court allowed appeals from the Federal Court of Australia, removed to this Court pursuant to s 40 of the Judiciary Act 1903 (Cth), concerning the construction of ss 189, 196, 197C and 198 of the Migration Act 1958 (Cth) ("the Act"). Section 189(1) of the Act, read with the s 5(1) definition of "detain", authorises and requires the Executive to take into and keep "unlawful non-citizens" in immigration detention. "Unlawful non- citizens" are non-citizens in the "migration zone" (in broad terms, Australia) who do not hold effective visas. Section 196 governs the period for which an unlawful non-citizen taken into immigration detention is to be kept in immigration detention under s 189(1). Section 196(1) relevantly provides that an unlawful non-citizen must be kept in immigration detention until he or she is removed from Australia under s 198 or until he or she is granted a visa. Section 198(6) imposes an obligation on the Executive to effect the removal of an unlawful non-citizen (without an outstanding visa application) "as soon as reasonably practicable". Section 197C had the effect that it was irrelevant whether the Executive's performance of the s 198 duty would place Australia in breach of its non-refoulement obligations under international law. The respondent's visa was cancelled on character grounds on 2 October 2014. Having become an unlawful non-citizen, the respondent was detained as required by s 189(1) of the Act. On 11 September 2020, the Federal Court ordered the respondent's release on the footing that his continuing detention was unlawful because, due to its legislatively irrelevant desire to comply with Australia's non-refoulement obligations, the Executive had not removed him from Australia "as soon as reasonably practicable". The Federal Court considered that the period of detention authorised and required by the Act ceases when removal should have occurred had the Executive acted with all reasonable despatch. This reading of the Act was thought to be compelled by a need to observe the limitations on the Parliament's power to authorise detention by the Executive flowing from the separation of judicial power effected by Ch III of the Constitution. The High Court, by majority, held that ss 189(1) and 196(1) validly authorise and require the detention of an unlawful non-citizen until the actual event of, relevantly, their removal from Australia or grant of a visa. Detention so authorised and required does not involve constitutionally impermissible punishment of the detainee by the Executive because it is reasonably capable of being seen as necessary for the legitimate non-punitive purposes of segregation pending investigation and determination of any visa application or removal. The authority and obligation to detain is hedged about by enforceable duties, including that in s 198(6), that give effect to these legitimate non-punitive purposes and mean that the duration of detention is capable of determination. Upon performance of these hedging duties by the Executive, detention is to be brought to an end. Non-performance by the Executive erases neither these duties nor the legitimate non-punitive statutory purposes which they support. Rather, judicial power compels performance by the Executive of its duties, through the remedy of mandamus, so as to enforce the supremacy of the Parliament over the Executive.
+HIGH COURT OF AUSTRALIA 14 December 2022 ALLIANZ AUSTRALIA INSURANCE LTD v DELOR VUE APARTMENTS CTS 39788 [2022] HCA 38 Today, the High Court allowed an appeal from a decision of the Full Court of the Federal Court of Australia. The appeal concerned the ability of an insurer to rely on a statutory defence to a claim for indemnity despite a representation by the insurer that it would grant indemnity, but the extent of which indemnity was ambiguous. The respondent, Delor Vue Apartments CTS 39788, was the body corporate for a complex of apartment buildings. It held a policy of insurance for public liability and property damage with the appellant, Allianz Australia Insurance Ltd. Delor Vue knew that the apartment buildings had serious non-structural defects. It did not disclose this to Allianz. On 28 March 2017, Tropical Cyclone Debbie struck north Queensland, causing substantial damage to the apartment buildings and exposing the defects. Delor Vue notified a claim under the policy of insurance. On 9 May 2017, Allianz emailed to advise Delor Vue that, despite the non-disclosure, it would honour the claim and provide indemnity. The extent of the promised indemnity was ambiguous. A dispute arose as to the sequence of repair work and the distribution of costs. On 28 May 2018, Allianz proposed a "settlement" to resolve the dispute about the extent of indemnity and advised that if Delor Vue did not accept, Allianz would rely on its power pursuant to s 28(3) of the Insurance Contracts Act 1984 (Cth) to reduce its liability on the basis of Delor Vue's non-disclosure. Delor Vue did not accept and Allianz denied indemnity. Delor Vue commenced proceedings in the Federal Court of Australia, arguing that Allianz was bound by the representation that it would grant indemnity because it: (i) had irrevocably elected not to rely on the s 28(3) defence; (ii) had waived its right to rely on the s 28(3) defence; (iii) was estopped from resiling from the representation; and (iv) had breached its duty of utmost good faith. The primary judge upheld claims (ii), (iii), and (iv). A majority of the Full Court dismissed an appeal from the primary decision, finding that all four claims were established. The High Court, by majority, allowed the appeal, concluding that the 9 May 2017 email contained a waiver of the s 28(3) defence which was "revoked" on 28 May 2018, in the sense that it was made conditional upon the acceptance of terms resolving ambiguity as to the extent of the indemnity. In the law of contract there are limited circumstances in which a gratuitous waiver of rights is irrevocable, none of which was present. Unless such circumstances are exceptional they would undermine other contractual rules, including those generally requiring that variation of a contract be in the form of a deed or supported by consideration. Further, the waiver of the s 28(3) defence did not involve an election between alternative and inconsistent sets of rights, such as to give rise to an irrevocable "election by affirmation". Nor did Delor Vue establish that it had suffered any detriment in reliance on Allianz's representation such that Allianz was estopped from revoking its waiver. There being no free-standing obligation upon an insurer, independent of its contractual obligations, to act in a manner which is decent and fair, there was no basis to find that Allianz breached its duty of utmost good faith.
+HIGH COURT OF AUSTRALIA 7 December 2016 R v YAVAZ KILIC [2016] HCA 48 Today the High Court unanimously allowed an appeal from a decision of the Court of Appeal of the Supreme Court of Victoria. The High Court held that the Court of Appeal had erred in holding that the sentences imposed on the respondent by the sentencing judge were manifestly excessive. At the time of the offending the respondent was 22 years of age and in a relationship with the victim, who was 12 weeks pregnant with his child. Their relationship was described by the victim as "dysfunctional and controlled by drug use". On the evening of the offending, the victim arrived at the respondent's home in a car in the company of two mutual friends of the couple. When they arrived the respondent ran at the car with a samurai sword and thrust it through the open driver's window where one of the friends was sitting. The respondent yelled abuse at the victim but, after a time, returned to the house. Later, he approached the car and a struggle ensued as the victim attempted to fight him off. The respondent emptied a can of petrol, which had been sitting on the back seat, over the victim. He then got out of the car but returned a few minutes later and, after a further struggle, held a cigarette lighter to the victim's chest, igniting the petrol. Immediately, the victim's hair, face and clothing were engulfed in flames. After the fire was eventually extinguished, the victim was taken to hospital in a critical condition. Her injuries required multiple complex life-saving treatments. Due to the nature and seriousness of her injuries, and her long-term prognosis, the victim's pregnancy was terminated at her request. The respondent pleaded guilty to one count of intentionally causing serious injury and two summary offences. He was sentenced by a judge of the County Court of Victoria to a total effective sentence of 15 years' imprisonment with a non-parole period of 11 years. On the respondent's appeal to the Court of Appeal, their Honours held that there was "such a disparity between the sentence imposed [for the offence of causing serious injury] and current sentencing practice as illustrated by the authorities relied upon by the parties" that they were satisfied that there had "been a breach of the underlying sentencing principle of equal justice". The Court of Appeal allowed the appeal, quashed the sentences imposed by the sentencing judge, re-sentenced the respondent to a total effective sentence of 10 years and 10 months' imprisonment, and set a non-parole period of seven years and six months. By grant of special leave, the Crown appealed to the High Court. The High Court unanimously allowed the appeal, holding that the Court of Appeal had erred in their consideration of "current sentencing practices" by holding that the difference between the sentence imposed by the sentencing judge for the offence of causing serious injury and the sentences imposed in some other cases to which the Court of Appeal referred warranted the conclusion that the former was manifestly excessive. The High Court also held that the Court of Appeal had erred in concluding that the sentences imposed by the sentencing judge for the summary offences were manifestly excessive. The High Court made orders with the effect of restoring the sentences imposed by the sentencing judge.
+HIGH COURT OF AUSTRALIA Public Information Officer 19 June, 2003 PAUL JOHN COOK (as trustee of the property of Peter Robert Benson) v PETER ROBERT BENSON, LEGAL AND GENERAL SUPERANNUATION SERVICES PTY LTD, PRUDENTIAL CORPORATION AUSTRALIA LIMITED, AND MERCANTILE MUTUAL CUSTODIANS PTY LTD The High Court of Australia today dismissed an appeal by Mr Benson’s trustee in bankruptcy, Mr Cook, who sought to recover $80,000 from a lump-sum superannuation pay-out that Mr Benson rolled over to three other super funds. Mr Benson was employed by Industrial Sales and Service (Tas) Pty Ltd from 1972 to 1990 and was a member of ISAS’s super fund. When ISAS went into liquidation in 1990, Mr Benson lost his job and received a lump-sum benefit of $96,192.36. He re-invested $80,000 in other superannuation funds: $20,000 each to Legal and General and Mercantile Mutual and $40,000 to Prudential. Mr Benson became bankrupt in July 1992. The trustee sought to recover the $80,000 for the benefit of creditors. The Federal Court and Full Court of the Federal Court held that the payments were dispositions of property covered by section 120 of the Bankruptcy Act. But the Full Court, by majority, held that they fell within an exception made for settlements of property in favour of a purchaser in good faith and for valuable consideration and this defeated Mr Cook’s claim. The High Court, by a 4-1 majority, upheld the decision of the Full Court of the Federal Court. The High Court held that the payments were made in return for obligations undertaken by the trustees of the super schemes to provide Mr Benson with the rights and benefits to which he would eventually become entitled. Those rights and benefits constituted substantial and valuable consideration for Mr Benson’s contributions and the trustees of the superannuation schemes were purchasers for valuable consideration.
+HIGH COURT OF AUSTRALIA 7 December 2007 Public Information Officer KENNETH JOHN FOOTS v SOUTHERN CROSS MINE MANAGEMENT PTY LTD, ENSHAM RESOURCES PTY LTD, BLIGH COAL LIMITED, IDEMITSU QUEENSLAND PTY LTD, EPDC (AUSTRALIA) PTY LTD, LG INTERNATIONAL (AUSTRALIA) PTY LTD, FOOTS PTY LTD, LITTLE DIGGER MINING LIMITED, NORMA AGNES FOOTS AND A costs order made against a bankrupt after he entered bankruptcy is not a debt provable in his bankruptcy, even though it related to a damages award made before the bankruptcy, the High Court of Australia held today. In the Queensland Supreme Court in 2005, Justice Richard Chesterman heard a complex multi- party action concerning the ownership of machinery at an open-cut coal mine. On 26 August he gave judgment for Ensham in its cross-claim against Southern Cross Mine Management and Mr Foots, who had been Ensham’s chief executive officer. Justice Chesterman found that Mr Foots had breached his fiduciary and contractual duties of good faith towards Ensham, and that he had was also liable for breaches by Southern Cross of section 52 of the Trade Practices Act relating to misleading and deceptive conduct. On 1 September 2005, Justice Chesterman awarded damages of $2.46 million to Ensham. Two weeks later, Mr Foots entered bankruptcy. On 22 November 2005, Justice Chesterman heard argument as to whether a stay under section 58(3) of the Bankruptcy Act applied so that Ensham would require leave of the Federal Court to take a fresh step in proceedings, in this case applying for costs, where the fresh step was in respect of a provable debt. If the costs order was a debt or liability provable in his bankruptcy within the meaning of section 82(1) of the Bankruptcy Act, the proceedings in which the costs order was made would be stayed under section 58(3). If the costs order was not a provable debt or liability Mr Foots remains liable to meet those costs after his discharge from bankruptcy. A release from bankruptcy only applies to debts provable in the bankruptcy. Justice Chesterman held that since the costs order would not be a debt provable in Mr Foots’s bankruptcy, section 58(3) was no impediment to his making a costs order. On 3 February 2006, Justice Chesterman ordered Mr Foots to pay Ensham’s costs. Rather than awarding costs on the usual party-and-party basis, on application from Ensham Justice Chesterman awarded them on an indemnity basis in light of Mr Foots’s wrongdoing. By majority, the Queensland Court of Appeal dismissed an appeal by Mr Foots. In the High Court, he argued that the costs order was, in the terms of section 82 of the Bankruptcy Act, a debt or liability arising from the award of damages, an obligation incurred before his bankruptcy. Alternatively, Mr Foots submitted that the costs order was a liability incidental to a provable debt. The Court, by a 4-1 majority, rejected both arguments and dismissed the appeal. It held that the award of costs is discretionary, and arises independently of the entry of judgment against Mr Foots. The costs order fell outside section 82(1) because it was made after bankruptcy and was not a liability to which he was subject at the date of bankruptcy. Mr Foots was also not under a pre-existing obligation to pay costs until the order was made against him. The stay in section 58(3) of the Act therefore did not apply.
+HIGH COURT OF AUSTRALIA 5 November 2014 ALPHAPHARM PTY LTD v H LUNDBECK A/S & ORS [2014] HCA 42 Today the High Court, by majority, held that s 223(2) of the Patents Act 1990 (Cth) conferred power on the Commissioner of Patents to extend the time within which the first respondent, H Lundbeck A/S ("Lundbeck"), could apply under s 70(1) of the Act for an extension of the term of its Australian patent. Section 71(2) of the Act required that an application for an extension of the term of a standard patent be made during the term of the patent and within six months after the latest of three specified dates. Section 223(2) provided that, in certain circumstances, where a "relevant act" which was required to be done within a certain time was not done within that time, the Commissioner could extend the time for doing the act. Section 223(11) defined "relevant act" to mean an action (other than a "prescribed action") in relation to a patent. Regulation 22.11(4)(b) of the Patents Regulations 1991 (Cth) provided that "filing, during the term of a standard patent as required by subsection 71(2) of the Act, an application under subsection 70(1) of the Act for an extension of the term of the patent" was a prescribed action. Lundbeck applied to the Commissioner for an extension of time within which to make an application under s 70(1) of the Act to extend the term of its Australian patent. The application for an extension of time was opposed by the appellant, Alphapharm Pty Ltd. Lundbeck made the application during the term of the patent but more than six months after the latest of the three dates specified in s 71(2). The Commissioner's delegate granted Lundbeck the extension of time sought. This decision was affirmed by the Administrative Appeals Tribunal, and an appeal to the Full Court of the Federal Court of Australia was dismissed. By special leave, Alphapharm appealed to the High Court. The High Court dismissed the appeal. The Court held, by majority, that s 71(2) of the Act imposed two cumulative time requirements. The first was that an application under s 70(1) for an extension of the term of a patent be made during the term of the patent. The second was that such an application be made within six months after the latest of the three dates specified in s 71(2). Properly understood, s 223(2) permitted the Commissioner to enable an application under s 70(1) to be made during the term of the patent but more than six months after the latest of the three dates specified in s 71(2).
+HIGH COURT OF AUSTRALIA Public Information Officer 4 September 2008 GILBERT GEDEON v COMMISSIONER OF THE NEW SOUTH WALES CRIME COMMISSION, NEW SOUTH WALES CRIME COMMISSION AND ATTORNEY-GENERAL FOR NEW SOUTH WALES DAVID DARLEY DOWE v THE COMMISSIONER OF THE NEW SOUTH WALES CRIME COMMISSION AND THE NEW SOUTH WALES CRIME COMMISSION Controlled operations that involved the selling of large quantities of cocaine to users was conduct likely to seriously endanger the health or safety of those people and should not have been authorised by the NSW Crime Commission, the High Court of Australia held today. In early 2005, the Commissioner authorised six controlled operations using unlawfully imported cocaine in early 2005, pursuant to the NSW Law Enforcement (Controlled Operations) Act (LECO Act). Two authorities were used to support sales by an informer codenamed “Tom” to Mr Gedeon of 2kg and 750g of cocaine. Another was used for the sale of 1kg to Mr Dowe. None of this cocaine was recovered. The Commissioner and senior police had been briefed that recovery of the cocaine would be unlikely because it would be sold on to end users. The LECO Act was the NSW response to the High Court’s decision in Ridgeway v The Queen in 1995 to quash John Anthony Ridgeway’s conviction for possession of heroin, which had been imported as part of an undercover police operation. The Act legitimised certain actions of undercover officers and permitted evidence obtained in authorised controlled operations to be classified as legal and prima facie admissible. Section 16 stated that activity engaged in as part of a controlled operation was not unlawful as long as it was authorised by the authority. Section 7(1)(b) stated that an authority to conduct a controlled operation must not be granted where a participant would be engaging in conduct likely to seriously endanger the health or safety of any other person. In May 2005, Mr Gedeon and Mr Dowe were charged with taking part in the supply of a prohibited drug, contrary to the NSW Drug Misuse and Trafficking Act. The two men commenced proceedings in the NSW Supreme Court in April 2006, seeking declarations that the authorities were invalid. They failed in the Supreme Court and, by majority, in the Court of Appeal. In the meantime they were committed for trial. Mr Dowe was convicted in November 2007, after the Court of Appeal upheld the validity of the authorities, and sentenced to 12 years’ imprisonment. His appeal and Mr Gedeon’s trial are still pending. They sought special leave to appeal to the High Court from the Court of Appeal concerning the validity of the authorities. Two Justices referred their special leave applications to a Court of six Justices. The Court unanimously granted them special leave to appeal and allowed their appeals with costs against the Commission. It made a declaration that the relevant authorities were invalid. The Court held that Mr Gedeon and Mr Dowe were entitled to succeed on grounds related to section 7(1)(b) of the LECO Act. It held that there was no statutory power to grant an authority where the proposed operation involved any participant in the operation of any activity listed in section 7(1). The Commission had estimated that the conduct of the controlled operations using Tom was that between 70,000 and 100,000 dosage units of cocaine would reach the streets. The Court held that a reasonable person in the position of the Commissioner would have foreseen that this would involve a risk of seriously endangering the health of at least some of the purchasers of the cocaine. It held that that prospect was sufficient to attract the prohibition in section 7(1)(b).
+HIGH COURT OF AUSTRALIA 12 October 2016 KJERULF AINSWORTH & ORS v MARTIN ALBRECHT & ANOR [2016] HCA 40 Today the High Court unanimously allowed an appeal from the Court of Appeal of the Supreme Court of Queensland. The High Court held that opposition to a motion which was required to be passed by a body corporate without dissent was not unreasonable in circumstances where the proposal in question was apt to create a reasonable apprehension that it would affect adversely the interests of opponents of the proposal. The Body Corporate and Community Management Act 1997 (Q) ("the BCCM Act") regulates the determination of disputes between the owners of lots in a community titles scheme. Here the dispute concerned a proposal for the alteration of the rights of lot owners in the scheme by an owner who sought exclusive use of part of the common property airspace in order to amalgamate the two balconies forming part of his lot so as to create one larger deck. Under the BCCM Act, approval of the proposal required a resolution without dissent of the Body Corporate. The motion was defeated. Item 10 of Sched 5 to the BCCM Act makes provision for an adjudicator to order that a proposal, otherwise required to be passed without dissent, be approved notwithstanding dissent by a lot owner if the opposition to the proposal was unreasonable in the circumstances. The adjudicator accepted that individual lot owners voted against the motion in good faith, and in genuine reliance on architectural and other advice, but nevertheless considered that their opposition to the proposal was unreasonable. An order was made deeming the motion supporting the proposal to be passed. The appellants appealed to the Queensland Civil and Administrative Tribunal, which concluded that the adjudicator had impermissibly substituted her own opinion as to the reasonableness of the proposal, rather than focussing on whether the opponents' grounds of opposition were reasonably held. The adjudicator's orders were set aside. The first respondent appealed to the Court of Appeal, which held that the adjudicator did not adopt the wrong approach in resolving the dispute. The decision of the adjudicator was upheld. By grant of special leave, the appellants appealed to the High Court. The Court held that the adjudicator had adopted the wrong approach in resolving the dispute. The adjudicator's task under Item 10 of Sched 5 to the BCCM Act is not to determine whether the outcome of the vote of the general meeting of the Body Corporate achieved a reasonable balancing of competing considerations, but whether the opposition to the proposal was unreasonable. The Court further held that a lot owner may not be regarded as acting unreasonably in declining to assist another lot owner gratuitously to enhance that lot owner's interest, where the enhancement of that interest is reasonably viewed as adverse to the interests of the other lot owner. In the result, the Tribunal's decision to set aside the adjudicator's orders was reinstated.
+HIGH COURT OF AUSTRALIA 10 August 2005 AIR LINK PTY LIMITED v MALCOLM IAN PATERSON MALCOLM IAN PATERSON v AIR LINK PTY LIMITED AGTRACK (NT) PTY LTD (trading as Spring Air) v ANN CHRISTINE HATFIELD The two-year time limit on claims for compensation in airline accidents under the Commonwealth Civil Aviation (Carriers’ Liability) Act was the subject of these matters which were decided by the High Court of Australia today. In a statement of claim issued out of the District Court of New South Wales on 22 September 2000, Mr Paterson claimed damages from Air Link for personal injuries caused on 25 September 1998 when a mobile stair was not properly attached to an aircraft from which he was alighting in Dubbo and he fell to the ground. Mrs Hatfield’s husband, Stephen, died on 14 August 1997 when a chartered plane on a sightseeing trip crashed in the Northern Territory. By writ and attached statement of claim filed on 22 January 1999 in the Victorian Supreme Court, Mrs Hatfield sought damages against Spring Air. Mr Paterson was changing planes en route to the Gold Coast and Mr Hatfield’s tourist flight from the Kimberleys in Western Australia. Interstate flights or flights between a state and a territory or within a territory come within the Carriers’ Liability Act. The Act displaced operation of NT law, state legislation was rendered invalid to the extent of inconsistency with the Act, and no action could be founded in tort or contract, with liability under Part IV of the Act substituting for any other civil liability. Rights to compensation for death or injury under Part IV are treated as extinguished under section 34 if no action had been brought within two years. Section 34 implemented an international convention. Neither Mr Paterson’s nor Mrs Hatfield’s statements of claim referred to the Carriers’ Liability Act. The NSW District Court rejected Air Link’s motion to dismiss Mr Paterson’s action and the airline’s submission that the statement of claim could not be regarded as an action brought under Part IV. The Court of Appeal allowed an appeal from Air Link. Mr Paterson then successfully applied to the District Court for leave to amend his statement of claim to expressly rely on Part IV. An appeal from Air Link was dismissed and it appealed to the High Court. In the first matter, an application for special leave to appeal from Mr Paterson was argued as an appeal and was heard with the appeal from Air Link. The Court today unanimously granted special leave and decided both appeals in Mr Paterson’s favour, holding that an action had been instituted by Mr Paterson under Part IV by his statement of claim, thus was within the two-year period fixed by section 34. The Victorian Supreme Court granted Mrs Hatfield leave to file an amended statement of claim grounding her action within the Act. The Court of Appeal dismissed an appeal by Agtrack. The High Court held that if Mrs Hatfield’s claim had indeed been extinguished it could not be revived, but the Court found that sufficient facts had been pleaded to raise a claim so that she had properly brought an action within two years of 14 August 1997 and there was no extinguishment under section 34. The facts alleged in the pleadings were sufficient to show that Part IV applied. The Court unanimously dismissed the appeal by Agtrack.
+HIGH COURT OF AUSTRALIA 4 October 2007 SOPHEAR EM v THE QUEEN Public Information Officer The use of a secretly recorded conversation with detectives investigating Mr Em in relation to two home invasions did not make his trial unfair, the High Court of Australia held today. The prosecution case was that Mr Em, armed with a pistol, and another man, carrying an AK47 assault rifle, held up the Logozzo family in Cecil Hills in south-western Sydney on 7 January 2002 just as Joseph and Marianne Logozzo arrived home. During a struggle, Mr Logozzo was fatally shot in the chest with the pistol. Mrs Logozzo ran to his aid and was shot in the hand. The intruders fled. Ten nights later, three men, armed with a pistol, a rifle and a knife, forced their way into a house at nearby West Hoxton and tied up Michael and Beverly Kress, their teenage children Jonathon and Alyson and Alyson’s boyfriend Ramzi Tamer. Numerous items were stolen. On 24 April 2002, police discovered that SIM cards registered to two people living in a Bass Hill unit had been used in a mobile phone stolen from the Kresses. When they searched the unit, where Mr Em was staying, they found a bag filled with black clothing, a balaclava, ski goggles, cable ties, gloves, grey duct tape and a sheath knife. He admitted the bag was his. He had not previously been linked to either home invasion. At the police station, Mr Em refused to have his interview recorded on video or audio tape or in writing, but allegedly made admissions about the Kress home invasion, including possessing the pistol used there. He refused to say anything about the Logozzo home invasion. Detectives transcribed the interview from memory. In May 2002, the Supreme Court issued warrants authorising detectives to wear covert recording devices. On 15 May, the detectives took Mr Em to a park to talk about the home invasions. He identified from photographs the gun used in the shooting but denied involvement in the Logozzo home invasion. On page 25 of the 40-page transcript, one detective is recorded telling Mr Em that he might feel better if he told them what happened and that “it’s not as though we’re going to slap the handcuffs on you and take you away, otherwise we’d be at the police station if we were gunna do that, wouldn’t we?” Mr Em proceeded to give a detailed account of what occurred at the Logozzo house. Justice Bruce James excluded part of the evidence of that account but admitted some of it. At a voir dire in an earlier Supreme Court trial in 2003, Justice Jeff Shaw had excluded the entire 15 May conversation, but the Court of Criminal Appeal overturned that order. In 2004 Mr Em was convicted of murdering Mr Logozzo, assaulting him with intent to rob while armed with a dangerous weapon, and firing a firearm with disregard for Mrs Logozzo’s safety. In 2005, he was sentenced to 25 years’ jail with a non-parole period of 16 years for the first offence, 10 years’ jail for the second, and two years’ jail, backdated to May 2002, for the third. During the trial he pleaded guilty to five counts of robbery with a dangerous weapon for the Kress home invasion and received five concurrent sentences of 12 years’ jail, backdated to May 2003. The 10-year and 25-year sentences commence in 2013. The Court of Criminal Appeal dismissed an appeal and Mr Em appealed to the High Court, arguing that Justice James erred in allowing the first part of the 15 May conversation to be admitted into evidence and that the jury should have been warned about the unreliability of any confessions. The Court, by a 4-1 majority, dismissed the appeal and held that neither the use of the first part of the 15 May 2002 conversation nor the absence of a specific warning was unfair to Mr Em. Section 90 of the Evidence Act provides that a court may refuse to admit evidence of an admission if, having regard to the circumstances in which it was made, it would be unfair to a defendant to use the evidence. However, the Court held that the way in which the conversation took place did not make the first part of it unfair to Mr Em. It held that the police did not reinforce or contribute to his mistaken assumption that whatever he said could not be used against him. Mr Em knew he was speaking to detectives investigating two home invasions. The Court held that in the circumstances of the conversation no particular warning to the jury was required and that Justice James’s directions adequately explained the issues that jurors were to consider.
+HIGH COURT OF AUSTRALIA 13 June 2018 CRI028 v THE REPUBLIC OF NAURU [2018] HCA 24 Today the High Court unanimously allowed an appeal from the Supreme Court of Nauru. The High Court held that the Supreme Court was wrong to uphold the approach adopted by the Refugee Status Review Tribunal ("the Tribunal") to the "internal relocation principle". That principle provides that a person is not a refugee if there is an area in the country of their nationality where the person would not have a well-founded fear of persecution and to which the person could, in all the circumstances, reasonably be expected to relocate. The appellant was born in a district in the province of Punjab, Pakistan ("K District"). In 2004, the appellant moved to Karachi, where his wife and child remain. In 2013, the appellant arrived in Australia at Christmas Island and was transferred to Nauru. The appellant applied under the Refugees Convention Act 2012 (Nr) to be recognised as a refugee. The Secretary of the Department of Justice and Border Control ("the Secretary") refused that application. The appellant applied to the Tribunal for review of the Secretary's decision. The Tribunal found that the appellant had a well-founded fear of persecution in Karachi. However, the Tribunal affirmed the Secretary's determination on the basis that the appellant could relocate to K District. The Tribunal's principal thread of reasoning focused on whether K District was a "home area" of the appellant. In the alternative, based on "ordinary relocation principles", the Tribunal purported to consider whether relocation by the appellant was reasonable. No reference was made to issues that might arise, in relation to relocation, from the fact that the appellant had a wife and child. The Supreme Court dismissed the appellant's appeal, upholding the reasoning of the Tribunal in relation to the appellant's relocation to K District. The appellant appealed as of right to the High Court. The High Court held that the Supreme Court erred in affirming the Tribunal's decision. The Tribunal was distracted by an inquiry into whether K District was a "home area" of the appellant and did not properly consider whether K District was an area to which the appellant could reasonably be expected to relocate, having regard to all the circumstances particular to the appellant. The Tribunal failed to take into account the appellant's wife and child. The High Court set aside the order of the Supreme Court, quashed the decision of the Tribunal, and remitted the matter to the Tribunal for redetermination according to law.
+HIGH COURT OF AUSTRALIA 1 August 2007 Public Information Officer STATE OF NEW SOUTH WALES v JAMES JOHN CORBETT AND ROBYN JEAN CORBETT The citation of a repealed statute on an application for a search warrant did not render the application or the search warrant invalid, the High Court of Australia held today. Mr Corbett is a former NSW police officer who had attended traumatic events such as the Hilton Hotel bombing and the Granville rail disaster. During the 1990s, he suffered from emotional and mental problems. While working in police communications Mr Corbett developed a rural radio network which gave police 24- hour radio contact. In 1997 the police decided to replace his system with one operated in conjunction with a mobile phone provider. Mr Corbett became concerned that police safety would be jeopardised by the new system. On 28 May 1998, while attending a communications conference in Wollongong, he attempted suicide and was hospitalised. A suicide note included the words “police will die”. The Court of Appeal later observed that this related to his concerns about the new communications regime, but police at first took it as a threat. Goulburn police suspended his shooter’s licence and applied for a warrant to search the Corbetts’ property for firearms. On 4 June 1998, while Mr Corbett was still in hospital, police entered and searched the property. No firearms were found. The Corbetts commenced proceedings seeking damages for trespass on the basis that the search warrant was invalid and did not authorise police to enter their property. They contended that the application for the search warrant failed to specify an offence because the pro forma application referred to the 1989 Firearms Act which had been repealed and replaced by the 1996 Firearms Act. At the time, the Search Warrants Act still referred to the 1989 Firearms Act. The Search Warrants Act provided that a search warrant is not invalidated by a defect unless it affects the substance of the warrant. Equivalent sections in the 1989 and 1996 Firearm Acts both prohibited the possession or use of a firearm without a licence or a permit. The definition of “firearm” differed only slightly between the two Acts but the substance of each offence was the same. The Corbetts also contended that the officer who applied for the search warrant did not have a reasonable belief that Mr Corbett had any firearms in his possession. The NSW District Court determined that the defects in the search warrant did not render it invalid, therefore the search warrant provided a defence to the Corbetts’ action for trespass. The Court of Appeal found that the search warrant was invalid due to the reference to the 1989 Firearms Act, but rejected the submission that the officer seeking the search warrant did not have reasonable grounds for a belief relating to the possession of firearms by Mr Corbett. The State then appealed to the High Court on the issue of the validity of the search warrant. The High Court unanimously allowed the appeal. It held that it was an accurate statement of the offence (possession of a firearm) which was critical, not the reference to a repealed Act. This was surplusage and did not detract from the statement of the nature of the offence or render the description of the object of the search unintelligible or ambiguous. Furthermore, the 1996 Firearms Act contains a transitional provision which stated that a reference in any instrument to any provision of the 1989 Act is to be read as referring to the corresponding provision of the 1996 Act. Accordingly, the statutory requirements were complied with and the application and the search warrant were valid, so no trespass to the Corbetts’ property was committed. The Court also upheld the Court of Appeal’s conclusion that police believed on reasonable grounds that there would be firearms on the property.
+HIGH COURT OF AUSTRALIA 6 May 2015 UELESE v MINISTER FOR IMMIGRATION AND BORDER PROTECTION & ANOR [2015] HCA 15 Today the High Court unanimously allowed an appeal from a decision of the Full Court of the Federal Court of Australia. The High Court held that the Administrative Appeals Tribunal ("the Tribunal") erred in its application of s 500(6H) of the Migration Act 1958 (Cth) ("the Act") by failing to consider information adduced during the cross-examination of a witness. The appellant is a Samoan-born citizen of New Zealand, who has been living in Australia since 1998 on a visa tied to his New Zealand citizenship. The appellant has a "substantial criminal record" for the purposes of s 501(7)(c) of the Act. In 2012, on the basis of that criminal record, a delegate of the Minister made a decision under s 501(2) of the Act to cancel the appellant's visa. The appellant applied to the Tribunal for review of the delegate's decision. Under a ministerial direction made pursuant to s 499 of the Act, the Tribunal was obliged to consider the best interests of any minor children in Australia affected by the cancellation of the appellant's visa. The appellant made submissions about the best interests of three of his children. In the course of the hearing, during cross-examination of the appellant's partner, it emerged that the appellant has an additional two younger children from a different relationship. Section 500(6H) of the Act provides that, in matters of this kind, the Tribunal must not have regard to any information presented orally in support of a person's case unless it has been provided in a written statement to the Minister at least two days before the Tribunal holds a hearing. The Tribunal regarded s 500(6H) as precluding consideration by it of the position of the appellant's two youngest children and affirmed the delegate's decision to cancel the appellant's visa. The appellant applied to the Federal Court for judicial review of the Tribunal's decision. That application was dismissed. The appellant appealed from that decision to the Full Court of the Federal Court. That appeal was also dismissed. By special leave, the appellants appealed to the High Court. The High Court unanimously allowed the appeal, holding that s 500(6H) does not preclude the Tribunal from considering information which is not presented by or on behalf of an applicant for review as part of his or her case. The Court held that by applying s 500(6H) in the way that it did, the Tribunal had truncated the review that it was required to undertake. The Court also held that s 500(6H) does not fetter the power of the Tribunal to grant an adjournment to enable the applicant to give the required notice to the Minister, where this is necessary to ensure that a review is conducted thoroughly and fairly.
+HIGH COURT OF AUSTRALIA 20 March 2019 OKS v THE STATE OF WESTERN OF AUSTRALIA [2019] HCA 10 Today the High Court unanimously allowed an appeal from a decision of the Court of Appeal of the Supreme Court of Western Australia. The appellant was charged with four counts of indecently dealing with a child under the age of 13 years contrary to s 320(4) of the Criminal Code (WA). The trial took place nearly 20 years after the alleged offences. The central issue at the trial was the credibility and reliability of the complainant's evidence in light of certain inconsistencies in her evidence and admitted or asserted lies told by her. In the course of summing up the case to the jury, the trial judge directed the jury not to follow a process of reasoning to the effect that, just because the complainant was shown to have told a lie or had admitted to telling a lie, all of her evidence was in fact dishonest and could not be relied upon ("the impugned direction"). The appellant was convicted of the first count and acquitted of the second count. The remaining counts had been withdrawn from the jury. The appellant appealed against his conviction to the Court of Appeal on the basis that the impugned direction was a wrong decision on a question of law. The Court of Appeal unanimously concluded that it was, but held that the appeal should nonetheless be dismissed under s 30(4) of the Criminal Appeals Act 2004 (WA) because no substantial miscarriage of justice had occurred ("the proviso"). By grant of special leave, the appellant appealed to the High Court. The Court unanimously held that, if the jury accepted or found that the complainant had told lies, it was open to the jury to find that those lies, without more, precluded acceptance of the complainant's evidence of the commission of the offences beyond reasonable doubt. The impugned direction took away that process of reasoning and was apt to lessen the weight which it was otherwise open to the jury to give to the complainant's lies. In those circumstances, the natural limitations on an appellate court proceeding on the record meant that it could not be assumed that the impugned direction had no effect upon the jury's verdict. As a result, the proviso could not be applied. Accordingly, the Court unanimously allowed the appeal, quashed the appellant's conviction and ordered a new trial.
+HIGH COURT OF AUSTRALIA Public Information Officer 6 February, 2003 STATE OF NEW SOUTH WALES v ANGELO LEPORE AND ANOR VIVIAN CHRISTINA SAMIN v STATE OF QUEENSLAND, THE MINISTER FOR EDUCATION OF QUEENSLAND AND WILLIAM THEODORE D’ARCY SHEREE ANNE RICH v STATE OF QUEENSLAND, THE MINISTER FOR EDUCATION OF QUEENSLAND AND WILLIAM THEODORE D’ARCY State education authorities will not generally be held liable for the sexual abuse of pupils by teachers unless there has been shown to be fault on the part of the authorities, the High Court of Australia held today. The Lepore appeal, from a decision of the New South Wales Court of Appeal, and the Rich and Samin appeals, from a decision of the Queensland Court of Appeal, were heard together by the Court. Each case involved alleged abuse by a primary teacher on school premises during school hours. The teacher in the Queensland cases is serving a jail sentence for sexual offences committed at a one-teacher school in the 1960s. The cases raise the issue of liability of education authorities for damage suffered by pupils even when there is no fault on the part of such authorities, such as negligence in their engagement and supervision of staff, in their systems or procedures, or in a failure to respond to complaints of misconduct. A majority of the NSW Court of Appeal had held that a state school authority had a legal obligation to ensure pupils were not physically injured by a teacher on school premises during school hours, whether that teacher is acting negligently or intentionally, and whether or not the authority was therefore at fault. The Queensland Court of Appeal disagreed with this approach. By majority, the High Court has overruled the decision of the NSW Court of Appeal. The High Court, by majority, held that education authorities were vicariously liable for acts performed in the course of teachers’ employment, but that sexual abuse was generally too far removed from a teacher’s duties to be regarded as occurring in the course of their employment. The High Court allowed in part the appeal from NSW and ordered a new District Court trial for Mr Lepore’s case, because of the way the original trial was dealt with. The Court dismissed Ms Samin and Ms Rich’s appeals.
+HIGH COURT OF AUSTRALIA Public Information Officer 20 June 2007 JUSTIN PATRICK LIBKE v THE QUEEN A Brisbane man convicted of sexual offences against an intellectually disabled woman was not disadvantaged by the trial judge’s directions to the jury about the woman’s capacity to give consent and his trial was not unfair, the High Court of Australia held today. The woman was 18 at the time but had a mental age of eight to 10 with an IQ of 61. Mr Libke, 43, was charged with three counts of rape, one count of indecent dealing with an intellectually impaired person, and one count of sodomy of an intellectually impaired person in 2002. The first count of rape arose from an incident in a park where he first met the woman while walking their dogs. Mr Libke allegedly digitally penetrated the woman. Some days later he telephoned the woman and arranged to come to her house where they had sex. Mr Libke denied any anal penetration and denied being aware that she was intellectually impaired. At the trial in the Queensland District Court, the main issues concerned consent and whether he reasonably believed the woman was not intellectually impaired. Mr Libke was convicted of the count of rape involving digital penetration. He was acquitted of the other counts of rape, and the counts of sodomy and indecent dealing, but was found guilty of three alternative lesser offences: two of unlawful carnal knowledge with an intellectually impaired person and an offence of exposing such a person to an indecent act. Mr Libke was sentenced to eight years’ imprisonment. The Court of Appeal cut the sentence to five years but dismissed the appeal against conviction. Mr Libke appealed to the High Court, alleging that the prosecutor’s cross-examination was unfair and that Judge Milton Griffin gave incorrect and insufficient directions to the jury. He said many of the cross-examiner’s questions were confusing, harassing, oppressive and repetitive and that the prosecutor expressed inappropriate comment about his answers. Mr Libke said Judge Griffin failed to give adequate directions on consent as it related to cognitive capacity and intellectual impairment; that he failed to tell the jury that if Mr Libke honestly and reasonably believed that the woman’s capacity for communication, social interaction and learning was not substantially reduced, or that he believed that she did not need support, he was entitled to be acquitted; and that flow charts given to the jury as part of Judge Griffin’s directions were inadequate. The High Court, by a 3-2 majority, dismissed the appeal. It held that the prosecutor’s conduct did not result in an unfair trial. The Court held that Judge Griffin did not make errors in his directions. In particular, he adequately instructed the jury about the defences available to Mr Libke.
+HIGH COURT OF AUSTRALIA 9 May 2018 IN THE MATTER OF QUESTIONS REFERRED TO THE COURT OF DISPUTED RETURNS PURSUANT TO SECTION 376 OF THE COMMONWEALTH ELECTORAL ACT 1918 (CTH) [2018] HCA 17 Today the High Court sitting as the Court of Disputed Returns unanimously answered questions referred to it by the Senate under s 376 of the Commonwealth Electoral Act 1918 (Cth) to the effect that Senator Katy Gallagher was "a citizen of a foreign power" and therefore incapable of being chosen or of sitting as a senator by reason of s 44(i) of the Constitution when she nominated for election on 31 May 2016. Senator Gallagher was a Citizen of the United Kingdom and Colonies by descent. On 20 April 2016 Senator Gallagher provided a declaration of renunciation, copies of identity documents and her credit card details to the Australian Labor Party, which forwarded them to the Home Office of the United Kingdom. The Home Office received the documents on 26 April 2016, and deducted the relevant fee from her credit card on 6 May 2016. On 31 May 2016 Senator Gallagher lodged her nomination as a candidate for election to the Senate in the Federal election to be held on 2 July 2016. On 20 July 2016 Senator Gallagher received a letter from the Home Office requiring further documents, which were provided. On 2 August 2016 Senator Gallagher was returned as a duly elected senator for the Australian Capital Territory. At the time of her nomination and return as a duly elected senator, Senator Gallagher was a foreign citizen. On 16 August 2016 Senator Gallagher's renunciation was registered by the Home Office. Section 44(i) of the Constitution relevantly operates to disqualify a person who has the status of a foreign citizen from being chosen or sitting as a senator. That disqualifying operation is subject to an implicit qualification that an Australian citizen not be irremediably prevented by foreign law from participation in representative government ("the constitutional imperative"). Senator Gallagher contended that the reason she did not cease to be a British citizen before the date of her nomination lay in matters beyond her control, which were an irremediable impediment to her participation in the 2016 election. She contended that the constitutional imperative was therefore engaged, entitling her to participate in the 2016 election. The Court held that the constitutional imperative is engaged when both of two circumstances are present. First, the foreign law must operate irremediably to prevent an Australian citizen from participation in representative government. Secondly, that person must have taken all steps reasonably required by the foreign law and within his or her power to free himself or herself of the foreign nationality. The Court further held that British law did not irremediably prevent Senator Gallagher from participation in representative government. The procedure provided for by British law for renunciation of British citizenship was not onerous, and the issue for Senator Gallagher was only ever to be the timing of the registration. The constitutional imperative is not engaged merely because a foreign law presents an obstacle to a particular individual being able to nominate for a particular election. Accordingly, the Court held that there was a vacancy in the representation of the Australian Capital Territory in the Senate for the place for which Senator Gallagher was returned.
+HIGH COURT OF AUSTRALIA Public Information Officer 20 July 2006 MATTHEW DAVID BOUNDS v THE QUEEN A man convicted of offences related to downloading child pornography and obscene material at a university computer laboratory had suffered no substantial miscarriage of justice by one of the charges mistakenly being put to a jury trial, the High Court of Australia held today. Mr Bounds was charged with possessing child pornography and possessing indecent or obscene articles, both in the form of computer data, on 28 July 2001, at Esperance in Western Australia. Mr Bounds was a student at Curtin University which operated a computer laboratory at Esperance Community College. Curtin University students could access the laboratory after hours by using a swipe card and a personal identification number. While checking the files of students storing large amounts of data, the university’s system administrator found 105 child pornography images and 11 other indecent or obscene images on Mr Bounds’s personal computer directory. Some were downloaded during the night. The first count alleged a crime under the WA Censorship Act and so was an indictable offence. The second count alleged a “simple offence” under the Act. On 28 May 2003 in the WA District Court, Mr Bounds was presented on an indictment for both offences. He denied storing the material and claimed someone else had learned or guessed his password. Mr Bounds said a chatroom acquaintance in Canada had sent him material which he had not looked at and which he thought was pictures of the band Metallica which they had been discussing. He was found guilty and given a suspended sentence of 24 months’ jail on each count. Mr Bounds appealed to the WA Court of Criminal Appeal on various grounds, including that the conviction and sentence on count 2 should be quashed because the offence should not have been tried on indictment. He alleged that the jury’s verdict on count 1 was unsafe and unsatisfactory as evidence concerning count 2 was wrongly put before the jury. The CCA unanimously quashed the conviction on count 2 as the offence was not triable on indictment, but, by majority, it held that admission of evidence on count 2 had caused no substantial miscarriage of justice in relation to count 1. Mr Bounds appealed to the High Court, contending that the jury had before it evidence related to count 2 which, but for both counts being on the indictment, would not have been admissible in a trial on count 1. The Court, by a 4-1 majority, dismissed the appeal. It held that the case against Mr Bounds was overwhelming. No other person was identified who could have stored the images in his personal directory. Mr Bounds accepted he was in the computer laboratory, often alone and out of hours, when they were downloaded. The Court held there was no substantial miscarriage of justice.
+HIGH COURT OF AUSTRALIA 17 November 2004 PETER TAO ZHU v THE TREASURER OF THE STATE OF NEW SOUTH WALES The High Court of Australia today allowed an appeal from a man who, it held, was legitimately selling Sydney Olympic Club memberships in China until the Sydney Organising Committee for the Olympic Games (SOCOG) stepped in to stop him and a SOCOG officer raised the matter with the police, who arrested him. Mr Zhu entered into an agreement in March 1999 with TOC Management Services authorising him to sell memberships in the Olympic Club. Benefits of club membership included tickets or the chance to obtain tickets to Games and related events. Two club committee members were appointed by SOCOG, including its commercial director Paul Reading. A licence agreement between SOCOG and TOC recognised TOC’s right to use intellectual property, namely Games names and logos, and permitted TOC to licence others to use them. Pursuant to the agency agreement, TOC provided Mr Zhu with letters of authority, along with Club letterhead, satchels and other merchandising material. He was obliged to sell 2,000 memberships, later increased to 10,000, and he paid a total of $260,000 for the agency rights. As it eventuated, this money was almost TOC’s only income. SOCOG took over the club in August 1999. Mr Reading ordered TOC managing director Keith Wyness to terminate the agency agreement with Mr Zhu. Mr Wyness incorrectly told Mr Zhu he had committed various breaches and purported to terminate the agreement. Police arrested him as he flew into Sydney from China in December 1999. SOCOG officers had failed to make a full disclosure of the relevant facts to them. Mr Zhu was charged with obtaining money by deception and attempting to obtain money by deception but the charges were later dropped. Mr Zhu commenced proceedings against SOCOG, TOC and Mr Wyness. He settled with Mr Wyness and action against TOC was stayed when a liquidator was appointed, but he proceeded with action against SOCOG for interference with contract. The New South Wales Supreme Court awarded Mr Zhu $4,234,319, including $95,000 in aggravated damages for injured feelings due to the arrest and $200,000 in exemplary damages for SOCOG’s behaviour which Justice Patricia Bergin labelled high- handed, disgraceful and reprehensible. She found that TOC’s termination of the agency agreement was not valid, that SOCOG had interfered with the contract in a number of ways, and that any breaches by Mr Zhu did not justify termination. The NSW Court of Appeal allowed an appeal, finding SOCOG had established the defence of justification because Mr Zhu had made unauthorised use of intellectual property. By this time, the Treasurer had been substituted for SOCOG which had been wound up. Mr Zhu appealed to the High Court. The Court unanimously allowed the appeal and held that SOCOG could not make out a defence of justification as the plaintiff’s conduct in Australia was lawful. Mr Zhu did not require SOCOG’s prior written consent to use its intellectual property due to the terms of SOCOG’s licence agreement with TOC and of Mr Zhu’s agency agreement with TOC. The Court held that, ultimately, the only breach made out was that Mr Zhu had obtained only oral, not written, consent to use Olympic words and symbols in China but that did not justify SOCOG’s actions. SOCOG was highly unlikely to have been able to obtain an injunction or other relief against Mr Zhu. It never sought to raise its concerns with him or to negotiate with him or to consult Chinese authorities.
+HIGH COURT OF AUSTRALIA Public Information Officer 13 December 2006 JAMES HOUGHTON AND JAMES STUDENT v SIMON ARMS Two website designers who misled an internet wine business about the operation of a bank’s financial transactions facility were liable for misleading and deceptive conduct under the Victorian Fair Trading Act even though they were employees, the High Court of Australia held today. Mr Arms set up an internet business, Australian Cellar Door, marketing wines from small wineries. Direct cellar door sales would attract low sales tax and avoid a 30 per cent margin charged by retail agents or distributors. He engaged WSA Online Limited to set up and run his website. Mr Houghton and Mr Student were WSA employees. In 2000, Mr Houghton recommended to Mr Arms a financial transactions product called ANZ e-Gate. It would enable customers to pay by credit card with funds clearing directly into the account of the winery, in return for payment by the winery of a small transaction fee. Mr Arms was told that wineries only needed to fill in a form and pay a small set-up fee. However the ANZ Bank told WSA it should obtain an e-Gate licence from the bank and sub-license Australian Cellar Door. The bank said each winery would need an ANZ credit card merchant facility and would be subject to an approval process. Several months later, Mr Student told Mr Arms that there had been a mistake about the operation of ANZ e- Gate and that Australian Cellar Door would have to arrange for each winery to become a merchant accredited by the ANZ Bank and to obtain similar accreditation for American Express and Diners Club. Each winery would need to provide the three entities with profit-and-loss statements and a business plan. Australian Cellar Door had already signed up 30 wineries and its website was to launch in five days, leaving no time to arrange for the wineries to comply with the conditions to become individual merchants. To preserve goodwill, Mr Arms converted Australian Cellar Door into a retailer with a mark-up of five per cent which he would have charged under his original system. Sales tax now had to be paid at the higher rate. Mr Arms operated at a loss for 12 months until June 2001. He then adopted a different business structure and became profitable. If he had known the true position he could have changed the website to a profitable trading method by November 2000 and would not have lost $58,331 from the seven-month setback. In the Federal Court of Australia, Mr Arms sued WSA, Mr Houghton and Mr Student to recover this amount. The Court ordered WSA (now subject to a deed of company arrangement) to pay Mr Arms $58,331, but dismissed claims against Mr Houghton and Mr Student. It held that neither Mr Houghton nor Mr Student could be said to be engaged in trade or commerce. The Full Court of the Federal Court allowed an appeal by Mr Arms against the dismissal of his claims against the two employees, on the basis that in circumstances such as those of the present case an employee could be liable. The orders of the primary judge were altered to so as to enter judgment for $58,331 against WSA, Mr Houghton and Mr Student. The employees appealed to the High Court. The Court unanimously dismissed the appeal. It held that while Mr Houghton and Mr Student were not themselves business proprietors, they nevertheless engaged in conduct in the course of trade or commerce and were thus within the ambit of the Fair Trading Act. They had contravened section 9 of the Act, which provides that a person must not in trade or commerce engage in conduct that is misleading or deceptive or is likely to mislead or deceive. The Court held that whether or not the acts of the employees were also the acts of WSA, they were the conduct of persons which contravened the prohibition in section 9.
+HIGH COURT OF AUSTRALIA 8 May 2019 PARKES SHIRE COUNCIL v SOUTH WEST HELICOPTERS PTY LIMITED [2019] HCA 14 Today the High Court unanimously dismissed an appeal from a decision of the Court of Appeal of the Supreme Court of New South Wales. The issue in the appeal was whether a claim under the general law of tort for damages for negligently inflicted psychiatric harm consequent upon the death of a passenger during air carriage to which Pt IV of the Civil Aviation (Carriers' Liability) Act 1959 (Cth) ("the Act") applies was precluded by the Act. Section 28 of the Act relevantly provides that, where Pt IV of the Act applies to the carriage of a passenger, the carrier is "liable for damage sustained by reason of the death of the passenger … resulting from an accident which took place on board the aircraft or in the course of any of the operations of embarking or disembarking". Section 35(2) provides that that liability is "in substitution for any civil liability of the carrier under any other law in respect of the death of the passenger or in respect of the injury that has resulted in the death of the passenger". Section 34 imposes a time limit on the availability of the right of action created by s 28. The appellant, a regional local authority, engaged the respondent to assist it to carry out by helicopter a low level aerial noxious weed survey. On 2 February 2006, a helicopter operated for that purpose by the respondent was carrying two of the appellant's officers, Mr Buerckner and Mr Stephenson. The helicopter struck power lines and crashed, killing all three occupants. Amongst a number of other claims made as a result of the accident, Mr Stephenson's widow, daughter and son ("the Stephensons") brought claims against both the appellant and respondent for damages for negligently inflicted psychiatric harm resulting from the death of Mr Stephenson. The claims brought by the Stephensons were commenced outside the time fixed by s 34 of the Act. The Supreme Court of New South Wales held that the Stephensons' claims did not fall within the ambit of s 35(2), with the result that they were not extinguished by the operation of s 34. Each of the Stephensons was successful in his or her claim against the appellant. The appellant, in turn, obtained judgment for contribution against the respondent as co-tortfeasor under the Act. The respondent appealed to the Court of Appeal, which allowed the appeal by majority. The majority held that the Stephensons' claims were excluded by s 35(2), and should have been dismissed. By grant of special leave, the appellant appealed to the High Court. The Court unanimously held that the Stephensons were entitled to claim against the respondent for damages for loss suffered by them by reason of Mr Stephenson's death pursuant to s 28 of the Act. The Court held that s 35(2) substituted that entitlement for any claim that might otherwise have been brought under the general law of tort. As the Stephensons' entitlement to claim under s 28 was extinguished by s 34 before their proceedings were commenced, the Court of Appeal rightly held that their claims should have been dismissed.
+HIGH COURT OF AUSTRALIA 18 June, 2003 Public Information Officer SALLY INCH JOSLYN v ALLAN TROY BERRYMAN AND WENTWORTH SHIRE COUNCIL WENTWORTH SHIRE COUNCIL v ALLAN TROY BERRYMAN AND SALLY INCH Mr Berryman ought to have been aware that Ms Joslyn was intoxicated when she took the wheel of his utility. Because that was so he was guilty of contributory negligence which contributed to the serious injuries he suffered when the utility overturned, the High Court of Australia held today. Both had been at a 21st birthday party on a property near Dareton, in south-western New South Wales, on October 26. 1996. Both had drunk heavily on the previous night in Wentworth and also drank heavily at the party. Mr Berryman went to sleep in his utility about 4am and Ms Joslyn, who was seen staggering about at 4.30am, went to sleep on the ground beside the utility. After a short sleep, they drove into Mildura for breakfast at a McDonald’s restaurant. On their return journey to the property, Mr Berryman was nodding off and Ms Joslyn took over driving, despite having lost her licence for drink-driving and not having driven for three years. Ms Joslyn lost control while driving around a sharp corner and the utility overturned. The utility had a propensity to roll and its speedometer was broken. Mr Berryman, 22 at the time, was seriously injured. Blood samples taken later indicated that at 8.45am when the accident occurred Mr Berryman had had a blood-alcohol concentration of about 0.19 per cent and Ms Joslyn about 0.138 per cent. Mr Berryman sued Ms Joslyn for negligent driving and Wentworth Shire Council for not providing a warning sign before the bend. The NSW District Court found both Ms Joslyn and the shire council guilty of negligence, holding Ms Joslyn 90 per cent responsible and the council 10 per cent responsible for the injuries suffered by Mr Berryman. The Court ordered the council to pay $750,000 and Ms Joslyn $1,995,086.36 but reduced Ms Joslyn’s damages by 25 per cent, to $1,496,314.77, owing to Mr Berryman’s contributory negligence in allowing her to drive when he ought to have been aware she was unfit to drive. Mr Berryman appealed to the NSW Court of Appeal against the contributory negligence finding. Ms Joslyn and the shire council cross-appealed, each alleging higher levels of contributory negligence. The Court upheld Mr Berryman’s appeal on the ground that Ms Joslyn had not shown signs of intoxication when she took over the driving, restoring the damages to $1,995,086.36. It dismissed the shire council’s appeal against Ms Joslyn and rejected the council’s separate appeal based on joint illegal activity by the pair. Ms Joslyn and the shire council appealed to the High Court, which held that the Court of Appeal erred in confining factors relevant to contributory negligence to those observed by Mr Berryman when he became a passenger. The High Court held that, under section 74 of the NSW Motor Accidents Act, which was not considered by the lower courts, he would be contributorily negligent if he was aware or ought to have been aware that Ms Joslyn’s driving was impaired. The Court unanimously allowed the appeals and remitted each matter to the Court of Appeal.
+HIGH COURT OF AUSTRALIA 9 September 2020 APPLICANT S270/2019 v MINISTER FOR IMMIGRATION AND BORDER PROTECTION [2020] HCA 32 Today the High Court dismissed an appeal from a judgment of the Full Court of the Federal Court of Australia concerning the validity of the decision of the Minister for Immigration and Border Protection under s 501CA(4) of the Migration Act 1958 (Cth) not to revoke the cancellation of the appellant's Class BB Subclass 155 Five Year Resident Return visa, which is not a protection visa. Section 501(3A) of the Migration Act relevantly provides that the Minister must cancel a visa if satisfied that the person does not pass the character test because they have a substantial criminal record and the person is serving a sentence of imprisonment on a full-time basis. Section 501CA(4) provides that the Minister may revoke the decision to cancel a visa if two conditions are met. The first is that the person makes representations in accordance with the invitation from the Minister (s 501CA(4)(a)). The second is that the Minister is satisfied that either the person passes the character test or there is another reason why the decision should be revoked (s 501CA(4)(b)). The appellant was born in Vietnam and arrived in Australia on a humanitarian visa in 1990. The visa did not have as a criterion that the appellant was entitled to protection under the Convention relating to the Status of Refugees as modified by the Protocol relating to the Status of Refugees. In 1994, the appellant was granted a Class BB Subclass 155 Five Year Resident Return visa. That visa was cancelled pursuant to s 501(3A). The appellant was sent a notice of the decision, a copy of the relevant ministerial direction and other enclosures including a revocation request form. The appellant filled out the revocation request form and sent it to the Department of Immigration and Border Protection. Subsequently, in a letter from the Department, the appellant was provided with particulars of information including an "International obligations and humanitarian concerns assessment" ("the Assessment") and invited to comment. The Assessment concluded that no non-refoulement obligations were owed with respect to the appellant. The appellant responded to the request for comment but not in relation to the Assessment. The Minister declined to revoke the cancellation. The appellant's application for judicial review and appeal to the Full Court were unsuccessful. The appellant was granted special leave to appeal to the High Court on the ground that, when exercising the power under s 501CA(4), the Minister was obliged to, and failed to, consider whether non-refoulement obligations were owed to the appellant. A majority of the High Court held that the Minister was not required to consider whether Australia owed non-refoulement obligations to the appellant as "another reason" under s 501CA(4)(b)(ii). There was nothing in any of the material submitted by the appellant in support of his revocation request that indicated or suggested that he now held a subjective or well-founded fear of persecution in Vietnam.
+HIGH COURT OF AUSTRALIA 1 May 2013 COMMISSIONER OF TAXATION v UNIT TREND SERVICES PTY LTD [2013] HCA 16 Today the High Court unanimously allowed an appeal from a decision of the Full Court of the Federal Court of Australia concerning the interpretation of s 165-5(1)(b) of the A New Tax System (Goods and Services Tax) Act 1999 (Cth) ("the GST Act"). Unit Trend Services Pty Ltd ("Unit Trend") is the representative member of a GST group of companies which, at the relevant time, included Simnat Pty Ltd ("Simnat"), Blesford Pty Ltd ("Blesford") and Mooreville Investments Pty Ltd ("Mooreville"). Simnat was the developer of residential building unit projects. When construction of the projects was at an advanced stage, Simnat sold the projects for their then value as going concerns to Blesford and Mooreville, which completed the projects and sold the completed units. The Commissioner of Taxation ("the Commissioner") issued a declaration to Unit Trend under the anti-avoidance provisions in Div 165 of the GST Act negating a total GST benefit in excess of $21 million. This declaration was contested by Unit Trend in the Administrative Appeals Tribunal ("the AAT"), which found in favour of the Commissioner. The AAT found that the companies were engaged in a "scheme" under s 165-10(2) of the GST Act. The GST benefit got from the scheme, which Div 165 was being invoked to negate, was the benefit obtained as a result of intermediate sales by Simnat to Blesford and Mooreville of a going concern. The GST benefit reflected the amount agreed to be paid to Simnat by Blesford and Mooreville as the consideration for the intermediate sales, which brought about an uplift in the intermediate cost base of the units supplied by them to buyers of the units. As a result, the amount of GST payable by Unit Trend was less than it would have been had the scheme not existed. The AAT's decision was subsequently overruled by the Full Court in favour of Unit Trend. The Full Court held that the GST benefit obtained by Unit Trend was attributable to the making of a choice, election, application or agreement expressly provided for by the GST Act and, therefore, Div 165 did not apply. On appeal by special leave to the High Court, the issue before the Court was whether the GST benefit obtained by Unit Trend was not attributable to the making of a choice, election, application or agreement that was expressly provided for by the GST Act. The High Court unanimously held that the phrase "not attributable to" in s 165-5(1)(b) is concerned with whether the GST benefit in question is not one to which the taxpayer was entitled by exercise of a statutory choice. Reference to the undisputed facts showed that the GST benefit in question was not attributable to the making of a statutory choice by Unit Trend provided for by the GST Act. The GST Benefit was, therefore, negated by the anti-avoidance provisions in Div 165.
+HIGH COURT OF AUSTRALIA 12 November, 2003 KEVIN WAYNE GILLARD v THE QUEEN The High Court of Australia today ordered a new trial for a man deprived of the possibility of a verdict of manslaughter in a South Australian murder trial. Mr Gillard and Gerald David Preston were convicted of the murder in 1996 of two men and attempted murder of a third. A man named Tognolini and/or the Hell’s Angels allegedly wanted one of the murdered men, Leslie Knowles, killed in relation to his involvement in police investigations into drug dealing. Mr Preston allegedly agreed to perform the contract killing for Mr Gillard stole a van for Mr Preston and drove him to Mr Knowles’s car repair workshop. Mr Preston walked into the workshop and shot dead Mr Knowles and an employee and injured a mechanic. Mr Gillard then drove Mr Preston away and later destroyed the van. Mr Gillard denied knowing Mr Preston was armed. He also asserted that he believed they went to the workshop to rob Mr Knowles. The SA Supreme Court trial judge directed the jury that, for a murder conviction, the prosecution must prove Mr Gillard and Mr Preston shared a common purpose to kill Mr Knowles and had to exclude the possibility that his purpose was to participate in a robbery. The prosecution argued at trial and before the Full Court of the Supreme Court that, even on the robbery hypothesis, the jury should have been told that the facts could be consistent with murder, and that they could convict Mr Gillard of manslaughter. The Full Court unanimously upheld his conviction. The High Court held that on the robbery hypothesis Mr Gillard was party to a common design involving the hostile use of a loaded gun. If he foresaw as a possible incident of carrying out the common design that Mr Preston might shoot Mr Knowles with intent to kill or cause grievous bodily harm then he was guilty of murder. If he foresaw that Mr Knowles might shoot Mr Knowles during a robbery, but without foreseeing such intent, then he was guilty of manslaughter. The Court unanimously allowed the appeal and held that the trial judge’s refusal to leave a case of manslaughter to the jury was an error of law. The Court also held that it was not possible to say that despite this error there was no miscarriage of justice. It was not inevitable that a jury, properly instructed and given manslaughter as an alternative to consider, would find that Mr Gillard foresaw that Mr Preston intended to kill or cause grievous bodily harm. The Court ordered that his convictions be quashed and that there be a new trial.
+HIGH COURT OF AUSTRALIA 8 February 2017 CLIVE FREDERICK PALMER v MARCUS WILLIAM AYRES, STEPHEN JAMES PARBERY AND MICHAEL ANDREW OWEN IN THEIR CAPACITIES AS LIQUIDATORS OF QUEENSLAND NICKEL PTY LTD (IN LIQ) & ORS; IAN MAURICE FERGUSON v MARCUS WILLIAM AYRES, STEPHEN JAMES PARBERY AND MICHAEL ANDREW OWEN IN THEIR CAPACITIES AS LIQUIDATORS OF QUEENSLAND NICKEL PTY LTD (IN LIQ) [2017] HCA 5 Today the High Court published its reasons for orders made after a hearing on 10 November 2016, which dismissed writs of summons seeking, amongst other relief, a declaration that s 596A of the Corporations Act 2001 (Cth) is invalid as contrary to Ch III of the Constitution. The High Court held that s 596A of the Corporations Act, which provides for the mandatory examination of certain persons in relation to a corporation's examinable affairs, does not confer non-judicial power on federal courts or on courts exercising federal jurisdiction and so is not invalid as contrary to Ch III of the Constitution. The plaintiff in each proceeding – Mr Palmer and Mr Ferguson – was a former director of Queensland Nickel Pty Ltd ("QN"). QN was placed under administration and the creditors of QN subsequently resolved that QN be wound up in insolvency. Additional liquidators of QN were subsequently appointed by an order of the Federal Court of Australia ("the Special Purpose Liquidators"). The Special Purpose Liquidators applied to the Federal Court for, and obtained, an order for the issue of a summons under s 596A of the Corporations Act requiring, among others, Mr Palmer and Mr Ferguson to attend for examination about QN's examinable affairs. Mr Palmer and Mr Ferguson both attended the Federal Court and were each examined. Mr Palmer and Mr Ferguson then each filed a writ of summons in the High Court. In each proceeding, the following question was reserved for the consideration of a Full Court – is s 596A of the Corporations Act invalid as contrary to Ch III of the Constitution in that it confers non-judicial power on federal courts and on courts exercising federal jurisdiction? The High Court unanimously held that an application for the issue of a summons for mandatory examination under s 596A is a "matter" in the constitutional sense and its determination engages the judicial power of the Commonwealth. Therefore, s 596A does not confer non-judicial power on federal courts or on courts exercising federal jurisdiction and so is not invalid as contrary to Ch III of the Constitution.
+HIGH COURT OF AUSTRALIA 5 October 2016 PRINCE ALFRED COLLEGE INCORPORATED v ADC [2016] HCA 37 Today the High Court unanimously allowed an appeal from the Full Court of the Supreme Court of South Australia. It held that the respondent should not have been granted an extension of time under s 48(3) of the Limitation of Actions Act 1936 (SA) ("the Limitations Act") to bring his proceeding. In 1962, the respondent was a 12 year old boarder at the Prince Alfred College ("the PAC"). He was sexually abused by Bain, a housemaster employed by the PAC. The first two instances of abuse occurred on occasions when Bain was telling a story in the respondent's dormitory after lights out. Thereafter, the respondent was molested by Bain on about 20 occasions in Bain’s room and again when they spent a night together at a house. The respondent's evidence was that prefects supervised the daily activities of the junior boys, such as study, showering and lights out, but that Bain was often present during shower time and often told stories in the dormitory after lights out. The respondent said that other housemasters did not supervise lights out or enter his dormitory. The respondent suffered symptoms of psychological injury from the early 1980s onwards. In 1997, he decided not to sue the PAC and accepted its offer to pay his medical and legal fees to date and his son’s school fees. The respondent commenced civil proceedings against Bain, and reached a settlement in 1999. The respondent's symptoms persisted and he sought further financial assistance from the PAC in 2004 and 2005, without success. In 2005, his psychologist said that he would not work full-time again. The respondent brought proceedings against the PAC in the Supreme Court of South Australia in December 2008. He alleged that the PAC was liable in damages to him for breach of a non-delegable duty of care and breach of its duty of care, and that the PAC was vicariously liable for the wrongful acts of Bain. Due to the passage of time, the respondent required an extension of time to bring proceedings. Section 48(3) of the Limitations Act permits, if certain preconditions are met, a court to extend time at its discretion if the respondent shows that it was just in all the circumstances for it to do so. This involves showing that the PAC would not be significantly prejudiced as a result of the exercise of the court’s discretion. The primary judge dismissed the respondent's case regarding liability, and refused to grant an extension of time due to the prejudice suffered by the PAC by reason of the "extraordinary" delay in commencing proceedings. Her Honour considered that the PAC was disadvantaged due to the absence or death of critical witnesses, and the loss of documentary evidence. On appeal, each member of the Full Court held that the PAC was vicariously liable and an extension of time should have been granted. By grant of special leave, the PAC appealed to the High Court. Unanimously, the Court held that the primary judge was correct not to have granted an extension of time. The respondent's decision in 1997 not to commence proceedings was significant in this regard. A majority of the High Court considered the correct approach to be taken to the question of the PAC's vicarious liability for the acts of Bain. In cases of this kind, attention must be given to any special role that the employer has assigned to the employee and the position in which the employee is thereby placed vis-à-vis the victim. Relevant features in this regard include authority, power, trust, control and the ability to achieve intimacy with the victim. However, the identification of the correct approach also showed that a determination could not be made as to the PAC's liability in this case, because the length of the delay and consequent deficiencies in the evidence placed the PAC in such a position that it could not properly defend the claims brought against it. That was another reason why the extension of time could not be granted and it was also the reason why the primary judge should not have proceeded to determine liability. The High Court allowed the appeal.
+HIGH COURT OF AUSTRALIA 18 March 2020 KMC v DIRECTOR OF PUBLIC PROSECUTIONS (SA) [2020] HCA 6 Today the High Court published its reasons for allowing an appeal against a sentence imposed by the District Court of South Australia. On 6 February 2020, the High Court unanimously pronounced orders allowing the appeal and remitting the matter to the sentencing judge for re-sentencing according to law. The applicant was found guilty by a jury in the District Court of South Australia of one count of persistent sexual exploitation of a child contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA) ("the CLCA"), as it then stood. The jury was discharged without being asked any questions as to the basis of its verdict. In August 2017, the applicant was sentenced to imprisonment for 10 years and three days, with a non-parole period of five years. After the applicant was sentenced, the High Court handed down its decision in Chiro v The Queen (2017) 260 CLR 425. In that decision, which also concerned an offence committed against s 50 of the CLCA, the plurality held that "the judge should request that the jury identify the underlying acts of sexual exploitation that were found to be proved unless it is otherwise apparent to the judge which acts of sexual exploitation the jury found to be proved", and where a jury is not questioned as to the basis of its verdict, "the offender will have to be sentenced on the basis most favourable to the offender". Subsequently, the South Australian Parliament passed the Statutes Amendment (Attorney-General's Portfolio) (No 2) Act 2017 (SA) ("the Amending Act"), which commenced operation on 24 October 2017. Section 9(1) provides that "[a] sentence imposed on a person, before the commencement of this section, in respect of an offence against section 50 of the [CLCA] ... is taken to be, and always to have been, not affected by error or otherwise manifestly excessive merely because", relevantly, "the sentencing court sentenced the person consistently with the verdict of the trier of fact but having regard to the acts of sexual exploitation determined by the sentencing court to have been proved beyond a reasonable doubt". The object of s 9 was to overcome the effect of Chiro. In 2019, the applicant applied for an extension of time, and permission, to appeal against his sentence on the grounds that the sentence and the non-parole period were manifestly excessive and that, contrary to Chiro, the sentencing judge had not sentenced the applicant on the basis most favourable to him consistent with the verdict of the jury. The respondent sought to uphold the sentence on the basis that it was valid by reason of s 9(1) of the Amending Act. The whole of the cause was removed into the High Court from the Full Court of the Supreme Court of South Australia under s 40(1) of the Judiciary Act 1903 (Cth). The applicant contended that s 9(1) of the Amending Act was not engaged in this case, and if it was, that s 9(1) was constitutionally invalid. The High Court unanimously held that the applicant should be granted an extension of time for permission to appeal against the sentence and permission to appeal, the appeal should be allowed, the sentence imposed by the sentencing judge be set aside and the matter be remitted to the sentencing judge for re-sentencing. The High Court held that the judge's sentencing remarks were not sufficient to engage s 9(1), because the sentencing judge did not make findings as to what acts of sexual exploitation he found to have been proved beyond reasonable doubt. Section 9(1) thus could not validate the applicant's sentence, which was contrary to the law as stated by Chiro. Questions as to the constitutional validity of s 9(1) therefore did not arise.
+HIGH COURT OF AUSTRALIA 8 November 2007 Public Information Officer RAYMOND JAMES WASHER v THE STATE OF WESTERN AUSTRALIA Evidence of an acquittal on one drug conspiracy charge was rightly excluded from a later trial on a different charge, the High Court of Australia held today. Mr Washer was convicted by the Western Australian District Court in 2005 of conspiring with John Di Lena and Andrea Scott between 18 May and 2 June 2000 to possess a prohibited drug, methylamphetamine, with intent to sell or supply it, and sentenced to seven years’ jail. The alleged conspiracy involved the proposed importation to WA from Queensland of two kilograms of the drug. Mr Washer contributed $55,000 to the deal. He and Mr Di Lena, allegedly the organiser, flew to Brisbane at different times to organise the shipment. An associate, Robert Fisher, was sent to Brisbane to collect the drug. Rather than flying back, Mr Fisher wanted to return by hire car with his girlfriend, Pauline Lennon. Ms Scott arranged to have the car hire charged to her credit card. In northern New South Wales, Mr Fisher and Ms Lennon argued, and she drove off in the car, with the drug concealed inside. Police apprehended Ms Lennon two days later and found the concealed methylamphetamine. Ms Lennon was arrested, Mr Fisher was arrested a few days later, and Ms Scott’s payment for the hire car led to her being arrested, along with Mr Di Lena and Mr Washer. In 2004, Mr Washer was acquitted of a separate conspiracy with Gavin Whitsed and William Bowles to sell or supply methylamphetamine. They and Mr Di Lena and Ms Scott were members of the Rebels Outlaw Motorcycle Gang. Some evidence presented at the first trial, including police surveillance of conversations between Mr Washer, Mr Whitsed and Mr Bowles, and scales and a coffee grinder with traces of the drug found in Mr Washer’s home, was also used at the second trial. During that trial, Mr Washer’s counsel, during cross-examination of a police witness, sought to adduce evidence of the earlier acquittal. Judge Henry Wisbey disallowed the line of questioning. Mr Washer appealed unsuccessfully against his conviction to the WA Court of Appeal, then appealed to the High Court. He argued that Judge Wisbey erred in not allowing evidence of the acquittal to be adduced and that once the evidence was received Judge Wisbey should have directed the jury to give Mr Washer the full benefit of his acquittal. The High Court unanimously dismissed the appeal. Four members of the Court upheld Judge Wisbey’s ruling against the earlier acquittal being allowed into evidence. One member would have allowed evidence of the acquittal but held that the proviso that there had been no substantial miscarriage of justice applied, due to overwhelming evidence against Mr Washer. The plurality held that the acquittal had to be relevant to be admitted into evidence. Relevance depended upon whether the evidence could rationally affect the assessment of the probability of the existence of a fact in issue in the proceedings. The acquittal would be relevant if it gave an appellant a right to the benefit of an assumption related to the assessment of other evidence in the case, or it had had some logical connection with the assessment of any facts in issue. The plurality held that the acquittal only established that Mr Washer was not guilty of a particular conspiracy, but did not establish that he was innocent of drug dealing or that his conversations with Mr Whitsed and Mr Bowles were not about drugs. It held that no logical connection between his acquittal and some fact in issue at the later trial was identified and the evidence was properly excluded as irrelevant.
+HIGH COURT OF AUSTRALIA 14 December 2022 REALESTATE.COM.AU PTY LTD v JAMES KELLAND HARDINGHAM; RP DATA PTY LTD v JAMES KELLAND HARDINGHAM [2022] HCA 39 Today, the High Court allowed an appeal, and allowed another appeal in part, from the Full Court of the Federal Court of Australia. The appeals concerned the scope and terms of a licence and subsequent sub-licence to use photographs and floor plans of residential properties ("works") produced by Mr Hardingham and his company Real Estate Marketing Australia Pty Ltd ("REMA"), for the marketing of real estate properties. Mr Hardingham and REMA supplied works produced by Mr Hardingham to real estate agencies for use in the marketing of properties for sale or lease by way of informal contract. One of the uses of the works by the agencies was to upload them to the platform operated by Realestate.com.au ("REA"). REA then provided the works to RP Data Limited ("RP Data"). RP Data operated a website and provided a subscription service for agencies where the works remained after the sale or lease of the property as part of the historical information about completed transactions. Mr Hardingham and REMA brought proceedings in the Federal Court claiming RP Data had infringed the copyright in a large number of works. It was common ground that RP Data would infringe the copyright in the works if it used the works without a licence referable to Mr Hardingham or REMA. As such, this proceeding was directed to the terms of the licence Mr Hardingham or REMA gave the agencies, which in turn permitted the agencies to sub-licence the use of the works to REA. Mr Hardingham and REMA accepted that a licence was granted by REMA to the agencies which permitted them to sub-licence to REA. However, they contended that the licence was subject to a limitation that once a sale or lease of the property the subject of the works was completed, the licence came to an end. A licence in these terms would not have permitted the agencies to accept the terms of the licence required by REA, which included the ability to sub-licence to other persons such as RP Data. The primary judge found RP Data did not infringe the copyright in the works as it was to be inferred from the conduct of the parties, or to be implied into the agreements to give business efficacy to them, that Mr Hardingham and REMA licenced the agencies to upload the works to REA's platform, and in so doing to grant a licence to REA in accordance with REA's standard terms and conditions. The majority of the Full Court allowed Mr Hardingham and REMA's appeal, concluding that the licence was limited to use for the sale or lease of the relevant property. The High Court held that RP Data did not infringe copyright in the works as a reasonable person in the position of the parties would have known that one of the purposes of REMA providing the works to the agencies was so that the agencies could provide them to REA, and that the agencies had no real choice other than to accept a term requiring them to provide a licence to REA to use the works indefinitely and to provide them to RP Data.
+HIGH COURT OF AUSTRALIA 3 August 2005 CHIEF EXECUTIVE OFFICER OF CUSTOMS v NAZIH EL HAJJE The High Court of Australia today unanimously allowed an appeal by Customs relating to the way a prosecution case for excise evasion was handled by the Victorian Court of Appeal. Mr El Hajje was driving a rented truck in Broadford, Victoria, in February 2000 when he was intercepted by police. He was allegedly carrying 691.48kg of cut tobacco which attracted excise duty of $165,567.97 ($239.44 per kilo). Section 117 of the Excise Act provided that no-one shall, without authority, have in their possession, custody or control any manufactured or partly manufactured excisable goods upon which excise has not been paid. Customs prosecuted Mr El Hajje for unlawful possession of excisable goods upon which excise duty had not been paid. Customs’ statement of claim (later amended) contained a number of averments, or allegations, detailing Mr El Hajje’s lack of any licence under the Excise Act, his apprehension with the cut tobacco on which no duty has been paid, and the lack of any permission or authority to have the tobacco in his possession, custody or control. Mr El Hajje was convicted and fined $331,135 but successfully appealed to the Victorian Court of Appeal on the ground that the trial judge should not have found that cut tobacco is manufactured goods. The Court of Appeal held that an ultimate fact in issue cannot be averred, based on the proposition that tobacco leaf might be cut for purposes other than for manufacture into a product suitable for consumption. It held that with the facts constituting manufacture not being averred, and no facts other than the ultimate fact in issue being averred, the ultimate fact in issue was not properly the subject of an averment. Customs appealed to the High Court. The Court allowed the appeal. It held that the averment provisions of the Excise Act do not distinguish between the ultimate fact in issue and other facts. Averments are of material facts alleged in the pleading, not of evidence proving those material facts. References to the ultimate fact in issue in excise prosecutions may suggest there will always be a single determinative issue of fact, which is seldom so. The Court held that, in this case, demonstrating a contravention of section 117 required proof that: Mr El Hajje had certain goods in his possession, custody or control; he was not a manufacturer; he had no authority to have the goods in his possession, custody or control; the goods were manufactured or partly manufactured; and the goods were of a kind attracting excise. None of these facts were more significant than others. Any not admitted by Mr El Hajje could be described as an ultimate fact in issue. The Act provides that what is averred is prima facie evidence of the matter averred. It remained for the trial judge and the Court of Appeal to say whether the facts averred were established to the requisite degree of proof. However the Court of Appeal did not consider whether the necessary facts were established to the requisite degree and Mr El Hajje’s contention, that the trial judge erred in finding that the tobacco in his possession, custody or control was manufactured or partly manufactured, remained undetermined. The Court remitted the matter to the Court of Appeal for further hearing and determination.
+HIGH COURT OF AUSTRALIA Public Information Officer 12 December, 2002 GEOFFREY ROBERTS AND KENNETH CASE v RODNEY BASS The High Court of Australia has allowed appeals by Geoffrey Roberts and Kenneth Case against judgments that they were liable to pay damages for having defamed former Liberal member for the South Australian seat of Florey, Rodney “Sam” Bass. He lost his seat in the 1997 state election. Mr Roberts, representing the so-called Clean Government Coalition, produced three documents making claims critical of Mr Bass, particularly about taxpayer-funded travel. The first two documents were letterboxed during the 1997 election campaign. The third, a how-to-vote card, was handed out on election day, including by Mr Case. The three documents are set out in the judgment of Justice Callinan. The SA District Court decided Mr Roberts and Mr Case injured Mr Bass by publishing false and defamatory material. The Court held that the publications were made on occasions of qualified privilege at common law but the privilege was lost by the malice of Mr Roberts and Mr Case. On appeal, the Full Court of the SA Supreme Court upheld the finding of malice and increased the damages awarded against Mr Roberts from $60,000 to $100,000, made up of $20,000 for the first publication, $35,000 for the second and $45,000 for the third. It upheld the award of damages against Mr Case of $5,000. Mr Roberts and Mr Case appealed to the High Court. They argued that the decision of the South Australian courts was affected by legal error. That argument was upheld. The High Court, by majority, overturned the orders of the Full Court of the SA Supreme Court and allowed the appeals of both Mr Roberts and Mr Case. In Mr Roberts’s appeal, it ordered a new trial. In Mr Case’s appeal it ordered that judgment be entered in his favour.
+HIGH COURT OF AUSTRALIA 4 September 2019 BELL LAWYERS PTY LTD v JANET PENTELOW & ANOR [2019] HCA 29 As a general rule, a self-represented litigant may not obtain any recompense for the value of his or her time spent in litigation. Under an exception to the general rule, commonly referred to as "the Chorley exception", a self-represented litigant who happens to be a solicitor may recover his or her professional costs of acting in the litigation. Today the High Court unanimously allowed an appeal from a decision of the Court of Appeal of the Supreme Court of New South Wales. The Court unanimously held that the Chorley exception should not be extended to the benefit of barristers. Further, a majority of the Court held that the Chorley exception should not be recognised as part of the common law of Australia. The appellant, an incorporated legal practice, retained the first respondent, a barrister, to appear in proceedings in the Supreme Court of New South Wales. At the conclusion of those proceedings, a dispute arose as to the payment of the first respondent's fees. The first respondent sued the appellant for her unpaid fees in the Local Court of New South Wales. She was unsuccessful in that proceeding, but she appealed successfully to the Supreme Court of New South Wales. Orders for costs were made in the first respondent's favour in relation to both the Local Court and the Supreme Court proceedings. The first respondent subsequently forwarded a memorandum of costs to the appellant pursuant to those costs orders, which included sums for costs incurred on her own behalf and the provision of legal services by her in the Local Court and Supreme Court proceedings. Although the first respondent was represented by a solicitor in the Local Court proceeding, and by solicitors and senior counsel in the Supreme Court proceeding, she had undertaken preparatory legal work and had attended court on a number of occasions. The appellant refused to pay the costs claimed for the work personally undertaken by the first respondent. A costs assessor rejected the first respondent's claim for the costs of the work she had performed and that decision was affirmed on appeal before the Review Panel and the District Court of New South Wales. The first respondent sought judicial review of the decision of the District Court in the Court of Appeal of the Supreme Court of New South Wales. The Court of Appeal, by majority, held that the first respondent was entitled to rely upon the Chorley exception notwithstanding that she was a barrister and not a solicitor. By grant of special leave, the appellant appealed to the High Court. The majority of the Court held that the Chorley exception should not be recognised as part of the common law of Australia because it is an anomaly that represents an affront to the fundamental value of equality of all persons before the law and cannot be justified by the considerations of policy said to support it. In addition, the anomalous nature of the Chorley exception is inconsistent with the statutory definition of "costs" in s 3(1) of the Civil Procedure Act 2005 (NSW).
+HIGH COURT OF AUSTRALIA 29 May 2013 PLAINTIFF M79/2012 v MINISTER FOR IMMIGRATION AND CITIZENSHIP [2013] HCA 24 Today a majority of the High Court held that the decision of the Minister for Immigration and Citizenship ("the Minister") to grant the plaintiff a temporary safe haven visa was valid and that the plaintiff's application for a protection visa was not valid. The plaintiff arrived at Christmas Island in February 2010 without a visa to enter or remain in Australia, and was placed in immigration detention. Because Christmas Island is an excised offshore place under the Migration Act 1958 (Cth) ("the Act"), the plaintiff was prevented from making a valid application for a protection visa by s 46A(1) of the Act. The Minister has a power under s 195A of the Act to grant a visa of a particular class to a person in immigration detention if the Minister thinks that it is in the public interest to do so, without regard to any criteria for that visa contained in the Migration Regulations 1994 (Cth) and certain specified provisions of the Act. In the exercise of that power, the Minister granted each of the plaintiff and 2,382 other people in like circumstances two visas: a temporary safe haven visa, permitting a stay of seven days, and a bridging visa, permitting a stay of between three and 12 months (six months in the plaintiff's case). On the plaintiff's release from detention, s 46A(1) of the Act no longer applied to prevent the making of a valid protection visa application. However, the grant of a temporary safe haven visa engaged a similar statutory bar, imposed by s 91K of the Act. The Minister stated that, had it not been possible to grant the temporary safe haven visa simultaneously with the grant of the bridging visa, the Minister would not have exercised his power to grant the bridging visa. This was because, the plaintiff having been released from immigration detention, the grant of the bridging visa alone would have enabled the plaintiff to lodge a valid application for a protection visa in circumstances where the protection claim was already being dealt with under existing alternative processes. The plaintiff applied for a protection visa. The Minister treated that application as invalid. The plaintiff applied to the High Court for an order to quash the decision of the Minister to issue the temporary safe haven visa and an order requiring the Minister to consider the plaintiff's application for a protection visa according to law. The plaintiff submitted that the decision to grant him the temporary safe haven visa was invalid, because s 195A did not authorise the grant of a temporary safe haven visa except to afford temporary safe haven, and because the decision was made for the improper purpose of preventing the plaintiff from making other visa applications. The High Court rejected those arguments. A majority of the Court held that it was open to the Minister to grant a temporary safe haven visa by reference to its legal characteristics and consequences, unconstrained by the purpose for which that class of visa was created under the Act. The purpose for which the Minister granted the visa was not beyond the power conferred by s 195A(2) of the Act. Accordingly, the decision to grant the temporary safe haven visa was valid and the plaintiff's application for a protection visa was invalid.
+HIGH COURT OF AUSTRALIA 17 June 2015 MINISTER FOR IMMIGRATION AND BORDER PROTECTION v WZAPN & ANOR WZARV v MINISTER FOR IMMIGRATION AND BORDER PROTECTION & ANOR [2015] HCA 22 Today the High Court unanimously allowed an appeal from the Federal Court of Australia in Minister for Immigration and Border Protection v WZAPN and unanimously dismissed an appeal from the Federal Court in WZARV v Minister for Immigration and Border Protection. The High Court held that the likelihood of a period of temporary detention of a person for a reason mentioned in the Refugees Convention is not, of itself and without more, a threat to liberty within the meaning of s 91R(2)(a) of the Migration Act 1958 (Cth) ("the Act"). WZAPN and WZARV both claimed refugee status upon arrival in Australia. WZAPN is a stateless Faili Kurd whose former place of habitual residence is Iran. In 2010, he was denied refugee status by a refugee status assessment ("RSA") officer. An Independent Merits Reviewer ("IMR") reviewed the decision of the RSA officer and concluded, among other things, that the real chance of short periods of detention upon WZAPN's return to Iran did not constitute serious harm for the purposes of the Act. The Federal Magistrates Court of Australia (as it then was) dismissed WZAPN's application for judicial review of the IMR's decision. WZAPN's appeal to the Federal Court was allowed on the basis that the threat of a period of detention constitutes serious harm whatever the severity of the consequences for liberty. The Federal Court also held that the IMR's decision was vitiated by a want of procedural fairness. The Minister was granted special leave to appeal to this Court from the decision of the Federal Court. WZARV is a Sri Lankan citizen of Tamil ethnicity, who in 2011 was denied refugee status by an RSA officer. With respect to the possible detention of WZARV upon return to Sri Lanka, the IMR accepted that it was likely WZARV would be interviewed by Sri Lankan authorities upon arrival at the airport, but that it is usual for such questioning to be completed in a matter of hours. WZARV's application for judicial review to the Federal Circuit Court of Australia and appeal to the Federal Court were dismissed. By grant of special leave, WZARV appealed to the High Court on the ground that, on the construction of s 91R(2)(a) of the Act adopted by the Federal Court in the WZAPN proceedings, the IMR had erroneously concluded that WZARV did not face serious harm upon return to Sri Lanka. The High Court held that the question of whether a risk of the loss of liberty constitutes "serious harm" for the purposes of s 91R requires a qualitative evaluation of the nature and gravity of the apprehended loss of liberty. The Court also held that the IMR's decision regarding WZAPN's claims was not vitiated by a want of procedural fairness.
+HIGH COURT OF AUSTRALIA 24 August 2016 MILLER v THE QUEEN; SMITH v THE QUEEN; PRESLEY v THE DIRECTOR OF PUBLIC PROSECUTIONS [2016] HCA 30 Today the High Court allowed three appeals from a decision of the Court of Criminal Appeal of the Supreme Court of South Australia. The appellants and a man named Betts were convicted of murder following a trial in the Supreme Court of South Australia. There was evidence that the four were involved in an altercation in which Betts fatally stabbed the deceased. The liability of the appellants for the murder was left for the jury's consideration on bases which included the doctrine of extended joint criminal enterprise as enunciated in McAuliffe v The Queen (1995) 183 CLR 108; [1995] HCA 37: each appellant would be guilty of murder if he was a party to an agreement to commit an assault and he foresaw that in carrying out that agreement one of his co-venturers might kill or inflict really serious bodily injury intending to do so and, with that awareness, he continued to participate in the agreed criminal enterprise. Each of the appellants had been drinking alcohol in the hours leading up to the fatal altercation. They appealed to the Court of Criminal Appeal contending that the verdicts were unreasonable in light of the evidence of the extent of their intoxication. The Court of Criminal Appeal dismissed this ground of appeal in each case without reviewing the sufficiency of the evidence to support the conviction. Prior to the hearing in the High Court, the Supreme Court of the United Kingdom in R v Jogee [2016] 2 WLR 681; [2016] 2 All ER 1 held that the doctrine of extended joint criminal enterprise should no longer be a basis for the imposition of criminal liability. The appellants were granted leave to argue that, consistent with Jogee, the decision of the High Court in McAuliffe should be reopened and overruled. After consideration of the history and basis of the doctrine, the majority held that the law in Australia should remain as stated in McAuliffe. The High Court held, by majority, that the appeals should be allowed in circumstances in which the Court of Criminal Appeal had failed to review the sufficiency of the evidence to sustain the appellants' convictions. The proceedings were remitted to the Court of Criminal Appeal for determination of the ground that the verdicts were unreasonable and could not be supported by the evidence.
+HIGH COURT OF AUSTRALIA 12 March 2014 STATE OF WESTERN AUSTRALIA v BROWN & ORS [2014] HCA 8 Today the High Court unanimously held that certain native title rights and interests held by the Ngarla People in respect of land in the Pilbara region of Western Australia were not extinguished by the grant of two mineral leases to some joint venturers for the mining of iron ore at Mount Goldsworthy. The Court held that the mineral leases did not grant the joint venturers a right to exclude any and everyone from access to the land the subject of the mineral leases. In 1964, the State of Western Australia made an agreement with some joint venturers about the development and exploitation of iron ore deposits at Mount Goldsworthy. Pursuant to the agreement, the State granted mineral leases for iron ore to the joint venturers. The agreement required the joint venturers to allow the State and third parties access over the land the subject of the mineral leases provided that such access did not unduly prejudice or interfere with the joint venturers' operations. In accordance with the agreement, the joint venturers developed the Mount Goldsworthy iron ore project. A mine, a town and associated works were constructed. The mine subsequently closed in 1982 and the town closed in 1992. Alexander Brown and others (on behalf of the Ngarla People) applied to the Federal Court of Australia for native title determinations in respect of land and waters in the Pilbara region of Western Australia. The claimed areas included the areas the subject of the mineral leases. The native title rights and interests claimed were the non-exclusive rights to access and camp on the land, to take certain traditional resources (excluding minerals) from the land, to engage in ritual and ceremony on the land, and to care for, maintain and protect from physical harm particular sites and areas of significance. It was agreed that, subject to the question of whether they had been extinguished, the claimed native title rights and interests existed in the land the subject of the mineral leases. The Federal Court concluded that the claimed native title rights and interests had been extinguished in the area where the mine, the town and the associated works had been constructed. On appeal, the Full Court of the Federal Court of Australia concluded that the native title rights and interests had not been extinguished on the land the subject of the mineral leases but that those rights and interests could not be exercised for so long as the joint venturers continued to hold rights under the mineral leases. By special leave, the State appealed to the High Court. The High Court held that the grant of the mineral leases did not extinguish the claimed native title rights and interests. Although the joint venturers could prevent others from using the land for mining purposes and could use any part of the land for the extraction of iron ore, the joint venturers did not have an unqualified right to exclude any and everyone from access to the land. The Court held that the joint venturers' rights under the mineral leases were not inconsistent with the claimed native title rights and interests over the land.
+HIGH COURT OF AUSTRALIA 11 July 2012 PUBLIC SERVICE ASSOCIATION OF SOUTH AUSTRALIA INCORPORATED v INDUSTRIAL RELATIONS COMMISSION OF SOUTH AUSTRALIA & ANOR [2012] HCA 25 Today the High Court granted special leave to appeal, and allowed an appeal, from a decision of the Full Court of the Supreme Court of South Australia, which had held that its supervisory jurisdiction did not extend to judicial review of determinations of the Industrial Relations Commission of South Australia ("the Commission") that the Commission lacked jurisdiction. In 2010, the applicant, Public Service Association of South Australia ("the PSA"), notified the Commission of two disputes, each of which was said to be an "industrial dispute" about an "industrial matter" as defined in s 4(1) of the Fair Work Act 1994 (SA) ("the Act"). In both disputes, the PSA requested the calling of a voluntary conference under s 200 of the Act. However, the Commission held that in each of the disputes, it had no jurisdiction to determine these matters. The PSA appealed the decision under s 207 of the Act to the Full Commission. The Full Commission dismissed both appeals. The PSA, by way of judicial review, then issued proceedings in the Supreme Court of South Australia seeking an order quashing the decision of the Full Commission. The Court granted permission to proceed, and the matter was heard by the Full Court. The Full Court dismissed the application on the ground that it lacked jurisdiction to make the orders sought. Section 206 of the Act provides: "(1) A determination of the Commission is final and may only be challenged, appealed against or reviewed as provided by this Act. (2) However, a determination of the Commission may be challenged before the Full Supreme Court on the ground of an excess or want of jurisdiction." (emphasis added) The primary submission by the PSA in the High Court sought to apply the decision in Kirk v Industrial Court (NSW) (2010) 239 CLR 531 with the result that s 206 of the Act was invalid to the extent to which it denied the jurisdiction of the Full Court to review decisions of the Commission for jurisdictional error. The majority of the High Court held that the question of invalidity did not arise because, on its proper construction, s 206 did not deny the authority of the Supreme Court to intervene where the Commission had erred in deciding that it lacked jurisdiction. Heydon J held that s 206 did purport to do so but to that extent was invalid as the PSA contended. The result was that the High Court unanimously set aside the decision of the Full Court and remitted the PSA's application for judicial review for determination by the Full Court.
+HIGH COURT OF AUSTRALIA 5 August 2004 PACIFIC CARRIERS LIMITED v BNP PARIBAS A cargo carrier’s claim on a bank’s letters of indemnity was upheld by the High Court of Australia today. Grain trader New England Agricultural Traders Pty Ltd (NEAT) sold legumes – 10,000 tonnes each of chickpeas and dun peas – to Calcutta grain trader Royal Trading Company in 1998. While the cargo was in transit to India the world price of legumes fell and Royal delayed accepting the cargo and failed to pay the purchase price. The original bills of lading were not available to enable the cargo to be unloaded, and Pacific Carriers required bank-endorsed letters of indemnity before releasing the cargo. Two letters of indemnity, one for the dun peas and one for the chickpeas, were signed by NEAT and BNP Paribas’s documentary credits department manager Ira Dhiri who faxed them to Pacific in January and February 1999, allowing legumes to be released to Royal. Discharge of legumes occurred in stages then stopped. Pacific sustained losses and claimed against BNP. NEAT became insolvent. BNP argued that it had simply verified NEAT’s signature on the letters of indemnity and only NEAT was bound to indemnify Pacific. BNP also claimed that if the documents meant that BNP was an indemnifying party, then they were signed without its authority, and did not bind it. In the New South Wales Supreme Court, Pacific sued BNP in contract, negligence and misleading conduct contrary to section 52 of the Trade Practices Act. Justice Robert Hunter awarded damages of US$4.238 million plus interest to Pacific against BNP for negligent misrepresentation of NEAT’s financial strength rather than contract and dismissed the section 52 claim. The NSW Court of Appeal held that the letters of indemnity should be construed as showing BNP indemnifying Pacific, but held that Ms Dhiri had no authority to bind the bank to an indemnity. The Court of Appeal also rejected the negligence and section 52 claims. Pacific appealed to the High Court which unanimously held it could succeed in contract. The Court held that Ms Dhiri’s belief about what the documents were meant to convey is irrelevant. Instead, construction was determined by what a reasonable person in Pacific’s position would have understood them to mean, based on their wording and the surrounding circumstances. Nothing in the documents indicated BNP was merely authenticating NEAT’s signature and nothing in the circumstances suggested Pacific would be satisfied by such verification. Ms Dhiri had authority to sign and stamp documents verifying NEAT’s undertaking but no authority to sign letters of indemnity. Nothing put Pacific on notice or inquiry as to her lack of authority. The High Court held that Ms Dhiri did have apparent authority, Pacific reasonably relied on that authority, and BNP was bound. The Court allowed the appeal by Pacific and remitted the matter to the Court of Appeal to deal with outstanding issues including calculation of damages.
+H IG H CO U RT O F A U S T RA L IA 30 June 2020 MINISTER FOR IMMIGRATION AND BORDER PROTECTION v CED16 & ANOR [2020] HCA 24 Today the High Court unanimously allowed an appeal from a judgment of the Federal Court of Australia. The issue raised by the appeal was whether an invalid certificate purportedly issued by a delegate of the Minister for Immigration and Border Protection ("the Minister") under s 473GB of the Migration Act 1958 (Cth) was "new information" within the meaning of s 473DC(1) of the Act. Section 473GB relevantly provides that the Minister may issue a written certificate certifying that certain information given by the Secretary of the Department of Immigration and Border Protection ("the Department") to the Immigration Assessment Authority ("the Authority") as part of the "fast track review process" established by Pt 7AA of the Act should not be disclosed because it would ground a claim of public interest immunity by the Commonwealth. Section 473DC(1) relevantly defines "new information" to mean "documents or information" that "were not before the Minister when the Minister made the decision [under review]" and that "the Authority considers may be relevant". The first respondent's application for a protection visa was refused by a delegate of the Minister and this decision was referred to the Authority for review under Pt 7AA of the Act. The "review material" provided by a delegate of the Secretary of the Department to the Authority included a "Draft IMAPS Identity Assessment Form" ("the Identity Assessment Form"). A certificate was purportedly issued under s 473GB(5) ("the Certificate") certifying for the purpose of s 473GB(1)(a) that disclosure of the information contained in the Identity Assessment Form would be contrary to the public interest "because it is a Departmental working document". The Authority affirmed the delegate's decision and an application for judicial review was dismissed by the Federal Circuit Court. On appeal before a single judge exercising the appellate jurisdiction of the Federal Court, the Minister conceded that the Certificate was invalid for the reason that the characterisation of a document as a "Departmental working document" was insufficient to support a claim of public interest immunity. The Federal Court held that the Authority's decision was affected by jurisdictional error and should be set aside on the basis that the invalid certificate was "new information" within the meaning of s 473DC(1), and by having regard to this information in making its decision the Authority did not comply with the obligation in s 473DE(1) of the Act to provide particulars of new information to a referred applicant. Before the High Court, the appellant argued that the Federal Court was wrong to characterise the invalid Certificate as "new information" within the meaning of s 473DC(1) of the Act. The Court unanimously held that the term "information" in the phrase "new information" in s 473DC(1) should be interpreted to mean the communication of knowledge about some particular fact, subject or event that is of an evidentiary nature. In addition, the Court held that information will only be "relevant" for the purposes of meeting the definition of "new information" if the Authority considers that the information is capable directly or indirectly of rationally affecting assessment of the probability of the existence of some fact about which the Authority might be required to make a finding in the conduct of its review of the referred decision. The Court concluded that the Certificate was incapable of being "new information" within the meaning of s 473DC(1) as it was not a "document" nor did it contain "information" of an evidentiary nature that was capable of being considered relevant to the conduct of the review being undertaken by the Authority.
+HIGH COURT OF AUSTRALIA 9 September 2015 DUNCAN v INDEPENDENT COMMISSION AGAINST CORRUPTION [2015] HCA 32 Today the High Court unanimously dismissed an application seeking a declaration that Pt 13 of Sched 4 to the Independent Commission Against Corruption Act 1988 (NSW) ("the ICAC Act") is invalid. In July 2013, the respondent published a report containing findings that the applicant had engaged in "corrupt conduct" within the meaning of s 8(2) of the ICAC Act. The applicant commenced proceedings in the Supreme Court of New South Wales challenging the validity of those findings. His claim was dismissed by the primary judge. The applicant appealed to the Court of Appeal against that decision. On 15 April 2015, prior to the determination of the Court of Appeal proceedings, the High Court delivered its judgment in Independent Commission Against Corruption v Cunneen [2015] HCA 14, holding that "corrupt conduct" within the respondent's investigative jurisdiction under the ICAC Act does not encompass conduct which does not adversely affect the probity, even if it adversely affects the efficacy, of the exercise of the functions of a public official. It was common ground that the applicant's conduct the subject of the respondent's findings in the report did not affect the probity of the exercise of the functions of a public official. As a result, the applicant added to the grounds of his appeal the contention that the respondent lacked jurisdiction to make findings of corrupt conduct against him. On 6 May 2015, the New South Wales Parliament enacted the Independent Commission Against Corruption Amendment (Validation) Act 2015 (NSW), which added Pt 13 of Sched 4 to the ICAC Act. Pt 13 purports to ensure the validity of the respondent's activities before 15 April 2015, notwithstanding the decision in Cunneen. The applicant sought a declaration from the Court of Appeal that Pt 13 is invalid. The applicant's challenge to the validity of Pt 13 was removed to the High Court. The High Court unanimously dismissed the application. The Court held that cll 34 and 35 of Pt 13 deem those acts done by the respondent before 15 April 2015 to be valid to the extent that they would have been valid if the definition of corrupt conduct in s 8(2) of the ICAC Act encompassed conduct which adversely affected the efficacy, but not the probity, of the exercise of official functions. A majority of the Court held that cll 34 and 35 of Pt 13 operate to effect an alteration in the substantive law as to what constitutes corrupt conduct, and the whole Court held that cll 34 and 35 of Pt 13 retrospectively confer jurisdiction upon the respondent. In doing so, the provisions attach new legal consequences and a new legal status to things done which otherwise would not have had such legal consequences or status.
+HIGH COURT OF AUSTRALIA 24 August 2012 JAYANT MUKUNDRAY PATEL v THE QUEEN [2012] HCA 29 Today the High Court unanimously upheld an appeal by the appellant, Jayant Mukundray Patel, against his convictions for manslaughter and unlawfully doing grievous bodily harm. The Court found that a miscarriage of justice had occurred because, on the 43rd day of a 58 day trial, the prosecution radically changed its case in a way that rendered irrelevant much of the evidence that had been admitted. The Court ordered that there be a new trial. The appellant was convicted in the Supreme Court of Queensland of three counts of manslaughter and one count of unlawfully doing grievous bodily harm contrary to ss 303 and 320 of the Criminal Code (Q). The charges arose out of surgery conducted by the appellant on four patients while he was employed as a surgeon at the Bundaberg Base Hospital. The prosecution alleged that the standard of care provided by the appellant to the patients was so low as to breach the duty imposed by s 288 of the Criminal Code upon a person who undertakes to administer surgical treatment. Initially the prosecution alleged that the appellant had been generally incompetent and grossly negligent in recommending the surgical procedures, in the manner in which he carried out those procedures, and in the post-operative treatment which he supervised. But on day 43 of the trial, the prosecution narrowed its case to focus on whether the surgical procedure in each case should have been undertaken. The appellant appealed to the Court of Appeal of the Supreme Court of Queensland on grounds which included that a miscarriage of justice had resulted from the change in the prosecution case. The Court of Appeal dismissed the appeal and upheld the appellant's conviction. The appellant appealed by special leave to the High Court on the ground that he had been convicted on a wrong basis. The appellant submitted that s 288 applied only to the conduct of surgery, not to the anterior decision to operate. The Court unanimously rejected that contention. Section 288 applied to "surgical… treatment", which encompassed all that was provided in the course of such treatment. Properly construed, the provision imposed a duty with respect to the formation of a judgment that surgery be undertaken. However, the High Court unanimously granted special leave to appeal, and allowed the appeal, on the ground that there was a miscarriage of justice in the conduct of the appellant's trial. The prosecution led a large body of evidence criticising the appellant's surgical skills and post-operative care in order to establish its original case that the appellant had been grossly negligent in all aspects of his treatment of the patients. As the trial progressed it became apparent, and it was not seriously disputed, that the evidence showed that the surgery had in fact been performed competently enough. The prosecution then radically changed its case, at a late point in the trial, to focus on the appellant's decision to undertake the surgical procedures. Much of the evidence about the surgery and post-operative care was prejudicial to the appellant but no longer relevant on the prosecution's revised case. The prejudicial effect on the jury was not overcome by the directions given by the trial judge about the limited use that could be made of that evidence. A substantial miscarriage of justice occurred. The Court set aside the order of the Court of Appeal and in its place ordered that there be a new trial.
+HIGH COURT OF AUSTRALIA 10 November 2021 THE QUEEN v ROLFE [2021] HCA 38 Today, the High Court granted special leave to appeal against a decision of the Full Court of the Supreme Court of the Northern Territory of Australia ("the Full Court") and unanimously allowed the appeal. The appeal concerned a question that had been referred to the Full Court ("Question 3") regarding the interpretation of s 148B of the Police Administration Act 1978 (NT) ("the Act"), which relevantly provided that a person is "not civilly or criminally liable" for acts done "in good faith" in the actual or purported "exercise of a power or performance of a function" under the Act. The respondent, a member of the Northern Territory Police Force ("Police Force"), was charged with murder and alternative offences under the Criminal Code (NT) in respect of a fatal shooting which occurred after the respondent had been deployed to arrest the deceased. Prior to the respondent's trial, the trial judge referred four questions to the Full Court on the basis of a set of "assumed facts", which were not agreed, and some aspects of which were likely to be disputed at trial. During the Full Court hearing, concerns were raised that Question 3 was hypothetical in nature. To meet those concerns, the parties had suggested reformulating Question 3 as: "Does a 'function' under s 148B of the [Act] include the functions listed in s 5(2) of the [Act]?". Section 5(2) listed the "core functions" of the Police Force, relevantly including "to protect life and property" and "to prevent ... offences". The Full Court reformulated Question 3, but not in the form suggested by the parties. The Full Court found that the protection afforded by s 148B extended to the performance of the functions listed in s 5(2), and answered its reformulated Question 3 to the effect that it would be open to the jury to find that the respondent was acting in the exercise or purported exercise of a power, or the performance or purported performance of a function, under the Act. The trial was set to commence on 23 August 2021. On 19 August 2021, the Crown applied to the High Court for special leave to appeal from the Full Court's decision in respect of Question 3. On 23 August 2021, the High Court granted a stay of the trial pending the hearing of the application. On 10 September 2021, the application was referred to the Full Court of the High Court for argument as on appeal. The application was heard on 2 November 2021. The High Court held that the Full Court erred in its reformulation of Question 3 and adopted the parties' suggested reformulation. The High Court answered Question 3 in the negative, holding that the relevant powers and functions to which s 148B applied were those of the common law, which s 25 of the Act conferred, and the power of arrest in s 124 of the Act. The common law and statutory powers are subject to constraints, such as doing only that which is reasonable and necessary. The High Court reasoned that, unlike ss 25 and 124, s 5 identified the principal functions of the Police Force but did not confer any particular power or function on its members. In granting special leave, the High Court also emphasised that, while it was necessary to correct the Full Court's error, it should not be assumed that the High Court would do so in every case given the undesirability of fragmenting the ordinary course of criminal proceedings.
+HIGH COURT OF AUSTRALIA 31 August 2016 NH v THE DIRECTOR OF PUBLIC PROSECUTIONS; JAKAJ v THE DIRECTOR OF PUBLIC PROSECUTIONS; ZEFI v THE DIRECTOR OF PUBLIC PROSECUTIONS; STAKAJ v THE DIRECTOR OF PUBLIC PROSECUTIONS [2016] HCA 33 Today the High Court unanimously allowed four appeals from the Full Court of the Supreme Court of South Australia. The High Court held that the Full Court did not have power to look behind the verdicts delivered by the foreperson of the jury, in open court in the sight and hearing of the other jurors without any dissent or action by them, to quash the appellants' acquittals of murder and convictions of manslaughter. The appellants were jointly charged with murder and tried before a judge and a jury in the Supreme Court of South Australia. In summing up, the trial judge directed the jury that they could deliver one of three verdicts in respect of each accused: guilty of murder, guilty of manslaughter or not guilty. Her Honour also directed the jury that a verdict of guilty of murder had to be unanimous, but any other verdict, including not guilty of murder, could be by a majority of 10 or more after four hours of deliberation. In returning verdicts, the foreperson, in answer to questions from the judge's associate, reported that the jury found each of the appellants not guilty of murder but guilty of manslaughter. Later that day, the foreperson reported to a court officer that he had mistakenly told the Court that at least 10 members of the jury had agreed on verdicts of not guilty of murder. Statements were taken from the foreperson and each of the other members of the jury. Parts of those statements appeared to indicate that there had not been a majority of 10 or more in favour of a verdict of not guilty of murder in relation to any of the appellants. The Director of Public Prosecutions ("DPP") applied to the Supreme Court for orders to quash of all of the verdicts and for a retrial of each of the appellants on the charge of murder. A majority of the Full Court made the orders sought by the DPP. In the majority's view, s 57(3) of the Juries Act 1927 (SA) required the jury to reach a verdict that the accused was not guilty of murder, unanimously or by majority, before it could reach a verdict as to the alternative offence of manslaughter. The foreperson's mistake in announcing the verdicts was said by the majority of the Full Court to have amounted to a material irregularity resulting in unlawful verdicts under s 57 of the Juries Act. That enlivened an inherent power, within the Court's inherent jurisdiction to prevent the abuse of its processes, to overturn the verdicts of acquittal and order a re-trial. By grant of special leave, the appellants appealed to the High Court. The High Court unanimously allowed each appeal. The High Court held that the verdicts delivered by the foreperson, without dissent or correction by the jury, later translated by the trial judge into perfected judgments of acquittal and conviction, were beyond the power of the Court to amend or set aside in an exercise of inherent power. Given that the jury's verdicts could not be impugned, there was no basis for receiving into evidence affidavits containing their statements about their deliberations.
+HIGH COURT OF AUSTRALIA 9 December, 2003 JASON SHAW v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS The High Court of Australia today upheld a section of the Migration Act that enabled the Minister to cancel the visa of a British man who had lived in Australia since he was a child but who had never become an Australian citizen. Mr Shaw was born in the United Kingdom on 27 December 1972 and arrived in Australia on 17 July 1974 and has not left Australia since. He has two children who are citizens. Mr Shaw had criminal convictions dating back to age 14. In 1998 he was sentenced to five years’ imprisonment for property offences and two years’ jail for drug offences. On 17 July 2001 the Minister used his power under section 501(2) to cancel Mr Shaw’s visa because Mr Shaw failed the character test in section 501(6). He had a substantial criminal record within the meaning of section 501(7). The Court was asked whether Parliament’s power to make laws with respect to naturalisation and aliens under section 51(xix) of the Constitution supported section 501(2) to the extent that it authorised the Minister to cancel Mr Shaw’s visa. The Court, by a 4-3 majority, answered that section 501(2) was within power. Mr Shaw argued he was not an alien when he arrived in Australia and nothing since had placed him within reach of the aliens power because he was a British subject. The Court held that British subject was not a synonym for the constitutional expression “subject of the Queen”. The Court held that the relationship between the UK and Australia had changed since federation, so that the UK was now regarded as a foreign power and its citizens as aliens, and that the Constitution contemplated such change. UK citizens could not be regarded as subject to implicit protection from the legislative power with respect to aliens.
+HIGH COURT OF AUSTRALIA 6 October 2011 AB v STATE OF WESTERN AUSTRALIA & ANOR AH v STATE OF WESTERN AUSTRALIA & ANOR [2011] HCA 42 Today the High Court upheld appeals by AB and AH against the decisions of the Court of Appeal of the Supreme Court of Western Australia, which had set aside the decision of the State Administrative Tribunal ("the Tribunal") and refused the appellants' applications for recognition certificates ("certificates") of female to male gender reassignment under the Gender Reassignment Act 2000 (WA) ("the Act"). The Act establishes a Gender Reassignment Board ("the Board"), and provides for the issue of a certificate which is conclusive evidence of the fact that a person has undergone a reassignment procedure and is of the sex stated in the certificate. The functions of the Board are to receive and determine applications for certificates, and to issue certificates in suitable circumstances. Before a person can apply to the Board for a certificate, the person must have undergone a reassignment procedure, as defined in s 3 of the Act. The appellants, AB and AH, each identify themselves as male. Each applied to the Board for certificates which stated that they were male. Each of the appellants has undergone gender reassignment procedures in the nature of a bilateral mastectomy and testosterone therapy, although they retain some female sexual organs. Section 15(1)(b)(ii) of the Act relevantly provides that the Board must be satisfied that the person applying for a recognition certificate has the "gender characteristics" of the gender to which the person has been reassigned. "Gender characteristics" is defined by s 3 of the Act as "the physical characteristics by virtue of which a person is identified as male or female". The Board was satisfied that the appearance of each of the appellants is that of a male person, but determined not to issue a certificate in each case because the appellants retained a female reproductive system. Following a review of the Board's decisions, the Tribunal set aside the decisions, granted each application for a certificate and directed the Board to issue such a certificate. The Court of Appeal of the Supreme Court of Western Australia allowed the appeals from those decisions and set aside the Tribunal's decision. The High Court unanimously upheld the appeals and set aside the orders of the Court of Appeal, with the result that the decision and orders of the Tribunal were reinstated. The focus of the appeals to the High Court was on the meaning of "gender characteristics" in s 15(1)(b)(ii) of the Act, as defined in s 3 of the Act. The Court held that, for the purposes of the Act, the physical characteristics by which a person is identified as male or female are confined to external physical characteristics that are socially recognisable. Social recognition of a person's gender does not require knowledge of a person's remnant sexual organs. The requirements of the Act, including s 15(1)(b)(ii), are to be given a fair and liberal interpretation in order that they achieve the Act's beneficial purposes. The Act contains no warrant for implying further requirements such as potential adverse social consequences or community standards and expectations.
+HIGH COURT OF AUSTRALIA 19 June 2019 CARTER HOLT HARVEY WOODPRODUCTS AUSTRALIA PTY LTD v THE COMMONWEALTH OF AUSTRALIA & ORS [2019] HCA 20 Today the High Court unanimously dismissed an appeal from a judgment of the Court of Appeal of the Supreme Court of Victoria concerning the payment of priority debts and amounts out of trust assets held by an insolvent corporate trustee. Amerind Pty Ltd ("Amerind") carried on a business solely in its capacity as trustee of a trading trust and, to that end, maintained credit facilities with Bendigo and Adelaide Bank Ltd ("the Bank"). After terminating those facilities and demanding repayment, the Bank appointed the second respondents ("the receivers") as receivers and managers of Amerind pursuant to a general security deed. Amerind's creditors then resolved that the company be wound up in insolvency. The receivers realised Amerind's assets and satisfied its obligations to the Bank out of the proceeds. After provision for what the receivers considered to be a just estimate of their remuneration, the surplus remaining for distribution was some $1,619,108, being the proceeds of realisation of inventory. The first respondent ("the Commonwealth"), which had advanced accrued wages and entitlements totalling $3.8 million to Amerind's former employees, claimed to be entitled to payment out of that surplus in priority to other creditors, including the appellant ("Carter Holt"), pursuant to ss 433(3), 556(1)(e) and 560 of the Corporations Act 2001 (Cth). In rejecting the Commonwealth's claim, the primary judge held that s 433 of the Corporations Act did not apply because Amerind had no assets of its own, only a right of indemnity in respect of trust liabilities, which right was neither "property of the company" nor "comprised in or subject to a circulating security interest" within the meaning of that section. In allowing the Commonwealth's appeal from that decision, the Court of Appeal held that Amerind's right to be indemnified out of the assets of the trust was "property of the company" and that ss 433, 555 and 556 therefore necessarily applied to the distribution of the surplus. The Court of Appeal further held that, because the proceeds of realisation of the inventory were property of Amerind subject to a circulating security interest and of which the receivers had taken possession or assumed control, s 433(3) required the receivers to pay the claims in s 556(1)(e) in priority out of those proceeds. By grant of special leave, Carter Holt appealed to the High Court. The High Court unanimously held that, in the winding up of a corporate trustee, the "property of the company" available for payment of creditors includes so much of the trust assets as the company is entitled, in exercise of its right of indemnity, to apply in satisfaction of the claims of creditors, but that proceeds from an exercise of the right of exoneration may be applied only in satisfaction of trust liabilities to which the right relates. The Court also held that s 433(3) required the receivers to pay the debts in accordance with the statutory priorities in a winding up. A majority reasoned that Amerind's right of indemnity was not "property [of the company] comprised in or subject to a circulating security interest", but the inventory itself was such "property of the company" and the receivers were, as Amerind would have been, entitled to apply the proceeds of its realisation in satisfaction of the claims of trust creditors.
+HIGH COURT OF AUSTRALIA 29 February 2012 AUSTRALIAN EDUCATION UNION v DEPARTMENT OF EDUCATION AND CHILDREN'S SERVICES [2012] HCA 3 Today the High Court allowed an appeal from the Full Court of the Supreme Court of South Australia, which had held that the Minister of Education was empowered to appoint temporary "contract teachers" under s 9(4) of the Education Act 1972 (SA) ("the Act"). The High Court held that the Minister was empowered to appoint teachers only under s 15 of the Act. In South Australia, the Minister could appoint persons as "officers of the teaching service" under s 15(1) of the Act. For many years, the Minister also purported to appoint persons as temporary "contract teachers" under s 9(4) of the Act. Section 9(4) provided for the appointment of "such officers and employees (in addition to ... the teaching service)" as the Minister considered necessary "for the proper administration of this Act or for the welfare of the students of any school". Long service leave entitlements of officers and employees appointed under s 9(4) were less favourable than the entitlements enjoyed by officers of the teaching service appointed under s 15. In 2005, the Department of Education and Children's Services advised the South Australian Branch of the Australian Education Union ("the AEU") that contract teachers would, in the future, be appointed under s 15 of the Act, and in 2007, s 9(4) was repealed. However, the parties continued to dispute the long service leave entitlements of persons who had purportedly been appointed under s 9(4) prior to the repeal of that section. In March 2007, the AEU notified the Industrial Relations Commission of South Australia ("the Commission") of the dispute, asserting that the Minister's power to appoint teachers stemmed from s 15 of the Act, and that all temporary or contract teachers, being officers of the teaching service, were entitled to long service leave entitlements as persons appointed under s 15. The Commission referred two questions of law to the Industrial Relations Court of South Australia ("the IRC"): 1. Did s 9(4) of the Act, at the time that it was in force, authorise the Minister to appoint officers to be engaged as teachers, or did s 15 provide exclusively for the appointment of teachers? In consequence of the answer to question one, are the long service leave entitlements of any teachers purportedly appointed pursuant to s 9(4) governed by the provisions of the Public Sector Management Act 1995 (SA), or Division 3 of Part 3 of the Act? The Full Court of the IRC concluded that s 9(4) had authorised the Minister to appoint officers to be engaged as teachers independently of s 15. An appeal to the Full Court of the Supreme Court was dismissed. The AEU appealed, by special leave, to the High Court of Australia. The High Court allowed the appeal, but remitted question two to the Full Court of the IRC for further consideration. In answer to question one, the High Court held that, at the time it was in force, s 9(4) of the Act did not authorise the Minister to appoint officers to be engaged as teachers, and s 15 provided exclusively for the appointment of teachers. The High Court rejected a submission that the words "in addition to" in s 9(4) meant "as well as" and should be read as supplementary or expansionary, holding that they were words of limitation, used in the sense of "apart from". The High Court held that even if it were possible to characterise the power conferred by s 15 as a specific power carved out of a more general power conferred by s 9(4), the general power should be read as not applying to the subject matter of the specific power.
+HIGH COURT OF AUSTRALIA 15 June 2004 ROSELLIE JONNELL COLE v SOUTH TWEED HEADS RUGBY LEAGUE FOOTBALL CLUB LIMITED AND ANGELA JANE LAWRENCE A woman who was struck by a vehicle while intoxicated failed in her appeal against the rugby league club where she had spent the day drinking. The High Court of Australia held the club had not breached any duty it owed to the woman. Ms Cole, then aged 45, attended a regular Sunday champagne breakfast at the club with friends and stayed on drinking while football matches were played. She was asked to leave at 5.30pm and was struck by a four-wheel drive vehicle driven by Mrs Lawrence near the club at 6.20pm and seriously injured. She was found to have a blood-alcohol concentration of 0.238 per cent. The Court of Appeal of the Supreme Court of New South Wales held that the evidence did not support a finding that Mrs Lawrence had driven negligently. It held that the club owed Ms Cole only the general duty of care owed by the occupier of premises to a lawful entrant. This duty did not extend to protecting patrons from harm of the kind suffered by Ms Cole caused by inebriation. Ms Cole appealed to the High Court. In the High Court Ms Cole argued that the club supplied her with drink when a reasonable person would know she was intoxicated and that it allowed her to leave in an unsafe condition. However other people bought alcohol that she drank, drinks could also be bought at the adjoining football ground and the club refused her service from 3pm. The High Court accepted the Court of Appeal finding that the club had not served her after 12.30pm. When the club manager asked Ms Cole to leave, he offered her both the club’s courtesy bus and a taxi, but she swore at him, and two men she had befriended said they would take care of her. The High Court, by a 4-2 majority, dismissed the appeal. It held that an adult in Ms Cole’s position knew the effects and risks of excessive drinking and that the club had done all that could be expected of it to ensure her safety. The Court held the club could not be expected to monitor the number of drinks consumed by each patron or to compel her to stay on its premises to sober up after she refused its offers of transport. Without deciding the content and extent of any duty of care owed by an operator of licensed premises, which might depend on the circumstances of a particular case, the Court held that the club had not failed in any duty toward Ms Cole.
+HIGH COURT OF AUSTRALIA 29 May 2020 HOCKING v DIRECTOR-GENERAL OF THE NATIONAL ARCHIVES OF AUSTRALIA [2020] HCA 19 Today the High Court by majority allowed an appeal from a judgment of the Full Court of the Federal Court of Australia. The appeal concerned the question of whether correspondence between the former Governor-General of Australia, Sir John Kerr, and Her Majesty Queen Elizabeth II in the custody of the National Archives of Australia ("the Archives") was constituted by "Commonwealth records" for the purposes of the Archives Act 1983 (Cth) because the correspondence was "the property of the Commonwealth or of a Commonwealth institution". Pursuant to the Archives Act, the Archives has responsibility for the "care and management" of "the archival resources of the Commonwealth". Section 3(2) of the Archives Act defines the archival resources of the Commonwealth as consisting of "Commonwealth records and other material" that are "of national significance or public interest" and that "relate to", amongst other things, "the history or government of Australia". A "Commonwealth record" is defined in s 3(1) as including "a record that is the property of the Commonwealth or of a Commonwealth institution". "Commonwealth institution" is defined as including "the official establishment of the Governor-General". Subject to exceptions, a Commonwealth record within the care of the Archives must be made available for public access once the record is within the "open access period", which for a Commonwealth record created before 1980 is 31 years after the date of creation. There is no requirement for public access to archival resources of the Commonwealth that are not Commonwealth records. The correspondence was exchanged throughout the period of Sir John Kerr's term of office as Governor-General and was described as personal and confidential. In 1978, on the instructions of Sir John Kerr, the correspondence was deposited with the Archives (then known as the Australian Archives) by Mr David Smith, the Official Secretary to the Governor-General, in fulfilment of an arrangement he had made with the Director-General of the Archives ("the Director-General"). In 2016, Professor Jennifer Hocking requested access to Record AA1984/609, which contained the deposited correspondence. That request was rejected by the Director-General on the basis that Record AA1984/609 did not contain Commonwealth records. An argument that the deposited correspondence was not the property of the Commonwealth but was private or personal to Sir John Kerr was accepted by the Federal Court at first instance and by a majority of the Full Court on appeal. In the High Court, the majority held that the correspondence was constituted by Commonwealth records because it was the property of the Commonwealth or of a Commonwealth institution, namely the official establishment of the Governor-General. Five Justices in the majority held that in the statutory context of the Archives Act the term "property" connoted the existence of a relationship in which the Commonwealth or a Commonwealth institution had a legally endorsed concentration of power to control the custody of a record. Their Honours held that the arrangement by which the correspondence was kept by Mr Smith and then deposited with the Archives demonstrated that lawful power to control the custody of the correspondence lay with the Official Secretary, an office within the official establishment of the Governor-General, such that the correspondence was the property of the official establishment. The other Justice in the majority held that the correspondence was, by common law concepts of property employed in the Archives Act, the "property of the Commonwealth" because it had been created or received officially and kept by the official establishment of the Governor-General.
+HIGH COURT OF AUSTRALIA Public Information Officer 7 August, 2003 RE MEMBERS OF THE FULL BENCH OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION, THE MARITIME UNION OF AUSTRALIA, THE AUSTRALIAN INSTITUTE OF MARINE AND POWER ENGINEERS, AND THE AUSTRALIAN MARITIME OFFICERS' UNION; EX PARTE CSL PACIFIC SHIPPING INC The Australian Industrial Relations Commission had jurisdiction to consider an application to add the owners of a Bahamas-registered ship crewed by Ukrainians to an award governing the rates of pay and conditions of employment of crews of ship operating in Australian waters, the High Court of Australia held today. CSL Pacific Shipping is incorporated in Barbados. The company and an Australian corporation, CSL Australia Pty Ltd, are members of the Canadian-owned CSL Group Inc. In July 2000, CSL Pacific acquired a ship, River Torrens, from CSL Australia and renamed it CSL Pacific and registered it in the Bahamas. CSL Pacific recruited a crew in the Ukraine and traded in North Asia before returning to Australia in October 2001 under charter to CSL Australia. CSL Pacific did not hold a licence to engage in coasting trade but carried cargoes between ports around Australia under either continuing voyage or single voyage permits issued under the Navigation Act. The permits carried no conditions about crew pay rates, which were less than award rates. The three unions applied to the AIRC to have CSL Pacific added to the award's schedule of employers. None of the crew are members of those unions. The Full Bench of the AIRC concluded it had jurisdiction to hear and determine an application to vary the award as the matter was an industrial issue under section 5 of the Workplace Relations Act. It allowed 15 working days to show cause why the award should not be varied to add CSL Pacific and to add a provision that the award applied to voyages within Australian waters, or while operating under a permit or licence granted under the Navigation Act, or on a voyage to or from an Australian port. In the High Court, CSL Pacific sought constitutional writs to quash the AIRC decision and to prohibit any further proceeding on the unions' application to vary the award. CSL Pacific argued that the Commonwealth Parliament's constitutional powers did not authorise the making of laws regulating employer-employee relations when the employer has no presence in Australia and the employees are foreign seafarers. The Court unanimously held that the Workplace Relations Act and the Navigation Act should be read together, the Workplace Relations Act did enable the varying of the award to cover CSL Pacific crew and the legislation was within power.
+HIGH COURT OF AUSTRALIA Public Information Officer 8 April, 2003 The High Court of Australia today dismissed an application for special leave to appeal by a man convicted of murder. Michael Heron was found guilty of fatally stabbing Bill Jularic with a knife during a fight at the Beresford Hotel in Darlinghurst in Sydney in 1996. The principal issue at Heron’s trial in the New South Wales Supreme Court was whether Jularic was stabbed or whether he accidentally impaled himself on a shard of broken glass. Heron was sentenced to 14 years’ jail. The Court of Criminal Appeal rejected his appeal. Heron then sought leave to appeal to the High Court on the ground that the trial judge misdirected the jury on provocation, despite Heron’s defence counsel not raising the issue during the trial, not seeking any redirection and not raising this ground in the NSW Court of Criminal Appeal. The High Court unanimously held that the trial judge had misdirected the jury on provocation by asking it to consider what an ordinary person must or would have done rather than what an ordinary person could have done. But the Court held that this did not result in any miscarriage of justice, given the manner in which the trial was fought and the weight of evidence against Heron. The Court followed previous decisions that in exceptional circumstances it could hear criminal appeals on grounds neither raised at trial nor in the intermediate court of appeal but held that the circumstances of Heron’s case did not warrant such a course.
+HIGH COURT OF AUSTRALIA Manager, Public Information 7 July 2009 BRYAN REGINALD PAPE v THE COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA & ANOR [2009] HCA 23 On 3 April 2009 the High Court announced its answers to the questions raised in an application by Mr Bryan Pape for relief including declarations that the Tax Bonus for Working Australians Act (No 2) 2009 (Cth) was invalid and that the payment of the “tax bonus” to him under that Act was unlawful. The Court now publishes its reasons. When Mr Pape filed his proceedings he was a taxpayer who was entitled to receive $250 under the Bonus Act. The parties agreed to submit four questions to the High Court for determination, by way of a special case under the Rules of the Court: 1. Does Mr Pape have standing to seek the relief claimed in his Writ of Summons and his Statement of Claim? 2. Is the Tax Bonus for Working Australians Act (No 2) 2009 (Cth) valid because it is supported by one or more expressed or implied heads of legislative power under the Commonwealth Constitution? 3. Is payment of the tax bonus to which Mr Pape is entitled under the Bonus Act supported by valid appropriation under sections 81 and 83 of the Constitution? 4. Who should pay the costs of the special case? Question 1: The Commonwealth conceded that Mr Pape had standing to contend that the payment to him under the Bonus Act was unlawful, but submitted that he did not have sufficient special interest to argue the broader issue that the Bonus Act was invalid in its application to other persons. No member of the Court accepted this submission. A finding by the Court that the payment of the bonus to Mr Pape was unlawful because the Bonus Act was invalid would be binding in any subsequent disputes concerning the validity of the Bonus Act. All members of the Court determined that Mr Pape had standing to seek a declaration of invalidity. Question 2: The Court, by majority, held that the Bonus Act was a valid law of the Commonwealth Parliament, supported by s 51(xxxix) of the Constitution as being incidental to the exercise by the Commonwealth Government of its executive power under s 61 of the Constitution. Question 3: Mr Pape argued that the money that was to be paid to taxpayers under the Bonus Act had not been appropriated from the Consolidated Revenue Fund by law, as required by s 83 of the Constitution. He also argued that, even if there had been an appropriation by law, it was not an appropriation "for the purposes of the Commonwealth". Section 81 of the Constitution states: "All revenues or moneys raised or received by the Executive Government of the Commonwealth shall form one Consolidated Revenue Fund, to be appropriated for the purposes of the Commonwealth in the manner and subject to the charges and liabilities imposed by this Constitution." The Court held by majority that there was an appropriation by law. Section 16 of the Taxation Administration Act 1953 (Cth) appropriated the Consolidated Revenue Fund for the payment of certain amounts the Commissioner is required to pay under any "taxation law". Section 3 of the Bonus Act had the effect of making the Bonus Act a "taxation law". The Bonus Act increased the amount of money to be withdrawn from the Consolidated Revenue Fund under an existing appropriation. That was sufficient to meet the requirement of s 83. The Court held that sections 81 and 83 do not themselves authorise any expenditure; rather they require that the spending of government funds be authorised by Parliament. Question 4: In accordance with an agreement between the parties the Court made no order for costs.
+HIGH COURT OF AUSTRALIA 17 December 2015 PLAINTIFF M64/2015 v MINISTER FOR IMMIGRATION AND BORDER PROTECTION [2015] HCA 50 Today, the High Court unanimously held that a decision by a delegate of the Minister for Immigration and Border Protection ("the Minister") to refuse to grant Refugee and Humanitarian (Class XB) (Subclass 202) visas ("Subclass 202 visas") to the plaintiff's family was not affected by jurisdictional error. On 29 May 2010, the plaintiff arrived in Australia and became an "unlawful non-citizen" within the meaning of the Migration Act 1958 (Cth) ("the Act"). The plaintiff was granted a protection visa by the Minister. The plaintiff's family subsequently applied for Subclass 202 visas under the Australian Government's Special Humanitarian Programme. Subclass 202 visas are directed to the immigration of people who are subject to substantial discrimination in their home country and who are members of the immediate family of a person in Australia who has already been granted a protection visa. The plaintiff proposed his family's visa application in accordance with the Migration Regulations 1994 (Cth) ("the Regulations"). The application was refused by a delegate of the Minister. In a letter to the plaintiff's family, the delegate wrote that, in deciding to refuse the application, he had considered that Australia does not have the capacity to resettle all humanitarian visa applicants, and that only the highest priority applications can be successful. The plaintiff commenced proceedings in the original jurisdiction of the High Court seeking an order to quash the delegate's decision to refuse to grant the Subclass 202 visas and an order requiring the Minister to determine the application according to law. The plaintiff argued that the delegate misconstrued and misapplied cl 202.222(2) of Schedule 2 to the Regulations, which provides for the grant of a visa if the Minister is satisfied that there are compelling reasons for giving special consideration to granting the applicant a visa. The plaintiff also argued that the delegate unlawfully applied a policy of the Department for Immigration and Border Protection that required that the lowest priority be accorded to the plaintiff's family's application on the basis of the type of visa that the plaintiff had been granted and the circumstance that he arrived in Australia as an "irregular maritime arrival". In refusing the plaintiff's application, the High Court held that the delegate's decision was not affected by jurisdictional error. The Court held that cl 202.222(2) raises only one criterion for the grant of a visa: namely, that the Minister is satisfied that there are compelling reasons for giving special consideration to granting that visa. The capacity of the Australian community to provide for the permanent settlement of an applicant in Australia and the number of places in Australia's Special Humanitarian Programme are considerations that may inform the Minister's state of satisfaction. The Court also held that the departmental policy was not inconsistent with the Act or Regulations and that it had not been applied inflexibly.
+HIGH COURT OF AUSTRALIA 13 October 2021 MINERALOGY PTY LTD & ANOR v STATE OF WESTERN AUSTRALIA [2021] HCA 30 CLIVE FREDERICK PALMER v THE STATE OF WESTERN AUSTRALIA [2021] HCA 31 Today the High Court unanimously answered questions stated in two special cases concerning whether the Iron Ore Processing (Mineralogy Pty Ltd) Agreement Amendment Act 2020 (WA) ("the Amending Act") was wholly or partly invalid. The Amending Act purported to amend the Iron Ore Processing (Mineralogy Pty Ltd) Agreement Act 2002 (WA) ("the State Act"). The plaintiff in one special case, Mr Palmer, is the controller and majority beneficial owner of Mineralogy Pty Ltd ("Mineralogy"), and is a director of that company and of International Minerals Pty Ltd ("International Minerals"). Those two companies were the plaintiffs in the other special case ("the plaintiff companies"). In 2001, Mineralogy and various co-proponents (including International Minerals) made an agreement with the State of Western Australia ("the agreement"). Under the agreement, Mineralogy, alone or in conjunction with a co-proponent, could submit proposals to the relevant Minister in relation to mining projects in the Pilbara region. The Minister could respond in various ways but could not reject the proposals. The agreement and a 2008 variation to it were set out in schedules to the State Act, and thereby formed part of that Act. The plaintiff companies had submitted proposals to the Minister in 2012 and 2013. Disputes arose in relation to the 2012 proposal. Those disputes were referred to arbitration, resulting in arbitral awards dated 20 May 2014 and 11 October 2019. Those awards broadly favoured the plaintiff companies. In August 2020, the Parliament of Western Australia passed the Amending Act. The Amending Act purported to insert a new Pt 3 into the State Act. Within Pt 3, s 9 purported to deprive the 2012 and 2013 proposals of legal effect and s 10 purported to deprive the 2014 and 2019 arbitral awards of legal effect. Mr Palmer was named in various provisions of Pt 3. In answer to the questions stated in the special cases, the Court held that the Amending Act was not invalid or inoperative in its entirety and that ss 9(1), 9(2) and 10(4)-(7) of the State Act were not invalid or inoperative to any extent; it was otherwise unnecessary to consider the validity of Pt 3 or any other provision of the State Act. To arrive at those conclusions, the Court found it necessary to answer the following sub-questions. First, did the manner of enactment of the Amending Act contravene s 6 of the Australia Act 1986 (Cth)? Second, did the Amending Act exceed some limitation on the legislative power of the Parliament of Western Australia arising from the rule of law or deeply rooted common law rights? Third, were ss 9(1), 9(2) and 10(4)-(7) of the State Act invalid on the basis that they were incompatible with Ch III of the Constitution? Fourth, were the same provisions invalid on the basis that they were incompatible with s 118 of the Constitution? Fifth, did the Amending Act single out Mr Palmer for a "disability" or "discrimination" of a kind forbidden by s 117 of the Constitution? The Court's answer to each of those sub-questions was "No".
+HIGH COURT OF AUSTRALIA 20 October 2010 WORKCOVER QUEENSLAND v AMACA PTY LTD & ANOR [2010] HCA 34 Today the High Court unanimously held that limitations on damages recoverable by an estate suing on behalf of a deceased person under s 66 of the Succession Act 1981 (Qld) ("the Succession Act") do not apply to a workers' compensation insurer seeking to recover from wrongdoers under the Workers' Compensation and Rehabilitation Act 2003 (Qld) ("the Compensation Act") compensation paid to a worker who died before the insurer's action came to trial. Mr Rex Noel Thomson was a worker who died in 2006 from malignant mesothelioma contracted as a result of inhaling asbestos in products manufactured by the respondents. Prior to his death, WorkCover Queensland paid to Mr Thomson the sum of $340,000 as compensation under the Compensation Act. Mr Thomson had not instituted any action for damages against either respondent before his death. WorkCover was consequently able to pursue its entitlement under s 207B(7)(a) of the Compensation Act to be indemnified by a wrongdoer to the extent of the wrongdoer's liability for the damages. Section 66(2) of the Succession Act operates to limit the damages recoverable where a cause of action survives a person's death for the benefit of that person's estate under s 66(1), by excluding matters such as damages for pain and suffering, for any bodily or mental harm or for curtailment of expectation of life. In a case stated for the Court of Appeal of the Supreme Court of Queensland, that Court considered that the Succession Act did operate to reduce the amount of the indemnity that WorkCover was entitled to claim in the circumstances. It held by majority that the extent of the indemnity was delineated by the statutory limitations which would operate if an action was pursued by the deceased's personal representative after death. The High Court allowed an appeal by WorkCover, holding that s 66(2) of the Succession Act operates as a limitation on the remedy available, which applies only to an action brought by the estate of the person in whose favour a liability existed. The Court held that the section does not operate to limit the liability of a wrongdoer towards the deceased person, and thus the quantum of WorkCover's indemnity was not reduced following Mr Thomson's death or the consequent impact of s 66(2) on any action which may have been brought by Mr Thomson's estate. The respondents were ordered to pay WorkCover's costs.
+HIGH COURT OF AUSTRALIA 30 June 2020 [2020] HCA 23 Today the High Court unanimously allowed an appeal from the Full Court of the Supreme Court of the Northern Territory. The appeal concerned whether, in a criminal trial, the prosecution's obligation to put its case fully and fairly before the jury ordinarily requires it to tender the record of an interview between an accused and police which contains both inculpatory and exculpatory statements ("mixed statements"). The Court held that this obligation does require the prosecution to tender a record of interview containing mixed statements, unless there is good reason not to do so. The appellant was charged on indictment with one count of unlawfully causing serious harm to another and one count of aggravated assault, contrary to the Criminal Code (NT), and stood trial before a jury in the Supreme Court of the Northern Territory. Prior to being charged the appellant had participated in a recorded interview with police about the offences. The interview contained statements in the nature of admissions, together with exculpatory statements which could be taken as a claim of self-defence. The recorded interview was relevant and admissible. The prosecution did not tender it. The interview had been played to a jury as part of the prosecution case in an earlier trial for the same offences, in which the jury had been unable to reach a verdict. Before the appellant's retrial, the prosecution advised the Court that it would not be tendering the interview in the retrial. It conceded that its decision not to do so was a "tactical" one. The appellant's retrial was stayed whilst two questions were referred to the Full Court, being: (1) whether the recorded interview containing the mixed statements was admissible and (2) whether the prosecution was obliged to tender it. The Court answered the first question yes and the second question no. The Court followed a previous decision of the Court of Criminal Appeal of the Supreme Court of the Northern Territory, constituted by the same judges, in Singh v The Queen (2019) 344 FLR 137. In that case, a majority held that there was no general principle that a prosecutor must, as a matter of fairness, tender either exculpatory or mixed out-of-court statements by an accused. By grant of special leave, the appellant appealed to the High Court in relation to the Full Court's finding on Question 2. Allowing the appeal, the Court explained that the question of the duty of the prosecutor is not to be confused with that of the admissibility of evidence of mixed statements. While it affirmed that it is for the prosecution to decide which witnesses are to be called and what evidence is to be presented in its case, the question in this appeal was resolved by another fundamental principle affecting the conduct of a criminal trial, namely that the prosecution must put its case both fully and fairly before the jury. The Court held that, if this duty is to be met, it is to be expected that a prosecutor will tender a mixed statement, unless there is good reason not to do so. A majority held that the duty of fairness encompasses the presentation of all available, cogent and admissible evidence, and observed that only where the reliability or credibility of evidence is demonstrably lacking would those circumstances warrant a refusal to tender it. In the result, the Court unanimously set aside the Full Court's answer to Question 2 and answered it in the affirmative.
+HIGH COURT OF AUSTRALIA 15 November 2006 Public Information Officer MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS v QAAH OF 2004 AND REFUGEE REVIEW TRIBUNAL The holder of a temporary protection visa is not entitled to further protection in Australia if they are no longer in danger in the country from which they fled, the High Court of Australia held today. QAAH, a Shi’a Muslim of Hazara ethnicity, arrived in Australia from Afghanistan in 1999. In 2000 he was granted a three-year temporary protection visa. He was granted a second temporary protection visa in 2003 pending a decision on his application for a permanent visa. QAAH’s application was refused, a decision affirmed by the Refugee Review Tribunal. The RRT held that the Refugees Convention cessation provision applied and that QAAH no longer had a well-founded fear of persecution. Article 1C(5) states that the Convention shall cease to apply if the person refuses to avail themselves of the protection of their country of nationality when the circumstances in connection with which they had been recognised as a refugee have ceased to exist. The RRT noted that the Taliban was effectively dislodged from power by late 2001 and was no longer a coherent political movement. It also found that QAAH was unlikely to be persecuted for his ethnicity and religion by other groups he identified. The Federal Court of Australia dismissed QAAH’s application for judicial review of the RRT decision. The Full Court, by majority, allowed an appeal. It held that the Minister bore the onus of proving that QAAH was no longer a refugee under the Migration Act and, to attract the Convention’s cessation provision, must show changes in Afghanistan were substantial, effective and durable, with no real chance of Taliban persecution. The majority held that the RRT had made jurisdictional errors, including failure to establish the extent of Taliban activity, particularly around QAAH’s home; failure to consider the stability of the Afghan government; and failure to express findings on the cessation clause. The Minister then appealed to the High Court. The Court, by a 4-1 majority, allowed the appeal. The majority held that Australian law prevails if it conflicts with the Convention, which has not been enacted as domestic law, apart from a reference in section 36 of the Migration Act. Courts will however endeavour to adopt a construction of the Act which conforms to the Convention. The majority held that neither the Act nor the Convention require that when a threat passes protection should be regarded as necessary and continuing. The status of a person permitted to reside in an asylum country may change as circumstances in the country which he has left change. Under the Act, when a visa expires the holder must apply for another visa. In the case of an application for a protection visa section 36 applies. Whether Australia has protection obligations under section 36 depends upon whether a person satisfies the definition of a refugee in Article 1A of the Convention in the context of other articles, none of which say anything about the period of residence or permanent residence. Section 36 is couched in the present tense and does not refer to past obligations Australia may have had but only to current obligations. The Act does not pose the question posed by the Full Court – whether changes in the applicant’s country are substantial, effective and durable – and does not put the onus upon the Minister to show such changes have occurred. If an applicant has been accepted as fearing persecution and has been granted a protection visa for a certain period, Australia is not then treated as either having accepted the applicant for a new visa is a refugee for all times and all purposes or assuming the burden of showing that the basis for a well-founded fear no longer exists.
+HIGH COURT OF AUSTRALIA 14 April 2021 ALO-BRIDGET NAMOA v THE QUEEN [2021] HCA 13 Today the High Court unanimously dismissed an appeal from a decision of the Court of Criminal Appeal of the Supreme Court of New South Wales ("the CCA"). The appeal concerned the interpretation of s 11.5(1) of the Criminal Code (Cth) ("the Code"), which creates a statutory offence of conspiracy, and whether that offence applies to spouses who agree between themselves, and no other person, to commit an offence against a law of the Commonwealth. Following a trial by jury in the Supreme Court of New South Wales, the appellant was convicted of conspiring to do acts in preparation for a terrorist act contrary to ss 11.5(1) and 101.6(1) of the Code. The offence occurred between 8 December 2015 and 25 January 2016. Prior to the trial, the trial judge rejected an application for a permanent stay which had been made on the basis that the appellant and her co-conspirator married on 30 December 2015, and, as husband and wife, could not be guilty of conspiracy under the Code. On 6 April 2020, the CCA held that on the clear language of the Code, a husband and wife are each a "person" and can be guilty of conspiring with each other within the meaning of s 11.5. By grant of special leave, the appellant appealed to the High Court. The Court upheld the CCA's decision, holding that the proper interpretation of s 11.5(1) of the Code is not affected by any common law rule that spouses alone cannot conspire. Irrespective of whether there is or was such a common law rule, that rule had not been incorporated into the offence in s 11.5 by the words "conspires" and "conspiracy". It was therefore unnecessary for the Court to consider whether the common law includes or included such a rule at any relevant time. The Court confirmed that whatever may have been the historical position, there is no longer any principle in Australian common law respecting the single legal personality of spouses. Section 11.5(1) applies to spouses who agree between themselves, and no other person, to commit an offence against a law of the Commonwealth. Accordingly, the offence in s 11.5 applied to the appellant and the appeal was dismissed.
+HIGH COURT OF AUSTRALIA 9 November 2022 AWAD v THE QUEEN; TAMBAKAKIS v THE QUEEN [2022] HCA 36 Today, the High Court allowed an appeal from the Court of Appeal of the Supreme Court of Victoria. The appeal concerned whether the giving of a jury direction, prohibited by statute, resulted in a substantial miscarriage of justice for the purpose of s 276(1)(b) of the Criminal Procedure Act 2009 (Vic). Following a joint trial, Mr Awad and Mr Tambakakis were convicted of attempting to possess a commercial quantity of an unlawfully imported border-controlled drug, namely cocaine. Mr Awad did not give evidence, instead relying significantly on the evidence of Mr Tambakakis that Mr Awad did not get in the van used to move the consignment. The core of Mr Tambakakis' evidence was that he thought the consignment contained steroid tablets, which are not a border-controlled drug. The sole issue in dispute at trial reduced to whether Mr Awad and Mr Tambakakis, in the belief the consignment contained a border-controlled drug, received, had physical possession of, or had control or joint control of the consignment. Consequently, the credibility of Mr Tambakakis' evidence was at the heart of the trials of both Mr Awad and Mr Tambakakis. The trial judge directed the jury that "there are two factors that are significant that you should have regard to when you are assessing Mr Tambakakis' evidence. Firstly, in a criminal trial, there is nothing more [that] an innocent [person] can do than give evidence in his own defence and subject himself to cross-examination, and that is what occurred here. On the other hand, secondly, a guilty person might decide to tough out cross-examination in the hope or belief that he will be more likely to be believed and his defence accepted if he takes the risk of giving evidence. You should consider both of these observations when evaluating Mr Tambakakis' evidence". This direction was prohibited by s 44J of the Jury Directions Act 2015 (Vic). The trial judge gave other directions to the jury generally about the onus and standard of proof, and a direction that if the jury rejected the evidence of Mr Tambakakis they should put his evidence to one side rather than finding him guilty, but if they accepted his evidence then they would find him not guilty. The Court of Appeal unanimously rejected the submission that a contravention of s 44J was such a fundamental error that, without more, it would always result in a substantial miscarriage of justice. The majority held that there was no substantial miscarriage of justice in the particular circumstances of the case, because in the context of the charge to the jury as a whole, the prohibited direction would not have distracted the jury from its task. The High Court, by majority, held that there was a substantial miscarriage of justice, and ordered a new trial for each of Mr Awad and Mr Tambakakis. The Court held that while not every breach of s 44J will result in a substantial miscarriage of justice, in the present case, the direction left the jury with the choice to approach Mr Tambakakis' evidence on the assumption that he was a guilty person, in circumstances where his credibility was central to both his defence and Mr Awad's defence. Despite correct directions which mitigated the damage caused by the prohibited direction, there remained the capacity for the prohibited direction to undermine the presumption of innocence and deflect the jury from its fundamental task of deciding whether the prosecution had proved the elements of the charged offence beyond reasonable doubt.
+HIGH COURT OF AUSTRALIA THE QUEEN v PHAM [2015] HCA 39 4 November 2015 Today the High Court unanimously held that the Court of Appeal of the Supreme Court of Victoria was wrong to determine that the respondent should be sentenced for a federal offence in accordance with current sentencing practices in Victorian courts, rather than current sentencing practices throughout the Commonwealth. The High Court also held that the Court of Appeal erred in its use of a statistical analysis of past sentences in finding that the respondent's sentence was manifestly excessive. In 2013, the respondent travelled to Vietnam from Australia. Upon his return to Melbourne Airport, flight crew informed officers of the Australian Customs and Border Protection Service that the respondent had required medical attention during the flight for a potential drug overdose, and that a crew member had found two clear plastic packages containing white powder in a bathroom that the respondent had used. Customs officers detained the respondent, who admitted under caution that the packages were his and that he guessed they contained heroin. Testing established that the packages contained heroin mixed with caffeine. The total weight of pure heroin was 577.1 grams. The respondent pleaded guilty to one count of importing a marketable quantity of a border controlled drug, contrary to s 307.2(1) of the Criminal Code (Cth). Under the Criminal Code, a marketable quantity of heroin is between two grams and 1.5 kilograms. He was convicted in the County Court of Victoria and sentenced to eight years and six months' imprisonment with a non- parole period of six years. The respondent appealed to the Court of Appeal against his sentence. The Court of Appeal allowed the appeal and re-sentenced the respondent to six years' imprisonment with a non-parole period of four years. The presiding judge of appeal said that the appellant pleaded guilty in the reasonable expectation that he would be sentenced in accordance with current sentencing practices in Victorian courts. The judge considered that, having regard to a statistical analysis which plotted the correlation between past sentences for drug couriers and the weight of the drug imported, the sentence imposed was outside the range of available sentences indicated by current Victorian sentencing practices. The other members of the Court of Appeal also took into account the statistical analysis in finding that the sentence was manifestly excessive. By grant of special leave, the Commonwealth Director of Public Prosecutions appealed to the High Court. The High Court unanimously held that the need for sentencing consistency throughout Australia requires courts to have regard to sentencing practices across the country when sentencing federal offenders. Further, the Court of Appeal's use of the statistical analysis erroneously treated the weight of the drug imported as the only variable affecting the seriousness of past offences for the purpose of determining current sentencing practices. The appeal was allowed and the matter remitted to the Court of Appeal for redetermination according to law.
+HIGH COURT OF AUSTRALIA 2 December 2015 FIREBIRD GLOBAL MASTER FUND II LTD v REPUBLIC OF NAURU & ANOR [2015] HCA 43 Today the High Court unanimously dismissed an appeal from a decision of the Court of Appeal of the Supreme Court of New South Wales but, by a majority, varied the orders made by that Court. The Court of Appeal had dismissed an appeal against an order setting aside both the registration of a foreign judgment against the respondent ("Nauru") and a consequential garnishee order relating to certain bank accounts Nauru held in Australia. The appellant ("Firebird") was the holder of bonds guaranteed by Nauru. After the issuer of the bonds defaulted, Firebird obtained judgment in the Tokyo District Court for ¥1,300 million together with interest and costs ("the foreign judgment") against Nauru as guarantor, and subsequently obtained an order from the Supreme Court of New South Wales that the foreign judgment be registered under the Foreign Judgments Act 1991 (Cth). The summons for the order for registration was not served on Nauru. Firebird then obtained a garnishee order against the Australian bank in which the accounts of Nauru were kept. Nauru filed motions seeking to set aside the registration of the foreign judgment and the garnishee order, and the Supreme Court made those orders. Firebird appealed to the Court of Appeal. The Court of Appeal held that Nauru was entitled to the immunity from jurisdiction recognised in s 9 of the Foreign States Immunities Act 1985 (Cth) and that the exception in s 11(1) of that Act for "commercial transactions" did not apply to the proceedings for registration under the Foreign Judgments Act. The Court of Appeal rejected Firebird's argument that there was an inconsistency in the operation of the two statutes. The Court of Appeal also agreed with Nauru's contention that service of the summons for the order for registration should have been effected upon Nauru before the foreign judgment was registered. A majority of the Court of Appeal further held that the funds in the accounts of the Australian bank were immune from execution under the garnishee order by virtue of s 30 of the Foreign States Immunities Act, and that the exception for "commercial property" in s 32(1) did not apply. By grant of special leave, Firebird appealed to the High Court. In dismissing the appeal, the High Court unanimously held that the proceedings for registration of the foreign judgment under the Foreign Judgments Act were proceedings to which s 9 of the Foreign States Immunities Act applied so that Nauru was immune from the jurisdiction of Australian courts, subject to the exceptions for which the Foreign States Immunities Act provides. There was no inconsistency in the operation of the two statutes. The exception stated in s 11(1) of the Foreign States Immunities Act applied to the proceedings for the registration of the foreign judgment in this case because they concerned a commercial transaction; namely, the guarantee upon which the foreign judgment was based. Nauru therefore lost its immunity from jurisdiction. However, Nauru was immune from execution against the bank accounts held in Australia under the Foreign States Immunities Act because the purposes for which these accounts were in use, or for which the monies in them were set aside, were not commercial purposes. By a majority, the Court also held that there was no requirement that the summons for registration of the foreign judgment under the Foreign Judgments Act be served on Nauru before the foreign judgment was registered.
+HIGH COURT OF AUSTRALIA 3 November 2010 SELECTED SEEDS PTY LTD v QBEMM PTY LIMITED & ORS [2010] HCA 37 The High Court today held an insurer could not rely upon an exclusion clause in an insurance policy to deny liability to its insured, a seed merchant, sued by a grower in connection with the supply of seed contaminated with a weed. The appeal involved the purchase and sale of Jarra grass seed, a type of livestock fodder. The appellant, a seed merchant, bought and sold a batch of Jarra grass seed unaware that it was contaminated with seed of Summer grass, a weed. The seed was purchased, planted, harvested and on-sold several times. With each progressive harvest, the presence of Summer grass seed increased. Seed traceable to the contaminated batch sold by the appellant was purchased by Mr and Mrs Shrimp. The Shrimps planted the seed for fodder. By this time, the seed was almost entirely Summer grass seed and the Shrimps reaped only Summer grass. They brought proceedings to recover for the damage to their land, and the appellant was eventually joined as a party to the proceedings. The Shrimps' claim was settled and the appellant sought indemnity from its insurer, the respondents, in respect of its contribution to settlement and its costs. The indemnity request was refused. In the proceedings brought by the appellant in the Supreme Court of Queensland to enforce its insurance policy, the respondents relied upon an efficacy clause in the policy. The clause excluded liability caused or arising from the failure of any product to correctly fulfil its intended use or function and/or meet the level of performance, quality, fitness or durability warranted or represented by the appellant. The trial judge found for the appellant, concluding that liability for damages arose not from what the product failed to do but from the damage it caused to the Shrimps' property. On appeal, the Queensland Court of Appeal reversed the trial judge's decision, holding that the appellant's liability arose because the seed did not correctly fulfil its represented or warranted quality as Jarra grass seed or correctly fulfil its intended function of producing Jarra grass and seed. By special leave, the appellant appealed to the High Court. Today, the High Court overturned the Court of Appeal's decision. It held that the liability excluded by the efficacy clause was for property damage caused by or arising from a failure of a product to fulfil its use or function. The damage to the Shrimps' land did not arise out of the failure of the seeds that were sown to fulfil their intended use or function to produce Jarra grass and seed. Rather, the damage was caused by the introduction of Summer grass, a weed, to the land. The insurance policy held by the appellant with the respondents therefore covered the liability to the Shrimps.
+HIGH COURT OF AUSTRALIA 12 November 2004 HTW VALUERS (CENTRAL QLD) PTY LTD v ASTONLAND PTY LTD Damages of $406,194.60 for negligent real estate advice awarded to a couple who bought a shopping arcade were not excessive, the High Court of Australia held today. After moving to Mackay in central Queensland Lyn and John Foster decided to sell their Brisbane house and invest the proceeds and borrowings in commercial property with a better return. Astonland was the investment vehicle. Mrs Foster was the sole director of Astonland and she and her husband were the sole shareholders. Before buying Central Street Plaza, an arcade of eight shops in Sarina south of Mackay generating nearly $60,000 rent a year, the Fosters sought advice from Barry Deacon of HTW Valuers about the retail rental market in Sarina, including demand for tenancies and availability of tenants. Based on Mr Deacon’s advice that current rental levels were maintainable, Astonland entered a contract to buy the Plaza for $485,000 in April 1997 and completed the purchase in July. At this time the Beach Road Shopping Centre, a supermarket and 10 speciality shops, was under construction. It opened in mid-1998. Rentals for the Plaza collapsed from about March 1999, dropping to less than $16,000 a year later. Four shops had been vacant for up to 12 months, rent on another was heavily in arrears and rents on another two had fallen sharply. Astonland has been unable to sell the arcade. Astonland sued HTW Valuers in the Queensland Supreme Court. Justice Peter Dutney found the collapse in rentals was almost solely due to the opening of the Beach Road Shopping Centre. He found that Mr Deacon negligently failed to qualify his opinion by cautioning that the effect of the new shopping centre was uncertain. The duties breached were those created by the contract under which HTW was paid $250, by the law of tort in relation to negligent advice, and by section 52 of the Trade Practices Act in relation to misleading and deceptive conduct. In March 2000, Jeffrey Dodds, retained by Astonland, valued the Plaza at $130,000. Justice Dutney awarded Astonland $355,000, the difference between the price paid and the value it reached due to the effect of the Beach Road Shopping Centre, plus another $51,194.60, consisting of trading losses, additional purchase costs, refurbishments and interest. The Court of Appeal dismissed an appeal from HTW against the $355,000 component of the damages award. HTW appealed to the High Court, which held that in assessing damages courts are not limited to assessing the risk as at April 1997 but are entitled to take account of how those risks later evolved into certainties. The cause of the decline in the value of the Plaza was not independent, extrinsic, supervening or accidental but lay in circumstances crucial to the value of the Plaza when Astonland acquired it, that is, the impending opening of the Beach Road Shopping Centre. The Court held that the damages figure was appropriate in all the circumstances. It unanimously dismissed the appeal.
+HIGH COURT OF AUSTRALIA 16 November 2016 CASTLE v THE QUEEN; BUCCA v THE QUEEN [2016] HCA 46 Today the High Court unanimously allowed two appeals from the orders of the Court of Criminal Appeal of the Supreme Court of South Australia dismissing the appellants' appeals against conviction for the murder of Adrian McDonald. The prosecution case at trial was that Castle lured the deceased to a meeting at which he was fatally shot by Bucca. The appellants' case was that the shooter was a man named Gange, who had died prior to the trial. Bucca and Gange both entertained hostility towards the deceased. Both had been looking for the deceased in the hours before the killing. The prosecution relied on the evidence of Gange's partner, M, to establish the agreement between the appellants to lure the deceased to the meeting and to prove that Gange had been at home with M at the time of the shooting. The prosecution also relied on the evidence of Pascoe that after the shooting she had heard Bucca say to her father: "he didn't mean to do it". Pascoe's evidence was left for the jury's consideration as capable of constituting an admission by Bucca that he was the shooter. The appellants appealed against their convictions to the Court of Criminal Appeal. The Court of Criminal Appeal found that Pascoe's answers in cross-examination and in re-examination unequivocally established that Bucca had been referring to a third person in his statement to her father. The Court said that the evidence was incapable of being viewed as an admission; its only effect was exculpatory and the trial judge erred in failing to so direct the jury. Nonetheless, the Court of Criminal Appeal dismissed the appeals, holding that the error had not occasioned a substantial miscarriage of justice. The Court of Criminal Appeal considered that the other evidence "overwhelmed" the "admission", which was a minor part of the evidence and unlikely to have had any influence on the verdicts. The Court of Criminal Appeal was satisfied that the appellants' guilt had been proved beyond reasonable doubt. By grant of special leave, the appellants appealed to the High Court. The High Court held that the question the Court of Criminal Appeal should have asked itself was not whether the circumstantial case against the appellants overwhelmed the weight of the "admission", which properly understood was an exculpatory statement, but whether the jury might regard the statement as itself a sufficient basis to entertain a doubt as to the strength of the circumstantial case. The Court of Criminal Appeal's conclusion that guilt had been proved beyond a reasonable doubt relied on acceptance of M's disputed oral evidence. The natural limitations of an appellate court proceeding on the record of the trial precluded that conclusion. Accordingly, there had been a substantial miscarriage of justice. The appellants' convictions were quashed and new trials ordered.
+HIGH COURT OF AUSTRALIA 27 February 2013 ATTORNEY-GENERAL FOR THE STATE OF SOUTH AUSTRALIA v CORPORATION OF THE CITY OF ADELAIDE & ORS [2013] HCA 3 Today a majority of the High Court allowed an appeal against a decision of the Full Court of the Supreme Court of South Australia, which had held that a by-law made by the Corporation of the City of Adelaide ("the Council") infringed the implied constitutional freedom of communication on government and political matters. Certain provisions of the by-law prohibited persons from preaching or distributing printed matter on any road to any bystander or passer-by without permission ("the impugned provisions"). The second and third respondents, Caleb and Samuel Corneloup ("the Corneloups"), were members of an association, "Street Church". They wished to preach in the streets of the City of Adelaide. The Corneloups each commenced proceedings in the District Court of South Australia, seeking a declaration that the impugned provisions were invalid. The District Court declared that parts of the impugned provisions exceeded the by-law making powers conferred on the Council by the Local Government Act 1934 (SA) and the Local Government Act 1999 (SA) ("the Local Government Acts"). The Full Court dismissed an appeal from the District Court's decision. Although the Full Court held that the impugned provisions were not invalid for want of compliance with the Local Government Acts, the Full Court held that they infringed the implied constitutional freedom of communication on government and political matters and were therefore invalid. By grant of special leave, the Attorney-General for South Australia (who was a party to the appeal in the Full Court) appealed to the High Court. A majority of the High Court held that the Local Government Acts empowered the Council to make the impugned provisions. The impugned provisions were a valid exercise of the Council's statutory power to make by-laws for the good rule and government of the area, and for the convenience, comfort and safety of its inhabitants. The majority also rejected the contention that the impugned provisions were constitutionally invalid. Although the impugned provisions effectively burdened political communication, they did not infringe the implied constitutional freedom. The impugned provisions served a legitimate end in a manner compatible with the maintenance of the constitutionally prescribed system of representative and responsible government.
+HIGH COURT OF AUSTRALIA 3 February 2005 JAMIL YOUSEF KAMLEH v THE QUEEN The High Court of Australia today dismissed an appeal by Mr Kamleh who claimed evidence was wrongly admitted in his trial for a double murder. Mr Kamleh, 28, was convicted of murdering 16-year-old prostitute Rhiannon Ellul and her pimp Faraz Rhasti, 22, who were shot dead in their apartment in North Adelaide in April 2000. The South Australian Supreme Court sentenced him to life imprisonment with a non-parole period of 27 years. Co-offender Natale Attilio Zappia, 27, was tried separately and convicted of two counts of manslaughter. Neither man gave evidence at Mr Kamleh’s trial, but out-of-court statements by Mr Zappia were admitted as evidence. Both the Supreme Court and the Court of Criminal Appeal held that these were relevant and admissible, not for hearsay purposes but for other purposes. Mr Kamleh appealed to the High Court on grounds that two conversations between Mr Zappia and Sebastian Kamil Simoniuk and statements Mr Zappia made to police were inadmissible. Mr Simoniuk said Mr Zappia told him about the shootings and mentioned he had turned up the television volume. When cleaners found the bodies the television set was on at full volume. Information about the loud volume was not public so was likely to be known only by someone who had been present at the shootings. The High Court held that such evidence did not contravene the hearsay rule, as the evidence was not tendered to prove the truth of what Mr Zappia said, that the television set had been turned up. Instead the statement disclosed a state of knowledge on Mr Zappia’s part which tended to prove he was at the apartment at the time of the killings. Because of other evidence showing that Mr Kamleh and Mr Zappia were together, that was a relevant fact. Mr Zappia’s police record of interview was tendered, not to establish the truth of what he said, but to show that Mr Zappia and Mr Kamleh had concocted a false alibi that they were at a nightclub at the time of the shootings. In fact, they did not arrive at the nightclub until several hours later. The Court held that this evidence was not led for a hearsay purpose but to prove that, acting in concert with Mr Kamleh, Mr Zappia made knowingly false statements out of a consciousness of guilt. Ten days before the killings, in a car outside a McDonald’s restaurant while Mr Kamleh was inside, Mr Zappia allegedly told Mr Simoniuk that he and Mr Kamleh planned to catch up with Mr Rasti. The Court of Criminal Appeal held that this was admissible as evidence of Mr Zappia’s intention, which was significant because he and Mr Kamleh were together when the murders occurred. In the High Court, three Justices held that even if there were error by the Supreme Court and Court of Criminal Appeal in relation to that part of the suspect evidence, other evidence against Mr Kamleh was so overwhelming that no substantial miscarriage of justice occurred and the McDonald’s conversation was of minor significance. The mass of evidence included a confession to prison informer Michael Francis Loader, ample material suggesting Mr Kamleh and Mr Zappia were together at all relevant times on the night of the murders, and strong circumstantial evidence including identification evidence, fingerprint and DNA evidence, conduct indicating a consciousness of guilt, Mr Zappia’s mention of the loud television, and the disappearance of a mobile phone that Mr Kamleh had lent to Mr Rasti. The Court unanimously dismissed the appeal.
+HIGH COURT OF AUSTRALIA 23 October 2007 Public Information Officer MICHAEL JOHN CARR v THE STATE OF WESTERN AUSTRALIA Under Western Australian law, the recording of admissions by surveillance cameras in a police lock-up was admissible as a videotaped police interview, the High Court of Australia held today. Mr Carr was convicted in 2004 in the WA Supreme Court of the armed robbery of the South Perth branch of the Commonwealth Bank the previous year and sentenced to six years’ jail without parole. When arrested in 2003, he took part in a videotaped interview with police at Kensington police station but did not make any substantial admissions. Mr Carr was then taken to the station lock-up where police made entries into databases, returned his property and took DNA samples. He had not been charged in relation to the Commonwealth Bank robbery but was to be returned to prison for violating his parole relating to an earlier conviction. While police carried out their various tasks, Mr Carr made suggestions indicating his involvement in the bank robbery and the officers responded by asking questions, eliciting further information and admissions. As the lock- up had fixed surveillance cameras and microphones, the admissions were recorded. An edited version of the video was admitted into evidence and shown to the jury at the trial. Mr Carr was unaware of the cameras and microphones and claimed the admissions were untrue. In 2006, the WA Court of Appeal dismissed an application for an extension of time to apply for leave to appeal against conviction and sentence. Mr Carr then appealed to the High Court. He argued that section 570D(2) of the Criminal Code barred the receipt of the tape into evidence and that his conviction should be quashed and an acquittal entered. Section 570D(2) provides that when a person is tried for a serious offence, evidence of any admission by the accused shall not be admissible without a videotaped recording of the admission, unless there is a reasonable excuse for there not being a recording, or there are exceptional circumstances which in the interests of justice justify the admission of the evidence. Mr Carr contended that “interview” in section 570(1) of the Code required a degree of formality lacking in the lock-up conversation and that his consent was required for it to be recorded. The State submitted that “interview” encompassed an informal conversation and, in any event, if formality were required, the lock-up conversation had the appropriate degree of formality. It argued that there was no implied requirement for consent before a videotape could be admitted into evidence. It also argued that even if Mr Carr was correct about the meaning of “videotape” and “interview”, his admissions were properly admitted as there were “exceptional circumstances”, within the meaning of section 570D(2)(c), which centred on the existence of an accurate videotape of Mr Carr’s voluntary admissions regarding a serious offence. The High Court, by a 4-1 majority, dismissed the appeal. It held that “interview” encompassed the conversation in the lock-up. Mr Carr’s appreciation that the conversation was being recorded and could be used in evidence against him was not required by the definitions of “interview”, “videotape” or “admission”, nor by the relevant chapter of the Code. No requirement for consent was implied in section 570D(2). Its express words did not require exclusion of the videotape and no reason had been shown why the videotape should be excluded on discretionary grounds.
+HIGH COURT OF AUSTRALIA Public Information Officer 3 September 2008 MACEDONIAN ORTHODOX COMMUNITY CHURCH ST PETKA INCORPORATED v HIS EMINENCE PETAR, THE DIOCESAN BISHOP OF THE MACEDONIAN ORTHODOX DIOCESE OF AUSTRALIA AND NEW ZEALAND AND THE VERY REVEREND FATHER A church association holding property allegedly on trust for the church could use some of that property to defend itself in court proceedings, the High Court of Australia held today. His Eminence Petar, the Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand, and Father Mitko Mitrev, a former priest of the St Petka Parish in Rockdale in Sydney, instituted proceedings in the New South Wales Supreme Court in 1997 against the Macedonian Orthodox Community Church St Petka Incorporated (the Association), members of its executive committee, and the priest who replaced Father Mitrev. The Association was incorporated in 1992 and church land was transferred to it which the plaintiffs alleged was then held upon trust for the Macedonian Orthodox Church. As well as the Church and Church Hall, the Association owned five home units in Rockdale, a child-care centre at Arncliffe, funds held on deposit and objects of veneration. The Bishop and Father Mitrev (the plaintiffs) alleged the Association wrongly dismissed Father Mitrev, replaced him with an allegedly disqualified priest banned from performing clerical duties, used another allegedly disqualified priest to conduct services in breach of church law, dealt with church property without the Bishop’s authority, ceased to remit five per cent of Parish income to the Bishop, and used the property to fund legal proceedings. They alleged the Association had repudiated the trust. The trial, originally set down for 2004, is due to start in November of this year. The Association instituted separate proceedings to obtain judicial advice under section 63 of the NSW Trustee Act as to how it should conduct the main proceedings. Section 63 provided that a trustee may apply to the Supreme Court for direction on any question about administration of the trust property or about interpretation of the trust instrument. Following this direction protected the trustee from liability for breach of trust. Since 2004, Justice George Palmer has handed down four judgments in the judicial advice proceedings. In 2007 he ordered that the Association could access property acquired before 1992 to pay its costs of defending the main proceedings of $78,666 between 2004 and 2007 and up to $216,295 for future costs. He found that the trust would benefit from the terms of the trust being resolved once and for all and disputes over administration of trust property being ended. The Court of Appeal allowed the plaintiffs’ appeal and dismissed the Association’s summons seeking judicial advice. It held that Justice Palmer erred in exercising his discretion to give judicial advice by failing to take account of material considerations and by an error of law. The material considerations were failure to consider the adversarial character of the proceedings, which generally made the giving of judicial advice inappropriate, and failure to take into account a possible reduction of the trust fund in covering the plaintiffs’ costs as well as the Association’s costs. The error of law was an order that other orders could later be revoked which would operate retrospectively. The Association appealed to the High Court. The Court of Appeal also refused the plaintiffs’ applications for leave to appeal against judicial advice given by Justice Palmer in 2004 and 2005. The plaintiffs sought special leave to cross-appeal against that refusal. The High Court unanimously allowed the appeal, restored Justice Palmer’s orders and refused the plaintiffs’ special leave application. It held that nothing in section 63 precluded the Supreme Court from giving the advice sought by the Association. Provided there was a question about the administration of trust property or the interpretation of a trust instrument – and both kinds of question were present here – nothing in section 63 limited the application to “non-adversarial” proceedings. The Court held that classification of proceedings as “adversarial proceedings” was not useful in deciding whether advice should be given under section 63. Obtaining judicial advice resolved doubt about whether it was proper for a trustee to incur the costs of litigation, which meant that the trust’s interests would be protected. The High Court held that the necessary consequence of section 63 was that a trustee who was sued should take no step in defence of the suit without first obtaining judicial advice about whether to defend the proceedings. It held that Justice Palmer did not seek to settle any disputes, as he only advised the Association that it would be justified in defending the main proceedings and that it could have recourse to certain property to pay the costs of that defence. If individual defendants were found to have participated in grave breaches of the trust they could be exposed to personal liability for the costs of proceedings to remedy the breaches, including the plaintiffs’ costs. Justice Palmer was not shown to have erred by failing to have regard to the effect on the trust property of advising the Association that it could properly defend the main proceedings and that it could resort to trust property to do so, provided fraud, wilful concealment or misrepresentation were absent. The Court held that Justice Palmer’s order allowing for revocation of his orders only did so with respect to future operation.
+HIGH COURT OF AUSTRALIA 11 March 2015 CMB v ATTORNEY GENERAL FOR NEW SOUTH WALES [2015] HCA 9 Today the High Court unanimously allowed an appeal against a decision of the Court of Criminal Appeal of the Supreme Court of New South Wales ("the CCA") that imposed a sentence of imprisonment on the appellant, and remitted the matter to be re-determined by the CCA. In 2011, following disclosures by the victim, the appellant was charged with sexual offences against his daughter, who was under the age of 16 at the time of the incidents. In accordance with the provisions of a regulation made under the Pre-Trial Diversion of Offenders Act 1985 (NSW), the appellant was referred to a treatment program administered by the Department of Health known as the Cedar Cottage Program ("the Program"). As part of his assessment for entry into the Program, the appellant was encouraged to make additional disclosures as a sign of a positive commitment to change. The appellant admitted to further sexual offences against his daughter, committed over the same period as the earlier charges, but of which his daughter had no memory. The repeal of the relevant regulation before these disclosures meant that these further offences could not be dealt with as part of the Program. The appellant was charged and, following his guilty plea, was sentenced in relation to these further offences. The District Court of New South Wales deferred sentence upon the appellant entering good behaviour bonds conditioned on completion of the Program. The Director of Public Prosecutions supported the imposition of non-custodial sentences in the unusual circumstances. The Director of Public Prosecutions publicly announced his decision not to appeal against the sentences in light of the "unique history" of the matter. Subsequently, the Attorney General for New South Wales appealed to the CCA against the inadequacy of the sentences. The CCA allowed the appeal and re-sentenced the appellant to an aggregate sentence of five years and six months' imprisonment with a non-parole period of three years. By grant of special leave, the appellant then appealed to the High Court. The appeal was limited to two grounds: first, that the CCA erred by placing the onus on the appellant to demonstrate that the prosecution appeal should be dismissed; second, that the CCA erred in its application of the law concerning the leniency that may be extended in the case of a guilty plea resulting from an offender's voluntary disclosure of otherwise unknown guilt of an offence. In relation to the first ground, the High Court unanimously allowed the appellant's appeal. The Court held that before the CCA can allow an appeal by the prosecution against sentence, the prosecution must demonstrate both an appellable error in the sentencing judge's discretionary decision and negate any reason why the residual discretion of the CCA not to interfere should be exercised. The High Court allowed the appeal on the second ground by majority, holding that the CCA failed to consider whether it had been open to the District Court to determine that non- custodial sentences were not unreasonably disproportionate to the nature and circumstances of the offences.
+HIGH COURT OF AUSTRALIA 4 August 2021 DEPUTY COMMISSIONER OF TAXATION v ZU NENG SHI [2021] HCA 22 Today, the High Court allowed an appeal from a decision of the Full Court of the Federal Court of Australia ("the Full Court") dismissing an appeal from a decision of the Federal Court refusing to make an order under s 128A(6) of the Evidence Act 1995 (Cth) that a privilege affidavit be filed ("the Commissioner"). and the Deputy Commissioner of Taxation served The Commissioner obtained orders in the Federal Court freezing the worldwide assets of the respondent ("Mr Shi"). Ancillary orders required Mr Shi to disclose matters relating to the assets ("the disclosure order"). Section 128A(2) provides that if a person subject to a disclosure order objects to complying with it on the grounds of the privilege against self-incrimination, the person must prepare an affidavit containing the information to which the objection is taken ("privilege affidavit"). If the court is satisfied that there are reasonable grounds for the objection, s 128A(5) provides that the court must not require the information in the privilege affidavit to be disclosed, subject to an exception in s 128A(6). Under s 128A(6) the court may order that the privilege affidavit, in whole or in part, be disclosed if satisfied that, (a) any information in it may tend to prove that the person has committed an offence against or arising under an Australian law; and (b) the information does not tend to prove that the person has committed an offence against or arising under, a law of a foreign country; and (c) the interests of justice require the information to be disclosed. Mr Shi objected to complying with part of the disclosure order on the grounds of self- incrimination. The primary judge was satisfied that there were reasonable grounds for the objection and was also satisfied of the matters in s 128A(6)(a) and (b) but held that because there were other means by which the Commissioner could obtain the information in the privilege affidavit, the interests of justice did not require it to be disclosed. On appeal, the Full Court, by majority, upheld the primary judge's holding that the interests of justice did not require disclosure, taking into account other available ways that the information could be obtained. The High Court, by majority, allowed the appeal. The Court held that the Full Court and the primary judge took an irrelevant consideration into account in failing to be satisfied that the interests of justice required disclosure of the information in the privilege affidavit. The inquiry mandated by s 128A(6)(c) proceeds on the premise that, as part of or in connection with an extant freezing or search order in a civil proceeding, there is an extant disclosure order operating to require provision of the information. No part of the inquiry is to question whether information required to be provided in compliance with that extant disclosure order would more appropriately be obtained through some other compulsory process.
+HIGH COURT OF AUSTRALIA 8 September 2011 MOMCILOVIC v THE QUEEN & ORS [2011] HCA 34 Today the High Court allowed an appeal by Ms Vera Momcilovic against her conviction for drug trafficking contrary to s 71AC of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) ("the Drugs Act"), but held that s 71AC is not invalid under s 109 of the Constitution for inconsistency with the trafficking offence provision of the Criminal Code (Cth). In 2008, Ms Momcilovic was convicted, following trial by jury in the County Court of Victoria, of trafficking in methylamphetamine contrary to s 71AC of the Drugs Act. The prosecution case was that drugs were found in an apartment that Ms Momcilovic owned and lived in. However, Ms Momcilovic lived in the apartment with her partner, Mr Velimir Markovski, who had been convicted in a separate trial of trafficking in methylamphetamine and cocaine. At her trial, Ms Momcilovic and Mr Markovski gave evidence that she had no knowledge of the presence of drugs in the apartment. In order to establish possession of the drugs by Ms Momcilovic, the prosecution relied upon s 5 of the Drugs Act, which provided that "any substance shall be deemed for the purposes of this Act to be in the possession of a person so long as it is upon any land or premises occupied by him … unless the person satisfies the court to the contrary". The jury was directed that, once it was proved that Ms Momcilovic was in occupation of the apartment, she was deemed to be in possession of the drugs unless she satisfied the jury that she did not know of their presence. On appeal to the Court of Appeal of the Supreme Court of Victoria, Ms Momcilovic submitted that on its ordinary construction or, alternatively, pursuant to the interpretive rule created by s 32(1) of the Charter, s 5 of the Drugs Act did not impose on her any onus of proof. Alternatively, she submitted that the provision should be interpreted as imposing an evidential onus rather than a legal onus. Section 32(1) of the Charter provides that "[s]o far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights". The Court of Appeal refused Ms Momcilovic leave to appeal against her conviction. The Court of Appeal also made a declaration of inconsistent interpretation pursuant to s 36(2) of the Charter, on the basis that s 5 of the Drugs Act could not "be interpreted consistently with the presumption of innocence under s 25(1) of the Charter". On appeal to the High Court, Ms Momcilovic raised several issues of constitutional importance in seeking to have her conviction quashed, including: the validity of the Charter, in particular s 32(1) which conferred a statutory interpretation function upon courts, and s 36 which conferred on the Supreme Court the power to make a declaration of inconsistent interpretation where the Court was of the opinion that a statutory provision could not be interpreted consistently with a human right;  whether the offence of trafficking contrary to s 71AC of the Drugs Act is invalid under s 109 of the Constitution for inconsistency with the offence of trafficking contrary to s 302.4 of the Criminal Code (Cth); the construction of s 71AC of the Drugs Act, and whether s 5 is applicable to the offence. The High Court, by majority, allowed Ms Momcilovic's appeal against her conviction. French CJ, Gummow, Hayne, Crennan and Kiefel JJ held that s 5 did not apply to the offence of trafficking contrary to s 71AC of the Drugs Act. Their Honours held that, as a result, Ms Momcilovic's trial had miscarried because the jury had been misdirected. Bell J held that s 5 did apply to s 71AC, but nevertheless that the jury had been misdirected. Further, French CJ, Gummow, Heydon, Crennan, Kiefel and Bell JJ held that s 71AC of the Drugs Act was not invalid for inconsistency with the trafficking offence provision of the Criminal Code (Cth). The Court quashed Ms Momcilovic's conviction, set aside her sentence, and ordered that a new trial be had. In relation to the validity of the Charter, French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ held that s 32(1) operated as a valid rule of statutory interpretation, which is a function that may be conferred upon courts. With respect to the declaration of inconsistent interpretation made by the Court of Appeal, French CJ and Bell J held that s 36 of the Charter was valid but that there could be no appeal to the High Court from a declaration made under that section. Crennan and Kiefel JJ held that s 36 of the Charter was valid but that a declaration of inconsistent interpretation should not have been made by the Court of Appeal in this proceeding. Gummow, Hayne and Heydon JJ held that s 36 was invalid for impermissibly impairing the institutional integrity of the Supreme Court. As a majority of the Court was of the view that the declaration of inconsistent interpretation made pursuant to s 36 either was invalid or ought not to have been made by the Court of Appeal in this proceeding, the Court ordered that the declaration be set aside. The Attorney-General for Victoria was ordered to pay two-thirds of Ms Momcilovic's costs.
+HIGH COURT OF AUSTRALIA 5 October 2011 QUEANBEYAN CITY COUNCIL v ACTEW CORPORATION LTD & ANOR QUEANBEYAN CITY COUNCIL v ACTEW CORPORATION LTD & ANOR [2011] HCA 40 Today the High Court dismissed an appeal by the Queanbeyan City Council ("Queanbeyan") against a decision of the Full Court of the Federal Court of Australia, which held that water licence fees and a utilities network tax imposed by the Australian Capital Territory ("the Territory") upon ACTEW Corporation Ltd ("ACTEW"), and passed on to Queanbeyan, were not contrary to s 90 of the Constitution. Under s 90 of the Constitution, the power of the Commonwealth Parliament to impose duties of excise is exclusive. Under power conferred upon it by s 24 of the Local Government Act 1993 (NSW), Queanbeyan provides goods, services and facilities to the City of Queanbeyan. Queanbeyan obtains water supplies from ACTEW which holds a licence to take water from certain areas under the control of the Territory under the Water Resources Act 2007 (ACT). ACTEW previously held a similar licence under the Water Resources Act 1998 (ACT). ACTEW charges Queanbeyan for supplying water to residents and businesses within the City of Queanbeyan. The charge includes costs imposed on ACTEW under Territory legislation. Pursuant to determinations under the Water Acts, ACTEW was required to pay fees for extracting water from Territory catchments calculated by reference to the amount of water extracted. The determinations increased the water licence fees from 10 cents per kilolitre to 55 cents per kilolitre. From 1 January 2007, the Territory also required ACTEW to pay a charge imposed by reference to the route length of the infrastructure network for the supply and delivery of water to its customers under the Utilities (Network Facilities Tax) Act 2006 (ACT). ACTEW was a Territory-owned Corporation within the meaning of the Territory-owned Corporations Act 1990 (ACT). Amongst other things, that Act required the shares in ACTEW to be held on trust for the Territory, gave the Territory's executive control over ACTEW's corporate decision-making and regulated its borrowing. Queanbeyan brought proceedings in the Federal Court of Australia alleging that the Territory had invalidly imposed on ACTEW duties of excise, namely, the water licence fees and the utilities network tax, within the meaning of s 90 of the Constitution, and that these charges were therefore wrongly passed on by ACTEW to Queanbeyan. The primary judge and the majority of the Full Court held that the water licence fees were not taxes. The primary judge also held that the utilities network tax was a duty of excise and therefore invalid. The Full Court disagreed and held that the utilities network tax was not a duty of excise. Queanbeyan appealed, by special leave, to the High Court of Australia. By a notice of contention, ACTEW contended that the water licence fees and utilities network tax were merely internal financial arrangements between ACTEW and the Territory and therefore could not be duties of excise. The High Court held that the provisions of the Territory-owned Corporations Act indicated that the executive government of the Territory exercised extensive control over the conduct of the affairs of ACTEW. ACTEW was so closely identified with the Territory that it was not distinct from the polity itself. The water licence fees and the utilities network tax, being imposed upon a Territory agency, were merely internal financial arrangements; they could not be "taxes" and thus could not amount to "duties of excise" within the meaning of s 90 of the Constitution.
+HIGH COURT OF AUSTRALIA 6 February 2019 WORK HEALTH AUTHORITY v OUTBACK BALLOONING PTY LTD & ANOR [2019] HCA 2 Today the High Court, by majority, allowed an appeal from the Court of Appeal of the Supreme Court of the Northern Territory. The majority held that ss 19 and 32 of the Work Health and Safety (National Uniform Legislation) Act (NT) ("the NT WHS Act") are not inconsistent with a body of Commonwealth civil aviation laws ("the Commonwealth civil aviation law") which includes the Civil Aviation Act 1988 (Cth) ("the CA Act"). Outback Ballooning Pty Ltd ("Outback Ballooning") operates a business in Alice Springs which provides rides in hot air balloons. In July 2013, an incident occurred during embarkation of one of the hot air balloons which resulted in the death of an intended passenger. The Work Health Authority ("the WHA") filed a complaint against Outback Ballooning under s 32 of the NT WHS Act, in which it was alleged that Outback Ballooning failed to comply with the duty imposed on it by s 19(2) of that Act to ensure, so far as is reasonably practicable, that the health and safety of persons was not put at risk from work carried out as part of the conduct of its business. The WHA's complaint was particularised as a failure to eliminate or minimise risks to embarking passengers that arose from the use of a fan to inflate the hot air balloon. The complaint was dismissed by the Northern Territory Court of Summary Jurisdiction as invalid on the basis that the subject matter of the complaint was within the field covered by the Commonwealth regulatory scheme with respect to aviation. The WHA sought an order in the nature of certiorari in the Supreme Court of the Northern Territory, which was granted on the basis that embarkation procedure, the subject of the complaint, is not so closely connected with safety in flight as to be exclusively regulated by the Commonwealth civil aviation law. The Court of Appeal allowed an appeal against that decision on the basis that the Commonwealth civil aviation law was a complete statement of the relevant law, which extended to the embarkation of passengers. By grant of special leave, the WHA appealed to the High Court. By majority, the High Court held that, as a matter of construction, the NT WHS Act is not inconsistent with the Commonwealth civil aviation law. The CA Act in relevant respects is designed to operate within the framework of other State, Territory and Commonwealth laws. The NT WHS Act is one such law. The CA Act does not contain an implicit negative proposition that it is to be the only law with respect to the safety of persons who might be affected by operations associated with aircraft, including embarkation of passengers.
+HIGH COURT OF AUSTRALIA 17 May 2006 STATE OF QUEENSLAND v PETER ROBERT STEPHENSON SCOTT WILLIAM REEMAN v STATE OF QUEENSLAND STATE OF QUEENSLAND v TIMOTHY JAMES WRIGHTSON Public Information Officer Three former police officers who wished to sue the State of Queensland after performing dangerous undercover work were all entitled to have the time in which they could bring action extended, the High Court of Australia held today. Mr Stephenson, Mr Reeman and Mr Wrightson all worked in covert drug investigations, which put them in life-threatening situations. All claim that after returning to ordinary duties they developed psychiatric conditions and could no longer cope with police work. The police service provided for retirement on medical grounds, which is more financially advantageous than resigning. However, by the time the steps for retirement on medical grounds were completed in 2001, more than three years had elapsed. After the expiry of the three-year limitation period fixed by section 11 of the Limitation of Actions Act, they instituted proceedings in the Supreme Court. Each sued the State in negligence for damages for personal injury. The State pleaded the time bar in each case and applied for summary judgment. Each man applied for an extension of time under section 31 of the Limitation Act. Section 31(2) provides that, where a material fact of a decisive character relating to the right of action was not within the means of knowledge of the applicant until a date (“the relevant date”) during the last year of the limitation period, the court may extend the limitation period so it expires one year after that date. In the case of Mr Stephenson, he began suffering severe depression in mid-1997, so the limitation period fixed by section 11 expired by mid-2000. He retired on medical grounds on 23 February 2001 and instituted an action in the Supreme Court on 20 December 2001. When the State pleaded the time bar, Mr Stephenson applied under section 31 for a backdated extension to 20 December 2001. He thus had to show that a material fact of a decisive character relating to the right of action was not within his means of knowledge before the relevant date of 20 December 2000. Mr Wrightson had the same relevant date while the relevant date for Mr Reeman was 22 July 2001. The Supreme Court dismissed applications for extensions of time by Mr Stephenson and Mr Reeman but granted Mr Wrightson’s application. The Court of Appeal allowed Mr Stephenson’s appeal, dismissed Mr Reeman’s appeal and upheld the trial judge’s decision in relation to Mr Wrightson. The State appealed to the High Court in relation to Mr Stephenson, and applied for special leave to appeal in relation to Mr Wrightson, with the application argued as on appeal. Mr Reeman also appealed. The police officers all succeeded, with the High Court, by a 4-1 majority, dismissing the State’s appeal and special leave application and allowing Mr Reeman’s appeal. The Court held that the fact that a material fact was within the means of knowledge of the applicant before the relevant date is insufficient of itself to block recourse to section 31(2). To prevent a successful extension application, the material fact must have a decisive character. Whether the decisive character is achieved by the applicant becoming aware of some new material fact, or whether the circumstances develop such that facts already known acquire a decisive character, is immaterial. Since the Supreme Court had found in each case that it was not until the applications for retirement on medical grounds had been granted that the requirements of a material fact of a decisive character had been satisfied, the High Court held that section 31(2) had been satisfied.
+HIGH COURT OF AUSTRALIA 10 December 2014 COMMISSIONER OF STATE REVENUE v LEND LEASE DEVELOPMENT PTY LTD COMMISSIONER OF STATE REVENUE v LEND LEASE IMT 2 (HP) PTY LTD COMMISSIONER OF STATE REVENUE v LEND LEASE REAL ESTATE INVESTMENTS LIMITED [2014] HCA 51 Today the High Court unanimously allowed appeals from a decision of the Court of Appeal of the Supreme Court of Victoria and held that the Commissioner of State Revenue was entitled to assess duty to be charged on transfers of land in the Docklands area of Melbourne by reference not only to payments made under specified land sale contracts but also to payments made under a "development agreement" which, together with the land sale contracts, formed a single, integrated and indivisible transaction for the sale and development of the Docklands area. In 2001, the Victorian Urban Development Authority ("VicUrban") and one of the Lend Lease respondents (together "Lend Lease") made an agreement for the development of the Docklands area. It was agreed that Lend Lease would buy parcels of land in Docklands from VicUrban and that Lend Lease would design, construct and then sell large residential and commercial buildings on that land. It was also agreed that each of VicUrban and Lend Lease would build various forms of infrastructure on and around the land, including a road extension, bridge and park. Each transfer of land was to be made pursuant to a land sale contract. But the development agreement also required Lend Lease to pay to VicUrban not only the amounts payable under each land sale contract but also certain additional amounts, including payments for infrastructure and for remediation of areas on and around the land and a share of gross proceeds received by Lend Lease on sale. Under the Duties Act 2000 (Vic), the transfers of land were subject to duty payable by Lend Lease. The Commissioner assessed duty according to the consideration for each transfer of land, which it determined to be the total of the sums payable by Lend Lease to VicUrban under the development agreement. Lend Lease objected to the assessments, claiming that the consideration for each transfer was the payment of the amount specified only in the land sale contract. After the Commissioner disallowed the objections, Lend Lease requested that each be treated as an appeal to the Supreme Court of Victoria. Those appeals were dismissed by a single judge of the Supreme Court but were allowed on further appeals to the Court of Appeal. By special leave, the Commissioner appealed to the High Court. The High Court unanimously allowed the appeals. The Court held that the transaction recorded in the development agreement made between VicUrban and Lend Lease was a single, integrated and indivisible transaction. The Court held that the consideration for the transfer of land was the performance by Lend Lease of the several promises of payments under the development agreement, and that the Commissioner was right to include those amounts in the assessments.
+HIGH COURT OF AUSTRALIA 13 August 2020 MONDELEZ AUSTRALIA PTY LTD v AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION KNOWN AS THE AUSTRALIAN MANUFACTURING WORKERS UNION (AMWU) & ORS; MINISTER FOR JOBS AND INDUSTRIAL RELATIONS v AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION KNOWN AS THE AUSTRALIAN MANUFACTURING WORKERS UNION (AMWU) & ORS [2020] HCA 29 Today the High Court allowed an appeal from a judgment of the Full Court of the Federal Court of Australia ("Full Federal Court") concerning how the entitlement to paid personal/carer's leave is calculated under s 96(1) of the Fair Work Act 2009 (Cth). Section 96(1) says that "[f]or each year of service with his or her employer, an employee is entitled to 10 days of paid personal/carer's leave". Section 96(2) says that an employee's entitlement to this leave "accrues progressively during a year of service according to the employee's ordinary hours of work, and accumulates from year to year". Under s 99, payment for leave taken is calculated by reference to an employee's "ordinary hours of work". Section 55(4) says that an enterprise agreement may only include terms not detrimental to an employee when compared to certain provisions of the Fair Work Act including s 96. Mondelez Australia Pty Ltd ("Mondelez") employs Ms Triffitt and Mr McCormack. Under their enterprise bargaining agreement, Ms Triffitt and Mr McCormack each work, on average, 36 ordinary hours of work per week. They work an average of three 12-hour shifts per week. Mondelez credits Ms Triffitt and Mr McCormack with 96 hours of paid personal/carer's leave per year of service. When they take paid personal/carer's leave for one 12-hour shift, Mondelez deducts 12 hours from their accrued leave balance. Over the course of one year of service, Ms Triffitt and Mr McCormack accrue paid personal/carer's leave sufficient to cover eight 12-hour shifts. Ms Triffitt and Mr McCormack (together with the Australian Manufacturing Workers Union) argued that s 96(1) entitles them to paid personal/carer's leave sufficient to cover ten absences from work per year. That argument was accepted by a majority of the Full Federal Court which held that "day" in s 96(1) refers to "the portion of a 24 hour period that would otherwise be allotted to work" ("the 'working day' construction"). A majority of the High Court rejected the "working day" construction and instead held that what is meant by a "day" or "10 days" must be calculated by reference to an employee's ordinary hours of work. "10 days" in s 96(1) is two standard five-day working weeks. One "day" refers to a "notional day" consisting of one-tenth of the equivalent of an employee's ordinary hours of work in a two-week period. Because patterns of work do not always follow two-week cycles, the entitlement to "10 days" of paid personal/carer's leave can be calculated as 1/26 of an employee's ordinary hours of work in a year.
+HIGH COURT OF AUSTRALIA 29 September 2005 ROBYN VANESSA LAYBUTT v GLOVER GIBBS PTY LIMITED trading as BALFOURS NSW PTY LIMITED An employer was held to have negligently caused a worker’s injury after rejecting her request for instructions on how to reassemble a doughnut machine, the High Court of Australia held today. Ms Laybutt was a 30-year-old pastry cook who had been was employed by Glover Gibbs for about six weeks in its Sydney factory when her team leader asked her to reassemble the machine after washing. She told him that she did not know how to do it and he responded “just give it a go”. Ms Laybutt was not given supervision, gloves, an instruction manual or a practical demonstration. Part of the machine consisted of five cylinders into which smaller cylinders were fitted. These were held together by a U-shaped piece with protruding lugs which had to slot into grooves on the outer cylinder. The larger outer cylinder had sharp edges and the cylinders were slippery after being washed. As Ms Laybutt attempted to join a pair of cylinders the outer one slipped and sliced her right little finger. This injury also affected her arm. On later occasions she was able to reassemble the machine without mishap. Ms Laybutt sued her employer in negligence in the New South Wales District Court. She alleged Glover Gibbs was negligent in failing to implement a safe system of work, to provide adequate instructions and training, to supervise her properly, to dry the parts to be reassembled, to heed her warnings that she was unskilled in the task, to provide manufacturer’s instructions for the safe cleaning and assembly, and to provide protective gloves. Glover Gibbs pleaded contributory negligence by Ms Laybutt as she failed to carry out her duties as instructed, to carry out her duties safely, to have proper regard for her own safety, and to wear gloves as instructed. However at the hearing her account was substantially unchallenged and the defence was her ineptness in not holding the cylinder tightly enough. Glover Gibbs’s production manager criticised the direction to “just give it a go”. The jury found Glover Gibbs liable and rejected the claim of contributory negligence. Ms Laybutt was awarded damages of $471,000 plus costs. Glover Gibbs successfully appealed to the Court of Appeal which held that Ms Laybutt had not spelled out what instructions should have been given. She appealed to the High Court. The Court unanimously allowed the appeal and held there was sufficient evidence to go to the jury of a failure to give appropriate instructions. It was not necessary in this case to formulate a precise set of instructions that Glover Gibbs should have given when she sought them. The Court held that jurors use their knowledge and experience to contemplate what might reasonably be expected in a workplace and it was open to them to find Glover Gibbs negligent in failing to give instructions or warnings.
+HIGH COURT OF AUSTRALIA 21 December 2016 ELECNET (AUST) PTY LTD (AS TRUSTEE FOR THE ELECTRICAL INDUSTRY SEVERANCE SCHEME) v COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA [2016] HCA 51 Today the High Court unanimously dismissed an appeal from the Full Court of the Federal Court of Australia. The High Court held that the Electrical Industry Severance Scheme ("the EISS") is not a unit trust within the meaning of Div 6C of Pt III of the Income Tax Assessment Act 1936 (Cth) ("the ITAA"). The appellant ("ElecNet") was the trustee of the EISS pursuant to a trust settled by deed. Under the EISS, employers within the electrical contracting industry could become members of the scheme and, upon doing so, became obliged to make payments to ElecNet. These payments were credited by ElecNet to accounts in the name of each of the employees in respect of whom a payment was made. The deed contemplated that, at such time as an employee's employment was terminated, ElecNet was to make a severance or redundancy payment to that employee. ElecNet requested a private ruling from the respondent ("the Commissioner") as to whether the EISS was a public trading trust for the purposes of Div 6C. The Commissioner ruled that the EISS was not a public trading trust, on the ground, among others, that the EISS was not a unit trust within the meaning of Div 6C. ElecNet's objection to the ruling was disallowed in full by the Commissioner. ElecNet appealed to the Federal Court of Australia. At first instance, the Court allowed the appeal, holding that the EISS was a unit trust for the purposes of Div 6C. The Commissioner appealed to the Full Court of the Federal Court of Australia. The Full Court unanimously allowed the Commissioner's appeal, holding that the EISS was not a unit trust for the purposes of Div 6C. By grant of special leave, ElecNet appealed to the High Court. The Court held that the EISS was not a unit trust for the purposes of Div 6C because any interest created by the deed in favour of employees could not be characterised as a "unit". The Court also held that the meaning of "unit trust" in Div 6C accorded with the common usage of the expression "unit trust"; that is, a trust whereby the beneficial interest in the trust estate is divided into units as discrete parcels of rights, analogous to shares, which, when created or issued, are to be held by the persons for whose benefit the trustee maintains and administers the trust estate. The inclusive definition of "unit" in Div 6C did not expand the meaning of "unit trust" for the purposes of that Division.
+HIGH COURT OF AUSTRALIA 8 March 2017 [2017] HCA 10 Today the High Court, by majority, dismissed an appeal from a decision of the Court of Appeal of the Supreme Court of the Northern Territory. The High Court held that the apprehension of the appellant, Mr Prior, pursuant to s 128(1) of the Police Administration Act (NT) ("the PAA"), was not unlawful, because it was open for a court to find that the apprehending officer had reasonable grounds to believe Mr Prior was likely to commit an offence. Section 128(1) of the PAA, relevantly, allows a member of the Police Force of the Northern Territory to apprehend without warrant a person who the member has reasonable grounds for believing is intoxicated, is in a public place, and that, because of the person's intoxication, the person may intimidate, alarm or cause substantial annoyance to others, or is likely to commit an offence. Before his apprehension, Mr Prior was drinking liquor with two other men on a footpath in front of a set of shops, including two shops selling liquor. He was intoxicated. When a police car, driven by Constables Fuss and Blansjaar, drove by he made an offensive gesture and shouted abuse. The officers parked the car in front of the men and asked Mr Prior to speak to them. Mr Prior was belligerent and aggressive. Mr Prior was apprehended by Constable Blansjaar pursuant to s 128(1) of the PAA because Constable Blansjaar believed that, because of Mr Prior's intoxication, he might intimidate, alarm or cause substantial annoyance to people, and that it was likely he would commit the offence of drinking in a regulated place contrary to s 101U of the Liquor Act (NT) ("the Liquor Act offence"). After being taken into custody, Mr Prior engaged in conduct which led to him being charged with assaulting a police officer in the execution of duty and public indecency. He was convicted of those offences upon a trial in the Court of Summary Jurisdiction. That Court found Mr Prior had been lawfully apprehended pursuant to s 128(1) of the PAA. On appeal to the Supreme Court, Southwood J was satisfied beyond reasonable doubt that there were reasonable grounds for Constable Blansjaar's belief that, because of his intoxication, Mr Prior was likely to commit the Liquor Act offence. Mr Prior's convictions were, however, set aside by Southwood J, and subsequently restored by the Court of Appeal, on grounds not subject of appeal to the High Court. The Court of Appeal upheld Southwood J's conclusion that Constable Blansjaar had reasonable grounds for believing that it was likely Mr Prior would commit the Liquor Act offence. By grant of special leave, Mr Prior appealed to the High Court, arguing the Court of Appeal erred in holding Constable Blansjaar was entitled to rely on his policing experience in deciding that he had reasonable grounds for believing that Mr Prior would commit the Liquor Act offence. The High Court held, by majority, that the lack of precise particularisation of Constable Blansjaar's experience did not deprive the Court of Appeal of its capacity to assess the reasonableness of his belief. It was fair for the Court of Appeal to infer that Constable Blansjaar's belief about how Mr Prior was likely to behave was informed at least in part by Constable Blansjaar's experience in dealing with other intoxicated people, and it was open to hold that, based on Constable Blansjaar's experience, it was reasonable for him to believe that Mr Prior was likely to continue drinking liquor in a regulated place. The High Court also rejected a separate argument that the apprehension of Mr Prior exceeded the limits of the s 128(1) power.
+HIGH COURT OF AUSTRALIA 8 February 2013 COMMISSIONER OF POLICE v EATON & ANOR [2013] HCA 2 Today a majority of the High Court allowed an appeal brought by the appellant, the Commissioner of Police of New South Wales, against a decision of the Court of Appeal of the Supreme Court of New South Wales which held that the unfair dismissal regime in the Industrial Relations Act 1996 (NSW) ("the IR Act") applied to the dismissal of a probationary police officer under the Police Act 1990 (NSW). The first respondent, Mr Eaton, had applied to the Industrial Relations Commission of New South Wales ("the IR Commission") for a remedy under s 84(1) of the IR Act claiming his dismissal from the New South Wales Police Force was harsh, unreasonable or unjust. He had been employed as a probationary police officer but was dismissed by a delegate of the appellant under s 80(3) of the Police Act, which permits the dismissal of a probationary police officer at any time and without reason. The IR Commission held that the first respondent's dismissal was harsh and unreasonable and unjust, and the appellant was ordered to reinstate him. On appeal, a Full Bench of the IR Commission held that the IR Commission lacked jurisdiction to determine the first respondent's claim and his claim was dismissed. The Full Bench held that a dismissal made pursuant to s 80(3) of the Police Act was excluded from review by the IR Commission under the unfair dismissal regime of the IR Act. The first respondent successfully applied to the Court of Appeal for judicial review of the Full Bench's decision. The Court of Appeal held that the IR Commission had jurisdiction and remitted the matter to the Full Bench to be determined according to law. On appeal by special leave to the High Court, the appellant submitted that the terms of s 80(3) of the Police Act were inconsistent with a right to review under the IR Act. The Court, by majority, agreed and allowed the appeal. The majority held that the Police Act indicated a legislative intention that a decision made under s 80(3) to dismiss a probationary police officer was not to be subject to review by the IR Commission. This was indicated in several ways including the manner in which s 80(3) was framed, suggesting as it did that the appellant's power to dismiss was unfettered. There was incoherence between reasons not being required by s 80(3) and the matters to be considered by the IR Commission in determining an unfair dismissal claim and, in addition, the relief available under the IR Act was at odds with the appellant's right under s 80(3) to dismiss. The majority also considered that an anomalous position would result if probationary police officers were given greater procedural rights under the IR Act's unfair dismissal regime than confirmed police officers whose unfair dismissal claims are regulated by the Police Act.
+HIGH COURT OF AUSTRALIA 29 January 2019 UNIONS NSW & ORS v STATE OF NEW SOUTH WALES [2019] HCA 1 Today the High Court unanimously answered a question stated in a special case to the effect that s 29(10) of the Electoral Funding Act 2018 (NSW) ("the EF Act") is invalid because it impermissibly burdens the freedom of communication on governmental and political matters implied and protected by the Commonwealth Constitution. The EF Act replaced the Election Funding, Expenditure and Disclosures Act 1981 (NSW) ("the EFED Act"). The general scheme of the relevant provisions of the EFED Act was to limit the amount or value of political donations to, and the amounts which could be expended by, political parties, candidates, elected members and others, including "third-party campaigners". According to the Second Reading Speech to the Bill which became the EF Act, it was designed to "preserve[] the key pillars of [the EFED Act], namely, disclosure, caps on donations, limits on expenditure and public funding". Although the scheme of the EFED Act remains largely intact, s 29(10) of the EF Act reduces the expenditure cap applicable to registered third-party campaigners from $1,050,000 to $500,000, which is less than half the amount applicable to, for example, certain political parties. Section 35 of the EF Act prohibits a third-party campaigner from acting in concert with others to incur electoral expenditure above the applicable cap for the third-party campaigner. The EF Act will apply to the next New South Wales State election, which is due to occur in March 2019 ("the 2019 election"). The plaintiffs are a collection of trade union bodies. With the exception of the sixth plaintiff, each plaintiff has registered as a third-party campaigner under the EF Act. Each of the plaintiffs has asserted an intention to incur electoral expenditure during the capped State expenditure period for the 2019 election. In the March 2015 election campaign, three plaintiffs incurred more than $500,000 in electoral communication expenditure. The plaintiffs commenced proceedings in the High Court shortly after the EF Act commenced, seeking declarations of invalidity in respect of ss 29(10) and 35 of the EF Act, and the parties agreed a special case for the consideration of the Full Court. The defendant, the State of New South Wales, contended that a purpose of the EF Act, and in particular s 29(10), was to prevent the drowning out of voices in the political process by the distorting influence of money ("the identified purpose"). A majority of the Court held that, accepting or assuming that the identified purpose was the real purpose of s 29(10) and that it was a legitimate purpose, the reduction in the cap applicable to third-party campaigners was not demonstrated to be reasonably necessary to achieve that purpose. As a result, s 29(10) was held to be invalid. For the majority, that invalidity had the result that it was unnecessary to answer the question concerning s 35 of the EF Act, because there was no applicable cap upon which the section could operate.
+HIGH COURT OF AUSTRALIA Public Information Officer 20 July 2006 CAROL ANNE STINGEL v GEOFFREY CLARK Ms Stingel was within the six-year limitation period when she brought an action against Mr Clark for post-traumatic stress disorder in 2000 over alleged rapes in 1971, the High Court of Australia held today. Ms Stingel, 51, alleges she was assaulted and raped by Mr Clark on two occasions in March and April 1971, first at the Warrnambool Municipal Gardens and then at a nearby beach. She alleges she now suffers injury in the form of post-traumatic stress disorder of delayed onset and that she only became aware of the connection between the attacks and the injury in 2000. In August 2002 Ms Stingel commenced an action for damages against Mr Clark in the Victorian County Court. She claims aggravated, exemplary and punitive damages for trespass against the person. The merits of the case have not yet been tried. Under Victoria’s Limitation of Actions Act, actions in tort have a general limitation period of six years from the date on which the cause of action accrued – in the case of trespass, from the date of the trespass – which had long expired by 2002. Ms Stingel claims her case falls under section 5(1A) of the Act which provides that an action for damages for negligence, nuisance or breach of duty, where damages are for personal injuries from a disease or disorder contracted by a person, may be brought within six years of the date on which the person first knew they had suffered injury. Mr Clark argued that section 5(1A) did not apply because an action for trespass is not an action for breach of duty so the general limitation period applied. The County Court rejected this argument. Mr Clark appealed to the Court of Appeal, which, by a 3-2 majority, allowed the appeal on the ground that the facts did not attract section 5(1A). The Court of Appeal held that Ms Stingel’s injury was traumatic, not insidiously progressive in the manner of asbestos-related diseases, so her action was statute-barred. Ms Stingel appealed to the High Court. Mr Clark also contended that the “breach of duty” argument should be accepted by the Court. The High Court, by a 5-2 majority, allowed the appeal and rejected Mr Clark’s contention. The words “breach of duty” had been held in Victoria to cover trespass to the person, including intentional trespass. The Court held that these earlier decisions should be followed and that this construction accorded with the legislative history, context and purpose of the Act. The Court overturned the Court of Appeal’s interpretation of “disease or disorder contracted” as these words are not limited to insidious conditions. The Victorian Parliament used general language and made no reference to insidious diseases. The High Court held that nothing in section 5(1A) limits its operation to cases in which a disorder was contracted before the expiry of the usual six-year limitation period.
+HIGH COURT OF AUSTRALIA 17 December 2015 WEI v MINISTER FOR IMMIGRATION AND BORDER PROTECTION [2015] HCA 51 Today the High Court unanimously held that a decision of a delegate of the Minister for Immigration and Border Protection ("the Minister") to cancel the plaintiff's student visa under s 116(1)(b) of the Migration Act 1958 (Cth) for failure to comply with a condition of his visa was affected by jurisdictional error. The plaintiff, a citizen of the People's Republic of China, held a student visa. It was a condition of his visa that he be enrolled in a "registered course" provided by a "registered provider" under the Education Services for Overseas Students Act 2000 (Cth) ("the ESOS Act"). Section 19 of the ESOS Act requires registered providers to give information about student visa holders to the Secretary of the Department of Education and Training, including information confirming their enrolment. The information is stored on an electronic database known as "PRISMS" and can be accessed by officers of the Department of Immigration and Border Protection ("the Department"). Between June 2013 and June 2014, the plaintiff was enrolled in a registered course provided by a registered provider. However, confirmation of the plaintiff's enrolment was not recorded in PRISMS. On the basis of outdated information in PRISMS, officers of the Department formed the view in early 2014 that the plaintiff was not enrolled in a registered course. The officers formally complied with statutory requirements to notify the plaintiff that consideration was being given to cancelling his visa, but the plaintiff did not receive notice of that consideration. The plaintiff's visa was cancelled by a delegate of the Minister on 20 March 2014. The plaintiff discovered that his visa had been cancelled on 2 October 2014 and sought review of the cancellation decision in the Migration Review Tribunal. The Tribunal determined that it did not have jurisdiction to review the decision. The plaintiff filed an application for an order to show cause in the original jurisdiction of the High Court, seeking writs of certiorari and prohibition to quash the decision of the delegate and to prevent the Minister from giving effect to the delegate's decision. The Court unanimously held that the delegate's decision to cancel the plaintiff's visa was affected by jurisdictional error. By majority, the Court held that the delegate's satisfaction that the plaintiff was in breach of a visa condition was formed by a process of fact-finding tainted by the registered provider's failure to perform its imperative statutory duty to upload onto PRISMS confirmation of the plaintiff's enrolment. The Court granted the relief sought by the plaintiff.
+HIGH COURT OF AUSTRALIA 10 February 2021 MINISTER FOR HOME AFFAIRS v BENBRIKA [2021] HCA 4 Today, the High Court answered a question reserved for the consideration of the Court of Appeal of the Supreme Court of Victoria that had been removed into the High Court. The question concerned Div 105A of the Criminal Code (Cth) ("the Code"), which empowers the Supreme Court of a State or Territory, on the application of the Minister for Home Affairs ("the Minister"), to order that a person who has been convicted of a terrorist offence be detained in prison for a further period after the expiration of his or her sentence of imprisonment. The Court held, by majority, that the power to make a continuing detention order ("CDO") under s 105A.7 of the Code is within the judicial power of the Commonwealth and has not been conferred, inter alia, on the Supreme Court of Victoria contrary to Ch III of the Commonwealth Constitution. On 15 September 2008, Mr Abdul Nacer Benbrika was convicted by the Supreme Court of Victoria of being a member of a terrorist organisation and directing the activities of a terrorist organisation. At trial, the Crown case was that Mr Benbrika and others were members of a Melbourne-based terrorist organisation that was fostering or preparing the doing of a terrorist act in Australia or overseas. Mr Benbrika was sentenced to an effective term of imprisonment of 15 years with a non- parole period of 12 years. His sentence expired on 5 November 2020. On 4 September 2020, the Minister commenced proceedings in the Supreme Court of Victoria, seeking a CDO in respect of Mr Benbrika. On 24 December 2020, it was ordered that Mr Benbrika be subject to a CDO to be in force for a period of three years. Mr Benbrika's principal argument relied on the principle, articulated in Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 and derived from the separation of powers provided for by the Constitution, that, exceptional cases aside, the involuntary detention of a citizen in custody by the State is penal or punitive in character and exists only as an incident of the exclusively judicial function of adjudging and punishing criminal guilt ("the Lim principle"). It was contended that the scheme for preventative detention provided for by Div 105A neither complies with, nor falls within a recognised exception to, this principle and so may not be conferred as federal judicial power. A majority of the Court held that a scheme that is appropriately tailored to protecting the community from the singular threat posed by terrorist criminal activity is capable of coming within an exception to the Lim principle analogous to other established exceptions that share a purpose of protection of the community from harm, such as detention of those suffering from mental illness or infectious disease. Taken as a whole, particularly as the power to make a CDO under Div 105A is conditioned on a judge being satisfied not only that the risk of the commission of certain offences is "unacceptable" but also that no other, less restrictive measure would be effective in preventing that risk, the division is rightly characterised as directed to ensuring the safety and protection of the community from the risk of harm posed by the threat of terrorism. Accordingly, Div 105A validly confers the judicial power of the Commonwealth on the Supreme Court of a State or Territory.
+HIGH COURT OF AUSTRALIA THE QUEEN v BARBARA BECKETT 23 October 2015 [2015] HCA 38 Today the High Court unanimously allowed an appeal against orders of the Court of Criminal Appeal of the Supreme Court of New South Wales ("the CCA") that permanently stayed the prosecution of the respondent for an offence under s 319 of the Crimes Act 1900 (NSW) ("the Act"). The High Court set aside the orders of the CCA, enabling the prosecution of the respondent to proceed. The respondent is a solicitor who was approved by the Chief Commissioner of State Revenue to electronically lodge certain tax returns and payments, including stamp duty. She was authorised to stamp transfers of real property using accountable stamps on the condition that the duty payable in respect of a transfer was available to her prior to processing the relevant transaction online. On 11 June 2010, the respondent stamped a transfer and completed an online assessment of duty payable for the conveyance of a unit. The duty was not paid to the Office of State Revenue ("OSR"), to which it was payable. As part of the OSR's investigation into the outstanding duty, the respondent attended a compelled interview conducted by investigators from the OSR. It is alleged that, during the interview, the respondent produced photocopies of two forged bank cheques and made false statements to the investigators, with a view to concealing the true facts and thereby preventing her prosecution for one or more offences under taxation law. Section 319 of the Act makes it an offence for a person to do any act, or make any omission, intending in any way to pervert the course of justice. The respondent was arraigned in the District Court of New South Wales on an indictment which charged her with an offence under s 319. By notice of motion dated 4 December 2013, the respondent sought to quash the indictment or to stay the proceedings against her permanently. The respondent contended that there was no "course of justice" in existence at the time of the impugned conduct, that is, during the interview. Sweeney DCJ dismissed the respondent's motion. Her Honour held that a prosecution for an offence under s 319 could be maintained notwithstanding that no judicial proceedings had been commenced at the time of the impugned conduct. The respondent appealed to the CCA on numerous grounds. The CCA determined that Sweeney DCJ was wrong to conclude that the s 319 prosecution could proceed. Their Honours held that the impugned conduct occurred before the jurisdiction of a court or competent judicial tribunal was invoked and was, therefore, incapable of constituting an offence under s 319. The prosecution for the s 319 offence was permanently stayed and the respondent's other grounds of appeal were dismissed. By grant of special leave, the appellant appealed to the High Court. The Court unanimously allowed the appeal, holding that an act done before the commencement of judicial proceedings may constitute an offence contrary to s 319 where it is done with intent to frustrate or deflect the course of judicial proceedings that the accused contemplates may possibly be instituted. Liability for the offence hinges on the intention to pervert the course of justice and not upon the perversion of a course of justice already in existence.
+HIGH COURT OF AUSTRALIA 2 December 2020 [2020] HCA 44 Today the High Court unanimously allowed an appeal from a judgment of the Full Court of the Family Court of Australia ("the Full Court"). The issue raised by the appeal was whether a ruling made by the Personal Status Court of Dubai ("the Dubai Court") in divorce proceedings by the respondent husband against the appellant wife ("the Dubai proceedings") had the effect of precluding the wife from pursuing property settlement proceedings and spousal maintenance proceedings against the husband under the Family Law Act 1975 (Cth) ("the Act"). The wife and husband married in Dubai in 2007 where they had a child and lived partly in the United Arab Emirates ("UAE") and partly in Australia. They separated in 2013 and the wife and child remained in Australia. In 2013, the wife sought parenting orders in proceedings commenced in the Family Court, which were later amended to also seek orders for property settlement and spousal maintenance. In 2014 the husband instituted the Dubai proceedings, and in 2015 the Dubai Court made a ruling that granted the husband an "irrevocable fault-based divorce", which dissolved the marriage, and also ordered the wife to pay an amount corresponding to advanced dowry and costs. The husband applied to the Family Court for a permanent stay of the property settlement and spousal maintenance proceedings on the basis that the ruling of the Dubai Court operated as a bar to those proceedings by reason of the principles of res judicata, cause of action estoppel and/or the principle in Henderson v Henderson (also known as "Anshun estoppel"). The primary judge dismissed the husband's application for a stay, holding that the Dubai proceedings did not involve the issue of the wife's right to claim property from the husband other than certain joint investment property, and did not deal with any right of the wife to alimony but rather described it as "untimely". On appeal, the Full Court unanimously allowed the husband's appeal and ordered a permanent stay of the property settlement and spousal maintenance proceedings. The Full Court held that the Dubai proceedings determined the same cause of action as the property settlement proceedings and so gave rise to a "res judicata estoppel". The Full Court also held that, as the wife had chosen not to press a claim for alimony that was available in the Dubai proceedings, she was precluded from pursuing a claim for spousal maintenance by operation of the principle in Henderson v Henderson. Following a grant of special leave, the High Court unanimously allowed the appeal from the Full Court's decision. A plurality held that the ruling of the Dubai Court could not give rise to a res judicata as the rights to seek orders for property settlement and spousal maintenance under ss 79 and 74 of the Act could only "merge" in the final judicial orders of a court having jurisdiction under the Act to make such orders. In relation to the property settlement proceedings, the ruling of the Dubai Court was incapable of founding a cause of action estoppel or an Anshun estoppel because the right to seek a share in joint investment property in the Dubai proceedings was not in any degree equivalent to the nature of the right to seek the discretionary alteration of property interests under s 79 of the Act. In relation to the spousal maintenance proceedings, while the nature of the rights to alimony under the law of the UAE and to spousal maintenance under s 74 of the Act were substantially equivalent, there was a significant difference in the coverage of the two rights, in that it had not been shown that the former was able to be claimed beyond the date of divorce. For that reason, the wife's choice not to claim alimony in the Dubai proceedings could provide no foundation for the operation of an Anshun estoppel. The remaining Justices also held that the ruling of the Dubai Court raised no res judicata, cause of action estoppel or
+HIGH COURT OF AUSTRALIA 5 October 2012 INTERNATIONAL LITIGATION PARTNERS PTE LTD v CHAMELEON MINING NL (RECEIVERS AND MANAGERS APPOINTED) & ORS [2012] HCA 45 Today the High Court unanimously allowed an appeal from the Court of Appeal of the Supreme Court of New South Wales. The Court held that International Litigation Partners Pte Ltd ("ILP") was entitled to an early termination fee under a litigation funding agreement ("the Funding Deed") with Chameleon Mining NL ("Chameleon"). ILP agreed to fund Chameleon's litigation against another company in return for a share of the proceeds of that litigation. The Funding Deed allowed ILP to terminate this arrangement, and entitled it to an early termination fee, if there was a "change in control" of Chameleon. A change in control did take place, and ILP terminated the arrangement and claimed the early termination fee. Chameleon refused to pay, arguing that ILP was not entitled to the fee because ILP did not hold an Australian financial services licence under Pt 7.6 of the Corporations Act 2001 (Cth) ("the Corporations Act"). The High Court held that ILP was entitled to the early termination fee. The Funding Deed was a form of financial accommodation in that ILP agreed to pay Chameleon's legal costs when asked to do so in return for a share of any amount recovered in Chameleon's litigation. The Funding Deed was therefore a credit facility within the meaning of the Corporations Act, and ILP was exempt from the requirement to hold an Australian financial services licence.
+HIGH COURT OF AUSTRALIA 15 May 2019 RUDY FRUGTNIET v AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION [2019] HCA 16 Today the High Court unanimously allowed an appeal from a decision of the Full Court of the Federal Court of Australia. The High Court held that the Administrative Appeals Tribunal ("the AAT"), on review of a decision by the Australian Securities and Investments Commission ("ASIC") to impose a banning order, is prohibited from taking into consideration a spent conviction within the meaning of Pt VIIC of the Crimes Act 1914 (Cth) which ASIC was prohibited from taking into account in making the decision to impose the banning order. In 1978 and 1997, the appellant was found guilty of offences which at all relevant times constituted spent convictions within the meaning of Pt VIIC of the Crimes Act. In 2014, a delegate of ASIC made a banning order against the appellant under s 80(1) of the National Consumer Credit Protection Act 2009 (Cth) ("the Credit Protection Act") on the basis that ASIC had reason to believe that the appellant was not a fit and proper person to engage in credit activities. On a review of the delegate's decision, the AAT took into consideration the appellant's spent convictions. The appellant appealed to the Federal Court on grounds including that the AAT had erred in law in taking the spent convictions into consideration. Division 3 of Pt VIIC of the Crimes Act has the relevant effect that a person whose conviction is spent is not required to disclose to any Commonwealth authority the fact that the person was charged with or convicted of the offence, and that a Commonwealth authority is prohibited from taking account of the fact that the person was charged with or convicted of the offence. Although a Commonwealth authority includes both the AAT and ASIC, s 85ZZH(c) of the Crimes Act provides that Div 3 does not apply in relation to the disclosure of information to, or the taking into account of information by, a tribunal established under a Commonwealth law. Dismissing an appeal from the judgment of the Federal Court at first instance, the Full Court of the Federal Court held that s 85ZZH(c) of the Crimes Act entitled the AAT to take into consideration material which ASIC was prevented from taking into consideration by Div 3 of Pt VIIC. By grant of special leave, the appellant appealed to the High Court. The High Court held that the jurisdiction of the AAT on a review of a decision made by ASIC under s 80 of the Credit Protection Act is unaffected by s 85ZZH(c) of the Crimes Act. Except where altered by statute, the jurisdiction conferred on the AAT is to stand in the shoes of the decision-maker whose decision is under review so as to determine for itself, on the material before it, the decision which can and should be made in the exercise of the power conferred on the primary decision-maker. The AAT exercises the same power as the primary decision-maker, subject to the same constraints, and a consideration which the primary decision-maker must not take into account must not be taken into account by the AAT.
+HIGH COURT OF AUSTRALIA Public Information Officer 14 November 2007 DIRECTOR OF PUBLIC PROSECUTIONS v PHAN THI LE Only the wife’s interest in an apartment owned by her and her husband, rather than the whole apartment, should have been quarantined from confiscation after being used for criminal purposes by the husband, the High Court of Australia held today. In 2003, Ms Le’s husband, Roy Le, was charged with a number of offences including trafficking in a commercial quantity of heroin. He pleaded guilty in 2005 and was sentenced to four years’ jail with a two-year non-parole period. The Les married in Vietnam in 1997. In 1998 Mr Le bought an apartment in Sunshine in Melbourne and Ms Le has lived there since she came to Australia in 1999. Two months after being charged, Mr Le transferred the apartment into their joint names, with the consideration for the transfer expressed as “natural love and affection”. Ms Le was concerned that if anything happened to Mr Le his children from a former marriage would get the apartment and she would have nowhere to live. After Mr Le was charged, the DPP obtained from the Victorian County Court a restraining order under Victoria’s Confiscation Act over the property. The apartment was “tainted property” because Mr Le had used it to store and prepare heroin for sale. It was automatically forfeited to the State 60 days after his conviction. Ms Le later sought an order under section 52 of the Act excluding the property from forfeiture. Judge Stuart Campbell said that the transfer appeared to be no more than a recognition of Ms Le’s matrimonial rights. He and the majority of the Court of Appeal held that an order under section 52 excluded all of the property in which Ms Le claimed an interest, and not merely her interest in the property. The Court of Appeal unanimously agreed with Judge Campbell that “natural love and affection” in the circumstances of the case constituted “sufficient consideration” under section 52 for acquiring an interest in property and that Ms Le lacked a reasonable suspicion that the apartment was “tainted property”. The DPP had sought to have the exclusion order apply only to Ms Le’s interest as a joint tenant. The DPP appealed to the High Court. Three judges of the Court allowed the appeal in part. Two judges would have allowed it entirely. The majority allowed the appeal on the ground that the exclusion order should have applied only to Ms Le’s interest rather than to the whole property. It upheld the Court of Appeal’s findings that “sufficient consideration” encompassed “natural love and affection” and that Ms Le had not held a reasonable suspicion that the apartment had become “tainted property” through criminal activity there. The minority held that the original restraining order had applied to the whole property, but held that “natural love and affection” did not amount to “sufficient consideration” under section 52. The DPP had undertaken to pay Ms Le’s costs whatever the outcome.
+HIGH COURT OF AUSTRALIA 13 October 2009 SYDNEY WATER CORPORATION v MARIA TURANO & ANOR [2009] HCA 42 When the Sydney Water Corporation (then known as the Metropolitan Water Sewerage and Drainage Board) laid a water main in 1981 which ultimately affected the root system of a tree on the side of a road near where the water main was laid, it could not reasonably be expected to have foreseen a risk that the tree might fall on users of the road in 2001, the High Court held today. Manager, Public Information On 18 November 2001 Maria Turano’s husband, Napoleone, died after a eucalyptus tree fell on his car while he was driving along Edmondson Ave, near Liverpool in New South Wales. Mrs Turano and her two children were also in the car and were injured. Mrs Turano issued proceedings in the New South Wales District Court, claiming from City of Liverpool Council and Sydney Water Corporation damages for her injuries, on behalf of her children for their injuries, and for the death of her husband. In the District Court Mrs Turano was successful against Liverpool Council but failed to establish Sydney Water’s liability. The Court of Appeal of the Supreme Court of New South Wales upheld both Liverpool Council’s appeal and Mrs Turano’s appeal against Sydney Water, determining that Sydney Water owed Mrs Turano a duty of care which it had breached. Sydney Water sought and was granted special leave to appeal. In the 1960s a culvert was built under Edmondson Ave, Austral, a semi-rural area near Liverpool. Water drained from the culvert into an outlet pit and from there into pasture land lying beyond the pit. The tree which killed Mr Turano stood about four metres from the outlet of the culvert on the western shoulder of Edmondson Ave. In about 1981 Sydney Water laid a water main under the western shoulder of Edmondson Ave, which cut across the culvert’s outlet pit. The way in which it was laid caused it to obstruct the free flow of water from the culvert. The water main was laid on a bed of sand 300mm deep, which was much more permeable than the clay of the outlet pit. Water periodically collected in the outlet pit and drained along the sand bed in which the water main was laid. Excess water probably travelled along the sand bed to reach the roots of the tree in question. This intermittent water-logging of the tree’s root system had facilitated the infection of the root system with the phytophthera pathogen. The tree fell in a wind storm. The infection of its root system was an underlying cause of that fall. The Court of Appeal concluded that Sydney Water had a duty to install the water main in such a way that the integrity of the culvert drainage system was not compromised. The Court of Appeal found Sydney Water had breached that duty in two ways – it had laid the water main so that it caused periodic damming of the drain; and, by laying the water main in sand, it had caused the dammed water to drain towards the tree roots, thus undermining the root system. The High Court found that the Court of Appeal had wrongly imposed a strict duty on Sydney Water requiring that it preserve the existing drainage in the vicinity of its water main as distinct from a duty to take reasonable care to avoid foreseeable injury to road users. In the view of the High Court, the laying of the water main had not created an immediate risk of harm to road users. In considering whether Sydney Water owed a duty of care to Mrs Turano it was relevant to consider the interval between the installation of the water main and the accident. A related factor was that in the intervening 20 years the tree was growing on land owned by Liverpool Council and the risk of its failure was one over which the Council and not Sydney Water had control. The Court found that the trial judge had been correct to conclude that Sydney Water did not in the circumstances owe a duty of care to Mrs Turano. It reinstated the trial judge’s verdict in Sydney Water’s favour.
+HIGH COURT OF AUSTRALIA Public Information Officer 11 June 2008 CTM v THE QUEEN Honest and reasonable mistake of fact about the age of a girl was a potential ground of exculpation in a charge of sexual assault of a girl under 16, the High Court of Australia held today. The Court also held that CTM had not discharged the evidential burden of raising that ground at his trial. In October 2004, in Coffs Harbour, the complainant had been out drinking with two friends and they ended up at CTM’s flat where he was also drinking with four other males. The girl fell asleep and was taken to a bedroom and her friends left. CTM, a co-accused and another male whom the girl could not positively identify, allegedly sexually assaulted her. CTM and the girl had become friends that year through attending the same high school. CTM was aged 17 and in year 11. He told police he thought the girl was in year 10 and that she had told him some time before that she was 16, but she was 15 and in year nine. He also denied having sex with the girl. CTM was charged with sexual intercourse with the girl, knowing she was not consenting. In the NSW District Court, he was acquitted of this charge, but was found guilty of the alternative charge of sexual intercourse with a person aged between 14 and 16, contrary to section 66C(3) of the NSW Crimes Act, which carries a penalty of 10 years’ imprisonment. He was given a suspended 18- month sentence. Before the Act was amended in 2003 it provided a defence to heterosexual acts with under-age people if the offender reasonably believed that the child to whom the charge related was aged at least 16, and provided that the child was at least 14 and had consented to the sexual activity. After the 2003 amendments, the Act said nothing expressly about mistake as to age. CTM appealed to the Court of Criminal Appeal against both his conviction and his sentence. The CCA upheld the conviction but held that the District Court had made errors in sentencing and remitted the case to the District Court. CTM appealed to the High Court in relation to his conviction. The Court, by a 6-1 majority, dismissed the appeal. The majority held that the ground of exculpation applied, but that in the circumstances of the trial CTM could not rely on it. The Court held that the NSW Parliament had not excluded the principle of criminal responsibility that a person who does an act under an honest and reasonable, but mistaken, belief was not criminally responsible to any greater extent than if their belief had been correct. An honest and reasonable belief that the girl was aged 16 was an answer to a charge under section 66C(3). The evidential onus of raising such a ground of exculpation for consideration lay with the accused. If it were raised the prosecution then had the onus of proving beyond reasonable doubt that the accused did not honestly believe on reasonable grounds that the other person was consenting and was at least 16. In CTM’s case, he did not give evidence at his trial and it was not put to the girl in cross- examination that she had said anything to CTM about her age.
+HIGH COURT OF AUSTRALIA 6 December 2005 LINDSAY GORDON PARK AND JILL PARK v CLIVE ROY BROTHERS The High Court of Australia today upheld an appeal from the New South Wales Court of Appeal relating to the amount of damages awarded for breach of a contract for the sale of rural land. On 12 September 2000, the Parks agreed to buy Mr Brothers’ property, “Jellalabad”, 40km west of Hay in southern NSW, for $3.35 million. The property had extensive areas suited to irrigation and rice growing. Mr Park had grown both wheat and rice and was keen to expand the farm’s potential for rice production. The contract provided for the purchasers to take possession immediately, subject to certain contractual requirements. Settlement was due on 7 December 2000 but the Parks arranged to move on to Jellalabad immediately to plant a rice crop for the 2000-01 season. The settlement date would have allowed Mr Park to develop another 860 hectares in time for the 2001-02 season, work which have taken about five months. Mr Brothers was aware of these plans. Special condition 24 in the contract included that the Parks could enter the property before settlement and work up ground for crops in locations first approved by Mr Brothers. Various disputes arose between Mr Brothers and the Parks, particularly over a $150,000 bill for water connection, and Mr Brothers ordered them off the property. Mr Brothers purported to rescind the contract. The Supreme Court later held that such rescission was invalid. Settlement finally took place on 24 March 2001. The Parks later sought damages, claiming loss of profit from a reduced yield from the 2000-01 crop due to their inability to oversee it, and loss of profits due to their inability to undertake landform works in time to plant the extra 860 hectares for 2001-02. The landform works had to be done before the arrival of winter rains, but the eventual settlement in March 2001 meant it was too late to undertake such work that year. In 2003 the NSW Supreme Court awarded damages of $1,512,052. Mr Brothers appealed to the NSW Court of Appeal, which upheld a ground relating to the Parks’ claim of loss of profit for 2001-02, and reduced the award to $464,641. The issue, raised for the first time on appeal, was that the Parks had not established that the 2001-02 losses were caused by Mr Brothers breaching special condition 24 because without prior approval from him there was no entitlement to access the 860 hectares before the March 2001 settlement. The Parks appealed to the High Court. The Court unanimously allowed the appeal. It held that no question of approval actually arose as Mr Brothers had excluded the Parks from Jellalabad in mid-December 2000 and purported to rescind the contract. The Court held that the evidence and arguments at trial had not raised for consideration the possibility that, acting reasonably, Mr Brothers may have refused such approval. The Court noted there was nothing to show that Mr Brothers would wish to withhold approval when development would improve the value of the land and cause him no harm or inconvenience. However, in light of Mr Brothers’ stance rescinding the contract, to then seek approval for the 860 hectares was futile. The claim was for damages for breach of special condition 24 by totally refusing access. If evidence had been directed to the point, damages could have reflected the possibility, if any, that approval of the 860 hectares could be withheld. The High Court held that the Court of Appeal should not have allowed the issue to be raised on appeal because by then it could not be dealt with fairly.
+HIGH COURT OF AUSTRALIA 12 December 2007 Public Information Officer AUSTRALIAN FINANCE DIRECT LIMITED v DIRECTOR OF CONSUMER AFFAIRS VICTORIA A credit provider’s failure to disclose to borrowers information concerning “holdbacks” contravened credit disclosure laws, the High Court of Australia held today. Australian Finance Direct (AFD) is a credit provider within the meaning of the Consumer Credit (Victoria) Code and offered loans to people wishing to attend financial seminars provided by National Investment Institute Pty Ltd (NII) and two related companies, Capital Holdings Group (NSW) Pty Ltd and Capital Holdings Group (Vic) Pty Ltd. When people wishing to attend the seminars required funding from AFD, they would sign the seminar enrolment form and credit contract documentation. The amount of the loan from AFD was the seminar fee charged by NII or Capital. In a typical credit contract, NII’s seminar fee was $15,340, plus interest of $4,781.12, totalling $20,121.12, repayable in 48 monthly instalments of $419.19. However, the Director of Consumer Affairs alleged that the amount payable by AFD to NII was not $15,340, but a lesser figure after a “holdback” was retained by AFD. The holdback was not disclosed to the borrower and the statement of the amount paid to NII was incorrect. The standard holdback was typically 10 per cent of the loan amount. Where customers did not meet the normal credit criteria, a further 40 per cent high-risk holdback was retained by AFD. Where there was only a standard holdback, NII would receive $13,806 of the $15,340 seminar fee from AFD. If there was also a high-risk holdback, NII would receive half, $7,670. The Director of Consumer Affairs brought proceedings against AFD, alleging that it had breached section 15(B) of the Code. An object of section 15(B)(a) is to ensure that, where the provision of credit takes the form of payment by the credit provider to a supplier of goods or services to the debtor, the debtor is fully informed of the amount of the deferred debt, the details of the person or persons to whom the credit provider is to pay the advance, and the amounts payable to each person. The Victorian Civil and Administrative Tribunal, the Supreme Court and the Court of Appeal, by majority, held that AFD had contravened disclosure requirements in section 15(B). AFD appealed to the High Court. The Court unanimously dismissed the appeal and held that the credit contracts did not comply with section 15(B) of the Code. It held that the holdbacks should have been disclosed. Section 15(B) required disclosure of the persons, bodies or agents, including the credit provider, to whom the credit was to be paid and the amounts payable to each of them. AFD argued that section 15(B) was concerned only with the credit contract, and the contract between AFD and NII relating to holdbacks was irrelevant. The Director of Consumer Affairs submitted that the term “amounts payable” was not confined to the obligations of AFD and borrowers under the credit contract to the exclusion of other contractual arrangements between AFD and NII. The Court held that the statement that $15,340 was to be paid to NII was incorrect. The holdback was not irrelevant to the requirements of section 15(B), which had not been met.
+HIGH COURT OF AUSTRALIA 21 December 2016 RP v THE QUEEN [2016] HCA 53 Today the High Court allowed an appeal from the Court of Criminal Appeal of the Supreme Court of New South Wales. The High Court held that the Court of Criminal Appeal erred in finding that the appellant's convictions were not unreasonable in circumstances where there was insufficient evidence to rebut the presumption that he, as a child of 11, did not know his behaviour was seriously wrong in a moral sense. Relevantly, the appellant was convicted, after a trial by judge alone, of two counts of sexual intercourse with a child under 10 years. The complainant was the appellant's half-brother. At the time of the offending, the appellant was aged approximately 11 years and six months and the complainant was aged six years and nine months. A child under 14 years is presumed to lack the capacity to be criminally responsible for his or her acts. The only issue at trial was whether the prosecution had rebutted the presumption in the case of the appellant by proving that the appellant knew that his actions were seriously wrong in a moral sense. The first offence took place in circumstances where: there were no adults in the house; the appellant grabbed the complainant and held him down; the complainant was crying and protesting; the appellant put his hand over the complainant's mouth; and the appellant stopped the intercourse when he heard an adult returning to the house and told the complainant not to say anything. The second offence took place a few weeks later, in circumstances where: the appellant and complainant were again without adult supervision; the appellant took hold of the complainant; and the appellant stopped intercourse when he heard an adult returning. There was also evidence that, when the appellant was aged 17 and 18 years old, he was twice assessed as being in the borderline disabled range of intellectual functioning and was found by the trial judge to be of "very low intelligence". The trial judge held that the circumstances surrounding the first offence proved beyond reasonable doubt that the presumption was rebutted in relation to that offence. His Honour found that it logically followed that the presumption was rebutted in relation to the second offence. The Court of Criminal Appeal dismissed the appellant's appeal against his two convictions. The Court unanimously held that the presumption was rebutted in relation to the first offence. A majority of the Court held that it was also rebutted in relation to the second offence, finding that the appellant's understanding of the wrongness of his actions in the second offence was informed by the finding that he knew his actions in the first offence were seriously wrong. By grant of special leave, the appellant appealed to the High Court. The plurality of the Court found that in the absence of evidence of the environment in which the appellant had been raised or from which any conclusion could be drawn as to his moral development, it was not open to conclude that the appellant, with his intellectual limitations, was proved beyond reasonable doubt to have understood that his conduct was seriously wrong in a moral sense. The Court ordered that his convictions be quashed and entered verdicts of acquittal.
+HIGH COURT OF AUSTRALIA 27 October 2017 IN THE MATTERS OF QUESTIONS REFERRED TO THE COURT OF DISPUTED RETURNS PURSUANT TO SECTION 376 OF THE COMMONWEALTH ELECTORAL ACT 1918 (CTH) CONCERNING SENATOR THE HON MATTHEW CANAVAN, MR SCOTT LUDLAM, MS LARISSA WATERS, SENATOR MALCOLM ROBERTS, THE HON BARNABY JOYCE MP, SENATOR THE HON FIONA NASH AND SENATOR NICK XENOPHON [2017] HCA 45 Today the High Court, sitting as the Court of Disputed Returns upon references from the Senate and the House of Representatives, unanimously held that each of Mr Scott Ludlam, Ms Larissa Waters, Senator Malcolm Roberts, the Hon Barnaby Joyce MP and Senator the Hon Fiona Nash was "a subject or a citizen … of a foreign power" at the time of his or her nomination for the 2016 federal election, and that each was therefore incapable of being chosen or of sitting as a senator or a member of the House of Representatives (as applicable) by reason of s 44(i) of the Constitution. The Court unanimously held that neither Senator the Hon Matthew Canavan nor Senator Nick Xenophon was disqualified by reason of that provision. In each reference, the question whether the referred person was disqualified turned upon the proper construction of s 44(i) of the Constitution, having regard to evidence suggesting that each person held dual citizenship at the time of his or her nomination. The Court appointed an amicus curiae to act as contradictor in the references concerning Senators Canavan, Nash and Xenophon, and Mr Antony Windsor became a party to the reference concerning Mr Joyce MP. The approach to construction urged by the amicus curiae and by Mr Windsor was to give s 44(i) its ordinary textual meaning, subject only to the implicit qualification in s 44(i) that the foreign law conferring foreign citizenship must be consistent with the constitutional imperative underlying that provision, namely that an Australian citizen not be prevented from participation in representative government where it can be demonstrated that he or she took all steps reasonably required by foreign law to renounce his or her citizenship of a foreign power. Several alternative constructions were proposed by the referred persons and by the Attorney-General of the Commonwealth. At a minimum, each of these involved reading s 44(i) as subject to an implied mental element in relation to the acquisition or retention of foreign citizenship. Those constructions varied with respect to the degree of knowledge required and whether a voluntary act of acquiring or retaining foreign citizenship was necessary. The Court held that the approach of the amicus and Mr Windsor must be accepted, as it adheres most closely to the ordinary and natural meaning of the language of s 44(i), and accords with the views of a majority of the Justices in Sykes v Cleary (1992) 176 CLR 77; [1992] HCA 60. It was held that a consideration of the drafting history of s 44(i) does not warrant a different conclusion. Further, the Court observed that the approach adopted avoids the uncertainty and instability that attends the competing constructions. Applying that approach, the Court held that Mr Ludlam, Ms Waters, Senator Roberts, Mr Joyce MP and Senator Nash were disqualified by reason of s 44(i). Neither Senator Canavan nor Senator Xenophon was found to be a citizen of a foreign power, or entitled to the rights or privileges of a citizen of a foreign power, within the meaning of s 44(i), and therefore neither was disqualified by reason of that provision.
+HIGH COURT OF AUSTRALIA 19 June 2013 JOAN MONICA MALONEY v THE QUEEN [2013] HCA 28 Today the High Court unanimously dismissed an appeal from a decision of the Court of Appeal of the Supreme Court of Queensland which held that a law restricting possession of alcohol on Palm Island was not invalid by reason of inconsistency with s 10 of the Racial Discrimination Act 1975 (Cth). The appellant, an Indigenous resident of Palm Island in Queensland, was convicted in the Magistrates Court in Townsville of the offence of being in possession of more than a prescribed quantity of liquor in a restricted area on Palm Island contrary to s 168B of the Liquor Act 1992 (Q). Schedule 1R of the Liquor Regulation, made under the Act, has the effect of restricting the nature and quantity of liquor which people may have in their possession in public areas on Palm Island. The Palm Island community is composed almost entirely of Indigenous people. The appellant's appeal against her conviction to the District Court of Queensland was dismissed. Her application for leave to appeal to the Court of Appeal was also dismissed. By special leave, she appealed to the High Court. By force of s 10 of the Racial Discrimination Act, where a law has the effect that persons of a particular race enjoy a right to a more limited extent than persons of another race, the persons adversely affected shall enjoy that right to the same extent as the persons of that other race. However s 10 does not apply if the law is a "special measure" taken for the sole purpose of securing the adequate advancement of a racial group requiring such protection as may be necessary to ensure that group's equal enjoyment or exercise of human rights and fundamental freedoms. In the High Court, the appellant argued that s 10 of the Racial Discrimination Act applied to the provisions of Sched 1R of the Liquor Regulation because those provisions affected her enjoyment of three rights: the right to equal treatment before courts and tribunals; the right to own property; and the right to access places and services intended for use by the general public. She also argued that Sched 1R was not a "special measure" within the meaning of s 8 of the Racial Discrimination Act. The High Court found, by majority, that the impugned provisions were inconsistent with s 10 of the Racial Discrimination Act. However, the Court was unanimously of the view that s 10 did not apply because the provisions constituted a "special measure" designed to protect the residents of Palm Island from the effects of prevalent alcohol abuse and associated violence. Accordingly, the Court held that Sched 1R was valid and dismissed the appeal.
+HIGH COURT OF AUSTRALIA Public Information Officer 5 February, 2003 ROBERT PETER AUSTIN AND KATHRYN ELIZABETH KINGS v THE COMMONWEALTH OF AUSTRALIA The High Court held invalid Commonwealth legislation imposing a superannuation contributions surcharge on state judges, holding by majority that it placed an unconstitutional burden or disability on the operations or activities of states and was beyond power. Justice Austin is a New South Wales Supreme Court judge and Master Kings is a member of the Victorian Supreme Court. They argued the surcharge did not apply to their pension entitlements, but if it did apply it was invalid. Their argument that the surcharge was invalid was supported by the states of NSW, Victoria, South Australia and Western Australia which intervened. The High Court held unanimously that the legislation applied to Justice Austin but by majority held that in its application it was invalid. The Court unanimously held that Master Kings was not liable to pay the surcharge because she was appointed before the surcharge took effect in 1997. It did not apply to serving judges, and the Court held that she was, within the meaning of the legislation, a judge.
+HIGH COURT OF AUSTRALIA 14 October 2015 MOUNT BRUCE MINING PTY LIMITED v WRIGHT PROSPECTING PTY LIMITED & ANOR WRIGHT PROSPECTING PTY LIMITED v MOUNT BRUCE MINING PTY LIMITED & ANOR [2015] HCA 37 Today the High Court unanimously dismissed an appeal from the Court of Appeal of the Supreme Court of New South Wales ("NSWCA") in Mount Bruce Mining Pty Limited v Wright Prospecting Pty Limited and unanimously allowed an appeal from the NSWCA in Wright Prospecting Pty Limited v Mount Bruce Mining Pty Limited. The High Court held that Mount Bruce Mining Pty Limited ("MBM") is liable to pay royalties to Wright Prospecting Pty Limited and Hancock Prospecting Pty Limited (together, "Hanwright") in respect of iron ore mined in two areas of the Pilbara region of Western Australia known as "Eastern Range" and "Channar". Hanwright, MBM and Hamersley Iron Pty Limited entered into an agreement dated 5 May 1970, which, among other things, concerned the payment of royalties by MBM in relation to iron ore mined from areas of land the subject of the agreement ("the 1970 Agreement"). Pursuant to cl 2.2 of the 1970 Agreement, MBM acquired from Hanwright the "entire rights" to the "MBM area", a term defined by reference to certain "temporary reserves" granted under the Mining Act 1904 (WA). Under cl 3.1 of the 1970 Agreement, royalties were payable to Hanwright on "[o]re won by MBM from the MBM area". The obligation to pay royalties extended to "all persons or corporations deriving title through or under" MBM to the "MBM area". MBM claimed that the term "MBM area" did not refer to an area of land to which rights of occupancy had been transferred to MBM; rather, it referred to the rights themselves. The consequence of this construction would be that Eastern Range and Channar did not fall within the "MBM area" and royalties would not be payable on iron ore extracted therefrom. If MBM’s construction of the term "MBM area" was incorrect, MBM claimed that royalties were, in any event, not payable in respect of iron ore extracted from a part of Channar (referred to as "Channar A") because such ore was not extracted by entities "deriving title through or under" MBM. The Supreme Court of New South Wales rejected MBM’s claims and held that royalties were payable in respect of iron ore extracted from both Eastern Range and Channar. On appeal, the NSWCA held that royalties were payable in respect of Eastern Range but not Channar A. By grant of special leave, each of the parties appealed to the High Court. The High Court held that the term "MBM area" referred to the physical area of land that had been transferred to MBM and was not limited to the rights under the tenements that affected that land at the time of the 1970 Agreement. The Court further held that iron ore was being won from Channar A by entities "deriving title through or under" MBM. The exploitation of Channar A was carried on under a title the derivation of which was facilitated by the deployment by MBM of its own title.
+HIGH COURT OF AUSTRALIA 14 April 2016 IMM v THE QUEEN [2016] HCA 14 Today the High Court unanimously allowed an appeal from a decision of the Court of Criminal Appeal of the Northern Territory. The Court held, by majority, that in determining the probative value of evidence for the purposes of ss 97(1)(b) and 137 of the Evidence (National Uniform Legislation) Act (NT) ("the Evidence Act"), a trial judge should assume that the jury will accept the evidence and, thus, should not have regard to the credibility or the reliability of the evidence. The appellant was convicted by a jury in the Supreme Court of the Northern Territory of two counts of indecent dealing with a child and one count of sexual intercourse with a child under the age of 16 years. The complainant was the appellant's step-granddaughter. The prosecution was permitted to adduce "tendency evidence", given by the complainant, that while the complainant and another girl were giving the appellant a back massage, the appellant ran his hand up the complainant's leg. Section 97(1)(b) of the Evidence Act provides that evidence that has "significant probative value" be excepted from the "tendency rule", which would otherwise render the evidence inadmissible. The prosecution was also permitted to adduce "complaint evidence", which was evidence of complaints made by the complainant to other persons concerning the appellant's conduct. The trial judge refused to exclude the complaint evidence under s 137 of the Evidence Act, which provides that evidence must be excluded where its probative value is outweighed by the danger of unfair prejudice to the defendant. The trial judge approached the task of assessing the probative value of both the tendency evidence and the complaint evidence on the assumption that the jury would accept the evidence. The appellant appealed against his conviction to the Court of Criminal Appeal contending, relevantly, that the trial judge erred in admitting the tendency evidence and the complaint evidence. The Court of Criminal Appeal unanimously dismissed the appeal. By grant of special leave, the appellant appealed to the High Court. The High Court held, by majority, that, in determining the "probative value" of evidence under the Evidence Act, a trial judge must proceed on the assumption that the jury will accept the evidence, and as such it follows that no question as to credibility or reliability of the evidence can arise. The High Court held, by majority, that the probative value of the complaint evidence was potentially significant. Further, the evidence did not create the prejudice to which s 137 of the Evidence Act referred, and as such the evidence was admissible. However the Court also held, by majority, that evidence from a complainant adduced to show an accused's sexual interest can generally have limited, if any, probative value. Accordingly, the tendency evidence was not admissible under s 97(1)(b). It followed that the trial miscarried. The Court set aside the order of the Court of Criminal Appeal and ordered that the appeal be allowed, that the appellant's conviction be quashed and that there be a new trial of the offences of which the appellant was convicted.
+HIGH COURT OF AUSTRALIA 9 December 2015 COMMONWEALTH OF AUSTRALIA v DIRECTOR, FAIR WORK BUILDING INDUSTRY INSPECTORATE & ORS CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION & ANOR v DIRECTOR, FAIR WORK BUILDING INDUSTRY INSPECTORATE & ANOR [2015] HCA 46 Today the High Court unanimously held that, in civil penalty proceedings, courts are not precluded from considering and, if appropriate, imposing penalties that are agreed between the parties. The Court therefore allowed two appeals from a decision of the Full Court of the Federal Court of Australia ("the Full Court"). The Director of the Fair Work Building Industry Inspectorate ("the Director") commenced a proceeding in the Federal Court of Australia against the Construction, Forestry, Mining and Energy Union ("the CFMEU") and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia ("the CEPU") (together, "the Unions"). The Director alleged that the Unions had contravened s 38 of the Building and Construction Industry Improvement Act 2005 (Cth), a civil penalty provision which prohibited unlawful industrial action. The Unions admitted the contraventions and, in accordance with longstanding practice in civil penalty proceedings, agreed with the Director to seek from the Court declarations as to the contraventions and pecuniary penalties of $105,000 against the CFMEU and $45,000 against the CEPU. At a pre-trial directions hearing, the primary judge raised a concern about whether the decision of the High Court in Barbaro v The Queen (2014) 253 CLR 58 applied to the proceedings. In Barbaro, a plurality of the High Court held that criminal prosecutors are not permitted to make a submission to a sentencing judge nominating a quantified range of sentences that the prosecution considers to be open. The proceeding was referred to the Full Court. The Commonwealth was granted leave to intervene. The Full Court held that the principle in Barbaro applies to civil penalty proceedings, with the result that it was impermissible for parties to make joint submissions to a court seeking the imposition of an agreed penalty. The Full Court adjourned the proceeding for further hearing. By grants of special leave, the Commonwealth and the Unions each appealed to the High Court. The Court unanimously held that the principle in Barbaro does not apply to civil penalty proceedings. The task of a court is to determine whether, in all the circumstances, the agreed penalty is an appropriate penalty. The court is not bound to accept the agreed penalty if it does not consider it appropriate. The High Court set aside the Full Court's adjournment order and remitted the proceedings to the Federal Court.
+HIGH COURT OF AUSTRALIA Manager, Public Information 29 April 2009 CONSTANTINE KERAMIANAKIS v REGIONAL PUBLISHERS PTY LTD Today the High Court allowed Dr Keramianakis’ appeal against a decision of the NSW Court of Appeal that it had no jurisdiction to consider his appeal against a verdict entered by a District Court judge in favour of Regional Publishers Pty Ltd. Regional Publishers Pty Ltd publishes the Daily Liberal, a newspaper which circulates in Dubbo. In March 2001 the newspaper published an article about a skin cancer clinic operating under the name “Dubbo Skin Cancer Centre” which included comments critical of the services offered at the clinic and of its fees. Dr Keramianakis and a colleague had established and were running the clinic. They sued Regional Publishers for defamation in the District Court of NSW. Under section 7A of the Defamation Act 1974 (NSW) (the relevant law at the time these events occurred), if the court determined that a publication was reasonably capable of carrying the imputation pleaded by a complainant and that the imputation was reasonably capable of bearing a defamatory meaning, then a jury had to determine whether in fact the publication did carry the imputation pleaded by the complainant and whether the imputation was defamatory. The trial judge determined that the comments published in the Daily Liberal were reasonably capable of carrying the imputations pleaded by Dr Keramianakis and that the imputations were reasonably capable of bearing a defamatory meaning. He asked the jury to determine whether the comments in fact carried the imputations Dr Keramianakis alleged they carried. In each case the jury answered, “No”. Those answers were fatal to Dr Keramianakis’ case. On the basis of the jury’s answers the trial judge entered a verdict in favour of Regional Publishers Pty Ltd and ordered Dr Keramianakis to pay Regional Publishers’ costs. Dr Keramianakis appealed to the NSW Court of Appeal. The majority of that Court considered that the District Court Act allowed an aggrieved party to appeal against a judgment or order of a judge following a jury trial. However, it held that a verdict, even when entered by the judge, did not fall within the description of a “judgment or order”. In the case of a District Court civil jury trial, an aggrieved party could only challenge a jury verdict by making an application for a new trial before the judgment against that party had been entered. The majority of the Court of Appeal determined that it did not have the power to hear Dr Keramianakis’ appeal. The Court of Appeal did say that had it had the power to hear the appeal, it would have found in favour of Dr Keramianakis in relation to two of the three imputations the jury was asked to consider, and it would have entered a verdict for Dr Keramianakis in relation to the complaint of defamation contained in those two imputations. The High Court granted Dr Keramianakis special leave to appeal against the decision of the Court of Appeal and today, in a unanimous decision, held that Dr Keramaniakis had a right to appeal against the orders made by the trial judge in favour of Regional Publishers. This right was not affected by the existence of the procedure which would have allowed him to challenge the jury’s answers by seeking a new trial prior to the verdict being entered. The Court set aside the orders of the NSW Court of Appeal and ordered that there should be a new trial to determine whether the Dubbo Liberal carried the two imputations alleged by Dr Keramianakis, and if it did, whether the imputations were defamatory.
+HIGH COURT OF AUSTRALIA 27 June 2013 GEORGE ELIAS v THE QUEEN & ANOR CHAFIC ISSA v THE QUEEN & ANOR [2013] HCA 31 Today the High Court unanimously dismissed an appeal by two men from a decision of the Court of Appeal of the Supreme Court of Victoria which had rejected their appeals against the severity of the sentences imposed for their respective convictions for attempting to pervert the course of justice. The appellants each pleaded guilty before the Supreme Court of Victoria to offences which included a count of attempting to pervert the course of justice, which, under Victorian law, carries a maximum penalty of imprisonment for 25 years. The appellants were each sentenced to eight years' imprisonment for that offence. The conduct constituting the attempted perversion of justice consisted of acts of assistance given to a fugitive, Antonios (Tony) Mokbel, who had been convicted and sentenced for a Commonwealth offence. The appellants appealed to the Court of Appeal against the severity of their sentences. They submitted that the sentencing judge was wrong not to take into account, as a factor in mitigation of their sentences, that there was a Commonwealth offence of attempting to pervert the course of justice which carried a lesser maximum penalty of five years' imprisonment. The Court of Appeal rejected that argument on the basis that the Sentencing Act 1991 (Vic) does not permit a sentencing judge to have regard to some other maximum penalty prescribed for a Commonwealth offence when sentencing for a Victorian offence. The appellants sought, and were granted, special leave to appeal to the High Court. The High Court unanimously dismissed their appeals. The Court said that there is no common law principle requiring a sentencing judge to take into account as a matter of mitigation that a different offence, for which it was open to prosecute a person, has a lesser maximum penalty. The Court said that the decision of the Court of Appeal of the Supreme Court of Victoria in R v Liang (1995) 124 FLR 350, which held that a sentencing judge must take into account in mitigation of sentence that there is a less punitive offence upon which the prosecution could have proceeded and which is as appropriate to the facts as the charged offence, should not be followed.
+HIGH COURT OF AUSTRALIA 14 September 2012 DIMITRIOS LIKIARDOPOULOS v THE QUEEN [2012] HCA 37 Today the High Court unanimously dismissed an appeal by Dimitrios Likiardopoulos against his conviction for murder. The Court held that there was no abuse of process in prosecuting the appellant as an accessory to murder in circumstances where the Crown had accepted pleas of guilty to lesser offences from five other people involved in the deceased's death, nor had the trial judge erred in leaving the accessorial case to the jury in those circumstances. In March 2007, the appellant and others were involved in a sustained assault on an intellectually handicapped 22 year-old man which lasted about two days. The appellant's involvement in the assault included two "king hits" which dislodged two of the deceased's teeth, as well as punching and kicking the deceased. There was also evidence that the appellant had directed or encouraged the others in the assault. The deceased died as a result of the assault. Seven people, including the appellant, were charged with the deceased's murder. Five of those people pleaded guilty to lesser offences, and the charge against a sixth person was dropped. The appellant was tried for murder in the Supreme Court of Victoria. The prosecution case was advanced on two alternative grounds. The principal case was that the appellant was liable for murder by virtue of his participation in a joint criminal enterprise. The alternative case ("the accessorial case") was that the appellant, knowing that one or more people would assault the deceased intending to do him really serious injury, intentionally assisted or encouraged the commission of the fatal assaults. The appellant appealed against his conviction to the Court of Appeal of the Supreme Court of Victoria on grounds including that the trial judge erred in her directions concerning the accessorial case and in leaving the accessorial case to the jury. The Court of Appeal dismissed the appeal. The appellant was granted special leave to appeal to the High Court on the sole ground that it was an error to leave the accessorial case to the jury. The appellant submitted that in law he could not be an accessory to murder in circumstances in which the Crown had accepted pleas of guilty to lesser offences from each of the persons said to be the principal offenders. On this submission, there was no "murder" to which he could be an accessory. Alternatively, the appellant submitted that it was an abuse of process for the Director of Public Prosecutions to accept pleas of guilty to lesser offences while prosecuting the appellant as an accessory to murder. The High Court dismissed the appeal. The Court unanimously held that the evidence at the trial was capable of proving that one or more of those whom the appellant directed and encouraged to assault the deceased were liable as principals for the murder. There was no inconsistency between the other participants' convictions for manslaughter and the appellant's conviction for murder on the accessorial case because the evidence in each case differed. Further, the acceptance of the pleas of guilty to lesser offences involved an exercise of prosecutorial discretion. The majority held that certain decisions involved in the prosecution process are insusceptible of judicial review. Nothing in the conduct of the proceedings produced unfairness of the kind that would lead a court to intervene to prevent abuse of its process.
+HIGH COURT OF AUSTRALIA Public Information Officer 3 September 2008 DEPUTY COMMISSIONER OF TAXATION v BROADBEACH PROPERTIES PTY LTD DEPUTY COMMISSIONER OF TAXATION v M.A. HOWARD RACING PTY LTD DEPUTY COMMISSIONER OF TAXATION v NEUTRAL BAY PTY LTD The High Court of Australia today upheld statutory demands for tax debts against three related property development companies, holding that pending challenges to their tax assessments were not a proper basis to set aside the demands. The three corporations, controlled by Mark Howard, were involved in construction and sale of residential apartments. Howard Racing and Neutral Bay failed to pay $6,389,785.75 and $8,433,350.79 respectively for goods and services tax (GST), interest and penalties. On 24 April 2006 a Deputy Tax Commissioner issued them with statutory demands for the debts pursuant to section 459E of the Corporations Act. A similar demand was issued to Broadbeach Properties on 17 May 2006 for $1,679,920.24, its liability under a default assessment of income tax for 2003-04 plus interest for late payment. The tax liability of Howard Racing and Neutral Bay included GST for sales of apartments between the companies. Only new homes never before sold attracted GST. Ordinarily a supply within a group registered for GST did not attract GST. Neutral Bay and Neutral Bay Sales were registered as a group for GST purposes and Howard Racing and Broadbeach were registered as another. The representative companies within each group – Neutral Bay and Howard Racing – claimed sales to Neutral Bay Sales and Broadbeach were not taxable because they were within a group. Because the “first sales” had been sales within the group, they then said that subsequent sales of the same properties to the public did not attract GST. After the Commissioner disallowed objections by the three companies against their assessments and GST declarations, they began Administrative Appeals Tribunal review proceedings in accordance with Part IVC of the Taxation Administration Act. Those proceedings are still pending. The companies also applied pursuant to section 459G of the Corporations Act to the Queensland Supreme Court for orders to set aside the statutory demands pursuant to sections 459H and 459J. Section 459H provided for the setting aside of a statutory demand where there is a “genuine dispute” about the existence or amount of a debt to which the demand related. Section 459J provided that a court may set aside a statutory demand if satisfied that substantial injustice would otherwise occur because the demand is defective or there is “some other reason” to set it aside. Justice Philip McMurdo ordered that the statutory demands be set aside. The Court of Appeal dismissed appeals by the Commissioner, holding that there was a genuine dispute in relation to all three debts. It held that, where the tax liability was challenged by the taxpayer in Part IVC proceedings, a court was not obliged to conclude that there was no genuine dispute as to the existence of the debt. The Commissioner then appealed to the High Court, arguing that Part IVC proceedings neither gave rise to a “genuine dispute” as to the existence or amount of a debt, nor were a proper basis for setting aside a statutory demand for “some other reason” under section 459J. The matters are test cases funded by the Commissioner in all three courts. The Commissioner conceded that a court might have regard to the existence of “reasonably arguable” Part IVC proceedings at a later stage of an application to wind up a company. The High Court unanimously allowed the appeals. It held that the Court of Appeal failed to recognise distinctions between the existence of a debt which was due and payable and the issues and outcome of a Part IVC proceeding. The taxation legislation provided for the tax debts to be due and payable and for the Commissioner to proceed with their recovery notwithstanding the pending review proceedings under Part IVC. Use by the Commissioner of the statutory demand procedure to recover the tax debts was a permissible avenue of recovery. The legislation provided that, except in the Part IVC proceedings, production by the Commissioner of notices of assessment and GST declarations conclusively demonstrated that the amounts and particulars in the assessments and declarations were correct. The operation of tax laws creating the debts and providing for their recovery by the Commissioner could not be avoided by an application under section 459G to set aside a statutory demand issued by the Commissioner. The Court further held that the exercise of discretion by Justice McMurdo relating to “some other reason” under section 459J miscarried and the Court of Appeal erred in upholding and supplementing it, because the taxation legislation permitted the recovery of tax debts, notwithstanding the pending Part IVC proceedings.
+HIGH COURT OF AUSTRALIA 10 August 2022 [2022] HCA 25 Today, the High Court allowed an appeal from a decision of the Full Court of the Supreme Court of South Australia sitting as the Court of Criminal Appeal ("Court of Criminal Appeal"). The issue on appeal was whether the majority of the Court of Criminal Appeal correctly applied the test in M v The Queen (1994) 181 CLR 487 ("M") to determine whether the verdict of guilt in respect of the appellant was unreasonable or could not be supported having regard to the evidence. The appellant was tried and convicted of the murder of his wife, by judge alone, in the Supreme Court of South Australia. The prosecution case was that the appellant had deliberately pushed his wife's wheelchair into a pond in the South Parklands in Adelaide with the intention of drowning her. The defence case was that she had drowned as a result of her wheelchair accidentally entering the water whilst the appellant was attempting to manoeuvre it away from the pond. The issue at trial was whether the prosecution could prove that the appellant murdered his wife, thus excluding accidental drowning as a reasonable possibility. At trial, there was little dispute about the primary facts established by the evidence. The critical question was what inferences could be drawn from those primary facts. The trial judge drew a number of inferences adverse to the appellant and concluded that the only rational inference available on the whole of the evidence was that the appellant deliberately pushed the wheelchair into the pond with intent to kill his wife. The trial judge therefore found the prosecution had proved its case beyond reasonable doubt. The majority of the Court of Criminal Appeal dismissed the appeal against conviction on the unreasonableness ground. Placing particular reliance on reasoning in a decision prior to M, the majority reasoned that the inferences drawn, and the weight to be given to those inferences, were primarily matters for the trial judge as the trier of fact. The High Court unanimously found that the majority of the Court of Criminal Appeal had misapplied the test in M. As a consequence of M, prior formulations of principle on the unreasonableness ground must be approached with caution. What each member of the Court of Criminal Appeal needed to do in order to apply the test in M in the circumstances of this case was to ask whether they were independently satisfied, as a result of their own assessment of the whole of the evidence adduced at trial, that the only rational inference available on that evidence was that the appellant deliberately pushed the wheelchair into the pond with intent to kill his wife and, if not, whether the satisfaction arrived at by the trial judge could be attributed to some identified advantage which the trial judge had over the appeal judge in the assessment of the evidence. The matter was remitted to the Court of Appeal of the Supreme Court of South Australia for rehearing.
+HIGH COURT OF AUSTRALIA 16 May 2018 DWN027 v THE REPUBLIC OF NAURU [2018] HCA 20 Today the High Court unanimously dismissed an appeal from a decision of the Supreme Court of Nauru that the Refugee Status Review Tribunal ("the Tribunal") had not erred in dismissing the appellant's claim for complementary protection under the Refugees Convention Act 2012 (Nr) ("the Refugees Act"). The appellant was a Sunni Muslim man of Pashtun ethnicity from Peshawar in Pakistan where he resided with his wife and young child. He arrived in the Republic of Nauru ("Nauru") and applied to the Secretary of the Department of Justice and Border Control of Nauru ("the Secretary") to be recognised as a refugee under the Refugees Act or, alternatively, as a person to whom Nauru owed complementary protection under the Act. He claimed that he had a well-founded fear of being persecuted by the Taliban by reason of his actual or imputed political opinion. The Secretary rejected the application. The Tribunal affirmed the Secretary's decision on the basis that, while there was a real possibility that if the appellant were returned to Peshawar he would be harmed by the Taliban, it would be reasonable in the circumstances for him to relocate to another area in Pakistan. The Supreme Court dismissed an appeal against the Tribunal's decision. The appellant appealed as of right to the High Court, alleging that the Tribunal had erred in determining his claim for complementary protection by reference to his ability reasonably to relocate within Pakistan, and in failing to take into account a number of integers said to be relevant to the question of whether he could reasonably relocate. The appellant further alleged that the Tribunal erred in determining his claim for complementary protection without having regard to Nauru's international obligation under the Convention on the Rights of the Child (1989) ("the CRC") to give primary consideration to the best interests of his child. The High Court held that, having regard to international jurisprudence, unless the feared persecution emanates from or is condoned or tolerated by State actors (which was not an issue in this case), an applicant's ability reasonably to relocate within his or her country of origin, including the ability safely and legally to travel to the place of relocation, is relevant to whether the applicant is in need of complementary protection. It was also held that the Tribunal had not failed to take into account the factors relevant to the appellant's ability reasonably to relocate within Pakistan. Further, the Court held that it was unnecessary to decide whether the Tribunal were bound to give primary consideration to the best interests of the appellant's child under the CRC because the appellant did not contend before the Tribunal that they were bound to decide his claim for complementary protection by reference to the best interests of his child and, consequently, he did not adduce any persuasive evidence that his child's best interests would be adversely affected by the refusal of his claim. The Court therefore dismissed the appeal.
+HIGH COURT OF AUSTRALIA 15 June 2016 [2016] HCA 25 Today the High Court unanimously dismissed an appeal from a decision of the Court of Criminal Appeal of the Supreme Court of New South Wales. The High Court held that the general rule – that the appellate court's assessment of whether some other sentence is warranted in law is made on the material before the sentencing court and any relevant evidence of post-sentence conduct – applied to the appellant's case. However, the Court noted that the general rule does not deny that an appellate court has the flexibility to receive new evidence where it is necessary to do so to avoid a miscarriage of justice. On 17 April 2010, the appellant stabbed the complainant, his former partner, some 28 times in a sustained attack. He pleaded guilty in the District Court of New South Wales to wounding with intent to murder, and detaining the complainant without her consent with intent to obtain a psychological advantage, and immediately before the detaining, occasioning actual bodily harm to her. For the offence of wounding with intent, the appellant was sentenced to 16 years' imprisonment with a non- parole period of 11 years. He was sentenced to a concurrent eight year term of imprisonment for the detaining offence. The appellant appealed to the Court of Criminal Appeal against the severity of the sentences. At the commencement of the hearing in that Court, the appellant produced a folder of additional material on the basis that it would be admissible in the event that the Court came to re-sentence the appellant. The prosecutor did not object to the Court receiving the additional material "on the usual basis". The additional material included a report by Dr Nielssen, a psychiatrist. He opined that the appellant’s intoxication with a hallucinogenic drug, together with an underlying emotional state shaped by violence and sexual abuse in childhood, and a pattern of substance use, significantly contributed to his offending behaviour. Having found error in the trial judge's application of sentencing principle, the Court of Criminal Appeal turned to consider the exercise of its sentencing discretion. The Court declined to take into account Dr Nielssen's opinion concerning factors that may have caused or contributed to the commission of the offences, holding that the sentence hearing had been the occasion to address these matters. By grant of special leave, the appellant appealed to the High Court. The appellant contended that the Court of Criminal Appeal erred in refusing to take into account Dr Nielssen's opinion. The High Court held that Dr Nielssen's opinion was based on a history which seemed to depart from the agreed facts on which the appellant was sentenced, and that his opinion that the appellant was in a psychotic state, or its equivalent, appeared to traverse the appellant's pleas. Their Honours held that nothing in the additional material supported the appellant's submission that the Court of Criminal Appeal’s refusal to permit him to run a different case before it had occasioned a miscarriage of justice.
+HIGH COURT OF AUSTRALIA 28 January 2015 CPCF v MINISTER FOR IMMIGRATION AND BORDER PROTECTION & ANOR [2015] HCA 1 Today the High Court, by majority, held that a claim for damages for false imprisonment arising out of the plaintiff's detention at sea on a Commonwealth vessel should be dismissed. The majority of the Court held that s 72(4) of the Maritime Powers Act 2013 (Cth) authorised a maritime officer to detain the plaintiff for the purpose of taking him from Australia's contiguous zone to a place outside Australia, being India. Section 72(4) states that a maritime officer may detain a person on a detained vessel and take the person, or cause the person to be taken, to a place outside Australia. The plaintiff and 156 other passengers were on board an Indian flagged vessel which left India and was intercepted by an Australian border protection vessel in the Indian Ocean within Australia's contiguous zone. The plaintiff is a Sri Lankan national of Tamil ethnicity, who claims to be a refugee on the basis of having a well-founded fear of persecution in Sri Lanka. He did not have a visa entitling him to enter Australia. The Indian vessel and its passengers were detained by officers of the Commonwealth. After the Indian vessel became unseaworthy, the passengers were transferred to the Australian vessel. The plaintiff was not asked whether he claimed to be a person in respect of whom Australia owed non-refoulement obligations. The Australian vessel sailed to India pursuant to a decision made by the National Security Committee of Cabinet, which included the Minister for Immigration and Border Protection. At this time, there was no agreement with India under which the plaintiff would be permitted to disembark there. After reaching the vicinity of India, the passengers were detained for a further period until the Minister decided that it was not practicable to discharge the plaintiff and his companions in India within a reasonable time and instructed the vessel to sail to the Australian Territory of the Cocos (Keeling) Islands. Upon their arrival, the plaintiff and the other passengers were taken into immigration detention. The plaintiff brought proceedings in the original jurisdiction of the High Court, alleging that his detention on the Australian vessel was unlawful and claiming damages for wrongful imprisonment. A special case stated questions of law for determination by the Full Court. The Court held, by majority, that the detention was lawful under s 72(4) of the Maritime Powers Act and that the power under s 72(4) was not subject to an obligation to afford the plaintiff procedural fairness. The detention was lawful even though the maritime officer detained the plaintiff in implementation of a decision by the Australian Government, and without independent consideration of whether the detention should have taken place. The detention was also lawful even though, prior to the commencement of the taking of the plaintiff to India, no arrangement existed between Australia and India concerning the reception of the plaintiff in India. The majority found it unnecessary to determine whether the detention could have been authorised by the non- statutory executive power of the Commonwealth.
+HIGH COURT OF AUSTRALIA 10 December, 2003 NOEL JEBATHILAKAN ARULTHILAKAN v THE QUEEN CHISEKO MARK MKOKA v THE QUEEN The High Court of Australia, by a 4-1 majority, today dismissed appeals from two men convicted of murder, wounding with intent to grievous bodily harm and attempted armed robbery following a bungled bid to steal a mobile phone. The men were convicted, along with a third man, Carlos Escalante, who pleaded guilty, in the South Australian Supreme Court, and appealed unsuccessfully to the SA Court of Criminal Appeal. They appealed to the High Court only on their murder convictions. Five men in a stolen car driving through Stepney in Adelaide looked for someone to rob of a mobile phone. When they spotted Matthew Bourne and Colin Hugh Hillam, who was speaking on a mobile, Mr Arulthilakan, Mr Mkoka and Mr Escalante approached them. Mr Mkoka carried a cosh – a cue ball in a sock – and a knife passed to him by Mr Arulthilakan. Mr Escalante also carried a knife, which was used to stab Mr Hillam and Mr Bourne during the tussle over the phone. Mr Hillam was stabbed four times, receiving serious wounds to his chest and side. Mr Mkoka admitted attacking Mr Bourne with the cosh and kicking him as he lay on the ground. Mr Escalante allegedly stabbed Mr Bourne in the heart, and he died of rapid blood loss. The central issue in the appeal concerned the complicity of Mr Arulthilakan and Mr Mkoka in Mr Escalante’s stabbing of Mr Bourne. The defence case was that the stabbing of Mr Bourne was an independent act by Mr Escalante, done in the heat of an affray, and after any robbery attempt had ceased. The prosecution case was the use of the knife was part of the armed robbery, and resistance from the two victims was foreseeable, for which the men had armed themselves. Under the SA criminal code, a person intentionally committing a violent act while engaged in a major indictable offence – such as armed robbery – which results in another person’s death is guilty of murder. The High Court held that trial judge Justice Bruce Debelle technically misdirected the jury in telling them that as a matter of law Mr Escalante producing the knife was an act of violence when it should have been left as a question of fact for the jury, but the majority held that it did not give rise to a miscarriage of justice, since no other view of the facts was reasonably open. The appellants also argued that Justice Debelle’s directions withdrew from the jury’s consideration the issue of whether the production of the knife was a significant cause of Mr Bourne’s death, but the majority rejected their argument. The majority held that, after Mr Escalante presented the knife, it was open to the jury to reason that the victims’ resistance, the struggle and the fatal stabbing were all part of a brief sequence of events resulting from the act of violence.
+HIGH COURT OF AUSTRALIA Manager, Public Information 5 August 2009 ACQ PTY LTD v GREGORY MICHAEL COOK & ANOR AIRCAIR MOREE PTY LTD V GREGORY MICHAEL COOK & ANOR [2009] HCA 28 Today the High Court dismissed appeals by ACQ Pty Ltd and Aircair Moree Pty Ltd, the owner and operator of a crop-dusting aircraft. They had appealed against findings that they were liable for damages to Gregory Cook for serious injuries he suffered when he received an electric shock from a power line knocked down by the aircraft. On 28 December 2000 the aircraft was crop dusting a cotton field over which a high voltage conductor hung at a height of at least 6.2 metres. During the flight the aircraft struck the conductor. It was dislodged from its supporting pole and left hanging about 1.5 metres above the ground. The responsible energy company (at the time – NorthPower; now known as Country Energy) sent two employees – Mr Cook and Mr Buddee – to deal with the dislodged conductor. The two men agreed that Mr Buddee would drive to a links site about seven kilometres away and isolate the conductor, after which Mr Cook would commence an assessment of the situation in the cotton field. Despite this Mr Cook entered the field before the conductor had been isolated. The ground in the field was uneven and very boggy. Mr Cook stumbled in the muddy conditions. He fell close to the conductor, received an electric shock and was badly injured. Section 10 of the Damage by Aircraft Act 1999 (Cth) (DAA) provides that both the operator and the owner of an aircraft are liable if a person suffers an injury caused by, amongst other things, something that is the result of an impact with an aircraft that was in flight immediately before the impact happened. The effect of section 11 of the DAA is that damages are recoverable from both the owner and the operator of the aircraft in respect of an injury to which section 10 applies without the injured person having to prove that the injury had been caused by the owner’s and the operator’s wilful actions, negligence or default. Mr Cook sued both ACQ and Aircair for damages pursuant sections 10 and 11 of the DAA. He was successful before the primary judge in the District Court of New South Wales, who awarded him damages of $953,141.00. The Court of Appeal of the Supreme Court of New South Wales dismissed ACQ’s and Aircair’s appeals. The High Court granted both ACQ and Aircair special leave to appeal. The appeals raised the issue of what had “caused” Mr Cook to suffer injury. ACQ and Aircair acknowledged that Mr Cook would not have been in the field except for the fact that the aircraft impacted the conductor and dislodged it. However they argued that, even though the dislodged conductor was potentially unsafe, there would have been no danger to Mr Cook if he had not voluntarily departed from his agreement with Mr Buddee to do nothing until the conductor had been isolated. While they did not argue contributory negligence, ACQ and Aircair submitted that there was not a close enough temporal, geographical and relational connection between the dislodgement of the conductor and the injuries Mr Cook suffered. In a unanimous decision the High Court rejected these arguments. The Court considered it did not strain the language of the DAA to characterise the events following the impact of the aircraft with the conductor as having “caused” Mr Cook’s injuries. The Court concluded that Mr Cook’s injuries were caused by the dangerous position of the conductor. The conductor was in a dangerous position because the aircraft had struck it. The High Court dismissed both appeals and ordered ACQ and Aircair to pay Mr Cook’s costs of the appeals.
+HIGH COURT OF AUSTRALIA 12 August 2015 TOMLINSON v RAMSEY FOOD PROCESSING PTY LTD [2015] HCA 28 Today the High Court unanimously allowed an appeal from the Court of Appeal of the Supreme Court of New South Wales. The High Court held that declarations and orders made by the Federal Court of Australia in proceedings commenced by the Fair Work Ombudsman ("the Ombudsman") against the respondent did not create an issue estoppel precluding the appellant from asserting that the respondent was not his employer in a subsequent proceeding. The appellant was employed by the respondent to work in its abattoir. The appellant was later informed that his employment was at an end and that he would be employed by Tempus Holdings Pty Ltd, which would provide labour services to the respondent. The appellant was subsequently made redundant. He complained to the Ombudsman that certain statutory entitlements had not been paid to him and the Ombudsman commenced proceedings against the respondent in the Federal Court. The principal issue in those proceedings was whether the respondent or Tempus had been the appellant's employer. The Federal Court declared that the respondent had been the appellant's employer and ordered the respondent to pay the appellant's entitlements. The appellant subsequently commenced proceedings against the respondent in the District Court of New South Wales claiming damages in negligence for a personal injury he sustained while working at the abattoir. He contended that Tempus had been his employer, but that the respondent, as the party in control of the workplace, owed him a duty of care akin to that owed by an employer. If the respondent had been the appellant's employer, the appellant would have been prevented from bringing the claim, or from recovering damages, by New South Wales legislation governing the management of, and limiting recovery for, workplace injuries. The respondent argued that the appellant was estopped by the declarations and orders made in the Federal Court proceedings from denying that the respondent was his employer or, alternatively, that the respondent was in fact the appellant's employer. The District Court rejected the respondent's issue estoppel argument and found on the evidence that Tempus had been the appellant's employer. On appeal, the Court of Appeal determined that the declarations and orders of the Federal Court created an estoppel binding on the appellant by reason of the appellant having been "privy" in interest with the Ombudsman in the Federal Court proceedings according to the principle stated by this Court in Ramsay v Pigram (1968) 118 CLR The High Court held that the Court of Appeal erred in concluding that the Ombudsman was the appellant's privy in the Federal Court proceedings, as the Ombudsman was not enforcing payment of the appellant's entitlements "under or through", or "on behalf of", the appellant. In commencing proceedings against the respondent, the Ombudsman was acting pursuant to his statutory power to enforce the Workplace Relations Act 1996 (Cth) and awards made under that Act. That power was not derived from the appellant or his entitlements, and, in exercising it, the Ombudsman was not representing the appellant's legal interests. By majority, the High Court remitted the matter to the Court of Appeal for determination of an outstanding issue.
+HIGH COURT OF AUSTRALIA 15 April 2015 DUNCAN v THE STATE OF NEW SOUTH WALES NUCOAL RESOURCES LIMITED v STATE OF NEW SOUTH WALES CASCADE COAL PTY LIMITED & ORS v THE STATE OF NEW SOUTH WALES [2015] HCA 13 Today the High Court unanimously upheld the validity of certain provisions of Sched 6A to the Mining Act 1992 (NSW), which cancelled, without compensation, three specified exploration licences issued under the Mining Act. Schedule 6A was inserted into the Mining Act by the Mining Amendment (ICAC Operations Jasper and Acacia) Act 2014 (NSW) ("the Amendment Act"), which was enacted following consideration by both Houses of the New South Wales Parliament of reports prepared by the Independent Commission Against Corruption. Those reports contained findings that a number of individuals had engaged in corrupt conduct in relation to the grant of the exploration licences, and that the licences were so tainted by corruption that they should be cancelled. By special case in three separate proceedings in the original jurisdiction of the High Court, the corporate licensees of two of the cancelled exploration licences and their parent company ("the Cascade proceedings"), a former director of that parent company ("the Duncan proceedings") and the parent company of the corporate licensee of the other cancelled exploration licence ("the NuCoal proceedings"), challenged the validity of Sched 6A as inserted by the Amendment Act. In each proceeding, it was contended that the Amendment Act involved the legislative exercise of judicial power in the nature of, or akin to, a bill of pains and penalties, and that such an exercise of power contravened an implied limitation on State legislative power deriving either from Ch III of the Commonwealth Constitution or an historical limitation on colonial, and subsequently State, legislative power. In the Cascade and Duncan proceedings, it was contended that the Amendment Act is not a law within the meaning of s 5 of the Constitution Act 1902 (NSW). In the Cascade and NuCoal proceedings, it was contended that a provision of the Amendment Act, relating to the use and disclosure of information required to be provided by the licensees, is inconsistent with provisions of the Copyright Act 1968 (Cth) and was therefore inoperative to the extent of that inconsistency by force of s 109 of the Commonwealth Constitution. The Court held that the Amendment Act is a law within the competence of the New South Wales Parliament because the grant of legislative power by s 5 of the Constitution Act 1902 (NSW) implied no relevant limitation as to the content of an enactment of that Parliament. It also held that the Amendment Act did not involve the exercise of judicial power and did not bear the characteristics of a bill of pains and penalties. The existence and scope of any implied limitation on the ability of a State Parliament to exercise judicial power did not, therefore, arise for consideration. It was unnecessary for the Court to address the contention concerning s 109 of the Commonwealth Constitution because it was not shown by the facts agreed in the special cases to be the subject of real controversy.
+HIGH COURT OF AUSTRALIA 5 June 2013 KAKAVAS v CROWN MELBOURNE LIMITED (ACN 006 973 262) & ORS [2013] HCA 25 Today the High Court unanimously dismissed an appeal from a decision of the Court of Appeal of the Supreme Court of Victoria, which held that Crown Melbourne Limited ("Crown") did not act unconscionably in allowing the appellant to gamble and lose large sums of money at its casino. The appellant was a high-stakes gambler and regular patron of Crown's casino. Between June 2005 and August 2006, he turned over $1.479 billion playing baccarat at the casino. He brought a claim to recover his net loss of $20.5 million over that period. The appellant issued proceedings against Crown and two of its employees in the Supreme Court of Victoria, claiming that they had engaged in unconscionable conduct contrary to s 51AA of the Trade Practices Act 1974 (Cth) and under the general law. At trial, the appellant alleged that Crown had lured him, a known problem gambler, to gamble at its casino by providing incentives, such as rebates on losses and the use of Crown's private jet. In dismissing the appellant's claims, the primary judge held that the appellant's gambling problem was not a kind of special disadvantage that rendered him susceptible to exploitation. Further, Crown had not sought to exploit, nor was there any scheme to exploit, any disadvantage from which the appellant might suffer. On appeal, the Court of Appeal held that the appellant had failed to demonstrate that the primary judge's conclusion, that he was not in a position of special disadvantage, was erroneous, or that the wagering transactions that he engaged in with Crown were unfair, unjust or unreasonable. The Court of Appeal upheld the primary judge's finding that Crown was entitled to accept the appellant as he presented himself to it: a successful businessman entirely capable of making decisions in his own interests. The appellant appealed by special leave to the High Court. In the High Court, the appellant did not seek to challenge any findings of fact made by the primary judge. His argument shifted emphasis to a claim that Crown, by allowing him to gamble at its casino, had exploited his inability, by reason of his pathological urge to gamble, to make worthwhile decisions in his own interests while actually engaged in gambling. The High Court dismissed the appeal and concluded that the appellant's attempt to invoke principles of unconscionability failed. The Court did not accept that the appellant's pathological interest in gambling was a special disadvantage which made him susceptible to exploitation by Crown. He was able to make rational decisions in his own interests, including deciding from time to time to refrain from gambling altogether. Crown did not knowingly victimise the appellant by allowing him to gamble at its casino.
+HIGH COURT OF AUSTRALIA 29 May 2020 PICKETT v THE STATE OF WESTERN AUSTRALIA; MEAD v THE STATE OF WESTERN AUSTRALIA; MEAD v THE STATE OF WESTERN AUSTRALIA; ANTHONY v THE STATE OF WESTERN AUSTRALIA; TSM (A CHILD) v THE STATE OF WESTERN AUSTRALIA [2020] HCA 20 Today the High Court unanimously dismissed five appeals from a judgment of the Court of Appeal of the Supreme Court of Western Australia. The appeals concerned whether ss 7(b), 7(c) and 8 of the Criminal Code (WA) ("the Code") apply to render an enabler or an aider, or a party to an unlawful common purpose, guilty of murder where the deceased may have been killed by a child who was not proven to be criminally responsible for the killing under s 29 of the Code. On 27 January 2016 at about 3.30 am, a group of eight males ("the Appellants' Group"), which included the five appellants and PM, who was aged 11 at the time, were involved in the assault of Patrick Steven Slater ("the Deceased") on the first floor of The Esplanade Train Station complex in Perth. Each of the eight members of the Appellants' Group were captured by CCTV footage proceeding to the first floor of The Esplanade Train Station complex holding weapons or objects that could be used as weapons; however, there was no CCTV footage of the assault. One member of the Appellants' Group used a screwdriver to stab the Deceased in the chest, causing him to bleed to death shortly afterwards. Each of the eight males of the Appellants' Group was charged with murder. The five appellants pleaded not guilty and were tried together in the Supreme Court of Western Australia before a judge and a jury. PM was tried separately in the Children's Court of Western Australia. At the trial of the appellants, the case for the prosecution was put on the basis that one member of the Appellants' Group inflicted the fatal stab wound, and only that person caused the death of the Deceased under s 7(a) of the Code, while each of the other seven males in the Appellants' Group was deemed to have taken part in committing the offence as an enabler or an aider, or a party to an unlawful common purpose, under s 7(b), s 7(c) or s 8 of the Code. Sections 7 and 8 of the Code operate when "an offence is committed". At the appellants' trial, the prosecution had not proved beyond reasonable doubt that it was a person other than PM who stabbed the Deceased. Under s 29 of the Code, because PM was under the age of 14 at the time of offending, but over the age of ten, he could not be criminally responsible for his acts in killing the Deceased unless it was proved by the prosecution that, at the time of the killing, he had the capacity to know that he ought not to do the act. The prosecution adduced no evidence to establish PM's capacity. The trial judge declined to direct the jury that they could not convict the appellants of murder unless they were satisfied beyond reasonable doubt that PM was not the person who stabbed the Deceased. Each of the appellants was convicted of murder. The majority of the Court of Appeal held that the appellants were rightly convicted of murder by operation of s 7(b), s 7(c) or s 8 of the Code notwithstanding that PM, as the hypothetical killer, was not criminally responsible for killing the Deceased. By grant of special leave, the appellants appealed to the High Court. The Court unanimously held that the expression "an offence " in ss 7 and 8 of the Code refers to the act or omission which constitutes the offence, not the criminal responsibility of the actor. The Court held that the liability to punishment of each of the appellants for murder by operation of s 7(b), s 7(c) or s 8 of the Code did not depend upon either the criminal responsibility of PM, and thus proof beyond reasonable doubt that he had capacity under s 29, or proof beyond reasonable doubt that he did not stab the Deceased. Accordingly, the trial judge did not err in declining to instruct the jury that it did.
+HIGH COURT OF AUSTRALIA Public Information Officer 7 October, 2003 TANWAR ENTERPRISES PTY LIMITED v JOSEPH CAUCHI, ANGELO CAUCHI, MARY CAUCHI AND JULIAN DALLEY JOSEPH JOHN ROMANOS AND JOSEPH JOHN ROMANOS AS EXECUTOR OF THE ESTATE OF THE LATE TERESA ROMANOS v PENTAGOLD INVESTMENTS PTY LIMITED AND MAROON BROTHERS INVESTMENTS PTY LIMITED The High Court of Australia today handed down two judgments in favour of property vendors who terminated contracts of sale after the purchasers failed to observe stipulations as to time for performance. In the first case, Tanwar arranged to buy three parcels of land at Glenwood, near Blacktown in Sydney, from the Cauchis and Mr Dalley for a total purchase price of $4.5 million. The vendors terminated the contracts on June 26, 2001, after Tanwar failed to complete the contract by 4pm the day before. Tanwar had still been arranging Singaporean finance which was finalised on June 26, but the vendors refused to proceed. Tanwar had paid a 10 per cent deposit, another $397,473.40 towards the purchase price and $80,000 in consideration of an earlier extension of time. A revised contract had stipulated that time was of the essence and that Tanwar would forfeit all money already paid if the sale was not completed on June In the second case, investment companies Pentagold and Maroon Brothers exchanged contracts with Joseph and Teresa Romanos for the sale of three adjoining parcels of land at Harris Park, near Parramatta in Sydney, for a total purchase price of $1.875 million. The buyers planned to build 24 units and sought development approval from Parramatta Council. Time for completion was extended to March 1, 2001, and the buyers paid a total of $50,000 towards the 10 per cent deposit. The balance of the deposit, $137,500, was payable upon approval of the development application. The purchasers received notice of the approval on December 1, 2000. The vendors terminated the contracts on December 19. In both cases, the purchasers sought specific performance of the contracts but their claims were rejected by Justice William Windeyer in the New South Wales Supreme Court. However, Justice Windeyer ordered the Romanoses to return the $50,000 deposit. In the Tanwar case, the NSW Court of Appeal unanimously dismissed its appeal. In the Pentagold-Maroon Brothers case, a differently constituted Court of Appeal, by majority, allowed their appeal and dismissed a cross-appeal by the Romanoses. Tanwar and Joseph Romanos appealed to the High Court. The High Court unanimously dismissed Tanwar’s appeal and allowed the Romanos appeal. It held that the stipulations as to time were to be applied according to their terms. Of Tanwar, the Court held that there was no relevant breach of contract by the vendors and they exercised a contractual right to terminate the contract and had not acted unconscionably. In the Romanos case, the Court held that Justice Windeyer erred in ordering the return of the deposit where there was a lack of evidence that it was unjust for the Romanoses to retain the deposit. It ordered that the deposit be forfeited to Mr Romanos.
+HIGH COURT OF AUSTRALIA 21 April 2004 MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS v RESPONDENTS Attacks and abuse by some Ukrainians on people engaging in Jehovah’s Witness activities were not shown to involve persecution, the High Court of Australia held today, in rejecting a claim for refugee status. The respondents, who cannot be named by courts under section 91X of the Migration Act, are a Ukrainian de facto couple. The husband became involved with the Jehovah’s Witnesses in May 1998 and began distributing publications and engaging in other forms of proselytising. As well as meeting hostility, he was set upon and beaten twice by groups of males, his front door was set alight, and was sacked from his job. The wife is not a Jehovah’s Witness. The couple left for Australia in December 1998 and applied for protection visas. Their applications were rejected by the Immigration Department, the Refugee Review Tribunal and the Federal Court of Australia but the respondents appealed successfully to the Full Court of the Federal Court. The Full Court unanimously held that the RRT failed to consider the right question, that is, whether in a practical sense the State was able to protect the man from harm. The Minister appealed to the High Court. The husband claimed the Ukrainian government encouraged persecution of Jehovah’s Witnesses and that police condoned such violence. Their claims were rejected by the RRT. The question then was whether there was a failure by the Ukrainian State in its protection obligations. The RRT noted that country information by the United States State Department, the British Home Office and Australia’s Department of Foreign Affairs has never carried the suggestion that the Ukrainian government was not in control or that the police and judiciary were not reasonably fair and effective. That information also indicated the government allowed religious freedom, including for more than 100,000 Jehovah’s Witnesses. The church itself did not claim to be persecuted in the Ukraine. The RRT regarded the assaults as random and uncoordinated incidents. It found the police responded appropriately when the man called them after one attack but he was unable to identify his attackers. The RRT had no evidence that the man sought the protection of Ukrainian authorities, either in the Ukraine or after he arrived in Australia. The High Court held that the RRT was not in error and overturned the decision of the Full Court of the Federal Court. It unanimously allowed the Minister’s appeal.
+HIGH COURT OF AUSTRALIA Public Information Officer 2 August 2007 ATTORNEY-GENERAL FOR THE NORTHERN TERRITORY OF AUSTRLIA v CAMERON OWEN CHAFFEY AND SANTOS LIMITED SANTOS LIMITED v CAMERON OWEN CHAFFEY AND ATTORNEY-GENERAL FOR THE NORTHERN TERRITORY OF AUSTRLIA Northern Territory legislation providing that employers’ superannuation contributions were not to be treated as part of earnings for compensation paid to an injured worker was constitutionally valid and did not amount to an acquisition of property, the High Court of Australia held today. Mr Chaffey was injured in September 2003 while working for Santos as a maintenance operator at Mereenie Gasfield, 200km west of Alice Springs. Santos accepted liability to pay compensation pursuant to section 53 of the Work Health Act. During Mr Chaffey’s employment, Santos made superannuation contributions on his behalf of 10 per cent of salary, but did not continue to make these as part of his compensation payments. In 2004 the Full Court of the NT Supreme Court held in Hastings Deering (Australia) v Smith (No. 2) that “remuneration” included employers’ superannuation contributions. The Act was then amended to exclude these contributions from the definition of “normal weekly earnings”, backdated to 1 January 1987. Justice Dean Mildren referred two questions to the Full Court of the Supreme Court for determination. These were whether before and whether after the commencement of the amendment, 26 January 2005, it constituted an acquisition of Mr Chaffey’s property inconsistent with section 50 of the Commonwealth Northern Territory (Self-Government) Act. Section 50 provides that the legislative power of the NT Assembly does not extend to the making of laws for the acquisition of property other than on just terms. By majority, the Full Court answered Yes to both questions. The NT Attorney-General intervened in the Full Court proceeding and instituted its own appeal to the High Court. Santos also appealed. The High Court unanimously allowed both appeals. It held that section 53 of the Work Health Act, which imposes obligations upon employers to make payments to injured workers, is subject to the rest of the compensation scheme set out in the Act’s Part V, as amended from time to time. The method prescribed for quantifying the amount of compensation payable by an employer had not been fixed in permanent form at the date of Mr Chaffey’s injury and was always subject to change. Therefore, there was no acquisition of property and section 50 of the NT (Self- Government) Act had no application to the change made to the Work Health Act. The Court held that both questions should be answered No.
+HIGH COURT OF AUSTRALIA 14 November 2018 COMPTROLLER GENERAL OF CUSTOMS v DOMENIC ZAPPIA [2018] HCA 54 Today the High Court unanimously allowed an appeal from a judgment of the Full Court of the Federal Court of Australia, which set aside a decision of the Administrative Appeals Tribunal. A company, Zaps Transport (Aust) Pty Ltd ("Zaps"), operated a warehouse in which goods subject to "customs control" under the Customs Act 1901 (Cth) ("the Act") were stored. To this end, Zaps held a warehouse licence issued under Pt V of the Act. The respondent was employed by Zaps as its general manager and warehouse manager. The respondent's father was Zaps' sole director. In May 2015, tobacco goods were stolen from Zaps' warehouse. The stolen goods were "dutiable goods", and, at the time of the theft, they had not been "entered" for home consumption. Section 35A(1) of the Act provided, relevantly, that a person who "has, or has been entrusted with, the possession, custody or control" of dutiable goods subject to customs control, and who "fails to keep those goods safely", shall, on demand by a Collector, pay to the Commonwealth the amount of customs duty which would have been payable on those goods had they been entered for home consumption on the day of the demand. After the theft at Zaps' warehouse, a Collector made demands to each of the respondent, the respondent's father and Zaps under s 35A(1) of the Act. The respondent, the respondent's father and Zaps applied to the Tribunal for review of the Collector's decisions to demand payment from each of them. The Tribunal affirmed each of the decisions. In relation to the respondent, the Tribunal found that he had directed what was to happen to the stolen goods on a day-to-day basis and concluded that he had exercised "control" over them. The respondent appealed to the Full Court of the Federal Court. A majority of that Court allowed the appeal, concluding that the "kind of control" over goods exercised by an employee of a warehouse licence holder, who acts in his or her capacity as an employee, does not meet the level of "control" required by s 35A(1). By special leave, the Comptroller General of Customs appealed to the High Court. The High Court held that an employee of a warehouse licence holder is capable of being a person who "has, or has been entrusted with, the possession, custody or control" of the relevant goods. The reference in s 35A(1) to the "possession, custody or control" of goods is to the degree of power or authority that would enable a person to meet the obligations imposed by s 35A(1)(a) and (b). Those obligations are to keep the goods safely and, on request, to show the goods to a Collector or to satisfy a Collector that the goods have been dealt with in accordance with the Act. Any person who possesses this degree of power or authority, irrespective of the manner in which the person might exercise that power or authority, will be a person who "has" the possession, custody or control of goods. Such persons are not, therefore, limited to warehouse licence holders. The facts found by the Tribunal established that the respondent was a person who had the possession, custody or control of the stolen goods and who had failed to keep those goods safely. The demand issued to him was valid.
+HIGH COURT OF AUSTRALIA 29 September 2005 JILL McNAMARA (McGRATH) v CONSUMER TRADER AND TENANCY TRIBUNAL AND ROADS AND TRAFFIC AUTHORITY The Roads and Traffic Authority is not entitled to the statutory rights and immunities of the Crown in all its functions, and could not escape the operation of New South Wales legislation covering landlords and tenants, the High Court of Australia held today. The RTA attempted to evict Mrs McNamara from the house she has rented in the Sydney suburb of Croydon Park since 1981, first from the Commissioner of Main Roads and then from the RTA. In October 2000, the RTA sought to obtain vacant possession of the house and served on Mrs McNamara a 60-day termination notice. When she failed to comply, the RTA applied to the Consumer Trader and Tenancy Tribunal for an order terminating the agreement and an order for possession of the premises. Mrs McNamara alleged the tribunal lacked jurisdiction as the Landlord and Tenant (Amendment) Act applied and the later Residential Tenancies Act did not. The Residential Tenancies Act was one of the Acts under which the tribunal had jurisdiction but the Act did not apply to properties that were “prescribed premises” under the Landlord and Tenant Act. In April 2002, the tribunal determined that it did have jurisdiction as the RTA had the benefit of an exemption in section 5 of the Landlord and Tenant Act which provided that this Act shall not bind the Crown or the Housing Commission. This meant Mrs McNamara could not resist the RTA’s application for vacant possession by relying on the house being “prescribed premises”. She filed a summons in the NSW Supreme Court which was dismissed by Justice John Dunford who referred to section 46(2)(b) in the Transport Administration Act which provided that the RTA is a statutory body representing the Crown. The Court of Appeal refused leave to appeal. Mrs McNamara then appealed to the High Court. The High Court, by a 5-1 majority, allowed the appeal and held that the RTA was bound by the Landlord and Tenant Act. The Court ordered that the matter be remitted to the tribunal to be determined according to law.
+HIGH COURT OF AUSTRALIA 11 May 2022 PLAINTIFF M1/2021 v MINISTER FOR HOME AFFAIRS [2022] HCA 17 Today the High Court answered questions stated in a special case, the primary question being whether, in deciding whether there was "another reason" to revoke the cancellation of the plaintiff's visa pursuant to s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth) ("the Act"), a delegate of the then Minister for Immigration and Border Protection ("the Delegate") was required to consider the plaintiff's representations which raised a potential breach of Australia's international non-refoulement obligations where the plaintiff was able to make a valid application for a protection visa. Ultimately, what divided the parties was not if those representations should have been considered, but how. The plaintiff, a citizen of the Republic of South Sudan, entered Australia as the holder of a Global Special Humanitarian visa, which is not a protection visa. In October 2017, the plaintiff's visa was cancelled pursuant to s 501(3A) of the Act ("the Cancellation Decision"). The plaintiff sought revocation of the Cancellation Decision. He relevantly made representations that if he were returned to South Sudan he would face persecution, torture and death, and he did not think it was possible to remove him to South Sudan due to "non-refoulment obligations". In August 2018, the Delegate decided not to revoke the Cancellation Decision. The Delegate considered that it was unnecessary to determine whether non-refoulement obligations were owed because the plaintiff could make a valid application for a protection visa, and the existence or otherwise of those obligations would be fully assessed in the course of processing such an application. The High Court, by majority, answered the primary question to the effect that: the Delegate was required to read, identify, understand and evaluate the plaintiff's representations that raised a potential breach of Australia's international non-refoulement obligations; Australia's international non-refoulement obligations unenacted in Australia were not a mandatory relevant consideration; and to the extent Australia's international non-refoulement obligations are given effect in the Act, one available outcome for the Delegate was to defer assessment of whether the plaintiff was owed the non-refoulement obligations on the basis that it was open to the plaintiff to apply for a protection visa. The majority held that the Delegate's reasons recorded that they had read, identified, understood and evaluated the plaintiff's representations. Their Honours held that, having proceeded on the basis that non-refoulement obligations could be assessed in accordance with the specific mechanism chosen by Parliament for responding to protection claims in the form of protection visa applications, it was reasonable and rational for the Delegate to not give weight to potential non-refoulement obligations as "another reason" for revoking the Cancellation Decision. The Delegate did not fail to exercise the jurisdiction conferred by s 501CA(4) of the Act or deny the plaintiff procedural fairness, and the Delegate's reasons did not reflect a misunderstanding of the operation of the Act. The majority further held that where the cancelled visa is not a protection visa, and a decision-maker defers assessment of whether non-refoulement obligations are owed to permit a former visa holder to avail themselves of the protection visa procedures provided for in the Act, it may be necessary for the decision-maker to take account of the alleged facts underpinning that claim where those facts are relied upon in support of "another reason" why the cancellation decision should be revoked. In this case, the Delegate sufficiently considered the issues of fact presented by the plaintiff's non-refoulement claims.
+HIGH COURT OF AUSTRALIA 11 November 2010 PLAINTIFF M61/2010E v COMMONWEALTH OF AUSTRALIA & ORS PLAINTIFF M69 of 2010 v COMMONWEALTH OF AUSTRALIA & ORS [2010] HCA 41 Today the High Court declared that it was an error of law for a person conducting a review of a refugee status assessment as part of an "offshore processing regime" to fail to treat provisions of the Migration Act 1958 (Cth) ("the Migration Act") and the decisions of Australian courts as binding. It held that two Sri Lankan citizens who arrived at Christmas Island claiming refugee status were also denied procedural fairness in the review of the assessment of their claims. Each plaintiff arrived at Christmas Island by boat, and was detained under the Migration Act. Under the Migration Act, each became an "unlawful non-citizen" and by the operation of section 46A(1) could not make a valid application for a protection visa. The Minister had power to waive the operation of section 46A(1), or grant a visa, if it was in the public interest to do so. During the plaintiffs' detention, officers of the Department of Immigration and Citizenship made assessments of each plaintiff's refugee status and concluded that neither was a person to whom Australia owed protection obligations. An Independent Merits Review of each of those decisions conducted by contractors of the Department reached the same conclusion. Each plaintiff argued before the High Court that he was not afforded procedural fairness during the assessment or review process, and that the persons conducting the assessment and review erred in law by not treating themselves as bound by relevant provisions of the Migration Act and relevant decisions of Australian courts. The Commonwealth and the Minister for Immigration and Citizenship argued that the assessment and review processes were conducted as an exercise of non- statutory executive power. It was argued that there was consequently no obligation on assessors and reviewers to afford procedural fairness, or to decide applications according to law. The plaintiffs argued that the processes were a part of the exercise of the Minister's powers under the Migration Act. It was also argued by one plaintiff that section 46A of the Migration Act, which precluded him from making a valid application for a protection visa in the circumstances of the case, was invalid. In a unanimous decision the Court held that because the Minister has decided to consider exercising powers under the Migration Act in every case where an offshore entry person claims to be owed protection obligations, the assessment and review inquiries adopted in respect of such offshore entry persons are therefore steps taken under and for the purposes of the Migration Act. Because these inquiries prolonged the detention of the plaintiffs, there was a direct impact on the rights and interests of the plaintiffs to freedom from detention at the behest of the Executive. Those making the inquiries were therefore bound to act according to law and to afford procedural fairness to the plaintiffs. The Court rejected the challenge to the validity of section 46A. The Commonwealth and the Minister were ordered to pay the plaintiffs' costs.
+HIGH COURT OF AUSTRALIA 12 September 2018 [2018] HCA 39 Today the High Court unanimously dismissed an appeal from the Full Court of the Supreme Court of South Australia. The High Court held that it would be inappropriate to relax the requirement of the doctrine of part performance that the acts relied upon as part performance must be unequivocally, and in their own nature, referable to an agreement of the kind alleged. In 2002, the respondent and her then-husband George purchased a property at Clark Road, Virginia, South Australia, though the respondent was the sole registered proprietor of the property. The couple made improvements to the property. In 2004, the respondent, George, the appellant and his wife Sophie jointly purchased a property at Taylors Road, Virginia, South Australia, which was financed by way of contributions from both couples and a bank loan. The appellant and Sophie jointly held a half-interest in the property, and George held the other half in his name alone. Later in 2004, the two couples purchased a property at Penfield Road, Virginia, South Australia, which was financed in part by way of a bank loan. The appellant and Sophie paid the deposit and the balance of the purchase price. In 2012, the appellant commenced proceedings in the District Court of South Australia, seeking a declaration that the respondent held a half-interest in the Clark Road property on trust for him, or, alternatively, an order that he be registered as joint proprietor of "one undivided moiety" of the property. The appellant claimed that in July 2004, he and George had agreed that the appellant would acquire half of the respondent's interest in the Clark Road property (but not the improvements) for $45,000, to be paid largely by way of funding of George and the respondent's share in the purchase of the Penfield Road property. The only documentary evidence of any agreement was a handwritten note signed by the respondent. The agreement did not meet the formality requirements of s 26(1) of the Law of Property Act 1936 (SA). However, the appellant contended that the doctrine of part performance entitled him to a decree that the agreement be specifically performed. The trial judge dismissed the claim, and the Full Court of the Supreme Court of South Australia dismissed the appellant's appeal. By grant of special leave, the appellant appealed to the High Court. The appellant submitted that it is sufficient for a contracting party seeking specific performance of a parol contract for the sale or disposition of an interest in land to show that he or she has knowingly been induced or allowed by the counterparty to alter his or her position on the faith of the contract. He submitted that it is not necessary, in order to satisfy the requirements of the doctrine of part performance, that the acts of part performance be unequivocally referable to an agreement of the kind alleged. The High Court unanimously dismissed the appeal. The Court held that the doctrine of part performance requires acts which are unequivocally referable to an agreement of the kind alleged. The appellant's concession that he had not done acts that were unequivocally referable to an agreement of the kind alleged, combined with considerations of authority and principle, required that the appeal be dismissed.
+HIGH COURT OF AUSTRALIA 7 August 2019 VICTORIAN BUILDING AUTHORITY v NICKOLAOS ANDRIOTIS [2019] HCA 22 Today the High Court unanimously dismissed an appeal from the Full Court of the Federal Court of Australia. The High Court held that s 20(2) of the Mutual Recognition Act 1992 (Cth) ("the MRA") does not provide a local registration authority with a discretionary power to refuse registration under the MRA. It also held that a "good character" requirement in a State Act does not fall within the exception to the "mutual recognition principle" in s 17(2) of the MRA. The mutual recognition principle set out in s 17(1) is that a person registered in the first State for an occupation is entitled, after notifying the local registration authority of the second State, to be registered in the second State for the equivalent occupation. Section 20(2) provides that the local registration authority "may" grant registration on that ground. Section 17(2) provides for an "exception" to the mutual recognition principle, which is that it does not affect the operation of laws that regulate the manner of carrying on an occupation in the second State so long as those laws, relevantly, are "not based on the attainment or possession of some qualification or experience relating to fitness to carry on the occupation". The respondent was registered in New South Wales as a waterproofer. He falsely stated in his application to the New South Wales local registration authority that he had certain work experience. He then sought registration as a waterproofer in Victoria pursuant to the MRA. The Victorian Building Practitioners Board ("the Board") refused to grant registration on the basis that the respondent's New South Wales application demonstrated dishonesty, and he was therefore not of "good character" as required by s 170(1)(c) of the Building Act 1993 (Vic), being the Victorian scheme regulating registration. The Administrative Appeals Tribunal affirmed the Board's decision. On the respondent's appeal to the Federal Court, the Victorian Building Authority ("the VBA") (the Board's successor) argued that a local registration authority retains a discretion under s 20(2) to refuse registration and, in any event, the "good character" requirement in s 170(1)(c) of the Building Act falls within the exception to the mutual recognition principle in s 17(2) of the MRA. The Full Court rejected both arguments and allowed the appeal. By grant of special leave, the VBA appealed to the High Court. The Court held that the words "qualification … relating to fitness to carry on the occupation" in s 17(2) have a broader meaning than a qualification of an educational or technical kind, and clearly encompass the subject matter of s 170(1)(c) of the Building Act. That construction is consistent with the scheme of the MRA. The mutual recognition principle upon which the MRA is founded accepts that registration for an occupation in a first State is sufficient for recognition in the second State, without any further requirements of the law of the second State being fulfilled. The Court held that the word "may" in s 20(2) of the MRA is empowering, providing a local registration authority with power to grant registration under the MRA on the "ground" referred to in s 20(1), namely registration in the first State. Section 20(2) does not admit of a broader discretion to refuse registration.
+HIGH COURT OF AUSTRALIA 12 December 2012 STATE OF NEW SOUTH WALES v JAYSON WILLIAMSON [2012] HCA 57 The High Court today held that a claim for personal injury damages based on an intentional tort was a claim for personal injury damages within the meaning of s 338(1) the Legal Profession Act 2004 (NSW) ("Legal Profession Act") and that a claim for personal injury damages under s 338(1) of the Legal Profession Act did not include a claim for damages for false imprisonment. The respondent sued the State of New South Wales ("State") in the District Court of New South Wales for damages for trespass to the person and false imprisonment. The respondent alleged that the State was vicariously liable for the actions of police officers who had thrown him to the ground, restrained him, and confined him in a police wagon and then released him without charge. The action in the District Court of New South Wales was settled and orders were made by consent to dispose of the proceedings. The damages awarded were for $80,000, with costs to be assessed or agreed. As no agreement could be reached about the costs that were to be allowed, the respondent applied for an order transferring the proceedings to the Supreme Court of New South Wales and for a declaration that costs in the proceedings were not regulated by s 338 of the Legal Profession Act. Section 338(1) of the Legal Profession Act provided that where the amount recovered on a claim for personal injury damages did not exceed $100,000, the maximum costs for legal services provided to a plaintiff were fixed at 20% of the amount recovered or $10,000, whichever is greater. Section 337(1) of the Legal Profession Act provided that "personal injury damages" had the same meaning as in Part 2 of the Civil Liability Act 2002 (NSW) ("Liability Act"). The Liability Act limited awards for personal injury damages. The awards limited by the Liability Act were subject to specific exceptions contained within the Liability Act. The central points of difference between the parties were, first, whether the definition of "personal injury damages" was to be construed by reference only to the words of the definition in the Liability Act or by reference to both the words of the definition and the limited operation which the Liability Act had in respect of awards of personal injury damages as a result of the relevant exclusions contained within the Liability Act and, secondly, whether a claim for personal injury damages extended to a claim for false imprisonment. In the Supreme Court of New South Wales, it was ruled that the respondent's claim for costs was not regulated by s 338(1) of the Legal Profession Act. An appeal to the Court of Appeal of the Supreme Court of New South Wales was dismissed. By special leave, the State appealed to the High Court. The High Court dismissed the appeal. A majority of the Court held that s 338(1) of the Legal Profession Act applied if the amount recovered on a claim for personal injury damages did not exceed $100,000, whether the claim is framed in negligence or as an intentional tort. The majority also held that a claim for personal injury damages does not include a claim for damages for false imprisonment, which would commonly include damages for deprivation of liberty. As the settlement was a lump sum settlement and the agreed settlement amount could not be attributed between the claim for trespass and the claim for false imprisonment, it was not possible to say whether the settlement sum was for damages for personal injury.
+HIGH COURT OF AUSTRALIA 8 December 2010 ANTHONY JOSEPH LUIS HILI v THE QUEEN; GLYN MORGAN JONES v THE QUEEN [2010] HCA 45 Today the High Court unanimously dismissed appeals by two individuals against the sentences imposed on them by the Court of Criminal Appeal of New South Wales in respect of tax evasion offences prosecuted as part of Project Wickenby. It held that there is no judicially determined norm or starting point for the period of imprisonment that a federal offender should actually serve in prison before release on a recognizance release order. Anthony Hili and Glyn Jones were convicted of federal offences under the Criminal Code (Cth) and the Crimes Act 1914 (Cth) ("the Crimes Act") in respect of tax evasion covering over $750,000 of income tax. In the New South Wales District Court, Morgan DCJ sentenced each offender to 18 months' total imprisonment, with a recognizance release order to take effect after seven months. On appeal by the prosecution, the Court of Criminal Appeal held that the sentences imposed were manifestly inadequate, and sentenced each accused to a total of three years' imprisonment with a recognizance release order to take effect after 18 months. The Court of Criminal Appeal noted the submission put by the prosecution that there was an appropriate ratio between a non-parole period and the head sentence, and that the non-parole period should be between 60 and 66% of the total sentence. It was argued before the High Court that there ought to be no "norm or starting point, expressed as a percentage" for the period of imprisonment that a federal offender should actually serve prior to release on a recognizance release order, and that the Court of Criminal Appeal had given insufficient reasons for its conclusion that the sentences imposed by Morgan DCJ were manifestly inadequate. The High Court held that there neither is, nor should be, a judicially determined norm or starting point for the period of imprisonment that a federal offender should actually serve in prison before release on a recognizance release order. The Court held that the applicable provisions of Part IB of the Crimes Act, which govern the sentencing of federal offenders, made no provision fixing any relationship between the head sentence and a recognizance release order, and that the sentencing court had power to fix a recognizance release order to take effect at any time during the period of the head sentence. The Court considered that the Court of Criminal Appeal was incorrect in saying that the "norm" for a period of mandatory imprisonment under the Crimes Act is between 60 and 66%, but that the Court of Criminal Appeal was correct in concluding that the sentences imposed by Morgan DCJ were manifestly inadequate.
+HIGH COURT OF AUSTRALIA 8 September 2005 JEFFREY THOMAS JARRATT v COMMISSIONER OF POLICE FOR NEW SOUTH WALES AND STATE OF NEW SOUTH WALES Under the rules of natural justice, Mr Jarratt was entitled to be given an opportunity to answer criticisms of his performance before he was removed from his role as Deputy Commissioner of the NSW Police Service, the High Court of Australia held today. Mr Jarratt, who joined the NSW Police Service in 1967, was appointed one of two Deputy Commissioners in February 1997 for three years. In 2000, his appointment was renewed for five years. In September 2001, Mr Jarratt was removed from office by the Governor on the recommendation of Police Commissioner Peter Ryan made with the approval of Police Minister Paul Whelan. In a media release Mr Ryan said the removal was on grounds related to performance. Mr Jarratt complained that he was given no opportunity to be heard on the substance of any criticisms of his performance before the recommendation that he be removed was made. The Commissioner and the State Government argued that he was not entitled to such an opportunity. Section 51 of the Police Service Act provided that a Deputy Commissioner may be removed from office at any time by the Governor on the recommendation of the Commissioner submitted with the approval of the Minister. Mr Jarratt instituted proceedings against the Commissioner and the State in the NSW Supreme Court, claiming that he had not been validly removed under section 51. The Commissioner and the State argued that the common law rule that servants of the Crown hold office only at the pleasure of the Crown, and may be dismissed at any time without notice or justification, was not displaced by the Act. In July 2002, Justice Carolyn Simpson held that there had been a denial of natural justice to Mr Jarratt, that his removal was invalid, that his discharge constituted a repudiation of his contract and that, after allowing for compensation already paid to him, he was entitled to damages of $642,936.35, the salary he would have received during the remainder of his five-year term. The Court of Appeal reversed that decision, holding that Mr Jarratt had not been entitled to a hearing by the Commissioner before recommending removal and that the common law principle relied on by the Commissioner and the State applied. In the High Court his application for special leave to appeal was referred to a Full Court and argued as on an appeal. The Court unanimously granted Mr Jarratt’s application for special leave and allowed the appeal. It held that under the Act there was an obligation to give Mr Jarratt procedural fairness and the"dismissal at pleasure" principle did not apply. The Court held that unless excluded by plain words, an exercise of power by a public official, such as the Commissioner to prejudice the rights of Mr Jarratt, was to accord with the rules of natural justice.
+HIGH COURT OF AUSTRALIA 3 November 2021 CATHERINE VICTORIA ADDY v COMMISSIONER OF TAXATION [2021] HCA 34 Today the High Court unanimously allowed an appeal from a judgment of the Full Court of the Federal Court of Australia. The principal question for determination was whether Pt III of Sch 7 to the Income Tax Rates Act 1986 (Cth) ("the Rates Act") contravened Art 25(1) of the Convention between Australia and the United Kingdom for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income and on Capital Gains ("the United Kingdom convention") by imposing a more burdensome taxation requirement on a national of the United Kingdom than that imposed on an Australian national in the same circumstances. Article 25(1) of the United Kingdom convention relevantly provides that nationals of the United Kingdom shall not be subjected in Australia to "other or more burdensome" taxation than is imposed on Australian nationals "in the same circumstances, in particular with respect to residence". From 1 January 2017, Pt III of Sch 7 to the Rates Act applied a new tax rate to people holding a Working Holiday (Temporary) (Class TZ) (Subclass 417) visa (a "working holiday visa"). The new tax rate was a flat rate of tax of 15 per cent to the first $37,000 of an individual's "working holiday taxable income", a maximum tax liability of $5,550. Under Pt I of Sch 7 to the Rates Act, the tax burden for an Australian national deriving taxable income from the same source during the same period was less: an Australian national was entitled to a tax-free threshold for the first $18,200 and was then taxed at 19 per cent up to $37,000, a maximum tax liability of $3,572. The appellant, Ms Addy, is a national of the United Kingdom who, between August 2015 and May 2017, lived and worked in Australia while holding a working holiday visa. On appeal to the High Court, there was no dispute that Ms Addy was an Australian resident for tax purposes during the 2017 income year. The respondent, the Commissioner of Taxation, issued Ms Addy with an amended notice of assessment for that income year which applied Pt III of Sch 7 to Ms Addy's assessable income after 1 January 2017. The High Court unanimously held that Art 25(1) of the United Kingdom convention requires a comparison between a national of the United Kingdom and an Australian national who is, otherwise than with respect to nationality, "in the same circumstances, in particular with respect to residence". The "same circumstances" that must be considered under Art 25(1) cannot include being or not being the holder of a working holiday visa, because that status depends on nationality. Ms Addy was an Australian resident for tax purposes and was taxed at rates applied under Pt III of Sch 7 to the Rates Act. An Australian national deriving taxable income from the same source during the same period would have been taxed at a lower rate under Pt I of Sch 7. The more burdensome taxation was imposed on Ms Addy owing to her nationality and, for that reason, contravened Art 25(1) of the United Kingdom convention.
+HIGH COURT OF AUSTRALIA 10 April 2014 ATTORNEY-GENERAL FOR THE NORTHERN TERRITORY & ANOR v EMMERSON & ANOR [2014] HCA 13 Today the High Court, by majority, held that a statutory scheme for the forfeiture of property, effected by the combined operation of s 36A of the Misuse of Drugs Act (NT) and s 94 of the Criminal Property Forfeiture Act (NT), was within the legislative power of the Northern Territory Legislative Assembly and was valid. Section 36A of the Misuse of Drugs Act provides that the Supreme Court of the Northern Territory can declare that a person who, within a 10 year period, has been convicted three or more times of certain offences is a "drug trafficker". Section 94(1) of the Criminal Property Forfeiture Act provides for the forfeiture to the Northern Territory of property owned, effectively controlled or given away by that person without the need for a further court order. The Director of Public Prosecutions applied successfully to the Supreme Court for a declaration that Mr Emmerson was a drug trafficker. The Court of Appeal of the Northern Territory, by majority, allowed Mr Emmerson's appeal and set aside the primary judge's declaration. The majority concluded that the statutory scheme was invalid because it required the Supreme Court to act in a manner incompatible with the proper discharge of the Court's function as a repository of federal jurisdiction and with its institutional integrity. All members of the Court of Appeal rejected Mr Emmerson's submission that the statutory scheme effected an acquisition of property otherwise than on just terms, within the meaning of s 50(1) of the Northern Territory (Self-Government) Act 1978 (Cth), and rejected his purported construction of s 52(3) of the Criminal Property Forfeiture Act. By special leave, the Attorney-General for the Northern Territory appealed to the High Court. The High Court, by majority, allowed the appeal and held that s 36A of the Misuse of Drugs Act and s 94(1) of the Criminal Property Forfeiture Act were compatible with the limits imposed on State and Territory legislative power by Ch III of the Constitution. The impugned provisions did not operate to deny the Supreme Court such independence and impartiality as is compatible with its constitutional role as a repository of federal jurisdiction. The Court held that ss 36A and 94(1) did not effect an acquisition of property otherwise than on just terms. Further, the Court held that s 52(3) of the Criminal Property Forfeiture Act did not contain any temporal limitation on restraining orders imposed under that Act.
+HIGH COURT OF AUSTRALIA 8 April 2015 COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA & ORS v QUEENSLAND RAIL & ANOR [2015] HCA 11 Today the High Court unanimously held that Queensland Rail is a trading corporation within the meaning of s 51(xx) of the Constitution, with the consequence that the relations between Queensland Rail and its employees are governed by federal industrial relations law and not Queensland industrial relations law. Queensland Rail operates as a labour hire company and provides labour used by a related entity, Queensland Rail Limited, in the operation of rail services in Queensland. Queensland Rail was established by the Queensland Rail Transit Authority Act 2013 (Q) and, by that Act, Queensland Rail "is not a body corporate" but it has all the powers of an individual to create and be made subject to legal rights and duties, and it may sue and be sued in its own name. The Act also provided for the relations between Queensland Rail and its employees to be governed by Queensland industrial relations law. The plaintiffs, each an association or organisation of employees, brought a proceeding in the original jurisdiction of the High Court alleging that Queensland Rail and its employees are subject to federal industrial relations law. They alleged that Queensland Rail is a "trading corporation" within the meaning of s 51(xx) of the Constitution and therefore, by the terms of the Fair Work Act 2009 (Cth), an employer subject to the operation of that Act. The plaintiffs also alleged that provisions in the Queensland Rail Transit Authority Act 2013 (Q) and in the Industrial Relations Act 1999 (Q) which sought to apply Queensland industrial relations law to Queensland Rail and its employees were inconsistent with the Fair Work Act 2009 (Cth), and to that extent were invalid by operation of s 109 of the Constitution. The High Court unanimously found that Queensland Rail is a trading corporation within the meaning of s 51(xx) of the Constitution and subject to the Fair Work Act 2009 (Cth). It followed that the provisions in the Queensland Acts which sought to apply Queensland industrial relations law to Queensland Rail and its employees were invalid.
+HIGH COURT OF AUSTRALIA 9 October 2014 KENTWELL v THE QUEEN O'GRADY v THE QUEEN [2014] HCA 37 [2014] HCA 38 Today the High Court unanimously allowed two appeals against decisions of the Court of Criminal Appeal of the Supreme Court of New South Wales refusing the appellants' applications to extend time within which to apply for leave to appeal against sentence. In 2009, Mr Kentwell was convicted in the District Court of New South Wales of two offences which were subject to standard non-parole periods at the time at which they were committed. In 2010, Mr O'Grady was separately convicted in the District Court of one offence subject to a standard non-parole period. In each case, the sentencing judge sentenced the appellant conformably with the approach to sentencing for standard non-parole period offences laid down by the Court of Criminal Appeal in R v Way (2004) 60 NSWLR 168. Neither Mr Kentwell nor Mr O'Grady applied for leave to appeal against their respective sentences within the relevant time period required by the Criminal Appeal Act 1912 (NSW) and the Criminal Appeal Rules (NSW). In 2011, in Muldrock v The Queen (2011) 244 CLR 120, the High Court held that Way was incorrectly decided. In turn, each appellant separately applied to the Court of Criminal Appeal for an extension of time within which to apply for leave to appeal against sentence, asserting, amongst other things, error of the kind identified in Muldrock. The Court of Criminal Appeal separately dismissed each application. In each case, the Court approached the exercise of the discretion conferred by the Act and the Rules to extend time by applying a test formulated in Abdul v The Queen [2013] NSWCCA 247 for applications based on "Muldrock error". That test requires the court to ask whether refusal of the application would occasion substantial injustice. In each case, the Court found that the sentencing of the appellant was affected by material error, but nonetheless dismissed the application because the appellant had failed to demonstrate that substantial injustice was occasioned by the sentence. By grant of special leave, Mr Kentwell and Mr O'Grady appealed to the High Court. The Court held that Abdul was wrongly decided. The wide discretion conferred on the Court of Criminal Appeal under the Act and the Rules is to be exercised by consideration of what the interests of justice require in the particular case. It was an error to introduce in applications for an extension of time based on asserted "Muldrock error" consideration of whether refusal of the application would occasion substantial injustice. In applying the Abdul test in the appellants' cases, the Court of Criminal Appeal wrongly confined its discretion. Accordingly, the High Court allowed the appeals, set aside the orders of the Court of Criminal Appeal and remitted the applications for extension of time to that Court for determination.
+HIGH COURT OF AUSTRALIA 6 April 2005 BRETT GEORGE JERZY CZATYRKO v EDITH COWAN UNIVERSITY The University failed in its duty of care to Mr Czatyrko by not providing him with a safe system of work, the High Court of Australia held today. Mr Czatyrko, 43, was a general assistant at the University in 1997 when he was injured while loading boxes of books and documents on to a truck with colleague Reece John Fendick. The truck had a hydraulic lifting platform which emitted a loud noise when being raised and a clanging sound when it reached its full height but no sound was emitted when it was lowered. Both men loaded boxes on to trolleys and took them up into the truck with the platform. When they were told they needed to hurry, Mr Fendick went back and forth collecting boxes on his trolley while Mr Czatyrko arranged the boxes inside the truck. When the truck was almost full and Mr Fendick was taking the platform down Mr Czatyrko stepped backwards and fell heavily. He sued the University in the Western Australian District Court for damages for negligence arising from an alleged failure to provide safe equipment and a safe system of work. Mr Czatyrko claimed the University failed to take reasonable precautions for his safety by not providing a warning device to indicate that the platform was descending, by instructing him and Mr Fendick to do their work hurriedly and in a manner that ignored safety issues, and by failing to have a system in place requiring that an employee lowering the platform alert other employees. The University denied liability and contended that Mr Czatyrko’s injuries were caused by his own negligence because he failed to look behind him. District Court Judge Peter Martino awarded him $379,402 after finding that the University was entirely responsible. Judge Martino held that the University had exposed Mr Czatyrko to unnecessary risk of injury, that it was foreseeable that Mr Czatyrko would not realise the platform had been lowered, and that his belief that the platform was in place when he stepped backwards was reasonable. The University successfully appealed to the Full Court of the Supreme Court of WA which held that Mr Czatyrko was under an obligation to take reasonable care to avoid foreseeable risk of injury to himself and that his injuries were caused by his own negligence. He then appealed to the High Court. The Court unanimously allowed the appeal. It held that employers must take reasonable care to avoid risks of workplace injury. Employers must take into account possible thoughtlessness, inadvertence or carelessness, particularly with repetitive work. In its failure to implement necessary safety measures the University was in breach of its duty to take reasonable care to prevent the risk of injury. The Court held that the issue was not simply of failing to warn Mr Czatyrko of a risk, but of creating a risk by failing to adopt a safe system of work. Repetitive work in a diminishing space under pressure to do the job quickly left wide scope for inadvertently stepping backwards without noticing whether the platform was raised.
+HIGH COURT OF AUSTRALIA 22 June 2011 MAURICE BLACKBURN CASHMAN v FIONA HELEN BROWN [2011] HCA 22 Ms Brown was a salaried partner employed by Maurice Blackburn Cashman ("MBC") in its legal practice in Melbourne. Ms Brown alleged that between January and November 2003 she had been "systematically undermined, harassed and humiliated" by a fellow employee, despite complaints and requests for intervention made to MBC's managing partner, and that, as a result, she had suffered injury, including psychiatric injury. In December 2005, Ms Brown made a claim against MBC under the Accident Compensation Act 1985 (Vic) ("the Act") for compensation for non-economic loss. The Act provided for payment of compensation "in respect of an injury resulting in permanent impairment as assessed in accordance with section 91". Section 91 of the Act prescribed how the assessment of the degree of impairment of a worker was to be made. No compensation was payable if the degree of impairment was less than 30 per cent. The Victorian WorkCover Authority ("the Authority") was required under the Act to "receive and assess and accept or reject claims for compensation" and to pay "compensation to persons entitled to compensation under" the Act. In February 2006 the Authority accepted that Ms Brown had a psychological injury arising out of her employment with MBC. Ms Brown disputed the determination of her impairment made by the Authority. The Authority was therefore required by the Act to refer to a Medical Panel, established under the Act, questions relating to the degree of impairment resulting from the injury claimed by Ms Brown and whether she had an injury which was a "total loss". In June 2006 a Medical Panel provided its opinion that there was a 30% psychiatric impairment resulting from the accepted psychological injury and that the impairment was permanent. Under the Act this was deemed to be a "serious injury" which entitled Ms Brown to bring proceedings against her employer at common law. In 2007 Ms Brown commenced proceedings in the County Court of Victoria against MBC claiming damages for personal injuries she alleged she had suffered as a result of MBC's negligence. MBC denied that she had suffered injury, loss and damage. Ms Brown asserted, among other things, that MBC was precluded from "making any assertion whether by pleading, submission or otherwise" and from "leading, eliciting or tendering evidence, whether in chief or in cross-examination or re- examination" that was inconsistent with the Medical Panel's opinion that she had, as at the date of that opinion, a "serious injury" as defined in s 134AB(37)(c) of the Act, a permanent severe mental disturbance or disorder or a psychological injury arising out of her employment. The parties asked the trial judge to reserve questions, relating to whether MBC was confined in its defence by the Medical Panel's opinion, for the opinion of the Court of Appeal of the Supreme Court of Victoria. The Court of Appeal answered those questions adversely to MBC. MBC appealed, by special leave, to the High Court of Australia. In the High Court the central issue was whether, as the Court of Appeal held, MBC was precluded either by the Act or by estoppel from contesting in evidence or argument in the County Court the existence and extent of Ms Brown's injury. The High Court held that MBC was not precluded, either under the Act or as a matter of estoppel, from advancing the relevant contentions. Accordingly, the High Court allowed MBC's appeal.
+HIGH COURT OF AUSTRALIA 9 March 2004 SIEMENS LTD v SCHENKER INTERNATIONAL (AUSTRALIA) PTY LTD AND Siemens could recover just a portion of the cost of damage to a shipment of telecommunications equipment because a limit on liability for such loss while the goods were airlifted from Germany to Melbourne applied all the way to the transport company’s warehouse, the High Court of Australia held today. In 1996 Siemens Australia imported from its German parent a consignment of equipment as part of a contract with Telstra. Transport was undertaken by the German and Australian arms of Schenker. Siemens and Schenker had had a standing arrangement since the 19th century. At Tullamarine Airport the consignment was collected by Schenker Australia for delivery to its warehouse. Some equipment fell off the truck due to the driver’s negligence. Siemens Australia sued Schenker Australia and Schenker Germany in the Supreme Court of New South Wales. The Schenker companies did not dispute their liability for the accident but sought to limit it either by reference to the International Convention for the Unification of Certain Rules Relating to International Carriage by Air (the Warsaw Convention) or by reference to the air waybill issued by Schenker Germany. The Court rejected both limitation provisions and awarded Siemens $1.69 million including interest. The Court of Appeal agreed the Warsaw Convention did not apply but held that the waybill governed the rights and obligations of the parties, including limitation on liability, and reduced damages to $US74,680 plus interest. Siemens Australia appealed to the High Court which upheld the Court of Appeal decision. The High Court agreed the Warsaw Convention did not apply beyond the limits of an aerodrome and that the waybill did. Clause 4 of the waybill specified that where the Warsaw Convention did not apply, the carrier’s liability was limited to $US20 per kilogram of goods damaged or lost. Siemens Australia argued that the waybill only applied to “carriage by air”. The Schenker companies argued that the waybill continued to operate at least until the consignment was delivered to the warehouse so it applied to damage to the consignment en route there. The High Court held that the Schenker argument was valid because Clause 4 operated only in respect of carriage to which the Warsaw Convention did not apply so “carriage” had a different meaning. Secondly, the terms of the standing agreement appeared to include transport to the warehouse. Thirdly, the statutory regime permitted no other possibility as Schenker Australia had permission under the Customs Act to have customs inspections performed at the warehouse, provided goods were taken directly there. Therefore, the damage sustained while complying with such requirements fell within the terms of clause 4 of the waybill. The High Court, by a 3-2 majority, dismissed the appeal with costs.
+HIGH COURT OF AUSTRALIA 14 June 2006 Public Information Officer ANDREW BATISTATOS (by his tutor William George Rosebottom) v ROADS AND TRAFFIC AUTHORITY OF NEW SOUTH WALES ANDREW BATISTATOS (by his tutor William George Rosebottom) v NEWCASTLE CITY COUNCIL A man who tried to sue over injuries suffered in a motor vehicle accident near Newcastle in 1965 could not proceed as a fair trial was no longer possible, the High Court of Australia held today. Mr Batistatos, 74, has spent much of his life in institutions. His mother died when he was two and he and his brother and sister went into children’s homes. At age five, he was committed to the Newcastle Mental Asylum as he was mentally retarded. He was later assessed as having an IQ of 69. Mr Batistatos was released from the asylum in 1954 and worked for the Department of Public Works as a cleaner until the accident left him a quadriplegic. He was returning from a party when his van overturned on Fullerton Street in Stockton in August 1965. Mr Batistatos spent the next 14 years in a hospital and a nursing home until his brother located him. He has lived with his sister in Sydney since 1982. The accident was allegedly caused by the negligence of Newcastle City Council and the Roads and Traffic Authority in the design, construction or maintenance of the road. The dog leg-shaped road lacked warning signs, lighting and reflector posts. Vegetation allegedly obscured vision where the crash occurred. The road has since been straightened. Mr Batistatos commenced an action for damages against the RTA and the Council in the New South Wales Supreme Court in December 1994. He claimed that, despite the lapse of 29 years since the accident, he was not barred from bringing his action by the Limitation Act because he was a person under a disability within section 11(3) of the Act. The consequence of that would be that the ultimate bar of 30 years under section 51(1) applied to him. The RTA and the Council sought summary dismissal or permanent stay of the action. They claimed the lapse of time meant a fair trial was no longer possible and constituted an abuse of process. Police records, medical records, road design and construction documents, people involved in road maintenance before 1965, and the identity of the insurer in 1965 could no longer be located, and the physical state of the road had changed substantially. Under Supreme Court Rules, where it appears no reasonable cause of action is disclosed, the proceedings are frivolous or vexatious, or the proceedings are an abuse of process of the Court, the Court may order that the proceedings be stayed or dismissed. Justice Clifton Hoeben rejected the applications to dismiss or stay the action. He rejected the argument that Mr Batistatos’s claim was so obviously untenable it could not possibly succeed and held that the Council and the RTA had failed to show they could not have a fair trial. The NSW Court of Appeal allowed an appeal by the RTA and the Council. It held that they had not shown that the cause of action was untenable, but due to the long period of time since the accident the action could not be fairly tried. Mr Batistatos appealed to the High Court, which by a 4-3 majority, upheld the Court of Appeal decision and dismissed the appeals. It held that an action commenced within the absolute 30-year limit may still be subject to a stay for abuse of process and that it is not necessary for there to be some oppressive conduct on the part of a plaintiff in commencing the action before a permanent stay may be granted.
+HIGH COURT OF AUSTRALIA 8 November 2018 RICHARD JOHN McPHILLAMY v THE QUEEN [2018] HCA 52 Today the High Court published its reasons for orders made on 9 August 2018, allowing an appeal from the Court of Criminal Appeal of the Supreme Court of New South Wales, quashing the appellant's convictions and directing a new trial. In 2015, following a trial before a judge and jury, the appellant was convicted of six sexual offences alleged to have been committed between 1995 and 1996 against "A". At the time, "A" was an 11-year- old altar boy under the supervision of the appellant in his role as an acolyte. On "A"'s account, the offences occurred on two Saturday nights before mass when the appellant followed him into the church's public toilet. The appellant did not give evidence at trial. The appellant's case was that "A" had made up the allegations to support his claim for compensation from the Catholic Church, knowing that the appellant had been charged with sexual offences against boys, but without knowing the details of those offences. "A" had previously told police that he had falsely stated in his compensation application that the appellant had anally penetrated him. Over objection, the prosecution led tendency evidence from two men, "B" and "C". In 1985, "B" and "C" were about 13 years old and were boarding students at a college at which the appellant was then an assistant housemaster. "B" and "C" gave evidence that they had separately sought out the appellant when they felt homesick. On their accounts, the appellant had then comforted them in the appellant's room before committing sexual acts against them. At the trial for offences against "A", the appellant did not challenge the evidence of "B" or "C". The jury were instructed that the prosecution relied on the tendency evidence as demonstrating the appellant's "sexual interest in male children in their early teenage years who were under his supervision". The appellant appealed against his convictions to the Court of Criminal Appeal, challenging the admission of the tendency evidence. Tendency evidence is not admissible unless the court considers that it possesses "significant probative value". A majority of the Court of Criminal Appeal held that the tendency evidence strongly supported the prosecution case and had been rightly admitted. By grant of special leave, the appellant appealed to the High Court. The High Court held that, while the tendency evidence was capable of establishing that the appellant had a sexual interest in young teenage boys, it did not meet the threshold requirement of significant probative value in circumstances in which there was no evidence that the asserted tendency had manifested itself in the decade prior to the commission of the alleged offending. The tendency evidence rose no higher than to insinuate that, because the appellant had sexually offended against "B" and "C" ten years before, in different circumstances, he was the kind of person who was more likely to have committed the offences that "A" alleged. It was not, however, capable of affecting to a significant extent the assessment of the likelihood that the appellant committed the offences alleged by "A".
+HIGH COURT OF AUSTRALIA 15 June 2006 Public Information Officer BEROWRA HOLDINGS PTY LTD v RODNEY JOHN GORDON BRIGHTON UND REFERN PLASTER PTY LIMITED under external administration and/or controller appointed v SCOTT RAYMOND BOARDMAN A lack of strict compliance by two injured workers with workers compensation laws did not prevent them from pursuing damages from their employers, the High Court of Australia held today. Mr Gordon was a farm hand on “Berowra” near Dubbo in central New South Wales when his legs were severely injured by the spinning shaft of a post hole digger. Mr Boardman was employed by Brighton as a carpenter on a construction site in the Sydney suburb of Rockdale when he developed persistent back injuries from lifting and laying Hebel blocks weighing up to 150kg. Both were injured in 2001. Section 151C of the NSW Workers Compensation Act stipulates that a worker cannot commence court proceedings against an employer for damages until six months have elapsed since the employer was notified of the injury. Both workers initiated proceedings in the NSW District Court before the six months had elapsed. Neither Berowra nor Brighton took any point as to non-compliance with section 151C until considerable time had passed and after numerous steps had been taken pursuant to the District Court Rules. In Mr Gordon’s case, Berowra took no point in relation to non-compliance with section 151C until the day before the case was set for hearing in the District Court, 18 months after Mr Gordon filed his statement of claim. An offer of compromise, valid for 28 days, had been made under the District Court Rules and this could not be withdrawn without leave of the Court. The evening before the hearing, Berowra’s solicitors told Mr Gordon’s solicitors that they would apply to the Court to withdraw the offer, seek an order that the proceedings were a nullity, and seek summary dismissal. The next morning, Mr Gordon’s solicitors faxed Berowra’s solicitors his notice of acceptance of the offer of compromise. At the hearing that day, the District Court held that the proceedings were a nullity and should be dismissed. This was reversed by the NSW Court of Appeal. Berowra then obtained special leave to appeal to the High Court. In Mr Boardman’s case, when Brighton failed to appear at a show cause hearing in April 2002, an order for judgment was made against it under the District Court Rules, it was deemed to have admitted liability, and the matter was listed to proceed to trial for the assessment of damages. In August 2002, 13 months after the statement of claim had been filed, Brighton first raised section 151C when it filed a notice of motion for summary dismissal of the proceedings for non-compliance. The order for judgment was still in force when the notice of motion came on for hearing in February 2004. The Court accepted Mr Boardman’s argument that Brighton by its conduct had waived its right to rely on section 151C and dismissed its motion. The Court of Appeal refused leave to appeal and Brighton obtained special leave to appeal to the High Court. The Court unanimously dismissed both appeals. It held that non-compliance with section 151C did not render the proceedings a nullity. Section 151C should not be read as if waiting six months to commence court proceedings were a precondition to the jurisdiction conferred upon the District Court to determine claims for work injury damages. The section does not extinguish or create rights; rather, it postpones the remedy. Section 151C potentially gives defendants a right to apply to strike out proceedings commenced in non-compliance, but that right must be exercised in accordance with the procedural rules of the Court. The effect of non-compliance will depend in each case upon a defendant’s actions under the Rules of Court.
+HIGH COURT OF AUSTRALIA 14 March 2018 POUYAN KALBASI v THE STATE OF WESTERN AUSTRALIA [2018] HCA 7 Today the High Court, by majority, dismissed an appeal from the Court of Appeal of the Supreme Court of Western Australia. The appellant was convicted, following a re-trial before judge and jury in the District Court of Western Australia, of attempting to possess a prohibited drug with intent to sell or supply to another, contrary to ss 6(1)(a) and 33(1) of the Misuse of Drugs Act 1981 (WA) ("the MDA"). It was the prosecution case that the appellant had attempted to possess a consignment of 4.981 kg of 84% pure methylamphetamine. The police had removed the drugs and replaced them with rock salt prior to the collection of the consignment. The consignment note recorded a mobile telephone number to be contacted for collection. Evidence linked the appellant to that number. The consignment was collected by a man named Lothian, who was known to the appellant. The appellant was present at Lothian's premises when the "drugs" were unpacked. Mixing bowls, digital scales, disposable gloves and a substance used to cut methylamphetamine were found in the premises shortly after the appellant's arrest. The appellant's DNA was found on the inside of one of the disposable gloves. The sole issue at trial was whether the appellant was in possession (whether jointly with Lothian or otherwise) of the "drugs" during the period that he was inside Lothian's premises. Under s 11 of the MDA, a person who is in possession of more than 2 g of methylamphetamine is deemed to possess it with intent to sell or supply to another subject to proof to the contrary. In Krakouer v The Queen (1998) 194 CLR 202, the High Court held that s 11 does not apply to the prosecution of a charge of attempted possession of a prohibited drug with intent to sell or supply to another. The appellant's trial was conducted on the common, mistaken, assumption by the parties and the trial judge that s 11 was engaged. The jury was directed that, in the event it was satisfied that the appellant was in possession of the "drugs", his intention to sell or supply them to another would be proved beyond reasonable doubt. The appellant appealed against his conviction to the Court of Appeal of the Supreme Court of Western Australia. The State conceded that the trial judge's direction concerning proof of the element of intention was wrong. The Court of Appeal upheld the State's submission that the appeal should nonetheless be dismissed under s 30(4) of the Criminal Appeals Act 2004 (WA), which provides that the Court of Appeal may dismiss the appeal if it considers that "no substantial miscarriage of justice has occurred" ("the proviso"). By grant of special leave, the appellant appealed to the High Court on the ground that the Court of Appeal erred in applying the proviso. The High Court declined to re-open the principles governing the proviso stated in Weiss v The Queen (2005) 224 CLR 300. The majority rejected the appellant's contention that he was "not in reality tried for the offences for which he was indicted". The majority found that there was no basis in the evidence, or in the way the appellant's case had been run, that left open that the appellant may have been in possession of a lesser quantity of the "drugs" with a view to purchase for his own use, or that he possessed the "drugs" without intent to sell or supply to another. Rather, the sole issue at trial was whether he was in possession of the whole of the substitute "drugs". In the circumstances, the majority held that the Court of Appeal was correct to reason that proof of the attempt to possess nearly 5 kg of 84% pure methylamphetamine compelled the conclusion that it was the appellant's intention to sell or supply the drugs to another. Therefore, the majority held that the Court of Appeal was correct in concluding that the misdirection did not result in a substantial miscarriage of justice.
+HIGH COURT OF AUSTRALIA 5 December 2012 WESTFIELD MANAGEMENT LIMITED AS TRUSTEE FOR THE WESTART TRUST v AMP CAPITAL PROPERTY NOMINEES LIMITED AS NOMINEE OF UNISUPER LIMITED IN ITS CAPACITY AS TRUSTEE OF THE COMPLYING SUPERANNUATION FUND KNOWN AS UNISUPER [2012] HCA 54 Today the High Court unanimously dismissed an appeal from a decision of the Court of Appeal of the Supreme Court of New South Wales regarding the terms of a unitholders' agreement between two corporations. The High Court held that the terms of the agreement did not fetter a party's statutory right to vote for the winding up of a managed investment scheme under the Corporations Act 2001 (Cth) ("the Act"). Westfield and AMP Capital Property Nominees are the unitholders of a trust set up to acquire and operate a shopping centre in Perth. The trust is a managed investment scheme registered under the Act. AMP sought to invoke its right under the Act to vote on a resolution to direct that the scheme be wound up, and requested that a members' meeting be convened for that purpose. AMP was in a position to carry the resolution alone because it holds two-thirds of the units in the trust. Westfield opposed the resolution and obtained an injunction from the Supreme Court of New South Wales preventing AMP from voting in favour of it without Westfield's prior consent. Westfield relied upon two provisions of its unitholders' agreement with AMP. The first prohibits the sale of trust property without the written consent of the unitholders, and the second requires members to exercise their voting rights in a way that gives effect to the "intent and effect" of the agreement. The Supreme Court held that by voting for a winding up without Westfield's consent, AMP would breach the second provision because a winding up would inevitably lead to the shopping centre being sold. AMP appealed to the Court of Appeal of the Supreme Court of New South Wales. The Court of Appeal held that "intent and effect" of the prohibition on selling trust property without consent did not include preventing a sale following a determination of the trust. Therefore, the restriction on how voting rights could be exercised did not preclude AMP from voting in favour of the resolution to wind up the scheme. The injunction was set aside. Westfield appealed by special leave to the High Court. The High Court unanimously dismissed the appeal. The Court held that, on its proper construction, the prohibition on selling trust property without consent is directed to a sale during the continuance of the scheme; it does not apply where a resolution is passed by members to wind up the scheme, even if that would result in the trust property being sold.
+HIGH COURT OF AUSTRALIA Manager, Public Information 28 May 2009 FRIEND v BROOKER & ANOR [2009] HCA 21 Today the High Court determined that a director of a company who borrowed from a third party to on- lend the money to the company could not claim contribution from a fellow director toward repaying the third party lender. The remedy of equitable contribution did not apply where there was no co-ordinate liability or common obligation on the part of the two directors. In May 1977 Mr Frederick Brooker, a civil engineer, and his colleague, Mr Nicholas Friend, agreed that they would set up a construction business together. Although the business relationship was initially created as a partnership, they incorporated the company of Friend & Brooker Pty Ltd on 18 July 1977 to carry on the business. Each of Mr Friend and Mr Brooker was a shareholder and director of the company. Over the years they each obtained loans from family and friends which were then advanced as loans to the company, to ensure the company could continue to operate during periods of financial difficulty. The company’s indebtedness appeared in its books as debts due to either of the directors, Mr Friend or Mr Brooker. In 1986 Mr Brooker obtained one such loan of $350,000 from SMK Investments Pty Ltd (the SMK loan). By December 1995, with the accrual of interest, the amount needed to repay the loan was $1.1 million. The company ceased to trade in 1990 and was deregistered in 1996. Thereafter Mr Brooker and Mr Friend disputed the company accounts and who was responsible for repayment of various loans. In 2000 Mr Brooker filed a claim in the Supreme Court of NSW alleging that the company had been a corporate vehicle for the conduct of a partnership or joint venture between the two men. He sought the taking of a full account of the partnership and recovery for loss he had suffered because Mr Friend refused to make equal contribution to the repayment of his personal borrowings made for the purpose of the business. The primary judge dismissed the claim, having found no evidence to support Mr Brooker’s contentions that a partnership or joint venture existed. He considered the law concerning corporate insolvency should determine how the debts owed by the company were be dealt with. Mr Brooker appealed to the NSW Court of Appeal and, in allowing the appeal, the majority considered that Mr Friend had an equitable duty to contribute equally to repayment of the SMK loan. The High Court granted special leave to Mr Friend to appeal from that decision. In a unanimous decision, the High Court considered the equitable doctrine of contribution could not be extended to overcome the undisturbed findings of the primary judge that, after the company was created, Mr Brooker and Mr Friend were neither in a partnership nor a joint venture. Mr Brooker and Mr Friend had set up a corporate structure as the vehicle for their business enterprise and the consequences were that companies legislation determined how the debts owed by the company were to be dealt with. The Court also held that there was no fiduciary obligation requiring Mr Brooker and Mr Friend to be personally liable to each other for losses flowing from their personal borrowings. The Court allowed Mr Friend’s appeal and reinstated the decision of the primary judge.
+HIGH COURT OF AUSTRALIA Public Information Officer 10 May 2006 LEIGH WILLIAM DALTON v NSW CRIME COMMISSION, COMMONWEALTH ATTORNEY-GENERAL AND NEW SOUTH WALES ATTORNEY-GENERAL The ability of a State or Territory to serve, in other parts of Australia under Commonwealth law, a summons to appear before a tribunal, was upheld by the High Court of Australia today. Section 76 of the Commonwealth Service and Execution of Process Act empowers Supreme Courts of States and Territories to grant leave to serve subpoenas outside the relevant State or Territory to compel a person to appear before a tribunal or to produce documents or other items to a tribunal. The Crime Commission, which investigates illegal drug trafficking, organised crime and other criminal activity, met the SEP Act’s definition of tribunal. In November 2003 it began a drug operation codenamed “Gymea IV”. On 12 March 2004, the Commission issued a summons for Mr Dalton to appear before it on 5 April 2004 to give evidence. The summons was a subpoena relating to an investigative function as required by the Act. The NSW Supreme Court granted leave to serve the subpoena on Mr Dalton whose address was in St Kilda East in Melbourne. Service took place in Melbourne on 22 March 2004. In the Supreme Court Mr Dalton challenged the subpoena on the ground that section 76 of the SEP Act is unconstitutional. Proceedings were referred to the Court of Appeal which, by majority, rejected the challenge. Mr Dalton then appealed to the High Court. The Court unanimously dismissed the appeal. It held that Mr Dalton failed to demonstrate the invalidity of section 76, therefore service was effective in accordance with federal law. Section 76 is a law supported by section 51(xxiv) of the Constitution which provides that Parliament can make laws with respect to the service and execution throughout the Commonwealth of the civil and criminal process and the judgments of the courts of the States. Mr Dalton had argued that the summons did not answer the description “the civil and criminal process” because this was said to refer only to the process of bodies which determine disputes between persons or the enforcement of the criminal law by prosecution and trial. He said the laying of criminal charges preceded by an investigation does not render the investigative process of a body such as the Commission part of the criminal process. The Court held that “civil and criminal” in section 51(xxiv) of the Constitution were not words of limitation or qualification, but words of universal description embracing all that might be described as a “process”. The Court also rejected Mr Dalton’s argument that a subpoena served under section 76 of the SEP Act was one issued in relation to an investigative function, rather than an adjudicative function, so did not fall within section 51(xxiv). Mr Dalton submitted that because courts do not have investigative functions there could be no extension by analogy to tribunals. However, the Court held that Australian courts have always had a range of investigative functions and Mr Dalton’s argument failed.
+HIGH COURT OF AUSTRALIA 8 November 2007 Public Information Officer WESTON ALUMINIUM PTY LIMITED v ALCOA AUSTRALIA ROLLED PRODUCTS PTY LIMITED (appeal) WESTON ALUMINIUM PTY LIMITED v ENVIRONMENT PROTECTION AUTHORITY AND ALCOA AUSTRALIA ROLLED PRODUCTS PTY LIMITED (special leave application) An aluminium recycling plant was not permitted to process aluminium dross brought in from interstate without a separate development consent, the High Court of Australia held today. In 1996, Alcoa acquired Comalco Australia’s aluminium manufacturing plant at Yennora in western Sydney. Since the 1960s, aluminium cans and other scrap have been recycled at Yennora by melting them down and casting them into blocks or bars. Melting aluminium scrap produces aluminium dross which, when used as feedstock in a rotary furnace, allows recovery of more aluminium. Smelting also produces aluminium dross and since 2002, when it obtained a variation to its licence under the Protection of the Environment Operations Act (PEO Act), Alcoa has brought dross from its smelter at Port Henry in Geelong to Yennora as feedstock. Weston Aluminium brought proceedings in the New South Wales Land and Environment Court (LEC) alleging that the processing of imported dross at Yennora is a land use which requires development consent under the Environmental Planning and Assessment Act (EPA Act) and that Alcoa lacks this consent. Weston sought declarations and an injunction restraining Alcoa from processing imported dross. In 2004, Justice David Lloyd held that Weston was entitled to this relief but no orders granting relief were made because Alcoa applied under the EPA Act for authority to process imported dross at Yennora. The application was not determined within the time limit so Alcoa brought proceedings in the LEC to challenge the deemed refusal of its application. Alcoa obtained leave to appeal out of time against Justice Lloyd’s decision, even though no final orders had been made. In 2005, Weston began further proceedings in the LEC to challenge the variation to Alcoa’s licence to process imported dross. The LEC dismissed these proceedings and Weston appealed to the NSW Court of Appeal. The Court of Appeal ordered that Weston’s first proceedings be dismissed and upheld the LEC’s order dismissing Weston’s second proceedings. By special leave, Weston appealed to the High Court regarding the first proceedings and Weston also sought special leave to appeal in the second proceedings. The High Court unanimously allowed the appeal in the first matter. In the second matter, it granted special leave to appeal, treated the appeal as heard and allowed the appeal. In relation to the first appeal, there was no development consent which permitted Alcoa’s use of the Yennora site to process imported dross. In the second matter, the Court held that the PEO Act provides that the Environment Protection Authority is prohibited from issuing or varying any licence regulating a particular use of land unless development consent has been granted for that use. When the EPA varied the relevant licence, Alcoa did not have development consent to use the Yennora site to process imported dross, therefore the variation was invalid. The matter was remitted to the LEC for further consideration in conformity with the High Court’s decision.
+HIGH COURT OF AUSTRALIA 15 April 2020 SMETHURST & ANOR v COMMISSIONER OF POLICE & ANOR [2020] HCA 14 Today the High Court unanimously held, in answer to questions stated in a special case, that the warrant relied upon by officers of the Australian Federal Police ("the AFP") to authorise the search of the residence of the first plaintiff, Ms Annika Smethurst, was invalid and should be quashed. On 29 April 2018 the second plaintiff, Nationwide News Pty Ltd, published articles authored by Ms Smethurst in its newspaper, the Sunday Telegraph, and on its website. On 4 June 2019 the AFP searched Ms Smethurst's residence in the course of an investigation it was conducting in relation to those articles. The AFP purported to rely upon a warrant issued on 3 June 2019, which in turn relied upon there being "reasonable grounds for suspecting" that the things mentioned in it would afford evidence as to the commission of a Commonwealth indictable offence. In particular, the warrant stated that Ms Smethurst and the Sunday Telegraph "communicated a document or article to a person, that was not in the interest of the Commonwealth, and permitted that person to have access to the document, contrary to section 79(3) of the Crimes Act 1914, Official Secrets". Relying on the warrant, the AFP copied data from Ms Smethurst's mobile phone onto the AFP's laptop. Documents that were identified as falling within the terms of the warrant were copied onto a USB stick belonging to the AFP. The material was then deleted from the laptop, Ms Smethurst's phone was returned to her and the USB stick was taken from the premises. Ms Smethurst and Nationwide News ("the plaintiffs") commenced proceedings in the original jurisdiction of the High Court seeking, among other things, to have the warrant quashed, and to obtain a mandatory injunction requiring the delivery up or destruction of the material copied from Ms Smethurst's mobile phone. The plaintiffs' principal argument for injunctive relief was that an injunction should issue to reverse the consequences of the trespass said to have been committed by the AFP as a result of its reliance on an invalid warrant, namely the retention of the copied material. Arguments were also made that statute or s 75(v) of the Constitution could provide a juridical basis for an injunction. The plaintiffs expressly eschewed the argument that the law should recognise a cause of action of invasion of privacy and that an injunction should be issued to protect a right to privacy. The High Court unanimously held that the warrant relied upon by the AFP was invalid on the ground that it misstated the substance of s 79(3) of the Crimes Act, as it stood on 29 April 2018, and failed to state the offence to which the warrant related with sufficient precision. The entry, search and seizure which occurred on 4 June 2019 were therefore unlawful. Having made this finding, it was not necessary for the Court to consider whether the warrant was invalid on the ground that s 79(3) of the Crimes Act, as it stood on 29 April 2018, infringed the implied freedom of political communication. Nor was it necessary to consider the validity of the order that had been made under s 3LA of the Crimes Act requiring Ms Smethurst to give assistance to enable a constable to access, copy or convert data on a computer or data storage device. The Court unanimously ordered that the warrant be quashed. A majority of the Court declined to grant the injunctive relief sought by the plaintiffs, pointing to the plaintiffs' inability to identify a sufficient right or interest that required protection by way of a mandatory injunction.
+HIGH COURT OF AUSTRALIA 12 February 2009 Public Information Officer TABCORP HOLDINGS LTD v BOWEN INVESTMENTS PTY LTD Tabcorp rented office premises from Bowen Investments. A clause in the lease prohibited the tenant from making substantial alteration or addition to the leased premises without first obtaining the landlord’s written consent. Within six months of leasing the building Tabcorp redesigned and replaced the foyer without the landlord’s consent, written or otherwise. Today the High Court decided Bowen Investments was entitled to damages that would cover both the cost of reinstating the foyer as it had been prior to the unauthorised alteration and the loss of rent while that work was being done, rather than to damages which would cover only the reduction in the value of the premises arising out of the unauthorised work. Mrs Bergamin is a director of Bowen Investments. During 1996 she took particular interest in the construction of the foyer in a building owned by the company, located at 5 Bowen Crescent Melbourne. The foyer utilised San Francisco Green granite, Canberra York Grey granite and sequence-matched crown-cut American cherry timber in its construction. On 23 December 1996 Bowen Investments leased the building to Tabcorp. The lease commenced on 1 February 1997 for a term of 10 years. It contains options to renew for a further five years in 2007 and 2012. Under clause 2.13 Tabcorp promised “not without the written approval of the Landlord first obtained (which consent shall not be unreasonably withheld or delayed) to make or permit to be made any substantial alteration or addition to [the premises]”. On 10 July 1997 Mrs Bergamin had indicated to Tabcorp that Bowen Investments did not consent to any alteration to the foyer. On 11 July 1997 she wrote to Tabcorp advising the landlord could not consent to proposed alterations until they had been examined at a site meeting arranged for 14 July 1997. When Mrs Bergamin attended the premises to inspect the proposal on 14 July she found that a glass and stone partition, timber panelling and stone floor tiles had been removed and that what remained of the floor stone work was being jack-hammered. Despite her protests Tabcorp continued the work of altering the foyer until it was completed in August 1997. Bowen Investments sued Tabcorp for damages in the Federal Court. The trial judge described Tabcorp’s conduct as involving “contumelious disregard” for Bowen Investments’ rights. Neither party disputed the description. The trial judge found there had been a breach of clause 2.13 but determined that the appropriate assessment of damages for the breach was the reduction in the value of the premises arising out of the unauthorised alteration to the foyer. The reduction in value arose out of the reduction in the floor area available for use as office space. The resulting loss of rental income was assessed to be $34,820. On appeal the Full Court of the Federal Court determined that damages should be assessed taking account of the cost of restoring the foyer to its condition before Tabcorp made the alterations. A majority of the Full Court increased the damages to $1.38 million, made up of $580,000 for the cost of restoring the foyer to its original condition and $800,000 for rental losses during the restoration period. The third member of the Full Court wanted to hear further argument about how the damages should be assessed. Tabcorp appealed that decision and two Justices of the High Court granted special leave to appeal on 1 August 2008. In a unanimous decision the High Court held that, in the absence of its giving written consent to any alterations, Bowen Investments was contractually entitled to have the building foyer remain as it had been constructed. By altering the foyer without consent Tabcorp had failed to perform its contractual obligation to preserve the foyer. The appropriate measure of Bowen Investments’ loss was the cost of restoring the foyer to the condition it would have been in had Tabcorp not breached that obligation. The High Court dismissed Tabcorp’s appeal thus confirming the assessment of damages at $1.38 million.
+HIGH COURT OF AUSTRALIA 15 December 2006 Public Information Officer SZBEL v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS AND REFUGEE REVIEW TRIBUNAL SZBEL was denied procedural fairness by the Refugee Review Tribunal when it found aspects of his story to be implausible, the High Court of Australia held today. SZBEL, an Iranian seaman, jumped ship in Port Kembla in April 2001. He applied for a protection visa, saying he feared for his safety because the ship’s captain knew of his attraction to Christianity. The Immigration Department refused him a visa and he sought review of that decision by the RRT. It told SZBEL it was unable to make a decision in his favour on the information supplied, and invited him to appear before it to give evidence. During questioning, the RRT member did not challenge what SZBEL said, express any reaction, or invite him to amplify any of the three particular aspects of his original account which the RRT later deemed implausible. In his visa application SZBEL said he had attended Christian services as often as possible since 1996 in various countries. In December 2000 fellow crew members spotted him coming out of a church in Argentina and took him back to the ship where an officer warned him that displaying interest in Christianity would cost him his job. At home SZBEL told friends about his activities. They urged him to renounce his heresy. He received threatening phone calls. The captain heard from a crew member of rumours circulating in SZBEL’s home town and of the ostracism he experienced there. The captain told SZBEL he would be dealt with when the ship returned to Iran and he would be closely supervised until then. SZBEL said he became increasingly afraid of the crew who thought the captain should lock him up. On 6 April 2001 he was allowed to visit a doctor in Port Kembla as he was ill from the constant harassment. The next day SZBEL jumped ship. The RRT held that his claim that he did so because he feared punishment when the captain handed him to authorities in Iran was not credible. The RRT was sceptical about how the captain came to hear of SZBEL’s conversation with his friends in a town hundreds of kilometres from the ship, that the captain would accuse him of apostasy on the strength of a crew member’s comments, and allowed him to consult a doctor if the captain was intending to hand to Iranian authorities. SZBEL explained that another crew member escorted to and from the doctor. The Federal Magistrates Court dismissed SZBEL’s application for relief, and the Federal Court of Australia dismissed an appeal. He appealed to the High Court, which unanimously allowed his appeal. The Court held that the RRT had not accorded SZBEL procedural fairness. Under the Migration Act, an applicant is to be invited to give evidence and present arguments relating to the issues arising in relation to the decision under review. SZBEL complained that he was not put on notice that his account of how the captain came to know of his interest in Christianity, and the captain’s reaction, were issues arising in relation to the decision under review. Nothing in the department’s decision indicated that these aspects were in issue and the RRT did not challenge what SZBEL said of them. Based on the department’s decision SZBEL would have understood that the determinative question was the nature and extent of his Christian commitment. The Court held that the RRT did not give SZBEL sufficient opportunity to give evidence or make submissions about what turned out to be the decisive issues. It remitted the case to the RRT for rehearing in accordance with the Court’s reasons.
+HIGH COURT OF AUSTRALIA Public Information Officer 13 June 2007 AJS v THE QUEEN AJS was entitled to be acquitted of a charge of incest and should face a trial on the alternative charge of committing an indecent act, the High Court of Australia held today. In 2004 AJS was convicted of incest by digital penetration of his 13-year-old granddaughter. The Victorian Court of Appeal held that that verdict was not open on the evidence and ordered that the conviction be quashed and a new trial held. If the jury had found AJS not guilty of incest they could have considered the alternative charge of committing an indecent act with a child under 16. AJS appealed to the High Court, arguing that the Court of Appeal should have entered a verdict of acquittal on the charge of incest and ordered a new trial on the indecency charge. The High Court unanimously allowed the appeal. It ordered his acquittal on the incest charge and ordered a new trial on the indecency charge. The Court held that a new trial would not be a second or subsequent prosecution but would be the continuation of so much of the original prosecution as remained alive after the Court of Appeal’s determination of the appeal. While the charge of incest has been resolved in AJS’s favour, the other lesser alternative offence remains unresolved. The Court held that no question of double jeopardy arises. Entering a verdict of acquittal on the incest charge does not found a plea that AJS has already been acquitted of the indecent dealing charge, just as a jury verdict of not guilty on the incest count would not have precluded the jury from going on to consider this alternative offence. The power to order a new trial extends to ordering a new trial for an offence for which AJS could have been convicted at the first trial.
+HIGH COURT OF AUSTRALIA Public Information Officer 18 June 2008 MATTHEW LUMBERS AND WARWICK LUMBERS v W COOK BUILDERS PTY LTD (in liquidation) The owners of an Adelaide house did not owe any money to a company which built the house but which was not the company with which the owners contracted for the work, the High Court of Australia held today. Matthew Lumbers owned the land and his father Warwick Lumbers had an unregistered lease of the property for life and lived in the house in the suburb of North Haven. The house was large, of unusual design and expensive, costing more than $1 million to build. In late 1993 the Lumbers entered into an oral agreement with W Cook & Sons (“Sons”) to build the house, completed in May 1995. Warwick Lumbers dealt with long-time employee of the Cook companies David McAdam. The Lumbers chose Sons because of its reputation and because of Mr Lumbers’s confidence in Mr McAdam. The informality of the contract was due in part to this trust. No price was fixed, the contract was never put into writing, and no invoices were ever issued. Rather than progress payments for actual costs incurred, Mr McAdam would periodically phone Mr Lumbers to seek a round sum and Mr Lumbers would send a cheque. Following a corporate reorganisation and without the knowledge of the Lumbers, the work, including engagement of subcontractors and supervision, was performed not by Sons but by an associated company, W Cook Builders (“Builders”). Builders was not a licensed builder. The lump-sum payments to Sons were passed on to Builders. Builders went into liquidation in June 1998. The Lumbers were unaware of Builders until August 1998. In February 1999, Sons director Malcolm Cook wrote to Warwick Lumbers explaining that Builders had taken over building the house following a restructure and advised that nothing was owed by the Lumbers to Sons for the house. In November 1999, Builders served the Lumbers with a demand for an alleged shortfall of $181,904 and $92,887 as a 10 per cent fee for supervising the work, totalling $274,791. No claim had been made before and the supervision fee only appeared in Builders’ books after the liquidation. Builders also sought $274,791 from Sons. It commenced action in the South Australian District Court against both the Lumbers and Sons. Builders failed to provide security for Sons’ costs so the action against Sons was stayed. Builders claimed against the Lumbers on the basis that Sons had assigned the contract to Builders (rather than it being a subcontractor) and for restitution/unjust enrichment. Judge Barry Beazley dismissed both claims. The SA Court of Appeal rejected the assignment claim, but upheld the appeal on restitution, holding that an incontrovertible benefit was conferred on the Lumbers at Builders’ expense and it would be unconscionable for them to keep the benefit of the service without paying a reasonable sum for it. The Lumbers appealed to the High Court which unanimously allowed the appeal and restored Judge Beazley’s judgment. The Court held that the Court of Appeal had not taken sufficient account of the rights and obligations under the contractual relationship between Sons and the Lumbers. The Lumbers were not shown to have unconscionably accepted a benefit at Builders’ expense. They had never asked Builders to do anything in connection with the house. Builders’ remedies lay under its subcontract with Sons.
+HIGH COURT OF AUSTRALIA Manager, Public Information 22 April 2009 ICETV PTY LTD & ANOR v NINE NETWORK AUSTRALIA PTY LTD IceTV provides a subscription based electronic television program guide known as the "IceGuide", which uses time and title information obtained in part from aggregated guides such as those published in newspaper TV guides and online. The aggregated guides are based on TV program scheduling information provided to media outlets by the television networks. The Nine Network provides a weekly schedule which is incorporated into the aggregated guides. The High Court today decided that IceTV's use of some of Nine Network's time and title information obtained from aggregated guides did not infringe Nine's copyright in its weekly schedules. The IceTV guide originated from templates of the daily programming of the Sydney channels, Nine, Ten and Seven prepared by an employee of IceTV who watched television continuously for a period of weeks and wrote down time and title information of programs broadcast throughout that time. The template was then used to predict programs to be broadcast for the purposes of the IceGuide. The IceGuide itself was corrected from week-to-week by reference to the aggregated guides. The aggregated guides are schedules of programs to be broadcast on various television stations over a given week and are published in various media. They are produced from information provided by free-to-air television broadcasters including information provided by the Nine Network via its weekly schedules. The weekly schedule is a schedule of programs to be broadcast on Nine Network stations in a given week and is produced from an electronic database. It contains various elements including the time and title of programs to be broadcast, whether a program is a repeat or live screening, format and classification information, and program or episode synopses. When the IceGuide is downloaded on to certain devices it displays details of programs scheduled to be broadcast by free-to-air television stations for the coming six to eight days, including stations in the Nine Network. In preparing information to be included in the IceGuide for a given day in a current week, IceTV employees would use information usually in the previous week's IceGuide for that specific day, then compare it with the published aggregated guide for that same day in the current week. If there were a discrepancy between the IceGuide and the aggregated guide, the IceGuide would be amended to reflect the aggregated guide in almost all circumstances. Nine Network argued before a single Judge of the Federal Court that IceTV's reproduction of time and title information from the aggregated guides amounted to reproduction of a substantial part of the weekly schedules which had been prepared by Nine Network staff. On that basis the Nine Network argued that IceTV had infringed Nine's copyright in the weekly schedule. The trial judge disagreed. The Nine Network appealed to the Full Court of the Federal Court which allowed the appeal. The High Court granted IceTV special leave to appeal against the Full Court's decision. Today the High Court allowed IceTV's appeal having determined that its use of time and title information in the IceGuide did not infringe Nine's copyright in either the weekly schedule or the database from which the weekly schedule was produced, assuming without deciding that Nine had copyright in the database. The judges of the Court produced two separate sets of reasons. Three judges were of the view that a program's title was ordinarily bestowed by the producer of the program rather than the person or persons who authored the weekly schedule and that expression of the time at which a program is shown can only practically be done by using words or figures based on either a 12 or 24 hour time cycle for a day. Thus there was little originality in the expression of time and title information. The level of skill and labour required to express the time and title information was minimal. These considerations led to the conclusion that the time and title information was not a substantial part of the weekly schedule or of Nine's database. Their Honours determined that IceTV had not infringed Nine's copyright in the weekly schedule or the Nine database when it utilised time and title information from the aggregated guides in the IceGuide. The other three judges considered that the originality of Nine's weekly schedule lay not in the time and title information but rather in its selection and presentation together with additional program information and synopses to produce a composite. They considered that setting down program titles in particular time slots required only modest skill and labour. IceTV's use of the time and title information from the aggregated guide therefore could not be characterised as reproduction of a substantial part of the weekly schedule or of the Nine database. The High Court set aside the orders of the Full Federal Court and restored the orders made by the trial judge.
+HIGH COURT OF AUSTRALIA 8 November 2007 PM v THE QUEEN Public Information Officer The New South Wales District Court had jurisdiction to try a child who was originally charged with an offence that was downgraded to a lesser offence that would ordinarily be dealt with by the Children’s Court, the High Court of Australia held today. In September 2004, when PM was 16, he was given a court attendance notice alleging that he had had non-consensual sexual intercourse with a girl in circumstances of aggravation, namely that she was aged under 16. She was 14. A month later, PM was given another court attendance notice charging him with a second count of aggravated sexual assault in which the circumstance of aggravation was that he caused actual bodily harm to the girl. The first charge, relating to age, was not a serious children’s indictable offence, but the second, relating to bodily harm, was. Under the Children (Criminal Proceedings) Act (CCP Act), the NSW Children’s Court has jurisdiction to hear and determine proceedings in respect of any offence other than a serious children’s indictable offence. At the committal hearing at the Bidura Children’s Court in Glebe in April 2005, the Director of Public Prosecutions proceeded only on the second offence and the magistrate committed PM for trial at the District Court. The DPP filed an indictment containing only the second charge. In March 2006, the DPP filed a fresh indictment containing three counts which were the first charge and two alternative counts: having sexual intercourse with a girl aged between 14 and 16, and assaulting a girl under 16 at the same time committing an act of indecency on her. None of the charges was a serious children’s indictable offence. Shortly after the District Court trial began, the jury sent a note to Judge John McGuire asking why PM was being tried as an adult and PM submitted that the proceedings should be remitted to the Children’s Court. Judge McGuire concluded that, because the Children’s Court had not said that the charges may not be dealt with summarily, the District Court had no jurisdiction to deal with the charges and he remitted the matter to the Children’s Court. The DPP appealed to the Court of Criminal Appeal which, by majority, allowed the appeal and set aside Judge McGuire’s order. PM appealed to the High Court. He argued that all offences not defined as serious children’s indictable offences are required to be dealt with summarily and the District Court had no jurisdiction to hear and determine the charges because he had not asked for a jury trial and the Children’s Court had not decided that it could not properly dispose of the particular charges in a summary manner. The High Court unanimously dismissed the appeal. It held that, while section 44 of the CCP Act gives the District Court power to remit a matter to the Children’s Court if the District Court is satisfied that it does not have jurisdiction to deal with the charge, nothing in the Act excludes or limits its jurisdiction in respect of indictable offences (crimes that warrant a trial by jury). Criminal proceedings against PM were commenced appropriately in the District Court. An indictment that lays charges different from those on which they were committed for trial does not affect the jurisdiction of the court in which the indictment is filed. The CCP Act does not give the Children’s Court exclusive jurisdiction over indictable offences that not are serious children’s indictable offences. The condition for exercising the power under section 44 is not satisfied and the District Court had jurisdiction to deal with the charges against PM.
+HIGH COURT OF AUSTRALIA 22 June 2011 DASREEF PTY LIMITED v HAWCHAR [2011] HCA 21 Today the High Court upheld findings by the Dust Diseases Tribunal of New South Wales ("the Tribunal") and the Court of Appeal of New South Wales that a company (Dasreef Pty Limited) was liable to pay compensation to one of its former workers (Mr Hawchar) for silicosis. The High Court found that the Court of Appeal had erred in rejecting complaints by Dasreef about the admission of opinion evidence by the Tribunal and the Tribunal's reliance on its own experience as a "specialist tribunal". However, the High Court held that in light of other uncontradicted evidence before the Tribunal the Court of Appeal was right to uphold the finding that Dasreef was liable to Mr Hawchar. Mr Hawchar worked for Dasreef as a labourer and stonemason over a period of around five and a half years between 1999 and 2005. He was diagnosed with early stage silicosis in 2006. He brought proceedings in the Tribunal, claiming that he had been exposed to unsafe levels of silica dust while working for Dasreef. Mr Hawchar relied on opinion evidence from Dr Kenneth Basden, a chartered chemist, chartered professional engineer and retired academic. At the time Mr Hawchar was working for Dasreef, a standard prescribing the maximum permitted exposure to respirable silica was applicable. In his report, Dr Basden spoke of an operator of an angle grinder cutting sandstone being exposed to levels of silica dust "of the order of a thousand or more times" the prescribed maximum. The Tribunal and the Court of Appeal took this evidence as expressing an opinion about the numerical or quantitative level of exposure to respirable silica encountered by Mr Hawchar, in the sense that it could form the basis of a calculation of the level of exposure. Section 79(1) of the Evidence Act 1995 (NSW) ("the Evidence Act") provides that "[i]f a person has specialised knowledge based on the person's training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge." The "opinion rule" contained in s 76(1) of the Evidence Act provides that "[e]vidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed." For a witness to give admissible evidence of an opinion about the quantitative level of Mr Hawchar's exposure in the conditions under which he worked it would have to be shown that the witness had specialised knowledge based on their training, study or experience that permitted them to measure or estimate such a figure and that the opinion about the level of exposure was wholly or substantially based on that knowledge. In this case, Dr Basden did not give evidence asserting that his training, study or experience permitted him to provide anything beyond a "ballpark" figure estimating the amount of respirable silica dust to which a worker, when cutting stone with an angle grinder, would be exposed. The witness had seen an angle grinder used in that way only once before. He gave no evidence that he had ever measured, or sought to calculate, the amount of respirable dust to which such an operator would be exposed. The evidence was not admissible to establish the numerical or quantitative level of exposure. The Tribunal also stated in its reasons that it was, as a "specialist tribunal", permitted to take into account its "experience" that silicosis is "usually caused by very high levels of silica exposure" in determining what caused Mr Hawchar's silicosis. The Dust Diseases Tribunal Act 1989 (NSW) provided that, subject to specific exceptions in that Act or the Dust Diseases Tribunal Rules (NSW), proceedings in the Tribunal are governed by the rules of evidence. The High Court held that no exception was engaged in this case and that the Tribunal therefore erred in taking its "experience" into account in determining the cause of Mr Hawchar's silicosis. The Court of Appeal had erred in reaching the same conclusion as the Tribunal. Notwithstanding the findings of error in the approach of the Tribunal and the Court of Appeal, the High Court dismissed Dasreef's appeal. It held that, in light of the undisputed expert evidence that Mr Hawchar was suffering silicosis, evidence as to the cause of the silicosis and the short latency of the disease, and evidence of readily available means of avoiding injury, the Court of Appeal was correct, in the event, to dismiss Dasreef's appeal against the finding of liability. Dasreef was ordered to pay Mr Hawchar's costs.
+HIGH COURT OF AUSTRALIA 15 October 2014 RHIANNON GRAY BY HER TUTOR KATHLEEN ANNE GRAY v RICHARDS [2014] HCA 40 Today the High Court unanimously allowed, in part, an appeal from the Court of Appeal of the Supreme Court of New South Wales, which had held that Ms Gray was not entitled to recover, as a component of a damages award, an amount in respect of the costs associated with managing a lump sum damages award. In 2003, Ms Gray sustained a traumatic brain injury as a result of a collision with a motor vehicle driven by Mr Richards, causing a need for constant care and an incapacity to manage her own affairs. Through her tutor, she commenced proceedings against Mr Richards claiming he was liable in negligence for her loss. Those proceedings were compromised on terms that obliged Mr Richards to pay Ms Gray $10 million ("the compromise monies"), plus an amount of damages, to be assessed at a later date, to cover expenses associated with managing the compromise monies ("the fund management damages"). Subsequently, Ms Gray was declared incapable of managing her own affairs, and a private trustee was appointed to manage her estate. That private trustee charged management fees on the whole of the funds under management, comprising the compromise monies and the fund management damages. There was no suggestion that that arrangement was atypical. In 2011, the Supreme Court of New South Wales determined that the fund management damages should include an amount to offset the cost of managing the fund management damages, and a further amount to offset the cost of managing the fund's predicted future income. Those amounts were awarded on the basis that the fund management damages and the fund's predicted future income would need to be managed, and would therefore attract their own management charges. The Court of Appeal reversed the decision of the primary judge in relevant respects, holding that an amount of damages for the cost of managing the fund management damages and the fund's predicted future income should not be awarded. By special leave, Ms Gray appealed to the High Court. Allowing the appeal in part, the Court held that the Court of Appeal had erred in deciding that no allowance should be made for the cost of managing the fund management damages, but was correct in deciding that no allowance should be made for the cost of managing the fund's predicted future income.
+HIGH COURT OF AUSTRALIA 7 September 2012 BOARD OF BENDIGO REGIONAL INSTITUTE OF TECHNICAL AND FURTHER EDUCATION v GREGORY PAUL BARCLAY & ANOR [2012] HCA 32 Today the High Court allowed an appeal by the Bendigo Regional Institute of Technical and Further Education ("BRIT") from a decision of the Full Court of the Federal Court of Australia. The High Court held that BRIT's Chief Executive Officer, Dr Louise Harvey, had not taken adverse action against the first respondent, Mr Gregory Barclay, for a reason prohibited by the Fair Work Act 2009 (Cth) ("the Act"). Mr Barclay was an employee of BRIT and an officer of the second respondent, the Australian Education Union ("the AEU"). On 29 January 2010, Mr Barclay sent an email to all members of the AEU employed at BRIT. The email noted allegations of serious misconduct by unnamed persons at BRIT, who were said to have been involved in the production of false or fraudulent documents in connection with an upcoming audit. Mr Barclay did not report the allegations of misconduct to BRIT management when he became aware of them, and he did not provide details of the allegations to management when asked to do so. On 2 February 2010 Dr Harvey handed a letter to Mr Barclay requiring him to show cause why he should not be disciplined for this conduct. Dr Harvey suspended Mr Barclay on full pay pending a disciplinary investigation. Section 346 of the Act prohibits an employer from taking adverse action against an employee because the employee "is ... an officer or member of an industrial association" or "engages ... in industrial activity". Adverse action includes dismissing an employee and altering the position of an employee to the employee's prejudice. Mr Barclay and the AEU applied to the Federal Court for a declaration that BRIT had contravened s 346 of the Act. Dr Harvey gave evidence that she had not taken adverse action against Mr Barclay because of his industrial activities or affiliation, but because of the inappropriate way in which he had raised the allegations of serious misconduct. The trial judge accepted Dr Harvey's evidence that she had not taken the adverse action for a prohibited reason, and dismissed the application. Mr Barclay and the AEU appealed to the Full Court of the Federal Court which, by majority, allowed the appeal. By special leave, BRIT appealed to the High Court. The High Court unanimously allowed the appeal. The Court held that Dr Harvey's evidence, which had been accepted by the trial judge and had not been challenged before the Full Court, established that the adverse action taken against Mr Barclay had not been for a prohibited reason.
+HIGH COURT OF AUSTRALIA 19 May 2004 GAS v THE QUEEN SJK v THE QUEEN The High Court of Australia today upheld the increased sentences imposed by the Victorian Court of Appeal on two youths who pleaded guilty to the manslaughter of an elderly woman during a robbery of her home. It unanimously dismissed the youths’ appeals against the new sentences. The victim, aged 73, was found dead in her Seaford, Melbourne, home on 16 October 2000 where she lived with her brain-damaged son. GAS and SJK were aged 16 and 15 respectively. SJK knew the son and was friends with two of the victim’s grandchildren. GAS and SJK knew the victim kept large amounts of cash for her son’s shopping expeditions and knew the son left doors open at night. They had previously stolen her handbag from beside her bed during the night. SJK told police that on the later occasion the victim woke up and GAS attacked her, appearing to break her neck. GAS denied being at the house. The victim’s death was caused by strangulation. She had also been beaten around the head and body, had three fractured ribs and had been sexually assaulted. GAS and SJK both pleaded guilty when the original charge of murder was changed to manslaughter. The prosecutor told the Court it would be impossible to say which one killed the victim, so each should be sentenced as an aider and abettor rather than as a principal offender. Justice Bernard Bongiorno sentenced each to six years’ jail with a four-year non-parole period. The Director of Public Prosecutions appealed on the ground that the sentences were manifestly inadequate. The DPP argued that Justice Bongiorno had given undue weight to the offenders’ youth and to the prospect of rehabilitation and fell into error by allowing too great a reduction in sentence for aiding and abetting. He argued that in manslaughter of this type little, if any, disparity between being a principal and being an aider and abettor was justified. The Court of Appeal upheld all the DPP’s submissions and increased each sentence to nine years with a six-year non-parole period. GAS and SJK appealed to the High Court on the ground that the Court of Appeal erred in allowing the DPP to conduct his appeal in a manner said to be contrary to a plea agreement between the Crown and the two offenders. They objected to the DPP arguing there was little difference between a principal offender and an aider and abettor in this case. The High Court held that the Court of Appeal was right to accept that this was an extremely serious manslaughter case, occurring in circumstances of extreme aggravation, including night-time home invasion, taking advantage of knowledge from the handicapped son, robbery, and a vicious attack including sexual assault on an elderly woman. The Court held that it was not within the capacity of the parties to agree that each offender receive a substantially lesser sentence than a principal. It held that aiders and abettors were not always substantially less culpable than principal offenders and that the error was in their original sentencing.
+HIGH COURT OF AUSTRALIA Public Information Officer 8 November 2007 MATTHEW JAMES ELLIOTT v THE QUEEN BRONSON MATTHEW BLESSINGTON v THE QUEEN The High Court of Australia today refused Mr Elliott and Mr Blessington leave to reopen their 1992 appeal and held that a recommendation that they never be released did not give them grounds to appeal against their life sentences. The two men, along with Stephen Jamieson, were convicted in the NSW Supreme Court in 1990 in relation to the abduction, rape and murder of 20-year-old bank teller Janine Balding in Sydney on 8 September 1988. Mr Elliott was 16, Mr Blessington 14, and Mr Jamieson 22 at the time of the murder. Justice Peter Newman jailed the three for life and recommended that they never be released. At the time, such a recommendation had no legal effect. The Court of Criminal Appeal (CCA) in 1992 dismissed appeals by Mr Elliott and Mr Blessington against the severity of their sentences. The final orders made those appeals were not perfected (properly finalised), and in 2006, they brought another appeal to the CCA in which they sought to have the sentences imposed by Justice Newman quashed and to be resentenced in light of subsequent changes to sentencing laws. The CCA dismissed the appeal, but Justice David Kirby, in dissent, would have resentenced them to 28 years’ jail with a non-parole period of 21 years. They appealed to the High Court. Mr Elliott and Mr Blessington argued that Justice Newman’s recommendation had legal effect upon their punishment and it could then have been the subject of an appeal against sentence. They also argued that, in any event, the treatment of the recommendation by later legislation gave it the status of an order made by the trial court against which they could appeal. The High Court unanimously dismissed their appeals. It held that the non-release recommendation did not have the character of an order by the trial court against which an appeal against sentence would lie. The Court also rejected the submission regarding the effect of subsequent legislation. Any subsequent legal effect resulting from Justice Newman’s recommendation was a matter of legislation, not judicial power. The High Court held that the recommendation never was and did not subsequently acquire the character of an order made by the trial court, with the result that the CCA was correct to dismiss the 2006 appeal. Although the orders made in the 1992 appeal had not been perfected, the High Court held that the CCA was correct to refuse to grant leave to reopen the 1992 decision. Subsequent legislation affecting the position of Mr Elliott and Mr Blessington did not create any miscarriage of justice in the 1992 CCA decision which would call for interference in that decision. The 1992 decision did not proceed upon any misapprehension of the relevant law, and there was no other reason to reopen the case.
+HIGH COURT OF AUSTRALIA 7 October 2004 RE KIT WOOLLEY, MANAGER OF THE BAXTER IMMIGRATION DETENTION CENTRE, AND THE HONOURABLE AMANDA VANSTONE, MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS; EX PARTE APPLICANTS M276/2003 AND GS AS THEIR NEXT FRIEND The detention of asylum seeker children was lawful, the High Court of Australia unanimously held today. The Court dismissed an application for orders for habeas corpus, prohibition and injunction to end the detention of four Afghan children. The children, aged between seven and 15 when the application was filed in October 2003, their parents and an adult brother arrived in Australia from Afghanistan in January 2001. The family had been detained in the Woomera then Baxter detention centres but have been released into the community since the appeal hearing. The father, GS, applied for a protection visa and the children were included as dependents. The Immigration Department and the Refugee Review Tribunal refused the application. The children sought a writ of habeas corpus requiring Mr Woolley to release them, and either a writ of prohibition or an injunction to prohibit or restrain the Minister from detaining or continuing to detain them. The Court held that it was within the power of the Commonwealth Parliament to legislate for the detention of children as well as adults. It held that sections 189 and 196 of the Migration Act do not distinguish between unlawful non-citizens who are above and below the age of 18 years and other provisions of the Act contemplate the presence of children in detention centres. The Court also rejected the contention that the Act was invalid because children lacked the capacity to request their removal from Australia. The Court held that the discretion to request departure was vested in parents and guardians and that some children would be mature enough to make such a request for themselves.
+HIGH COURT OF AUSTRALIA 12 June 2019 AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION v LINDSAY KOBELT [2019] HCA 18 Today the High Court, by majority, dismissed an appeal from the Full Court of the Federal Court of Australia. The majority held that the respondent's provision of "book-up" credit did not contravene the prohibition on unconscionable conduct in s 12CB(1) of the Australian Securities and Investments Commission Act 2001 (Cth). The respondent operated a general store in Mintabie, South Australia. He sold goods including food, groceries, fuel and second-hand cars. Almost all of the respondent's customers were Anangu persons who resided predominantly in two remote communities. The Anangu customers were vulnerable due to the remoteness of their communities, their impoverishment and the limitations on their education and financial literacy. The respondent supplied credit to his Anangu customers using a system of credit known as "book-up", under which payment for goods was deferred in whole or in part subject to the respondent retaining the customer's debit card and personal identification number ("PIN") linked to the customer's account into which wages or Centrelink payments were credited. The respondent would then use the debit card and PIN to withdraw the whole or nearly the whole of the wages or Centrelink payments shortly after they were credited, so as to prevent the customer having any practical opportunity to access the monies in other ways. At least 50 per cent of the withdrawn funds were applied to reduce the customer's indebtedness to the general store, and the remainder was held in the respondent's account and informally made available to the customer for the provision of future goods and services. The withdrawal of funds was authorised by the customers, who understood the basic elements of the book-up system. Anthropological evidence suggested that Anangu customers entrusted the respondent with their debit cards to enable them to exercise choice about what was in their own interests. Several customers reported that they were supportive of the book-up system and the respondent's business. For many, book-up was the only means by which they could purchase a vehicle or access credit. Further, the respondent's retention of the whole of the monies credited to the customers' accounts could protect them from a cultural practice of "humbugging" or "demand sharing", which required them to share resources with certain categories of kin. Book-up credit also ameliorated the "boom and bust" cycle of expenditure and allowed the Anangu customers to buy food between pay days. With two exceptions, the Anangu witnesses considered that the respondent had treated them well. Section 12CB(1) of the Act relevantly provided that a person must not, in trade or commerce and in connection with the supply of financial services, engage in conduct that is, in all the circumstances, unconscionable. It was accepted that, at all relevant times, s 12CB(1) was capable of applying to a system of conduct or pattern of behaviour, whether or not a particular individual was identified as having been disadvantaged by the conduct or behaviour. The sole issue was whether the respondent's provision of book-up credit was, in all the circumstances, unconscionable. The primary judge found that the respondent's conduct was unconscionable as the respondent had chosen to maintain a system that, while it provided some benefits to Anangu customers, took advantage of their vulnerability to "tie" them to his store. On appeal, the Full Court of the Federal Court concluded that the respondent's conduct was not unconscionable. By grant of special leave, the appellant appealed to the High Court. A majority of the Court held that the respondent's conduct was not unconscionable. The majority held that, although the book-up system rendered the customers more vulnerable to exploitation, no feature of the respondent's conduct exploited or otherwise took advantage of the Anangu customers' vulnerability. The basic elements of the book-up system were also understood and voluntarily accepted by the Anangu customers. The Anangu customers' acceptance of the terms on which book-up credit was supplied was not the product of their lack of financial literacy, but rather reflected aspects of Anangu culture not found in mainstream Australian society.
+HIGH COURT OF AUSTRALIA 18 June 2003 DARREN GIFFORD v STRANG PATRICK STEVEDORING PTY LTD KELLY GIFFORD v STRANG PATRICK STEVEDORING PTY LTD MATTHEW GIFFORD v STRANG PATRICK STEVEDORING PTY LTD An employer owed a duty of care to a dead worker’s children to guard against nervous shock to them as a result of their father’s death, the High Court of Australia held today. Barry Gifford, a wharf labourer and wharf clerk with Strang Patrick Stevedoring, was killed in a forklift accident at Sydney’s Darling Harbour on June 14, 1990. His family was told of his death later that day and did not see his disfigured body. Strang Patrick admitted negligence causing Mr Gifford’s death. The issue was whether Strang Patrick owed a duty of care to the children, who brought claims for damages for negligently inflicted psychiatric injury. The children’s claim they suffered psychiatric injury has not yet been determined. The New South Wales District Court dismissed the children’s claims in 1999, holding that under section 4 of the Law Reform (Miscellaneous Provisions) Act 1944, Strang Patrick was under no liability for their alleged nervous shock because Mr Gifford had not been killed, injured or put in peril within their sight or hearing. The NSW Court of Appeal in 2001 concluded that section 4 did not exclude liability at common law, but it held that because the children did not directly perceive the event resulting in their father’s death or its aftermath there was no duty of care at common law. After the Court of Appeal decision, the High Court handed down its decision in Annetts v Australian Stations Pty Ltd, in which it held that the parents of a teenage jackaroo who died in the Western Australian desert, could claim for nervous shock upon hearing of their son James’s death. Mr and Mrs Annetts also had no direct perception of an incident or its aftermath. The High Court held the Gifford children’s claims would need to be reconsidered in light of the Annetts decision. The Court held that as an employer Strang Patrick was under a duty of care to Mr Gifford. It held that Strang Patrick also owed his children a duty of care to take reasonable care to avoid causing them a psychiatric illness as a consequence of their father’s death in the course of his employment. The Court held that section 4 of the Law Reform (Miscellaneous Provisions) Act did not seek to exhaustively define liability and was intended to confer rather than take away rights. The High Court unanimously allowed each appeal and ordered that the children’s claims be remitted to the District Court for determination of whether the children suffered psychiatric injury.
+HIGH COURT OF AUSTRALIA 14 August 2019 NORTHERN TERRITORY OF AUSTRALIA v SOULEYMANE SANGARE [2019] HCA 25 Today the High Court unanimously allowed an appeal from a decision of the Court of Appeal of the Supreme Court of the Northern Territory. The issue was whether, in the exercise of the judicial discretion as to costs, the impecuniosity of the unsuccessful party was a consideration that, without more, could justify a decision to deny the successful party its costs. The respondent is a citizen of Guinea who arrived in Australia under a Belgian passport belonging to his brother. Upon arrival he unsuccessfully applied for a protection visa. The Northern Territory Department of Infrastructure ("the Department") employed the respondent on a temporary basis as a civil engineer, and agreed to sponsor him under a skilled migration scheme run by the Commonwealth Government. As part of that scheme, the respondent was required to apply for and obtain the appropriate visa. The respondent applied for a temporary work visa but was advised that his application was invalid because he had previously been refused a protection visa. The respondent sought expressions of support for his application from the Minister of the Department. The Minister requested that officers of the Department brief him on the respondent's request. The Minister was provided with a briefing note which, according to the respondent, contained material fabricated to make it appear that he had provided false and misleading information regarding his immigration status and to make it appear that he was a dishonest person of bad character. The respondent commenced proceedings against the appellant for defamation in the Local Court of the Northern Territory. The proceedings were transferred to the Supreme Court of the Northern Territory as the respondent sought damages in the sum of $5 million. The respondent was unsuccessful at first instance and the Court of Appeal dismissed the respondent's appeal. The appellant, which had been wholly successful on appeal and at trial, sought an order that the respondent pay its costs of the trial and the appeal. The Court of Appeal acknowledged that customarily, in such circumstances, an order for costs would be made on the basis that costs should follow the event, but declined to make an order for costs on the basis that such an award would likely be futile because of the respondent's impecuniosity. By grant of special leave, the appellant appealed to the High Court. The High Court observed that a guiding principle by reference to which the discretion to award costs should be exercised is that the successful party is generally entitled to his or her costs by way of indemnity against the expense of litigation that should not, in justice, have been visited upon that party. In the present case, there had been no conduct on the part of the appellant that might have weighed against the exercise of the discretion in its favour. The Court, noting that the impecuniosity of a defendant wrongdoer is not a reason for declining to order the payment of damages found to be due to an injured plaintiff, held that it was likewise erroneous to decline to make an order for costs because it was perceived that the debt might not be paid.
+HIGH COURT OF AUSTRALIA 8 May 2013 MINISTER FOR IMMIGRATION AND CITIZENSHIP v XIUJUAN LI & ANOR [2013] HCA 18 Today the High Court unanimously dismissed an appeal from a decision of the Full Court of the Federal Court of Australia, which held that a refusal by the Migration Review Tribunal ("the Tribunal") to adjourn review proceedings was unreasonable. The first respondent, Ms Xiujuan Li, was refused a skilled overseas student residence visa by a delegate of the Minister for Immigration and Citizenship ("the Minister") on the basis that some of the employment history provided to support the assessment of her relevant skills was not genuine. Ms Li applied to the Tribunal for a review of the delegate's decision. She also applied for a fresh skills assessment. Upon obtaining that assessment, Ms Li's migration agent informed the Tribunal that it was unfavourable but explained that because fundamental errors had been made in it, Ms Li was confident of succeeding on her application to the assessing authority for a review. The migration agent requested the Tribunal delay making a final decision on Ms Li's review application until the skills assessment review was finalised. The Tribunal refused that request. It considered that Ms Li had been provided with enough opportunities to present her case and was not prepared to delay any further. The Tribunal found that, because the first skills assessment had been affected by fraud, the relevant visa criterion was not met. The delegate's decision was affirmed. Ms Li successfully applied for review of the Tribunal's decision to the Federal Magistrates Court of Australia. Burnett FM considered that the Tribunal's decision to proceed was unreasonable in circumstances where the review of the second skills assessment was the only outstanding matter and where it could be inferred that Ms Li was not attempting to deliberately delay a decision in her case. The Full Court of the Federal Court unanimously dismissed the Minister's appeal. Greenwood and Logan JJ held that the Tribunal had exercised its discretion to adjourn, pursuant to s 363(1)(b) of the Migration Act 1958 (Cth), in an unreasonable manner. The Minister appealed by special leave to the High Court. The High Court held that the Tribunal's exercise of the discretion under s 363(1)(b) was unreasonable. The Tribunal's reasons failed to identify any consideration weighing in favour of the abrupt conclusion it brought to the review and none was suggested by the Minister on the appeal. The failure by the Tribunal to discharge its function under s 363(1)(b) of the Migration Act according to law meant that the Tribunal had acted beyond its jurisdiction in affirming the delegate's decision.
+HIGH COURT OF AUSTRALIA 13 September 2017 STEPHEN JOHN HAMRA v THE QUEEN [2017] HCA 38 Today the High Court dismissed an appeal from a decision of the Court of Criminal Appeal of the Supreme Court of South Australia. The appellant was charged with an offence of persistent sexual exploitation of a child contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA). Section 50(1) creates an offence where an adult person, "over a period of not less than 3 days, commits more than 1 act of sexual exploitation of a particular child under the prescribed age". Section 50(2) provides that "an act of sexual exploitation" is an act of a kind that could be the subject of a charge of a sexual offence, if it were able to be properly particularised. Section 50(4) provides that a charge under s 50(1) must allege with sufficient particularity the period during which the acts of sexual exploitation allegedly occurred and the alleged conduct comprising the acts of sexual exploitation. The appellant was tried by a judge alone in the District Court of South Australia. Following the close of the prosecution case, the appellant submitted that there was no case to answer. The trial judge accepted this submission and delivered a verdict of not guilty. The trial judge held that the complainant had been unable to relate the alleged acts of sexual exploitation to any particular occasion, circumstance, or event beyond "what typically or routinely or generally occurred", so that it was impossible to identify two or more of the requisite acts. The prosecution appealed to the Full Court of the Supreme Court of South Australia, sitting as the Court of Criminal Appeal. The Court of Criminal Appeal allowed the appeal, and remitted the matter for retrial. By grant of special leave, the appellant appealed to the High Court on the grounds that the Court of Criminal Appeal had erred by (i) concluding that there was a case to answer, and (ii) failing to address the appellant's submission that permission to appeal should not be granted on the basis of, among other things, double jeopardy considerations. The High Court rejected both grounds of appeal. The Court unanimously held that although s 50(1) requires a jury, or judge sitting alone, to identify two or more acts of sexual exploitation, proof of the offence does not require evidence which allows acts of sexual exploitation to be delineated by reference to differentiating circumstances. It would, for example, be sufficient if the jury (or judge in a trial by judge alone) accepted that an act of sexual exploitation was committed every day over a two week period without any further differentiation of those occasions and deduced from that evidence that two or more acts must have occurred over a period of "not less than 3 days". The Court also held that although the majority of the Court of Criminal Appeal did not expressly give reasons for why permission to appeal should be granted, it was clear that the issue was considered and decided. Nor did the majority err by failing expressly to refer to double jeopardy as a factor weighing against the consideration of whether to grant permission to appeal to correct an error of law. The appeal was dismissed.
+HIGH COURT OF AUSTRALIA 5 June 2013 THE STATE OF NEW SOUTH WALES v GREGORY WAYNE KABLE [2013] HCA 26 Today the High Court unanimously allowed an appeal by the State of New South Wales and held that a detention order made by a judge of the Supreme Court of New South Wales under legislation later held to be unconstitutional was a defence to a claim for false imprisonment. The order was held to be valid until it was set aside. Mr Gregory Wayne Kable was detained in custody for six months in 1995 pursuant to an order of the Supreme Court made under s 9 of the Community Protection Act 1994 (NSW) ("the Community Protection Act"). Mr Kable unsuccessfully appealed against the detention order to the Court of Appeal. After Mr Kable was released from detention, he successfully appealed to the High Court. The High Court ordered that the detention order be set aside on the basis that the Community Protection Act was unconstitutional and was therefore invalid. Following the decision of the High Court setting aside the detention order, Mr Kable commenced proceedings in the Supreme Court, ultimately claiming damages against the State for abuse of process, false imprisonment and malicious prosecution. A number of preliminary questions were decided by the primary judge against Mr Kable and judgment was entered for the State. Mr Kable appealed to the Court of Appeal. That Court allowed the appeal in part, holding that Mr Kable should have judgment against the State for damages to be assessed on his claim for false imprisonment. By special leave, the State appealed to the High Court. The Court unanimously allowed the appeal, and held that the detention order was valid until set aside. It had therefore provided lawful authority for Mr Kable's detention. The primary judge's orders dismissing Mr Kable's claims were reinstated.
+HIGH COURT OF AUSTRALIA 3 May 2017 PLAINTIFF M96A/2016 & ANOR v COMMONWEALTH OF AUSTRALIA & ANOR [2017] HCA 16 Today the High Court unanimously held that ss 189 and 196 of the Migration Act 1958 (Cth) ("the Act") validly authorised the detention of unlawful non-citizens who were brought to Australia from a regional processing country for a temporary purpose. In August 2013, the plaintiffs, a mother and her daughter, arrived in Australia at Christmas Island. As "unauthorised maritime arrivals", they were taken to the Republic of Nauru in February 2014. They claimed to be owed refugee protection. In November 2014, the plaintiffs were brought to Australia for the temporary purpose of medical treatment. They were detained in Darwin and at the Melbourne Immigration Transit Accommodation. In December 2016, they were released after the Minister for Immigration and Border Protection made a residence determination permitting them to reside at a specified place subject to conditions. At all material times, the plaintiffs needed to be in Australia for medical treatment, and had no right to apply for a visa whilst in Australia. By an application for an order to show cause, the plaintiffs challenged the validity of ss 189 and 196 of the Act insofar as those provisions purported to authorise their detention in Australia. The plaintiffs submitted that their detention was unlawful because it was not necessary for a legitimate, non-punitive purpose, and because the duration of their detention was not reasonably capable of objective determination as it was governed only by the question whether and when they no longer needed to be in Australia. The plaintiffs did not challenge the lawfulness of the Commonwealth's act of bringing them to Australia, or the lawfulness of their eventual removal from Australia. The defendants demurred to the whole of the plaintiffs' amended statement of claim, submitting that the detention was authorised by the Act. By an order of a single Justice of the High Court, the demurrer was referred to the Full Court. The Court unanimously allowed the defendants' demurrer on the basis that ss 189 and 196 of the Act validly authorised the plaintiffs' detention whilst they were in Australia. The Court held that the plaintiffs' detention was for a lawful purpose, namely the purpose of removal from Australia. The Court also held that the duration of the plaintiffs' detention was able to be objectively determined at any time and from time to time by reference to various preconditions provided for in the Act, and that the temporal limits of their detention were connected with the purpose of their detention.
+HIGH COURT OF AUSTRALIA 8 August 2018 MINISTER FOR IMMIGRATION AND BORDER PROTECTION v SZVFW & ORS [2018] HCA 30 Today the High Court unanimously held that a decision of the Refugee Review Tribunal ("the Tribunal") to proceed in the absence of the first and second respondents ("the respondents") was not unreasonable, and that the Full Court of the Federal Court of Australia should have set aside a decision of the Federal Circuit Court of Australia which had found the Tribunal's decision to be unreasonable. The respondents sought review by the Tribunal of a decision of a delegate of the appellant ("the Minister") to refuse their application for protection visas. In May 2014, the Tribunal wrote to the respondents, inviting them to provide material or written arguments on the review. In August 2014, the Tribunal invited the respondents to appear before it at a hearing. The respondents did not contact the Tribunal or attend the hearing. Section 426A(1) of the Migration Act 1958 (Cth) provided that, if an applicant for review was invited to appear before the Tribunal and failed to so appear, the Tribunal could proceed to make a decision on the review without taking further action to allow or enable the applicant to appear before it. The Tribunal, relying on s 426A(1), proceeded to determine the review application, affirming the delegate's decision to refuse the protection visas. The respondents sought judicial review of the Tribunal's decision to proceed in their absence. The primary judge held that the Tribunal's decision to proceed to determine the review application was legally unreasonable, because the Tribunal ought to have taken some further action to allow or enable the respondents to appear before proceeding to its decision on the review. On appeal, the Full Court of the Federal Court upheld the primary judge's decision, holding that the Minister was required to demonstrate that the primary judge's evaluation of the legal unreasonableness ground involved appealable error of fact or law akin to that required in appeals from discretionary judgments (which are subject to the principles explained in House v The King (1936) 55 CLR 499). Such error not having been demonstrated, the Full Court dismissed the appeal. By grant of special leave, the Minister appealed to the High Court. The Court unanimously allowed the appeal. Principles analogous to those stated in House v The King had no application to an appeal by way of rehearing from a judicial review of an administrative decision on the ground that the decision was legally unreasonable. Rather, the Full Court of the Federal Court was required to examine for itself the administrative decision of the Tribunal to determine whether the primary judge was correct to conclude that the decision was unreasonable. The High Court unanimously held that, in the circumstances of the respondents' failure to respond to the Tribunal's invitations, and having regard to the statutory context of s 426A(1), the Tribunal's decision to proceed in the absence of the respondents was not unreasonable.
+HIGH COURT OF AUSTRALIA Public Information Officer 27 February 2007 LEICHHARDT MUNICIPAL COUNCIL v LESLIE MONTGOMERY Roads authorities, such as councils, do not have an automatic liability for the negligent behaviour of employees of independent roadworks contractors, the High Court of Australia held today. Leichhardt Council engaged Roan Constructions to upgrade a footpath on Parramatta Road in Sydney. Work was carried out between 7.30pm and 5.30am. Carpet was placed over a Telstra pit with a broken lid. As Mr Montgomery walked with two others on their way to his birthday celebration on 7 April 2001 the lid gave way and he fell into the pit, seriously injuring one knee. He sued both Roan and the Council. The claim against Roan was settled for $50,000. After a trial in the New South Wales District Court, Mr Montgomery was awarded damages of $264,450.75 in damages against the Council, minus the $50,000 already received. Both the District Court and the NSW Court of Appeal accepted that the Council owed Mr Montgomery a non-delegable duty of care and that that duty had been breached. The Court of Appeal agreed with the primary judge that, there having been negligence on the part of Roan’s employees, the Council was liable without any need for Mr Montgomery to show fault on the part of Council officers. The Council was granted leave to appeal to the High Court on condition that it paid the costs of the appeal. The Court unanimously allowed the appeal. It held that the Council did not owe Mr Montgomery a non-delegable duty of care. A non-delegable duty of care when an independent contractor was engaged was not supported by statute, policy or recent High Court cases. Instead, the Council’s duty was the ordinary duty to take reasonable care to prevent injury. The NSW Roads Act did not contain any express or implied requirement that roads authorities undertake road construction and maintenance only through their own employees, and use of contractors was common. The Court held that a special responsibility or duty to ensure reasonable care was taken by an independent contractor and the contractor’s employees went beyond the general duty to act reasonably in exercising prudent oversight of what the contractor does. It was implausible to impose a duty on the Council to ensure that such carelessness as placing carpet over the broken pit lid did not occur, regardless of whether the Council’s own employees were at fault. The Council had a duty to exercise reasonable care in supervising a contractor or in approving a contractor’s plans and system of work, but it was not automatically liable for the negligence of an independent contractor’s employees. The Court held that a line of Court of Appeal decisions to the contrary should be overruled. As the appeal was confined to the issue of whether the Council owed a non-delegable duty of care, and there was an unresolved allegation of lack of care on the part of Council officers, the Court remitted the case to the Court of Appeal to resolve outstanding negligence issues.
+HIGH COURT OF AUSTRALIA 8 March 2012 ALH GROUP PROPERTY HOLDINGS PTY LIMITED v CHIEF COMMISSIONER OF STATE REVENUE [2012] HCA 6 Today the High Court allowed an appeal from the Court of Appeal of the Supreme Court of New South Wales, which had held that ALH Group Property Holdings Pty Limited ("ALH") was not entitled to a refund of stamp duty under s 50(2) of the Duties Act 1997 (NSW) ("the Act"). ALH sought the refund in respect of a cancelled agreement for the purchase of a property at Frenchs Forest, New South Wales. Oakland Glen Pty Limited ("Oakland") was the registered owner of the property at Frenchs Forest. In 2003, a company, later known as Trust Company Fiduciary Services Limited ("Trust"), contracted to purchase the property from Oakland ("the 2003 contract"). In June 2008, Oakland, Trust and ALH executed a deed ("the Deed of Consent") under which, in essence: Trust assigned its rights as purchaser under the 2003 contract to ALH; Oakland consented to the assignment; ALH promised Oakland that it would perform Trust's obligations under the 2003 contract; and Oakland released and discharged Trust from liability under the 2003 contract. In October 2008, the parties entered into a further deed ("the Deed of Termination") which, as rectified, cancelled the Deed of Consent. Oakland and ALH executed a new contract for the sale of the property. The primary issue arising from these transactions was whether the Deed of Termination cancelled an "agreement for the sale or transfer of dutiable property", within the meaning of s 50(1) of the Act. Under s 50(1) of the Act, agreements for the sale or transfer of dutiable property that are cancelled are not liable to duty, provided that the Chief Commissioner is satisfied of certain matters. Under s 50(2), if an application for refund is made within certain time limits, the Chief Commissioner must reassess and refund duty that has been paid on an agreement which is not liable to duty. Upon application by ALH for a refund, the Chief Commissioner assessed the Deed of Consent as being liable to duty. ALH objected to the Chief Commissioner's decision, and when its objection was disallowed, appealed to the Supreme Court of New South Wales. A judge of the Supreme Court ordered the Chief Commissioner to refund the duty paid on the Deed of Consent. The Deed of Consent was held to have extinguished the 2003 contract and to have constituted a new agreement, in identical terms to the 2003 contract, between ALH and Oakland. The Court of Appeal allowed the Chief Commissioner's subsequent appeal. It held that no new agreement arose between Oakland and ALH under the Deed of Consent, as the 2003 contract was not expressly rescinded, Oakland did not undertake any new or express obligation to transfer the property to ALH on payment of the balance of the purchase price, and the 2003 contract remained the only source of Oakland's obligation to transfer the property to ALH. By special leave, ALH appealed to the High Court of Australia. The High Court allowed the appeal, with the result that the Chief Commissioner must refund the duty paid by ALH on the Deed of Consent. The High Court held that, properly construed, the Deed of Consent discharged the 2003 contract and substituted a new contract between Oakland and ALH. The High Court rejected a submission that Oakland's obligations as vendor continued to have their source in the 2003 contract, holding that it was necessarily to be implied from the Deed of Consent that Oakland would transfer the property to ALH on payment of the balance of the purchase price. By cancelling the Deed of Consent, the Deed of Termination therefore cancelled an "agreement for the sale or transfer of dutiable property" within the meaning of s 50(1) of the Act.
+HIGH COURT OF AUSTRALIA 5 April 2017 IN THE MATTER OF QUESTIONS REFERRED TO THE COURT OF DISPUTED RETURNS PURSUANT TO SECTION 376 OF THE COMMONWEALTH ELECTORAL ACT 1918 (CTH) CONCERNING MR ROBERT JOHN DAY AO [2017] HCA 14 Today the High Court, sitting as the Court of Disputed Returns, unanimously held that Mr Robert John Day AO was a person who had an "indirect pecuniary interest" in an agreement with the Public Service of the Commonwealth prior to and at the time of the 2016 federal election, and was therefore incapable of being chosen or of sitting as a senator by reason of s 44(v) of the Constitution. On 9 May 2016, the 44th Parliament of the Commonwealth was dissolved and a general election was subsequently held. Mr Day's nomination for the 2016 federal election was declared on 10 June 2016. On 4 August 2016, he was declared re-elected as a senator for South Australia. On 1 December 2015, the Commonwealth entered into a lease agreement with Fullarton Investments Pty Ltd ("Fullarton Investments"), the registered proprietor of premises at 77 Fullarton Road, Kent Town in South Australia ("the Fullarton Road property"), for use by Mr Day as his electorate office. The commencement date of the lease was 1 July 2015. Under the lease, Fullarton Investments was entitled to direct the Commonwealth to pay rent to any person. On 26 February 2016, it directed that rental payments be made to a bank account owned by Mr Day. The Fullarton Road property was previously owned by B & B Day Pty Ltd ("B & B Day") as trustee for the Day Family Trust, a discretionary trust of which Mr Day and his wife were beneficiaries. On 24 April 2014, Fullarton Investments purchased the Fullarton Road property from B & B Day on a vendor finance basis. Fullarton Investments was the trustee of the Fullarton Road Trust, a discretionary trust of which the Day Family Trust was a beneficiary. There was also a loan facility provided by a bank to B & B Day, and loan facilities provided to companies associated with Mr Day. Each loan facility was secured by, among other things, a guarantee given by Mr Day and a mortgage over the Fullarton Road property. Payment of rent by the Commonwealth would facilitate repayment of the purchase price of the Fullarton Road property by Fullarton Investments to B & B Day, which would in turn facilitate repayment by B & B Day of the loan facility, thereby reducing the extent of Mr Day's contingent liability to the bank as guarantor. If the Commonwealth did not pay rent, Fullarton Investments had no other significant source of revenue. On 8 November 2016, the President of the Senate referred five questions to the Court of Disputed Returns. The principal question was whether Mr Day was incapable of being chosen or of sitting as a senator by reason of s 44(v) of the Constitution. The Senate's reference also asked how the resulting vacancy should be filled if Mr Day were found to have been incapable of being chosen or of sitting as a senator. The Court held by majority that there was no requirement that a "pecuniary interest" be a legally enforceable interest, and it was unanimously held that the financial benefit which Mr Day stood to obtain from the Commonwealth performing its obligations to pay rent pursuant to the lease constituted an "indirect pecuniary interest" within the meaning of s 44(v) of the Constitution. By virtue of the direction that the rent be paid into a bank account owned by him, Mr Day was to receive rent directly from the Commonwealth. Therefore he had an expectation of a pecuniary benefit from the lease. A majority of the Court held he was incapable of being chosen or of sitting as a senator from no later than 26 February 2016, when the direction was made. The Court unanimously held that the resulting vacancy should be filled by a special count of the ballot papers.
+HIGH COURT OF AUSTRALIA 11 February 2020 LOVE v COMMONWEALTH OF AUSTRALIA; THOMS v COMMONWEALTH OF AUSTRALIA [2020] HCA 3 Today, the High Court, by majority, answered a question in two special cases to the effect that Aboriginal Australians (understood according to the tripartite test in Mabo v Queensland [No 2] (1992) 175 CLR 1) are not within the reach of the power to make laws with respect to aliens, conferred on the Commonwealth Parliament by s 51(xix) of the Constitution ("the aliens power"). That is the case even if the Aboriginal Australian holds foreign citizenship and is not an Australian citizen under the Australian Citizenship Act 2007 (Cth). The tripartite test requires demonstration of biological descent from an indigenous people together with mutual recognition of the person's membership of the indigenous people by the person and by the elders or other persons enjoying traditional authority among those people. The plaintiffs, Mr Thoms and Mr Love, were both born outside Australia and are not Australian citizens. Mr Thoms was born in New Zealand on 16 October 1988 and became a New Zealand citizen by birth. He has resided permanently in Australia since 23 November 1994. Mr Thoms is a descendant of the Gunggari People through his maternal grandmother. He identifies as a member of that community and is accepted as such by members of the Gunggari People. He is also a common law holder of native title. Mr Love was born on 25 June 1979 in the Independent State of Papua New Guinea. He is a citizen of that country but has been a permanent resident of Australia since 25 December 1984. Mr Love is a descendant, through his paternal great-grandparents, of Aboriginal persons who inhabited Australia prior to European settlement. He identifies as a descendant of the Kamilaroi tribe and is recognised as such by an elder of that tribe. The plaintiffs were sentenced for separate and unrelated offences against the Criminal Code (Qld). After their convictions, the visas of both men were cancelled by delegates of the Minister for Home Affairs under s 501(3A) of the Migration Act 1958 (Cth). They were taken into immigration detention, under s 189 of that Act, on suspicion of being "unlawful non-citizen[s]" and were liable to deportation. In the case of Mr Love, the decision to cancel his visa has since been revoked pursuant to s 501CA(4) of the Migration Act and he has been released from immigration detention. The Commonwealth relied upon the aliens power to support the validity of the Migration Act in its application to Mr Thoms and Mr Love. In their separate reasons, the Justices forming the majority held that it is not open to the Parliament to treat an Aboriginal Australian as an "alien" because the constitutional term does not extend to a person who could not possibly answer the description of "alien" according to the ordinary understanding of the word. Aboriginal Australians have a special cultural, historical and spiritual connection with the territory of Australia, which is central to their traditional laws and customs and which is recognised by the common law. The existence of that connection is inconsistent with holding that an Aboriginal Australian is an alien within the meaning of s 51(xix) of the Constitution. The High Court held, by majority, that as an Aboriginal Australian Mr Thoms is not within the reach of the aliens power. However, the majority was unable to agree, on the facts stated in the special case, as to whether Mr Love has been accepted, by elders or others enjoying traditional authority, as a member of the Kamilaroi tribe. For that reason, the majority was unable to answer the question of whether he is an "alien" within the meaning of s 51(xix).
+HIGH COURT OF AUSTRALIA Public Information Officer 23 April 2008 There was no legal or factual basis for a shorter sentence for a person convicted of possessing a commercial quantity of ecstasy on the ground that ecstasy was less harmful than heroin, the High Court of Australia held today. Mr Adams, an American citizen, was convicted in the Victorian County Court in 2004 of possessing prohibited imports, which were almost 20kg of a mixture containing almost 9kg of MDMA, or ecstasy. He was charged under the Customs Act following the interception of containers shipped from overseas. The trafficable quantity of MDMA was 0.5 grams; that of heroin or cocaine was two grams. The commercial quantity of MDMA was 0.5kg; that of heroin was 1.5kg; that of cocaine 2kg. Offences involving a trafficable quantity of any form of narcotic carry a penalty of up to 25 years’ jail and/or a fine of $500,000. Offences involving commercial quantities carry a maximum penalty of life imprisonment and/or a fine of $750,000. Mr Adams was sentenced to nine years’ jail, on top of 260 days already in custody, with a non-parole period of seven years. In sentencing Mr Adams, Judge Anthony Duckett said that the courts treat ecstasy, for sentencing purposes, as being similar to heroin. Mr Adams argued that this was an error and that he should have been sentenced on the basis that MDMA was less harmful than heroin. He appealed unsuccessfully to the Victorian Court of Appeal. He then appealed to the High Court. Four Justices of the Court dismissed his appeal and the fifth Justice would have revoked special leave to appeal. The Court held that generalisations seeking to differentiate between the evils of the illegal trade in heroin and MDMA could not be sustained by evidence. Furthermore, the Customs Act fixed the penalties for drug importation offences and the courts could not apply a harm-based gradation of penalties that cut across the legislative scheme. There was nothing in the Act, or the evidence, or the available knowledge or opinion which required or permitted a court to sentence on the basis that possessing a commercial quantity of MDMA was in some way less anti-social than possessing a commercial quantity of heroin. The Court held that Mr Adams had failed to demonstrate either a legal or a factual foundation for the contention that he should have been sentenced on the basis that MDMA was less harmful than heroin.
+HIGH COURT OF AUSTRALIA 14 December 2005 NAIS, NAIT AND NAIU v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS AND REFUGEE REVIEW TRIBUNAL A prolonged delay in the determination of a visa application by the Refugee Review Tribunal resulted in procedural unfairness, the High Court of Australia held today. Three Bangladeshi citizens, a husband and wife and their daughter, arrived in Australia in August 1996 and lodged applications for protection visas in January 1997. They claimed they had a well- founded fear of persecution in Bangladesh because the husband was Muslim and the wife Catholic. The Immigration Department refused the application in May 1997 and the family immediately applied to the Refugee Review Tribunal for a review. The parents gave oral evidence at a hearing on 6 May 1998 and sent in further written material. They did not hear from the RRT until 30 November 2001 when the RRT invited the family to attend another hearing on 19 December 2001. The RRT also sought out expert evidence and country information from the Australian High Commission which reported that mixed marriages are readily accepted, although resistance is greater in rural areas, and that if the family accepts a marriage so will the community. On 14 January 2003, the RRT handed down its decision that the family was not entitled to protection visas. It noted that the husband made admissions that certain claims made by him and his wife were fabricated and it suggested that this indicated collusion. The RRT rejected particular incidents of apparent persecution. It accepted that the husband was alienated from his family but that this did not affect his right to remain married or to find work. It held that the couple did not face a real chance of harm and any fears they held were not well-founded. The Federal Court dismissed an application for judicial review of the RRT decision. The family appealed to the Full Court of the Federal Court, which by a 2-1 majority dismissed the appeal. The family then appealed to the High Court. They argued that the delay meant that the RRT could not possibly properly assess and comment fairly on their demeanour by the time it made its decision. The Court, by a 4-2 majority, allowed the appeal. The majority held that the RRT’s decision, which significantly depended on the credibility of the asylum seekers, was not made fairly. The procedure was flawed in a manner likely to affect the RRT’s capacity to make a proper assessment of the family’s sincerity and reliability. When the RRT, without explanation, draws out its procedures to such an extent that its capacity to discharge its statutory obligations is likely to be materially diminished, then a case of procedural unfairness arises. The Court remitted the matter to the RRT for redetermination.
+HIGH COURT OF AUSTRALIA 6 April 2022 COMMISSIONER OF TAXATION v NATALIE CARTER & ORS [2022] HCA 10 Today the High Court unanimously allowed an appeal from a judgment of the Full Court of the Federal Court of Australia concerning the operation of s 97(1) of the Income Tax Assessment Act 1936 (Cth). Section 97(1) relevantly provides that "where a beneficiary of a trust estate who is not under any legal disability is presently entitled to a share of the income of the trust estate ... the assessable income of the beneficiary shall include ... so much of that share of the net income of the trust estate as is attributable to a period when the beneficiary was a resident". The principal question for determination was whether a beneficiary's present entitlement under s 97(1) is to be determined immediately prior to the end of an income year or whether events after the end of the income year may be considered. The respondents were beneficiaries of a trust estate. The trust deed provided that if the trustee did not pay, apply, set aside or accumulate any part of the trust income in a given accounting period, the trustee would hold that income in trust for specified beneficiaries, including the respondents. An accounting period was relevantly defined as a 12-month period ending on 30 June. In this way, the trust deed ensured that in each accounting period, the whole of the trust income was distributed, if not otherwise dealt with. In the 2014 income year, the trustee failed to pay, apply, set aside or accumulate the income of the trust. As a result, one-fifth of the trust income was held on trust for each of the respondents. On 27 October 2015, the appellant, the Commissioner of Taxation ("the Commissioner"), issued an amended assessment to each respondent for the 2014 income year ("the 2014 Assessments") which included as assessable income one-fifth of the trust income on the basis that the respondents were "presently entitled" to that income within the meaning of s 97(1). On 30 September 2016, the respondents disclaimed their interest in the trust income. They subsequently objected to the 2014 Assessments in reliance on the disclaimers. On appeal on a question of law from a decision of the Administrative Appeals Tribunal, the Full Court of the Federal Court relevantly held that the respondents' disclaimers operated retrospectively so as to disapply s 97(1) in respect of the 2014 income year. The High Court held that s 97(1) is directed to the position existing immediately before the end of the income year for the purpose of identifying the beneficiaries who are to be assessed with the income of the trust. The section looks to the right to receive an amount of distributable income, not the receipt of income. Events occurring after the end of the income year cannot disentitle a beneficiary who was "presently entitled" immediately before the end of the income year. The respondents' disclaimers were therefore not effective to retrospectively expunge the rights of the Commissioner against the respondents which were in existence at midnight on 30 June 2014 and which gave rise to the 2014 Assessments.
+HIGH COURT OF AUSTRALIA Public Information Officer 13 December 2007 KOOMPAHTOO LOCAL ABORIGINAL LAND COUNCIL AND TERRY LAWLER v SANPINE PTY LIMITED AND KLALC PROPERTY & INVESTMENT PTY LTD Serious breaches by Sanpine of its administrative obligations under an agreement to develop land justified termination of the contract by the Koompahtoo Local Aboriginal Land Council, the High Court of Australia held today. In 1997, Koompahtoo and Sanpine entered into a joint venture agreement for the development of a large area of land near Morisset, south of Newcastle. Koompahtoo contributed the land, which had been acquired under the NSW Aboriginal Land Rights Act, and Sanpine managed the project. Each party had a 50 per cent interest and Sanpine was also to receive a management fee equal to 25 per cent of the total project costs. Despite accruing costs of more than $2 million, the project did not proceed to rezoning. It involved sensitive environmental issues, was controversial within the Koompahtoo community, and had difficulty attracting finance. A mortgagee took possession in April 2003. In February 2003, Mr Lawler was appointed as administrator. He attempted to obtain from Sanpine information on the financial position of the joint venture, including how money from two lenders had been used. In December 2003, Mr Lawler terminated the joint venture agreement. Sanpine commenced proceedings in the NSW Supreme Court, seeking a declaration that the termination was invalid and the agreement still on foot. Justice Joseph Campbell held that the agreement was validly terminated. He found Sanpine had committed serious breaches of its obligations under the joint venture agreement. Those obligations were categorised as document production and maintenance, banking and spending of money, and failures to maintain proper books. Proper accounts and financial records were never kept, and documentation was lacking to explain or justify significant amounts it claimed to be expenses chargeable to the joint venture, including a payment of more than $183,000 to the wife of a Sanpine controller. Sanpine argued that by reasons of waiver or estoppel Koompahtoo could not complain of these breaches. Justice Campbell rejected this argument and found that the Koompahtoo members of the joint venture’s management committee made no representations on which Sanpine relied concerning non- performance of its obligations. He described the failure to keep books for the joint venture so that annual accounts could be drawn up and audited each year as a gross departure from the terms of the agreement. The NSW Court of Appeal, by majority, allowed an appeal by Sanpine. Koompahtoo appealed to the High Court. The Court unanimously allowed the appeal. It held that the breaches deprived Koompahtoo’s representatives of the capacity to make informed decisions. Sanpine’s breaches went to the root of the contract and justified termination of the contract.
+HIGH COURT OF AUSTRALIA 1 June 2011 JEMENA GAS NETWORKS (NSW) LIMITED v MINE SUBSIDENCE BOARD [2011] HCA 19 Today the High Court allowed an appeal from the Court of Appeal of the Supreme Court of New South Wales regarding the construction of s 12A(1)(b) of the Mine Subsidence Compensation Act 1961 (NSW). By majority, the High Court held that the appellant is entitled, under s 12A(1)(b) of the Act, to an amount from the Mine Subsidence Compensation Fund ("the Fund") to meet the proper and necessary expense of preventing or mitigating cumulative subsidence from approved longwall mining at Mallaty Creek that the appellant reasonably anticipated, based on expert advice, would likely cause damage to its pipeline. The appellant owns and operates a gas pipeline which runs from Moomba to Sydney. The gas pipeline is the main source of natural gas for the Sydney and Newcastle metropolitan areas. The gas pipeline runs underground at the point where it crosses Mallaty Creek and traverses an area of land which is subject to a mining lease held by a subsidiary of BHP Billiton Limited relating to the West Cliff Colliery. The pipeline runs above a series of "panels" (designated areas) proposed, and used, for underground longwall mining. Longwall mining has been taking place in them for some years. Expert consultants predicted in December 2003 that there would be subsidence where the pipeline crosses Mallaty Creek when a certain panel was mined and that the subsidence would increase as subsequent longwall panels were mined. Other expert consultants advised in February 2004 that mitigating works would be needed as a result of future extraction from subsequent longwall panels. Between December 2005 and January 2007, the appellant undertook excavation work to prevent the pipeline being damaged by the predicted subsidence. The cumulative subsidence that eventuated after those works were undertaken broadly corresponded with the predictions of the expert consultants. The Fund, to which colliery proprietors make compulsory contributions pursuant to the Act, is administered by the respondent, the Mine Subsidence Board ("the Board"). Under s 12A(1)(b), owners of improvements on land may make claims for payment from the Fund for proper and necessary expenditure incurred in preventing or mitigating damage to those improvements that, in the opinion of the Board, "the owner could reasonably have anticipated would otherwise have arisen, or could reasonably anticipate would otherwise arise, from a subsidence that has taken place". On 17 July 2007, pursuant to s 12A(1)(b), the appellant made a claim against the Fund for the costs of preventative and mitigatory works performed between December 2005 and January 2007 on the pipeline. The Board considered that the appellant could not make a claim under s 12A(1)(b) of the Act. The Board held that a claim could only be made under that provision if the whole of the subsidence had occurred before the expense of preventative works was incurred. The appellant instituted proceedings in the Land and Environment Court of New South Wales against the Board. That Court held that, assuming that the appellant could establish that the expenses were "proper and necessary", the appellant was not entitled to an amount under s 12A(1)(b) because the Court of Appeal had held in a previous case that no claim could be made unless the whole of the subsidence had occurred before the expense of preventative works was incurred. The appellant appealed to the Court of Appeal, however, the appeal was unanimously dismissed. The appellant appealed to the High Court. By majority, the High Court held that claims under s 12A(1)(b) are not confined to expenditure incurred only once a subsidence has in fact occurred. Rather, claims under s 12A(1)(b) extend to expenditure that, in the opinion of the Board, the owner could reasonably have anticipated would otherwise have arisen, or could reasonably anticipate would otherwise arise, from a subsidence that has taken place prior to that damage arising, even though at the time when the expense is incurred or proposed there has not yet been either subsidence or damage.
+HIGH COURT OF AUSTRALIA 27 June 2013 DIRECTOR OF PUBLIC PROSECUTIONS (CTH) v JM [2013] HCA 30 Today the High Court unanimously held that buying or selling shares on the securities exchange operated by ASX Limited ("the ASX"), for the sole or dominant purpose of creating or maintaining a particular price, created or maintained an "artificial price" for those shares for the purposes of the offence of market manipulation under s 1041A of the Corporations Act 2001 (Cth) ("the Act"). The High Court allowed an appeal by the Commonwealth Director of Public Prosecutions ("CDPP") regarding answers given by the Court of Appeal of the Supreme Court of Victoria to questions of law that arose before JM's trial on charges of 39 counts of market manipulation contrary to s 1041A of the Act and two counts of conspiring with others to commit market manipulation in relation to the trading of shares on the ASX. JM has pleaded not guilty to all charges. Before a jury was empanelled, Weinberg JA, sitting in the Trial Division of the Supreme Court of Victoria, stated a case under s 302 of the Criminal Procedure Act 2009 (Vic) and reserved three questions of law for the Court of Appeal. The questions asked whether the price of a share on the ASX, which had been created or maintained by a transaction carried out for the sole or dominant purpose of creating or maintaining a particular price for the share, was an "artificial price" for the purposes of s 1041A of the Act. The case stated set out the assertions of fact which the CDPP sought to establish at trial. The Court of Appeal held, by majority, that the original questions formulated by Weinberg JA were inappropriate to answer because they were answerable only by reference to disputed facts. The Court of Appeal remitted the case stated to Weinberg JA for amendment of the first question reserved, to ask whether the expression "artificial price" in s 1041A of the Act was used in the sense of a term having a legal signification as opposed to its sense in ordinary English or some non-legal technical sense and, if so, what was its legal signification. The Court of Appeal found that the expression "artificial price" in s 1041A had the legal signification of being market manipulation by conduct of the kind typified by American jurisprudential conceptions of "cornering" and "squeezing". The CDPP sought special leave to appeal to the High Court against the orders made by the Court of Appeal, alleging that the answer given to the reformulated question was founded on a misconstruction of s 1041A of the Act. JM sought special leave to cross-appeal to argue that both the original and reformulated questions were hypothetical questions and that to answer the questions was beyond the judicial power of the Commonwealth. The High Court granted both applications for special leave. The Court allowed the appeal and allowed the cross-appeal in part. The Court held that the original question should have been answered by the Court of Appeal, but that the reformulated question was not a question which arose before JM's trial. The construction of s 1041A of the Act adopted by the Court of Appeal was held to be incorrect. The High Court held the price of a share on the ASX created or maintained by a transaction on the ASX that was carried out for the sole or dominant purpose of creating or maintaining a particular price was an "artificial price" for the purposes of s 1041A. No question concerning the judicial power of the Commonwealth arose.
+HIGH COURT OF AUSTRALIA 13 December 2012 TAHIRI v MINISTER FOR IMMIGRATION AND CITIZENSHIP [2012] HCA 61 Today the High Court held that a delegate of the Minister for Immigration and Citizenship did not err in refusing a combined application for a Subclass 202 Refugee and Humanitarian (Class XB) visa by the plaintiff's mother and her four dependent children. The plaintiff is a citizen of Afghanistan. He arrived unaccompanied in Australia as a 17-year-old and was granted a protection visa. The plaintiff proposed his mother's application for a visa with four of her children as additional applicants. The mother and the four children are citizens of Afghanistan living in Pakistan. The children's father has been missing since 2003. The criteria for granting the combined application included satisfaction of public interest criterion 4015 ("PIC 4015"). PIC 4015 relevantly required the delegate to be satisfied either that the law of the children's home country permitted their removal, or that each person who could lawfully determine where the children were to live consented to the grant of the visa. The delegate found that the children's home country was Afghanistan and was not satisfied that the law of Afghanistan permitted the removal of the children. The delegate also found that the persons who could lawfully determine where the children were to live included the children's father, or (if he was dead) his relatives, and was not satisfied that any of them consented to the grant of the visa. In a proceeding commenced in the original jurisdiction of the Court, the plaintiff sought to have the delegate's decision quashed and the defendant compelled to determine the visa application according to law. Under the rules of the Court, the parties agreed to submit a special case stating questions of law for the opinion of the Full Court. The High Court held that the delegate's factual conclusions were reasonably open and that the plaintiff failed to establish that the delegate proceeded on an incorrect legal understanding of PIC 4015. It also held that although the delegate may have taken into account certain material not disclosed to the plaintiff's mother, that material was not shown to be adverse in any sense requiring its disclosure in accordance with obligations of procedural fairness.
+HIGH COURT OF AUSTRALIA 28 February 2008 RAYMOND FREDERICK AYLES v THE QUEEN Public Information Officer A trial judge’s amendment of the provision under which a person was charged was within power and did not give rise to a miscarriage of justice in the circumstances of the case, the High Court of Australia held today. Mr Ayles was charged with six counts of indecent assault and two counts of buggery while he was an Anglican priest at Para Hills in Adelaide. In the South Australian District Court in June 2006 he pleaded guilty to two counts of indecent assault and not guilty to the other charges, all involving a boy, T, whose family were parishioners. Counts 1 and 2 alleged indecent assault between 24 October 1971 and 2 May 1972 to which Mr Ayles pleaded not guilty. Mr Ayles had asked T to clean his house for pocket money when he touched T’s penis (count 1) and encouraged him to reciprocate (count 2). The prosecutor said T fixed the time as during a short period when his parents separated, about the time he was sitting a high school entry exam. This would have been 1971 when he was 12 years old and Mr Ayles 26. However in his testimony T said he believed he had been 13 and had just started high school. T’s birthday is 2 May 1959. The prosecutor applied to amend counts 1 and 2 (and other counts) to make 1 May 1973 the date marking the end of the period in which the offences occurred. Judge Andrea Simpson, who was sitting without a jury, ordered the amendments. Mr Ayles had been charged under section 70 of the Criminal Law Consolidation Act 1935 (CLCA). It was amended on 9 November 1972 to replace sections 69 to 71 with a single section, section 69. The offences in the period before 9 November 1972 therefore needed to be identified by reference to section 70 and from that date by reference to section 69. In evidence Mr Ayles agreed that the incident that gave rise to counts 1 and 2 occurred but said it happened about October 1973, when T would have been 14. In her written judgment, Judge Simpson amended the end of the period in which count 1 allegedly occurred to 31 October 1973 and changed the relevant provision of the CLCA to section 69. She found Mr Ayles guilty of count 1. He was sentenced to four years’ imprisonment with a two-year non-parole period for the three offences of which he was guilty. Mr Ayles appealed to the SA Court of Criminal Appeal, arguing that Judge Simpson did not have the power to amend the charge without an application from the prosecutor, and that the effect was to substitute a new charge that went beyond the power of amendment. The CCA held that the prosecutor had foreshadowed an application by identifying the provisions she relied upon at the close of her case. Although she should have formally applied for an amendment so submissions could have been heard, Judge Simpson did not need to wait for an application as a judge was responsible for correcting the pleadings. The CCA held that in the circumstances of the case, there was no miscarriage of justice. Mr Ayles appealed to the High Court. The High Court, by a 3-2 majority, dismissed the appeal. The majority held that Judge Simpson’s correction of the provision to section 69 gave effect to the prosecutor’s stated intention and she had not usurped the prosecutor’s role as she he did not decide for herself to add a charge to the indictment. An indictment referring to a statute not in effect at the time of offence was defective but capable of amendment. There was no unfairness or miscarriage of justice.
+HIGH COURT OF AUSTRALIA 8 October 2014 BROOKFIELD MULTIPLEX LTD v OWNERS CORPORATION STRATA PLAN 61288 & ANOR [2014] HCA 36 Today the High Court unanimously allowed an appeal from a decision of the Court of Appeal of the Supreme Court of New South Wales. The High Court held that Brookfield, the builder of a strata-titled apartment complex, did not owe a duty of care to the Owners Corporation to avoid causing it economic loss resulting from latent defects in the common property. Brookfield built the complex pursuant to a design and construct contract with a developer who owned the land on which it was built. Upon the registration of a strata plan in relation to the part of the complex which was to be used for serviced apartments, the Owners Corporation was created by operation of law. The common property was vested in the Owners Corporation as manager of the strata scheme and as agent for the owners of the serviced apartments. The design and construct contract contained detailed provisions with respect to the quality of the work to be performed by Brookfield and required Brookfield to remedy defects or omissions in the work within a defined defects liability period. The standard form contract of sale to purchasers of the serviced apartments, annexed to the design and construct contract, conferred on each purchaser specific contractual rights in relation to defects in the property, including the common property. The Owners Corporation commenced proceedings against Brookfield in the Supreme Court of New South Wales to recover damages including the cost of repairing latent defects in the common property of the apartment complex. Brookfield was said to be liable in negligence for breach of a duty to take reasonable care to avoid a reasonably foreseeable economic loss to the Owners Corporation in having to make good the consequences of latent defects caused by the building's defective design and/or construction. The primary judge held that Brookfield did not owe the duty propounded by the Owners Corporation. On appeal, the Court of Appeal unanimously held that Brookfield did owe the Owners Corporation a duty of care, albeit a narrower duty to avoid causing loss resulting from latent defects which were structural or dangerous or which made the serviced apartments uninhabitable. By grant of special leave, Brookfield appealed to the High Court. The Owners Corporation was granted special leave to cross-appeal, and sought orders providing for a wider duty of care than that found by the Court of Appeal. The High Court allowed the appeal, dismissed the cross-appeal, and held that Brookfield did not owe the duty of care propounded by the Owners Corporation or found by the Court of Appeal.
+HIGH COURT OF AUSTRALIA 7 April 2011 [2011] HCA 10 Today the High Court allowed an appeal against a decision of the Court of Appeal of the Supreme Court of Queensland to increase the sentence imposed on Mr Dionne Matthew Lacey following an appeal by the Attorney-General of Queensland. By majority, the High Court held that a legislative provision allowing for appeals against sentence to be made by the Attorney-General did not permit the Court of Appeal to vary a sentence in the absence of demonstrated or inferred error on the part of the original sentencing judge. Mr Lacey was convicted of manslaughter, and sentenced to 10 years imprisonment. The Crown Prosecutor had sought a sentence of 13 years, with a two year deduction for time already served on remand. The trial judge indicated that he would have imposed a sentence of 12 years, but had taken the two years served on remand into account. Mr Lacey appealed against the conviction and sought leave to appeal against his sentence. The Attorney-General appealed against the sentence on the alternative grounds that it was "inadequate" or "manifestly inadequate". Section 669A(1) of the Criminal Code (Qld) empowers the Attorney-General to appeal against any sentence imposed by a trial court, and provides that the court hearing the appeal "may in its unfettered discretion vary the sentence and impose such sentence as to the Court seems proper." In the proceedings before the Court of Appeal, the Solicitor-General (on behalf of the Attorney- General) sought a sentence in the range of 15 to 18 years, before deduction for time on remand. The Court of Appeal dismissed Mr Lacey's appeal against conviction and application for leave to appeal against sentence, and allowed the Attorney-General's appeal. The Court, by majority, increased the sentence to 11 years, holding that the "unfettered discretion" conferred by s 669A(1) required the Court of Appeal to have regard to the sentence below, but come to its own view as to the proper sentence to be imposed. The High Court today held that the Court of Appeal's construction was erroneous. The words of s 669A(1) neither expressly nor by implication defined a jurisdiction which enlivened a general power to vary sentences simply because the Attorney-General chose to appeal. Such a construction would require clear language to that effect. The appellate jurisdiction conferred by the section required error on the part of the sentencing judge to be demonstrated before the appellate court's "unfettered discretion" to vary the sentence arose. The High Court allowed the appeal, and set aside the order of the Court of Appeal, ordering that the appeal to that Court be dismissed.
+HIGH COURT OF AUSTRALIA 10 May 2017 THE QUEEN v STEVEN LAKAMU SIOSIUA AFFORD [2017] HCA 19 Today the High Court held in relation to two appeals that an inference that an accused intended to import a substance contrary to s 307.1(1) of the Criminal Code (Cth) ("the Code") could be drawn from the accused's knowledge or belief that there was a real or significant chance that he or she was importing the substance. The first appeal, Smith v The Queen, involved the importation into Australia of illicit drugs, secreted in golf sets, shoes, containers of vitamins and soap. Although admitting that he had some concerns about the items he had been given by an acquaintance in India, Mr Smith claimed that he had no intention to import the illicit drugs concealed in them. Mr Smith was convicted in the District Court of New South Wales on one count of importing a commercial quantity of a border controlled drug contrary to s 307.1(1) of the Code. He unsuccessfully appealed against conviction to the Court of Criminal Appeal of the Supreme Court of New South Wales on the ground that the trial judge misdirected the jury with respect to the fault element of intent. The second appeal, The Queen v Afford, also involved the importation of illicit drugs. The drugs were found in packages stitched inside the lining of luggage given to Mr Afford by an acquaintance in Manila. Mr Afford denied that he intended to import the illicit drugs and submitted that even if he had been suspicious that the suitcase might contain drugs, such a suspicion could not establish an intention to import the substances. Mr Afford was convicted in the County Court of Victoria on one count of importing a commercial quantity of a border controlled drug contrary to s 307.1(1) of the Code. He successfully appealed to the Court of Appeal of the Supreme Court of Victoria on the grounds that the verdict was unreasonable and that a substantial miscarriage of justice occurred by reason of a misdirection with respect to the fault element of intent. By grants of special leave, the appeals came before the High Court and were heard together. The Court held that the process of inferential reasoning posited in Bahri Kural v The Queen (1987) 162 CLR 502; [1987] HCA 16 is applicable to proof of an intention to import a substance contrary to s 307.1(1) of the Code. Consequently, where it is established that an accused perceived there to be a real or significant chance of a substance being present in an object which the accused brought into Australia, it is open to infer on the basis of all the facts and circumstances of the case that the accused intended to import the substance. It is also appropriate for a trial judge so to direct the jury. A majority of the Court held that the trial judge's directions to the jury were sufficient in both appeals. The Court also held that it was open to the jury to be satisfied of Mr Afford's guilt beyond reasonable doubt. Accordingly, the appeal in Smith v The Queen was dismissed and the appeal in The Queen v Afford was allowed.
+HIGH COURT OF AUSTRALIA 1 May 2013 TAMAR RIVQA BECK v AMIRAM DAVID WEINSTOCK & ORS [2013] HCA 15 Today the High Court unanimously dismissed an appeal by Mrs Tamar Beck regarding whether shares in LW Furniture Consolidated (Aust) Pty Ltd, described as "C" Redeemable Preference Shares (the "C class shares"), were able to be redeemed under the Corporations Act 2001 (Cth). The Court rejected Mrs Beck's argument that the C class shares were not preference shares (and could not be redeemable preference shares) because no ordinary shares or other shares with lesser rights were issued. LW Furniture was incorporated in 1971. Its articles of association provided for several different classes of shares, including C class shares. In 1971, eight C class shares were issued to Mrs Hedy Weinstock. The company issued other preference shares having the same rights as the C class shares, but never issued any ordinary shares. Mrs Weinstock died in 2004 and, after her death, the company sought to redeem the C class shares for one dollar each. As executor of the estate of Mrs Weinstock, Mrs Beck claimed that the C class shares were not redeemable because they were not preference shares. In the Supreme Court of New South Wales, Hamilton AJ held that the C class shares were not validly issued as preference shares because there were no other shares on issue over which they had preference. On appeal, the Court of Appeal held that the C class shares were preference shares and had been validly redeemed. By special leave, Mrs Beck appealed to the High Court. The High Court unanimously dismissed the appeal. The High Court held that the C class shares were preference shares and the redemption of shares was valid. The C class shares were preference shares, as they had rights attached that preferred the holder of those shares to the holder of any ordinary shares in the company on issue when the relevant right was to be examined.
+HIGH COURT OF AUSTRALIA Manager, Public Information 29 July 2009 BACKOFFICE INVESTMENTS PTY LTD & ANOR [2009] HCA 25 Today, the High Court allowed an appeal against an award of damages for misleading or deceptive conduct in connection with the sale of a share representing a half interest in Healthy Water Pty Ltd (the Company). The Court concluded that the evidence did not support the finding by the Court of Appeal of New South Wales that certain pleaded representations had been made or that the purchaser had relied upon misrepresentations about the financial affairs of the Company in making his decision to buy into it. The High Court upheld the Court of Appeal’s decision that the primary judge had erred in making an order for the vendor of the share to buy it back from the purchaser. The vendor, Mr Douglas Campbell, established a business to sell and maintain water filtration systems. Eventually he incorporated the Company to carry on that business, and in 2004 he decided to undertake a capital restructure. Mr Timothy Weeks became interested in the business and in January 2005 Mr Weeks’ company, Backoffice Investments, entered into a share sale agreement (SSA) under which Backoffice purchased one of the two issued shares in the Company from Mr Campbell for $850,000. The relationship between Mr Campbell and Mr Weeks quickly broke down. By consent a provisional liquidator was appointed in April 2005 and on 31 May 2005 the provisional liquidator sold the Company’s assets to another company controlled by Mr Campbell for $196,815. That money was used to pay the Company’s liabilities and the provisional liquidator’s fees and expenses. The Company was left an empty shell and its shares were worthless. On 1 April 2005 Mr Weeks filed a statement of claim against Mr Campbell and the Company alleging numerous causes of action including oppression pursuant to section 232 of the Corporations Act 2001 (Cth), for which he sought an order that Mr Campbell buy back the share; breach of warranties in the SSA, for which he sought damages; and a claim of misleading and deceptive conduct in breach of section 42 of the Fair Trading Act 1987 (NSW), for which he also sought damages. The primary judge allowed Mr Weeks’ oppression claim and ordered Mr Campbell to buy back the Company share for $853,000. The claim for damages for misleading and deceptive conduct failed because the primary judge found that Mr Weeks had not relied on the alleged misrepresentations when he purchased the share in the Company. Her Honour found there had been breach of some of the warranties in the SSA but awarded no damages, given she had made the buy-back order. By majority the New South Wales Court of Appeal allowed Mr Campbell’s appeal against the buy-back order. By a different majority the Court of Appeal found that Mr Campbell had made pre-contractual representations which were misleading and deceptive, and which had been relied on by Mr Weeks when entering into the SSA. The Court of Appeal ordered Mr Campbell to pay damages of $850,000 to Mr Weeks and Backoffice. Two of the judges of the Court of Appeal did not decide whether there had been a breach of any warranties and the third judge agreed with the primary judge’s conclusions concerning breach of warranties but held that only nominal damages were payable. The High Court granted special leave to appeal against the decision of the Court of Appeal. All members of the High Court held that the Court of Appeal had been correct to set aside the primary judge’s buy-back order. However, their Honours considered that the evidence did not support a finding that certain pleaded representations were actually made, or that Mr Weeks and Backoffice would not have purchased a share in the Company had he been aware of the falsity of certain statements made by Mr Campbell concerning the Company’s financial performance. The Court noted that live issues concerning breach of contractual warranties had not been determined by the Court of Appeal. The High Court ordered that the order made by the Court of Appeal setting aside the primary judge’s buy-back order should stand, the orders entering judgment for Backoffice for $850,000 for reliance on misleading and deceptive conduct should be set aside, and issues concerning breach of contractual warranties, and any potential damages arising therefrom, should be remitted to the Court of Appeal.
+HIGH COURT OF AUSTRALIA 15 December 2010 MINISTER FOR IMMIGRATION & CITIZENSHIP v SZJSS & ORS [2010] HCA 48 In reviewing the unsuccessful protection visa application of a Nepalese citizen ("SZJSS"), the Refugee Review Tribunal ("RRT") chose to give "no weight" to certain letters provided by SZJSS which appeared to corroborate some of the assertions made by him in support of his application. The RRT also described the giving of certain oral evidence by him as a "baseless tactic". An application by SZJSS and his wife for judicial review of the decision was dismissed by the Federal Magistrates Court on 11 September 2009. However, the Federal Court allowed an appeal from that decision, and quashed the decision of the RRT. It found that the RRT had fallen into jurisdictional error by failing to give "proper, genuine and realistic consideration" to the letters, and by referring to the giving of certain evidence as a "baseless tactic". The Federal Court also found that the reasons of the RRT gave rise to a reasonable apprehension of bias, by reason of pre- judgment. The High Court today unanimously upheld an appeal by the Minister against the decision of the Federal Court. It found that the weight to be placed on the letters was a matter on which reasonable minds might come to different conclusions, and that the RRT's preference for other evidence could not be said to entail a jurisdictional error. It held further that the RRT's use of the expression "baseless tactic" did not, in the circumstances, give rise to any jurisdictional error. On the question of apprehended bias, the Court found that the RRT's use of the expression "baseless tactic" did not provide any foundation for a contention that the RRT pre-judged a central but contestable issue in the matter. Pursuant to an undertaking given to the Court, the Minister was ordered to pay the costs of the visa applicants.
+HIGH COURT OF AUSTRALIA 10 October 2018 PAUL JOSEPH RODI v THE STATE OF WESTERN AUSTRALIA [2018] HCA 44 Today the High Court unanimously allowed an appeal from the Court of Appeal of the Supreme Court of Western Australia. The appellant was charged with possession of a prohibited drug with intent to sell or supply it to another, after a police search located 925.19 grams of cannabis at the appellant's home. At trial, the appellant admitted possession of the cannabis but maintained it was entirely for personal use. He further claimed that all of the cannabis was harvested from two plants located at his home. A prosecution witness, Detective Coen, testified that in his experience, mature, naturally grown female cannabis plants typically yield between 100 grams and 400 grams of cannabis head material, and that he would expect the yield from the two plants located at the appellant's home to be at the lower end of this scale. A jury found the appellant guilty. In the Court of Appeal, the appellant sought an extension of time within which to appeal against his conviction. His proposed ground of appeal was that as a result of fresh or new evidence a miscarriage of justice had occurred. The new evidence on which the appellant relied consisted of transcripts of earlier proceedings which showed that Detective Coen had previously given evidence to the effect that naturally grown female cannabis plants may yield between 300 grams and 600 grams of head material ("the Earlier Coen evidence"). A yield within that range was consistent with the appellant's account that the cannabis in his possession had come from the two plants at his home. This evidence had not been disclosed to the appellant at trial. The Court of Appeal admitted this evidence, as well as evidence of Detective Coen's explanation that his opinion had changed after his own experiments and discussions with cannabis growers. The Court of Appeal, by majority, refused the application for an extension of time and dismissed the appeal. The Court held that the Earlier Coen evidence was "fresh evidence". Nevertheless, the Court concluded that the non-disclosure of the Earlier Coen evidence to the appellant did not give rise to a miscarriage of justice. The Court referred to a number of considerations in reaching this conclusion, including that Detective Coen's explanation for his change in opinion was "credible and cogent". The Court concluded that there was no significant possibility that, on the whole of the trial record and the additional evidence, a jury, acting reasonably, would be satisfied to the requisite standard that the appellant did not intend to sell or supply to another any of the cannabis. By grant of special leave, the appellant appealed to the High Court on the ground that the majority of the Court of Appeal erred in finding that the fresh evidence did not give rise to a significant possibility of acquittal by the jury. The Court accepted this contention. The blow to the appellant's credibility by Detective Coen's evidence at trial was undeniably significant to the jury's assessment of the strength of the appellant's evidence. The Court of Appeal, by considering that the effect of any doubt as to the reliability of Detective Coen's explanation for his change of opinion on the appellant's prospects of acquittal might be resolved by the Court's acceptance of that explanation, misunderstood the role of an appellate court confronted with fresh evidence that impugns a verdict at trial. The cogency of his explanation was a question for the jury. Accordingly, the Court ordered that the appellant's appeal be allowed, his conviction be quashed, and a new trial be had.
+HIGH COURT OF AUSTRALIA 12 May 2021 UTALACKO v TALACKO & ORS [2021] HCA 15 Today the High Court unanimously dismissed an appeal from judgments of the Court of Appeal of the Supreme Court of Victoria and allowed cross-appeals from a judgment of the same Court. The appeal concerned whether loss or damage had been suffered such that an unlawful means conspiracy was actionable. The cross-appeals concerned whether damages for the unlawful means conspiracy should be discounted to reflect the chance of separate recovery from two of the conspirators in foreign proceedings. A conspiracy by unlawful means was undertaken by Jan Emil Talacko with his wife and two of their sons. The conspiracy was directed at depriving Jan Emil's siblings, or those claiming through them – the first to fifth respondents to this appeal ("the Respondents") – of the value of their rights, namely a chose in action against Jan Emil arising from an unquantified judgment in their favour ("the chose in action against Jan Emil"). The conspiracy involved agreements by which Jan Emil donated valuable properties that he held in the Czech Republic to his sons (collectively, "the Donation Agreement") to impede recovery of the anticipated judgment debt, which was later quantified. In 2009, the proceeding which led to this appeal concerning, amongst other things, unlawful means conspiracy was commenced by the Respondents in the Supreme Court of Victoria. In 2011 and 2012, the Respondents brought proceedings against the sons in the Czech Republic to set aside the Donation Agreement ("the Donation Agreement Proceedings") to enable a claim to be made, and enforced, directly against the sons. The Supreme Court of Victoria held that the unlawful means conspiracy was not actionable because the Respondents had not proved that they had suffered loss or damage. The primary category of loss alleged by the Respondents – being prevented from recovering the judgment debt because of the Donation Agreement – was held to be only contingent since the value of the properties might yet be recovered from the sons through the Donation Agreement Proceedings. An appeal to the Court of Appeal was allowed on the basis that the Respondents had suffered loss or damage. The quantification of the primary category of loss by the Supreme Court of Victoria was discounted by 25%, including for the prospect that Jan Emil might have impeded recovery even without the unlawful means conspiracy. The damages were further reduced by 20% to account for a speculative prospect of separate recovery from the sons through the Donation Agreement Proceedings. The High Court dismissed the appeal, holding that the Court of Appeal was correct to conclude that the Respondents had suffered loss or damage so that the unlawful means conspiracy was actionable. The reason for this was that the value of the Respondents' rights, the chose in action against Jan Emil, was reduced by Jan Emil's entry into the Donation Agreement because the transfer of the properties reduced the available assets to meet the anticipated judgment debt. The Court allowed the cross-appeals, concluding that the 20% prospect of success arising from the Donation Agreement Proceedings could not be said to be a benefit of any real value to the Respondents that had reduced their loss.
+HIGH COURT OF AUSTRALIA 5 April 2005 PICO HOLDINGS INC v WAVE VISTAS PTY LTD (formerly Turf Club Australia Pty Ltd) AND NATIONAL AUSTRALIA BANK Pico has a valid claim over property formerly belonging to Turf Club Australia which must now compete for priority against interests held by the National Australia Bank, the High Court of Australia held today. Pico is a Californian corporation which had dealings over several years with various companies controlled by Peter David Voss, including Dominion Capital Pty Ltd. On 22 December 2000, in great urgency, Pico lent Dominion Capital $US1.2 million, repayable a fortnight later, secured by collateral of 400,000 shares in Dominion Wines. Terms were recorded in a non-negotiable secured promissory note. No share certificate was sent and the loan was not repaid, despite an extension to 30 April and Mr Voss’s repeated promises. On 25 April 2001, Pico director John Hart told Mr Voss that Pico required security before another month’s extension could be made. Mr Voss offered a property at Nerang on the Gold Coast which he said was worth twice the value of the loan. He agreed to send Mr Hart the title deeds and a recent valuation and faxed Pico a letter on Dominion Capital letterhead to that effect on 4 May 2001, along with a copy of a certificate of title showing the land was owned by Turf Club Australia, of which Mr Voss was the sole director. However he had already given NAB a mortgage over the land. He told NAB he was selling the land for $3-$3.1 million. The certificate of title was held by a Gold Coast law firm for unpaid fees, later paid by NAB which then held the certificate. For two months, Pico sought confirmation that Dominion Capital’s Sydney solicitors held the certificate of title in trust for Pico and sought delivery of the certificate. Its demands for the certificate and for repayment were unmet. Pico obtained judgment against Dominion Capital in the Victorian Supreme Court for recovery of the loan, then instituted proceedings in the Queensland Supreme Court against Turf Club, seeking declarations that it had an equitable charge over the land and that that charge had priority over NAB’s mortgage. However Justice John Helman held there was merely an oral agreement and that Turf Club was not a party to it. Even if it were, the agreement was unenforceable because of non-compliance with the Property Law Act which required that contracts for the transfer of land be in writing. The Queensland Court of Appeal dismissed the appeal. Pico appealed to the High Court. The Court unanimously allowed the appeal. It held that Mr Voss had authority to commit Turf Club Australia to a promise to supply a certificate of title over its land. The Court held that the promise to deliver the certificate of title, in exchange for Pico extending the repayment period, was specifically enforceable. The May 4 2000 letter was a note of the contract, fulfilling the requirements of the Property Law Act. The Court declared that Pico has an interest in the proceeds of sale of the land corresponding with an equitable mortgage created by the contract between Pico, Turf Club and Dominion Capital arising from the oral promises of 25 April 2001, the letter of 4 May 2001 and an addendum, regarding the extension, to the promissory note of 22 December 2000. The Court ordered that the matter be remitted to the Court of Appeal to determine whether Pico’s equitable mortgage over the property takes priority over any interests held by NAB.
+HIGH COURT OF AUSTRALIA 18 December 2013 [2013] HCA 56 Today the High Court, by majority, allowed an appeal from a decision of the Court of Appeal of the Supreme Court of New South Wales concerning the measure of damages that the purchaser of assets of a business was entitled to recover from the vendor who broke its contractual promise to deliver stock complying with a warranty. The appellant and respondent were registered medical practitioners who each specialised in providing assisted reproductive technology services. The appellant agreed to buy assets of St George Fertility Centre Pty Limited, a company which was controlled by the respondent and which provided medical and assisted reproductive technology services to patients. The company ("the vendor") agreed to sell certain assets of the practice, including a stock of frozen donated sperm. The respondent guaranteed the vendor's obligations under the contract. The vendor warranted that the identification of donors of the sperm complied with specified guidelines. Of the stock of sperm delivered, 1,996 straws of sperm which the appellant would have expected to be able to use were not as warranted and were unusable. The appellant could not buy suitable replacement sperm in Australia but could in the United States of America. The primary judge found that buying 1,996 straws of replacement sperm from the American supplier ("Xytex") would have cost about $1 million at the time the contract was breached. The purchase price for the assets (including the stock of frozen donated sperm) was less than $400,000. The appellant accepted that ethically she could not charge, and in fact had not charged, any patient a fee for using donated sperm greater than the amount the appellant had outlaid to acquire it. The Supreme Court of New South Wales entered judgment for the appellant against the vendor for breach of warranty, and against the respondent as guarantor of the vendor's obligations. The primary judge assessed the damages for breach of warranty as the amount that the appellant would have had to pay Xytex (at the time the contract was breached) to buy 1,996 straws of sperm. On appeal against the assessment of damages, the Court of Appeal held that the appellant should have no damages for the vendor's breach of warranty. The appellant had bought straws of sperm from Xytex to use in treating patients and had charged each patient a fee which covered the costs the appellant had incurred in buying the straws that were used in treating that patient. The Court of Appeal held that the appellant had thus avoided any loss she would otherwise have sustained. By special leave, the appellant appealed to the High Court seeking orders reinstating the award of damages made by the primary judge. The Court allowed the appeal by majority. It held that the appellant should recover the amount it would have cost (at the date of the breach of warranty) to acquire 1,996 straws of sperm from Xytex.
+HIGH COURT OF AUSTRALIA 9 May 2006 Public Information Officer ALEXIA HARRITON (BY HER TUTOR GEORGE HARRITON) v PAUL RICHARD STEPHENS KEEDEN WALLER (BY HIS TUTOR DEBORAH WALLER) v CHRISTOPHER JAMES AND SYDNEY IVF PTY LIMITED KEEDEN WALLER (BY HIS TUTOR DEBORAH WALLER) v BRIAN HOOLAHAN Two severely disabled people who claim they should not have been born do not have a case for negligence against their mothers’ doctors, the High Court of Australia held today. Alexia Harriton’s mother, Olga Harriton, contracted rubella early in her pregnancy. After suffering fever and a rash, she told her GP, Dr Max Stephens, the late father of Dr Paul Stephens, that she thought she was pregnant and also ill with rubella. She had a blood test and the pathology service reported that if there were no recent contact or rubella-like rash further contact with the virus was unlikely to produce congenital abnormalities. Dr Paul Stephens confirmed Mrs Harriton’s pregnancy and ruled out rubella but did not prescribe a follow-up “IgM” blood test and did not advise that a pregnant woman who had had rubella in the first trimester had a very high risk of having a child with congenital abnormalities. Mrs Harriton says that, had she received proper advice, she would have terminated the pregnancy. Alexia, now 25, suffers from blindness, deafness, mental retardation and spasticity and requires constant care. She claimed damages for past and future medical and care costs, general damages for pain and suffering and loss of income. Keeden Waller, now five, was born after his parents underwent IVF. His father, Lawrence, had an anti- thrombin 3 (AT3) deficiency which meant his blood had a propensity to clot for which he took medication. Dr James, the Wallers’ infertility specialist, arranged for tests on Mr Waller but these did not cover the genetic basis for the AT3 deficiency or the likelihood of it being passed on. The IVF went ahead. Dr Hoolahan, an obstetrician, oversaw Mrs Waller’s pregnancy but the tests he ordered did not relate to the AT3 deficiency and its possible consequences. After Keeden was born he was found to have a cerebral thrombosis. He has permanent brain damage, suffers from cerebral palsy, has uncontrolled seizures and requires constant care. Had the Wallers known the AT3 deficiency could be passed on to Keeden, they say they would have deferred IVF until methods were available to ensure AT3 deficiency was not passed on, used donor sperm, or, if told of the high risk that the foetus would have the AT3 deficiency, would have terminated the pregnancy. In the New South Wales Supreme Court, Justice Timothy Studdert dismissed Alexia and Keeden’s claims for damages, holding they had no cause of action. The Court of Appeal, by majority, dismissed each appeal. Alexia and Keeden then appealed to the High Court which, by a 6-1 majority, dismissed each appeal. To have a cause of action in negligence each needed to show damage had been suffered and a duty of care on the doctors to avoid that damage. No legally recognisable damage – loss, deprivation or detriment caused by an alleged breach of duty – could be shown. The Court held that comparing a life with non-existence for the purposes of proving actual damage is impossible as it could not be determined that the children’s lives represented a loss, deprivation or detriment compared with non-existence. It also held that damages could not be assessed because in all the circumstances comparisons with able-bodied children or with a notional life without disabilities could not be made. The damage claimed by Alexia and Keeden is not amenable to being determined by a court by the application of established negligence principles. Consequently, their claims could not succeed.
+HIGH COURT OF AUSTRALIA 13 November 2019 LORDIANTO & ANOR v COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE; KALIMUTHU & ANOR v COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE [2019] HCA 39 Today the High Court dismissed two appeals from decisions of the Court of Appeal of the Supreme Court of New South Wales and the Court of Appeal of the Supreme Court of Western Australia. The High Court held that property in respect of bank accounts into which deposits were made through a money laundering process known as "cuckoo smurfing" had not "ceased" to be proceeds or an instrument of an offence under the Proceeds of Crime Act 2002 (Cth) ("the POCA"). That was because interests in connection with the property – the choses in action in respect of the bank accounts – were not acquired for sufficient consideration in circumstances that would not arouse a reasonable suspicion that the interests were proceeds or an instrument of an offence. The appellants in each appeal remitted large sums of money to Australia using remitters or money changers in a foreign country. The appellants either deposited foreign currency in a foreign country into accounts nominated by the remitters or gave cash to the remitters. A large number of cash deposits, usually each less than $10,000, but together equivalent to the amounts paid by the appellants to the remitters, were then made into the appellants' nominated bank accounts in Australia as part of a cuckoo smurfing process. The Commissioner of the Australian Federal Police successfully applied for orders under s 19 of the POCA restraining the disposal of, or any dealing with, specific bank accounts in the name of one or more of the appellants on the basis that they were proceeds or an instrument of a structuring offence contrary to s 142(1) of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth). The offence was aimed at those who conduct transactions with the sole or dominant purpose of avoiding "threshold transactions" of $10,000 or more, so that they are not reported to the Australian Transaction Reports and Analysis Centre. Subsequent to the restraining orders being made, the appellants applied under ss 29 and 31 of the POCA to have their interest in the property the subject of the restraining orders excluded from those orders. The property sought to be excluded was the appellants' choses in action in respect of their various bank accounts. The appellants in both cases conceded that that "property" was proceeds or an instrument of an offence. They sought to establish that their property had "ceased" to be proceeds or an instrument of an offence pursuant to s 330(4) of the POCA. Relevantly, s 330(4)(a) required the appellants to establish that the property had been "acquired by a third party for sufficient consideration without the third party knowing, and in circumstances that would not arouse a reasonable suspicion, that the property was proceeds of an offence or an instrument of an offence (as the case requires)". The High Court unanimously held that, in the Lordianto appeal and in relation to the first appellant in the Kalimuthu appeal, the appellants did not discharge their onus to prove the matters necessary under s 330(4)(a). The High Court also held by majority that the second appellant in the Kalimuthu appeal did not establish the requirements of s 330(4)(a) because the second appellant was a volunteer who did not acquire the property for sufficient consideration.
+HIGH COURT OF AUSTRALIA 9 February 2005 GUY EDWARD SWAIN v WAVERLEY MUNICIPAL COUNCIL The High Court of Australia today upheld a damages award to Mr Swain who became a quadriplegic in an accident at Bondi Beach in November 1997. Mr Swain, then 24, was at the beach with his friend Kathryn Galvin and her flatmate Earl Wilson. He waded out about 15 metres into waist-deep water and dived through a wave but hit his head on a sandbar. Mr Swain sued Waverley Council for negligence, alleging that the red-and-yellow flags induced him to swim where he did and that the Council had failed to take reasonable care in positioning the flags and in not erecting signs warning swimmers of the sandbar. The case was heard by Acting Justice Ken Taylor and a four-member jury in the New South Wales Supreme Court. Justice Taylor instructed the jury that the Council had a duty to take reasonable care for the safety of people using the beach. It was for the jury to decide whether there had been a breach of that duty. The jury found the Council liable and found contributory negligence of 25 per cent on the part of Mr Swain. He was awarded $3.75 million. The Council successfully appealed to the NSW Court of Appeal on two issues. The Court of Appeal unanimously accepted there was no evidence to support the decision against the Council for failing to warn swimmers of the sandbar and by a 2-1 majority accepted that there was no evidence to support the verdict on the flag placement issue. Mr Swain appealed to the High Court on this latter issue. The Court allowed the appeal by a 3-2 majority. It held that the Court of Appeal had erred in setting aside the jury verdict. The High Court majority held that there was sufficient evidence on which a jury could be reasonably satisfied that the Council had been negligent. It was open to the jury to accept Mr Swain’s version of how he was injured. It was also open to the jury to conclude that in placing the flags the Council should have exercised reasonable care to prevent injury to bathers. Whether or not the risk posed by the sandbar was obvious was a question of fact and it was open to the jury to conclude that the sandbar was a concealed hazard. The flags were not moved on the day of Mr Swain’s accident. The Council called no evidence to explain why the flags could not have been moved so as to avoid the hazard. The majority held there was sufficient material to sustain a finding in favour of Mr Swain on the issue of negligence and that, since it was for the jury to decide whether such a finding should be made, the verdict should stand. The majority pointed out that the case, properly analysed, was one concerned with the correct approach by appeal courts to overturning jury verdicts rather than the liability of local government authorities to surfers as such.
+HIGH COURT OF AUSTRALIA Public Information Officer 8 October, 2003 RE PHILIP RUDDOCK IN HIS CAPACITY AS MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS; EX PARTE APPLICANT S154 OF 2002 The High Court of Australia today dismissed an application for constitutional writs by a Sri Lankan woman who belatedly raised claims she was raped by police in Sri Lanka. The woman, 29, known as Applicant S154, is an ethnic Tamil and a Christian. In 1996 she moved to the Maldives and lived with her employer, a Muslim Pakistani. They married in 1998 and a few days later arrived in Australia, along with S154’s mother. S154 applied for a protection visa, contending she was suspected by the authorities of belonging to the Tamil Tigers separatist group. The Immigration Department denied her a protection visa because it was not satisfied she was a person to whom Australia owed protection obligations under the Refugees Convention. She was not regarded as being associated with the Tamil Tigers, had never been arrested or detained under anti-terrorist laws, had been free to travel in and out of Sri Lanka, was of no interest to the authorities and had no well-founded fear of persecution. The decision was affirmed by the Refugee Review Tribunal, but was reversed by the Federal Court in 2000 on the ground that the RRT failed to make findings about S154’s claim, made for the first time at the RRT hearing, that she feared being recruited by the Tamil Tigers. The matter was remitted to the RRT and heard by another Member. At the second hearing, S154 said she was raped by police questioning her about the Tamil Tigers. She said she had not raised this before because she did not want her mother or husband to know. The Member replied, “OK, I don’t need to ask you any further question about that particular incident.” The Member subsequently asked S154 whether she wanted to say anything further about the claim The RRT also affirmed the original decision to refuse S154 a protection visa, holding that she had never even mentioned being taken to the police station until the second hearing. She had also not mentioned rape to a psychologist whom she saw 10 times. The Member said he was satisfied the claim was untrue and designed to bolster S154’s case. S154 then applied to the High Court for constitutional writs. S154 claimed the Member’s comment conveyed the impression that the Member had accepted her evidence and she was denied natural justice. The Court held that the Member was openly sceptical and gave her several opportunities to say more about the incident at the police station, so he did not mislead her. The Court, by a 4-1 majority, dismissed the application.
+HIGH COURT OF AUSTRALIA 11 February 2004 YOLANDA AND ROCCO GATTELLARO v WESTPAC BANKING CORPORATION A guarantee given by Mr Gattellaro for his company’s debts was held to be valid by the High Court of Australia today. The Court also held that security given by his wife also covered the liability. Mr and Mrs Gattellaro owned Falgat Constructions which built and renovated houses. In 1977 they executed a mortgage over their home at Chiswick in Sydney to secure their personal indebtedness to the Commercial Bank of Australia (now part of Westpac). The Gattellaros in 1986 entered into another mortgage over their home to secure an advance of $450,000. Westpac took action over that mortgage and in 2000 the New South Wales Supreme Court ordered the Gattellaros to pay Westpac $983,000 and to give up possession of their home. The Court of Appeal dismissed their appeal. Westpac said Falgat’s indebtedness was secured by an unlimited guarantee given by Mr Gattellaro in 1985, that obligations under that guarantee were secured by the 1977 mortgage, and that this mortgage also made Mrs Gattellaro liable. Westpac’s difficulty was that it could not produce the 1985 unlimited guarantee on which its contention depended, forcing it to rely on other documents, including an internal memo that Mrs Gattellaro was to sign the guarantee later the same week. Whether she ever signed remained uncertain. Mr Gattellaro said, because she had not signed, his guarantee was inoperative. The Court of Appeal by majority held it was unnecessary to decide whether Mrs Gattellaro had given a guarantee as the 1977 mortgage made her liable and rendered their home security for company debts. The majority took judicial notice that Westpac had a standard form guarantee which contained a clause that the guarantee was binding on each person who signed it, even though someone named as a guarantor had not. The Gattellaros said the guarantee did not contain the clause, but a guarantee with a print date of 1984 signed in 1986 by their relatives, the Falcomatas, did contain such a clause. In the High Court, Westpac accepted that the doctrine of judicial notice did not permit the Court of Appeal to find as common knowledge that the bank used a standard form of guarantee. The High Court held that, as the case was pleaded and conducted, the Gattellaros bore the onus of proving both that the 1986 mortgage was unjust and of nullifying the 1985 guarantee by proving Mrs Gattellaro had to be a co-surety for the guarantee. This the Gattellaros were unable to do. The Court, by a 4-1 majority, dismissed the Gattellaros’ appeal. The 1977 mortgage continued to apply and it made Mrs Gattellaro liable for all money for which Mr Gattellaro might be liable to Westpac. The second mortgage did not increase their overall liability. However the High Court unanimously criticised Westpac’s slowness in conceding that the Court of Appeal had erred. If it had conceded this when the High Court was hearing the Gattellaros’ special leave application the Court could have allowed the appeal immediately and remitted the matter to the Court of Appeal. Instead, the Gattellaros had to incur the expense of an appeal, so the Court denied Westpac its costs.
+HIGH COURT OF AUSTRALIA 15 June 2004 ANDAR TRANSPORT PTY LTD v BRAMBLES LIMITED Brambles could not claim an indemnity against liability for negligence in the case of an injured driver, Daryl Wail, but it was entitled to a contribution towards an award of damages from Mr Wail’s company, the High Court of Australia held today. Brambles provides laundry delivery services to hospitals but since 1990 it has contracted out the work. Mr Wail had been a driver for Princes Linen Service, which was taken over by Brambles. When Brambles decided to contract out laundry deliveries, Mr Wail and Andrew Parker set up Andar Transport and bought the truck from Brambles. Mr Wail was employed as a driver. On 26 July 1993, Mr Wail, then aged 28, loaded a truck with 22 trolleys of clean linen at Brambles laundry for delivery to Cotham Private Hospital in Kew in Melbourne. While unloading, a trolley became jammed against another. Attempting to pull it free Mr Wail felt a searing pain across his lower back. His lumbosacral disc had been damaged and he could no longer work as a truck driver. Mr Wail commenced negligence proceedings against Brambles in 1998 in the Victorian County Court, claiming Brambles failed to ensure fully laden trolleys could be manoeuvred without risk of injury. A jury found in favour of Mr Wail and he was awarded damages totalling $415,000. After subtracting $104,411.60 pursuant to section 135A of the Accident Compensation Act and a reduction of 35 per cent for Mr Wail’s contributory negligence, the Court entered judgment for him of $201,822.46 plus interest. This result is not the subject of the appeal to the High Court. Brambles joined Andar as a party in the proceedings and sought an indemnity from Andar in respect of any damages Brambles might be ordered to pay or contribution due to Andar’s alleged negligence as Mr Wail’s employer. The County Court dismissed Brambles’ third-party claims against Andar. In the Court of Appeal Brambles appealed against the outcomes of both the original proceeding and the third-party proceeding. The Court dismissed the appeal on the first but allowed the appeal on the latter. It held that the contract between Brambles and Andar indemnified Brambles against liability so did not need to consider the extent of the contribution Brambles was also entitled to under section 23B of the Wrongs Act. Andar appealed to the High Court, arguing that the Court of Appeal erred in concluding Andar was contractually bound to indemnify Brambles and that it erred in holding that a claim for contribution against Andar was otherwise available. The High Court, by a 6-1 majority, held that Andar was not obliged to indemnify Brambles as indemnity clauses in the contract did not extend to injured drivers. However it held that a claim for contribution was available to Brambles. The Court held that an employer such as Andar owed a duty to its employees, including directors, to provide a safe system of work in the loading and unloading of trolleys. The Court allowed the appeal and remitted the case to the Court of Appeal for calculation of any contribution to which Brambles was entitled.
+HIGH COURT OF AUSTRALIA 7 April 2021 VICTORIA INTERNATIONAL CONTAINER TERMINAL LIMITED v LUNT & ORS [2021] HCA 11 Today, the High Court unanimously dismissed an appeal from a judgment of the Full Court of the Federal Court of Australia. The appeal concerned whether proceedings brought by a plaintiff on behalf of a trade union to quash the approval of an enterprise agreement, in circumstances where the predecessor trade union had originally supported the approval, should be summarily dismissed on the basis that the proceedings were an abuse of process. The appellant, Victoria International Container Terminal Limited ("VICT"), applied to the Fair Work Commission ("the Commission") for approval of the Victoria International Container Operations Agreement 2016 ("the Enterprise Agreement"). The application was made with the support of the Maritime Union of Australia ("the MUA"), which later merged to form the fourth respondent, the Construction, Forestry, Maritime, Mining and Energy Union ("the CFMMEU"). The Commission approved the Enterprise Agreement. Following that approval, the MUA brought several proceedings against VICT in reliance on the Enterprise Agreement. However, the MUA soon became dissatisfied with the Enterprise Agreement and began publicly to criticise it. The first respondent ("Mr Lunt") was a longstanding member of the MUA who had been employed by VICT. Mr Lunt commenced proceedings seeking to quash the Commission's approval of the Enterprise Agreement. VICT sought summary dismissal of the proceedings, arguing that they were an abuse of process because the CFMMEU (as it now was) was the true moving party behind the proceedings, with Mr Lunt being deployed as a "front man" to conceal the CFMMEU's role. The MUA and CFMMEU had funded the proceedings and were found to have been unwilling to bring proceedings in their own names because of the perceived risk that they would be refused relief on discretionary grounds, including because the MUA had acquiesced in the approval of the Enterprise Agreement. Mr Lunt, however, maintained that he sought the quashing of the approval of the Enterprise Agreement by reason of his concerns about its conditions and the manner in which it was made. On appeal to this Court, VICT argued that to permit the pursuit of the proceedings by Mr Lunt would bring the administration of justice into disrepute, emphasising the lack of candour involved in Mr Lunt's attempt to conceal the role of the CFMMEU in the proceedings. The High Court dismissed the appeal, holding that the choice of Mr Lunt as plaintiff would not have prevented, in any real way, scrutiny by the court of the role played by the MUA in the making of the Enterprise Agreement. The court's powers in relation to abuse of process were not to be exercised in order to deter or punish a want of candour on the part of a litigant of the kind revealed in this case; they are exercised in order to protect the integrity of the court's own processes. In any event, a stay or summary dismissal of proceedings should not be ordered where there are less drastic means to protect the integrity of the court's processes. With the arrangements between Mr Lunt and the CFMMEU now being well known, the administration of justice could not be brought into disrepute by allowing the proceedings to continue to a determination on their merits.
+HIGH COURT OF AUSTRALIA 16 March 2022 STUBBINGS v JAMS 2 PTY LTD & ORS [2022] HCA 6 Today, the High Court unanimously allowed an appeal from a judgment of the Court of Appeal of the Supreme Court of Victoria. The appeal concerned whether the enforcement of the respondents' rights against the appellant, in the context of asset-based lending, was unconscionable. The respondents were in the business of asset-based lending. Their system of lending operated on the basis that potential borrowers, such as the appellant, would meet with an intermediary working with a law firm. The law firm provided a service to clients, including the respondents, to facilitate the making of secured loans by those clients. It acted as agent for the respondents and, because of the intermediary, never dealt directly with the appellant. The appellant was unemployed and had no regular income. He owned two properties, both of which were mortgaged. In 2015, the appellant sought to purchase another property and he met on a number of occasions with the intermediary. In accordance with the system of lending, the appellant acted as guarantor for a loan made to a company by the respondents, of which he was the sole director and shareholder, with the three properties as security for his guarantee. As part of the transactions, the law firm prepared a certificate of "Independent Financial Advice" and a certificate of "Independent Legal Advice" to be signed by an accountant and lawyer, respectively, whom the law firm referred the appellant to. The property was purchased in late 2015. When the company defaulted on the third month's interest payments, the respondents commenced proceedings against the appellant, seeking to enforce the guarantee and their rights as mortgagees of the properties. The Court of Appeal overruled the primary judge, concluding that there was nothing inherently unconscionable about asset-based lending, and that the respondents' agent had neither actual nor constructive knowledge of the appellant's desperate personal and financial circumstances and was entitled to rely on the certificates of independent advice. The High Court held that the respondents had acted unconscionably contrary to equitable principle. It was not in dispute that the appellant suffered from a special disadvantage, because of his poor financial literacy, inability to understand the nature and risks of the transactions, and bleak financial circumstances. The respondents' agent had sufficient appreciation of the appellant's vulnerability and the likelihood that loss would be suffered. A finding of actual knowledge was not essential to the appellant's case for relief. The dangerous nature of the loan, obvious to the agent but not the appellant, was sufficient to establish that the agent had exploited the appellant's vulnerability contrary to good conscience. It was open to the primary judge to infer that the certificates were mere "window dressing", so that they could not negate the agent's actual appreciation of the dangerous nature of the loans and the appellant's vulnerability. It was therefore unconscionable for the respondents to insist upon their rights under the mortgages.
+HIGH COURT OF AUSTRALIA Public Information Officer 14 December 2006 VBAO v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL For an asylum seeker to show a well-founded fear of persecution, a threat of harm must mean a real risk of harm, not merely an earlier communication of intention to harm, the High Court of Australia held today. VBAO is a Sri Lankan national who held an entertainment visa issued to him as a visiting member of a dance troupe sponsored by the Sinhala Cultural and Community Services Foundation. He entered Australia in November 2001. The foundation withdrew sponsorship when it became clear that the troupe was not a troupe of genuine dancers. VBAO applied for a protection visa. He told an Australian official that he wanted to work in Australia to pay off a loan and provide for his family. He also said he was a member of the Sri Lankan Freedom Party, attending and performing at political rallies and organising political meetings. VBAO said his life had been threatened by United National Party members and claimed he would be killed if the UNP, as he expected, came to power in Sri Lanka. He said on his way home from a wedding UNP members pulled him into a van, beat him and cut his hair. He said he had been intentionally struck by a rear-view mirror of a passing van and that eggs had been thrown at him. VBAO said he had lost his job as a musician because of his political involvement, been threatened by UNP members and left his home. The Immigration Department refused him a protection visa. The Refugee Review Tribunal upheld that decision. It found that VBAO had not been actively involved in politics as his knowledge of Sri Lankan politics was limited. The RRT was prepared to accept that he may have received threatening phone calls and letters and that UNP thugs may have assaulted him after the wedding, but it was not satisfied that these incidents constituted persecution within the Refugees Convention. The RRT said the egg throwing and the collision with the rear-view mirror also did not amount to harm as severe as persecution, assuming they actually occurred. The Federal Magistrates Court reversed the RRT decision, holding that threats, in the sense of statements of intention to harm, amounted to persecution and that VBAO had a fear of future threats. The Federal Court of Australia allowed an appeal by the Minister. VBAO appealed to the High Court. The Court unanimously dismissed the appeal. VBAO had argued that the phrase “threat ... to life and liberty” in section 91R of the Migration Act means a communication of an intention to cause harm. The Minister argued that it means a real risk of harm. The Court held that, depending on context, the word “threat” could mean either a risk or a hostile communication. In the context of the Migration Act, and the definition of a fear of persecution in the future, it meant a risk of harm. On the RRT’s finding that there was no such risk, VBAO’s claim must fail.
+HIGH COURT OF AUSTRALIA 6 December 2013 KAREN KLINE v OFFICIAL SECRETARY TO THE GOVERNOR-GENERAL & ANOR [2013] HCA 52 Today the High Court unanimously dismissed an appeal from a decision of the Full Court of the Federal Court of Australia, which held that documents relating to nominations of a person to the Order of Australia were not subject to disclosure under s 6A(1) of the Freedom of Information Act 1982 (Cth) ("the Act"). The appellant made a request under the Act for access to certain categories of documents held by the first respondent, the Official Secretary to the Governor-General of the Commonwealth of Australia ("the Official Secretary"). The categories of documents requested related to two nominations of a person to the Order of Australia, submitted by the appellant. Section 6A(1) of the Act provides that the Act does not apply to any request for access to a document of the Official Secretary, unless the document "relates to matters of an administrative nature". By letter, the Official Secretary refused the appellant's request, informing her that no documents relating to matters of an administrative nature had been identified, although she could be provided with copies of her two nomination forms. The appellant applied for review of the Official Secretary's decision by the Australian Information Commissioner, who affirmed the decision to refuse the appellant access to the balance of documents requested. The appellant appealed to the second respondent, the Administrative Appeals Tribunal ("the Tribunal"), which affirmed the decision of the Official Secretary. On appeal, the Full Court of the Federal Court upheld the Tribunal's decision. By special leave, the appellant appealed to the High Court. The High Court held that documents relating to the Governor-General's substantive powers and functions were excluded from disclosure by operation of s 6A(1) of the Act. The exception of a class of documents which related to "matters of an administrative nature" referred to documents concerning the management and administration of the office resources of the Official Secretary, or the provision of logistical support, which the Official Secretary was required to disclose. The High Court held that the documents sought by the appellant were excluded from disclosure by s 6A(1) of the Act. Relevant criteria for the making of awards in the Order were already available to the public. Further, the Official Secretary accepted that any documents relating to review processes, if such documents existed, would be publicly available without recourse to the Act.
+HIGH COURT OF AUSTRALIA Public Information Officer 2 September, 2003 BRITISH AMERICAN TOBACCO (AUSTRALIA) LTD v STATE OF WESTERN AUSTRALIA AND COMMISSIONER OF STATE TAXATION (WESTERN AUSTRALIA) British American Tobacco (formerly Rothmans of Pall Mall (Australia) Ltd) had a right to proceed in an action against Western Australia to recover almost $7 million worth of tobacco licence fees, the High Court of Australia held today. In August 1997 in the Ha v New South Wales decision, the High Court found similar licence fees imposed by New South Wales were excise duties, therefore unconstitutional, as under section 90 of the Constitution excise could only be imposed by the Commonwealth. Following the Ha decision, Rothmans commenced action in the WA Supreme Court, claiming a declaration that WA licence fees were also excise duties, and seeking an order for the repayment of $6,957,528.30 paid by Rothmans three weeks before Ha was handed down. Negotiations between Rothmans and the WA government failed to resolve the issue and Rothmans gave notice in April 1998 under section 6 of WA’s Crown Suits Act 1947 that it proposed to commence action. Section 5 of the Act provides that the Crown (the State of WA) may sue and be sued in the same manner as a subject but section 6 provides that no right of action lies against the Crown unless the party proposing the action gave written notice as soon as practicable or within three months (whichever was longer). Rothmans’ cause of action had accrued by August 1997 but the company did not give notice until April 1998, so there was no compliance with section 6. The Full Court of the WA Supreme Court entered summary judgment for the State and the State Tax Commissioner. The issue in the appeal to the High Court was whether sections 5 and 6 were relevant, bearing in mind that the WA Supreme Court was exercising federal jurisdiction. The High Court unanimously ordered that the summary judgment be set aside to allow Rothmans, as British American Tobacco, the right to proceed against the State. The Court held sections 5 and 6 of the Crown Suits Act did not apply. The decision only dealt with the right to proceed. It did not deal with the legal merits of the claim for recovery of the taxes. The case was remitted to the WA Supreme Court to deal with that issue.
+HIGH COURT OF AUSTRALIA 5 February 2004 JOHN JAMES MURPHY AND ANNE ELIZABETH GEDZ (AS NEXT FRIEND OF DAPHNE MURPHY) v OVERTON INVESTMENTS PTY LIMITED The High Court of Australia today ordered the Federal Court to assess what damages may be due to two retirement village residents after it found errors in the way the Full Court of the Federal Court reached its conclusion that the Murphys had not proved loss or damage. The couple moved into Heritage Retirement Village in Sydney’s Padstow Heights in 1992 after being told that the estimated weekly cost of management and maintenance was $55.71, but it turned out this figure did not cover all outgoings and the true cost was much higher. The Murphys understood the levy could rise but were misled about what was then the true level of outgoings. The High Court appeal was the latest episode in protracted litigation in both the Federal Court and the New South Wales Supreme Court between Heritage tenants and the owners over the levy. Matters were further complicated by Overton selling the village in 2000 to a person not party to the proceedings. It was not in issue in the appeal that there had been misleading conduct in contravention of the Trade Practices Act (TPA). The question in the appeal was what, if any, relief was then due to the Murphys. They contended the Full Court of the Federal Court was wrong to dismiss their appeal against Justice Arthur Emmett’s refusal to award damages. He and the Full Court held that the Murphys had not paid too much for their lease and Justice Emmett also held there was no evidence the Murphys did not receive value for their levy. The High Court held that it did not necessarily follow that no loss was incurred. Inducement to enter the lease by a misleading statement of estimated outgoings meant they undertook a greater than expected obligation. The Court held that the Full Court was wrong to conclude that the Murphys had not established that they had suffered or were likely to suffer loss or damage by Overton’s conduct in contravention of the TPA. Damages for past and future outgoings would make good the position they would have been in had the misrepresentation not been made. The Court held the Murphys had not shown any difference in value of the lease of the unit. If they had, awarding a further sum would have been inappropriate and unnecessary. The High Court held that the Murphys suffered a loss when Overton started to charge all the outgoings it was entitled to charge. It held the Full Court was wrong to determine the amount of that loss only by comparing the Murphys’ financial position if they had taken other accommodation, rather than determining how much larger was the burden of the extra outgoings added into the levy. The Court unanimously allowed the appeal and remitted the assessment of damages to Justice Emmett for further consideration in accordance with the High Court’s reasons.
+HIGH COURT OF AUSTRALIA Public Information Officer 7 August, 2003 AMACA PTY LIMITED (formerly known as JAMES HARDIE & COY PTY LIMITED) v THE STATE OF NEW SOUTH WALES AND ROLLS ROYCE INDUSTRIAL POWER (PACIFIC) LIMITED (formerly known as JOHN THOMPSON (AUSTRALIA) PTY LIMITED The New South Wales Court of Appeal must now decide whether the State of NSW owes an asbestos disease victim a duty of care and whether it should contribute to a damages pay-out after the High Court of Australia today unanimously allowed Amaca's appeal. Warren Hay was diagnosed with mesothelioma in 1993 after being exposed to asbestos dust and fibre between 1958 and 1961 during construction of the Wallerawang power station near Lithgow. Mr Hay brought proceedings in the NSW Dust Diseases Tribunal, obtaining consent judgments against his then employer Rolls Royce and the NSW Electricity Commission for $185,000 each. Rolls Royce and the Electricity Commission both sought contribution from asbestos product manufacturer James Hardie. The Electricity Commission has settled its claim, obtaining a 70 per cent contribution ($129,500). James Hardie then claimed contribution from the State, alleging NSW breached a duty of care owed to Mr Hay as it was in a position to prevent or minimise harm caused by exposure to asbestos in sites such as power stations. In the Tribunal, Judge James Curtis found it unnecessary to decide whether NSW owed a duty to Mr Hay. He held that James Hardie created a danger which the State had merely failed to avoid and said contribution to Mr Hay's damages should come out of James Hardie's profits from selling asbestos products, not from NSW taxpayers. The NSW Court of Appeal dismissed James Hardie's appeal, holding that Judge Curtis had properly exercised the power under section 5(2) of the Miscellaneous Provisions Act to exempt NSW from liability. Subsequently, the High Court gave Amaca special leave to appeal against the Court of Appeal judgment. The question for the Court was whether Amaca's claim against NSW could be decided without any determination of the State's liability towards Mr Hay. It held that contribution outcomes available under section 5(2) depended upon Amaca's entitlement to obtain contribution from another body liable for the same damage. But neither the Dust Diseases Tribunal nor the Court of Appeal ever decided whether or not the State was liable. Nor did NSW admit liability. The High Court held that Judge Curtis made two errors of law. That James Hardie was a commercial enterprise and the State raised revenue through taxes was irrelevant in deciding their responsibilities to contribute to Mr Hay's damages. Judge Curtis also made an assumption about the State's liability without determining the content of its duty of care or how the duty had been breached. These issues had to be determined before any decision concerning contribution could be made. The Court ordered that the case be remitted to the Court of Appeal to determine whether NSW owed Mr Hay a duty of care and whether Amaca could claim contribution from the State.
+HIGH COURT OF AUSTRALIA Public Information Officer 22 March 2007 THE QUEEN v STEVEN WAYNE HILLIER The ACT Court of Appeal had erred in its approach to circumstantial evidence in the murder case against Mr Hillier, the High Court of Australia held today. Mr Hillier, 43, of Chisholm in Canberra, was charged with the murder of his former de facto wife, Ana Louise Hardwick, 35, who was found strangled in her Isabella Plains home on 2 October 2002. The couple lived together from 1987 to 1999 and had two children. When they separated the children lived with Mr Hillier, but in June 2002, on Ms Hardwick’s application, the Family Court of Australia ordered that the children reside with her. Mr Hillier had an appeal pending when Ms Hardwick died. The prosecution case was that Mr Hillier murdered Ms Hardwick to avoid losing custody of their children. He was convicted in the ACT Supreme Court and sentenced to 18 years’ jail. The Court of Appeal, by majority, allowed an appeal and ordered that the conviction and sentence be set aside. It concluded there was a real possibility that another person was responsible for Ms Hardwick’s death, pointing to the presence of an another person’s DNA on Ms Hardwick’s pyjamas, a pair of handcuffs (still in their packaging) and matching marks on the bedhead, bruises on her wrists, footprints in soot from a fire lit in her bedroom after she died, and fingerprints and hair from an unidentified source. The Director of Public Prosecutions sought special leave to appeal to the High Court, arguing that the Court of Appeal erred in substituting its views of the evidence for the verdict of the jury, and in setting aside Mr Hillier’s conviction rather than ordering a retrial. The application was argued before a High Court full bench as on appeal. The DPP argued that Mr Hillier had the opportunity to kill Ms Hardwick, he had a motive as he was concerned about losing custody, his DNA was also on Ms Hardwick’s pyjama top, and chemical injuries to his fingertips were caused to avoid being fingerprinted. In the week before she died, Mr Hillier made numerous phone calls to doctors, psychiatrists, lawyers and counsellors to seek assistance with his Family Court appeal, but the calls stopped when Ms Hardwick is thought to have died. The High Court unanimously granted the special leave application and allowed the appeal. By a 4-1 majority, the Court remitted the matter to the Court of Appeal for rehearing. One member of the High Court would have ordered a retrial. The Court held that the majority in the Court of Appeal had identified facts which, examined in isolation from other evidence, were treated as requiring the conclusion that it was not open to the jury to be satisfied of his guilt beyond reasonable doubt. The High Court held that the Court of Appeal failed to consider whether, on the whole of the evidence, all of it circumstantial, it was open to the jury to be persuaded beyond reasonable doubt that Mr Hillier was guilty. Neither at trial, nor on appeal, was a circumstantial case to be considered in piecemeal fashion. The conclusion that a guilty verdict was not open to the jury could only be reached if some aspects of the evidence were assessed separately from the rest. The Court held that the reasoning of the Court of Appeal majority was erroneous.
+HIGH COURT OF AUSTRALIA Public Information Officer 11 September, 2003 CHRISTOPHER MICHAEL ROGERS v NATIONWIDE NEWS PTY LIMITED The High Court of Australia today allowed an appeal by Sydney eye surgeon Dr Rogers who had sued for defamation for the misreporting of the circumstances of earlier litigation in which he had been successfully sued by a patient. Maree Lynette Whitaker was awarded almost $875,000 in damages and interest by the New South Wales Supreme Court in 1990. Dr Rogers had operated on her blind right eye. She was left blind in both eyes. Dr Rogers was found liable because he had failed to warn Mrs Whitaker of a remote risk in the surgical procedure he recommended and performed. He was not negligent either in recommending the procedure or in the manner in which it was performed. The Australian Taxation Office assessed the interest component of the award as income and taxed Mrs Whitaker on it. In the Federal Court in 1996 Justice Graham Hill rejected Mrs Whitaker’s challenge to the assessment. The Daily Telegraph’s story on this second case referred to her being blinded by her surgeon’s negligence. The story imputed to Dr Rogers negligence in the performance of the surgery. Dr Rogers sued Nationwide News, publisher of The Daily Telegraph, for defamation and was awarded $250,000 by the NSW District Court. Judge Robyn Tupman found that the journalist was more concerned with sensationalism than accuracy and did not check earlier stories in her own newspaper or other newspapers which widely reported the original Rogers v Whitaker decision. The NSW Court of Appeal, by majority, allowed an appeal by Nationwide News, holding that the publisher had made out a defence under section 24 of the NSW Defamation Act protecting fair reports of court proceedings. The Court of Appeal also unanimously held that the damages awarded to Dr Rogers were excessive. He appealed to the High Court. The High Court unanimously held that The Daily Telegraph’s story was not a fair report of court proceedings and defamed Dr Rogers by adding to what was actually said by Justice Hill. Nationwide News’s conduct in publishing the story was not reasonable in the circumstances so the story was not entitled to the statutory defence of qualified privilege. The Court also unanimously held that the $250,000 damages were not excessive.
+HIGH COURT OF AUSTRALIA LYONS v STATE OF QUEENSLAND 5 October 2016 [2016] HCA 38 Today the High Court dismissed an appeal from the Court of Appeal of the Supreme Court of Queensland. The High Court held that the Court of Appeal did not err in holding that the appellant was not discriminated against when she was excluded from jury service. The appellant is profoundly deaf. She was summoned for jury service by the Deputy Registrar of the Ipswich District Court ("Deputy Registrar"). She contacted the Ipswich Courthouse advising that she would require the services of two Australian Sign Language ("Auslan") interpreters. The Deputy Registrar responded that there was no provision under the Jury Act 1995 (Q) to administer an oath to an interpreter for a juror and that it was not possible for an interpreter to be present in the jury room during its deliberations. The appellant made a complaint which was referred to the Queensland Civil and Administrative Tribunal ("QCAT"). The appellant alleged that the Deputy Registrar contravened the prohibitions, under the Anti-Discrimination Act 1991 (Q), against direct and indirect discrimination in the performance of a function or the exercise of a power under Queensland law. The appellant asserted that the Deputy Registrar had excluded her on the basis of her impairment so as to constitute direct discrimination and that the Deputy Registrar had imposed a condition on her participation in the jury process so as to constitute indirect discrimination. QCAT found that the Deputy Registrar's understanding of the Jury Act was incorrect but it accepted that the Deputy Registrar had not unlawfully discriminated against the appellant. The appellant appealed to QCAT's Appeal Tribunal which dismissed the appeal, holding that the Deputy Registrar's understanding of the Jury Act was correct. The Court of Appeal refused leave to appeal from the Appeal Tribunal's decision. By grant of special leave, the appellant appealed to the High Court. The Court held that, absent specific legislative provision, Queensland law did not permit an Auslan interpreter to be present during jury deliberations. It followed that the appellant was not qualified to serve as a juror and the Deputy Registrar was required to exclude her from the jury panel. The exercise of the Deputy Registrar's powers in conformity with the Jury Act therefore did not infringe the relevant prohibitions, under the Anti-Discrimination Act, against discrimination.
+HIGH COURT OF AUSTRALIA 28 March 2012 PHONOGRAPHIC PERFORMANCE COMPANY OF AUSTRALIA LIMITED & ORS v COMMONWEALTH OF AUSTRALIA & ORS [2012] HCA 8 Today the High Court dismissed a challenge to the validity of compulsory licensing provisions under ss 109 and 152 of the Copyright Act 1968 (Cth) ("the 1968 Act"). The Court held unanimously that those provisions are not invalid by reason of s 51(xxxi) of the Constitution, which empowers the Commonwealth Parliament to make laws with respect to "the acquisition of property on just terms". Prior to the 1968 Act, the Copyright Act 1911 (Imp) ("the 1911 Act") was in force in Australia, with such modifications as were made by the Copyright Act 1912 (Cth) ("the 1912 Act"), as amended from time to time. An owner of a copyright in a record protected under the 1911 Act had the exclusive right to perform the record in public, and a correlative exclusive right to license or authorise a radio broadcaster to broadcast the record. Neither the 1911 Act nor the 1912 Act provided for a compulsory license scheme under which a broadcaster could broadcast a sound recording without the consent of the owner. The 1968 Act commenced operation on 1 May 1969. The effect of transitional provisions contained in the 1968 Act was that pre-1969 recordings which were copyright protected under the 1911 Act were taken to be sound recordings in which copyright subsisted under Pt IV of the 1968 Act. Section 109 of the 1968 Act operates to qualify the exclusive right under the 1968 Act of an owner of copyright to communicate a published sound recording to the public. It provides that copyright in a published sound recording is not infringed by a broadcaster, even in the absence of authorisation by the "owner" of the copyright, if there is either an order by the Copyright Tribunal ("the Tribunal") under s 152 of the 1968 Act in force, or an undertaking given to pay the owner such amounts as may be determined under that section. Section 152 imposes a "cap" on the amount that the Tribunal may require a broadcaster to pay for what is in substance a compulsory license. The first plaintiff carries on business as a copyright collecting society. It acts in the interests of the owners and exclusive licensees and controllers of copyright in sound recordings which presently subsist under Pt IV of the 1968 Act. In these proceedings the first plaintiff acted on behalf of the second to fifth plaintiffs in respect of sound recording copyrights in published sound recordings which were made before the commencement of the 1968 Act. The sixth plaintiff is also the holder of relevant sound recording copyrights. The plaintiffs brought proceedings in the original jurisdiction of the High Court challenging the validity of the cap created by ss 109 and 152 of the 1968 Act. The plaintiffs submitted that, by fixing a cap on the amount which the Tribunal may determine for the compulsory licence of the pre-1969 recordings, ss 109 and 152 effected an acquisition of the property in the pre-1969 recordings on other than just terms, contrary to s 51(xxxi) of the Constitution. However the plaintiffs did not assert that the 1968 Act is invalid because it brought to an end the operation of the copyright system under the 1911 Act without the provision of just terms, or that the compulsory licensing system established by the 1968 Act is wholly invalid. The High Court held unanimously that the 1968 Act excluded further operation of the 1911 Act and denied subsistence of copyright otherwise than by virtue of the 1968 Act. Sections 109 and 152 therefore did not operate to qualify the copyright of the plaintiffs under the 1911 Act and so did not constitute an acquisition of the property in the pre-1969 recordings.
+HIGH COURT OF AUSTRALIA 10 August 2011 AMANDA CUSH v MERYL LURLINE DILLON LESLIE FRANCIS BOLAND v MERYL LURLINE DILLON [2011] HCA 30 Today the High Court dismissed two appeals from the Court of Appeal of the Supreme Court of New South Wales. The appeals were brought by Ms Amanda Cush and Mr Leslie Boland, who claimed to have been defamed by Mrs Meryl Dillon. The Court of Appeal had held that the common law defence of qualified privilege applied to a defamatory statement made by Mrs Dillon unless it could be shown in a new trial that her statement was actuated by malice. At the time of the defamatory statement, Mr James Croft was the Chairperson of the Board of the Border Rivers-Gwydir Catchment Management Authority ("the CMA"), Ms Cush was the General Manager and Mrs Dillon and Mr Boland were Board members. The defamatory statement was made at a meeting on 8 April 2005 between Mr Croft and Mrs Dillon concerning the management of the CMA. Mrs Dillon said to Mr Croft "it is common knowledge among people in the CMA that Les and Amanda are having an affair". In actions brought by Ms Cush and Mr Boland in the District Court of New South Wales, a jury found that Mrs Dillon had defamed Ms Cush and Mr Boland. The jury found that the defamatory imputations conveyed by the statement were that Mr Boland and Ms Cush were acting unprofessionally in their roles at the CMA, that Mr Boland was unfaithful to his wife and that Ms Cush was undermining Mr Boland's marriage. Mrs Dillon accepted that the content of the statement was not true and said that she did not believe the allegations to be true when she made the statement. Mrs Dillon pleaded in defence that the statement had been made on an occasion of qualified privilege. The trial judge did not determine whether the occasion for the making of the statement was a privileged one. He held that any privilege which may have attached to the making of the statement had been lost by malice on the part of Mrs Dillon. This conclusion was based upon findings that Mrs Dillon had previously spread the rumour and her belief that the statement was not true. On appeal, the Court of Appeal held that the trial judge had erred in failing to find that the publication had occurred on a privileged occasion. It ordered a new trial on the defence of qualified privilege at common law. Ms Cush and Mr Boland appealed, by special leave, to the High Court of Australia. The High Court held that the publication had occurred on a privileged occasion. Mrs Dillon had a duty to disclose, and Mr Croft an interest in receiving, information concerning the nature of the relationship between members of the Board and members of staff. The Court held that, in the context in which Mrs Dillon spoke to Mr Croft, there was no relevant distinction in relation to the operation of the privilege between publication of a rumour or the fact of an affair conveyed by the expression "common knowledge". The Court also held that the words used by Mrs Dillon were not extraneous or irrelevant to the occasion of qualified privilege, which can only be destroyed by evidence that the statement was actuated by improper motive, lack of belief in the truth of a statement being insufficient. Accordingly, the Court dismissed the appeals. There will be a new trial confined to the issue whether qualified privilege at common law was destroyed by malice on the part of Mrs Dillon.
+HIGH COURT OF AUSTRALIA 4 August 2005 RE SENATOR THE HONOURABLE AMANDA VANSTONE, THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS; EX PARTE AMOS BODE AME The High Court of Australia today upheld the validity of Australian laws which provided that when Papua New Guinea became independent in 1975 its indigenous people who then became citizens of PNG ceased to be citizens of Australia. Mr Ame had argued that he had remained an Australian citizen and never become a PNG citizen because he never took steps to renounce Australian citizenship. He was born in 1967 in Papua, which with New Guinea was administered by Australia. People born in Papua after the Australian Citizenship Act was passed in 1948 were Australian citizens but under the Migration Act required an entry permit to enter or live in Australia. Mr Ame first entered Australia in December 1999 on a three-month visa. Since then he has held a series of visas, the latest a bridging visa that will expire 28 days from today. Mr Ame began proceedings against the Minister seeking writs of prohibition and mandamus and a declaration as he contends that he did not cease to be an Australian citizen on PNG’s Independence Day, 16 September 1975, that he is not an “alien” according to the Australian Constitution and that the provisions of the Migration Act relating to detention and removal of unlawful non-citizens do not apply to him. Australia’s Papua New Guinea Independence Act provided that after Independence Day Australia ceased to have any sovereignty, sovereign rights or administrative rights in relation to PNG. The PNG Constitution did not allow dual citizenship and declared that anyone who was born in PNG and had two indigenous grandparents was automatically a PNG citizen. All four of Mr Ame’s grandparents were born in his district in Papua. Under the policy against dual citizenship, children who also had “real foreign citizenship” had to renounce their other citizenship by age 19 or they ceased to be PNG citizens. Australian citizenship acquired simply by being born in Papua or New Guinea was not “real foreign citizenship” so did not need to be renounced. Regulation 4 under the PNG Independence Act provided that a person in the position of Mr Ame who became a citizen of the new nation of PNG ceased to be an Australian citizen. The Court unanimously held that Mr Ame ceased to be an Australian citizen on Independence Day, that regulation 4 was authorised by the PNG Independence Act, and that the Act was constitutionally valid. On Independence Day Mr Ame became a citizen of PNG by virtue of the PNG Constitution. In recognition of the anti-dual citizenship policy, Australia, by regulation 4, withdrew Mr Ame’s Australian citizenship. The legislation under which that was done was within the constitutional power to make laws with respect to naturalization and aliens.
+HIGH COURT OF AUSTRALIA 26 March 2008 Public Information Officer AUSSIE VIC PLANT HIRE PTY LTD v ESANDA FINANCE CORPORATION LIMITED A court could not extend the time for compliance with a statutory demand under the Corporations Act if the time fixed by the Act had already expired, the High Court of Australia held today. Esanda served a statutory demand on Aussie Vic Plant Hire when Aussie Vic owed Esanda more than $400,000 under several hiring and chattel mortgage contracts. A statutory demand is a demand served on a company under section 459E of the Corporations Act to pay a debt or debts within 21 days. Section 459F(2) provides that if the company applies pursuant to section 459G for an order to set aside the demand, a court may extend the period for compliance, and if no extension is ordered the period ends seven days after the application under section 459G is finally determined. Aussie Vic applied to the Victorian Supreme Court for an order setting the demand aside. On 20 June 2006, Master John Efthim dismissed the application to set aside the demand but ordered that the time for compliance be extended to 4 July 2006. Aussie Vic was entitled to appeal to a single judge of the trial division of the Supreme Court. After the extension fixed by Master Efthim had expired but before the appeal to a single judge had come on for hearing, Aussie Vic applied for another extension of time for compliance. The application and the appeal were heard by Justice Simon Whelan who dismissed both. He held that he could make no order to extend time due to section 459F(1) of the Act, which provided that the company was taken to fail to comply with the demand if the period for compliance had ended. Aussie Vic then appealed to the Victorian Court of Appeal, which sat with five Justices. On the issue of whether the time for compliance with a statutory demand could be extended after it had expired, two members of the Court held that it could, two members held that the preferable construction of the Act was that it could but that earlier contrary decisions should still apply, and the fifth member held that it could not. The Court of Appeal dismissed the appeal and Aussie Vic appealed to the High Court. The High Court, by a 4-1 majority, dismissed the appeal and held that an order could be not be made to extend the period of compliance with a statutory demand after that period had expired. Generally the Act allowed a period for compliance to be extended even if the period has ended, unless the contrary intention appeared. The Court held that such a contrary intention did appear in Part 5.4 of the Act, entitled “Winding up in insolvency”, which included sections 459E, 459F and 459G. It held that the evident purposes of Part 5.4 included speedy resolution of applications to wind up insolvent companies. Section 459F(1) provides that if at the end of the period for compliance with a statutory demand the demand is still in effect and the company has not complied with it, the company is taken to fail to comply with the demand. The Court held that the demand was in force and the time had expired so the company had not complied with the demand. It said that Aussie Vic’s argument that an order extending the time for compliance can be made after the period has expired was not supported by section 459(2). It pointed out that denying the power to extend the time to comply with a statutory demand after the time had already expired did not affect the determination of the rights or liabilities of the company or of the party making the demand. Non-compliance with a demand merely creates a rebuttable presumption of insolvency.
+HIGH COURT OF AUSTRALIA 13 December 2019 CNY17 v MINISTER FOR IMMIGRATION AND BORDER PROTECTION & ANOR [2019] HCA 50 Today the High Court, by majority, allowed an appeal from the Full Court of the Federal Court of Australia concerning whether a decision of the Immigration Assessment Authority ("the IAA") was infected by apprehended bias. The majority held that the decision was infected by apprehended bias because the IAA considered material provided by the Secretary of the Department of Immigration and Border Protection ("the Secretary") which was irrelevant to the review and prejudicial to the appellant. The appellant applied for a safe haven enterprise visa in September 2016. In his application form, the appellant disclosed a conviction for damaging Commonwealth property while in immigration detention on Christmas Island, and noted pending charges for "spitting at a guard & breaking a window" during protests on Christmas Island. The appellant's visa application was refused. The decision to refuse the visa was automatically referred to the IAA for review. When a decision is referred to the IAA, s 473CB of the Migration Act 1958 (Cth) requires the Secretary to give certain "review material" to the IAA. This includes any material held by the Secretary which the Secretary considers to be "relevant to the review". Section 473DB requires the IAA to conduct its review by considering the review material provided by the Secretary. The Secretary gave review material to the IAA to consider in reviewing the decision to refuse the appellant's visa application. This included material which was not relevant to the review ("the extraneous material"). The extraneous material contained factual assertions about the appellant. These included, among other things, assertions that the appellant had a history of aggressive or challenging behaviour, had been involved in many incidents while in detention, was the subject of unspecified investigations, and had been refused bridging visas on a number of occasions. The appellant had never seen the documents containing these assertions. He was not given an opportunity to respond to them. The IAA affirmed the decision to refuse the appellant's visa application. The IAA said in its reasons that it had considered the information provided by the Secretary, but did not make particular reference to the extraneous material. The appellant argued that the decision of the IAA should be quashed, because a fair-minded lay observer might have thought, in light of the extraneous material, that the IAA might not have brought an impartial mind to the question of whether the appellant was entitled to a visa. That argument was rejected by the Federal Circuit Court of Australia and by a majority of the Full Court of the Federal Court of Australia. A majority of the High Court held that the provision of the extraneous material to the IAA gave rise to a reasonable apprehension of bias. The IAA was required to consider the review material provided by the Secretary, which included the extraneous material, and said that it had done so. A fair-minded lay observer might think that consideration of the extraneous material might lead the IAA to have a bias against the appellant, possibly by thinking, consciously or subconsciously, that the appellant was not a fit person to hold a visa or that he would be a danger to the community. This might lead the IAA to make a decision otherwise than on the merits of the appellant's application. The IAA's decision was therefore quashed and the matter remitted to a differently constituted IAA.
+HIGH COURT OF AUSTRALIA 20 June 2014 PLAINTIFF S297/2013 v MINISTER FOR IMMIGRATION AND BORDER PROTECTION & ANOR [2014] HCA 24 Today the High Court unanimously held that the Minister for Immigration and Border Protection ("the Minister") did not have the power under s 85 of the Migration Act 1958 (Cth) ("the Act") to limit the number of protection visas that may be granted in a specified financial year. The judgment in this matter should be read with the judgment handed down today in the concurrently heard matter Plaintiff M150 of 2013 v Minister for Immigration and Border Protection [2014] HCA 25. The plaintiff is a Pakistani national who entered Australia by sea at Christmas Island in 2012. He did not have a visa and was, therefore, an unlawful non-citizen within the meaning of the Act. He made a valid application for a protection visa. The Refugee Review Tribunal determined that he was a refugee within the meaning of the Refugees Convention, satisfying the criterion for a protection visa under s 36(2)(a) of the Act. However, he has been neither granted nor refused a protection visa because of an instrument signed by the Minister on 4 March 2014, which purported to determine under s 85 of the Act the maximum number of protection visas that may be granted in the financial year ending 30 June 2014. That maximum number having been reached, the grant of a protection visa to the plaintiff in this financial year would exceed that limit. Section 85 of the Act provides that the Minister may, by notice in the Commonwealth of Australia Gazette, determine the maximum number of visas of a specified class that may be granted in a specified financial year. Protection visas are a class of visa provided for by s 36. Under s 65, the Minister has a duty, after considering a valid application for a visa, to grant the visa if satisfied that certain conditions are met and to refuse to grant the visa if not so satisfied. Section 65A imposes a duty on the Minister to make a decision on protection visa applications within 90 days. In proceedings initiated in the High Court, the plaintiff claimed that the instrument limiting the number of protection visas which may be granted was invalid and that the Minister was bound to consider and determine his application and grant him a protection visa. A special case stated questions of law for determination by the Full Court. The High Court held that the instrument was invalid. In light of the time limit imposed by s 65A on the determination of protection visa applications, s 85 did not empower the Minister to determine the maximum number of protection visas that may be granted in a financial year. The Court ordered that the Minister consider and determine the plaintiff's application for a protection visa according to law.
+HIGH COURT OF AUSTRALIA 14 December 2011 SAYED ABDUL RAHMAN SHAHI v MINISTER FOR IMMIGRATION AND CITIZENSHIP [2011] HCA 52 Today the High Court held that it was not a requirement for the grant of a Global Special Humanitarian visa to the mother of a refugee that the son who proposed her for the visa be under the age of 18 at the time of the decision whether to grant it. A delegate of the Minister for Immigration and Citizenship refused to grant a visa to the plaintiff's mother on the basis that she did not fall within the definition of a member of the plaintiff's "immediate family" (a requirement for a Global Special Humanitarian visa) because the plaintiff had reached the age of 18 after his mother applied for the visa but before the decision on her application was made nine months later. Accordingly, the delegate of the Minister made a jurisdictional error. The plaintiff, a refugee from Afghanistan, held a protection visa. In December 2009 he proposed that his mother and some other relatives be granted visas to enter and remain in Australia. The Migration Regulations 1994 (Cth) ("the Regulations") provided for prescribed classes of visas including the relevant subclass of Refugee and Humanitarian (Class XB) visas, Subclass 202 Global Special Humanitarian. Schedule 2 of the Regulations set out criteria to be satisfied for the grant of a visa. Clause 202.211(1)(b) of Sched 2 stated, as the criterion to be satisfied at time of application, that the applicant "meets the requirements of subclause (2)". Sub-clause (2) of cl 202.211 set out six requirements, including that the visa applicant must have been a "member of the immediate family" of the proposer at certain specified dates. The expression "member of the immediate family" was defined in reg 1.12AA(1) as including where "A is the parent of B, and B is not 18 years or more." Clause 202.221 required that, for the grant of a Subclass 202 visa, "the applicant continues to satisfy the criterion in clause 202.211." At the time that the plaintiff's mother made her application the plaintiff was under 18 years of age, but he attained 18 years of age before the Minister's delegate decided whether to grant or refuse the application. As a result, the mother ceased to be a member of the plaintiff's immediate family within the meaning of reg 1.12AA(1). The Minister's delegate decided that the mother's ceasing to be a member of the plaintiff's immediate family required that the mother's application be refused. The plaintiff instituted proceedings in the original jurisdiction of the High Court seeking certiorari to quash the decision made by the delegate of the defendant Minister. The issue before the Court was how the requirement made by cl 202.221 applied in relation to cl 202.211; that is, what was "the criterion" in cl 202.211 which the applicant must continue to satisfy? The Court held by majority that the requirement under cl 202.221 should not be read as engaging with cl 202.211(1)(b) or any of the six requirements stated in cl 202.211(2). The drafting history of the Regulations pointed to reading the requirement that the applicant continue to satisfy "the criterion" in cl 202.211 as engaging only with the first criterion, that "[t]he applicant… is subject to substantial discrimination, amounting to gross violation of human rights, in the applicant's home country and is living in a country other than the applicant's home country". The Regulations contained within the text of the provisions dealing with Subclass 202 visas a readily available form of words that could have been adopted to provide, as a criterion to be satisfied at the time of decision, that the applicant continue to be a member of the immediate family of the proposer. The failure to adopt this precedent suggested that the provision made by cl 202.221 of continuing to satisfy the criterion in cl 202.211 was not to engage with the requirement about membership of the proposer's family.
+HIGH COURT OF AUSTRALIA 17 November 2005 RINGROW PTY LTD v BP AUSTRALIA PTY LTD ULTIMATE FUEL PTY LTD v BP AUSTRALIA PTY LTD NADER-ONE PTY LTD v BP AUSTRALIA PTY LTD The High Court of Australia today upheld a clause in contracts relating to the sale of service station sites, which permitted BP to buy back the site in the event of breach of a term of a related contract under which the purchaser agreed, for a certain period, to supply only BP fuel from the site. Ringrow, Ultimate Fuel and Nader-One were Sydney service station operators who later bought their sites under a BP privately owned sites agreement (POSA). In 2002, BP served notices on all three operators that it intended to exercise its contractual option to buy back the sites as the operators had bought fuel from suppliers other than BP. In the Federal Court of Australia, Justice Peter Hely made declarations upholding the validity of BP’s termination of the POSA and its exercise of the option to buy back sites. The Full Court of the Federal Court unanimously dismissed an appeal. The service station operators then appealed to the High Court. The Court unanimously dismissed the appeal and held that the option clause did not amount to a penalty. The law of penalties is attracted, for example, where a contract stipulates that if a breach occurs the contract breaker will pay an agreed sum which exceeds what can be regarded as genuine pre-estimate of the damage likely to be caused by the breach. The service station operators argued that the POSA involved three penal factors: exclusion of goodwill from the resale price even though each operator had paid for goodwill; a double remedy for the same breach from the cumulative imposition of the buyback option upon the liability to pay damages should BP enforce that liability before exercising the option; and “the indiscriminate factor” – that the entitlement to terminate the POSA was indiscriminate regarding the nature of the breach. The High Court rejected all three arguments. It held that the difference between the original price and the buyback price must be extravagant and unconscionable or disproportionate to the point of oppressiveness to amount to a penalty. Because the service station operators failed to demonstrate the monetary value of the goodwill, it was not possible to say what money would be lost on buyback. The Court held therefore that it could not be said that the imposition of the buyback option was oppressive or was extravagant and unconscionable. The service station operators argued unsuccessfully for a concept of proportionality to be applied in determining penalty questions. The Court held that parties to a contract are normally free to agree upon its terms, and exceptions from that freedom of contact require good reason to attract judicial intervention to set aside the bargains upon which parties of full capacity have agreed.
+HIGH COURT OF AUSTRALIA 13 September 2017 THE QUEEN v KRITSINGH DOOKHEEA [2017] HCA 36 Today the High Court unanimously allowed an appeal from a decision of the Court of Appeal of the Supreme Court of Victoria concerning jury directions on the criminal standard of proof. The respondent was charged with the murder of the deceased and stood trial in the Supreme Court of Victoria. The sole issue at trial was whether the respondent had acted with murderous intent. The evidence showed that, shortly after the deceased arrived at the respondent's home, a violent physical altercation started between the deceased and the respondent, during which the deceased attempted to flee from the respondent. It was accepted that the respondent placed his hands around the deceased's neck and squeezed until the deceased stopped resisting. The trial judge directed the jury that the Crown had to satisfy the jury of the respondent's guilt "not beyond any doubt, but beyond reasonable doubt". The respondent was convicted of murder. The respondent appealed against conviction on a number of grounds and the Court of Appeal allowed the appeal on the ground that the trial judge erred in directing the jury that the Crown was required to satisfy them of guilt "not beyond any doubt, but beyond reasonable doubt". The Court of Appeal concluded that it was an error to suggest to the jury that they may entertain a doubt which is not a "reasonable" doubt and on that basis proceed to convict the respondent. By grant of special leave, the Crown appealed to the High Court on the question of whether it was an error of law productive of a substantial miscarriage of justice for the trial judge to direct the jury that the Crown had to satisfy the jury of the respondent's guilt "not beyond any doubt, but beyond reasonable doubt". The Crown argued that although the trial judge had strayed from the traditional formulation of the criminal standard of proof by directing the jury in those terms, it was not an error to do so and, in any event, it was not productive of a substantial miscarriage of justice because the charge taken as a whole sufficiently made clear to the jury that the respondent was to be given the benefit of any reasonable doubt. The Court held that a reasonable doubt is what a reasonable jury considers to be a reasonable doubt. Although it is generally speaking undesirable for a trial judge to contrast reasonable doubt with any doubt, in point of principle it is not wrong to notice the distinction and it is therefore not necessarily determinative of an appeal against conviction that the trial judge directed the jury by reference to that distinction. In this case, it could not be supposed that the jury might have been left in any uncertainty as to the true meaning of the need for proof beyond reasonable doubt. Accordingly, the appeal was allowed.
+HIGH COURT OF AUSTRALIA 4 August 2010 CGU INSURANCE LIMITED v ONE.TEL LIMITED (IN LIQUIDATION) & ORS [2010] HCA 26 In September 2004, Mr John Greaves was ordered to pay $20 million in compensation to One.Tel Limited ("One.Tel"). Mr Greaves had been a director of One.Tel and was insured under a directors and officers liability policy, issued by CGU Insurance Limited ("CGU"). Today the High Court held that the termination of a deed of arrangement, pursuant to which Mr Greaves had assigned his rights under the policy to a trustee, did not prevent the trustee from commencing an action on the policy in respect of the $20 million. Mr Greaves (the third respondent) was, in 1995 and from 1997 to 2001, a director of One.Tel (the first respondent). He was insured under a directors and officers liability policy of insurance, issued by CGU (the appellant). In December 2001, after the collapse of One.Tel, the Australian Securities and Investments Commission ("ASIC") (the fourth respondent) sued Mr Greaves in the Supreme Court of New South Wales for breaches of the Corporations Act 2001 (Cth). In September 2004, by consent of the parties, the Supreme Court ordered Mr Greaves to pay compensation to One.Tel in the sum of $20 million and to pay $350,000 to ASIC. In November 2004, Mr Greaves entered into a deed of arrangement pursuant to Part X of the Bankruptcy Act 1966 (Cth). Mr David Watson was the trustee of the deed. Under the deed, Mr Greaves was to assign to Mr Watson, as trustee, all the property described in Schedule A to the deed, including Mr Greaves's rights under the policy with CGU. The deed provided that the trustee should "get in and realise" that property "as soon as reasonably practicable". It also provided that the trustee should apply any amount received under the insurance policy in payment of any liability Mr Greaves might have to ASIC and One.Tel. Immediately after the trustee had completed or settled any claim under the policy (or had decided not to pursue a claim under the policy), the trustee was to issue a certificate. Once that certificate had been executed, Mr Greaves would be absolutely released and discharged from all liability in respect of the orders made by the Supreme Court in September 2004. Prior to the execution of that certificate, the deed prevented the trustee or any creditor from enforcing those orders. Finally, the deed stipulated that it was to terminate three years from the date of its execution unless the creditors resolved to extend its operation. On October 2006, the trustee commenced proceedings against CGU in the Supreme Court of New South Wales, pursuing Mr Greaves's cause of action on the policy in respect of the $20 million compensation order. In November 2007, the deed terminated – three years having passed since its execution. The primary issue for determination by the trial judge was whether the trustee's right to pursue an action under the policy survived the termination of the deed. His Honour held that, once the deed terminated, the trustee had no power to continue the proceedings. The Court of Appeal allowed the appeal. On 12 March 2010, CGU was granted special leave to appeal to the High Court. CGU advanced two central contentions before the Court. The first was that, even if the assignment to the trustee of the chose in action (that is, the right to pursue proceedings under the policy) was a valid legal or equitable assignment, neither the Bankruptcy Act nor the deed itself gave the trustee the power to continue the proceedings after termination. The second was that Mr Greaves had suffered no "loss" within the meaning of the policy, because even after the deed had terminated it continued to prevent anyone from enforcing the orders of September 2004 against him. On the first issue, the Court noted CGU's concession that, once the deed had terminated, the trustee remained a trustee; but instead of holding the chose in action on the trusts under the deed, he held the property on trust for Mr Greaves. The Court accepted that concession as correct. It noted, however, that one obligation of a trustee which exists by virtue of the very office is the obligation to protect the trust property and vindicate the rights attaching to it. That obligation exists even if no provision of any statute or trust instrument creates it, and unless it is negated by any such provision. Here, no provision of the Bankruptcy Act or the deed negated it. Even after termination of the deed, the trustee remained a trustee and continued to have an obligation to comply with the duty to vindicate the rights associated with the trust property. The trustee was not disentitled from continuing the proceedings against CGU. On the second issue, the Court rejected CGU's submission that the clause preventing the trustee and creditors from enforcing the September 2004 orders survived the termination of the deed. It further held that, even if the stay continued in force, Mr Greaves had still suffered a "loss" within the meaning of the policy. The Court allowed the appeal in part, as its answers to some of the questions reserved for the consideration of the trial judge differed from those given by the Court of Appeal. The appeal was otherwise dismissed and CGU was ordered to pay One.Tel's costs.
+HIGH COURT OF AUSTRALIA 14 December 2016 NEW SOUTH WALES ABORIGINAL LAND COUNCIL v MINISTER ADMINISTERING THE CROWN LANDS ACT [2016] HCA 50 Today the High Court, by majority, dismissed an appeal from the Court of Appeal of the Supreme Court of New South Wales. The majority held that land in Berrima which had been the site of a gaol and correctional centre ("the claimed land") was not claimable under s 36 of the Aboriginal Land Rights Act 1983 (NSW) ("the ALR Act") because it was "lawfully ... occupied" under s 36(1)(b) of that Act. Section 36(2) of the ALR Act allows the appellant, the New South Wales Aboriginal Land Council ("NSW ALC"), to make a claim for land. Under s 36(5), the Crown Lands Minister shall grant the claim if satisfied that the land is "claimable Crown lands", which is defined in s 36(1) to include Crown land that has been "dedicated for any purpose" under certain legislation, except where, relevantly, land is "lawfully used or occupied" within the meaning of s 36(1)(b). On 24 February 2012, the NSW ALC made a claim under s 36(2) for the claimed land. Different parts of the claimed land were relevantly dedicated for the purposes of "Gaol Site (extension)", "Gaol Purposes" and "Gaol Site (addition)". Proclamations of the claimed land as the "Berrima Correctional Centre" and "Berrima Correctional Complex" had been revoked, and consideration was being given to its future use and ownership. Pursuant to s 13D of the Real Property Act 1900 (NSW), the State of New South Wales was registered as proprietor of the claimed land. The claim was refused by the joint Crown Lands Ministers on the basis that the claimed land was lawfully used and occupied by Corrective Services NSW ("CSNSW"). The NSW ALC appealed to the Land and Environment Court. Pain J dismissed the appeal, holding that the activities conducted on the claimed land at the date of claim established lawful occupation. Her Honour referred to the following factors: a security guard was always present; the buildings were locked at all times; essential services continued to be supplied to the buildings; the buildings were the subject of a continuous contract for their maintenance; the gardens continued to be maintained, largely by offenders serving community service orders; and the public could, and did, visit the gardens with permission from CSNSW. The NSW ALC appealed to the Court of Appeal, which dismissed the appeal (Leeming JA, Beazley P and Macfarlan JA agreeing). The Court of Appeal upheld Pain J's findings regarding occupation and rejected the NSW ALC's argument that Pain J erred in assessing occupation by reference to the claimed land being held pending a decision as to future use, rather than by reference to its dedicated gaol purposes. The Court also held that statutory authorisation was not required for "lawful occupation". By grant of special leave, the NSW ALC appealed to the High Court. A majority of the High Court held that the claimed land was occupied at the date of claim by reference to the activities taking place on it, and that it did not need to be actively used for its dedicated gaol purposes to be "lawfully occupied" as that would deny "occupied" a separate sphere of operation from "used" in s 36(1)(b). The majority considered the NSW ALC's argument that the claimed land could not lawfully be occupied without statutory authorisation. It held that s 2 of the New South Wales Constitution Act 1855 (Imp) did not abrogate the executive's power to appropriate waste lands to itself by way of dedication, use or occupation. Rather, s 2 made the executive's power over waste lands subject to the control of the legislature of New South Wales. The majority rejected an argument that CSNSW was not empowered to occupy the claimed land. As the owner of the claimed land, the State could lawfully occupy the claimed land through the executive government and its agents, including employees of CSNSW.
+HIGH COURT OF AUSTRALIA Public Information Officer 6 December 2007 GRAHAME JAMES GATELY v THE QUEEN No miscarriage of justice occurred when a jury, without the trial judge or lawyers present, was able to have a second viewing of a video of a child giving her evidence in a sexual offences trial, the High Court of Australia held today. Mr Gately was convicted in the Queensland District Court in November 2004 of 10 counts of indecent treatment of a girl under 16 who is a lineal descendant and one count of incest. A further charge of attempting to procure a child under 16 to commit an indecent act was withdrawn during the trial. The girl was 14 at the time the offences allegedly occurred between 22 July and 4 August 2002 and 16 by the time of the trial. A pre-recorded video of the girl giving her evidence and being cross-examined was shown to the jury. During deliberations, the jury asked to see the video again. Counsel for both the prosecution and defence agreed that, rather than reconvening the court, the jury could watch the video in the courtroom supervised by the bailiff. Mr Gately appealed to the Court of Appeal against his convictions. It unanimously dismissed the appeal. He then appealed to the High Court, alleging that there had been a miscarriage of justice because Judge Milton Griffin erred in allowing the jury to watch the video again and he did not direct the jury not to give undue weight to the girl’s evidence. Mr Gately also alleged that Judge Griffin erred in permitting the prosecutor to tender the girl’s written statement to police when she had already given full pre-recorded evidence. The High Court, by a 4-1 majority, dismissed the appeal. The Court unanimously held that the way in which the video was replayed to the jury without the Court reconvening was irregular, but the majority held that in the circumstances of the case this had not led to a miscarriage of justice. Mr Gately’s counsel’s consent to the jury watching the video with the bailiff was significant. Mr Gately did not give evidence or call evidence in his defence and little other evidence was given apart from the girl’s pre-recorded testimony. Her evidence was critical to both the prosecution’s case and Mr Gately’s answer that the prosecution had not proved its case beyond reasonable doubt. Allowing only the girl’s evidence to be re-examined by the jury in the circumstances of this case presented no risk of an unbalanced consideration of competing accounts of what allegedly happened. The majority rejected Mr Gately’s contention that Judge Griffin should have directed the jury not to give undue weight to the video evidence. No such direction was sought at trial. The Court unanimously dismissed the third ground of appeal, that the girl’s police statement was wrongly received in evidence. It held that the statement was properly admitted under section 93A of the Queensland Evidence Act which concerns written statements by children or intellectually impaired persons where they were also available to give evidence at trial.
+HIGH COURT OF AUSTRALIA 28 March 2008 Public Information Officer MW v DIRECTOR-GENERAL OF THE DEPARTMENT OF COMMUNITY SERVICES A New Zealand father had not established that he and the mother of his son had been de facto partners at the time of the child’s birth so an order for the boy to be sent back to NZ after the mother had removed him to Australia should be quashed, the High Court of Australia held today. MW was born in Poland in 1977 and moved to New Zealand with her parents. In 1996 she gave birth to a son, K. The father, born in 1964, is a New Zealander. MW and the father were not married and at least since shortly after the birth they have not lived together. K spent every second weekend and half the school holidays with his father under an access order made in 2000. Relations between the couple deteriorated. In 2006, without telling the father, MW departed with K for Sydney, where her parents now lived. The Director-General of the NSW Department of Community Services, as the State Central Authority acting on behalf of its NZ counterpart under the Hague Convention on the Civil Aspects of International Child Abduction, successfully applied to the Family Court of Australia for orders for the return of K to NZ. The application stated that the father had custody rights because he had the access order and because, as he was living with K’s mother when the boy was born, he was a joint guardian. Evidence was by way of affidavits from the parents and others which were not the subject of cross- examination. The Full Court of the Family Court, by majority, dismissed an appeal by MW, who then appealed to the High Court. The Court, by a 3-2 majority, allowed the appeal and dismissed the application to the Family Court. The Authority argued that the appeal should be dismissed on three grounds: that the access order conferred rights upon the father including the right to determine K’s place of residence; that removal breached the rights of custody held by the New Zealand Family Court which had made the access order; and that the father had rights of custody as he was K’s joint guardian. The High Court, by a 4-1 majority, rejected the first two grounds. It held that the father’s access order gave no right of veto over K’s removal from NZ. The Authority failed in its reliance upon the access order as the source of the father’s custodial rights including a right to determine K’s place of residence. As to the second ground, the Court held that Australia’s Family Law (Child Abduction Convention) Regulations did not support a Convention application by a parent asserting breach of the rights of custody vested in a NZ court. The NZ Care of Children Act provided that a mother was a child’s sole guardian if she were neither married to nor living with the father as a de facto partner when the child was born. However, K’s parents disputed whether or not they were living as de facto partners when K was born. In MW’s first affidavit she said verbal and physical abuse started during her pregnancy and that when K was two months old she moved out and went to live with her parents. In her second affidavit she said she did not live with the father when K was born, but that after about a month and a half she stayed with the father for three nights a week for about six weeks to see if he could be a father to K. She said at no time was she the father’s de facto partner. The High Court, by a 3-2 majority, held that the Full Court of the Family Court erred in concluding that the Authority had discharged its onus of establishing that K’s removal from NZ was wrongful on this third ground. It held that the affidavit material was insufficient to found an inference that the parents had lived together as a couple in the nature of a marriage or civil union. The Authority had failed to establish its case that the father was a guardian who could thus determine K’s place of residence.
+HIGH COURT OF AUSTRALIA 11 May 2011 INSIGHT VACATIONS PTY LTD T/AS INSIGHT VACATIONS v YOUNG [2011] HCA 16 Today the High Court unanimously dismissed an appeal by a tour company against a decision of the Court of Appeal of the Supreme Court of New South Wales upholding the liability of the company for damages for breach of an implied contractual warranty that its services, supplied in this case in Europe, would be rendered with due care and skill. In 2005, Mrs Young purchased a European tour package from Insight Vacations Pty Ltd ("Insight"). The contract between Mrs Young and Insight stated that it was to be governed by the law of New South Wales. The contract contained a clause exempting Insight from liability for claims arising from any accident or incident where a passenger occupied a motor coach seat fitted with a safety belt if the safety belt was not being worn. While travelling by coach between Prague and Budapest, Mrs Young got out of her seat to retrieve something from the overhead shelf. The coach braked suddenly, causing Mrs Young to fall and suffer injury. Mrs Young sued Insight for damages for breach of a contractual warranty, implied by s 74(1) of the Trade Practices Act 1974 (Cth) ("TPA"), that services supplied under the contract would be rendered with due care and skill. At trial in the District Court of New South Wales, Insight argued that it could rely on the exemption clause in the contract as an answer to Mrs Young's claim, notwithstanding s 68 of the TPA, which relevantly provided that any term of a contract purporting to exclude, modify or restrict liability for breach of the implied warranty is void. Insight's argument was based on s 74(2A) of the TPA, which provided that where an implied warranty in a contract was breached and the law of a State was the proper law of the contract, the law of the State applied to limit or preclude liability for that breach. Insight argued that s 74(2A) had the effect of picking up and applying s 5N of the Civil Liability Act 2002 (NSW) ("Civil Liability Act"), which provided that "a term of a contract for the supply of recreation services may exclude, restrict or modify" liability resulting from breach of an implied warranty. Insight submitted that the exemption clause was thereby given effect. That argument was rejected in the District Court. Mrs Young's claim was successful and she was awarded $22,371 in damages with costs. Insight's appeal to the Court of Appeal of the Supreme Court of New South Wales against the quantum of damages was allowed by all members of that Court, and the damages reduced, but Insight's appeal against liability was dismissed by majority. By special leave, Insight appealed to the High Court, advancing the same contentions as it had raised at first instance. Today the High Court unanimously dismissed the appeal. The Court held that s 74(2A) of the TPA picks up and applies, as surrogate federal laws, State laws that apply to limit or preclude liability for the breach of an implied warranty, but that s 5N of the Civil Liability Act is not picked up because it does not meet that description. Section 5N does not itself apply to limit or preclude liability, but only permits parties to certain contracts to exclude, restrict or modify certain liabilities. The Court further held that, even if s 5N had been picked up by s 74(2A), it would not have engaged with the facts of Mrs Young's claim. The reference in s 5N(1) to "a term of a contract for the supply of recreation services", while expressed in general language, should be read as subject to a geographical limitation deriving from the context and subject matter of the Civil Liability Act. The relevant geographical limitation is the place of supply of the recreation services. Therefore, s 5N applies only to contracts for the supply of recreation services in New South Wales. Section 5N did not apply to the contract between Mrs Young and Insight because that contract was for the supply of recreation services outside New South Wales. Moreover, the Court held that the exemption clause itself would have had no application to Mrs Young's claim. On its true construction, the exemption clause could apply only when a passenger occupied a seat on a motor coach, not when the passenger had left his or her seat to move about the coach as passengers were permitted to do under the contract. Because Mrs Young was not sitting in her seat when she fell, the exemption clause could not apply. Insight was ordered to pay Mrs Young's costs.
+HIGH COURT OF AUSTRALIA 5 October 2012 JT INTERNATIONAL SA v COMMONWEALTH OF AUSTRALIA; BRITISH AMERICAN TOBACCO AUSTRALASIA LIMITED & ORS v COMMONWEALTH OF AUSTRALIA [2012] HCA 43 On 15 August 2012 the High Court made orders in two matters concerning the Tobacco Plain Packaging Act 2011 (Cth) ("the Act"). Today the High Court delivered its reasons in those matters. A majority of the High Court held that the Act was valid as it did not acquire property. It therefore did not engage s 51(xxxi) of the Constitution, which requires any acquisition of property effected by a Commonwealth law to be on just terms. The Act imposes restrictions on the colour, shape and finish of retail packaging for tobacco products and restricts the use of trademarks on such packaging. The plaintiffs brought proceedings in the High Court challenging the validity of the Act, arguing that the Commonwealth acquired their intellectual property rights and goodwill otherwise than on just terms. A majority of the Court held that to engage s 51(xxxi) an acquisition must involve the accrual to some person of a proprietary benefit or interest. Although the Act regulated the plaintiffs' intellectual property rights and imposed controls on the packaging and presentation of tobacco products, it did not confer a proprietary benefit or interest on the Commonwealth or any other person. As a result, neither the Commonwealth nor any other person acquired any property and s 51(xxxi) was not engaged.
+HIGH COURT OF AUSTRALIA 12 February 2015 COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE & ORS v ZHAO & ANOR [2015] HCA 5 Today the High Court unanimously dismissed an appeal from a decision of the Court of Appeal of the Supreme Court of Victoria, which had stayed proceedings brought by the appellant for the forfeiture of property of the respondents as proceeds of crime, pursuant to s 49 of the Proceeds of Crime Act 2002 (Cth) ("the Act"), until the determination of a criminal charge against the second respondent. The second respondent was charged that he aided and abetted another to deal with money or property that was the proceeds of crime and worth $100,000 or more, contrary to ss 11.2 and 400.4 of the Criminal Code (Cth). He has been committed to stand trial for that offence. The first respondent is the second respondent's wife, and has not been charged with any offence, but is registered as the proprietor of a residential property which is a subject of the forfeiture proceedings. On the application of the appellant, the County Court of Victoria made an order under s 19 of the Act restraining the disposition of certain property owned by the respondents on the basis that it was the proceeds of crime. Later, the appellant applied for forfeiture of this property pursuant to s 49 of the Act. In the proceedings for the restraining order and the forfeiture order, it was alleged that the property sought to be forfeited is the proceeds of the same offence as that for which the second respondent is to be prosecuted in the criminal proceedings, save that in the criminal proceedings the offence is stated with respect to a particular period. The respondents filed applications commencing proceedings for the exclusion of certain property from the restraining order and from forfeiture. Thereafter, they made an application for a stay of the forfeiture proceedings and the exclusion proceedings until the completion of the criminal proceedings against the second respondent. The High Court unanimously found that the Court of Appeal was correct to order a stay of the forfeiture proceedings and the exclusion proceedings. The Court held that the issue, offences and circumstances in the forfeiture proceedings and in the criminal proceedings were substantially identical. It was not necessary for the second respondent to say any more than he did on the application for a stay in order to identify the risk of prejudice to him in the criminal proceedings. The Court found that the interests of justice were not served by requiring the second respondent to defend the forfeiture proceedings or pursue the exclusion proceedings before his criminal proceedings were finalised, especially since the appellant would suffer no relevant prejudice from a delay in the continuation of the forfeiture proceedings.
+HIGH COURT OF AUSTRALIA 17 June 2015 GNYCH & ANOR v POLISH CLUB LIMITED [2015] HCA 23 Today the High Court unanimously allowed an appeal from a decision of the Court of Appeal of the Supreme Court of New South Wales. The High Court held that a lease granted in contravention of s 92(1)(d) of the Liquor Act 2007 (NSW) ("the Liquor Act") was not void and unenforceable. In 2012, the respondent leased part of its licensed premises to the appellants for the running of a restaurant. Section 92(1)(d) of the Liquor Act provides that a licensee must not lease certain parts of a licensed premises without the approval of the Independent Liquor and Gaming Authority ("the Authority"). The respondent did not obtain the approval of the Authority for the lease to the appellants and thereby contravened s 92(1)(d) of the Liquor Act. Subsequently, relations between the parties deteriorated and, in 2013, the appellants were excluded from the premises. The appellants commenced proceedings in the Supreme Court of New South Wales seeking a declaration that they had a "retail shop lease", which has a minimum term of five years, under the Retail Leases Act 1994 (NSW). The appellants also sought an injunction restraining the respondent from interfering with their possession of the leased premises. The respondent contended that the lease was unenforceable, having been granted in breach of the Liquor Act. At trial, the Supreme Court held that, although there had been a breach of s 92(1)(d), the lease was not unenforceable. The respondent's appeal to the Court of Appeal was allowed on the basis that a lease granted in breach of s 92(1)(d) conflicts with the purpose and policy of the Liquor Act, in particular the responsibility of the licensee to supervise the conduct of the business on the licensed premises. By grant of special leave, the appellants appealed to the High Court. The High Court allowed the appeal, holding that on the proper construction of the Liquor Act the respondent's breach of s 92(1)(d) did not automatically render the lease void and unenforceable.
+HIGH COURT OF AUSTRALIA 9 September 2004 TANIA SINGH (AN INFANT BY HER NEXT FRIEND MALKIT SINGH) v COMMONWEALTH OF AUSTRALIA AND MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS The High Court of Australia today dismissed a challenge to the validity of a Commonwealth law providing for the removal, as an unlawful non-citizen, of a child born in Australia of Indian parents. Tania Singh was born in Mildura on 5 February 1998. Her parents and nine-year-old brother were born in India. They arrived in Australia in April 1997 and lodged applications for protection visas, claiming refugee status. Those applications have been rejected by the Immigration Department and the Refugee Review Tribunal. Further proceedings are ongoing in the Federal Court. In 2003 Tania, via her father, filed a writ of summons in the High Court seeking a declaration that, because she was born in Australia, section 198 of the Migration Act, providing for removal of unlawful non-citizens, did not validly apply to her. Section 10 of the Citizenship Act provides that a person born in Australia is an Australian citizen if at least one parent was an Australian citizen or permanent resident or other long-term resident. Tania is a non-citizen. The primary issue before the Court was whether section 51(xix) of the Constitution, which gives Parliament power to make laws with respect to naturalisation and aliens, empowered Parliament to legislate for the removal of someone in Tania’s position. Tania’s case was that, despite her lack of Australian citizenship, her birth in Australia necessarily meant she was not an alien and treating her as such was beyond the legislative competence of Parliament. It was argued that at the time of federation in 1901 “alien” had an accepted and fixed legal meaning which excluded someone born in Australia, therefore Parliament had no power to treat Tania as an alien. The High Court, by a 5-2 majority, held that laws treating Tania as having alien status were within the power conferred on Parliament by section 51(xix). The majority held that the meaning of alien in 1901 was far from fixed, and would not necessarily have excluded someone in Tania’s position. The common law position that anyone born in the British Dominions was a British subject had already by then been modified several times by the British Parliament. Naturalisation, allegiance, nationality and alien status were controversial subjects in Britain and Europe during the latter part of the 19th century and also at Australia’s constitutional Convention Debates in the 1890s.
+HIGH COURT OF AUSTRALIA 28 March 2012 THE QUEEN v TOMAS GETACHEW [2012] HCA 10 Today the High Court allowed an appeal from the Court of Appeal of the Supreme Court of Victoria, which had allowed an appeal by Tomas Getachew ("the accused") against his conviction of one count of rape. The Court of Appeal had allowed the accused's appeal on the ground that the trial judge did not direct the jury to consider the possibility that the accused believed that the complainant was consenting to intercourse, in circumstances where the accused did not lead evidence or assert that he held such a belief. The complainant had spent the night of 29 June 2007 drinking in Melbourne with three others (of whom one was the accused). In the early hours of the next morning, the group went to a suburban house, where the complainant and the accused lay on a mattress on the floor, and the other two shared a bed in the same room. The complainant gave evidence that the accused touched the complainant twice and that she asked him to stop both times. Having fallen asleep, the complainant later awoke to find the accused lying behind her, her clothing disarranged and the accused penetrating her. The accused was charged and tried in the County Court of Victoria. The accused's defence was that he had not penetrated the complainant. He did not give evidence and made no assertion about his mental state. Section 38 of the Crimes Act 1958 (Vic) ("the Act") defines the offence of rape in Victoria. Section 38(2) relevantly provides that a person commits rape if he or she intentionally sexually penetrates another person without that person's consent while "being aware that the person is not consenting or might not be consenting". Section 37 of the Act provides that the judge must direct the jury on certain matters if "relevant to the facts in issue in a proceeding", but otherwise must not direct the jury on those matters. Relevantly, s 37AA provides for directions to be given to a jury "if evidence is led or an assertion is made that the accused believed that the complainant was consenting to the sexual act". At trial, the trial judge directed the jury that the accused had not raised as an issue that the accused thought or believed that the complainant was consenting to penetration. The trial judge also directed the jury that they could be satisfied that the accused was aware that the complainant was not or might not be consenting if the accused was aware that the complainant was or might be asleep at the time of penetration. The accused was convicted and subsequently sentenced to four years and nine months' imprisonment. The accused successfully appealed. The Court of Appeal held that the trial judge should have directed the jury not to convict the accused unless persuaded beyond reasonable doubt that the prosecution had excluded the possibility that the accused may have believed that the complainant was consenting, even though he knew that she was or might be asleep. By special leave, the prosecution appealed to the High Court of Australia. The High Court allowed the appeal, with the result that the accused's original conviction stands. The High Court held that the trial judge was correct not to give a direction about the accused's belief in the complainant's consent. The accused's belief in consent would have been relevant only if evidence was led or an assertion was made that the accused believed that the complainant had consented. Absent such an assertion or such evidence, to demonstrate that the accused knew that the complainant was or might be asleep was to demonstrate that he was aware that she might not be consenting. The High Court also emphasised that an accused's belief in consent is only relevant insofar as it sheds light on the accused's awareness that the complainant was not or might not be consenting, that being the mental element prescribed by s 38(2) of the Act.
+HIGH COURT OF AUSTRALIA Manager, Public Information 30 April 2009 AUSTRALIAN COMPETITION AND CONSUMER COMMISSION CHANNEL SEVEN BRISBANE PTY LTD & ORS The High Court today handed down a decision about the scope of what is sometimes called the "media safe-harbour" protecting media outlets from liability for misleading or deceptive conduct under the Trade Practices Act. Section 52 of the Trade Practices Act prohibits a corporation from engaging in misleading or deceptive conduct, or in conduct that is likely to mislead or deceive. Section 65A of that Act exempts "prescribed information providers" from the application of section 52, except in certain circumstances. Television broadcasters holding licences under the Broadcasting Services Act 1992 are "prescribed information providers". Prescribed information providers do not have the benefit of the exemption where a misleading or deceptive publication concerns the supply or possible supply of goods or services and is made pursuant to a contract, arrangement or understanding with a person who supplies good or services “of that kind”. Today a majority of the High Court allowed an appeal by the Australian Competition and Consumer Commission (the ACCC) against a decision of the Full Court of the Federal Court, which found that the media exemption under section 65A applied to members of the Channel Seven network. The High Court was required to determine what was meant by goods or services “of that kind”. The case concerned the broadcast of two episodes of Today Tonight containing segments concerning a business called "Wildly Wealthy Women". The business offered to train women to make money out of real estate investment. At the hearing of the appeal in the High Court, there was no dispute that the relevant Today Tonight episodes contained untrue claims about the wealth and assets of the two women who were offering the training. Nor was it in dispute that certain representations made in the episodes were misleading and deceptive. The main question to be determined was whether section 65A exempted the television stations which carried the broadcast from the operation of section 52. The ACCC argued that because of the arrangement made between the television stations and the two women to broadcast the program, the broadcast was not covered by the section 65A exemption. The primary judge had held that the television channels were not exempt from the operation of section 52 in these circumstances. The Full Court of the Federal Court, on the other hand, held that the benefit of the exemption did apply to the broadcasters. The High Court granted special leave to the ACCC to appeal the decision of the Full Court. A majority of members of the High Court considered that the primary judge had properly construed section 65A. The exemption conferred by section 65A does not apply to situations in which a media outlet publishes matter in relation to goods or services where the publication is pursuant to an arrangement with a supplier of goods or services. The High Court allowed the ACCC's appeal, set aside the Full Court's orders and restored the orders made by the primary judge.
+HIGH COURT OF AUSTRALIA 15 December 2010 TEC DESERT PTY LTD & ANOR v COMMISSIONER OF STATE REVENUE [2010] HCA 49 The High Court of Australia today unanimously held that an agreement divesting WMC Resources Ltd ("WMC") of responsibility for power generation for its mining operations in Western Australia did not transfer any interest in land and so was not subject to stamp duty under the Stamp Act 1921 (WA). The Court of Appeal of the Supreme Court of Western Australia had previously determined that the stamp duty payable by the purchasers, TEC Desert Pty Ltd and AGL Power Generation (WA) Pty Ltd, was in excess of $11 million. In 1998, WMC entered into an agreement to sell its power generation assets to the purchasers ("Sale Agreement"). The assets of WMC dealt with by the Sale Agreement included power stations, generators, electrical wires, and transmission and distribution equipment. The Sale Agreement provided for the sale of those of WMC's assets that were chattels or personal property, but not those that were "Fixtures", for approximately $190 million. The term "Fixtures" was defined in the Sale Agreement as items "affixed to land, and an estate or interest in which is therefore an estate or interest in land". The Sale Agreement required WMC to grant licences to the purchasers. The licences allowed the purchasers to use the power generation assets that were "Fixtures" and the areas of land on which they were located for 15 years. WMC could require prepayment of the licence fees, totalling almost $40 million, on completion of the Sale Agreement. If the licences terminated, the purchasers were required to acquire the "Fixtures" from WMC. The Commissioner of State Revenue assessed the Sale Agreement to stamp duty of approximately $9 million on the basis that the chattels sold to the purchasers were mostly fixtures, in the technical sense, and so the Sale Agreement was an agreement to transfer interests in both land and chattels. Agreements of that kind are caught by s 70(2) of the Stamp Act, and duty is payable on the value of both the land and the chattels. The purchasers successfully appealed to a single judge of the Supreme Court, but that decision was overturned by the Court of Appeal. The Court of Appeal determined that s 70(2) applied to the Sale Agreement. It further held that the stamp duty payable should be increased to approximately $11 million, as the licences required to be granted under the Sale Agreement also transferred interests in land. By special leave, the purchasers appealed to the High Court. Most of WMC's power generation assets were on land not owned by WMC. WMC held mining leases and other mining tenements, under Western Australia's mining legislation, over those lands. The High Court held that the interests of WMC in mining tenements were not interests in land; they were personal property, limited to rights to work mines and take away minerals recovered. Thus, interests in the power generation assets affixed to such land were also personal property and not interests in land. As for the remanning assets located on land owned by WMC in freehold, the parties had made an agreed assumption in the Sale Agreement that WMC had title to the "Fixtures" separate and distinct from its title to the land. Accordingly, no interest in land was transferred. The High Court held further that terms in the licences requiring the purchasers to rehabilitate the area the subject of the licences, and preventing WMC assigning its freehold without the assignee being bound by the licences, were contractual rights and obligations and did not grant any interests in land. The High Court allowed the appeal and reinstated the decision of the Supreme Court at first instance that no duty was payable. The Commissioner was ordered to pay the purchasers' costs.
+HIGH COURT OF AUSTRALIA Public Information Officer 30 April, 2003 The High Court of Australia today dismissed Ms Fox’s appeal against a New South Wales Court of Appeal decision that her horse was on the wrong side of the road when it collided with a Kombi van on a dirt road near Bega in south-eastern NSW. Ms Fox had sued Ms Percy for damages for negligent driving. Ms Fox and Ms Percy, the driver of the van, each claimed they were on their correct side of the road. Ms Percy was driving downhill and Ms Fox and her partner Christopher Murdoch were riding their horses uphill when the collision occurred on April 11, 1992. Ms Fox was seriously injured and her horse was killed. At the accident scene, Constable Peter Volf sketched a diagram of straight 10-metre-long skidmarks on the left-hand side of the road behind the van, which came to rest facing forward on the correct side of the road. However, the NSW District Court trial judge accepted the evidence of Ms Fox. The case raised questions of principle as to the approach to be taken by an appellate court on reviewing a trial judge’s holding of fact. The High Court held that the NSW Court of Appeal was correct to set aside the District Court’s verdict. The Court held that the skidmarks were an incontestable fact contradicting Ms Fox’s evidence and it unanimously dismissed her appeal.
+HIGH COURT OF AUSTRALIA 13 February 2019 MINISTER FOR IMMIGRATION AND BORDER PROTECTION v SZMTA & ANOR; CQZ15 v MINISTER FOR IMMIGRATION AND BORDER PROTECTION & ANOR; BEG15 v MINISTER FOR IMMIGRATION AND BORDER PROTECTION & ANOR [2019] HCA 3 Today the High Court unanimously allowed an appeal in SZMTA and unanimously dismissed appeals in CQZ15 and BEG15. The appeals, each from a decision of the Federal Court of Australia, concern the effect on a review by a Tribunal under Pt 7 of the Migration Act 1958 (Cth) of a notification given by the Secretary of the Department of Immigration and Border Protection to the Tribunal that s 438 of the Act applies in relation to a document or information. In each case, a visa applicant applied to a Tribunal for review of a decision by a delegate of the Minister for Immigration and Border Protection. As required by s 418(3) of the Act, the Secretary of the Department gave to the Registrar of the Tribunal documents considered relevant to the review. Subsequently, a delegate of the Secretary or an officer of the Department notified the Tribunal that s 438 applied to certain information in the documents. Section 438 applies to a document or information either if the Minister has lawfully certified that disclosure of any matter in the document or of the information would be contrary to the public interest, or if the document, any matter in the document or the information was given to the Minister or the Department in confidence. If a Tribunal is notified that s 438 applies to a document or information, the Tribunal may have regard to any matter in the document or to the information, and, in certain circumstances, it may disclose to the applicant for review any such matter or the information. In each case, neither the Tribunal nor the Secretary disclosed to the visa applicant the fact of the notification purportedly made under s 438. In CQZ15 and BEG15, s 438 did not apply to any documents or information before the Tribunal, and so the notification was invalid. In SZMTA, s 438 did not apply to at least some of the documents or information before the Tribunal, and so the notification was invalid to at least that extent. In each case, the Tribunal affirmed the decisions under review. The visa applicants sought judicial review of the Tribunal's decisions in the Federal Circuit Court of Australia. In CQZ15, the Federal Circuit Court held that the invalidity of the notification and the non-disclosure of the fact of the notification had resulted in jurisdictional error. A Full Court of the Federal Court allowed an appeal by the Minister and remitted the matter for a determination of the materiality of the Tribunal's denial of procedural fairness. In BEG15, the Federal Circuit Court held that the information covered by the notification could have made no difference to the outcome of the Tribunal's review. The same Full Court of the Federal Court as in CQZ15 dismissed an appeal by the visa applicant. In SZMTA, the invalidity of the notification was not raised by the visa applicant until his appeal from the Federal Circuit Court to a single judge of the Federal Court, who held that the Tribunal had made a jurisdictional error and allowed the appeal. By special leave, the visa applicants in CQZ15 and BEG15 and the Minister in SZMTA appealed to the High Court. The High Court unanimously held that the fact of a notification to the Tribunal that s 438 applies to a document or information will trigger an obligation of procedural fairness on the part of the Tribunal to disclose the fact of the notification to the applicant for review. By majority, the High Court held that a breach by the Tribunal of that obligation will result in jurisdictional error if, and only if, the breach is material, in the sense that the breach deprives the applicant of the possibility of a successful outcome. By majority, the High Court also held that an invalid notification will result in jurisdictional error if, and only if, the notification is material. In CQZ15, the Federal Court was correct to remit the matter to the Federal Circuit Court. In BEG15, the Federal Court was correct to find no appealable error in the Federal Circuit Court's decision. In SZMTA, the Tribunal's denial of procedural fairness was immaterial, and the Federal Court was wrong to find that the Tribunal had committed a jurisdictional error.
+HIGH COURT OF AUSTRALIA Public Information Officer 6 August 2008 PETER HEARNE AND DAVID TIERNEY v JOAN STREET, ROSLYN ELIZABETH DWYER, MICHAEL JOHN HESSE, GLEN EIGHT PTY LIMITED, SUSAN HESSE, ROBERT SIMKIN, GLEN Operators of Luna Park, the Sydney harbourside amusement park, were bound by an obligation not to use other parties’ affidavits or witness statements other than for court proceedings and breaching that obligation was a contempt of court, the High Court of Australia held today. Luna Park opened in 1935, closed in 1979 and re-opened in April 2004. Nearby residents were unhappy with noise, including music, loud speakers, mechanical noise and screams from people on the rides. Mr Hearne is managing director and chief executive of Luna Park Sydney Pty Ltd, the lessee and operator of Luna Park. Mr Tierney is a director of the parent company. On 5 April 2005 residents began noise nuisance proceedings in the New South Wales Supreme Court by filing a summons with supporting affidavits. On 18 April, The Daily Telegraph newspaper published a story headed “The NUMBY* files”. It said: “*NUMBY: Not Under My Balcony. The city cousin of the NIMBY (Not in My Backyard)”. The story said “well-heeled” residents had “made some quirky, if not bizarre, claims”. It cited affidavits which gave as reasons why Luna Park should be shut down disrupted violin lessons, entrapped Chinese herbal medicine fumes and smoking daughters. The residents’ solicitors complained to Luna Park Sydney Pty Ltd about the release of residents’ affidavits. The solicitors for Luna Park Sydney gave an unreserved apology from Luna Park Sydney. A 10-day trial was set down to begin on 31 October 2005. Between July and October 2005, Mr Hearne and Mr Tierney had dealings with Tourism, Sport and Recreation Minister Sandra Nori in an attempt to have the NSW Luna Park Site Act amended to protect Luna Park from the noise nuisance proceedings and any future complaints. Both Mr Hearne and Mr Tierney emailed Ms Nori’s staff sections of a resident’s affidavit and an acoustic expert’s noise impact report. The Luna Park Site Amendment (Noise Control) Bill, which was retrospective to 30 March 2004, was passed on 18 October 2005. The trial date was vacated. The residents amended their claim to allege breaches of the Commonwealth Trade Practices Act and the NSW Crown Lands Act. On 15 March 2006, the residents filed notices of motion and statements of charge against Mr Hearne and Mr Tierney alleging they were in contempt of court by publishing extracts of the affidavit and the acoustic report in the emails to the Minister’s office. Justice Ian Gzell dismissed the action, holding that they were not bound by such an obligation. The Court of Appeal, by majority, allowed appeals by the residents and found Mr Hearne and Mr Tierney guilty of contempt of court. It held that the obligation was binding on them personally as well as on the company. Mr Hearne and Mr Tierney appealed to the High Court. The Court unanimously dismissed the appeal. It held that the “implied undertaking” not to disclose pre-trial documents to people not involved in the proceedings was a substantive legal obligation. The Court held that a party’s servants or agents who were aware that documents had been prepared for legal proceedings were directly bound by this obligation, and the role Mr Hearne and Mr Tierney played meant they could be categorised as agents of Luna Park Sydney. There was also a jurisdictional issue. The NSW Supreme Court Act did not allow appeals from a Supreme Court judgment or order that a person had been found not to have committed criminal contempt. Mr Hearne and Mr Tierney argued that the charges against them were for criminal contempt and therefore the appeal to the Court of Appeal against Justice Gzell’s dismissal of the contempt charges was incompetent. The High Court agreed with the Court of Appeal majority that the contempt proceedings were not punitive, so were civil rather than criminal, and therefore the appeal to the Court of Appeal was competent.
+HIGH COURT OF AUSTRALIA 2 March 2016 THE QUEEN v GW [2016] HCA 6 Today the High Court unanimously allowed an appeal by the Director of Public Prosecutions for the Australian Capital Territory ("the DPP") from a decision of the Court of Appeal of the Supreme Court of the Australian Capital Territory. The High Court held that the Uniform Evidence legislation ("the UEL") is neutral in its treatment of the weight that may be accorded to evidence whether it is sworn or unsworn. GW was convicted of committing an act of indecency in the presence of his five-year-old daughter, R. At the age of six, R gave evidence at a pre-trial hearing before a single judge of the Supreme Court. There was no dispute that R was competent to give evidence. R's competence to give sworn evidence was in issue. Under the UEL, a person is not competent to give sworn evidence if the person does not have the capacity to understand that, in giving evidence, the person is under an obligation to give truthful evidence. A person who is competent to give evidence, but not sworn evidence, may give unsworn evidence provided the court tells the person of the importance of telling the truth and certain other matters. The pre-trial judge examined R to determine whether she was competent to give sworn evidence. His Honour ruled that he was not satisfied that R had the capacity to give sworn evidence and proposed that R's evidence be taken unsworn. Defence counsel did not oppose that proposal. At GW's trial, an audiovisual recording of R's unsworn evidence was played to the jury over defence counsel's objection. Defence counsel asked the trial judge to direct the jury that R's evidence was unsworn because it had been found that R did not comprehend the obligation to tell the truth. The trial judge declined to give the direction sought. The Court of Appeal allowed GW's appeal, set aside his conviction and ordered a new trial. The Court held that the pre-trial judge failed to comply with the UEL because his Honour had remarked at the conclusion of R's examination that he was "not satisfied that [R] has the capacity" to give sworn evidence when the UEL required satisfaction that R did not have the capacity. The Court inferred that the pre-trial judge had, wrongly, treated the reception of unsworn evidence as the "default" position under the UEL. The Court also held that the trial judge should have instructed the jury on the differences between sworn and unsworn evidence and to take those differences into account in assessing the reliability of R's evidence. By grant of special leave, the DPP appealed to the High Court. The High Court held that the pre-trial judge's failure to express his conclusion about R's capacity to give sworn evidence in the terms of the UEL did not support a finding that his Honour was not satisfied that R was not competent to give sworn evidence. The question of whether the pre-trial judge was satisfied that R lacked the capacity to give sworn evidence turned on a consideration of all the circumstances, including that the pre-trial judge took into account that R was a six-year-old child and examined R to determine her competence to give sworn evidence, allaying concerns about his Honour's misapprehension of the "default" position. The High Court further held that the UEL is neutral in its treatment of the weight that may be accorded to sworn and unsworn evidence. Accordingly, the trial judge was not required to direct the jury as defence counsel sought. The fact that R did not give sworn evidence was not material to the jury's assessment of the reliability of her evidence. No direction was required by the UEL or the common law.
+HIGH COURT OF AUSTRALIA 17 October 2018 UBS AG v SCOTT FRANCIS TYNE AS TRUSTEE OF THE ARGOT TRUST [2018] HCA 45 Today the High Court, by majority, allowed an appeal from a decision of the Full Court of the Federal Court of Australia. The appeal concerned the power to permanently stay proceedings as an abuse of the processes of the court. The respondent, in his capacity as trustee of the Argot Trust ("the Trust"), commenced the present proceedings against the appellant ("UBS") in the Federal Court, claiming damages and equitable compensation arising out of advice and representations made by UBS to Mr Tyne and "through him" to related entities, namely the former trustee of the Trust ("ACN 074") and an investment company ("Telesto"). Mr Tyne was the controlling mind of ACN 074 and Telesto at all material times. The claimed loss arose in connection with the pledge of the Trust's assets to secure the liabilities of Telesto under credit facilities extended to Telesto by UBS. UBS had earlier brought proceedings in the High Court of Singapore against Telesto (as principal debtor) and Mr Tyne (as guarantor) for default on the credit facilities ("the Singapore proceedings"). ACN 074 was not a party to those proceedings. Before the Singapore proceedings were concluded, Mr Tyne (in his personal capacity), Telesto and ACN 074 (as trustee) commenced proceedings in the Supreme Court of New South Wales ("the SCNSW proceedings"). UBS applied for a permanent stay of the SCNSW proceedings. Ward J granted a temporary stay, holding that it was not evident that there would be overlap between the SCNSW proceedings and the Singapore proceedings. In written submissions filed on behalf of Telesto, Mr Tyne and ACN 074 (as trustee) it was foreshadowed that the latter two parties would discontinue their claims. Ward J gave leave to file amended pleadings. These were subsequently filed and removed Mr Tyne and ACN 074 as plaintiffs. The Singapore proceedings were finalised in favour of UBS, and UBS then successfully obtained a permanent stay of the SCNSW proceedings on the basis that, as a matter of substance, the Singapore proceedings "covered" the causes of action pursued by Telesto, creating a res judicata. The present proceedings were commenced in the Federal Court some 23 months after Ward J had granted leave to amend in the SCNSW proceedings (facilitating the discontinuance by Mr Tyne and ACN 074 as plaintiffs). Mr Tyne had become the trustee of the Trust. The claims made in the present proceedings arise out of the same facts, and are essentially the same claims, as those in the SCNSW proceedings. UBS applied for a permanent stay of the present proceedings on grounds including that they were an abuse of process. The primary judge granted the stay, holding that the allegations were essentially the same as had been made by the Trust in the SCNSW proceedings before it discontinued its claims, and no "proper explanation" had been given for the failure to prosecute them in the Supreme Court. On appeal to the Full Court, the majority set aside the stay, holding that, in circumstances in which the Trust's claims had not been decided on the merits in the SCNSW proceedings, there was no unfairness in requiring UBS to answer them in the present proceedings. By grant of special leave, UBS appealed to the High Court. By majority, the High Court allowed the appeal, holding that the timely, cost effective and efficient conduct of modern civil litigation takes into account wider public interests than those of the parties to the dispute. Hiving off the Trust's claim from the SCNSW proceedings, with a view to bringing it in another court after the determination of those proceedings, was the antithesis of the discharge of the duty imposed on parties to civil litigation in the Supreme Court and in the Federal Court. For the Federal Court to lend its procedures to the staged conduct of what is factually one dispute prosecuted by related parties under common control with the attendant duplication of court resources, delay, expense and vexation was rightly assessed by the primary judge to amount to an abuse of the processes of the court, warranting a permanent stay of proceedings.
+HIGH COURT OF AUSTRALIA ALAN MICHAEL FINCH v TELSTRA SUPER PTY LTD [2010] HCA 36 20 October 2010 The applicant, who had undergone male to female gender reassignment surgery in 1988, commenced employment with Telstra in 1992. The reassignment surgery turned out to have been unsatisfactory and distressing to the applicant. In 1996 the applicant took sick leave, reassumed a male identity and underwent surgery to reverse the gender change as far as possible. He returned to work with Telstra in 1997, but ceased employment with Telstra just under a year later in 1998. Following this, he was employed by Foxtel for one month in 1999 and by Qantas for five months in 1999-2000. From 2000, the applicant has sought a total and permanent invalidity ("TPI") benefit from Telstra Super Pty Ltd, the trustee of the applicant's superannuation fund ("the Trustee"). Despite medical opinion suggesting that the applicant was unlikely to engage in gainful work ever again, the Trustee rejected the applicant's claim for a TPI benefit on an initial assessment and a subsequent reassessment. In the Supreme Court of Victoria, the trial judge held that the Trustee failed to give genuine consideration to the matter in that it had failed to pursue sufficient inquiries into certain aspects of the claim. The trial judge remitted the matter to the Trustee for reconsideration. The Court of Appeal allowed an appeal by the Trustee and set aside the trial judge's orders. The Court of Appeal held that for the applicant to meet a requirement in the definition of TPI in the trust deed - that the applicant be absent from active work for at least six months ("the Active Work Requirement") - the Trustee had to be satisfied that the applicant had been absent from active work with Telstra for at least six months as at the date that the applicant ceased to work for Telstra. The applicant's first period of absence in 1996-1997 had been six days short of the required six month period. On this basis, the Court of Appeal considered that the issue of genuine consideration did not arise, but in any event disagreed with the trial judge's conclusion on that issue. Today, the High Court unanimously allowed an appeal against the decision of the Court of Appeal, and remitted the matter to the Trustee. The Court rejected the Court of Appeal's construction of the Active Work Requirement on the basis that such an approach involved unnecessarily reading words into the relevant clause. On the question of genuine consideration, the Court noted that the duty of trustees to inform themselves properly is particularly intense in respect of superannuation trusts, and considered that the determination of the question of whether an applicant fell within the definition of TPI was not a matter of discretionary power but rather an aspect of the performance of a trust duty. The Court upheld the finding of the trial judge that the Trustee did not comply with its duty of inquiry. It was not appropriate for the Court to substitute its own decision for that of the Trustee, as it had not been shown that the Trustee was incapable of approaching the task of forming its opinion satisfactorily. The Trustee was ordered to pay the applicant's costs.
+HIGH COURT OF AUSTRALIA 25 September 2008 Public Information Officer ASCIANO SERVICES PTY LTD v CHIEF COMMISSIONER OF STATE REVENUE A rail freight operator was liable to pay duty on the lease of rail lines in New South Wales as the lease gave it the right to use the land occupied by railways, the High Court of Australia held today. On 1 July 1996, a rail access agreement was entered into between National Rail Corporation Limited and Rail Access Corporation (RAC). National Rail was later called Pacific National (ACT) Limited. It began legal proceedings under that name but before the High Court heard its appeal its name changed to Asciano Services. The Court continued to refer to it as Pacific National. The agreement granted to Pacific National access rights to railway lines and associated infrastructure which formed part of the NSW rail network and which were owned by RAC. Land on which the lines and infrastructure stood was owned by the State Rail Authority (SRA). The RAC’s powers were contained in Schedule 6A of the NSW Transport Administration Act (TAA). Clause 5(1) of the Schedule provided that a party to an access agreement was authorised to have access to the relevant rail infrastructure facilities and the land on or in which they were situated. Under section 164A(b) of the NSW Duties Act, a lease attracting duty included an agreement by which a right to use land was conferred on or acquired by the lessee. The Chief Commissioner of State Revenue assessed Pacific National as liable for duty of $567,283.85 plus interest, based on $162 million it paid under the lease between 1 July 2000 and 31 December 2003. An objection to the assessment was disallowed and Pacific National sought a review in the NSW Supreme Court. Pacific National argued that no right to use land was granted by RAC through the access agreement and that the right was derived from the TAA. It submitted that all the RAC did under the agreement was to confer the right to use the physical items that comprise the NSW rail network, not the land itself. The Chief Commissioner argued that the rail track, cuttings, drainage works, earthworks, tunnels, bridges, track crossings, service roads and buildings were all land. Justice Ian Gzell revoked the assessment. He held that the rights in utilities affixed to or embedded in soil did not comprise land or amount to interest in land. Justice Gzell held that the vesting of the facilities in the RAC carried no interest in land and it therefore had no legal right to grant a right to use land. The Court of Appeal allowed an appeal. It held that the access agreement was one by which a right to use land was conferred or acquired so the duty was levied lawfully. Pacific National appealed to the High Court. The High Court unanimously dismissed the appeal and held that the agreement was subject to duty. The TAA provided for access to and consequential use of land by others, including the RAC for purposes connected with the rail infrastructure facilities. Pacific National argued that the legal source of the right to use land, in association with the rail lines and infrastructure facilities, was Schedule 6A, clause 5(1) of the TAA. The Court held that Pacific National acquired a right to use the SRA’s land because it was a party to an access agreement. The Court said that it was not correct to describe clause 5(1) of the TAA as the legal source of the right to use the land and diverted attention from the question which arose under section 164A(b) of the Duties Act, namely whether the agreement was one by which the right was acquired. The Court held the lease was such an agreement. Pacific National had no such right prior to its entry into the agreement. It was the making of the agreement and the grant of permission under it by which Pacific National acquired the right provided in clause 5(1).
+HIGH COURT OF AUSTRALIA Public Information Officer 18 May 2006 PETER JAMES BATTERHAM AND MAYLORD EQUITY MANAGEMENT PTY LTD v QSR LIMITED AND INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES A former company director who lost his share options when the company did not perform sufficiently well could not have recourse to the Industrial Relations Commission of New South Wales, the High Court of Australia held today. In November 1999, QSR sought to raise capital to acquire 41 KFC stores in NSW from the American owner of the KFC brand. Mr Batterham was a QSR director. QSR’s share prospectus stated that the directors had been issued with share options, exercisable in early 2003, if QSR met certain performance criteria, including the company achieving earnings before interest, tax, depreciation and amortisation (EBITDA) of an average of at least 18 per cent for the calendar years 2000, 2001 and 2002. However, the deed setting out the terms in which Mr Batterham’s options were issued described as a condition the achieving of EBITDA of 18 per cent in each of the three calendar years. In its first two years, QSR achieved EBITDA of more than 18 per cent, but in 2002 the figure slipped to 16.2 per cent. Although QSR achieved an average EBITDA of 18 per cent of funds invested over the three years, it did not achieve EBITDA of 18 per cent in each of those years. Mr Batterham performed various work for the company until he resigned as a director in April 2002. He contends that he was forced to resign. Mr Batterham and his trust company Maylord applied to the IRC under section 106 of the Industrial Relations Act, alleging that the option deed was unfair, harsh or unconscionable and seeking to have it varied. Section 106(1) of the Act provides that the IRC may make an order declaring wholly or partly void, or varying, any contract whereby a person performs work in any industry if the IRC finds the contract is unfair. QSR applied to the IRC for orders dismissing the proceedings for want of jurisdiction. The IRC refused to dismiss the proceedings. QSR then applied to the NSW Court of Appeal for prohibition directed to the IRC and certiorari removing the proceedings into the Court of Appeal for the purpose of dismissing the proceedings. By majority, the Court of Appeal ordered that the IRC be prohibited from hearing the proceedings in respect of the option deed except where they were based on a contract or arrangement whereby Mr Batterham performed work in an industry. He and Maylord appealed to the High Court. The Court, by a 5-2 majority, dismissed the appeal and upheld the Court of Appeal’s decision.
+HIGH COURT OF AUSTRALIA 20 May 2005 COMMISSIONER OF MAIN ROADS v LLOYD RUSSELL JONES A motorist who was seriously injured when his car collided with a horse was unlikely to have taken notice of warning signs or a lower speed limit had these been in place, the High Court of Australia held today. On 11 May 1992, Mr Jones left Kununurra to drive 358km to Halls Creek on the Great Northern Highway in the Kimberley region in north-western Western Australia. Waterholes along the highway attract wild horses, feral donkeys and kangaroos. About 7pm, after 200km travel in about 90 minutes, the car hit a horse then struck a tree, 5.8km south of Turkey Creek. Mr Jones, then aged 57, suffered serious head injuries and never recovered total consciousness. His claim for damages in negligence was brought by his wife Janet Jones as his next friend in the WA District Court. Mr Jones alleged that the Commissioner had breached a duty of care by failing to erect road signs warning of the danger of animals on the highway and by failing to impose a speed limit of 80km/hour rather than the general limit of 110km/hour. Judge David Charters dismissed the action, holding that a reasonable response by the highway authority did not require either measure, and that Mr Jones’s conduct showed he would not have slowed down or driven more cautiously even if there had been a warning sign or a reduced speed limit. Mr Jones’s average speed on the trip was estimated at between 135 and 140km/hour, despite the highway having sections of winding road. Turkey Creek has a 90km/hour limit but his speed there attracted comment, with one witness estimating it at about 140km/hour. Judge Charters held that the risk of straying animals was no greater around the accident site than along the rest of the route, although the danger increased at night. Judge Charters held that Mr Jones drove at a dangerous speed at night and his own negligence was the sole cause of the accident. The Full Court of the Supreme Court, by majority, allowed an appeal by Mr Jones, and held that warning signs and an 80km/hour speed limit were required on that section of the highway, between two creeks, where the accident happened. The Commissioner appealed to the High Court. The Court upheld Judge Charters’ finding that even if warning signs had been erected and the speed limit reduced these measures would not have prevented the accident or lessened his injuries. The evidence showed that Mr Jones travelled at excessive speeds despite knowing of the dangers of straying animals in the Kimberleys. He had ignored the 90km/hour speed limit sign on the outskirts of Turkey Creek. The evidence supported the inference that additional signs would not have influenced his conduct. The Court unanimously allowed the appeal.
+HIGH COURT OF AUSTRALIA 4 February 2004 A SOLICITOR v THE COUNCIL OF THE LAW SOCIETY OF NEW SOUTH WALES The High Court of Australia today unanimously allowed in part an appeal by a solicitor struck off after convictions for sexual offences and ordered his name be reinstated to the Roll of Legal Practitioners. The NSW Court of Appeal made declarations he was guilty of professional misconduct in two respects and that he was not a fit and proper person to be a legal practitioner and ordered his name be removed from the roll. The solicitor, now 42, was convicted of four counts of indecent assault on two girls aged under 16 who are now his stepdaughters. A magistrate sentenced him to imprisonment. On appeal to the District Court this jail sentence was set aside and he was placed on a three-year good behaviour bond. At the time of the offences, April-May 1997, he and others had been made redundant by his law firm and his father had been diagnosed with mesothelioma. He was suffering depression and physical exhaustion from long hours as an instructor training Army special forces. He was a major in the Army Reserve but the convictions led to the end of that career. The offences involved undressing the girls and rubbing them on the back, buttocks and stomach and once touching one girl outside her vagina. The girls complained of two offences. The solicitor admitted the offences and sought psychiatric help. The District Court accepted the conduct was out of character, unlikely to recur and not the most serious examples of indecent assault and noted the support he had, including from the family of the girls’ mother, whom he married in 2000. In that year, one stepdaughter made further allegations, which the solicitor denied. He was originally convicted but in 2001 his convictions were quashed on appeal. These later charges were pending when the Law Society initiated proceedings by summons in the Court of Appeal in relation to the first set. The Law Society was unaware of them until the solicitor filed an affidavit in the proceedings in which he referred to the charges and his successful appeal. The Law Society then added a second charge of professional misconduct for failure to disclose. The Court of Appeal found this charge to be made out, a finding upheld by the High Court because the solicitor’s professional obligations required him to disclose facts material to the Law Society’s decision on any action against him. However the Court overturned the Court of Appeal’s finding that he was guilty of professional misconduct in relation to the original convictions. It held that the nature of the trust he breached was too remote from his professional practice and to characterise his personal misconduct as professional misconduct was erroneous. The Court also held that at the time of the Court of Appeal decision in March 2002 it could not be concluded that the solicitor was unfit to practise. The solicitor had not renewed his practising certificate for five years and the High Court held that this was as long as an appropriate suspension and no other sanction was required.
+HIGH COURT OF AUSTRALIA 24 April 2020 COUGHLAN v THE QUEEN [2020] HCA 15 On 12 February 2020, the High Court unanimously allowed an appeal from the Court of Appeal of the Supreme Court of Queensland and quashed the appellant's convictions for arson and attempted fraud and entered verdicts of acquittal. Today, the Court published its reasons for making those orders. At around 6.00 pm on 18 July 2015, there was an explosion at the appellant's holiday home on Bribie Island, Queensland ("the house") which was destroyed in the resulting fire. The appellant was present at the scene and suffered burns to his left hand, lower back and face. In the aftermath of the explosion, the appellant ran from the premises and rode away on a motorcycle that he had parked around the corner earlier that afternoon. At around 9.00 pm, the appellant attended the Caboolture Police Station, where he reported the fire. The police who saw him accepted that he appeared to be distressed and in shock and that he said that someone had tried to kill him. They did not smell petrol on him. The appellant was cooperative and agreed to give the police the clothes that he was wearing at the time of the explosion. These included a pair of tracksuit pants and sports shoes, which subsequent testing established contained petrol residues. The appellant made a claim on his NRMA building and contents insurance policy in connection with the fire. He was subsequently charged by the police with arson and attempted insurance fraud. It was no part of the prosecution case that the appellant had any financial motive for the arson. The appellant represented himself at trial and at times appeared to be fixated with peripheral issues. He was ultimately convicted by the jury. At trial, two youths, who were outside the house at the time, gave evidence of having smelt petrol shortly before the explosion. The police did not obtain statements from two other youths who were also present. Testing of the appellant's clothing revealed the presence of petrol residues. Ms Maxwell of the Queensland Police Service Analytical Services Unit, who conducted the tests, did not give any estimate of the amount of petrol residues. The minimum detection level for this test would yield a positive result for the presence of petrol residues from one drop of petrol in an Olympic-size swimming pool. She was unable to offer an opinion on the age of contact between the petrol residues and the tracksuit pants and the shoes. Sergeant Gormon of the Queensland Police Service's Gold Coast Scientific Office, and Lindsay Spencer, a fire investigation officer with the Queensland Fire Service, concluded that the explosion was caused by a build-up of gaseous vapours inside the house and an unknown source of ignition. Neither was able to identify the substance that gave off the gaseous vapours. Neither could exclude an electrical fire as a possible source of ignition. No samples were taken to test for the presence of accelerants. Ordinarily, an electric safety officer would examine the site, but no such examination was conducted because of safety concerns. The Court of Appeal's analysis of the sufficiency of the evidence to support the verdicts depended upon inferences drawn from the expert evidence. The High Court found that in material respects their Honours overstated the effect of the expert evidence. Contrary to their Honours' finding, Ms Maxwell's evidence was not capable of establishing that the appellant had been inside the house distributing petrol on the afternoon of the explosion. Given the force of the explosion and the intensity of the heat generated by the fire, the prosecution acknowledged at the hearing in the High Court that common sense might dictate that the appellant was not inside the house when the vapours were ignited; where the appellant was at that time, and the means by which the vapours were ignited, was submitted to remain, "to some extent, a mystery". In circumstances in which the evidence did not exclude (i) that gas was connected to the house; and (ii) the possibility of an electrical fire igniting whatever gaseous vapours had built up in the house, the High Court held that it was not open to the jury to draw the inference of guilt to the criminal standard; a conclusion strengthened by the absence of apparent financial motive for the appellant to set fire to the house.
+HIGH COURT OF AUSTRALIA 7 November 2012 MONTEVENTO HOLDINGS PTY LTD & ANOR v SCAFFIDI & ANOR [2012] HCA 48 Today the High Court allowed an appeal from a decision of the Court of Appeal of the Supreme Court of Western Australia concerning the interpretation of a clause in the trust deed for a discretionary trust called The Scaffidi Family Trust ("the trust"). The High Court held that the clause did not prevent the appointment of the first appellant, Montevento Holdings Pty Ltd ("Montevento"), as trustee of the trust. The clause at issue was cl 11.03 of the trust deed, which provided that "[i]f, and so long as any individual Appointor is a Beneficiary that individual shall not be eligible to be appointed as a Trustee." The second appellant, Eugenio Scaffidi, was both the appointor and a beneficiary of the trust. He was also the sole director and shareholder of Montevento. On 18 February 2009, in his capacity as appointor, Eugenio Scaffidi appointed Montevento as trustee of the trust. The first respondent, Giuseppe Scaffidi, was also a beneficiary of the trust. On 19 April 2010, he commenced proceedings in the Supreme Court of Western Australia seeking a declaration that the appointment of Montevento as trustee of the trust was invalid because it breached cl 11.03 of the trust deed. The primary judge dismissed Giuseppe Scaffidi's proceedings. However, a majority of the Court of Appeal (Murphy JA and Hall J; Buss JA dissenting) allowed Giuseppe Scaffidi's appeal. By special leave, Montevento and Eugenio Scaffidi appealed to the High Court. The High Court unanimously allowed the appeal. The Court held that cl 11.03 of the trust deed did not extend to prohibit the appointment of a trustee which was a corporation, and that the construction of cl 11.03 adopted by Buss JA in dissent in the Court of Appeal was plainly correct.
+HIGH COURT OF AUSTRALIA 3 August 2011 MARTIN FRANCIS BYRNES & ANOR v CLIFFORD FRANK KENDLE [2011] HCA 26 Today the High Court allowed an appeal from the decision of the Full Court of the Supreme Court of South Australia dismissing a claim by Mr Martin Byrnes and his mother against Mr Clifford Kendle for breach of trust in relation to the renting of a property in Murray Bridge ("the property"). Mrs Joan Byrnes and Mr Kendle married in 1980 and separated in early 2007. In 1994 the property was purchased. Mr Kendle was the sole registered proprietor. In 1997 Mr Kendle executed an Acknowledgement of Trust declaring that he held a half interest in the property "upon trust" for Mrs Byrnes. In March 2007 Mrs Byrnes assigned to Mr Byrnes her interest in the property. In December 2001 Mrs Byrnes and Mr Kendle moved out of the property. The property was let by Mr Kendle to his son, Mr Kym Kendle. Kym lived there until early 2007 but paid only two weeks' rent. In 2008 Mr Byrnes and his mother instituted proceedings in the District Court of South Australia seeking an order for an account for Mr Kendle's breach of trust in failing to collect rent. The primary judge held that there was no trust because, although the deed used the words "upon trust", evidence extrinsic to the Acknowledgement of Trust revealed that Mr Kendle nevertheless lacked the intention to create a trust. His Honour also held that, even if there had been a trust, Mr Kendle was not under a duty to rent the property and that Mrs Byrnes "co-operated" in Mr Kendle's decision not to press for rent. On appeal, the Full Court of the Supreme Court of South Australia held that the Acknowledgement of Trust created a trust and that Mr Kendle's subjective intentions were not relevant. However, the Full Court held that Mr Kendle did not have a duty to rent the property or collect rent and that Mrs Byrnes had consented to or acquiesced in Mr Kendle's inaction. Mr Byrnes and his mother appealed by special leave to the High Court. The High Court held that, by the terms of the Acknowledgement of Trust, Mr Kendle held a half interest in the property on trust for Mrs Byrnes. Evidence extrinsic to the Acknowledgement of Trust was not admissible to show that there was no intention to create a trust. The High Court also held that Mr Kendle had a duty to rent the property even without any express provision to that effect in the Acknowledgement of Trust. Mr Kendle had a continuing duty to ensure that the rent was paid and, if it were not paid, that a new tenant was found. Mr Kendle's failure to do so was a breach of duty. He was therefore required to compensate Mrs Byrnes for her interest in the unpaid rent (less her share of the outgoings). The Court held that Mrs Byrnes' failure to insist upon collection of the rent did not amount to consent to or acquiescence in Mr Kendle's breach.
+HIGH COURT OF AUSTRALIA Public Information Officer 13 June 2007 SZBYR AND SZBYS v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL A family quarrel was not sufficient basis for a well-founded fear of persecution which would enable asylum seekers to be granted refugee status, the High Court of Australia held today. Indian husband and wife, SZBYR and SZBYS, arrived in Australia in 2002. They are Ismaili Muslims and followers of the Aga Khan, the sect’s leader. SZBYR was previously married to a woman named Salima whose family were Muslims of a different sect and a higher social status and were influential in the city of Hyderabad. Despite her family’s disapproval, Salima married SZBYR in 1997. He claims to have been falsely arrested and imprisoned by police on a number of occasions between 1997 and 2001 at the corrupt instigation of Salima’s family, and suffered other forms of harassment from them, including assault. In 1999, SZBYR agreed to Salima’s father’s request to divorce her. He married SZBYS in 2000. Salima later allegedly committed suicide. The couple moved to Mumbai where they were charged with murdering Salima and jailed for 15 days until released on bail. They left for Australia using their own passports, despite the charge relating to Salima’s death. They say they fear that if returned to India they will be imprisoned due to the outstanding charge and will suffer continued animus from Salima’s family. The couple applied for a protection visa which was refused. They claimed to have a well-founded fear of persecution for reasons of religion within the meaning of the Convention relating to the Status of Refugees. The Immigration Department concluded that the couple’s difficulties arose out of SZBYR’s relationship with Salima and her family which was a private matter outside the scope of the Convention. The Refugee Review Tribunal refused their applications for review, the Federal Magistrates Court rejected an application for judicial review of the RRT’s refusal, and the Federal Court of Australia dismissed an appeal by the couple. The RRT did not consider SZYBR to be a reliable witness. SZBYR and SZBYS appealed to the High Court. The Court upheld the RRT’s finding that the claims lacked any nexus with the Convention. The couple also argued that the RRT had not complied with section 424A of the Migration Act which provides that the RRT must give the applicant written particulars of any information that it considers would be the reason, or part of the reason, for affirming a decision under review. This argument was rejected. The Court unanimously dismissed the appeal.
+HIGH COURT OF AUSTRALIA 5 December 2018 TTY167 v REPUBLIC OF NAURU [2018] HCA 61 Today the High Court unanimously allowed an appeal from a decision of the Supreme Court of Nauru. The High Court quashed the decision of the Refugee Status Review Tribunal ("the Tribunal") that the appellant was neither a refugee nor owed complementary protection and remitted the matter to the Tribunal for reconsideration. The appellant is a citizen of Bangladesh. He applied under the Refugees Convention Act 2012 (Nr) to the Secretary of the Department of Justice and Border Control ("the Secretary") to be recognised as a refugee or a person owed complementary protection. He was assisted in preparing his application by a representative of a Nauru claims assistance provider called CAPS. His application was refused by the Secretary. The appellant applied to the Tribunal for merits review of the Secretary's determination. By a letter addressed to a "Team Leader" at CAPS, the Tribunal invited the appellant to appear before it. The appellant provided a statement to the Tribunal that highlighted the appellant's deteriorating physical and mental health, including his depression and anxiety. He also stated that he would provide further information in relation to his protection claims at the hearing. His lawyers provided submissions indicating their expectation that the appellant would take the opportunity to appear before the Tribunal. Although the appellant had been highly engaged with the application process, he failed to attend the scheduled hearing. Also, it could be inferred that no representative of the appellant attended the hearing. The Tribunal affirmed the determination of the Secretary, observing that the appellant's failure to attend the hearing prevented it from exploring many aspects of his claims. The appellant appealed to the Supreme Court, which dismissed his appeal and held, relevantly, that it was open to the Tribunal to make a decision without taking further action to enable the appellant to appear. The appellant appealed as of right to the High Court on two bases. First, the appellant alleged that he was not given an invitation to appear before the Tribunal. The High Court held that, because of the absence of evidence as to whether the Team Leader at CAPS had been authorised by the appellant to receive the invitation, the issue could not be raised for the first time on this appeal. Secondly, the appellant alleged that the Tribunal acted unreasonably in deciding the matter without taking further action to allow or enable the appellant to appear before it. The High Court held that the circumstances of this case were so exceptional that it was legally unreasonable for the Tribunal to proceed to decide the matter without making an enquiry about the appellant's absence on the date of the hearing.
+HIGH COURT OF AUSTRALIA 4 December 2013 APOTEX PTY LTD v SANOFI-AVENTIS AUSTRALIA PTY LTD & ORS [2013] HCA 50 Today the High Court, by majority, held that methods of medical treatment of the human body are patentable inventions within the meaning of s 18(1) of the Patents Act 1990 (Cth). Sanofi-Aventis Deutschland GmbH, the second respondent, was the registered owner of a patent which claimed a method of preventing or treating psoriasis by the administration of the compound leflunomide. Apotex Pty Ltd, the appellant, intended to supply leflunomide in Australia, under the trade name "Apo-Leflunomide", for the treatment of rheumatoid arthritis and psoriatic arthritis. Almost every person with psoriatic arthritis has or will develop psoriasis. The respondents commenced proceedings in the Federal Court of Australia claiming, among other things, that the appellant would infringe the patent by supplying Apo-Leflunomide to treat psoriatic arthritis. By cross-claim, the appellant sought to have the patent revoked as it did not claim a patentable invention under s 18(1) of the Patents Act. The primary judge found that the patent was valid. The Full Court of the Federal Court dismissed the appellant's appeal concerning the validity of the patent. By special leave, the appellant appealed to the High Court. The High Court, by majority, held that the patent claimed a "manner of manufacture" within the meaning of s 18(1) of the Patents Act and thus a patentable invention.
+HIGH COURT OF AUSTRALIA Public Information Officer 2 August 2007 SZFDE, SZFDF, SZFDG AND SZFDH v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL A Lebanese family seeking asylum in Australia should have their case reconsidered by the Refugee Review Tribunal after they were defrauded into not appearing before the RRT, the High Court of Australia held today. The family arrived in Australia in February 2002. The wife, SZFDE, claimed a well-founded fear of persecution by reason of her published views questioning the position of women in the Islamic tradition. The Immigration Department refused to grant the family protection visas and they sought a review by the RRT. According to the family, Fahmi Hussain represented himself to be a solicitor and licensed migration agent. In fact, the Council of the Law Society of New South Wales had cancelled his practising certificate in December 2001 and the Migration Agents Registration Authority had cancelled his registration in March 2002. He was struck off the Roll of Legal Practitioners in NSW in February 2005. SZFDE paid Mr Hussain $8,400 for him to act for the family and lent him another $5,000. She followed his advice not to accept the RRT’s invitation to attend a hearing. Mr Hussain told her he would instead write to the Minister and that if she appeared at the hearing she may say something conflicting with what he wrote. He also told SZFDE that she would be refused anyway as no visa applications were being accepted. Mr Hussain wrote to the Minister seeking a favourable decision but his requests were rejected. In October 2003, the RRT affirmed the Immigration Department decision. It noted that SZFDE had not appeared before it and there were matters the RRT would have wished to explore with her. In December 2005, the Federal Magistrates Court upheld the family’s application for judicial review and found that the family had been dissuaded from appearing before the RRT by Mr Hussain’s fraud. It quashed the RRT’s decision and remitted the matter for reconsideration. In October 2006, the Full Court of the Federal Court, by a 2-1 majority, allowed an appeal by the Minister. The family then appealed to the High Court. The Court unanimously allowed the appeal. It held that on the evidence fraud had been perpetrated on the RRT as well as upon the family. Therefore, the jurisdiction of the RRT remained unexercised and the Federal Magistrates Court was correct to grant the writ of certiorari to quash the RRT’s decision and the writ of mandamus to compel the RRT to redetermine the review of the Immigration Department’s refusal of the family’s visa applications. The High Court held that Mr Hussain’s conduct had the effect of stultifying the operation of the legislative scheme for the review of refugee decisions and denying the family natural justice. The RRT’s redetermination would include a fresh invitation to the family to appear before it.
+HIGH COURT OF AUSTRALIA 4 February 2015 FELICITY CASSEGRAIN v GERARD CASSEGRAIN & CO PTY LTD [2015] HCA 2 Today the High Court, by majority, allowed in part an appeal from a decision of the Court of Appeal of the Supreme Court of New South Wales. The Court held that the appellant's title to land as joint tenant was not defeasible on account of the fraud of her husband, who was also a joint tenant, but that the interest as tenant in common as to half which the appellant subsequently derived from her husband was defeasible and could be recovered by the respondent company. The registered proprietor of Torrens system land, Gerard Cassegrain & Co Pty Ltd ("the company"), transferred the land to a wife and husband, Felicity Cassegrain ("Felicity") and Claude Cassegrain ("Claude"), as joint tenants for consideration to be satisfied by debiting Claude's loan account with the company. Claude was a director of the company and knew that the company did not owe him the amount recorded in the loan account. Claude subsequently transferred his interest in the land to Felicity for a nominal consideration. The company sought to recover title as sole registered proprietor of the land from Felicity. Section 42(1) of the Real Property Act 1900 (NSW) provides that the estate of a registered proprietor is paramount "except in case of fraud". The company alleged that Claude's fraud was brought home to Felicity because he was her agent. Section 118(1)(d) of the Act provides that proceedings for the possession or recovery of land do not lie against the registered proprietor of the land, except proceedings brought by a person deprived of land by fraud against (i) a person who has been registered as proprietor of the land through fraud, or (ii) a person deriving (otherwise than as a transferee bona fide for valuable consideration) from or through a person registered as proprietor of the land through fraud. Section 100(1) of the Act provides that two or more persons registered as joint proprietors of an estate or interest in land shall be deemed to be entitled to the same as joint tenants. The primary judge concluded that Claude had acted fraudulently but dismissed the company's proceedings against Felicity. The Court of Appeal allowed the company's appeal. By special leave, Felicity appealed to the High Court. It was not alleged in any court that Felicity was a participant in, or had notice of, Claude's fraud at the time the land passed to them as joint tenants. The High Court, by majority, allowed Felicity's appeal in part. It held that Felicity's title as joint tenant was not defeasible on account of Claude's fraud, because Claude was not her "agent" in any relevant sense. Claude's fraud was not within the scope of any authority Felicity had, or appeared to have, given to him. Nor did registration as joint tenant mean that Felicity's title was defeasible: s 100(1) does not require that the fraud of one of the persons registered as joint proprietors denies all persons registered as joint proprietors the protection otherwise given by s 42(1). The fraud must be brought home to the person whose title is impeached, and Claude's fraud was not brought home to Felicity. The Court also held that because Felicity was not a bona fide purchaser for value of Claude's interest in the land, s 118(1)(d)(ii) was engaged so that the company could recover the interest which Felicity derived from or through Claude (an interest as tenant in common as to half).
+HIGH COURT OF AUSTRALIA Public Information Officer 30 September, 2003 LIDO RUSSO AND ZUCCHINI PTY LTD v JOHN DOMINIC AIELLO The High Court of Australia today dismissed an appeal by a man who failed to comply with the statutory time limit for giving notice of personal injury insurance claim after a motor vehicle accident. In January 1997, Mr Russo, then 21, was a passenger in a car driven by Mr Aiello who, Mr Russo alleged, negligently failed to negotiate a sharp bend on a road in Terrey Hills, Sydney, resulting in his car colliding with a rock face. Mr Russo sought damages for injuries, lost earnings and medical expenses. He was the co-owner of Zucchini, which traded as the Red Zucchini Bar. He spent the second half of 1997 in Italy where his condition improved but his condition later deteriorated back in Australia. He had headaches, dizziness, shoulder and back pain and was left with a permanent neck injury. Mr Russo initially saw a solicitor 10 days after the accident and another law firm in October 1998 but did not lodge a personal injury claim form with Mr Aiello’s insurer until March 1999, despite a six-month time limit under New South Wales’ Motor Accidents Act. The first solicitor had informed Mr Russo of the time limit and handed him a claim form and later wrote to check it had been submitted. The Act allowed extensions if a claimant had a full and satisfactory explanation for the delay. NSW District Court Judge Ian Dodd dismissed Mr Russo’s proceedings, holding that his explanation for the 10-month period between his return to Australia and consulting new solicitors could not be regarded as full. The Court of Appeal, by majority, dismissed Mr Russo’s appeal. The High Court, by a 4-1 majority, dismissed his further appeal.
+HIGH COURT OF AUSTRALIA 2 February 2009 THE QUEEN v FRANCIS ROBERT KEENAN Public Information Officer Even if a man did not anticipate that his friend would use a gun on someone who owed him money, he was still guilty of grievous bodily harm as it was open to the jury to find that the shooting was the kind of offence that was a probable consequence of a plan to cause the victim harm, the High Court of Australia held today. Francis Keenan, Stephen Booth and Dion Spizzirri were charged with attempted murder of Darren Coffey and alternatively with doing grievous bodily harm with intent. The jury found Mr Keenan not guilty of attempted murder but guilty of causing grievous bodily harm. The three, along with Jeramie Jupp, had planned to assault Mr Coffey after he failed to pass on $7000 collected for Mr Keenan. Mr Keenan left threatening messages for Mr Coffey on the mobile phone of his niece, Vonda Muir, who was Mr Coffey’s girlfriend. Mr Coffey was located by Mr Jupp at Hope Island in south-eastern Queensland where he and Ms Muir were living in a van. The four men went to the site in two cars. Mr Keenan’s passenger was Mr Booth who was carrying a small baseball bat. During the confrontation, Mr Spizzirri allegedly produced a sawn-off gun and shot Mr Coffey several times in the spine. Mr Coffey was left a paraplegic. There was no evidence that using a gun had been discussed beforehand. Mr Booth was found not guilty. The jury could not reach a verdict on Mr Spizzirri who was retried and found not guilty. The case against Mr Keenan did not depend upon conviction of a principal offender. Section 8 of the Queensland Criminal Code provides that when two or more people form a common intention to carry out an unlawful purpose together, and in doing so another offence is committed of such a nature that it was a probable consequence of the prosecution of such purpose, then each of them is deemed to have committed the offence. The trial judge, Chief Justice Paul de Jersey, instructed the jury that they had to be satisfied that there was a common intention to prosecute an unlawful plan, that the offence of attempted murder or alternatively intentional grievous bodily harm was committed in carrying out that purpose, and that any offence committed was of such a nature that its commission was a probable consequence of the prosecution of that purpose. The Court of Appeal acquitted Mr Keenan and held that a jury, properly instructed, could not have excluded an inference that Mr Spizzirri was acting independently of the common planned intention with respect to the attack on Mr Coffey. It held that misdirections by Chief Justice de Jersey resulted in a miscarriage of justice. The Crown appealed to the High Court. The Court unanimously allowed the appeal, although one Justice did so only to substitute an order for a retrial. Four Justices ordered that Mr Keenan’s conviction should be restored. They agreed that if a miscarriage of justice had resulted from misdirection the Court of Appeal should have ordered a retrial. However the majority held that Chief Justice de Jersey did not misdirect the jury so that no miscarriage of justice occurred. It held that section 8 of the Code required the jury to consider what the common purpose was, then whether the shooting was an offence of such a nature that its commission was a probable consequence of carrying out that purpose. They concluded that an inference that the unlawful purpose was to inflict serious physical harm on Mr Coffey was open to the jury. That purpose was achieved and whether it had been achieved with a gun or a baseball bat did not matter in the circumstances of the case. The question was not whether the actual shooting was a probable consequence but whether the act of shooting was an offence of such a nature that its commission was a probable consequence. The Court remitted the case to the Court of Appeal to determine Mr Keenan’s application for leave to appeal against his sentence.
+HIGH COURT OF AUSTRALIA 14 April 2016 WARRICK COVERDALE, VALUER-GENERAL OF THE STATE OF TASMANIA v WEST COAST COUNCIL [2016] HCA 15 Today the High Court unanimously dismissed an appeal from a decision of the Full Court of the Supreme Court of Tasmania ("the Full Court"). The High Court held that the seabed and waters of Macquarie Harbour on the west coast of Tasmania are "Crown lands" within the meaning of s 11(1) of the Valuation of Land Act 2001 (Tas) ("the VLA"). The respondent ("the Council") sought to levy rates on eight marine farming leases over parts of the seabed and waters within Macquarie Harbour. To that end, it requested the appellant ("the Valuer-General") to value the leases in accordance with s 11(1) of the VLA. In substance, s 11(1) of the VLA provides that the Valuer-General must value all lands within each valuation district, including certain Crown lands that are liable to be rated. The Valuer-General declined to value the leases on the basis that, in the Valuer-General's opinion, the leases were not over "lands" or "Crown lands" within the meaning of s 11(1) because those terms did not include the seabed and waters above it. The Council instituted proceedings in the Supreme Court of Tasmania for, among other relief, a declaration that the Valuer-General was obliged to value the marine farming leases. At first instance, the Council's action was dismissed on the basis that the leases were not over lands within the meaning of s 11(1) of the VLA and, therefore, were not liable to be rated. The Council appealed to the Full Court and a majority of the Full Court allowed the appeal. It held that the leases were over Crown lands that were liable to be rated. By grant of special leave, the Valuer-General appealed to the High Court. The High Court unanimously dismissed the appeal, holding that "Crown lands" in s 11(1) of the VLA had the same meaning as that ascribed to it in s 2 of the Crown Lands Act 1976 (Tas). Accordingly, "Crown lands" in s 11(1) of the VLA included the seabed and so much of the sea as lies above it.
+HIGH COURT OF AUSTRALIA 8 December 2021 CHAUNCEY AARON BELL v STATE OF TASMANIA [2021] HCA 42 Today, the High Court dismissed an appeal from a judgment of the Court of Criminal Appeal of the Supreme Court of Tasmania. The appeal concerned the operation of s 14 of the Criminal Code (Tas) ("the Code"), and the circumstances in which an honest and reasonable, but mistaken, belief in the existence of a state of facts will operate to excuse conduct that would otherwise constitute an offence. The appellant was relevantly charged with one count of supplying a controlled drug to a child, being a person under the age of 18 years, contrary to s 14 of the Misuse of Drugs Act 2001 (Tas) ("the MD Act"). The complainant was 15 years old at the time of the alleged offence. However, the appellant claimed that he believed that the complainant was 20 years old and, on that basis, sought to rely on the excuse of honest and reasonable mistake in respect of the complainant's age. The trial judge ruled that the excuse was not available to the appellant because, even if his belief that the complainant was an adult had been true, his conduct still would have constituted an offence, namely, the offence of supplying a controlled drug to another person contrary to s 26 of the MD Act. The trial judge directed the jury accordingly. The jury returned a guilty verdict. An appeal to the Court of Criminal Appeal was dismissed. Section 14 of the Code relevantly provided that the question whether criminal responsibility is entailed by an act done under an honest and reasonable, but mistaken, belief in the existence of any state of facts the existence of which would excuse such act, is a question of law, to be determined on the construction of the statute constituting the offence. Section 8 of the Criminal Code Act 1924 (Tas) preserved the operation of common law justifications, excuses and defences except insofar as they were altered by, or inconsistent with, the Code. The High Court held that the effect of s 14 of the Code was not to lay down a substantive rule of law. Rather, its effect, when read with s 8 of the Criminal Code Act, was to regulate the application of the principle of honest and reasonable mistake of fact, which existed at common law, to the offence in s 14 of the MD Act. That common law principle operates to excuse conduct where the accused holds an honest and reasonable belief in a state of facts, which, if true, would make the act of the accused "innocent". The appellant did not dispute on appeal that his conduct would have constituted an offence against s 26 of the MD Act. However, the appellant advanced an interpretation of the common law principle that would require only that his conduct be innocent of the particular offence charged. The High Court rejected that submission. Because the appellant's mistaken belief as to the complainant's age, if true, would not have rendered his act "innocent" within the operation of the MD Act, the common law excuse was not available. The trial judge was correct not to leave the excuse to the jury.
+HIGH COURT OF AUSTRALIA 14 October 2020 [2020] HCA 35 Today, the High Court, by majority, dismissed an appeal from the Full Court of the Family Court of Australia ("the Full Court"). The appeal concerned whether the Full Court erred by upholding a property settlement order ("PSO") under s 79(1) of the Family Law Act 1975 (Cth) ("the Act") and refusing to exercise its discretion to receive further evidence on appeal. More than two years before their marriage, the respondent husband made a gift to the appellant wife of a ten per cent interest in a residential dwelling ("the property"). Around eight months later, while in hospital due to a suspected heart attack and under pressure from the appellant, the respondent signed a transfer of land that gave her a further 40 per cent interest in the property. After the parties were registered as joint tenants, they executed a deed of gift ("the deed") which provided that, in the event the respondent survived the appellant while they remained joint tenants, he would pay approximately one half of the value of the property to her siblings. In August 2016 the parties married; 23 days later they separated. In November 2016, the respondent commenced proceedings seeking a PSO to transfer the appellant's interest in the property to him. The appellant chose not to participate in the trial, which proceeded as an undefended hearing. The primary judge found that while the appellant had received her initial ten per cent interest as a gift, she had "badgered" the respondent to give her the other 40 per cent, with the consequence that the further interest could not be seen in the same light as the initial gift. His Honour determined that the lack of fulfilment of the parties' expectations, that theirs would be a lasting relationship and that the property would be the place they shared their lives, made it just and equitable to make a PSO. Observing that this was a short marriage and that the appellant's financial and non-financial contributions to the acquisition, conservation and improvement of the property of the marriage were modest, his Honour made orders, relevantly: severing the joint tenancy of the property; requiring the appellant to transfer her interest in the property to the respondent; and requiring the respondent to pay the appellant $100,000. Before the Full Court, the appellant contended the primary judge erred in failing to identify the existing legal interests of the parties, as required by s 79(1), by erroneously treating the transfer of the further 40 per cent interest as vitiated by pressure, and sought to adduce further evidence largely focussed on the circumstances in which she obtained that interest. The Full Court stated that none of this evidence, which the appellant had deliberately refrained from filing before trial, would have produced a different result and that it was not in the interests of justice to receive it on appeal. Their Honours upheld the determination that it was just and equitable to make the PSO. Following a grant of special leave to appeal, a majority of the High Court agreed that the Full Court was right not to receive the appellant's further evidence and noted that, on the hearing, the appellant acknowledged that the primary judge accepted the parties were joint tenants. The appellant argued that the deed, which she contended contemplated a payment to her in the event of separation or divorce, was a material consideration that the primary judge failed to take into account. The majority stated the appellant's argument was premised on a misconstruction of the deed, and held that her broader contention – that it was not open to the primary judge, in exercising the wide discretion conferred by s 79(1) of the Act, to be satisfied in this singular case that it was just and equitable to make a PSO or, if it was, it was not open to find that the appellant's financial contribution to the acquisition of the property was no greater than ten percent – should not be accepted. That conclusion was reinforced by the fact that the appellant had sought to impugn the primary judgment for its failure to respond to arguments that she deliberately chose not to present at first instance.
+HIGH COURT OF AUSTRALIA 21 April 2005 THELMA JEAN THOMPSON v WOOLWORTHS (QUEENSLAND) PTY LIMITED The High Court of Australia today upheld a judgment in favour of an injured delivery driver but ordered that her award of damages be reduced by a third on account of her contributory negligence. In August 1999, Ms Thompson injured her back while moving industrial waste bins to deliver bread to the Woolworths supermarket in Stanthorpe. She had already hurt her back in a work- related incident a week or two earlier. Ms Thompson and her husband conducted a bread delivery service around Stanthorpe under a contract with Cobbity Farm Bakeries. She made daily early- morning deliveries to Woolworths, at a loading dock where a storeman checked goods in. Sometimes the storeman was away from the dock and had to be summoned by a buzzer, but drivers at times had to wait for up to 15 minutes for him to return. Industrial waste bins were frequently left in front of the loading dock by garbage collectors rather than returned to their designated space. Instead of waiting for supermarket employees to shift them, drivers, including Ms Thompson, a small woman, moved them themselves. Her husband often deviated from his own rounds to help her unload and he would shift the bins if they were still in the way. Ms Thompson was moving the bins herself on the day in question when she hurt her back. Her husband arrived and moved the bins and they unloaded the bread on to the dock. In the Queensland District Court, Ms Thompson sued Woolworths for damages for negligence, arguing that Woolworths exhibited a systemic failure to exercise reasonable care for her safety. An expert witness suggested Woolworths should either have eliminated the problem by providing alternative truck access through a car park or introduced procedural controls to ensure that its employees relocated the empty bins. Judge Nicholas Samios held that moving the bins was the responsibility of Woolworths rather than the drivers and that employees were aware that moving the bins was risky for someone of Ms Thompson’s size and strength. She was awarded damages of $157,991.89. The Queensland Court of Appeal, by majority, allowed an appeal. The dissenting judge, Justice Philip McMurdo, would have upheld the finding of negligence but reduced the damages by one-third for contributory negligence. Ms Thompson appealed to the High Court. The Court unanimously allowed the appeal, upheld Justice McMurdo’s judgment, and ordered that damages be reduced to $105,327.92. The Court held that since Ms Thompson was required to conform to a delivery system established by Woolworths, Woolworths’ obligation to exercise reasonable care for the safety of people who came on to its premises extended to ensuring that its system did not expose people making deliveries to unreasonable risk of injury. Contributory negligence arose through Ms Thompson’s awareness of the risk of moving the bins herself, especially when she knew that she had already injured her back.
+HIGH COURT OF AUSTRALIA Public Information Officer 27 March 2008 BETFAIR PTY LTD AND MATTHEW EDWARD ERCEG v STATE OF WESTERN AUSTRALIA Western Australian legislation outlawing the operation of betting exchanges was unconstitutional because it imposed protectionist burdens on interstate trade and therefore contravened section 92 of the Constitution, the High Court of Australia held today. Since January 2006 Betfair has held a licence under Tasmanian law to operate a betting exchange, by which bets may be laid on a horse or a team losing as well as winning. Customers from all over Australia can place bets by telephone or internet. Betfair matches bets from customers with opposing bets from other customers. Between 28 August 2006 and 24 January 2007, Mr Erceg, who lived in WA, used the internet to place bets with Betfair on horse and greyhound races and other sporting events in WA and elsewhere. Provisions of WA’s Betting and Racing Legislation Amendment Act, which came into effect on 29 January 2007, made betting with a betting exchange an offence. In all other States, Betfair was authorised to conduct its operations by its being licensed in one State (Tasmania). Betfair and Mr Erceg, with the support of Tasmania, began proceedings in the High Court to challenge the validity of the WA amendments, which they claimed were contrary to section 92 of the Constitution which provides that trade, commerce and intercourse among the States shall be absolutely free. In particular, Betfair and Mr Erceg challenged two provisions introduced into the Betting Control Act. Section 24(1aa) stated that a person who bets through a betting exchange commits an offence attracting a penalty of $10,000 or two years’ imprisonment or both. Section 27D(1) provided that publishing or making available a WA race field without approval attracted a fine of $5000. As at 26 October 2007, of the 115 applications to use WA race fields, 110 had been approved, four awaited determination, and only one – Betfair – had been refused. The Court unanimously upheld the challenge to the validity of the legislation. It held that section 24(1aa) was invalid to the extent that it applied to a person who made or accepted offers to bet through the use of Betfair’s betting exchange by telephone or internet between WA and Betfair’s Hobart premises. Section 27D(1) was invalid to the extent that it would apply to Betfair’s publishing or making available WA race fields by telephone or internet between Tasmania and another State. The Court held that the two sections contravened section 92 of the Constitution as they imposed discriminatory and protectionist burdens on interstate trade and were inconsistent with the absolute freedom of interstate trade and commerce guaranteed by that provision.
\ No newline at end of file