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+HIGH COURT OF AUSTRALIA 27 May 2004 COMMISSIONER OF TAXATION v TRUDY AMANDA HART AND RICHARD MERALLES HART Splitting a loan in two did not permit a tax deduction for compounding interest on the part used to pay off an investment property, the High Court of Australia held today. It unanimously allowed the Tax Commissioner’s appeal and held that anti-avoidance provisions of Part IVA of the Income Tax Assessment Act enabled the disallowance of the Harts’ additional tax benefit. In 1996 Mr and Mrs Hart borrowed money to buy a house in Canberra and to pay off a mortgage on their existing home near Queanbeyan to keep it as an investment property. They obtained finance through a mortgage broker, Austral Mortgage, which promoted a loan arrangement called a wealth optimiser, designed to maximise tax benefits. The loan was $298,000, with $202,888 to buy the new house and $95,112 to discharge the mortgage on the old house which was then let. All repayments went to the first part of the loan, which the Harts paid off faster than they otherwise would. Compound interest accordingly accrued on the second part. The Harts claimed deductions for the unpaid interest in 1997 and 1998 but in 1999 the Tax Commissioner issued amended assessments for 1997 and 1998 disallowing the deductions for the interest which would not have accrued had the monthly repayments been spread between the two loan accounts. When the Commissioner rejected the Harts’ objections the Harts appealed to the Federal Court. The Court held that Part IVA applied to disallow the deductions. The Harts successfully appealed to the Full Court of the Federal Court, which held that Part IVA did not apply. The Commissioner then appealed to the High Court. He argued that the matters required by section 177D to be considered in determining whether someone had entered into a scheme to obtain a disallowable tax benefit led to the conclusion that split loans were a tax-avoidance scheme prohibited under Part IVA. The High Court held that this was such a scheme. But for the wealth optimiser structure, the Harts would have borrowed on the basis that they would have made monthly repayments of principal and interest so that interest would have been spread over the total loan in the same proportion that the money was used to buy the new home and to refinance the old house. The structure depended upon tax benefits generated by arrangements between the borrowers and the lender. The Court held that the dominant purpose of entering into what was identified as the scheme was not the borrowing of money to buy a new home and refinance what was to become a rental property. The Court held that consideration of the eight criteria in section 177D supported the Commissioner’s conclusion that the dominant purpose of the Harts entering into the scheme was to obtain a tax benefit. The Commissioner had agreed to pay the Harts’ costs in the High Court whatever the outcome.
+HIGH COURT OF AUSTRALIA 14 March 2013 YATES v THE QUEEN [2013] HCA 8 Today the High Court allowed an appeal by a man with an intellectual disability from a decision of the Court of Criminal Appeal of the Supreme Court of Western Australia which upheld an order that he be detained in prison indefinitely. In March 1987, the applicant was convicted of one count of aggravated sexual assault and one count of deprivation of liberty. He was sentenced to a maximum of seven years' imprisonment for those offences. The sentencing judge made an order under s 662 of the Criminal Code (WA) directing that on the expiration of the term of his imprisonment the applicant should be detained "during the Governor's pleasure in a prison". The applicant's term of imprisonment expired in June 1993. He has remained in prison since that date pursuant to the s 662 order and has been in prison for six years longer than the maximum sentence that could have been imposed for the offence of aggravated sexual assault. In July 1987, a majority of the Court of Criminal Appeal dismissed an appeal from the making of the s 662 order, but reduced the maximum sentence to six years and three months to account for a period of pre-sentence custody. On 20 June 2012, the applicant sought special leave to appeal to the High Court from the Court of Criminal Appeal's decision. The High Court unanimously allowed the appeal. The Court held that the evidence before the sentencing judge was not capable of supporting the making of an order for the applicant's indefinite detention and that the interests of justice required that leave to appeal be granted out of time.
+HIGH COURT OF AUSTRALIA 26 May 2004 INSURANCE COMMISSION OF WESTERN AUSTRALIA v CONTAINER HANDLERS PTY LTD, UNION DES ASSURANCES DE PARIS AND ASHLEY ROBERT SUTTON The High Court of Australia today held that a third-party vehicle insurance policy issued under West Australian law did not cover injuries caused while undertaking urgent roadside repairs. In March 1998 Mr Sutton, then aged 23, was travelling in a prime mover driven by Jason Reibel. He was a crane operator for Brambles Australia Ltd. After leaving a crane at the Nifty Strikes copper mine Mr Sutton was being transported back to Port Hedland when the injury occurred. During the journey, smoke was seen coming from a rear wheel hub of the prime mover’s low loader. Mr Reibel set out to remove both wheels on that axle and to chain it up. While Mr Sutton was assisting, the axle slipped and jammed his left hand against the chassis, injuring it badly. Mr Sutton sued Container Handlers, Mr Reibel’s employer and owner of the prime mover, in the WA District Court which awarded him $926,043.36 and found that the company should have equipped its vehicles to carry out emergency roadside repairs to wheels and axles. Container Handlers also brought third-party claims against the Insurance Commission and Union des Assurances de Paris (UAP) under policies issued by those entities. Both claims failed at first instance but the Full Court of the WA Supreme Court upheld the claim against the Insurance Commission. The Insurance Commission appealed to the High Court against the Full Court’s orders to indemnify Container Handlers for the damages payable to Mr Sutton. It joined UAP and Mr Sutton as the second and third respondents but at the conclusion of argument in the High Court it discontinued its appeal against Mr Sutton. The issue in the appeal was the extent to which the Insurance Commission’s insurance policies for the prime mover and low loader applied to Mr Sutton’s injury. Under the Motor Vehicle (Third Party) Insurance Act, the policies would only apply if the injury was “directly caused by, or by the driving of, the motor vehicle”. The High Court held that the policies did not apply in the circumstances in which Mr Sutton received his injury. Mr Sutton’s injury was not directly caused by the driving of the prime mover and low loader and was not caused by the vehicles running out of control. Mr Reibel was not driving the prime mover and low loader but was preparing them for driving. A mere connection between the injury and the vehicles was insufficient for a successful claim against the Insurance Commission. To come within the indemnity given by a policy, a causal connection between the injury and the driving of a motor vehicle was required. The Court unanimously allowed the Commission’s appeal.
+HIGH COURT OF AUSTRALIA 3 December 2008 EDWIN PHILIP KENNON AND IAN CHARLES FOWELL SPRY (in their capacity as trustees of the Catharine Spry Trust, the Caroline Spry Trust and the Penelope Spry Trust) AND ELIZABETH ANNE FOWELL SPRY AND IAN CHARLES FOWELL SPRY (in their capacity as trustees of the Elizabeth Spry Trust) v HELEN MARIE SPRY, IAN CHARLES FOWELL SPRY, ELIZABETH ANNE FOWELL SPRY, CATHARINE SARAH FOWELL SPRY, CAROLINE JANE FOWELL SPRY AND PENELOPE SARAH FOWELL SPRY IAN CHARLES FOWELL SPRY v EDWIN PHILIP KENNON AND IAN CHARLES FOWELL SPRY (in their capacity as trustees of the Catharine Spry Trust, the Caroline Spry Trust and the Penelope Spry Trust), ELIZABETH ANNE FOWELL SPRY AND IAN CHARLES FOWELL SPRY (in their capacity as trustees of the Elizabeth Spry Trust), HELEN MARIE SPRY, ELIZABETH ANNE FOWELL SPRY, CATHARINE SARAH FOWELL SPRY, CAROLINE JANE FOWELL SPRY AND PENELOPE SARAH FOWELL SPRY The assets of a family trust established before marriage could be taken into account in property settlement orders under the Family Law Act, the High Court of Australia held today. Dr Ian Spry, a retired Victorian barrister, married Helen Spry in 1978. They had four daughters, now in their twenties. In 1968, Dr Spry created the ICF Spry Trust with himself and his siblings, their spouses and their children as beneficiaries. He was the sole trustee. In 1983, he excluded himself as a beneficiary for land tax reasons. In 1998, when his marriage was in difficulty, Dr Spry further varied the trust to exclude himself and his wife as capital beneficiaries. The Sprys separated in October 2001. In January 2002, Dr Spry divided the income and capital of the trust between four trusts he set up for his daughters. Mrs Spry filed for divorce in the Federal Magistrates Court in December 2002. The divorce was finalised in February 2003. In April 2002, Mrs Spry applied to the Family Court for orders for property settlement and maintenance. In 2005, Justice Strickland ordered Dr Spry to pay Mrs Spry an amount determined by reference to the Judge’s assessment of the contributions to the couple’s assets and the assets Mrs Spry already held. Justice Strickland found that the steps taken with respect to the ICF Spry Trust in 1998 and 2002 were designed to keep property away from his wife and the Family Court. Under section 106B of the Act, he set aside the 1998 variation and the 2002 dispositions of assets. Dr Spry appealed. He and Edwin Kennon cross-appealed in their capacity as joint trustees of three daughters’ trusts. Dr Spry and his daughter Elizabeth cross-appealed in their capacity as joint trustees of the Elizabeth Spry Trust. The Full Court of the Family Court, by majority, dismissed the appeal and cross-appeals. Dr Spry and the joint trustees of the children’s trusts appealed to the High Court against both dismissals. The Court, by a 4-1 majority, dismissed the appeals and upheld Justice Strickland’s orders. The appellants were ordered to pay Mrs Spry’s costs. Dr Spry and the children argued that the assets of the trust were not part of the asset pool to be considered in making property orders. Three Justices held that without the 1998 variation and the 2002 dispositions, Mrs Spry would have had a right to due administration of the trust and to due consideration as a beneficiary. Dr Spry would have had a power to appoint to her the whole of the assets of the trust. The Court held that these rights were property of the parties to the marriage. It held that the Family Court could make orders in property settlement proceedings as if changes to property rights brought about by the divorce had not yet occurred. The High Court held that it was open to Justice Strickland to make the orders he did. One Justice supported Justice Strickland’s orders by reference to section 85A of the Act providing for variation of post-nuptial property settlements.
+HIGH COURT OF AUSTRALIA 5 December 2012 COMMISSIONER OF TAXATION v CONSOLIDATED MEDIA HOLDINGS LTD [2012] HCA 55 Today the High Court unanimously allowed an appeal from a decision of the Full Court of the Federal Court of Australia and upheld an assessment by the Commissioner of Taxation ("the Commissioner") that Publishing and Broadcasting Ltd ("PBL") (later called "Consolidated Media Holdings Ltd") made a capital gain when shares it held in Crown Ltd ("Crown") were bought back by Crown in an off-market share buy-back. PBL owned all of the ordinary shares in Crown. On 28 June 2002, PBL and Crown entered into an agreement for PBL to sell some of its shares back to Crown for $1 billion. Crown recorded a debit of $1 billion in a new account labelled "Share Buy-Back Reserve Account". It also maintained a "Shareholders Equity Account", which had a credit balance and in which no entry was recorded in relation to the share buy-back. In an off-market share buy-back, the difference between the purchase price and any part of the purchase price that is debited against amounts standing to the credit of the company's "share capital account" is treated for income taxation purposes as a dividend paid by the company. At the relevant time, "share capital account" was defined in s 6D of the Income Tax Assessment Act 1936 (Cth) ("the ITAA 1936"). The Commissioner took the view that the $1 billion purchase price was debited against amounts standing to the credit of Crown's "share capital account", so that no part of the purchase price was to be taken to be a dividend. The Commissioner therefore assessed PBL to have made a capital gain on the sale of its Crown shares. PBL objected to the Commissioner's assessment and the Commissioner disallowed the objection. PBL appealed to the Federal Court against the disallowance of its objection. The primary judge dismissed the appeal on the basis that Crown's "share capital account" comprised both its Shareholders Equity Account and its Share Buy-Back Reserve Account. The Full Court of the Federal Court allowed an appeal, holding that Crown's "share capital account" did not include its Share Buy-Back Reserve Account. The High Court held that an account that is a record of a transaction into which a company has entered in relation to its share capital, or that is a record of a company's financial position in relation to its share capital, is a "share capital account" within the meaning of s 6D(1) of the ITAA 1936. It also held that s 6D(2) required all share capital accounts to be treated as a combined "share capital account". Accordingly, the $1 billion consideration PBL received under the share buy-back agreement was debited against amounts standing to the credit of Crown's "share capital account" and the Commissioner was correct to have assessed PBL as having made a capital gain.
+HIGH COURT OF AUSTRALIA 16 December 2021 MALCOLM LAURENCE ORREAL v THE QUEEN [2021] HCA 44 Today, the High Court unanimously allowed an appeal from a decision of the Court of Appeal of the Supreme Court of Queensland. The appeal concerned whether, having found a miscarriage of justice, the Court of Appeal was correct to dismiss the appeal against conviction pursuant to s 668E(1A) of the Criminal Code (Qld) because "no substantial miscarriage of justice [had] actually occurred". The appellant was convicted by a jury of three counts of unlawfully and indecently dealing with a child under the age of 16 years and two counts of rape. Evidence was admitted at trial ("the impugned evidence") with the appellant's consent, the substance of which was that both the complainant and the appellant had tested positive for the presence of the herpes simplex virus type 1 ("HSV-1"). The jury were told that HSV-1 is commonly found as a genital infection and could have been transmitted to the complainant other than through the charged conduct. The Court of Appeal found that the impugned evidence was irrelevant and inadmissible, and there had been a miscarriage of justice because the trial judge failed to direct the jury that they were obliged to disregard the impugned evidence in its entirety. However, the majority of the Court of Appeal nevertheless dismissed the appeal pursuant to s 668E(1A) because it concluded that the impugned evidence could not have impacted on the credibility of the complainant or the reliability of her evidence. The High Court unanimously found that the Court of Appeal was wrong to dismiss the appeal. The High Court rejected the contention that the impugned evidence was neutral or incapable of affecting the jury's assessment of guilt. The prosecution's case at trial turned on issues of contested credibility and the prejudicial nature of the impugned evidence meant that it may well have been misused by the jury to support the complainant's evidence. The High Court found that, unless properly instructed, the jury may have reasoned that it was no coincidence that both the appellant and the complainant tested positive for HSV-1, which may have pointed to the complainant having contracted the virus from the appellant. Therefore, the Court of Appeal was unable to assess whether guilt was proved beyond reasonable doubt by the evidence properly admitted at trial. Accordingly, the High Court allowed the appeal, set aside the appellant's convictions and ordered a new trial be had.
+HIGH COURT OF AUSTRALIA 2 December 2015 [2015] HCA 44 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 a former officer of the International Bank for Reconstruction and Development ("the IBRD") was not entitled to an exemption from taxation in respect of monthly pension payments he had received. Section 6(1)(d)(i) of the International Organisations (Privileges and Immunities) Act 1963 (Cth) ("the IOPI Act") and reg 8(1) of the Specialized Agencies (Privileges and Immunities) Regulations (Cth) ("the SAPI Regulations") confer upon a person who holds an office in an international organisation to which the IOPI Act applies an exemption from taxation on salaries and emoluments received from the organisation. The exemption is set out in Item 2 of Pt 1 of the Fourth Schedule to the IOPI Act. The IBRD is an international organisation to which the IOPI Act applies. The appellant, Mr Macoun, a former sanitary engineer with the IBRD, received monthly pension payments from a Retirement Fund established under the IBRD's Staff Retirement Plan ("the SRP") in the 2009 and 2010 income years, when he no longer held an office in the IBRD. The respondent ("the Commissioner") included the monthly pension payments in Mr Macoun's assessable income for the 2009 and 2010 income years. Mr Macoun sought review of the Commissioner's decision in the Administrative Appeals Tribunal ("the AAT"). The AAT set aside the decision and substituted the decision that the monthly pension payments did not form part of Mr Macoun's assessable income and were exempt from Australian income tax. The Commissioner appealed to the Full Court of the Federal Court of Australia. The Full Court allowed the appeal, holding that reg 8(1) of the SAPI Regulations confined the privileges specified in Pt 1 of the Fourth Schedule to the IOPI Act to persons currently holding an office in an international organisation to which the IOPI Act applied. As Mr Macoun did not hold such an office in the IBRD in the 2009 and 2010 income years, the exemption from taxation was not available to him. By grant of special leave, Mr Macoun appealed to the High Court. The High Court unanimously held that Mr Macoun was not entitled to an exemption from taxation for the relevant part of his monthly pension payments because he had ceased to hold an office in the IBRD when he received them, and because he received them from the Retirement Fund established under the SRP rather than from the IBRD. The High Court also held that Mr Macoun's monthly pension payments did not fall within the phrase "salaries and emoluments" in Item 2 of Pt 1 of the Fourth Schedule to the IOPI Act, and that Australia's international obligations did not require Australia to exempt the monthly pension payments from taxation.
+HIGH COURT OF AUSTRALIA 14 December 2005 WAYNE EDWARD MANLEY v IAIN STEWART ALEXANDER A tow-truck driver had driven negligently when his attention was diverted for a couple of seconds by a drunk man lurching along the side of the road, the High Court of Australia held today. Mr Manley ran over Mr Alexander as Mr Alexander lay along the centre of Middleton Beach Road, Albany, Western Australia, at 4.15am on 7 October 2000. Mr Alexander and his housemate, Cameron Turner, were walking home after a night of heavy drinking when the accident happened. He said later he had drunk about 12 stubbies of beer. At the WA District Court trial of Mr Alexander’s claim for damages, Mr Manley gave the only account of what happened as Mr Alexander remembered nothing and Mr Turner had moved interstate and was not called as a witness. Mr Manley, then 24, said as he was driving home from a call-out he saw a man, understood to be Mr Turner, on the roadside. He kept his eye on Mr Turner and veered to the centre of the road as Mr Turner appeared about to walk on to the roadway. As he looked back at the road ahead he saw something on the road then felt the truck run over it. Mr Alexander, then 29, was lying parallel with the centre line and wearing dark clothing. He suffered serious injuries. Mr Manley admitted taking his eyes off the road for two or three seconds. Judge Denis O’Sullivan held that he was not negligent, as there was no evidence that Mr Manley was not keeping a proper lookout in the circumstances, and no evidence of excessive speed or of failing to handle the truck in a reasonable manner. Mr Alexander successfully appealed to the Full Court of the WA Supreme Court, which held that both men had been negligent. It held that it could be inferred that Mr Alexander was already on the roadway when Mr Manley saw Mr Turner beside the road. The Court held that having taken his eyes off the road for two to three seconds, Mr Manley had failed to take reasonable care in breach of his duty to other road users who might, however unexpectedly, happen to be on the road. The Court ordered that damages be assessed for Mr Alexander but reduced by 70 per cent for contributory negligence on his part. Mr Manley appealed to the High Court. He did not challenge the factual findings, but contended it was not open to the Full Court to conclude from those facts that he had failed to take reasonable care. Mr Alexander did not challenge the large discount the Full Court allowed for contributory negligence. The High Court, by a 3-2 majority, dismissed the appeal. It held that no error was shown in the Full Court’s reasoning and it was open to the Full Court to conclude that Mr Manley failed to exercise reasonable care. The Court held that driving with reasonable attention requires simultaneous attention to a number of different features of what may be in the vehicle’s path. While the possibility of someone lying on a roadway at 4am was remote, the reasonable care drivers must exercise requires that they control the speed and direction of the vehicle in such a way that they can take reasonable steps to react to such events.
+HIGH COURT OF AUSTRALIA Public Information Officer 15 November 2006 NBGM v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS A person could not remain a refugee under Australia’s protection once conditions in their former country had improved, the High Court of Australia held today. NBGM is a citizen of Afghanistan and a Shi’a Muslim of Hazara ethnicity. He arrived in Australia in October 1999 without a passport or visa and was granted a temporary protection visa in March 2000. His application for a permanent protection visa was refused. The Refugee Review Tribunal affirmed the decision in April 2004. It found that the Taliban had been removed from power in Afghanistan by November 2001 and no longer posed a threat to the civilian population as its targets were members of the government, security forces and international aid workers. The RRT found that the Taliban was unlikely to re-emerge as a viable political movement in the reasonably foreseeable future. It concluded that Article 1C(5) of the Refugees Convention applied to NBGM. This provides 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 held that, if Article 1C(5) was not applicable, section 36(3) of the Migration Act had the same effect and Australia had ceased to owe protection obligations to NBGM because of the changed circumstances in Afghanistan. The RRT also rejected claims that he feared persecution from other factions in Afghanistan as any discrimination against Hazara people fell short of persecution under the Convention and that the position of Shi’a Muslims was generally good. The Federal Court of Australia refused NBGM’s application to have the RRT decision quashed and held that it was open to the RRT to conclude that as at April 2004 NBGM did not have a well- founded fear of persecution if he returns to Afghanistan. After a three-member Full Court of the Federal Court had decided the appeal in QAAH of 2004 v Minister for Immigration and Multicultural Affairs, a differently constituted five-member Full Court heard NBGM’s appeal. In a 3-2 decision, the Full Court dismissed the appeal and NBGM then sought special leave to appeal to the High Court. The special leave application was heard at the same time as the Minister’s appeal against the QAAH decision as they raised similar issues. The High Court’s QAAH judgment is also handed down today and the NBGM judgment should be read in conjunction with it. The Court unanimously granted the application for special leave to appeal but, by a 4-1 majority, dismissed the appeal. The majority held section 36 of the Migration Act makes clear that a protection visa offers no promise or obligation to continue to afford protection or to grant residence in the event that circumstances change in the country from which the applicant fled.
+HIGH COURT OF AUSTRALIA 8 May 2013 DIRECTOR OF PUBLIC PROSECUTIONS (CTH) v KELLI ANNE KEATING [2013] HCA 20 Today the High Court unanimously held that a person could commit the offence of obtaining a financial advantage from a Commonwealth entity, contrary to s 135.2(1) of the Criminal Code (Cth) ("the Code"), by failing to comply with a Centrelink notice requiring that person to inform Centrelink of a change in circumstances. The High Court also unanimously rejected the proposition that a person could commit the offence by omitting to perform an act or acts that the person was not under a legal duty to perform at the time of the omission. On 7 October 2010, Ms Kelli Anne Keating was charged with three counts of obtaining a financial advantage contrary to s 135.2(1) of the Code. Section 135.2(1) 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. The Commonwealth Director of Public Prosecutions alleged that from 2007 to 2009 Ms Keating failed to advise the Department of changes to her income while in receipt of a social security payment. During this period, Centrelink had issued a number of notices to Ms Keating, under ss 67(2) and 68(2) of the Social Security (Administration) Act 1999 (Cth) ("the Administration Act"), requiring her to inform Centrelink of various matters including changes to her income. It was not agreed that Ms Keating received those notices. On 26 October 2011, the High Court handed down its decision in Director of Public Prosecutions (Cth) v Poniatowska (2011) 244 CLR 408. The Court held that for a person to breach s 135.2(1) by omitting to do something, the omission must be of an act that the person was under a legal duty to perform. On 4 August 2011, a new s 66A was inserted into the Administration Act. Section 66A(2) imposes a duty upon a recipient of a social security payment to inform the Department within 14 days of a change of circumstances which might affect the payment. Section 66A is taken to have commenced on 20 March 2000. On 14 December 2012, the case against Ms Keating pending in the Magistrates' Court of Victoria was removed into the High Court. The Court was asked to decide whether a person could commit an offence under s 135.2(1) of the Code either by failing to comply with the duty imposed by s 66A of the Administration Act at a time before the amendment received the Royal Assent, or by failing to comply with a notice issued by Centrelink under ss 67(2) and 68(2). The High Court unanimously held that a person could not breach s 135.2(1) of the Code by failing to comply with the duty imposed by s 66A of the Administration Act at a time after 20 March 2000 but before the date on which the amendment received the Royal Assent. The Court held that for an omission to constitute an offence under s 135.2(1), a person must have failed to do a thing that, at the time of the failure, the law required that person to do. The Court also held that an offence under s 135.2(1) was capable of being committed by a failure to comply with a notice issued by Centrelink under the Administration Act.
+HIGH COURT OF AUSTRALIA 8 June 2016 ROBINSON HELICOPTER COMPANY INCORPORATED v GRAHAM JAMES MCDERMOTT & ORS [2016] HCA 22 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 the majority of the Court of Appeal erred in overturning the primary judge's findings of fact concerning the cause of a helicopter crash. In May 2004, a helicopter manufactured by the appellant ("Robinson") crashed, resulting in the death of the pilot and the first respondent ("Mr McDermott") suffering serious injuries. The crash was caused by the failure of the helicopter's forward flex plate; one of the four bolts securing the flex plate ("Bolt 4") was incorrectly assembled and, when so assembled, was not tightened to the requisite degree ("the defect"). After reassembly, but before the crash, the flex plate had been subject to a number of routine inspections by pilots and engineers but the defect had not been detected. Mr McDermott, along with his wife and employer, brought proceedings against Robinson in the Supreme Court of Queensland in negligence and under the Trade Practices Act 1974 (Cth) ("the TPA"). The essential question at first instance and on appeal was whether the Maintenance Manual for the helicopter ("the Manual") provided an adequate inspection procedure for the detection of the defect. The primary judge dismissed Mr McDermott's claims, holding that the Manual provided adequate instructions to identify the defect. A majority of the Court of Appeal allowed Mr McDermott's appeal, holding that the Manual did not provide adequate instructions to detect the defect and, ultimately, that Robinson was liable either in negligence or under the TPA. In so doing the majority of the Court of Appeal came to a different conclusion from that reached by the primary judge regarding the likely appearance of Bolt 4 at the time of the relevant inspections. By grant of special leave, Robinson appealed to the High Court. The High Court unanimously allowed the appeal, holding that the primary judge's findings of fact accorded to the weight of lay and expert evidence and to the range of permissible inferences, and that the majority of the Court of Appeal should not have overturned them. Accordingly, the primary judge was right to hold that it was not shown that the contents of the Manual fell short of what was required to discharge Robinson's duty of care in the circumstances of this case. The High Court further held that, even if it were accepted that Robinson had breached its duty of care in the manner alleged by Mr McDermott, it could not be concluded that the breach of duty was causative of the crash.
+HIGH COURT OF AUSTRALIA 5 February 2020 KADIR v THE QUEEN; GRECH v THE QUEEN [2020] HCA 1 Today, the High Court unanimously allowed, in part, two appeals from the Court of Criminal Appeal of the Supreme Court of New South Wales. The appeals concerned the admissibility of improperly or illegally obtained evidence. Section 138 of the Evidence Act 1995 (NSW) relevantly provides that evidence obtained improperly or in contravention of an Australian law, or in consequence of such an impropriety or contravention, is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained. The appellants, Mr Kadir and Ms Grech, are jointly charged on an indictment with acts of serious animal cruelty. The charges relate to the alleged use of rabbits as "live bait" in training racing greyhounds. At the trial, the respondent proposes to tender seven video-recordings depicting activities at Mr Kadir's property which were covertly recorded by Animals Australia in contravention of s 8(1) of the Surveillance Devices Act 2007 (NSW) ("the surveillance evidence"). It also proposes to tender material obtained as a result of the execution of a search warrant by officers of the Royal Society for the Prevention of Cruelty to Animals ("RSPCA") ("the searc h warrant evidence") and certain alleged admissions made by Mr Kadir ("the admissions"). Each of the three categories of evidence was obtained either in contravention of an Australian law, or in consequence of such a contravention. On the first day of the trial in the District Court of New South Wales, the appellants applied to have the surveillance evidence, the search warrant evidence, and, in Mr Kadir's case, the admissions, excluded pursuant to s 138 of the Evidence Act. Following a voir dire hearing, the trial judge excluded each of the three categories of evidence. The respondent appealed to the Court of Criminal Appeal, contending, among other grounds, that the trial judge failed to properly assess the difficulty of obtaining the evidence without contravening an Australian law, being a relevant factor under s 138(3)(h). The Court of Criminal Appeal found that the difficulty of lawfully obtaining the evidence "tip[ped] the balance" in favour of admitting the first recording of the surveillance evidence, but that once the first recording was obtained, Animals Australia might have approached the authorities with a view to further evidence being obtained by lawful means, with the result that s 138(1) required exclusion of the balance of the recordings. The Court of Criminal Appeal also held that the trial judge erred in his analysis of the admissibility of the search warrant evidence and the admissions in failing to take into account material differences in the "way" these categories of evidence were obtained as compared to the surveillance evidence, and determined that the search warrant evidence and the admissions were also admissible. By grant of special leave, the appellants appealed to the High Court. The Court held that the basis upon which the parties and the courts below approached s 138(3)(h) was misconceived: demonstration of the difficulty of obtaining the evidence lawfully did not weigh in favour of admitting evidence obtained in deliberate defiance of the law. The trial judge's conclusion that all of the surveillance evidence should be excluded was correct. The High Court proceeded to re- determine the admissibility of the search warrant evidence and the admissions according to law and found that the Court of Criminal Appeal was correct to conclude that the search warrant evidence and the admissions were admissible. The causal link between the contravention and the admissions was tenuous, which affected the weighing of the public interest in not giving curial approval or encouragement to unlawful conduct. In the result, the appeals were allowed in part, with the effect that all of the surveillance evidence is inadmissible in the appellants' trial, but the search warrant evidence and the admissions are admissible.
+HIGH COURT OF AUSTRALIA NEWCREST MINING LIMITED v THORNTON [2012] HCA 60 13 December 2012 Today a majority of the HIGH COURT OF AUSTRALIA held that s 7(1)(b) of the Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 (WA) ("the Act"), which provides that a person bringing more than one action in respect of damage suffered as the result of a tort cannot recover more than "the amount of the damages awarded by the judgment first given", does not apply to a consent judgment entered to give effect to an agreement to settle a proceeding. In 2004 the respondent injured his knee in the course of his employment at a mine site in Western Australia. The respondent claimed workers' compensation payments and common law damages from his employer. The claim was settled in 2007 by way of a consent judgment entered in the District Court of Western Australia, with no admission as to liability in respect of any cause of action. In 2008, the respondent commenced proceedings for negligence against the appellant, which owned and operated the mine site where the respondent had been injured. The appellant invoked s 7(1)(b) of the Act. A Deputy Registrar of the District Court dismissed the respondent's action, and a Judge of that Court dismissed an appeal from that decision. The Court of Appeal allowed the respondent's appeal. The appellant appealed, by special leave, to the High Court. A majority of the High Court dismissed the appeal, holding that the consent judgment did not fall within the terms of s 7(1)(b) because there had been no judicial determination of liability and no consequent award of damages. Instead, the consent judgment was a means of giving effect to a settlement agreement between the parties. The majority observed that excluding consent orders from the operation of s 7(1)(b) was not inconsistent with the intended purpose of the provision.
+HIGH COURT OF AUSTRALIA 13 February 2019 WILLIAMS v WRECK BAY ABORIGINAL COMMUNITY COUNCIL & ANOR [2019] HCA 4 Today the High Court, by majority, allowed an appeal from a decision of the Court of Appeal of the Supreme Court of the Australian Capital Territory. The appeal concerned the extent to which the Residential Tenancies Act 1997 (ACT) applies to leases granted pursuant to the Aboriginal Land Grant (Jervis Bay Territory) Act 1986 (Cth) ("the Land Grant Act") over certain land, known as "Aboriginal Land", within the Jervis Bay Territory ("the JBT"). The Wreck Bay Aboriginal Community Council ("the Council") is empowered under the Land Grant Act to grant leases over Aboriginal Land within the JBT. Section 46 of the Land Grant Act provides that "[t]his Act does not affect the application to Aboriginal Land of a law in force in the [JBT] to the extent that that law is capable of operating concurrently with this Act". By statute, laws in force in the ACT apply in the JBT as if the JBT formed part of the ACT. The Residential Tenancies Act provides that all leases to which it applies include "standard residential tenancy terms", including a term requiring the lessor to "maintain the premises in a reasonable state of repair having regard to their condition at the commencement of the [lease]". Subject to an exception, the Residential Tenancies Act renders void terms of a lease that are inconsistent with the standard residential tenancy terms. The appellant has resided in premises leased from the Council since 1989. A dispute arose between the Council and the appellant as to whether the Council was obliged, under the Residential Tenancies Act, to keep the premises in a reasonable state of repair. Ultimately, a special case was filed in the Supreme Court, asking whether, and to what extent, the Residential Tenancies Act is a law which is not capable of operating concurrently with the Land Grant Act within the meaning of s 46 of the Land Grant Act. The Supreme Court held that the Residential Tenancies Act is a law capable of operating concurrently with the Land Grant Act. The Court of Appeal held that the Residential Tenancies Act is not capable of operating concurrently with the Land Grant Act insofar as it requires a lease granted by the Council to contain the standard residential tenancy terms and renders void terms of a lease granted by the Council that are inconsistent with the standard residential tenancy terms. By grant of special leave, the appellant appealed to the High Court. A majority of the Court held that the provisions of the Land Grant Act considered together do not purport to provide a complete statement of the law governing the rights and obligations of parties to leases granted by the Council so as to exclude the application of the law generally applicable to leases within the JBT. The majority held that the Residential Tenancies Act does not apply to Aboriginal Land for the purposes of s 46 of the Land Grant Act only to the extent that certain provisions of the Residential Tenancies Act would prohibit subletting by a tenant of the Council.
+HIGH COURT OF AUSTRALIA 13 June 2018 BORIS ROZENBLIT v MICHAEL VAINER & ANOR [2018] HCA 23 Today the High Court unanimously allowed an appeal from a decision of the Court of Appeal of the Supreme Court of Victoria concerning an order for a stay of proceedings. Mr Rozenblit brought proceedings in the Supreme Court of Victoria in which he alleged that the first respondent had fraudulently, and without his knowledge or consent, transferred shares owned by him to the second respondent. By three separate summonses, Mr Rozenblit sought leave to amend his statement of claim. Leave was twice refused and the primary judge ordered that Mr Rozenblit pay the costs of the respondent and that those costs be taxed immediately. Mr Rozenblit was unable to meet the costs orders due to his limited means. Mr Rozenblit lives with his wife in government housing. Neither he nor his wife has any appreciable assets. Their sole income is social security payments from Centrelink and a small pension from Russia. On the third occasion that Mr Rozenblit sought leave to amend his statement of claim, the respondents sought to have the proceeding stayed under r 63.03(3)(a) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic). Rule 63.03(3)(a) empowers the Court to stay a proceeding where the Court has made an interlocutory order for costs to be taxed immediately, and those costs have been fixed, but remain unpaid by the plaintiff. The primary judge granted Mr Rozenblit's third application for leave to amend on condition that the proceedings be stayed until he had paid the interlocutory costs orders. The primary judge accepted that Mr Rozenblit was so impecunious that the stay would effectively terminate the proceeding and prevent him from litigating his claims. Mr Rozenblit appealed to a single judge of the Supreme Court of Victoria and later to the Court of Appeal of the Supreme Court of Victoria. Each appeal was dismissed. By grant of special leave, Mr Rozenblit appealed to the High Court. The Court unanimously allowed the appeal, holding that the primary judge's discretion miscarried. The serious consequences of making an order under r 63.03(3) against an impecunious plaintiff mean that a stay should be granted where it is the only practical way to ensure justice between the parties. The Court held that the primary judge could not be satisfied that the stay was the only practical way to ensure justice between the parties. At the time of the third application, Mr Rozenblit had a genuine claim, properly pleaded. He had not engaged in conduct sufficiently serious in its nature and effect to warrant the proceedings being brought to an end. Therefore, the Court allowed the appeal.
+HIGH COURT OF AUSTRALIA 20 July 2016 [2016] HCA 27 Today the High Court dismissed an appeal from the Court of Appeal of the Supreme Court of Queensland arising out of the appellant's convictions of attempted murder and unlawful wounding with intent to maim. A majority of the High Court held that the trial judge had not erred in directions given to the jury regarding self-defence. On 28 April 2012, the appellant was involved in a confrontation with another man, Jacques Teamo ("Teamo"), at a shopping centre on the Gold Coast. The men were members of rival motorcycle clubs. In the course of the confrontation, Teamo produced a knife and the appellant produced a gun and fired two shots. One of the bullets struck Teamo in the arm and the other bullet struck and injured an innocent bystander. The appellant was charged with, relevantly, attempted murder and unlawful wounding with intent to maim. At trial, the appellant raised the defence of self-defence. Under the applicable provisions of the Criminal Code (Q), the person who is claiming the benefit of the defence must have been "assaulted". A threat by one person to apply force to another can constitute an assault. The defence is not available if the threatened application of force was done with the consent of the person threatened. During his closing address to the jury, the prosecutor suggested that Teamo's production of the knife could be considered part of a "consensual confrontation" between Teamo and the appellant and, therefore, was not an assault. Counsel for the appellant did not address this submission in his closing address. In summing up to the jury, the trial judge gave the jury a list of 10 questions setting out the sequence of matters to be found and, in redirections, gave the jury detailed written directions on self-defence. The trial judge referred orally to the prosecutor's closing address and his reference to the term "consensual confrontation" but the trial judge described this as a matter of "interpretation, construction and argument". No redirection was sought on this point. The appellant was convicted of both offences. The appellant appealed to the Court of Appeal on the basis that the prosecutor's reference to a "consensual confrontation" was wrong and misleading and that the trial judge had erred in failing to deal properly with that submission. In particular, it was argued that the trial judge should have directed the jury that the alleged assault to which the appellant made self-defence was the production of the knife and that there was no evidence of consent on the part of the appellant to that assault. The Court of Appeal dismissed the appeal, holding that the trial judge had correctly directed the jury. By grant of special leave, the appellant appealed to the High Court. The High Court held, by majority, that there was no misdirection by the trial judge. The relevant legal tests were put before the jury. In light of what were considered to be the real issues in the trial, no further elaboration on the issue of consent was required.
+HIGH COURT OF AUSTRALIA Manager, Public Information 13 October 2009 RONALD JOHN BOFINGER & ANOR v KINGSWAY GROUP LIMITED FORMERLY WILLIS & BOWRING MORTGAGE INVESTMENTS LIMITED (ACN 089 265 127) & ORS [2009] HCA 44 Today the High Court of Australia held that where guarantors of a secured loan have contributed to the repayment of that loan they may recoup that contribution from the borrower out of the remaining surplus securities before the surplus is used to repay a second loan that is secured over the same property, even though the guarantors have also guaranteed the second loan. The appellants, Mr and Mrs Bofinger, were guarantors of three separate and sequential loans to a developer. Those loans were secured by first, second and third mortgages over the developer's properties. The guarantees were also secured by first, second and third mortgages over the guarantors' properties. The guarantors then sold their properties, the proceeds from which were used to repay some of the first loan. The three mortgages over the guarantors' properties were discharged at this time. The first lender then sold some of the developer's properties in order to repay the remainder of the first loan. The surplus funds and remaining properties were then made available to the second lender. The guarantors claimed to be subrogated to the rights of the first lender over the surplus proceeds and unsold properties in priority over the second lender. They claimed that they should have been able to recoup what they had paid to the first lender out of the surplus funds and remaining properties before the surplus and properties could be used by the second lender to repay the second loan. The Supreme Court of New South Wales held that the guarantors could not recoup what they had repaid of the first loan from the securities ahead of the second lender. On 3 December 2008, the appellants' appeal to the Court of Appeal of the Supreme Court of New South Wales was dismissed. The High Court granted the guarantors special leave to appeal. In a unanimous decision the High Court held that the guarantors were entitled to recoupment from the surplus funds and remaining properties before the second lender, notwithstanding that they had guaranteed the second loan. The Court held that once the first loan had been repaid, the first lender was obliged in good conscience to provide the surplus funds and remaining properties to the guarantors. By transferring the surplus funds and remaining properties to the second mortgagee the first mortgagee had breached this obligation. The High Court allowed the guarantors’ appeal.
+HIGH COURT OF AUSTRALIA 3 August 2011 CUMERLONG HOLDINGS PTY LTD V DALCROSS PROPERTIES PTY LTD [2011] HCA 27 The High Court today allowed an appeal by Cumerlong Holdings Pty Limited ("the appellant") from a decision of the Court of Appeal of the Supreme Court of New South Wales, which had upheld the decision of Smart AJ of the Supreme Court dismissing the appellant's suit. The appellant had sought declaratory and injunctive relief to enforce a restrictive covenant which burdened land owned by Australasian Conference Association Ltd ("the third respondent") for the benefit of land owned by the appellant. In resisting the suit, the third respondent and the previous owner of the burdened land (the first respondent) relied upon cl 68(2) of the Ku-ring-gai Planning Scheme Ordinance ("the Ordinance"), as amended by the Ku-ring-gai Local Environment Plan No 194 ("LEP 194"), which purported to suspend the operation of the restrictive covenant. However, the High Court (Gummow ACJ, Hayne, Heydon, Crennan and Bell JJ) held that the amendments to cl 68(2) of the Ordinance made by LEP 194 were ineffective to suspend the operation of the restrictive covenant. This was by reason of failure to comply with s 28 of the Environmental Planning and Assessment Act 1979 (NSW). Section 28 required that a planning instrument that had the effect of suspending the operation of a restrictive covenant, such as LEP 194 purported to do, must be approved by the Governor acting on the advice of the Executive Council. This requirement had not been complied with in making LEP 194. As a result, LEP 194 was ineffective to amend cl 68(2) of the Ordinance to effect the suspension of the restrictive covenant burdening the third respondent's land. As a result, the High Court granted the declaratory and injunctive relief sought by the appellant. The third respondent was ordered to pay the costs of the appellant's appeal to the High Court.
+HIGH COURT OF AUSTRALIA 27 November 2013 [2013] HCA 49 Today the High Court unanimously allowed an appeal against a decision of the Full Court of the Federal Court of Australia and quashed a conviction for the service offence of creating a disturbance on service land. The High Court held that "creating a disturbance" involves the intentional doing of an act which results in a non-trivial interruption of order, the person charged being reckless as to the occurrence of that result. Major Ting Li, a member of the Australian Defence Force, was involved in an incident in the Campbell Park Offices in the Australian Capital Territory. Responding to statements made by Andrew Snashall, a Commonwealth public servant, which he found offensive and suspected to have been racially motivated, Major Li became involved in an altercation with Mr Snashall that was witnessed by others working in the Campbell Park Offices. He refused to leave Mr Snashall's office when Mr Snashall asked him to do so, followed Mr Snashall out of the office while speaking in a raised voice, forcefully pushed against the office door when Mr Snashall returned and attempted to close it, and stood close to Mr Snashall's face speaking in an agitated and aggressive manner. Major Li was charged before a restricted court martial with the service offence of having created a disturbance on service land. The judge advocate directed the court martial that the prosecution did not need to prove that Major Li intended to create a disturbance, but needed to prove only that Major Li intended to engage in the acts that amounted to a disturbance. Major Li was convicted and sentenced to be severely reprimanded and fined. The Defence Force Discipline Appeal Tribunal dismissed an appeal by Major Li, who then commenced an appeal on a question of law in the Federal Court. A majority of a Full Court of the Federal Court found no error in the judge advocate's direction to the court martial. Major Li appealed to the High Court by special leave. The High Court held that "creating a disturbance" is the doing of an act which results in a disturbance. It must be proved that the person charged intended to do the act. But it must also be proved that the act resulted in a disturbance and that the person charged either believed that the act would result in a disturbance or was aware of a substantial risk that the act would result in a disturbance and, having regard to the circumstances known to him or her, it was unjustifiable to take that risk. The High Court also held that a "disturbance" is a non-trivial interruption of order and that violence or a threat of violence is not necessary to the existence of a disturbance. The High Court quashed Major Li's conviction and remitted the case to the Defence Force Discipline Appeal Tribunal.
+HIGH COURT OF AUSTRALIA 18 May 2006 Public Information Officer OLD UGC INC, UIH ASIA/PACIFIC COMMUNICATIONS INC, AUSTAR UNITED COMMUNICATIONS LIMITED, AUSTAR ENTERTAINMENT PTY LIMITED, CTV PTY LIMITED AND STV PTY LIMITED v INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION AND ROBERT McRANN An agreement covering an executive’s termination from the Austar pay television group did not amount to a contract of employment that fell within the jurisdiction of the Industrial Relations Commission of New South Wales, the High Court of Australia held today. Mr McRann was employed from March 1995 until July 1997 as managing director of the Australian affiliates of a group headed by Old UGC which operated pay TV in various countries. Following termination of his position he was briefly employed by Old UGC’s Dutch affiliate. In Australia, the Old UGC parties and Mr McRann made a “compensation and release agreement” (C&R agreement) to resolve any legal disputes arising from his employment and to provide him with compensation and benefits including stock options. The C&R agreement was governed by the laws of Colorado. In April 1998, Mr McRann brought proceedings in Colorado alleging that the C&R agreement was procured by fraudulent misrepresentation and asking that it be avoided. Those proceedings are ongoing. In May 2001, Mr McRann applied to the Industrial Relations Commission, alleging the C&R agreement was or had become unfair, harsh and unconscionable and seeking relief under section 106 of the Industrial Relations Act. 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 Old UGC parties applied to the IRC for orders dismissing Mr McRann’s application as they alleged it lacked jurisdiction and contended that proceedings should be stood over until the Colorado matter was concluded. The IRC dismissed the Old UGC parties’ application and the Full Bench refused leave to appeal. They applied to the Court of Appeal for a declaration that the IRC lacked jurisdiction to hear Mr McRann’s application and for prohibition or injunction restraining the IRC from proceeding to hear the matter. The Court of Appeal dismissed the Old UGC parties’ application, concluding that Mr McRann’s employment agreement and the C&R agreement together constituted a single contract of employment. The Old UGC parties appealed to the High Court which, by a 4-3 majority, allowed the appeal. The Court held that the question of the IRC’s jurisdiction turns upon whether the contract is one whereby a person – Mr McRann – performs work in any industry. While it may be accepted that the C&R agreement varied the terms governing his relationship with the Old UGC parties in connection with his employment in NSW, it did not follow that all the resulting stipulations and arrangements fall within the expression “a contract whereby a person performs work in any industry”. The Court held that the terms in the C&R agreement were not terms according to which Mr McRann performed work in any industry; they were terms by which the parties agreed that his employment would be terminated.
+HIGH COURT OF AUSTRALIA Public Information Officer 1 August 2007 STUART ALEXANDER BLACK, VAUGHAN LEE CHAPMAN AND ANDREW PHILIP CARTER v BRYCE LACHLAN GARNOCK, SARAH JANE GARNOCK, ROBERT LEONARD LUFF, LYNETTE ANNE LUFF, SHERIFF OF NEW SOUTH WALES AND MARILYN The sale of a farm in southern New South Wales was blocked by the registration of a judgment debt two hours before settlement, the High Court of Australia held today. Ms Smith and her husband Peter Smith owned “Wanaka”, a 1600-acre property at Bukalong near Bombala. In September 2004, the judgment creditors (Mr Black, Mr Chapman and Mr Carter) obtained judgment in the NSW District Court for $228,000 against the Smiths. On 15 July 2005, the Garnocks and the Luffs agreed to buy Wanaka from the Smiths for $1 million with a deposit of $100,000. Settlement was due to take place at 2pm on 24 August 2005. The day before settlement, the judgment creditors obtained a writ of execution from the District Court. That writ was recorded in the Torrens register at 11.53am on 24 August. In due course, the recording of the writ would entitle the Sheriff to sell the property to pay the judgment debt. Settlement proceeded at 2pm but the transfer could not be registered due to the writ. The Garnocks and Luffs began proceedings in the NSW Supreme Court to stop the judgment creditors and the Sheriff from executing the writ and selling the land. Justice Joseph Campbell granted an interlocutory injunction restraining the execution the writ but in December 2005, Acting Justice David Lloyd dismissed the proceedings. The Court of Appeal allowed the purchasers’ appeal by majority and granted an injunction. The judgment creditors then appealed to the High Court. Neither the Sheriff nor Ms Smith played an active part in the appeal. By a 3-2 majority, the High Court allowed the appeal. It held that the injunction granted by the Court of Appeal was inconsistent with the statutory scheme in the NSW Real Property Act and the system of title registration – including the recording of writs – that the Act created. The writ took priority because it was recorded before the attempted registration of the sale to the purchasers and it was irrelevant that the actual date that contracts were exchanged preceded the issue of the writ.
+HIGH COURT OF AUSTRALIA 13 December 2007 GRAHAM JOHN EVANS v THE QUEEN Public Information Officer The High Court of Australia today ordered a retrial for a man who was convicted of armed robbery after having to dress in court in clothes like those allegedly worn during a hold-up of the Strathfield Municipal Council chambers in Sydney. On the afternoon of Thursday 28 February 2002 a man entered the council chambers wearing dark blue overalls, a red balaclava and sunglasses and carrying a sawn-off rifle. He took council cash and ordered two members of the public to hand over their money, although he left behind one victim’s cash. On 30 December 2003 police searched Mr Evans’s home and found blue overalls, a red balaclava and a box of red balaclavas. During his trial in the NSW District Court in November 2004, Mr Evans, 52, of Campbelltown, was asked by the prosecutor to put on the balaclava and overalls and also the prosecutor’s sunglasses. He was then required to walk up and down in front of the jury and to say the words “give me the serious cash” and “I want the serious cash”. Seven witnesses had given evidence about the robber’s gender, voice, walk, height, age, build, skin colour and hair and the jury had also seen security camera footage of the hold-up. A baseball cap was dropped at the scene. DNA taken from the cap matched Mr Evans’s DNA profile which was expected to occur in fewer than one in 10 billion people. He denied being the robber and suggested his cap may have been dropped by someone else to implicate him. Mr Evans was convicted of two counts of armed robbery and one count of assault with intent to rob, all while armed with an offensive weapon. He was jailed for seven years with a non- parole period of four-and-a-half years. Mr Evans appealed to the NSW Court of Criminal Appeal (CCA) which held that he should not have been asked to put on sunglasses that were not in evidence and that evidence Mr Evans wished to call from his father and brother about his work at the brother’s Campbelltown car-hire business, 43 kilometres from Strathfield, was wrongly excluded. Their evidence was intended to show that Mr Evans always worked on preparing vehicles on Thursday afternoons. The CCA concluded that neither error was significant and that the evidence properly admitted at the trial proved Mr Evans’s guilt beyond reasonable doubt. Therefore the CCA concluded that no miscarriage of justice had occurred and dismissed the appeal. Mr Evans appealed to the High Court. The Court, by a 3-2 majority, allowed the appeal and ordered a new trial. It held that the CCA should not have concluded that no miscarriage of justice had occurred. Requiring Mr Evans to wear the balaclava and overalls, as well as the sunglasses, and the rejection of alibi evidence from Mr Evans’s father and brother were errors. There was no dispute that the robber had worn a balaclava, overalls and sunglasses but having Mr Evans model them did not assist the jury to determine whether he was the robber and dressing him like a robber may have damaged his credibility as a witness. The Court held that the alibi evidence was not tested at trial but could perhaps have raised a reasonable doubt about who had taken Mr Evans’s cap to the scene of the robbery. The trial judge on several occasions said she would provide reasons for decisions on disputes over the admissibility of evidence and applications that the jury be discharged without verdict, but no reasons were given for a number of such rulings. The Court held that the errors at trial undermined Mr Evans’s defence so that he had not received a fair trial. The CCA could not determine beyond reasonable doubt that Mr Evans was the robber and ought not to have decided that there had not been a substantial miscarriage of justice.
+HIGH COURT OF AUSTRALIA [2013] HCA 32 27 June 2013 Today the High Court unanimously allowed an appeal from a decision of the Court of Appeal of the Supreme Court of Victoria. Dang Khoa Nguyen ("the appellant") had been convicted in the Supreme Court of Victoria on one count of murder and one count of attempted murder. The Court of Appeal upheld the convictions. The High Court quashed the convictions and ordered a new trial on both counts. On 8 November 2004, the appellant, in company with Dang Quang Nguyen ("Quang") and Bill Ho, went to a flat in Carlton to collect a drug debt. There were seven people in the flat at the time. Bill Ho shot two of the occupants, killing one of them and wounding the other. The appellant and Quang were both found guilty of murder and attempted murder for their complicity in Bill Ho's crimes. In 2009, the appellant and Quang appealed against their convictions to the Court of Appeal. Quang's convictions were quashed and a verdict of acquittal was entered on the basis that his convictions could not be supported by the evidence and were, therefore, unsafe or unsatisfactory. The appellant's appeal was dismissed. In 2010, the prosecution appealed to the High Court against the judgment of the Court of Appeal relating to Quang. Quang cross-appealed in relation to the sufficiency of the directions given by the trial judge to the jury. On 3 November 2010, the High Court held that the jury had been misdirected because the trial judge's directions did not instruct the jury that manslaughter was available as an alternative verdict with respect to the murder charge if Bill Ho was found to be guilty of murder. The High Court ordered that Quang's convictions be quashed and a new trial had on both charges. After the decision in Quang's case, the appellant appealed to the High Court substantially on the same grounds as those successfully raised by Quang. The Court accepted that there was no material difference between the position of the appellant and Quang. As in Quang's case, the trial judge erred by failing to direct the jury that it was open to them to conclude that the appellant was guilty of manslaughter, even if they were satisfied that Bill Ho was guilty of murder. The misdirection constituted a substantial miscarriage of justice which required the convictions to be quashed and a new trial had.
+HIGH COURT OF AUSTRALIA Manager, Public Information 29 April 2009 CHRISTOPHER CLARK JONES v THE QUEEN In April 2007 Christopher Jones and James Roughan were convicted of murdering Morgan Jay Shepherd, a 17 year old youth. Today five Justices of the High Court unanimously dismissed Mr Jones’ appeal against the Queensland Court of Appeal’s determination that there had been no substantial miscarriage of justice arising out of his trial. Mr Shepherd’s decapitated body was found in a shallow grave in bushland near Dayboro, a township north of Brisbane, in April 2005. He had been stabbed numerous times though it was impossible to determine which wound had actually caused his death. Mr Jones and Mr Roughan were charged jointly with his murder. Each pleaded not guilty to murder but guilty to being an accessory after the fact. At their joint trial the evidence that both were present when Mr Shepherd died was uncontroverted, however each argued that the other had killed him. A tape recording made secretly while both were in a prison van did not contain unequivocal admissions of guilt from either of them. The jury convicted both men of murder. Both appealed against the jury’s verdict to the Queensland Court of Appeal. That Court allowed Mr Roughan’s appeal and he was retried, however, he was convicted at his second trial. The Court of Appeal dismissed Mr Jones’ appeal, and the High Court granted special leave to Mr Jones to appeal to this Court. In the High Court Mr Jones’ counsel submitted that the primary judge had erred in refusing to allow him to lead evidence concerning allegations that Mr Roughan, in circumstances unrelated to the death of Mr Shepherd, had attempted to murder a friend by attacking him with a knife. The evidence, it was submitted, was relevant to Mr Jones’ argument that Mr Roughan was a violent man of whom Mr Jones was afraid, and thus more likely to have committed the murder than was Mr Jones. However, the Court considered that the evidence Mr Jones wanted to lead about that issue was hearsay and not admissible. Mr Jones also submitted that the Court of Appeal had been wrong to dismiss his appeal given that it had found that the trial judge had misdirected the jury in one respect. The High Court considered that it was open to the Court of Appeal to find that the misdirection did not result in a substantial miscarriage of justice. It considered that the Court of Appeal’s conclusion, that the Crown’s case against Mr Jones was overwhelming, was one that was well open to it. The Court unanimously dismissed Mr Jones’ appeal against his conviction.
+HIGH COURT OF AUSTRALIA 30 November 2011 AUSTRALIAN CRIME COMMISSION v LOUISE STODDART & ANOR [2011] HCA 47 Today the High Court upheld an appeal by the Australian Crime Commission ("the ACC") against the decision of the Full Court of the Federal Court of Australia, which had granted a declaration that the Australian Crime Commission Act 2002 (Cth) ("the Act") had not abrogated the common law privilege against spousal incrimination. The High Court held that the common law does not recognise a privilege against spousal incrimination. The ACC is established by s 7(1) of the Act. One of its functions is to investigate matters related to "federally relevant criminal activity". Section 24A of the Act empowers an examiner appointed by the Governor-General under s 46B of the Act to conduct an examination for the purposes of a "special ACC operation/investigation". In response to a summons issued under s 28 of the Act by the second respondent, an examiner, the first respondent, Louise Stoddart, attended an examination to give evidence of "federally relevant criminal activity" involving named persons including the first respondent's husband. Section 30(2)(b) of the Act provides that a person appearing as a witness before an examiner shall not refuse or fail to answer a question that he or she is required to answer by the examiner. Failure to answer questions as required is an offence punishable on conviction by penalties including imprisonment. In the course of answering questions concerning details of her husband's business, the first respondent claimed to be entitled to "the privilege of spousal incrimination", meaning she had a right not to give evidence that might incriminate her husband. The Act contains no mention of such a privilege. The examination was adjourned to enable the first respondent to bring proceedings in which the questions whether the claimed privilege existed, and if so whether it continued to have effect, could be determined. In the Federal Court the primary judge dismissed the first respondent's application for declaratory and injunctive relief, holding that a spousal privilege existed at common law but that it was abrogated by the Act. On appeal, the Full Court of the Federal Court held by a majority that the common law privilege against spousal incrimination existed and that the Act had not abrogated that privilege, and granted declaratory relief. The appellant appealed to the High Court, submitting that the Full Court erred in recognising a common law privilege against spousal incrimination, and, in the alternative, that the Full Court should have held that s 30 of the Act dealing with the privilege against self-incrimination abrogated the spousal privilege if it otherwise existed. The High Court held by majority that the claimed privilege against spousal incrimination does not exist at common law. The first respondent was a competent witness to be examined under the Act and was compelled by the provisions of that Act to give evidence. No privilege of the kind claimed could be raised in answer to that obligation. It was therefore not necessary to consider the appellant's alternative submission.
+HIGH COURT OF AUSTRALIA Public Information Officer 4 April 2006 A bankruptcy notice was not invalidated by a minor error in identifying the particular provision that was the basis for a liability to pay interest on a judgment debt, the High Court of Australia held today. Mr Adams obtained judgment for $54,000 against Mr Lambert in the New South Wales District Court on 22 March 2004. The amount was an agreed sum, being the balance of a loan plus interest and legal costs up to the date of judgment. On 1 April 2004, Mr Adams served on Mr Lambert a bankruptcy notice claiming as a debt $54,066.58. The $66.58 represented interest of nine per cent from 22 to 26 March inclusive. The notice gave these dates and the amount was correctly calculated, however the notice mistakenly cited section 83A of the District Court Act which deals with interest prior to judgment, instead of section 85 which deals with post-judgment interest. The official receiver issued the notice on 26 March. Mr Lambert failed to comply with the bankruptcy notice. On 27 May 2004, Mr Adams filed a creditor’s petition alleging that such failure was an act of bankruptcy and seeking a sequestration order against Mr Lambert’s estate (an order to have his property placed in the hands of a trustee for division among creditors). In the Federal Court of Australia, Justice Roger Gyles found that the bankruptcy notice was invalid and dismissed the petition. He was bound by an earlier 3-2 decision of the Full Court of the Federal Court, The Australian Steel Company (Operation) Pty Ltd v Lewis in 2000, in which he was in the minority. An appeal by Mr Adams to the Full Court was dismissed. In an appeal to the High Court, Mr Adams argued Lewis had been wrongly decided. The Court agreed that Lewis should be overruled and unanimously allowed the appeal. Section 306 of the Bankruptcy Act provides that a bankruptcy notice is not invalidated by a formal defect or an irregularity, unless substantial injustice has been caused. The Court held that section 306 saved the notice from invalidity. The Court remitted the proceedings to the Federal Court for further hearing.
+HIGH COURT OF AUSTRALIA 28 September 2005 CPT CUSTODIAN PTY LTD v COMMISSIONER OF STATE REVENUE (two matters) COMMISSIONER OF STATE REVENUE v KARINGAL 2 HOLDINGS PTY LTD (four matters) The holders of either some or all units in unit trusts are not the owners of land held by a trust for the purposes of land tax in Victoria, the High Court of Australia held today. In 1999, the Commissioner issued amended assessments claiming additional land tax in relation to parcels of land occupied by four shopping centres in Melbourne and one in Mildura. The land holders – CPT, Karingal and corporations related to Karingal – are trustees of various unit trusts, with related trusts holding units in other trusts. Under Victoria’s Land Tax Act, each year’s tax is based on the total unimproved value of all land of which the taxpayer is “the owner” at midnight on 31 December of the preceding year. Under section 3 of the Act, the definition of owner includes every person entitled to any land for any estate of freehold in possession. The Commissioner disallowed objections by CPT and Karingal to the tax assessments. In the Victorian Supreme Court, Justice Geoffrey Nettle upheld their objections. In the CPT matters, he found that the terms of the trusts did not provide that the unit holders were entitled to receive rents and profits generated by the land so were not owners under the Act. In the Karingal matters, Justice Nettle held that the trust deeds conferred on each unit holder an equitable interest or estate in each of the lands owned by the trustee, but that they were not entitled to an estate of freehold in possession, so were also not “owners”. The Commissioner successfully appealed to the Court of Appeal on the CPT matters but lost an appeal on the Karingal matters. The Court held that a holder of all the units in a unit trust was entitled to freehold estate in possession in land which is a trust asset, so was an “owner”, and that this applied both to the sole unit holder in a land-holding trust and to the sole unit holder in a trust which is itself the sole unit holder in a land-holding trust. The Court of Appeal upheld Justice Nettle’s holding that a unit holder with less than 100 per cent of issued units was not the owner of an estate of freehold in possession and had no more than their entitlements under the trust deed, but that the holder of all issued units was an owner. CPT appealed to the High Court, arguing that holding 100 per cent of units did not make them an owner under the Act. The Commissioner appealed in relation to the Karingal matters, arguing that the Court of Appeal erred in finding that the holder of only some units in a unit trust was not an owner of land under the Act. Karingal cross-appealed on two matters and on the other two filed notices of contention stating that the Court of Appeal decision should be affirmed but for different reasons. The High Court upheld the Court of Appeal’s decision that the holder of only some units is not an owner, but overturned its decision that the holder of 100 per cent of issued units is an owner. The Court allowed the CPT appeals, dismissed the Karingal appeals and allowed the two cross-appeals. The tax assessments were set aside and the issue of tax to be paid on the land occupied by the shopping centres was remitted to the Commissioner for reconsideration and determination according to law.
+HIGH COURT OF AUSTRALIA Public Information Officer 13 August, 2003 NEWS LIMITED, NATIONAL RUGBY LEAGUE INVESTMENTS PTY LTD, AUSTRALIAN RUGBY LEAGUE LIMITED AND NATIONAL RUGBY LEAGUE LIMITED v SOUTH SYDNEY DISTRICT RUGBY LEAGUE FOOTBALL CLUB AND OTHERS The High Court of Australia today upheld an appeal by News Ltd against a decision that South Sydney was dropped from the National Rugby League competition in contravention of the Trade Practices Act. News Ltd and the Australian Rugby League agreed in 1997 to merge Super League, involving 10 clubs, and the ARL, involving 12 clubs, including South Sydney, into one competition, the NRL. The NRL was to be national, and to have less than the total number of clubs in the existing competitions. The formation of the NRL was not challenged on the basis that the merger had the purpose of substantially lessening competition, but on a narrower ground concerning the number of teams in the NRL being reduced to 14 by 2000. Two teams dropped out of the original 22, and the NRL was to progress from having no more than 20 clubs in 1998 and no more than 16 in 1999, to no more than 14 in 2000. Some clubs merged with other clubs to stay in the competition while a new team, Melbourne Storm, became one of the eventual 14. South Sydney was ultimately excluded from the 2000 competition and challenged the 14-team limitation on the basis that it was an exclusionary provision in contravention of sections 45(2)(a)(i) and 45(2)(b)(i) of the Trade Practices Act. The question was whether the 14-team term in the NRL partnership agreement had the purpose of preventing, restricting or limiting the supply of services by News Ltd and the ARL to, or the acquisition of services by News Ltd and the ARL from, particular persons or classes of persons. In the Federal Court, Justice Paul Finn held that the term did not have that purpose. The Full Court of the Federal Court, by a 2-1 majority, reached the opposite conclusion. News Ltd appealed to the High Court. The Court, by a 4-1 majority, upheld Justice Finn's decision and allowed News Ltd's appeal against the decision of the Full Court.
+HIGH COURT OF AUSTRALIA 15 December 2005 STEPHEN GARRY BANDITT v THE QUEEN Directions by a New South Wales District Court judge to a jury on the meaning of “reckless” in relation to consent to sexual intercourse were appropriate, the High Court of Australia said today. Mr Banditt was convicted of breaking and entering into a house and having sexual intercourse with a 25-year-old woman without her consent early on 6 October 2001 at Bellingen in central NSW. He was jailed for five years with a three-year non-parole period. The woman, alone in her house, awoke to find Mr Banditt having sex with her. Within seconds she pushed him off and he left, leaving behind his glasses and a payslip. The woman had previously rebuffed his advances and earlier on the same night at the local tavern had complained to him about his coming around to her house late at night and banging on her door. Mr Banditt said they had slept together six weeks earlier but she denied that. Section 61R(1) of the NSW Crimes Act provides that a person who has sexual intercourse with another and who is reckless as to whether the other person consents is to be taken to know that the other person does not consent. Judge David Freeman’s explanation of recklessness to the jury included that if an offender is aware that there is a possibility that the woman is not consenting but he goes ahead anyway, then that is recklessness. Mr Banditt objected to Judge Freeman’s directions, arguing there should have been an additional direction that he had to be indifferent about the risk or determined to have sexual intercourse whether consent was present or not, but the NSW Court of Appeal dismissed an appeal. He appealed to the High Court, where he also argued that recklessness cannot be satisfied by an awareness of a risk, but is satisfied by a mental state that, “Even if I knew, I would continue”. The High Court unanimously dismissed the appeal. It held that Judge Freeman's direction to the jury did not misstate the concept of recklessness in section 61R(1). The Court further held that Judge Freeman properly emphasised that the jury was to consider Mr Banditt’s state of mind, not the reaction of some notional reasonable man, and that this was to be undertaken with regard to the surrounding circumstances, including the past relationship between Mr Banditt and the woman. It was proper for Judge Freeman to have directed the jury in the terms he did.
+HIGH COURT OF AUSTRALIA 11 June 2014 HOWARD v COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA [2014] HCA 21 Today the High Court unanimously dismissed an appeal from a decision of the Full Court of the Federal Court of Australia, holding that the appellant, Stephen Howard, was liable to income tax on equitable compensation received in satisfaction of a judgment. Mr Howard was a director of Disctronics Ltd ("Disctronics"). In his income tax assessment for the 2005 income year, he did not include, as part of his assessable income, his share of an award of equitable compensation received in satisfaction of a judgment in proceedings in the Supreme Court of Victoria. Those proceedings concerned a joint venture, of which Mr Howard was a member, involving the purchase, lease and on-sale of a golf course. Whilst the joint venture was on foot, Mr Howard and two other directors of Disctronics, who were also members of the joint venture, endeavoured to have Disctronics become the purchaser of the golf course, although two other members of the joint venture did not agree. Subsequently, the two other members of the joint venture diverted to their own use the business opportunity pursued by the joint venture and, in so doing, were found to have breached fiduciary duties they owed to Mr Howard and the other members of the joint venture. The Commissioner of Taxation ("the Commissioner") assessed Mr Howard to income tax on the basis that his share of the equitable compensation was part of his assessable income for the relevant year. Mr Howard disputed the assessment, claiming that he received the amount of equitable compensation as constructive trustee for Disctronics and that it was, therefore, incorrectly included in his assessable income. He argued that from the time the directors decided to try to involve Disctronics as the purchaser, his fiduciary obligations to Disctronics as a director meant that he could not retain that gain for himself to the exclusion of Disctronics. Mr Howard appealed to the Federal Court in the exercise of its original jurisdiction against the Commissioner's decision. The primary judge held that Mr Howard had received the compensation as constructive trustee for Disctronics and that it was, therefore, incorrectly included as part of his assessable income. That holding was reversed on appeal to the Full Court, which held that there could be no conflict of interest in the way contended for by Mr Howard, and no breach of his fiduciary duty to Disctronics. The Full Court also rejected Mr Howard's additional claim that by a litigation agreement between Disctronics and its directors, entered into at about the time the Supreme Court proceedings were instituted, he had assigned the right to receive the amount of equitable compensation to Disctronics, such that the income was not derived by him beneficially. By grant of special leave, Mr Howard appealed to the High Court. Dismissing the appeal, the High Court held that Mr Howard did not receive the amount of equitable compensation as constructive trustee for Disctronics because, at the time Mr Howard obtained or became entitled to that amount, there was no actual conflict, and no real possibility of conflict, between his personal interests and his duties as a director of Disctronics. As to the litigation agreement, the Court held that as it provided for the assignment of Mr Howard's future income, rather than his underlying rights to receive those sums, the proceeds of the action were income in his hands. The sum received was correctly included in his assessable income.
+HIGH COURT OF AUSTRALIA 13 March 2019 PAUL OLAF GRAJEWSKI v DIRECTOR OF PUBLIC PROSECUTIONS (NSW) [2019] HCA 8 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 and quashed the appellant's conviction and sentence for the offence of intentionally or recklessly destroying or damaging property belonging to another, contrary to s 195(1)(a) of the Crimes Act 1900 (NSW). During a protest, the appellant climbed onto a ship loader, which was shut down due to safety concerns. The appellant used a harness and rope to lock himself to the ship loader and lowered himself into a position which posed a risk of serious harm to him. The ship loader remained inoperable until the appellant was removed. This was a period of around two hours. The appellant was charged with an offence against s 195(1)(a), particularised as doing "damage [to] property causing the temporary impairment of the working machinery" of the ship loader. He was convicted of this offence before the Local Court at Newcastle. The appellant appealed against his conviction to the District Court of New South Wales at Newcastle, which stated a case to the Court of Criminal Appeal asking whether the facts could support a finding of guilt for an offence contrary to s 195(1)(a). The Court of Criminal Appeal answered the question "yes". By grant of special leave, the appellant appealed to the High Court. By majority, the Court held that damage to property within the meaning of s 195(1) requires proof that a person's act or omission has occasioned some alteration to the physical integrity of the property, even if only temporarily. The majority reasoned that, as a matter of ordinary English, a thing is not damaged if the physical integrity of the thing is not altered in any respect. The majority held that nothing in the authorities justified an interpretation of the expression "destroys or damages" in s 195(1) as extending to conduct which does not in any respect alter the physical integrity of the thing said to be damaged. Here, the ship loader was shut down because of safety concerns, not because the appellant had brought about any alteration to its physical integrity.
+HIGH COURT OF AUSTRALIA Public Information Officer 5 December, 2002 GRAHAM BARCLAY OYSTERS PTY LTD & ANOR v GRANT RYAN & ORS GRANT RYAN v GREAT LAKES COUNCIL & ORS THE STATE OF NEW SOUTH WALES v GRANT RYAN & ORS The issue was whether Graham Barclay Oysters and Graham Barclay Distributors Pty Ltd (the Barclay companies), Great Lakes Council and the State of NSW were liable in negligence towards Grant Ryan and others who contracted hepatitis A from eating oysters from Wallis Lake near Forster on the NSW central coast. Heavy rain in November 1996 caused run-off which increases the risk of viral contamination. Mr Ryan instituted a representative action in the Federal Court, on behalf of those who became ill from eating oysters, against the Barclay companies, other oyster growers and distributors, the council and the state. The Barclay companies, the council and the state entered cross-claims against one another. A Federal Court judge held the Barclay companies, the council and the state all liable in negligence to Mr Ryan and those class members who proved they suffered damage. The Full Court of the Federal Court by differently constituted majorities allowed the council’s appeal and dismissed appeals by the state and the Barclay companies. The Barclay companies, the state and Mr Ryan then appealed to the High Court of Australia. Mr Ryan claimed the state and the council were negligent by omission as they could and should have done more to prevent the hepatitis outbreak. The High Court unanimously held that such public authorities had responsibilities for public health and safety – including fisheries and sewage management – but that Mr Ryan failed to establish that they owed a duty of care to individual consumers of Wallis Lake oysters. The state and the council were therefore not liable. The Barclay companies accepted that they owed a duty to consumers to take reasonable care to see that their oysters were fit for human consumption but the High Court by majority found the companies did not breach that duty, so were not liable in negligence. Mr Ryan had succeeded in the Federal Court in having Barclay Oysters found liable under sections 74B (fitness for purpose) and 74D (unmerchantable quality) of the Trade Practices Act. The Full Court of the Federal Court dismissed Barclay Oysters’ appeal and the company did not challenge those findings in the High Court, so the judgment obtained by Mr Ryan against that company remains undisturbed.
+HIGH COURT OF AUSTRALIA 2 April 2014 ACHURCH v THE QUEEN [2014] HCA 10 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, which had dismissed Brian William Achurch's application under s 43 of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Sentencing Act") to re-open proceedings in that Court in which he had been re-sentenced after a successful Crown appeal. Mr Achurch was convicted after a trial by jury in the District Court of New South Wales of three counts of supplying prohibited drugs contrary to s 25 of the Drug Misuse and Trafficking Act 1985 (NSW). He was sentenced on each of the counts to a term of imprisonment. A Crown appeal to the Court of Criminal Appeal against the inadequacy of the sentences, individually and collectively, was allowed. The Court re-sentenced the appellant. It was not in dispute that in re- sentencing Mr Achurch and fixing non-parole periods, the Court applied an approach which was subsequently held by the High Court in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 to have been incorrect. Mr Achurch applied to the Court of Criminal Appeal to re-open the proceedings on the Crown appeal. He invoked ss 43(1)(a) and 43(2)(a) of the Sentencing Act, which authorise a court to re- open criminal proceedings, including proceedings on appeal, in which the court has "imposed a penalty that is contrary to law", and "impose a penalty that is in accordance with the law". The Court of Criminal Appeal, sitting a bench of five, dismissed the application. By special leave, Mr Achurch appealed to the High Court. The question in this appeal was whether s 43 of the Sentencing Act authorised the re-opening of proceedings in which a sentence open at law was reached by a process of reasoning involving an error of law. Dismissing the appeal, the High Court held that a penalty is not "contrary to law" for the purposes of s 43 of the Sentencing Act only because it is reached by a process of erroneous reasoning or factual error. Correction of errors of that type is principally available by way of appeal. The sentences imposed on Mr Achurch were open at law and, therefore, were not "contrary to law" for the purposes of s 43.
+HIGH COURT OF AUSTRALIA 12 November 2014 HUNTER AND NEW ENGLAND LOCAL HEALTH DISTRICT v MERRYN ELIZABETH MCKENNA HUNTER AND NEW ENGLAND LOCAL HEALTH DISTRICT v SHEILA MARY SIMON & ANOR [2014] HCA 44 Today the High Court unanimously allowed appeals from a decision of the Court of Appeal of the Supreme Court of New South Wales and held that the Hunter and New England Local Health District, a health authority responsible for the conduct of a hospital and its medical staff in Taree, New South Wales, did not owe a duty of care to the relatives of a man killed by a mentally ill patient who had been discharged from the hospital into the man's care. In 2004, Phillip Pettigrove, a man from Victoria with a long history of chronic paranoid schizophrenia, was involuntarily admitted to, and detained in, the Manning Base Hospital at Taree under the Mental Health Act 1990 (NSW). Mr Pettigrove had at the time been with a friend in New South Wales, Stephen Rose. After a doctor at the hospital reviewed Mr Pettigrove's medical history, and spoke to Mr Pettigrove, Mr Rose and Mr Pettigrove's mother in Victoria, it was agreed that Mr Pettigrove would be kept in the hospital overnight and that, the following day, Mr Rose would drive Mr Pettigrove back to his mother's home in Victoria where he would receive continuing medical treatment. In the course of the journey, Mr Pettigrove killed Mr Rose. Relatives of Mr Rose brought proceedings in the District Court of New South Wales for damages for psychiatric injury allegedly suffered by them as a result of Mr Rose's death. The relatives alleged that the hospital and the doctor did not exercise reasonable professional care and skill in deciding to discharge Mr Pettigrove into the care of Mr Rose for the journey to Victoria, and that the health authority was therefore liable. The District Court found that there had been no breach of duty of care and entered judgment for the health authority. That decision was set aside on appeal by the Court of Appeal. By grant of special leave, the health authority appealed to the High Court. The High Court unanimously allowed the appeals. The High Court held that the hospital and doctor did not owe the alleged common law duty of care to Mr Rose's relatives. The Mental Health Act prohibited the detention, or the continuation of detention, of a mentally ill person unless the medical superintendent of the hospital formed the opinion that no other less restrictive care was appropriate and reasonably available. The High Court found that performance of that statutory obligation would not be consistent with the common law duty of care alleged by the relatives of Mr Rose.
+HIGH COURT OF AUSTRALIA Public Information Officer 9 March 2006 HELEN MARGARET SWEEDMAN v TRANSPORT ACCIDENT COMMISSION Victoria's Transport Accident Commission (TAC) could pursue an indemnity claim against a New South Wales resident to recover compensation it paid to two Victorian accident victims, the High Court of Australia held today. Mrs Sweedman was driving her son's NSW-registered car when it collided with a Victorian- registered car carrying John and Helen Sutton on a NSW road in July 1996. The Suttons were both injured and the TAC paid them $35,310.29 compensation in accordance with Victoria’s Transport Accident Act. Victoria’s compensation scheme is funded by a transport accident charge paid by owners of registered vehicles. For the purposes of the litigation it was assumed that the accident was caused by Mrs Sweedman's negligent driving, but the Suttons did not sue her in tort, the alternative remedy open to them under the NSW Motor Accidents Act. The TAC sued Mrs Sweedman for indemnity for that proportion of the compensation paid to the Suttons which was attributable to her negligence, pursuant to section 104(1) of the Victorian Act. The TAC claimed that her third-party insurance, which was compulsory under the NSW Act, extended to cover her for any liability to indemnify the TAC under the Victorian Act. Mrs Sweedman claimed that section 104 of the Victorian Act was inoperative or inapplicable because the Constitution prevented a court from applying it to the exclusion of the NSW Act. The Victorian County Court, in which the TAC initiated action, referred questions to the Court of Appeal, which answered the questions in favour of the TAC. Mrs Sweedman appealed to the High Court, which, by a 5-1 majority, today dismissed the appeal. The Court held that there was no constitutional impediment to applying the usual rule that the law of Victoria should apply to the case. Victorian law applied because the obligation to indemnify is sourced in section 104(1), the recovered money will go into the TAC's Transport Accident Fund, and the indemnity obligation only arose after payments had been made from the Fund to the Suttons as Victorian residents. The Court held there was no relevant inconsistency between the Victorian and NSW Acts, because the NSW Act was not directed to blocking claims of the kind created by section 104 of the Victorian Act and also because the compulsory third-party insurance policy does not in any way hinder the ability of the TAC to pursue its indemnity claim. A majority of the Court also rejected Mrs Sweedman’s argument that she suffered discrimination contrary to section 117 of the Constitution because if she lived in Victoria she would not have been subjected to the indemnity claim under section 104(1). It held that there was no differential treatment in the Victorian Act attributable to residence that would enliven section 117.
+HIGH COURT OF AUSTRALIA 13 March 2013 SEM v THE QUEEN [2013] HCA 6 Today the High Court unanimously dismissed three appeals from a decision of the Full Court of the Supreme Court of South Australia ("the Full Court") which upheld the appellants' convictions for murder. The appellants were convicted of murder in the Supreme Court of South Australia following a fight at a party in suburban Adelaide in which a young man was stabbed. The appellants were part of a group that had descended on an 18th birthday party after a dispute between one of the appellants and others attending the party. The appellants were convicted on the basis that they were participants in a joint criminal enterprise to kill or to cause really serious bodily harm to a person or persons at the party using a knife or similar bladed weapon. The appellants appealed against their convictions to the Full Court, arguing that their trials had miscarried because the trial judge had not told the jury that it was necessary for the prosecution to prove that each appellant had participated in the joint criminal enterprise. The appellants also argued that their trial had miscarried because the trial judge had not addressed each appellant's case separately in his summing-up to the jury. The Full Court dismissed the appeal on both grounds. Huynh was granted special leave to appeal to the High Court, and the special leave applications of Duong and Sem were referred to an enlarged bench of the High Court to be heard at the same time The High Court granted Duong and Sem leave to appeal, but unanimously dismissed all three appeals. The High Court held that, although participation in furtherance of an agreement to kill or to cause really serious bodily harm to a person was an element that had to be proved against each appellant, the trial judge had not erred because the appellants' participation was not a live issue at their trial. The appellants did not dispute that they were present when the crime was committed. Their presence pursuant to the agreement constituted participation in the joint criminal enterprise. The High Court held that the trial judge had not erred in failing to address each appellant's case separately in his summing-up, because almost all the evidence in the trial was admissible against each appellant and his Honour had adequately identified the evidence relevant to the determination of the issues in each case and the criticisms each appellant had made of that evidence.
+HIGH COURT OF AUSTRALIA 19 May 2005 ALLIANZ AUSTRALIA INSURANCE LIMITED v GSF AUSTRALIA PTY LIMITED AND An employer’s directive to use crowbars to unload heavy transport containers after a mechanical breakdown was the predominant cause of a worker’s injury, rather than the breakdown itself, the High Court of Australia held today. This determined which particular legislation would apply for deciding liability for compensation to Mr Oliver. GSF, which packed food in containers for airline transport, employed Mr Oliver as a maintenance technician. A truck used to carry the containers was fitted with a set of rollers and a motorised T- bar for loading and unloading. In February 1998, the gearbox broke down and the T-bar mechanism became inoperative. GSF sent Mr Oliver and another employee to Sydney Airport to unload the truck by using crowbars to lever the containers, each weighing about a tonne, along the rollers. Mr Oliver suffered an injury to his lower back. Mr Oliver sued GSF for damages in the New South Wales District Court. The action was referred to arbitration and in November 2001 an award was made in his favour. GSF then applied to the District Court for a limited rehearing to determine whether the case gave rise to an indemnity under either or both of the Workers Compensation Act and the Motor Accidents Act. If damages were assessed under the former there would be a verdict of $450,000 for Mr Oliver and insurer QBE would be liable to indemnify GSF; if assessed under the latter the award would be $460,000 and Allianz, the compulsory third party insurer of the vehicle, would be liable. The District Court held that the Motor Accidents Act was attracted so entered a judgment for Mr Oliver against GSF for $460,000. The Court also ordered Allianz, which has been joined as a party to the proceedings, to pay GSF $230,000 by way of indemnification on the basis that it was a case of dual insurance. Allianz appealed to the NSW Court of Appeal on the ground that the injury was not an “injury” as defined by the Motor Accidents Act. The appeal was dismissed, by majority. Allianz appealed to the High Court, arguing that Mr Oliver’s injury was not a result of the use or operation of the vehicle but was caused by the unsafe system of work. GSF contended that the defective mechanism was a cause of his injury and occurred in the course of the vehicle’s use or operation for unloading, so the requirements under the Motor Accidents Act that the injury be a result of the defect and caused during such use or operation by a vehicle defect were satisfied. The Court unanimously allowed the appeal, holding that Mr Oliver’s back injury was not an injury for the purposes of the Act. It held that there is an “injury” within the meaning of the Act “if, and only if” the injury was the result of a defect in the vehicle. The unsafe system of the employer, in particular the direction to use crowbars to lever the containers, not the defective unloading mechanism, was the predominant and more immediate cause of the back injury.
+HIGH COURT OF AUSTRALIA 15 June 2006 Public Information Officer SST CONSULTING SERVICES PTY LIMITED v STEPHEN CHARLES RIESON AND SCOTT A loan contract contravening trade practices laws is enforceable once the offending term is excised, leaving Mr Rieson and Mr Bell having to repay the loan, the High Court of Australia held today. SST lent money to AFS Freight Management (USA), a company of which Mr Rieson and Mr Bell were directors. In June 1999, Mr Rieson had asked SST director Peter Sweeney for $1 million for working capital and offered “certainty in relation to the work”. He and Mr Bell guaranteed repayment of the loan. The loan agreement obliged AFS USA to direct all work packing and unpacking shipping containers at certain ports to corporations specified by SST and if any work was directed elsewhere the loan would become due and payable. By lending money on these conditions, SST engaged in exclusive dealing, contrary to section 47 of the Trade Practices Act (TPA). This took the form of “third line forcing”, whereby a corporation supplies or offers to supply goods or services on condition that the recipient then acquires particular goods or services from another entity. SST lending money to AFS USA was a supply of services on the express condition that AFS USA would then acquire particular services from someone else, namely, corporations nominated by SST. The loan was made in instalments and was to be repaid in instalments, with 20 per cent compounded interest, by September 2003. AFS USA repaid some money then claimed it was not indebted to SST because the loan contract was illegal and unenforceable. SST claimed section 4L of the TPA required severance of parts of the loan agreement so AFS USA’s obligation to repay the loan plus interest remained enforceable. SST commenced action in the New South Wales Supreme Court, claiming payment of the balance of the loan and interest. AFS USA pleaded that the loan agreement was for the illegal purpose of exclusive dealing and was therefore void and unenforceable. It also sought leave to bring a cross- claim for a declaration that the guarantee was void and/or unenforceable. The proceedings were transferred to the Federal Court. Justice Arthur Emmett entered judgment for the amount claimed – by then $1,514,890. He held that SST was entitled to treat the unlawful provision as severed from the arrangement and that AFS USA’s obligations were valid and enforceable. The Full Court of the Federal Court allowed an appeal and held that severance was not possible so the whole agreement was illegal and void. This was because the way the parties had structured their arrangements indicated a mutual understanding that their obligations constituted an indivisible whole and severing the provision would fundamentally alter the character of their agreement. SST appealed to the High Court. The Court, by a 5-1 majority, allowed the appeal. It held that severance is required, rather than simply permitted, by section 4L of the TPA. Under section 4L a contract is valid and enforceable except to the extent that the offending provision is severable. The Court held that in this case no difficulty arose in severing the offending provision. So much of the loan agreement as required repayment of the loan with interest was valid and enforceable.
+HIGH COURT OF AUSTRALIA 5 September 2016 MURPHY & ANOR v ELECTORAL COMMISSIONER & ANOR [2016] HCA 36 At the conclusion of the hearing on 12 May 2016, in answer to questions posed in a special case, the High Court held that certain provisions of the Commonwealth Electoral Act 1918 (Cth) ("the Act") were not invalid for inconsistency with the requirement in ss 7 and 24 of the Constitution that the Parliament be "directly chosen by the people". Today the High Court published its reasons for giving those answers. The impugned provisions of the Act prevented a person's claim for enrolment on the Electoral Roll for a Division, or a claim for transfer of enrolment from the Roll of one Division to another Division, from being processed until after the close of the poll for an election if it was received during the "suspension period" from 8pm on the day of the closing of the Rolls for the election, which was seven days after the issue of the writs for the election, to the close of the poll for the election. The impugned provisions also prevented amendments to the Roll from being undertaken by the Electoral Commissioner and the processing of objections to a person's enrolment during the suspension period. The plaintiffs were an elector in the Division of Wills and an elector who intended to nominate herself as an independent candidate for election to the House of Representatives in the Division of Newcastle. They submitted that the High Court had established in its decisions in Roach v Electoral Commissioner (2007) 233 CLR 162; [2007] HCA 43 and Rowe v Electoral Commissioner (2010) 243 CLR 1; [2010] HCA 46 that the requirement that the Parliament be "directly chosen by the people" meant that any effective burden on this constitutional mandate of popular choice had to be justified by a "substantial reason". In the plaintiffs' submission, the impugned provisions effectively disenfranchised people who had sought to enrol or transfer their enrolment during the suspension periods before recent federal elections, a burden which was not justified by a substantial reason. A majority of the High Court held that the plaintiffs could not establish that the impugned provisions amounted to a burden on the constitutional mandate of popular choice. A suspension period had been part of Australian electoral law since Federation and thus no diminishment of the extent of the realisation of the constitutional mandate of popular choice was at issue in the special case. The High Court unanimously held that even if there was a relevant burden, it was justified by a substantial reason. As part of a coherent electoral system, the impugned provisions advanced the orderly and efficient conduct of elections, ensured that there would be few delays in declaring electoral results, and achieved accuracy and certainty in the lists of electors to be produced for polling day. The plaintiffs' argument relied upon a premise that a law burdening the constitutional mandate could not be valid unless it maximised opportunities for electoral participation. That premise was not supported by the Constitution, nor by the High Court's decisions in Roach and Rowe. Further, the High Court held that analysing whether the impugned provisions were justified by reference to alternative regimes in State electoral systems was inappropriate, as it would involve the Court in a legislative judgment beyond its judicial role.
+HIGH COURT OF AUSTRALIA 1 December 2004 HILLPALM PTY LTD v HEAVEN’S DOOR PTY LTD Hillpalm was not bound to provide an easement over its property despite a proposed easement having been approved by Tweed Shire Council, the High Court of Australia held today. Hillpalm and Heaven’s Door in 1998 bought adjoining blocks of land, Tanglewood and Emerald Mountain respectively, which were once part of a larger banana farm which had been subdivided and sold off by its former owners, Winchcombe Carson Trustee Co (Canberra) Ltd. The subdivision plan showing a proposed right of way from Heaven’s Door’s land across a corner of Hillpalm’s land to join Clothiers Creek Road was registered by the New South Wales Registrar- General in 1979. The Tweed Shire Council approved the subdivision in 1977. Further subdivisions were made of the section of land which includes Tanglewood. Hillpalm was unaware that the owners of Emerald Mountain had any easement or right of way over its land. Heaven’s Door contended that it was entitled to a declaration that Hillpalm was in breach of a condition of the council’s consent for the original subdivision and to orders requiring Hillpalm to create a right of carriageway and to construct a track within the carriageway. The NSW Land and Environment Court made the declaration and orders sought. Hillpalm appealed unsuccessfully to the NSW Court of Appeal and appealed to the High Court. Heaven’s Door accepted it had no easement over Tanglewood or other interest in the property, but it contended it was entitled to compel Hillpalm to perform conditions imposed by the shire council when the land was subdivided by Winchcombe Carson. The plan lodged with the Registrar-General bore the Shire Clerk’s certificate that Local Government Act requirements had been met, but the High Court held that this certificate showed only that conditions which had to be met before the subdivision was certified had been met. The certificate could not specify whether conditions to be fulfilled after the subdivision had been put into effect were actually satisfied. On its face, the plan did no more than indicate that Winchcombe Carson had intended at some future time to create an easement. Whatever might have been the commercial significance to a party buying the land from Winchcombe Carson of its stated intention on the plan, nothing in the Local Government Act obliged it to give effect to that intention. Such an intention was not binding on Hillpalm. Any conditions imposed by the council when it approved the subdivision were also not enforceable against Hillpalm. When it bought Tanglewood it obtained a registered title free from any encumbrance or interest of the kind which Heaven’s Door contended it was now entitled to have created. The Court, by a 3-2 majority, allowed the appeal with costs.
+HIGH COURT OF AUSTRALIA 4 October 2006 Public Information Officer MICHAEL PELDAN AND MORGAN LANE (as trustees of the bankrupt estate of RAYMOND KENNETH PINNA) v BERNADETTE ANDERSON AND ROBYN MOLLEE (as executors of the estate of the late DOROTHY RUTH PINNA) The trustees of the bankrupt estate of Mr Pinna are not entitled to the total proceeds of sale of the Pinnas’ house for distribution to Mr Pinna’s creditors, the High Court of Australia held today. Mr Pinna’s firm, Pinnacle Engineering, was in financial difficulty and by September 2003 his liabilities totalled $1,474,291.35, including significant tax debts. The Pinnas’ home in the Brisbane suburb of Carindale was sold in April 2004 following a bankruptcy petition by the Deputy Tax Commissioner. The elderly Mr and Mrs Pinna had owned the house as joint tenants. Mrs Pinna died in January 2004 and ordinarily her interest in the property would then have passed to Mr Pinna as surviving joint tenant and the whole property would be available to the trustees. However, in November 2003 Mr Pinna unilaterally severed the joint tenancy and the Pinnas became registered as tenants in common. Therefore, when Mrs Pinna died, her interest as tenant in common passed to her deceased estate and did not become part of Mr Pinna’s bankrupt estate, so the trustees were entitled to only his half of the proceeds of sale. The trustees argued that the severance of the joint tenancy was in fact void by operation of section 121 of the Bankruptcy Act. The Federal Magistrates Court found in the trustees’ favour, but Justice Susan Kiefel in the Federal Court allowed an appeal by Mrs Pinna’s executors. The trustees then appealed to the High Court. The trustees argued that the unilateral severance constituted a “transfer of property” for the purposes of section 121(1) of the Act, which provides that transfers of property are void if certain conditions are met, including that the property would probably have become part of the transferor’s estate in bankruptcy if the property had not been transferred. However, section 121(9)(b) provides that a person who does something which results in another person becoming the owner of property that did not previously exist is taken to have transferred the property to the other person. The trustees submitted that extinguishment of the joint tenancy and the simultaneous creation of new rights in the Pinnas as tenants in common in equal shares answered the description in section 121(9)(b), and therefore made the “transfer” void under section 121(1)(a). The High Court unanimously dismissed the appeal. Upon registration of the transfer by Mr Pinna, Mrs Pinna became “the owner of property that did not previously exist”, namely an interest as tenant in common in the house in place of an interest as joint tenant. That interest as joint tenant was transformed, or extinguished and replaced, by the interest as tenant in common. Accordingly, the terms of section 121(9)(b) were met. A conundrum arises in applying section 121(9)(b) to section 121(1)(a), namely that if the act which is taken to have transferred the property did not occur, the “property that did not previously exist” would never have come into existence, so could not “probably have become” part of the bankrupt estate. Section 121(1)(a) assumes the transferred property was, before the transfer, capable of becoming part of that estate, while section 121(9)(b) assumes that the property which “did not previously exist” would not have come into existence if the act which is taken to have transferred it had not occurred. The Court held that where section 121(9)(b) is relied upon, the property referred to in section 121(1)(a) should be construed as signifying “the property in the hands of the transferor prior to the act which is taken to be the transfer”. This removes from the operation of section 121(1)(a) the assumption that it is existing property which is being transferred. Section 121(1)(a) was not satisfied in the circumstances of the case because Mr Pinna’s interest as joint tenant would never become part of his bankrupt estate. The onset of bankruptcy worked as a severance, so that all that would have become part of the bankrupt estate was an interest as tenant in common.
+HIGH COURT OF AUSTRALIA 30 July 2008 Public Information Officer CGU INSURANCE LIMITED v ANTHONY PORTHOUSE A barrister, who failed to advise that a compensation claim be filed before an amendment to the New South Wales Workers’ Compensation Act barred the claim, was not entitled to insurance to cover the damages he would have to pay to his client, the High Court of Australia held today. In 1999 James Bahmad was injured while performing work under a community service order. He was raking grass on a steep embankment when he slipped and fell, injuring his right shoulder. Mr Bahmad consulted solicitors about rights to compensation. Mr Porthouse, a barrister, was briefed in 2001 to advise whether Mr Bahmad had a claim under the Act or a claim for negligence against the Department of Corrective Services. On 12 June 2001, Mr Porthouse wrongly advised that the Act did not apply as Mr Bahmad was not in paid employment. Around this time, as part of comprehensive tort reform, the NSW government foreshadowed restrictions on common law claims for injuries governed by the Act. Proceedings brought before the commencement date of the amending legislation would be unaffected and it became well known that this date would be 27 November 2001. Before the Act changed, damages for economic loss could not be awarded unless the worker suffered a serious injury. The amendment prohibited the awarding of damages unless the injured worker had a degree of permanent impairment of at least 15 per cent, but Mr Bahmad’s injury, although serious, was below this threshold. On 26 November 2001, Mr Porthouse was instructed to draft a statement of claim against the State of NSW. It was filed on 11 December 2001. On 4 November 2002, Mr Bahmad obtained an award at arbitration of $120,687.15. The State applied to have the matter listed for rehearing in the District Court on 15 May 2003. On that day, Mr Porthouse became aware that the State intended to argue that the 2001 amendment to the Act applied to bar Mr Bahmad’s claim. Mr Porthouse obtained an adjournment. When the case proceeded on 29 August 2003, it was common ground that if the amended Act applied Mr Bahmad could not recover any damages. The District Court found his claim was covered by the Act before it was amended but a year later the Court of Appeal allowed an appeal by the State. In May 2004 Mr Porthouse filled out a CGU professional indemnity insurance form for 2004-05. It asked: “Are you aware of any circumstances, which could result in any Claim or Disciplinary Proceedings being made against you?” He answered “No”. The High Court noted that the form only asked about the possibility, not the certainty, of a claim being made and that answering the question did not call for an assessment of the prospects of success of any claim or the strength of possible defences to it. Section 6 of the policy stated that it did not cover known claims and known circumstances. “Known Circumstance” was defined in section 11.12 as: “Any fact, situation or circumstance which: (a) an Insured knew before this Policy began; or (b) a reasonable person in the Insured’s professional position would have thought, before this Policy began, might result in someone making an allegation against an Insured in respect of a liability, that might be covered by this Policy”. In March 2005 Mr Bahmad commenced proceedings against his original solicitors and Mr Porthouse, stating that had his lawyers been reasonably diligent and filed a statement of claim earlier his claim would have escaped the 2001 amendment. Mr Porthouse joined CGU, which refused to indemnify him, as a cross-defendant. In the District Court, Judge Audrey Balla held that both the solicitors and Mr Porthouse had been negligent and gave judgment for $170,000 plus costs, to be borne equally between them, but ordered that CGU indemnify Mr Porthouse. She held that the exclusion clause did not apply. The Court of Appeal, by majority, dismissed an appeal by CGU, which had argued that Judge Balla had erred by considering the subjective state of mind of Mr Porthouse when construing the exclusion clause. CGU appealed to the High Court. The Court unanimously allowed the appeal. It held that the intention of limb (b) of the definition of “Known Circumstance” was to prevent an insured from avoiding the exclusion clause by saying that they did not disclose facts and circumstances because they did not know that these might give rise to an allegation of a liability which might be covered by the policy, even though a reasonable person in the same professional position would have thought those facts and circumstances might give rise to such an allegation. The Court held that Judge Balla’s error, which was not corrected by the Court of Appeal, was that she gave no consideration to the section 11.12(b) standard, which was independent of Mr Porthouse’s subjective view of facts and circumstances known to him. It held that section 11.12(b) posits an objective standard with a modification related to professional, not personal, matters. Nothing in the policy suggested that the hypothetical reasonable person was to be imputed with the insured’s idiosyncrasies or state of mind, or that a conclusion that an allegation might be made had to be plain and obvious. Mr Porthouse knew of the potential effect of the 2001 amendment to the Act on Mr Bahmad’s case and of his own role in creating the problem which gave rise to the State’s appeal. The High Court held that a reasonable barrister knowing these things would have thought there was a real possibility that an allegation might be made in respect of a liability which might be covered by the policy and that the exclusion therefore applied.
+HIGH COURT OF AUSTRALIA 22 March 2007 THE QUEEN v RICHARD BRUCE CORNWELL (two matters) RICHARD BRUCE CORNWELL v THE QUEEN Public Information Officer An alleged drug trafficker was unable to take advantage of protection against self-incrimination but should nonetheless have his application for an acquittal reconsidered by the Court of Criminal Appeal, the High Court of Australia held today. Mr Cornwell was charged with conspiracy to import 120kg of cocaine. His first trial, in the New South Wales Supreme Court before Justice Rod Howie, resulted in a hung jury. At the second trial, conducted in the NSW District Court by Judge Anthony Blackmore, Mr Cornwell was convicted on 8 June 2004 and sentenced to 24 years’ jail with a non-parole period of 14 years and six months. In the first trial, Justice Howie admitted into evidence bugged conversations between Mr Cornwell and two other defendants, Juan Diez and John Lawrence, on the basis that the three were involved in supplying drugs to buyers in Australia and that this was highly probative of their participation in the conspiracy. Mr Cornwell sought a certificate against self-incrimination under section 128 of the NSW Evidence Act as he wished to object to testifying about the Diez-Lawrence conversations. Justice Howie said he would grant the certificate under section 128(6) after Mr Cornwell answered questions about the drug trade, meaning that that evidence could not be used against him. As it happened the certificate was not actually issued. This was not discovered until the second trial when the Director of Public Prosecutions asked to have Mr Cornwell’s testimony at the first trial admitted. Justice Howie then issued a certificate after application by Mr Cornwell and the Crown appealed. Justice Blackmore held that the Diez-Lawrence conversations went to a fact in issue so section 128(8) precluded Mr Cornwell from relying on the certificate to prevent his evidence from the first trial being tendered. Mr Cornwell did not give evidence at the second trial. He successfully appealed against conviction to the NSW Court of Criminal Appeal (CCA) which ordered a retrial. The Crown appealed this decision to the High Court. It also appealed against the CCA’s refusal to allow an appeal against Justice Howie’s grant of the certificate. Mr Cornwell also sought special leave to cross-appeal against the CCA’s order for a new trial instead of an acquittal. This application was argued as on appeal with the two Crown appeals. The High Court, by a 4-1 majority, allowed the Crown appeal in relation to section 128(8), unanimously dismissed the appeal against Mr Cornwell’s conviction being overturned, and unanimously granted his application for special leave to cross-appeal and allowed the cross-appeal. The Court held that if section 128(8) was the controversial issue, it would have been appropriate to reinstate Mr Cornwell’s conviction, but four grounds of appeal to the CCA were not dealt with and one ground – that the verdict was unreasonable and not be supported by the evidence – was not fully explored and must be remitted for reconsideration by the CCA. The Court held that section 128 did not apply because Mr Cornwell’s testimony at the first trial about drug dealing was that he did an act which was a fact in issue or had a state of mind which was a fact in issue. Section 128 could not apply to Mr Cornwell about the Diez-Lawrence conversations. Justice Howie had erred in granting the certificate. The Court held that the first and second trials formed one proceeding – the prosecution of Mr Cornwell – so his testimony at the first trial was admissible at the second. Section 128 does not ensure that evidence received at a trial cannot be used at a retrial on the same charge. Judge Blackmore was not bound by Justice Howie’s rulings on section 128 and had the discretion to receive the evidence at the second trial.
+HIGH COURT OF AUSTRALIA 9 December 2004 SERGE ANIKIN v ALFONSO SIERRA AND STATE TRANSIT AUTHORITY The High Court of Australia today restored a damages award of $750,000 to a man who was seriously injured when hit by a bus in the northern Sydney suburb of Epping. Mr Anikin, 30, had been with his girlfriend and other friends at a rock concert at Macquarie University on 29 March 1997. He argued with his girlfriend and left. While still within the grounds he telephoned his father to say he was lost and his father told him to wait for him at the university offices. When the father arrived he could not find his son, who had set off on foot along Epping Road towards Epping railway station. Why he did this is unknown. The footpath ran out and some unsigned steps ran over a section of rock wall. Nearby street lights were not working. Rubbish was strewn along the shoulder and asphalt had broken away. Mr Anikin was wearing dark clothes but his shoes had a white strip around them. As he walked along the edge of the roadway facing oncoming traffic, he was struck by the bus driven by Mr Sierra about 9pm. The bus struck him on its front left-hand corner, throwing him against the rockface beside the road. Mr Anikin was unconscious for nine days and was left with brain damage and no memory of the accident. His left arm had to be amputated. Mr Annikin sued Mr Sierra and the STA for negligence, successfully arguing that Mr Sierra had failed to exercise due care and attention, failed to keep a proper lookout, failed to sound his horn, and failed to either stop the bus or to deviate slightly. Mr Sierra claimed Mr Anikin had suddenly jumped in front of the bus, apparently trying to flag it down, when the bus was only 10 to 15 metres away. District Court Judge Margaret Sidis rejected Mr Sierra’s version of events due to inconsistencies in his evidence; the nature of Mr Anikin’s injuries, the damage to the bus, lack of skidmarks and other objective factors; and the evidence of Matthew Fatches, a passenger in a car travelling on the other side of the road. Mr Fatches said no vehicles were in front, behind or beside the bus but it did not deviate around Mr Anikin. Expert witnesses said the bus’s lights would have illuminated 50 to 60 metres of the road and had a leftwards slant. Judge Sidis estimated Mr Anikin was about 70cm on to the roadway. She entered judgment for Mr Anikin, but reduced his $1 million damages by 25 per cent for his contributory negligence. The New South Wales Court of Appeal, by a 2-1 majority, overturned the judgment. Mr Anikin appealed to the High Court which held that the Court of Appeal was not justified in reversing the findings of Judge Sidis who had the advantage of assessing the credibility of various witnesses. The High Court held that the Court of Appeal majority erred in concluding there was no evidence of negligence. While Mr Anikin needed to look out for his own safety, Mr Sierra had obligations to exercise care for pedestrians while in charge of a powerful vehicle. The Court allowed the appeal by a 4-1 majority.
+HIGH COURT OF AUSTRALIA Public Information Officer 3 April, 2003 YOUYANG PTY LTD AS TRUSTEE OF THE BILL HAYWARD DISCRETIONARY TRUST v MINTER ELLISON MORRIS FLETCHER (LATER MINTER ELLISON) A family trust which lost a $500,000 investment today won its High Court of Australia appeal against a firm of solicitors for errors made in the handling of the investment. Youyang was trustee of a family trust which controlled substantial funds through various companies and trusts. In 1993, Youyang invested $500,000 in a preference share issue by EC Consolidated Capital Limited (ECCCL). The money was paid into Minter Ellison Morris Fletcher’s trust account. ECCCL was to use part of each subscription to purchase a bearer deposit certificate issued by Dresdner Bank subsidiary, Dresdner International Financial Markets (Australia) Limited, which could then be traded on the money market. In Youyang’s case, Minters deposited with Dresdner $256,800 – due to grow to $500,000 on maturity in 2003 – but there was no bearer certificate of deposit and therefore no security of the kind agreed. Minters paid ECCCL the rest of the money (apart from legal fees) in breach of an obligation not to do so unless the certificate of deposit had been procured. ECCCL went into liquidation in 1997. The High Court, upholding an appeal from the New South Wales Court of Appeal, unanimously held that the unauthorised disbursements involved dealing with Youyang’s property in breach of trust and ordered Minters to restore the trust fund in the amount of $500,000 plus interest and costs.
+HIGH COURT OF AUSTRALIA 5 October 2005 THE WATERWAYS AUTHORITY v DANIEL GERARD FITZGIBBON, MIDDLE HARBOUR YACHT CLUB AND MOSMAN MUNICIPAL COUNCIL A retrial on Mr Fitzgibbon’s personal injury case should examine all issues and should not be constrained by a finding that he was jostled or pushed into shallow water rather than deliberately diving in, the High Court of Australia held today. On 29 March 1997, Easter Saturday, Mr Fitzgibbon, then 20, of Brisbane, was in Sydney to compete in a sailing regatta. That night he attended a ball at Middle Harbour Yacht Club. Nathan Wilmot, then 17, had won the national titles in Hobart the previous Christmas for his class of boat. Sailing winners are frequently thrown into the water but this did not happen in Hobart, so a group of fellow sailors threw Mr Wilmot into the water at the Yacht Club during the ball. Mr Fitzgibbon also ended up in the water, which was 20cm deep. He hit his face on the sand and his injuries left him a quadriplegic. He said he was accidentally nudged from behind and lost his balance when his feet butted against a 20cm-high toeboard on the jetty’s edge. There was no handrail. Mr Fitzgibbon sued the Waterways Authority, the Yacht Club and Mosman Council for damages for negligence. They were said to be responsible for the design or approval of the jetty and the absence of a handrail. Their defence was that Mr Fitzgibbon deliberately dived into the water because he thought Mr Wilmot was in trouble. This was based on evidence from Dr Shane Trevithick, the emergency registrar at Royal North Shore Hospital, who said Mr Fitzgibbon told him he dived in because he thought his friend was drowning. In the Supreme Court Mr Fitzgibbon denied this and said he was jostled or pushed and lost his balance. Other young sailors described him tumbling into the water, and putting his arms out in front of him as he fell. Several said Mr Wilmot was by then standing in the water and clearly not in danger. One witness said Mr Fitzgibbon, while still in the water, asked him “who pushed me in?”. Acting Justice Peter Newman accepted Dr Trevithick’s evidence and dismissed the action. Mr Fitzgibbon appealed to the Court of Appeal, claiming Justice Newman had failed to give adequate reasons and failed to properly consider all the evidence. The Court of Appeal held that Justice Newman had failed to examine all the evidence or to explain why Dr Trevithick’s evidence was to be preferred, and held that the finding that Mr Fitzgibbon deliberately dived into the water was glaringly improbable. It ordered a new trial conducted on the basis that the evidence established that he fell into the water after being jostled or pushed and losing his balance. The Waterways Authority appealed to the High Court, primarily complaining of the limited basis on which the new trial was to be conducted. The High Court, by a 4-3 majority, allowed the appeal and ordered a new trial without the limitation related to a particular finding of fact. The Yacht Club and Mosman Council sought special leave to appeal out of time. The Court unanimously allowed extensions of time and ordered that the applications for special leave be granted and that the applications be treated as appeals. The majority also allowed these appeals.
+HIGH COURT OF AUSTRALIA 21 June 2017 THE QUEEN v DICKMAN [2017] HCA 24 Today the High Court unanimously allowed an appeal from the Court of Appeal of the Supreme Court of Victoria. The respondent was convicted following his trial in the County Court of Victoria, of intentionally causing serious injury and making a threat to kill contrary to ss 16 and 20 of the Crimes Act 1958 (Vic). The offences related to an incident on 27 September 2009. The victim, a German tourist, claimed he was a member of the Hells Angels Motorcycle Club in order to gain entrance to a Melbourne nightclub. The victim then accompanied members of the Hells Angels Motorcycle Club to a clubroom in Thomastown, where he was violently assaulted. The Crown case was that it was the respondent who assaulted the victim. In October 2009, the police showed the victim a photoboard and the victim identified a person other than the respondent as the man who had assaulted him. Following an investigation by police, it was accepted that the man identified by the victim had an alibi. The police informed the victim that his initial identification had been mistaken. In August 2011, the police showed the victim a second photoboard and the victim identified the respondent ("the August 2011 identification"). The respondent appealed against his conviction to the Court of Appeal, which allowed the appeal. The majority concluded that the trial judge had erred by failing to exclude the August 2011 identification under s 137 of the Evidence Act 2008 (Vic) ("the Act"). Section 137 states that the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the accused. The majority of the Court of Appeal concluded that any probative value that the August 2011 identification had was so low as to be outweighed by the risk of unfair prejudice, and that as such the evidence should have been excluded. The majority considered that this error had occasioned a substantial miscarriage of justice. The convictions were set aside and a new trial ordered. By grant of special leave, the appellant appealed to the High Court. The principal issue in contention was the correctness of the conclusion of the majority of the Court of Appeal that the probative value of the August 2011 identification was outweighed by the danger of unfair prejudice to the respondent. An additional question raised was whether, if the admission of the August 2011 identification was in error, it resulted in a substantial miscarriage of justice. The High Court held that the admission at trial of the August 2011 identification was not erroneous, because the trial judge was correct to conclude that the danger of unfair prejudice was minimal and could be adequately addressed by directions to the jury. Even if there had been an error in admitting the evidence, the Court concluded that there had been no substantial miscarriage of justice because the prosecution case against the respondent was overwhelming and his conviction inevitable. The Court allowed the appeal and remitted the proceedings to the Court of Appeal for determination of the respondent's pending application for leave to appeal against sentence.
+HIGH COURT OF AUSTRALIA 18 February 2014 THE AUSTRALIAN ELECTORAL COMMISSION v JOHNSTON & ORS WANG v JOHNSTON & ORS MEAD v JOHNSTON & ORS [2014] HCA 5 Today the High Court, sitting as the Court of Disputed Returns, answered questions of law arising in three petitions which dispute the election of six senators for the State of Western Australia to serve in the Senate of the Parliament of the Commonwealth. The election for the fifth and sixth Senate places for Western Australia was very close. Who was to be elected to those places depended on which of two candidates was excluded at a determinative point in the count. When the ballot papers were scrutinised, one of those candidates was 14 votes ahead of the other at the determinative point. On that basis, Mr Zhenya Wang and Senator Louise Pratt would have been elected to the fifth and sixth places. Mr Wayne Dropulich and Senator Scott Ludlam, who would have been elected to those places had the other of those candidates been excluded, successfully sought a re-count. During the conduct of the re-count, it emerged that 1,370 ballot papers had been lost between the earlier counts and the re-count. When the available ballot papers were re-counted, the candidate who had been excluded in the earlier counts was instead 12 votes ahead at the determinative point. This meant that Mr Dropulich and Senator Ludlam were to be elected to the fifth and sixth Senate places. The Australian Electoral Officer for Western Australia ("the AEO") declared the result of the election on that basis. The Australian Electoral Commission, Mr Wang and a person qualified to vote at the election, Mr Simon Mead, filed petitions in the Court of Disputed Returns disputing the result of the election. Each petitioner asserted that the loss of the ballot papers contravened the Commonwealth Electoral Act 1918 (Cth) ("the Act"). Mr Wang and Mr Mead also asserted that certain decisions made by the AEO in relation to ballot papers reserved during the re-count for his consideration were wrong. The Court tried three questions of law. Those questions required the Court to consider whether it could decide who should have been elected and whether it could come to that conclusion by looking at records made in earlier counts about the lost ballot papers. The Court held that it was precluded under the Act from looking at records of earlier counts of the lost ballot papers. It found that, without regard to the voting intentions recorded in those ballot papers, the conclusion that the loss probably affected the result of the election was inevitable. The number of ballot papers lost far exceeded the margin between the candidates at the determinative point in the count. And the re-count yielded different tallies of votes and different decisions about rejection or acceptance of ballot papers from those reached in the earlier counts, in numbers which could not be dismissed as irrelevant or trivial. The Court rejected the argument of Mr Wang, Mr Mead and some other parties that it could determine who should have been elected by combining the results of the re-count with the records made in earlier counts about the lost ballot papers. That method of ascertaining the result of the polling is one for which the Act does not provide. The Court concluded that it is therefore unnecessary for it to consider whether certain ballot papers had been wrongly accepted or rejected by the AEO in the re-count. The Court will hold a further hearing on Thursday, 20 February 2014 to determine the final disposition of the petitions.
+HIGH COURT OF AUSTRALIA Public Information Officer 14 May 2008 JEAN ERIC GASSY v THE QUEEN A direction to a deadlocked jury in Mr Gassy’s murder trial was not sufficiently balanced and resulted in a miscarriage of justice requiring a new trial, the High Court of Australia held today. After an 11-week trial in the South Australian Supreme Court, Mr Gassy was convicted of murdering the State’s Director of Mental Health Dr Margaret Tobin as she left a lift to return to her office on the eighth floor of an Adelaide city building after lunch on 14 October 2002. She got into a lift with two men and another woman. One man and the woman alighted at the seventh floor. As Dr Tobin got out of the lift on the eighth floor and walked away she was shot four times. She died soon afterwards without identifying the shooter. Mr Gassy allegedly shot Dr Tobin due to resentment and anger from her part in initiating a process that led to his deregistration as both a medical practitioner and psychiatrist when Dr Tobin was in practice in Sydney. The case against Mr Gassy was circumstantial as other lift passengers could not identify him and no witness could say that he was left alone in the lift with Dr Tobin or that it was he who fired the shots. The facts as alleged by the prosecution case at trial included the following. Six months before the murder, Mr Gassy, an experienced pistol shooter, booked into a Brisbane motel under a false name and acted suspiciously at a Royal Australian College of Psychiatrists’ conference where Dr Tobin was to speak. Just before the killing, he booked into an Adelaide motel under a false name. On each trip hire cars were booked in false names. Gunshot residue of the same brand of ammunition used to kill Dr Tobin was found in the hire car in which Mr Gassy drove to Adelaide. He owned pistols and ammunition of the kind used to kill Dr Tobin. In Brisbane, a man matching Mr Gassy’s description bought a part for a Glock 26 pistol at a gunshop, and gave the name Gassy or Gass, his firearms licence number and his sister’s mobile phone number as a contact number. A receipt for the purchase was found at his flat. Other receipts were found at the Renmark dump after a man was seen putting a plastic bag in a service station bin. The SA Court of Criminal Appeal (CCA), by majority, dismissed Mr Gassy’s appeal. The High Court, hearing an application for special leave to appeal, dismissed nine grounds of appeal but referred the remaining two grounds (on which Justice Bruce Debelle would have allowed the appeal to the CCA) to the whole Court to be heard as an appeal. The two issues were Justice Ann Vanstone’s rejecting Mr Gassy’s request to have counsel represent him only at a pre-trial hearing into the admissibility of evidence while representing himself at the trial, and further directions by Justice Vanstone after the jury indicated they could not reach a verdict. Mr Gassy argued his own case before the High Court, having refused the offer of senior counsel to appear pro bono. The Court unanimously granted the application and, by a 3-2 majority, allowed the appeal. It ordered a new trial and held that Justice Vanstone’s further directions lacked neutrality so causing a substantial miscarriage of justice. The majority held that the directions merely restated the essential elements of the prosecution case, with barely a reference to the defence case. The jury returned its guilty verdict just half an hour later. It had been deadlocked after a day and half’s deliberations. The Court unanimously held that Justice Vanstone erred in ruling that Mr Gassy was not entitled to counsel for the voir dire unless counsel was also retained for the trial. The majority held that, because the other ground was resolved in Mr Gassy’s favour, it did not need to decide whether a miscarriage of justice had occurred in respect of this ground.
+HIGH COURT OF AUSTRALIA 2 March 2005 NAGV AND NAGW OF 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS AND REFUGEE REVIEW TRIBUNAL Australia had an obligation to grant protection visas to a Russian father and son, despite their right to settle in Israel, the High Court of Australia unanimously held today. NAGV and NAGW arrived in Australia as tourists in 1999 and applied for protection visas, claiming they had a well-founded fear of persecution in the Russian Federation because they were Jewish and because of NAGV’s political activities. The Refugee Review Tribunal found the men had a genuine fear of persecution if they were returned to Russia, so were entitled to refugee status. However the RRT affirmed the Immigration Department’s decision to refuse to grant them protection visas as Israel was a country in which they would have effective protection under Israel’s Law of Return, which gives every Jew the right to live there. NAGV’s wife is not Jewish (she and their daughter were in Lithuania) and the family rejected the option of moving to Israel, partly because of a concern about discrimination against mixed-marriage families and partly because compulsory military service would conflict with the family’s pacifism. The RRT was not satisfied that these reasons were relevant to the question of whether they would have effective protection in Israel. The Federal Court rejected their application for relief and the Full Court of the Federal Court, by majority, rejected an appeal. The Full Court agreed that the 2000 Full Court decision, Minister for Immigration and Multicultural Affairs v Thiyagarajah, relating to an asylum seeker who had been granted refugee status in France then travelled to Australia in a bid for asylum here, was wrongly decided. However the majority concluded that the Full Court should not depart from what had become settled law and that NAGV and NAGW should be denied protection visas. They then appealed to the High Court. The High Court held that the availability of another country which would accept asylum seekers did not mean Australia did not have protection obligations under the United Nations Refugee Convention. The Court held that the RRT erred in its construction of section 36(2) of the Migration Act, which stated that the criterion for a protection visa is that the applicant is a non-citizen to whom Australia has protection obligations under the Convention. The Minister contended that Australia owed no obligation to provide NAGV and NAGW with asylum because of the availability of a third state – Israel – in which they could live without having a well-founded fear of persecution or facing the risk that they would be sent back to the Russian Federation or to anywhere else where their lives or freedom would be threatened. But the Court held that section 36(2) did not provide for such a qualification on Australia’s protection obligations. Although an asylum seeker might have obtained protection elsewhere, Australia still owed protection obligations to them. The Court quashed the RRT’s decision to refuse NAGV and NAGW protection visas and ordered that it redetermine their case according to law.
+HIGH COURT OF AUSTRALIA 17 October 2018 WET052 v THE REPUBLIC OF NAURU [2018] HCA 47 Today the High Court unanimously dismissed an appeal from a judgment of the Supreme Court of Nauru. The appellant, an Iranian citizen, arrived on Christmas Island in 2013, and was subsequently transferred to the Republic of Nauru. In May 2014, the appellant 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, alternatively, as a person owed complementary protection. His application was refused by the Secretary. The appellant applied for merits review of the Secretary's decision to the Refugee Status Review Tribunal ("the Tribunal"). The appellant claimed that he had a well-founded fear of being persecuted by reason of his association with his father, who he alleged was physically abusive, an alcoholic and drug addict, engaged in drug trafficking and compelled the appellant to engage in drug trafficking with him. The Tribunal identified concerns with some of the appellant's claims. The appellant did not satisfactorily explain why, in his initial interview upon transfer to Nauru, he did not mention his father's involvement in the use and supply of illicit drugs. The Tribunal also found the appellant's claim that his father would force him to distribute drugs on an almost full-time basis for three or four years, and the proposition that his father would deliberately implicate the appellant and himself in drug dealing, difficult to accept. Based on these concerns, the Tribunal concluded that it was not satisfied of the credibility of the appellant's claims as to his father's drug use and trafficking ("the adverse credibility finding"). Partly because of this finding, the Tribunal affirmed the Secretary's decision. The appellant appealed to the Supreme Court of Nauru, which dismissed his appeal. The appellant appealed as of right to the High Court. The appeal raised one ground of appeal and one proposed ground of appeal, the latter of which required leave to be pursued. As to the former, the appellant claimed that the adverse credibility finding was illogical and was wrongly treated by the Tribunal as determinative against his claim for recognition as a refugee. The appellant's argument focused on the Tribunal's concern about his failure to explain why he had not mentioned his father's drug use and trafficking at the transfer interview. The High Court rejected this ground. The Tribunal had not found that the appellant's claims as to his father's drug use and trafficking were untrue merely because those claims were not mentioned at the transfer interview. Rather, the Tribunal had based its adverse credibility finding on an accumulated set of concerns that were all open to the Tribunal to identify. There was nothing illogical or irrational about that finding. As to the proposed ground of appeal, the appellant contended that the Tribunal had not properly considered whether he was at risk of persecution in Iran either as a returned asylum seeker who had an adverse political profile ("the particular claim") or as a returned asylum seeker per se ("the general claim"). The High Court held that the appellant had not in fact advanced the particular claim before the Tribunal, and therefore it was not necessary for the Tribunal to have considered it. The High Court also held that the Tribunal had considered and indeed come to a conclusion on the general claim, and that the Tribunal's conclusion was open to it. For those reasons, the High Court refused the appellant leave to raise the proposed ground of appeal. The appeal was dismissed.
+HIGH COURT OF AUSTRALIA 8 February 2023 BRYANT & ORS v BADENOCH INTEGRATED LOGGING PTY LTD [2023] HCA 2 Today, the High Court unanimously dismissed an appeal and cross-appeal from a decision of the Full Court of the Federal Court of Australia. The case concerned the operation of voidable transactions in insolvency governed by Pt 5.7B of the Corporations Act 2001 (Cth). Within Pt 5.7B, s 588FA(3) is a statutory embodiment of the "running account principle". The effect of s 588FA(3) is that if "a transaction is, for commercial purposes, an integral part of a continuing business relationship (for example, a running account)" between a company as debtor and a creditor, then all transactions forming part of that relationship are to be treated as if they together constituted a single transaction in determining if the transaction is an unfair preference given by the company to the creditor, voidable on application by a liquidator. The appellants were the liquidators of a company ("Gunns"). The respondent ("Badenoch") entered into an agreement to supply services to Gunns for harvesting and hauling timber. From 2010, Gunns suffered significant declines in revenue. Badenoch continued to provide services to Gunns, despite Gunns frequently being late in making payments or only making partial payments. In August 2012, Badenoch agreed with Gunns to terminate the agreement on the basis that it would continue to supply some services for a further short period. On 25 September 2012, Gunns appointed liquidators. The liquidators applied under s 588FF(1) to have a series of payments made by Gunns to Badenoch within the six-month period ending on 25 September 2012 declared to be voidable transactions on the basis that they were unfair preferences. The liquidators contended that, if there was a "continuing business relationship" so as to engage s 588FA(3), they were entitled by the "peak indebtedness rule" to choose the starting date within that six-month period to prove the existence of an unfair preference given by Gunns to Badenoch. The primary judge held that the "peak indebtedness rule" applied under s 588FA(3). The primary judge also held that only two of the payments (3 and 4) were made as an integral part of a continuing business relationship involving a running account; and the remaining payments (1 and 2 and 5 to 11) were not. On appeal, the Full Court held that the "peak indebtedness rule" did not apply under s 588FA(3), and that payments 1 and 2 were also part of the relationship. The High Court dismissed the appeal. The Court held that Pt 5.7B of the Corporations Act does not incorporate the "peak indebtedness rule". Further, whether a "transaction is, for commercial purposes, an integral part of a continuing business relationship" under s 588FA(3)(a) involves an objective factual inquiry as to the "business character" of the relevant transaction. On that basis, payments 1 and 2 formed part of the continuing business relationship, but payments 5 to 11 (which occurred after the continuing business relationship had ceased in August 2012) did not. To be an unfair preference, the deemed single transaction under s 588FA(3) – being all of the transactions forming part of the relationship during the relevant period – was required to reduce the indebtedness of Gunns to Badenoch over that period. Because the net indebtedness of Gunns to Badenoch increased over the relevant period, there could be no unfair preference.
+HIGH COURT OF AUSTRALIA 20 June 2014 PLAINTIFF M150 OF 2013 BY HIS LITIGATION GUARDIAN SISTER BRIGID MARIE ARTHUR v MINISTER FOR IMMIGRATION AND BORDER PROTECTION & ANOR [2014] HCA 25 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 S297/2013 v Minister for Immigration and Border Protection [2014] HCA 24. The plaintiff is an Ethiopian national who arrived in Australia as a stowaway on a cargo ship in 2013. 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 31 January 2008 Public Information Officer ATTORNEY-GENERAL OF THE COMMONWEALTH v ALINTA LIMITED, TREWAS PTY LIMITED, TAKEOVERS PANEL, AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION AND AUSTRALIAN PIPELINE LIMITED (in its capacity as responsible entity of Australian Pipeline Trust) The Takeovers Panel’s role in declaring circumstances relating to the affairs of a company to be unacceptable circumstances constituting contraventions of the Corporations Act was not a judicial function and was validly conferred, the High Court of Australia held today. On 13 December 2007, the Court allowed the appeal by the Attorney-General and made a declaration that section 657A(2)(b) of the Act was not invalid for purporting to confer the judicial power of the Commonwealth on the Takeovers Panel. The Court published its reasons today. In April 2006, Alinta and the Australian Gas Light Company (AGL) agreed to merge their assets. The assets included units held by AGL in the Australian Pipeline Trust (APT), a listed managed investment scheme. AGL held 30 per cent of the issued units in APT. Trewas, a subsidiary of Alinta, acquired a further 10.25 per cent of the issued units in APT during August 2006. On the application of Australian Pipeline Limited the Takeovers Panel made a declaration of unacceptable circumstances in relation to these acquisitions. Section 606 of the Act prohibits acquisitions which increase a person’s voting power in a company to more than 20 per cent and prohibits any increase if the starting point is between 20 and 90 per cent. If, as was later argued in Federal Court of Australia proceedings, the agreement gave Alinta a relevant interest in AGL’s units in APT, Alinta’s later purchases of units in APT was a contravention of section 606. The Takeovers Panel made orders vesting the additional units acquired by Alinta in the Australian Securities and Investments Commission on trust for sale, with proceeds remitted to Alinta. Alinta applied to the Federal Court for review, contending that the Panel’s declaration and orders were invalid because in making them the Panel exercised the judicial power of the Commonwealth. Justice Arthur Emmett rejected the contention. The Full Court of the Federal Court, by majority, allowed Alinta’s appeal and declared section 657A(2)(b) of the Act invalid. The High Court granted the Attorney-General special leave to appeal against the orders made by the Full Court. Other parties discontinued proceedings in the High Court as the underlying commercial controversy was resolved and the disputed APT units disposed of. The Attorney-General arranged for counsel to appear as amici curiae to provide contrary argument. The High Court unanimously allowed the appeal and held that Takeover Panel does not exercise the judicial power of the Commonwealth when discharging its functions under section 657A(2)(b) of the Act. The Panel’s making of a declaration of unacceptable circumstances under that section does not involve resolution of a controversy about a legal obligation. Instead the Panel undertakes the non- judicial function of considering policy considerations relevant to the public interest. It makes orders about the process to be undertaken with respect to a takeover and what the rights of the parties should be. The Panel’s task is the creation of new rights and obligations rather than adjudicating a dispute about a contravention of the Corporations Act. It lacks power to compel compliance with its orders. An order of a court is necessary for enforcement of compliance with the Panel’s orders. A court may make any order that it considers appropriate where a contravention has occurred.
+HIGH COURT OF AUSTRALIA 20 July 2016 CROWN MELBOURNE LTD v COSMOPOLITAN HOTEL (VIC) PTY LTD & ANOR [2016] HCA 26 Today the High Court, by majority, allowed an appeal from a decision of the Court of Appeal of the Supreme Court of Victoria. A majority of the High Court held that the Court of Appeal erred in finding that a claim in estoppel was made out and in remitting the matter to the Victorian Civil and Administrative Tribunal ("the VCAT") for further consideration, but was correct to conclude that there was no collateral contract. The appellant ("Crown") is the owner of the Melbourne Casino and Entertainment Complex. The respondents ("the tenants") held leases of two areas in the Complex under which, after 1 September 2005, they operated two restaurants ("the 2005 leases"). The 2005 leases were limited to a term of five years and did not contain an option for renewal. However, in the course of negotiations for the 2005 leases, Crown made a statement to the tenants to the effect that they would be "looked after at renewal time" ("the statement"). Clause 2.3 of the 2005 leases provided that Crown was to give at least six months notice to the tenants prior to the expiration of each lease stating whether Crown would: (a) renew the lease, and on what terms; (b) allow the tenants to occupy the premises on a monthly tenancy; or (c) require the tenants to vacate the premises. In December 2009 Crown gave notice, pursuant to cl 2.3(c), requiring the tenants to vacate the premises on the expiration of the leases on 31 August 2010. In July 2010, the tenants commenced proceedings in the VCAT in which they alleged that Crown had represented in the statement that they would be given a further term of five years following the expiration of the 2005 leases. These representations were said to amount to a promise that Crown would exercise its power under cl 2.3(a) and offer a renewal for a further five year term. The tenants claimed that the terms of the further leases that Crown was obliged to offer them were to be the same (or the same, mutatis mutandis) as the 2005 leases. The VCAT did not find that Crown had made representations in the terms claimed by the tenants. However, it did find that the statement gave rise to a collateral contract obliging Crown to offer to renew the leases for a further five year term and that Crown was able to stipulate the other terms of the renewal. Alternatively, the VCAT concluded that Crown was estopped from denying the existence of the collateral contract. The decision of the VCAT was set aside on appeal to the Supreme Court of Victoria. The Court of Appeal granted the tenants leave to appeal but dismissed the appeal save with respect to the estoppel issue, which it remitted to the VCAT for determination of what relief, if any, should be granted. The High Court, by majority, held that the statement was not capable of giving rise to a collateral contract or founding a claim for estoppel. In respect of the estoppel claim, the tenants did not act on the basis of an expectation in the terms identified by the VCAT, namely, that the tenants would be offered further five year leases at renewal time on terms to be decided by Crown. Therefore, there was also no utility in the order for remittal made by the Court of Appeal.
+HIGH COURT OF AUSTRALIA 11 November 2010 STATE OF SOUTH AUSTRALIA v TOTANI & ANOR [2010] HCA 39 The High Court today held s 14(1) of the Serious and Organised Crime (Control) Act 2008 (SA) ("the Act") and a control order made under it constitutionally invalid. In December 2008, the South Australian Commissioner of Police applied to the Attorney-General for South Australia for a declaration under s 10(1) of the Act in respect of the Finks Motorcycle Club Inc. Section 10(1) of the Act empowers the Attorney-General to make a declaration if he is satisfied that the members of an organisation associate for the purposes of organising, planning, facilitating, supporting or engaging in serious criminal activity and the organisation represents a risk to public safety and order in South Australia. The term "serious criminal activity" is defined to mean the commission of indictable offences or certain summary offences prescribed by regulation. On 14 May 2009, the Attorney-General made the declaration sought by the Commissioner. Eleven days later, the Commissioner applied to the Magistrates Court of South Australia for a control order against Donald Hudson under s 14(1) of the Act. Mr Hudson was not notified of the application and was not required to be notified. The Attorney-General later applied for a control order against Sandro Totani. Section 14(1) requires the Magistrates Court, on application by the Commissioner, to make a control order against a person if the Court is satisfied that the person is a member of a declared organisation. A "member" is defined to include an associate or prospective member, a person who identifies as belonging to the organisation and a person who is treated by the organisation or persons who belong to the organisation, in some way, as if the person belongs to the organisation. By virtue of s 35 of the Act, any person who associates on six or more occasions during a period of 12 months with a member of a declared organisation or a person the subject of a control order made under s 14(1) is guilty of an offence punishable by imprisonment for up to five years. The Magistrates Court made a control order in respect of Mr Hudson, prohibiting him from associating with other persons who are members of declared organisations and from possessing a dangerous article or prohibited weapon. Mr Hudson and Mr Totani then commenced proceedings in the Supreme Court of South Australia seeking a declaration that s 14(1) of the Act was invalid. The Supreme Court held that the sub-section was not valid and that the control order made in respect of Mr Hudson was void. The State of South Australia appealed against this decision to the High Court. The High Court determined that s 14(1) was invalid. A majority of the Court considered that the provision authorised the executive to enlist the Magistrates Court in implementing decisions of the executive and that the manner in which that occurred was incompatible with the Magistrates Court's institutional integrity. In making a declaration under s 10(1) in respect of an organisation, the Attorney-General needed only to be satisfied that a member or members of the organisation committed a criminal offence. Those members did not necessarily include a person against whom the Commissioner of Police later sought a control order under s 14(1). As a result, s 14(1) would oblige the Magistrates Court to impose serious restraints on a person's liberty whether or not that person had committed or was ever likely to commit a criminal offence. The Court dismissed South Australia's appeal and ordered it to pay the costs of Mr Totani and
+HIGH COURT OF AUSTRALIA Public Information Officer 14 November 2006 STATE OF NEW SOUTH WALES v COMMONWEALTH OF AUSTRALIA STATE OF WESTERN AUSTRALIA v COMMONWEALTH OF AUSTRALIA STATE OF SOUTH AUSTRALIA v COMMONWEALTH OF AUSTRALIA STATE OF QUEENSLAND v COMMONWEALTH OF AUSTRALIA STATE OF VICTORIA v COMMONWEALTH OF AUSTRALIA AUSTRALIAN WORKERS’ UNION & ANOTHER v COMMONWEALTH OF AUSTRALIA UNIONS NSW & OTHERS v COMMONWEALTH OF AUSTRALIA The High Court of Australia, by a 5-2 majority, today dismissed challenges to the validity of the Work Choices legislation. In December 2005, Commonwealth Parliament enacted the Workplace Relations Amendment (Work Choices) Act (Work Choices Act) which extensively amended the Workplace Relations Act 1996 (WRA). The principal amendments commenced on 27 March 2006. One of the most important changes was to invoke section 51(xx) of the Constitution (the corporations power) as the basis for a new legislative framework, creating a scheme of regulation of industrial relations between corporations and their employees. The corporations power was not the only power invoked, but it was relied on to support much of the new legislation. Some provisions of the earlier legislation had been based on the corporations power but the Work Choices Act placed more extensive reliance on that power and used it to alter the focus of the regulatory system. The earlier legislative scheme had depended largely on the power conferred by section 51(xxxv), that is, the power to make laws with respect to conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State. The Work Choices Act did not take section 51(xxxv) as its primary focus. In its Australia-wide application to corporations and their employees, it established key minimum contained entitlements of employment relating to basic rates of pay and casual loadings, maximum ordinary hours of work, annual leave, personal leave, and parental leave and related entitlements, many of which had formerly been contained in industrial relations awards. It established the Australian Fair Pay Commission to perform many of the functions previously performed by the Australian Industrial Relations Commission (AIRC). It provided for workplace agreements between employers and employees or involving unions which are registered organisations. The Act regulated certain aspects of the content of workplace agreements. It dealt with industrial action and bargaining in respect of agreements. It altered the role and powers of the AIRC. Other aspects of the Work Choices Act are described in the reasons for judgment. The States of New South Wales, Victoria, Queensland, South Australia and Western Australia and two trade union organisations commenced proceedings in the High Court to challenge the constitutional validity of the Work Choices Act. The challenges were to the whole of the Act or alternatively to particular aspects. The Attorneys-General of Tasmania, the Northern Territory and the Australian Capital Territory intervened in support of the plaintiffs challenge to the constitutional validity of the law. Much of the argument was directed to the legislative power conferred by section 51(xx), and the relationship between section 51(xx) and section 51(xxxv). The plaintiffs claimed the Commonwealth’s use of the corporations power to underpin what the legislation described as “a framework for cooperative workplace relations” was constitutionally impermissible. This claim involved arguments both generally as to the scope of the corporations power and specifically as to its potential use by Parliament to regulate directly relations between corporations and their employees. The plaintiffs argued that Parliament’s power to make laws with respect to foreign, trading and financial corporations was limited in one or more ways. They submitted that section 51(xx) was limited to laws with respect to the “external relationships” of such corporations. The external relationships of corporations, and the trading and financial activities of such corporations, were said not to include relationships between a corporation and its actual or prospective employees. The plaintiffs also submitted that the meaning ambit of section 51(xx) of the Constitution was affected by the existence in the Constitution of the power under section 51(xxxv) so that Parliament has no power to legislate with respect to the relationship between a corporation and its employees except pursuant to section 51(xxxv), which gives Parliament the power to make laws for “conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State”. The High Court, by a 5-2 majority, rejected these submissions and upheld the Commonwealth’s reliance on the corporations power. It rejected the challenge to the central features of the Work Choices Act and also the various challenges to particular provisions. In each action there was judgment for the Commonwealth and the plaintiffs were ordered to pay costs.
+HIGH COURT OF AUSTRALIA 10 March 2021 UMINISTER FOR IMMIGRATION AND BORDER PROTECTION v EFX17 [2021] HCA 9 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 meaning and operation of s 501CA(3) of the Migration Act 1958 (Cth). That sub-section provides that the Minister must, in the way that the Minister considers appropriate in the circumstances, give a person whose visa has been cancelled a written notice of the original decision to cancel and particulars of relevant information, and must invite the person to make representations, within the period and in the manner ascertained in accordance with the Migration Regulations 1994 (Cth), about revocation of the original decision. A delegate of the Minister cancelled the respondent's visa under s 501(3A). An email attaching a letter from the delegate and enclosures was sent to the correctional centre at which the respondent was detained. On 4 January 2017, the letter and enclosures were handed to the respondent by a corrective services officer. The letter explained the decision to cancel the respondent's visa. It also explained that the respondent had an opportunity to make representations about revocation of the decision "within 28 days after you are taken to have received this notice". The letter incorrectly stated that the respondent was taken to have received the notice at the end of the day the email was transmitted (being 3 January 2017). Before the Federal Circuit Court of Australia, the respondent submitted that the Minister failed to comply with s 501CA(3) for essentially two reasons. First, the Minister failed to "give" the written notice and particulars and to "invite" representations because the letter and enclosures were not delivered to the respondent in such a way that he could understand their substantive content given, amongst other things, his limited capacity to understand English. Secondly, neither the Minister nor the delegate who made the cancellation decision personally delivered the written notice, particulars, and invitation to the respondent. Both submissions were rejected by the Federal Circuit Court but on appeal were accepted by a majority of the Full Court of the Federal Court. By grant of special leave, the Minister appealed to the High Court. By notice of contention, the respondent argued that the Full Court's decision should be upheld because the invitation to make representations did not specify the period within which to make such representations. The High Court held that the verbs "give" and "invite" in s 501CA(3) bear their ordinary meanings of, respectively, deliver and request formally. The expression "in the way that Minister considers appropriate in the circumstances" is only concerned with the method of delivery or request. The capacity of a recipient to understand the written notice, particulars, and invitation referred to in s 501CA(3) is not relevant to whether the duties in that sub-section have been performed. The Court also held that the duties in s 501CA(3) are not required to be performed personally by the Minister or the delegate who made the cancellation decision. However, the Court upheld the notice of contention, concluding that an invitation to make representations "within the period ... ascertained in accordance with the regulations" must crystallise the period either expressly or by reference to correct objective facts from which the period could be ascertained on the face of the invitation. The letter provided to the respondent did not do so.
+HIGH COURT OF AUSTRALIA 17 August 2017 FORREST & FORREST PTY LTD v WILSON & ORS [2017] HCA 30 Today the High Court allowed an appeal from a decision of the Court of Appeal of the Supreme Court of Western Australia. A majority of the High Court held that the requirement in s 74(1)(ca)(ii) of the Mining Act 1978 (WA) ("the Act") that an application for a mining lease shall be accompanied by a mineralisation report imposed a condition precedent to the exercise of the powers conferred on various statutory officers under ss 74A(1) and 75(4), and on the Minister under s 75(6), to progress the application through to a grant. On 28 July 2011, Yarri Mining Pty Ltd and Onslow Resources Ltd (the second and fourth respondents respectively) lodged applications for mining leases over land near Onslow in the Pilbara region of Western Australia. The land lay within the boundaries of a pastoral lease held by Forrest & Forrest Pty Ltd ("Forrest"). On 1 September 2011, Forrest lodged objections to those applications. The applications were not accompanied by either a mining proposal (as required by s 74(1)(ca)(i) of the Act) or a mineralisation report (as required, in the alternative, by s 74(1)(ca)(ii) of the Act). A few months after the applications were lodged, a mineralisation report for each application was lodged. On 31 January 2014, purportedly pursuant to s 75(4), the warden (the first respondent) determined that he had jurisdiction to hear the contested applications, and proceeded to make a recommendation to the Minister that the leases be granted. Forrest applied for judicial review of that decision, arguing that the warden made a jurisdictional error in determining that he could hear the applications, on the ground that that jurisdiction could be enlivened only if the applicant had complied with the requirement in s 74(1)(ca)(ii). The primary judge concluded that the warden's hearing of the applications did not involve a jurisdictional error. Forrest appealed against that decision to the Court of Appeal of the Supreme Court of Western Australia. The Court unanimously dismissed the appeal, holding that, although s 74(1)(ca)(ii) did require a mineralisation report to be lodged contemporaneously with an application, that requirement was not a condition precedent to the hearing by, and recommendation of, the warden, with the result that the application could progress provided that a mineralisation report was lodged at some later point in time. By grant of special leave, Forrest appealed to the High Court. A majority of the Court held that compliance with s 74(1)(ca)(ii) was a condition precedent to the exercise of the powers under ss 74A(1), 75(4) and 75(6) of the Act. Applying Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, a consideration of the language of the statute, its subject matter and objects, and the consequences for the parties of holding void acts done in breach of the Act conveyed an intention not to countenance any degree of non-compliance with s 74(1)(ca)(ii). This interpretation was consistent with authority establishing that where a statutory regime confers power on the executive government of a State to grant exclusive rights to exploit the resources of the State, compliance with the requirements of the regime will ordinarily be regarded as essential to the making of a valid grant. Accordingly, the appeal was allowed.
+HIGH COURT OF AUSTRALIA 14 June 2017 HUGHES v THE QUEEN [2017] HCA 20 Today the High Court, by majority, 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 tendency evidence admitted against the appellant was admissible under s 97(1) of the Evidence Act 1995 (NSW). The appellant was arraigned in the District Court of New South Wales on an indictment that charged him, in 11 counts, with sexual offences committed against five female children under the age of 16 years. The complainants were aged between six and 15 years at the time of the offences. The acts charged in each count and the circumstances of their commission varied. The prosecution gave notice that it would seek to adduce evidence from each complainant and from other women as "tendency evidence". The prosecution identified the tendencies of the appellant that it sought to prove as including, first, the appellant having a sexual interest in female children under the age of 16 years and, secondly, the appellant using his relationships to obtain access to female children in order to engage in sexual activities with them. Section 97(1)(b) of the Evidence Act excludes evidence of the character, reputation or conduct of a person to prove that the person has or had a tendency to act in a particular way or to have a particular state of mind ("tendency evidence"), unless the court thinks that the tendency evidence will have "significant probative value". The appellant, applying for an order for separate trials, challenged the admissibility of the tendency evidence on the basis that it lacked sufficient similarity to the charged conduct to have "significant probative value". The trial judge held that the probative value of the tendency evidence was significant in circumstances in which the fact in issue in each count was whether the charged sexual conduct occurred, and so admitted the evidence. The jury returned verdicts of guilty on 10 counts. The appellant appealed his convictions to the Court of Criminal Appeal, relevantly contending that the tendency evidence did not possess "significant probative value". The Court dismissed the appeal. By grant of special leave, the appellant appealed to the High Court. The Court held, by majority, that s 97(1) of the Evidence Act does not condition the admission of tendency evidence on the court's assessment of operative features of similarity between the tendency evidence and the conduct in issue. In cases where it is the occurrence of the offence charged that is in issue, the majority reasoned that evidence will likely have significant probative value where (i) the evidence, by itself or together with other evidence, strongly supports proof of a tendency, and (ii) the tendency strongly supports the proof of a fact that makes up the offence charged. together, The Court further held, by majority, that the tendency evidence adduced at the appellant's trial possessed "significant probative value" in relation to each count for which it was adduced. When considered to engage opportunistically in sexual activity with female children despite a high risk of detection. That evidence was capable of removing doubts about the appellant's conduct and so was significantly probative as to whether the charged offences occurred. Accordingly, the majority held the tendency evidence was admissible, and dismissed the appeal. tendency evidence showed the appellant's tendency the
+HIGH COURT OF AUSTRALIA 19 May 2010 Manager, Public Information REPUBLIC OF CROATIA v DANIEL SNEDDEN [2010] HCA 14 On 30 March 2010 the High Court pronounced orders allowing this appeal and confirming the orders of Deputy Chief Magistrate Cloran, who had determined that the respondent was eligible for surrender to the Republic of Croatia for prosecution for war crimes he allegedly committed contrary to Articles 120 and 122 of its Basic Penal Code. Today the Court published its reasons for allowing the appeal. On 20 January 2006 the Republic of Croatia issued a request to the Australian Government for the extradition of the respondent. His extradition was sought so that he could be prosecuted before a Croatian court for war crimes against prisoners of war (under Article 122) and the civilian population (under Article 120). The crimes are said to have taken place while the respondent was the commander of a unit of Serbian paramilitary troops during the Croatian-Serbian conflict in the early 1990s. Under s 19(2) of the Extradition Act 1988 (Cth) ("the Act"), a person may only be surrendered if that person does not satisfy the magistrate that there are "substantial grounds" for believing that there is an "extradition objection" in relation to the offence for which extradition is sought. Section 7(c) provides that there is an extradition objection in relation to an offence if "on surrender…the person may be prejudiced at his or her trial, or punished, detained or restricted in his or her personal liberty, by reason of his race, religion, nationality or political opinions". In April 2007, Cloran DCM of the Local Court of New South Wales determined that the respondent was eligible for surrender to Croatia. An application for review of that decision was dismissed by a judge of the Federal Court of Australia in February 2009. On 2 September 2009, the Full Court of the Federal Court allowed the respondent's appeal, finding that there were substantial grounds for believing an extradition objection existed within the meaning of s 7(c) of the Act. There had been evidence before Cloran DCM that, in sentencing offenders for war crimes, Croatian courts had treated prior service in the Croatian armed forces as a mitigating factor. The Full Court accepted the submission that the application of the mitigating factor in favour of Croatian forces meant that the respondent would, if convicted, be imprisoned for a longer period than a Croatian counterpart. Noting the respondent's expressed belief in the "self determination of Serbian people in the Balkans", his significant role as a military commander in the conflict, and the terms of the extradition request (which referred to the conflict between "the armed forces of the Republic of Croatia and the armed aggressor's Serbian paramilitary troops") the Full Court found that the mitigating factor is applied by reason of a person's political beliefs. It held that there were therefore substantial grounds for believing the respondent may be "punished" and that such treatment would occur "by reason of" his political opinions. The Republic of Croatia was granted special leave to appeal to the High Court on 12 February 2010. On 30 March, following the hearing of the appeal, orders were pronounced allowing the appeal and confirming the orders of Cloran DCM. Today the High Court published its reasons. The Court held that acceptance that the respondent had certain political opinions, and that such opinions motivated him to join the Serbian forces (and precluded his joining the Croatian forces), was not enough to sustain an objection under s 7(c) based on the treatment by Croatian courts of service in the Croatian forces as a mitigating factor. It was necessary for the respondent to show that courts in Croatia apply the mitigating factor because of political opinions. No such conclusion could be drawn from the evidence.
+HIGH COURT OF AUSTRALIA 15 November 2017 HFM045 v THE REPUBLIC OF NAURU [2017] HCA 50 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 a Nepalese citizen and has spent most of his life in the Jhapa district of Nepal. He is a member of the Chhetri caste. In September 2013, the appellant arrived by boat at Christmas Island. He was subsequently transferred to the Republic of Nauru ("Nauru") under the regional processing arrangement between Australia and Nauru. There he applied to the Secretary of the Department of Justice and Border Control of Nauru ("the Secretary") for a refugee status determination. As part of that application, the appellant claimed to fear persecution in Nepal from Maoists on account of his political opinion. He also claimed to fear persecution from Mongols (members of the Limbu tribe in particular) in his home district of Jhapa on account of his membership of the Chhetri caste. The Secretary determined that the appellant was not a refugee and that his return to Nepal would not breach Nauru's international obligations ("complementary protection"). The appellant applied unsuccessfully to the Tribunal for a merits review of the Secretary's determination. The Tribunal rejected aspects of the appellant's account, including that Maoist militia had been absorbed into the police force and army. The Tribunal referred to a report published on the website of the Nepalese army stating that "Chhetris are heavily represented in the army". The Tribunal was not satisfied that the appellant faced a real possibility of persecution if he returned to Nepal or that he was owed complementary protection by Nauru. The appellant appealed to the Supreme Court of Nauru contending, among other things, that the Tribunal had denied him procedural fairness by failing to put him on notice of the information concerning the Nepalese army and had applied the wrong test to the determination of the complementary protection claim. The Supreme Court of Nauru dismissed the appeal. The appellant appealed to the High Court as of right. The High Court held that the Tribunal was obliged to put the appellant on notice of the significance that it was disposed to attach to the reported level of representation of Chhetris in the Nepalese Army and to give him the opportunity to address the issue. The Court upheld the Supreme Court's conclusion that the Tribunal had not applied the wrong test in determining the appellant's complementary protection claim. The appeal was allowed and the appellant's application for review of the Secretary's decision was remitted to the Tribunal to be dealt with according to law.
+HIGH COURT OF AUSTRALIA 15 August 2018 [2018] HCA 36 Today the High Court unanimously allowed an appeal from the Court of Appeal of the Supreme Court of New South Wales, holding that a new trial should be granted to the appellant on the basis that he was denied procedural fairness in the conduct of a trial involving the respondent's claim for probate of a will in solemn form. The appellant was unrepresented. He claimed an interest in challenging a will made in 2013 ("the 2013 Will"), which left the whole of the estate to the respondent. The appellant filed two caveats against a grant of probate without notice to him. The respondent brought proceedings for orders that the caveats cease to be in force ("the caveat motion"). The respondent also filed a summons for probate of the 2013 Will and a statement of claim, in which the appellant was not named as a defendant. Although the appellant was served with the statement of claim and filed an appearance, he was not directed to take any steps in the proceedings. His preparation was essentially limited to the caveat motion, which was listed for hearing. At a directions hearing, it was explained to the appellant that the trial would be limited to determination of the caveat motion. Three clear business days before the trial, at a further directions hearing, the trial judge told the appellant that the trial would be of the claim for probate and directed that the appellant be joined as a defendant. At trial, the appellant's defence was in disarray. His applications for adjournments were refused. The trial judge delivered judgment orally, granting probate of the 2013 Will in solemn form. The appellant was ordered to pay costs. A majority of the Court of Appeal dismissed the appellant's appeal, but for different reasons. Ward JA concluded that, although the appellant had been denied procedural fairness, that denial did not deprive him of the possibility of a successful outcome. Emmett AJA concluded that the appellant did not have an interest in challenging the 2013 Will. By grant of special leave, the appellant appealed to the High Court. The appellant argued that the Court of Appeal erred in not ordering a retrial. The respondent argued that there was no denial of procedural fairness, and, if there was, there was no substantial miscarriage of justice by reason of any such denial. The Court unanimously held that the appellant had an interest in challenging the 2013 Will and he was denied procedural fairness. The denial of procedural fairness arose from the consequences, and effect on the appellant, of altering the hearing, at short notice, from a hearing of the caveat motion to a trial of the claim for probate. The denial amounted to a "substantial wrong or miscarriage" because the appellant was denied the possibility of a successful outcome.
+HIGH COURT OF AUSTRALIA 21 March 2018 RONALD MICHAEL CRAIG v THE QUEEN [2018] HCA 13 Today the High Court unanimously dismissed an appeal from the Court of Appeal of the Supreme Court of Queensland. The appellant was convicted of murdering his partner on or about 21 January 2011. The appellant's relationship with the deceased was characterised by heavy consumption of alcohol and domestic violence. On 22 January 2011, the appellant attended the Brunswick Heads Police Station, admitting that he had cut the deceased's neck, killing her. In a recorded interview with police, the appellant stated that he and the deceased had been drinking alcohol on the night of 21 January 2011 and had a disagreement, that the deceased had picked up a knife and that he had disarmed her and cut her on the neck "in the heat of the moment". At trial, the appellant's case was that he had not intended to kill, or cause grievous bodily harm to, the deceased. The case relied on his account in the interview raising a doubt that in his intoxicated state he formed the intent to make his act murder. The appellant did not give evidence. He had been advised, incorrectly, by his counsel that if he gave evidence it was likely that he would be cross-examined on his criminal history, including a conviction for a fatal stabbing. However, his counsel had also correctly advised him that if he gave evidence that was consistent with a written account he had given to his solicitor, he would be cross-examined on the inconsistencies between that account and the account given in his police interview. The appellant instructed his solicitor and counsel that he did not wish to give evidence and to run his case on the narrow issue of intent. On appeal to the Court of Appeal, the appellant contended that his trial had miscarried because his decision not to give evidence was based on the incorrect advice that it was likely that this would lead to disclosure of, and cross-examination on, his criminal history. The Court of Appeal rejected this challenge, holding that there was a sound forensic reason for the appellant not to testify. By grant of special leave, the appellant appealed to the High Court. He submitted that the Court of Appeal erred in applying an objective test to the determination of whether there had been a miscarriage of justice. He argued that the incorrect advice had deprived him of the capacity to make an informed choice to testify. The Court held that an appellate court's assessment of whether there has been a miscarriage of justice as a consequence of an accused's decision, based upon incorrect legal advice not to give evidence, requires consideration of the nature and effect of the advice on the decision, and is not an assessment of whether there is an objectively rational justification for the decision. The conclusion that there has been a miscarriage of justice requires an appellate court to be satisfied that it was the accused's wish to give evidence and that the incorrect legal advice effectively deprived the accused of the opportunity to do so. The Court held that the Court of Appeal's conclusion, that there was not a miscarriage of justice, was correct in circumstances in which the evidence did not establish that the appellant's trial would have been conducted differently had the incorrect advice not been given.
+HIGH COURT OF AUSTRALIA 13 September 2017 [2017] HCA 37 Today a majority of the High Court allowed an appeal from a decision of the Court of Criminal Appeal of the Supreme Court of South Australia concerning the proper basis on which to sentence the appellant for an offence of "[p]ersistent sexual exploitation of a child" contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA) ("the CLCA"). Section 50(1) of the CLCA provides that it is 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 under the prescribed age". Section 50(2) defines an "act of sexual exploitation" to mean an act that "could, if it were able to be properly particularised, be the subject of a charge of a sexual offence". The prosecution alleged that, between 1 July 2008 and 19 November 2011, the appellant committed more than one act of sexual exploitation of the complainant contrary to s 50(1). The complainant had been a student in a class taught by the appellant. The alleged acts of sexual exploitation ranged from kissing the complainant in circumstances of indecency to inserting the appellant's penis into the complainant's mouth. At trial, the judge directed the jury that it would be sufficient to prove the offence if they were satisfied beyond reasonable doubt that the appellant had kissed the complainant on more than one occasion in circumstances of indecency, or had committed any two or more of the other acts of sexual exploitation alleged by the prosecution. The judge also directed the jury that it was necessary that they be unanimous (or agreed by statutory majority) as to the commission of at least the same two acts of sexual exploitation. The jury returned a majority verdict of guilty. The judge sentenced the appellant on the basis that he had committed all of the alleged acts of sexual exploitation. The appellant appealed to the Court of Criminal Appeal against conviction and sentence on grounds including that the judge erred in not taking a special verdict or asking questions of the jury after receiving the general verdict in order to ascertain which of the alleged acts of sexual exploitation the jury agreed were proved beyond reasonable doubt. The appeal was dismissed. By grant of special leave, the appellant appealed to the High Court. The Court held that, notwithstanding that it was not known which of the alleged acts of sexual exploitation had been proved, the appellant's conviction was not uncertain. A majority of the Court held, however, that the judge should have exercised her discretion to ask the jury, after the general verdict of guilty was returned, to specify which of the alleged acts of sexual exploitation they agreed had been proved. The majority held that, on the proper construction of s 50(1), each act of sexual exploitation is part of the actus reus of the offence and it is for the jury alone to find the actus reus of the offence proved. In circumstances where the judge did not know which of the acts of sexual exploitation the jury agreed had been proved, the appellant should have been sentenced on the view of the facts most favourable to him, namely, that he had committed the offence by kissing the complainant on more than one occasion in circumstances of indecency. On that basis, a majority of the Court allowed the appeal against sentence and remitted the matter to the Court of Criminal Appeal for the appellant to be resentenced.
+HIGH COURT OF AUSTRALIA 16 November 2016 BYWATER INVESTMENTS LIMITED & ORS v COMMISSIONER OF TAXATION; HUA WANG BANK BERHAD v COMMISSIONER OF TAXATION [2016] HCA 45 Today the High Court unanimously dismissed appeals by four companies ("the appellants") from a decision of the Full Court of the Federal Court of Australia. The High Court held that the appellants were Australian residents for income tax purposes during the relevant years and were thus liable to tax in Australia. All but one of the directors of three appellants  Bywater Investments Ltd, Chemical Trustee Ltd and Derrin Brothers Properties Ltd  were resident in Switzerland. When meetings of directors were held, they took place in Switzerland. Hua Wang Bank Berhad, the other appellant, was incorporated in Samoa and most of its directors were employees of a Samoan international trustee and corporate service provider. In August 2010, the Commissioner of Taxation issued assessments to the appellants in respect of profits derived from the purchase and sale of shares listed on the ASX. The appellants objected to the assessments on the basis, inter alia, that they were not Australian residents under s 6(1) of the Income Tax Assessment Act 1936 (Cth) ("the Act"). Their objections were substantially disallowed by the Commissioner and the appellants appealed to the Federal Court of Australia. The primary judge found that, notwithstanding the overseas location of the formal organs of each company, the real business of the appellants was conducted by an Australian resident, Mr Gould, from Sydney, without the involvement of the directors of the appellants. The primary judge held that the "central management and control" of each appellant therefore was situated in Australia in the terms of s 6(1) of the Act, rendering each appellant liable to tax as an Australian resident. On appeal, the Full Court of the Federal Court rejected the appellants' argument that their central management and control was situated abroad because the meetings of their boards of directors were held abroad. The Full Court found no reason to doubt the primary judge's findings of fact, and no error in the conclusion that each appellant was a resident of Australia for income tax purposes. By grant of special leave, the appellants appealed to the High Court. The Court held that, as a matter of long-established principle, the residence of a company is a question of fact and degree to be answered according to where the central management and control of the company actually abides, and that is to be determined by reference to the course of the company's business and trading, rather than by reference to the documents establishing its formal structure. The Court held that the fact that the boards of directors were located abroad was insufficient to locate the residence of the appellants abroad in circumstances where, on the findings of the primary judge, the boards of directors had abrogated their decision-making in favour of Mr Gould and only met to mechanically implement or rubber-stamp decisions made by him in Australia. The Court held that the appellants could not escape liability for income tax in Australia on the basis that they were resident abroad. Nor could Bywater Investments, Chemical Trustee or Derrin Brothers Properties rely on applicable double taxation agreements on the basis that their "place of effective management" was other than in Australia. The High Court unanimously dismissed the appeals.
+HIGH COURT OF AUSTRALIA 2 December 2009 ZURICH AUSTRALIAN INSURANCE LTD v METALS & MINERALS INSURANCE PTE LTD & ORS [2009] HCA 50 Manager, Public Information HAMERSLEY IRON PTY LTD v SPENO RAIL MAINTENANCE AUSTRALIA PTY LTD & ORS (Matter P29 of 2009) METALS & MINERALS INSURANCE PTE LTD v SPENO RAIL AUSTRALIA PTY LTD & ORS (Matter P30 of 2009) Provisions in general insurance contracts which limit or exclude the liability of an insurer to indemnify the insured party against loss by reason that the party has entered into another contract of insurance in relation to the same risk are rendered void by s 45 of the Insurance Contracts Act 1984 (Cth). The High Court held today, however, that s 45 does not render void provisions which exclude or limit liability where the insured is not a party to the other insurance contract, although named in it as an insured person. Neither does s 45 render void an entire clause of an insurance contract merely because it includes a provision to which s 45 applies. That part of the clause to which s 45 does not apply maintains its effect. Hamersley Iron Pty Ltd entered into a contract with Speno Rail Maintenance Australia Pty Ltd in March 1992 for rail-grinding services. A term of the contract required Speno to indemnify Hamersley and to insure itself against all claims resulting from anything done in performance of the contract which resulted in death or injury to any person. In accordance with the relevant term, Speno entered into an insurance policy with Zurich Australian Insurance Ltd. The policy named Hamersley as insured under the policy, though Hamersley was not a party to it. Hamersley entered into its own insurance contract with Metals & Minerals Insurance Pte Ltd. That contract contained a clause - the “underlying insurance” clause - to the effect that, if Hamersley was indemnified under another insurance contract (whether effected by Hamersley or by another party on Hamersley’s behalf), then MMI would only be liable for excess insurance over the limit of the indemnity provided for in the underlying insurance. Two employees of Speno were injured while performing work under the contract between Hamersley and Speno, and Hamersley became liable to pay monies to each of the injured employees. Zurich paid the amounts due, in accordance with the terms of its insurance contract with Speno. Zurich subsequently sought contribution from MMI in relation to MMI’s liability to indemnify Hamersley under the Hamersley/MMI insurance contract. MMI relied on the underlying insurance clause to limit its liability to the provision of excess insurance, whereas Zurich contended that s 45 of the Insurance Contracts Act rendered the underlying insurance clause void. The primary judge in the Supreme Court of Western Australia agreed with Zurich, but the Court of Appeal allowed MMI’s appeal. The High Court granted special leave to Zurich to appeal from the decision of the Court of Appeal. The High Court considered that the ordinary meaning of “enter into” is “take upon oneself; bind oneself by; subscribe to”. The Court concluded that s 45 was concerned with “other insurance” provisions affecting double insurance only where the insured is a party to the relevant contract of insurance. On its proper construction s 45 did not include a “non-party insured” among the ranks of those who had “entered into” a contract of insurance. Thus s 45 did not render void the “underlying insurance clause” in the Hamersley/MMI insurance contract. Further the High Court held that the term “provision” in s 45 did not operate to render void an entire clause of a contract, of which only one aspect was offensive to s 45. There was no requirement that s 45(1) be construed so that its operation depended entirely upon the way in which a particular contract had been drafted. In the result, only that aspect of the underlying insurance clause which defined coverage by reference to an “other insurance” contract to which the insured was actually a party was rendered void by s 45. For these reasons the High Court dismissed Zurich’s appeal. Having dismissed Zurich’s appeal, the Court considered it unnecessary to determine Hamersley Iron’s appeal or Metals and Minerals’ appeal. The High Court dismissed both appeals.
+HIGH COURT OF AUSTRALIA 5 March 2014 [2014] HCA 6 Today the High Court, by majority, dismissed an appeal from a decision of the Court of Appeal of the Supreme Court of Victoria upholding the conviction of Samuel James. Mr James was convicted following trial in the Supreme Court of Victoria of intentionally causing serious injury to Khadr Sleiman. Mr Sleiman suffered multiple injuries as the result of being struck by a vehicle The prosecution's case at trial was that Mr James deliberately struck Mr Sleiman intending to cause him serious injury. In the alternative, the prosecution charged that Mr James recklessly caused serious injury to Mr Sleiman. The defence case was that Mr Sleiman was struck accidently as Mr James manoeuvred his vehicle in reverse. While the jury was deliberating the prosecutor raised, for the first time, the question of whether the jury should be instructed of the availability of a further alternative verdict that Mr James intentionally caused injury, as opposed to serious injury, to Mr Sleiman. The trial judge declined to do so because the prosecution had not run its case on that basis and because the introduction of an alternative verdict might have deprived Mr James of the possibility of acquittal. Mr James' counsel at trial made no submission on that issue and for this reason was taken to have agreed with the trial judge. Mr James appealed against his conviction to the Court of Appeal contending that the trial judge's failure to instruct the jury of the availability of alternative verdicts had occasioned a substantial miscarriage of justice. The Court of Appeal dismissed Mr James' appeal. Mr James was granted special leave to appeal to the High Court. By majority, the High Court held that the trial judge's duty with respect to leaving to the jury alternative verdicts is to be understood as part of the duty to secure a fair trial to the accused. The question of whether the failure to leave an alternative verdict had occasioned a miscarriage of justice is answered by consideration of what justice to the accused required in the circumstances of the particular case. This consideration takes into account the real issues at the trial and the forensic choices made by trial counsel. The High Court held that the central issue at the trial was whether the prosecution had excluded the reasonable possibility that Mr James had struck Mr Sleiman inadvertently. To have instructed the jury about lesser alternative offences which had not been relied upon by the prosecution or the defence might have blurred that central issue and jeopardised Mr James' chances of acquittal. The Court held that fairness to Mr James did not require that the trial judge direct the jury on the uncharged alternative verdicts.
+HIGH COURT OF AUSTRALIA 8 June 2022 ALEXANDER v MINISTER FOR HOME AFFAIRS & ANOR [2022] HCA 19 Today, the High Court answered questions stated in a special case concerning the validity of s 36B of the Australian Citizenship Act 2007 (Cth). Section 36B empowered the Minister for Home Affairs to determine that a person ceases to be an Australian citizen if satisfied, among other matters, that the person engaged in certain proscribed conduct, including engaging in foreign incursions and recruitment, which demonstrated that the person had repudiated his or her allegiance to Australia. The provision was challenged on grounds including that it was not supported by the power of the Parliament to make laws with respect to "naturalization and aliens" under s 51(xix) of the Constitution, and that it was incompatible with Ch III of the Constitution. The plaintiff was born in Australia and acquired Australian citizenship by birth. He also acquired, and still holds, Turkish citizenship by descent. In April 2013, the plaintiff departed Australia for Turkey and, at some point, travelled into Syria. A Qualified Security Assessment ("QSA") provided by the Australian Security Intelligence Organisation to the Minister in June 2021 stated that the plaintiff had joined the Islamic State of Iraq and the Levant, which was a designated "terrorist organisation", by August 2013, and that he had likely engaged in foreign incursions and recruitment by entering or remaining in al-Raqqa Province in Syria, a "declared area", on or after 5 December 2014. In July 2021, the Minister made a determination pursuant to s 36B of the Citizenship Act, relying in part on the information provided in the QSA, that the plaintiff ceased to be an Australian citizen. The determination stated that the Minister was satisfied that: the plaintiff had engaged in foreign incursions while outside Australia, which demonstrated a repudiation of his allegiance to Australia; that it would be contrary to the public interest for him to remain an Australian citizen; and that he would not become stateless by reason of the determination. In answer to the questions stated, a majority of the High Court held that s 36B of the Citizenship Act was supported by the aliens power, but that it was invalid on the basis that it reposed in the Minister the exclusively judicial function of adjudging and punishing criminal guilt. Some members of the majority reasoned that it was open to Parliament under s 51(xix) of the Constitution to make a law for the exclusion of a person from membership of the body politic for conduct inimical to Australia's interests, so as thereby to make that person an alien. But some members of the majority held that the principal purpose of s 36B was to effect retribution for conduct deemed so reprehensible as to be incompatible with the shared values of the Australian community; and the substantive effect of the Minister's determination under s 36B(1) was to deprive the plaintiff of his entitlement to enter and live at liberty in Australia. This purpose and effect of the law was punitive in character; and in accordance with Ch III of the Constitution, the power to determine the facts which enlivened s 36B was exercisable exclusively by a court that is part of the federal judicature. Two Justices reached the same conclusion that s 36B had a punitive character; it conferred power on the Minister to cease citizenship as a sanction for past conduct, akin to historical forms of punishment, with significant consequences for the individual.
+HIGH COURT OF AUSTRALIA 8 May, 2003 Public Information Officer PERMANENT TRUSTEE AUSTRALIA LIMITED AND PERMENT TRUSTEE COMPANY LIMITED v FAI GENERAL INSURANCE COMPANY LIMITED (IN LIQUIDATION) The High Court of Australia today ordered FAI to pay a claim of more than $10.2 million made under an insurance contract. The contract had been extended for a month but the claimants, the Permanent Trustees companies, did not intend to renew the contract for the full year. FAI was among companies providing professional indemnity cover to the Permanent Trustee companies which explored the possibility of effecting insurance with other insurers before their 1990-91 cover with FAI expired. Credit rating agency Standard and Poor’s had recently downgraded FAI. The existing cover was in several layers totalling $70 million and each layer was provided by various insurers, including FAI. Just before the 1990-91 cover expired, the lead underwriter sought information about Permanent Trustees’ involvement in property trusts. It offered a one-month extension of existing cover while the information was obtained. The price of the extension cost one-12th of the ordinary annual premium with an add-on of 20 per cent. FAI provided cover on the terms proposed. Permanent Trustees’ insurance broker did not tell FAI they were considering not renewing their annual contract. During the extension, claims were made against Permanent Trustees for which they sought indemnity. Proceedings were settled for $100.1 million of which the insurers’ contribution totalled $34.65 million. When FAI refused to meet its share, Permanent Trustees brought action in the New South Wales Supreme Court. The federal Insurance Contracts Act requires the insured disclose every matter it knows to be relevant to the decision of the insurer whether to accept the risk and, if so, on what terms. The trial judge held that had FAI known of Permanent Trustees’ intentions it would not have provided the extension. He ordered FAI to return the extension premium ($4,242.22) and held that FAI had no other liability. Permanent Trustees appealed unsuccessfully to the Court of Appeal, which held that the silence of the broker, which was negotiating for the Permanent Trustees companies, amounted to misrepresentation, and further that Permanent Trustees had acted fraudulently in failing to correct an untrue representation. Permanent Trustees then appealed to the High Court. The High Court, by a 3-2 majority, held that the Act did not require Permanent Trustees to tell FAI they were considering other insurers. The Court held that matters for disclosure were those relevant to FAI’s acceptance of the risk. Insurers had no right to continuing custom and no right to know that an insured might be looking for a different insurer, or a better or more competitive contract of insurance, both matters which any insurer would realise might be happening. The Court allowed the appeal with costs and entered judgment against FAI for a total of $10.2 million plus interest. FAI was allowed to retain the $4,242.22 premium. The Court also expressly overruled the finding of fraud made by the Court of Appeal.
+HIGH COURT OF AUSTRALIA 6 December 2011 SHANE DARRIN QUINN v THE QUEEN [2011] HCA 49 On 3 August 2011 the High Court allowed appeals by Shane Darrin Quinn and Brett Andrew Green against sentences imposed upon them by the Court of Criminal Appeal of New South Wales, and made an order which reinstated the sentences originally imposed by the sentencing judge. Today the Court published its reasons for that order. The appellants pleaded guilty in 2009 to offences contrary to s 23(2) of the Drug Misuse and Trafficking Act 1985 (NSW). The appellants took part with others, including Kodie Taylor, in an enterprise for the cultivation of cannabis plants, of not less than the commercial quantity, for supply. Quinn was the principal of the enterprise, and Green and Taylor were both involved at a senior level, although Green was slightly more senior than Taylor. When the primary sentencing judge sentenced the appellants, he had already sentenced eight other offenders involved in the enterprise, including Taylor, and imposed sentences which had regard to the parity principle as between the appellants and Taylor. Taylor had been sentenced to three years' imprisonment with a non-parole period of 18 months. Quinn was sentenced to six years' imprisonment with a non-parole period of three years, and Green was sentenced to four years' imprisonment with a non-parole period of two years. The Crown lodged appeals in the Court of Criminal Appeal against the sentences imposed on the appellants, but not against the sentence imposed on Taylor. Under s 5D of the Criminal Appeal Act 1912 (NSW) the primary purpose of appeals against sentences by the Crown is "to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons." The Court of Criminal Appeal, in the exercise of its jurisdiction under s 5D, has a discretion to decline to interfere with a sentence even though the sentence is erroneously lenient. By majority, the Court allowed the appeals and imposed sentences of eight years' imprisonment with a non-parole period of five years for Quinn and five years' imprisonment with a non-parole period of three years for Green. The appellants were each granted special leave to appeal to the High Court. The first ground of appeal was that the Court of Criminal Appeal had erred in finding it appropriate to allow the Crown appeal in respect of each appellant, thereby creating a disparity between the appellants' sentences and the sentence imposed on Taylor. The second ground of appeal related to the finding by the Court of Criminal Appeal, absent any submission from the Crown or prior intimation by that Court, that the sentence imposed on Taylor was manifestly inadequate. The High Court held by majority that the Court of Criminal Appeal erred in failing to give adequate weight to the purpose of Crown appeals and the importance of the parity principle, and that it also erred in allowing the appeals partly on a basis that was never raised in argument. Although the sentences imposed on the appellants were manifestly inadequate, they were not derisory and entailed a substantial measure of punishment by full-time imprisonment. There were appropriate relativities between the sentences imposed on the appellants and the sentence imposed on Taylor. The intervention of the Court of Criminal Appeal created unacceptable disparity between the new sentences and the sentence that stood unchallenged in respect of Taylor. Having regard to the disparity consequential upon allowing the appeals and the significant delays which occurred in the appellate process, the Court of Criminal Appeal ought to have exercised its discretion to dismiss the appeals. The High Court further held by majority that the Court of Criminal Appeal was not entitled to allow the appeal on the basis that the sentence imposed upon Taylor was manifestly inadequate. To do so involved a breach of procedural fairness.
+HIGH COURT OF AUSTRALIA 11 February 2015 PLAINTIFF S297/2013 v MINISTER FOR IMMIGRATION AND BORDER PROTECTION & ANOR [2015] HCA 3 Today the High Court unanimously held that a decision made by the Minister for Immigration and Border Protection in July 2014 to refuse to grant the plaintiff a permanent protection visa was not made according to law and that the plaintiff was entitled to have that visa granted. The plaintiff, a Pakistani national, entered Australia by sea at Christmas Island in May 2012. He did not have a visa and was, therefore, an "unlawful non-citizen" within the meaning of the Migration Act 1958 (Cth). By later amendments to the Act he became an "unauthorised maritime arrival". In September 2012, the Minister permitted the plaintiff to make a valid application for a permanent protection visa. The plaintiff made an application for a protection visa which was refused by a delegate of the Minister. The plaintiff sought review of that decision by the Refugee Review Tribunal. The Tribunal remitted the plaintiff's application to the Minister for reconsideration because the plaintiff was found to be a refugee. The Minister did not decide the plaintiff's application. The plaintiff initiated proceedings in the High Court claiming that various regulatory and other steps which were thought to permit the Minister not to decide the plaintiff's application were invalid or ineffective. In June 2014, the High Court held in favour of the plaintiff and ordered that the Minister consider and determine the plaintiff's application for a permanent protection visa according to law. In July 2014, the Minister decided to refuse to grant the plaintiff a protection visa. The only reason for the refusal was that the Minister was not satisfied that the grant of a protection visa to the plaintiff "is in the national interest" because he was an unauthorised maritime arrival. The plaintiff challenged the validity of the "national interest" criterion on which the Minister relied and asked for orders directing the Minister to grant the plaintiff a permanent protection visa. The plaintiff also alleged that amendments made to the Act in late 2014 did not affect his right to a grant of that visa. The High Court unanimously found that the decision made by the Minister to refuse to grant the plaintiff a protection visa was not made according to law. The Court found that the Migration Act 1958 (Cth) stated exhaustively what visa consequences attached to being an unauthorised maritime arrival, and the Minister could not refuse an application for a visa only because the applicant was an unauthorised maritime arrival. The Court also held that the amendments to the Act did not affect the plaintiff's right to obtain a permanent protection visa. It was not necessary for the Court to address the validity of the "national interest" criterion upon which the Minister relied in refusing the plaintiff's application. Immediately following the Full Court making its orders answering the questions reserved for its opinion, French CJ made an order commanding the Minister to grant the plaintiff a permanent protection visa.
+HIGH COURT OF AUSTRALIA 15 May 2019 GARY DOUGLAS SPENCE v STATE OF QUEENSLAND [2019] HCA 15 This matter concerns the validity and operation of Commonwealth and Queensland laws that each purport to regulate the making of gifts to political parties. On 17 April 2019, the High Court published orders declaring the Queensland laws to be valid and a provision of the Commonwealth law to be invalid. Today the Court published its reasons for those orders. The plaintiff, Mr Gary Douglas Spence, is a former president of the Liberal National Party of Queensland. In May 2018, the Queensland Parliament passed amendments to the Electoral Act 1992 (Qld) and the Local Government Electoral Act 2011 (Qld) which prohibit property developers from making gifts to political parties that endorse and promote candidates for election to the Legislative Assembly and to local government councils in Queensland. In November 2018, the Commonwealth Parliament passed legislation inserting Div 3A into Pt XX of the Commonwealth Electoral Act 1918 (Cth). Relevantly, this new Division restricts the making and receipt of gifts from "foreign donors" to "political entities", which include political parties registered under Pt XI. The new division also included s 302CA, which made provision for the relationship between State, Territory and Commonwealth electoral laws. Section 302CA of the Commonwealth Electoral Act relevantly conferred authority on a person to make, and on a political entity to receive and retain, a gift that is not prohibited by Div 3A, provided only that "the gift, or part of the gift, is required to be, or may be" used for the purposes of incurring "electoral expenditure" or creating or communicating "electoral matter". The terms "electoral expenditure" and "electoral matter" were each defined by reference to certain conduct directed at influencing voting at a federal election. The section provided that the authority it conferred would be displaced in particular circumstances, including where a State or Territory electoral law required the gift or part of it to be kept or identified separately in order to be used only for the purpose of a State, Territory or local government election. The plaintiff commenced proceedings against the defendant, the State of Queensland, in the High Court's original jurisdiction, seeking declarations that the Queensland amendments were invalid on several grounds. As for the amendments to the Electoral Act, the plaintiff said that they infringed the implied freedom of political communication. As for the amendments to both the Electoral Act and the Local Government Electoral Act, the plaintiff said that they were purported exercises of a legislative power vested by the Constitution exclusively in the Commonwealth Parliament and also that they infringed the doctrine of inter-governmental immunities. The plaintiff argued in the alternative that the amendments were inoperative because they were inconsistent with s 302CA or Pt XX of the Commonwealth Electoral Act. The defendant in turn challenged the validity of s 302CA on several grounds. The plaintiff and the defendant agreed on a special case stating nine questions, covering these and other issues, for the Court's opinion. The Attorney-General of the Commonwealth intervened to support the validity of s 302CA. The Attorneys-General for each of the other States and for the Australian Capital Territory intervened in support of the defendant. By majority, the High Court held that s 302CA of the Commonwealth Electoral Act was invalid for going beyond the limits of the Commonwealth's legislative power, conferred by s 51(xxxvi) in its application to ss 10 and 31 of the Constitution, over federal elections. Section 302CA did so by protecting from the operation of a State electoral law the giving, receipt and retention of a gift that merely "may", and therefore might never, be used for the purpose of influencing voting at a federal election. Accordingly, other aspects of the defendant's challenge to the section's validity did not arise for consideration, and the Queensland amendments could not be inoperative by reason of inconsistency with s 302CA. Although a minority would have held that the amendments were to some extent inoperative by reason of inconsistency with s 302CA, the Court unanimously held that the Queensland amendments were otherwise valid. The amendments to the Electoral Act, which reflected legislation upheld in McCloy v New South Wales (2015) 257 CLR 178; [2015] HCA 34, did not infringe the implied freedom of political communication. The amendments to both the Electoral Act and the Local Government Electoral Act did not intrude into an area of exclusive Commonwealth legislative power, did not infringe the doctrine of inter-governmental immunities and were not inconsistent with the framework of Pt XX of the Commonwealth Electoral Act.
+HIGH COURT OF AUSTRALIA 6 August 2010 ROWE & ANOR v ELECTORAL COMMISSIONER & ANOR On 26 July 2010, proceedings were commenced in the Melbourne Registry of the Court seeking a declaration that certain provisions of the Commonwealth Electoral Act 1918 (Cth) effecting cut-off dates for consideration of applications for enrolment and transfers of enrolment as an elector are invalid. One of those provisions, s 102(4), prevents the Electoral Commissioner from considering claims for enrolment lodged after 8 pm on the date of the issue of writs for an election for the House of Representatives or the Senate until after the close of polling. Another provision, s 102( 4AA), prevents consideration of claims for transfer of enrolment from one divisional roll to another from 8 pm on the date of the close of the rolls for an election until after the close of polling. A third provision, s 155, provides that the rolls close on the third working day after the date of the writs. The challenged provisions had been introduced into the Commonwealth Electoral Act by the Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Act 2006 (Cth) ("the Amendment Act"). The application for the declaration and for writs of mandamus was referred to the Full Court by Justice Hayne on 29 July 2010 and argument on the application was heard by the Full Court on 4 and 5 August 2010. The application was amended at the hearing so that the declaration sought related to the validity of some other provisions of the Amendment Act. Today the Court by majority declared that provisions of the Amendment Act which introduced the challenged provisions into the Commonwealth Electoral Act are invalid. The declaration also covered certain consequential amendments made by the Amendment Act including other provisions effecting cut-off dates relating to the enrolment of persons living outside Australia (s 94A(4)(a» and itinerant electors (s 96(4», and the eligibility of spouses, de facto partners or children of eligible overseas electors for enrolment (s 95(4». The orders of the Court were: 1. Declare that Items 20, 24, 28, 41, 42, 43, 44, 45 and 52 of Sched 1 to the Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Act 2006 (Cth) are invalid. 2. The second defendant to pay the plaintiffs' costs of the Further Amended Application for an Order to Show Cause. The Court will publish its reasons for decision at a later date.
+HIGH COURT OF AUSTRALIA Manager, Public Information 13 October 2009 JEFFERY & KATAUSKAS PTY LTD v SST CONSULTING PTY LTD & ORS JEFFERY & KATAUSKAS PTY LTD v RICKARD CONSTRUCTIONS PTY LTD (SUBJECT TO DEED OF COMPANY ARRANGEMENT) & ORS [2009] HCA 43 The Supreme Court of New South Wales did not have the power to make a costs order against a company which was not a party to litigation merely because the company had, for commercial gain, funded litigation by an insolvent plaintiff without indemnifying the plaintiff against an adverse costs order. The Supreme Court could only make such an order if the funding arrangement amounted to an abuse of the court’s process. The proposition that a party who funds another’s litigation commits an abuse of process if that party does not agree to meet adverse costs orders imposed on the funded party was too broad and had no basis in legal principle, the High Court held today. On 22 December 2000 Rickard Constructions Pty Ltd entered into a deed of company arrangement (DOCA) with its director Charles Rickard, SST Consulting Pty Ltd and SST Services Pty Ltd (together - the Secured Creditor). Under the DOCA the parties agreed, amongst other things, that Mr Rickard and the Secured Creditor would fund, up to a limit of $150,000, Rickard Constructions’ application filed on 5 September 2000 in the Supreme Court of New South Wales against Jeffery & Katauskas and others, in relation to a failed pavement construction. During the course of the litigation Jeffery & Katauskas obtained two separate orders that Rickard Constructions pay security for costs totalling $187,750. After the agreed funding limit had been reached SST Consulting continued to fund Rickard Constructions’ litigation. Rickard Constructions’ application was eventually dismissed and it was ordered to pay the costs of the successful defendants. The shortfall between Jeffery & Katauskas’ trial costs and the security provided exceeded $450,000. Rickard Constructions was insolvent and incapable of paying the shortfall. Jeffery & Katauskas sought from the primary judge an order for costs against SST Consulting and its directors under rule 42.3(2) of the Uniform Civil Procedure Rules 2005 (the Rules). The primary judge refused to make the order and the Court of Appeal of New South Wales dismissed Jeffery & Katauskas’ appeal. The High Court granted special leave to appeal. Section 98(1)(a) of the Civil Procedure Act 2005 (NSW) provides that costs of civil proceedings are “in the discretion of the court”. The power to award costs is however expressed to be “subject to the rules of court”. Under rule 42.3(1) the court may not make an order for costs against a non-party. That prohibition is qualified by rule 42.3(2) which provides in paragraph (c) that rule 42.3(1) does not limit the power of the court to make an order for payment, by a person, of some or all of the costs of a party to a proceedings, where the costs arose out of the person’s commission of contempt of court or abuse of process. Jeffery & Katauskas argued it was an abuse of process for SST Consulting to agree to fund proceedings by Rickard Constructions, an insolvent plaintiff, without also indemnifying Rickard Constructions for any costs which it might be ordered to pay if its action were unsuccessful, and therefore that SST Consulting should be ordered to pay the legal costs of the successful defendants under rule 42.3(2). By majority the High Court rejected this argument. The Rules themselves provided that costs should not be ordered against a third party other than in the exceptional circumstance that the third party had committed contempt of court or had abused the processes of the court, and a third party’s agreement to fund another party’s litigation was not, of itself, an abuse of process. In this case, Jeffery & Katauskas’ ability to recoup its legal costs from Rickard Constructions would not have improved if there had been no funding arrangement in place and, in any event, a plaintiff’s inability to pay the costs of litigation is an issue which may be addressed by an order that the plaintiff pay security for costs before the litigation proceeds. The High Court found that SST Consulting had not been shown to have committed an abuse of process of the court and dismissed the appeals.
+HIGH COURT OF AUSTRALIA 14 May 2014 MICHAEL ALAN GILLARD v THE QUEEN [2014] HCA 16 Today the High Court unanimously allowed Michael Alan Gillard's appeal against his convictions for four sexual offences. Mr Gillard was tried before the Supreme Court of the Australian Capital Territory on a number of sexual offences against DD. He was convicted of three offences that occurred before DD turned 16 years old. The appeal to the High Court was confined to separate convictions for: three offences of sexual intercourse with DD, without DD's consent, contrary to s 54(1) of the Crimes Act 1900 (ACT) ("the Act"); and one offence of committing an act of indecency in the presence of DD's sister, JL, without JL's consent, contrary to s 60(1) of the Act. These offences were alleged to have occurred when DD was aged 17 and 18 years and when JL was aged 16 years. The offences were said to arise during school holidays on occasions when DD and JL were staying at Mr Gillard's home. Mr Gillard, who was a friend of DD's and JL's father, acknowledged that it was his understanding that DD and JL had been entrusted to his care during these visits. Under s 67(1)(h) of the Act, a complainant's consent to sexual intercourse, or the commission of an act of indecency, is negated if the consent is caused by the abuse by a person of a position of authority over, or other trust in relation to, the complainant. One way in which the prosecution case was put at Mr Gillard's trial was that DD's and JL's consent had been caused by Mr Gillard's abuse of his position of authority. The mental element of the offences provided by ss 54(1) and 60(1) is either knowledge that the complainant is not consenting to sexual intercourse or the commission of the act of indecency, or recklessness as to consent. Section 67(3) relevantly provides that where an accused person knows that consent to sexual intercourse, or to an act of indecency, has been caused by his or her abuse of authority over the complainant, he or she is deemed to know that the complainant is not consenting. The jury at Mr Gillard's trial were directed that the prosecution could establish the mental element of liability for the ss 54(1) and 60(1) offences by proof either of knowledge or recklessness. Mr Gillard appealed to the Court of Appeal of the Supreme Court of the Australian Capital Territory. He argued that at a trial in which the prosecution relies on the accused's abuse of his or her position of authority as negating the complainant's consent, it is necessary to establish that the accused knew that the abuse of authority was the cause of the consent and that recklessness as to consent is not sufficient. The Court of Appeal rejected the argument holding that the mental element of liability for the offences includes recklessness as to consent. By special leave, Mr Gillard appealed to the High Court. The High Court held that recklessness as to consent is a state of mind of indifference as to whether the complainant is consenting. The Court distinguished this state of mind from that of an accused who is heedless of the risk that he or she may be abusing a position of authority over the complainant or the risk that such abuse of authority may have caused the complainant to consent. The directions given to the jury at Mr Gillard's trial wrongly conveyed that it was open to convict Mr Gillard if the jury was satisfied that he was reckless in either of these respects. The Court held this was a material misdirection affecting each of the counts that were the subject of the appeal and directed a new trial be had of those counts.
+HIGH COURT OF AUSTRALIA 12 December 2012 CERTAIN LLOYD'S UNDERWRITERS SUBSCRIBING TO CONTRACT NO IH00AAQS v JOHN CROSS; CERTAIN LLOYD'S UNDERWRITERS SUBSCRIBING TO CONTRACT NO IH00AAQS v MARK GEORGE THELANDER; CERTAIN LLOYD'S UNDERWRITERS SUBSCRIBING TO CONTRACT NO IH00AAQS v JILL MARIA THELANDER [2012] HCA 56 The High Court today held that claims for personal injury damages based on intentional acts were claims for personal injury damages within the meaning of s 198D of the Legal Profession Act 1987 (NSW) ("Legal Profession Act"). The respondents were assaulted by hotel security staff. They sued the appellant, as the insurer of the company that employed those staff, for trespass to the person claiming damages for personal injuries allegedly inflicted intentionally and with intent to injure. The damages awarded in each case were for less than $100,000, with a declaration made that each respondent’s costs for legal services were subject to s 198D of the Legal Profession Act. Section 198D 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 was greater. Section 198C of the Legal Profession Act provided that "personal injury damages" had the same meaning as in 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, including where personal injury resulted from intentional acts. The central point of difference between the parties was 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. In the District Court of New South Wales it was ruled that the respondents' claims were for personal injury damages as defined under s 198D of the Legal Profession Act. On appeal, the Court of Appeal of the Supreme Court of New South Wales held that the costs for legal services were not subject to s 198D of the Legal Profession Act. By special leave, the insurer appealed to the High Court. The High Court allowed the appeals. A majority of the Court held that the claims which the respondents made were claims for personal injury damages within the meaning of s 198D of the Legal Profession Act.
+HIGH COURT OF AUSTRALIA 10 November 2021 SUNLAND GROUP LIMITED & ANOR v GOLD COAST CITY COUNCIL [2021] HCA 35 Today, the High Court unanimously dismissed an appeal from a judgment of the Court of Appeal of the Supreme Court of Queensland. The appeal concerned whether certain "conditions" regarding the payment of infrastructure contributions in a preliminary approval, granted pursuant to the Integrated Planning Act 1997 (Qld), created an obligation to make infrastructure contributions. In 2007, the Queensland Planning and Environment Court had granted a preliminary approval for the future development of land located in the City of Gold Coast, pursuant to the Integrated Planning Act, a predecessor to the Planning Act 2016 (Qld) ("the Preliminary Approval"). Relevantly, the Preliminary Approval contained four "conditions" regarding the payment of infrastructure contributions by the developers to the respondent Council. Two of the conditions also provided that the calculations of infrastructure contributions would recognise existing infrastructure credits over the site. In 2015, the second appellant purchased that parcel of land. The appellants ("Sunland") applied for a series of development permits, which the Council resolved to grant in 2016. In 1997, the Integrated Planning Act introduced a new regime to permit local governments to levy infrastructure charges by notice. This regime was maintained by both the Sustainable Planning Act 2009 (Qld) and the Planning Act. Section 6.1.31(2)(c) of the Integrated Planning Act preserved, as an interim measure, the capacity for a council to impose a condition on any development approval requiring payment of infrastructure contributions. In 2016, the Council issued purported infrastructure charges notices to Sunland in accordance with the new regime in respect of each application. The infrastructure charges notices did not assess charges or allow credits in accordance with the conditions in the Preliminary Approval. At the time of purchase in 2015, there was approximately $19 million of existing infrastructure credits applicable to the development approved in the Preliminary Approval. A dispute arose between Sunland and the Council as to whether the conditions in the Preliminary Approval created a liability to pay infrastructure contributions. The Court of Appeal found that the primary judge had erred in declaring, among other things, that the Council had the power to collect infrastructure contributions calculated under and in accordance with the Preliminary Approval. The High Court held that the conditions in the Preliminary Approval were not of the kind authorised by s 6.1.31(2)(c) of the Integrated Planning Act, and therefore imposed no liability to pay infrastructure contributions. The ordinary and natural meaning of the conditions could not be said to have required any payments, because the data necessary to quantify the liability were not yet available or even identified. Rather, the conditions served the evident purpose of placing the developer on notice that contributions to infrastructure will be required in the future and when that requirement will be imposed. For that reason, the majority concluded that the power under s 6.1.31(2)(c) had not been exercised.
+HIGH COURT OF AUSTRALIA 28 March 2012 BBH v THE QUEEN [2012] HCA 9 Today the High Court unanimously granted BBH an extension of time to apply for special leave to appeal against his conviction, and also granted special leave, but a majority of the Court dismissed his appeal. The majority held that certain evidence admitted in proof of the applicant's propensity to commit sexual offences against his daughter was relevant and admissible. The applicant was charged with committing certain sexual offences against his daughter. Over the objection of the applicant's counsel, the complainant's brother, W, gave evidence at the applicant's trial of an uncharged incident involving the applicant and complainant. W testified that he had observed an interaction between the complainant and the applicant where the complainant was bent over and unclothed from the waist down, and the applicant had his hand on her waist and his face near her bottom. During cross-examination, W accepted that the incident may have had an innocent explanation, such as that the applicant may have been looking for an ant bite or a bee sting. The complainant testified that she could not remember the incident and the applicant denied that it occurred. On 17 May 2007, a jury convicted the applicant of one count of maintaining an unlawful sexual relationship with a child under 16 years of age, four counts of indecent dealing with a child under 16 years of age and four counts of sodomy of a person under 18 years of age. He was sentenced in the District Court of Queensland to 10 years' imprisonment for each count, to be served concurrently. The applicant appealed against his conviction to the Court of Appeal of the Supreme Court of Queensland. He argued, among other things, that the trial judge had erred in allowing W's evidence to be put to the jury and that the directions given to the jury were inadequate to avoid undue prejudice to the applicant. The Court of Appeal dismissed the appeal. A majority of the High Court dismissed the appeal. Their Honours held that W's testimony was relevant because it demonstrated the applicant's sexual interest in the complainant. The majority also considered that W's testimony satisfied the Pfennig v The Queen (1995) 182 CLR 461 test for the admissibility of propensity evidence. That is, their Honours held that, when viewed in the context of the prosecution's case, there was no rational explanation for the incident consistent with the applicant's innocence.
+HIGH COURT OF AUSTRALIA 14 June 2017 AIR NEW ZEALAND LTD v AUSTRALIAN COMPETITION AND CONSUMER COMMISSION; PT GARUDA INDONESIA LTD v AUSTRALIAN COMPETITION AND CONSUMER COMMISSION [2017] HCA 21 Today the High Court unanimously dismissed two appeals from a decision of the Full Court of the Federal Court of Australia. Air New Zealand Ltd and PT Garuda Indonesia Ltd ("the airlines"), supplied unidirectional air cargo services from ports of origin in Hong Kong, Singapore and Indonesia to destination ports in Australia ("the air cargo services"). The principal issue on appeal was whether there was a market "in Australia" for the air cargo services for which the airlines competed for the purposes of the Trade Practices Act 1974 (Cth) ("the TPA"). The High Court held that the findings of fact made by the primary judge led to the conclusion that there was such a market. The Australian Competition and Consumer Commission ("the ACCC") brought proceedings against the airlines alleging breaches of the TPA. At trial, the airlines were found to have been parties to understandings that amounted to price fixing. The understandings involved the imposition of surcharges and fees on the supply of the air cargo services. The primary judge found that this conduct would have contravened s 45(2) of the TPA, as each understanding had the purpose, effect, or likely effect, of substantially lessening competition. But s 4E of the TPA required that the relevant competition for the purposes of s 45(2) was competition in a market in Australia and his Honour found that the market for the air cargo services for which the airlines competed was not in Australia: it was in the place where the "switching decision" – the choice of airline – was given effect, namely, where the cargo was delivered to the airlines at the port of origin. The ACCC appealed to the Full Court of the Federal Court. By majority, the Full Court allowed the appeal, holding that there was a market in Australia for the air cargo services. The majority held that defining a market for the purposes of the TPA involved a "flexible assessment" of various matters, not limited to questions of substitutability, and that the better approach for determining whether a market was in Australia for the purposes of s 4E was to "visualise" the metaphorical market, and then to consider whether it was within Australia, in the sense that at least part of it was in Australia. By grant of special leave, the airlines appealed to the High Court. The plurality held that a market, within the meaning of the TPA, was a notional facility which accommodated rivalrous behaviour involving sellers and buyers, and that it was the substitutability of services as the driver of the rivalry between competitors to which s 4E looked to identify a market, rather than the circumstances of the act of substitution or the "switching decision" itself. In this case, the primary judge's findings established that Australia was not merely the "end of the line" for the air cargo services but was also a vital source of demand for those services from customers, namely, large shippers who were regarded as important to the profitability of the airlines' businesses. As a practical matter of business, the airlines' rivalrous pursuit of Australian customers, in the course of which the matching of supply with demand occurred, was in a market which included Australia; that was so even if the market might also have been said to include Singapore, Hong Kong or Indonesia. In addition, the Court affirmed the decision of the Full Court in rejecting a defence raised by the airlines that foreign laws and administrative practices of a foreign regulator compelled each of them to arrive at, or give effect to, the impugned understandings. The Court also rejected a further defence raised by PT Garuda Indonesia Ltd that there was a practical and operative inconsistency between the Air Navigation Act 1920 (Cth), when read with the Australia-Indonesia Air Services Agreement, and the prohibition in ss 45 and 45A of the TPA.
+HIGH COURT OF AUSTRALIA 1 September 2005 MARIE MARGARET THEODORE v MISTFORD PTY LTD, MAX EGERTON VINES AND Mistford and the Vineses were entitled to rely upon the provision of Mrs Theodore’s title deeds by her son Glen Theodore as security for outstanding payments for the purchase of their business, the High Court of Australia held today. In 1996, Mr Theodore’s company, Mobile Lab Pty Ltd, contracted with the respondents, Mistford and the Vineses, to buy their business, Air Monitoring Services, for $66,500. The first $20,000 was payable on completion and the remaining $46,500 was payable by three instalments over two years with interest at eight per cent. Mr Theodore was guarantor for Mobile Lab’s purchase. In support of the guarantee, he deposited with the Vineses’ solicitors, Klar and Klar, the duplicate certificate of title to land owned by his mother at Buderim on the Sunshine Coast. The circumstances in which this occurred were the subject of factual disputes at the trial in the Queensland District Court. When Mr Theodore defaulted on his repayments in 1997, the respondents relied upon an equitable mortgage being created by the deposit of the duplicate title. In the District Court Mrs Theodore sought a declaration that the respondents held the duplicate title as constructive trustees for her benefit. By counter-claim, the respondents sought orders that an equitable mortgage had been created in their favour. Judge John Robertson dismissed Mrs Theodore’s claim and found for the respondents. Despite her denying any prior knowledge of her son’s use of the title deed, Judge Robertson held that she had given authority for her son to use the deed as security for the purchase of the business. The Queensland Court of Appeal, by majority, held that Mr Theodore, with the authorisation of his mother, had deposited the title deed to her land with Klar and Klar, and thereby secured by equitable mortgage the amount he still owed under the contract of sale. Mrs Theodore had by then sold the land and the proceeds were deposited in Klar and Klar’s trust account. The Court of Appeal held that the respondents were entitled to have what they were owed paid to them from those proceeds, with the balance, if any, returned to Mrs Theodore. She appealed to the High Court. The Court unanimously dismissed the appeal.
+HIGH COURT OF AUSTRALIA 29 April 2004 MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS v B AND B The Family Court of Australia did not have the jurisdiction to order the release of children from an immigration detention centre, the High Court of Australia held today. The High Court also held that the Family Court did not have any jurisdiction to make orders concerning the general welfare of children held in immigration detention. The five B children – two boys and three girls – and their mother were found to be unlawful non- citizens. They claimed to be refugees from the Taliban regime in Afghanistan but were held by the Refugee Review Tribunal to be Pakistan nationals. The father had arrived in 1999 and was granted a temporary visa. The mother and children arrived in 2001 and were refused protection visas. They were originally in the Woomera detention centre, from where the two boys escaped in 2002. On their return to Woomera the boys began proceedings in the Family Court. Their sisters were later joined as parties to the proceedings and the father intervened and sought various orders against the Minister. The father’s visa was revoked in December 2002 when he was also found to be from Pakistan and was he taken into detention at Villawood. The mother and children and shortly afterwards the father were all transferred to the Baxter detention centre in January 2003. In June the mother and daughters were moved out of Baxter to the Woomera residential housing project. Proceedings seeking the release of the children and other orders relating to their welfare were commenced in the Family Court. In October 2002, Justice Christine Dawe dismissed the children’s and the father’s applications, holding that the Family Court did not have jurisdiction in South Australia to make the orders sought. An appeal to the Full Court of the Family Court succeeded, by majority, and the matter was remitted for rehearing before Justice Steven Strickland, who also dismissed the applications. After another appeal a differently constituted Full Court unanimously ordered the children be released from immigration detention, holding that the Family Court’s child welfare jurisdiction was not limited to custody and access disputes or disputes about parental responsibilities, and that the Court could make orders against third parties. The Full Court also granted a certificate under section 95(b) of the Family Law Act giving the Minister a right of appeal to the High Court on the ground that the case involved an important question of law or of public interest. The High Court unanimously allowed the Minister’s appeal, holding that the Family Court did not have jurisdiction to order the children’s release. Under the Constitution, the Family Court, as a federal court, only has the jurisdiction that Parliament confers and this did not extend to a general power to make orders against third parties relating to the welfare of children.
+HIGH COURT OF AUSTRALIA 2 October 2012 AARON BARCLAY v ALEC PENBERTHY & ORS ALEC PENBERTHY & ANOR v AARON BARCLAY & ORS [2012] HCA 40 Today the High Court held, by majority, that a pilot, his employer and an aeronautical engineer were liable to Nautronix (Holdings) Pty Ltd ("Nautronix") for the crash of a plane which a company related to Nautronix had chartered. The pilot, his employer and the engineer were liable in the action per quod servitium amisit ("per quod") for wrongfully depriving Nautronix of the service of its employees injured in the crash, and the pilot and his employer were also liable to Nautronix in negligence. In 2003, a company related to Nautronix chartered an aircraft from Fugro Spatial Solutions Pty Ltd ("Fugro") to test technology Nautronix had developed. Mr Penberthy, an employee of Fugro, flew the aircraft with five passengers on board. Each of the passengers was an employee of Nautronix. The plane crashed, killing two passengers and injuring all others. The accident was caused by an engine failure and Mr Penberthy's negligent handling in response to that engine failure. Mr Aaron Barclay, an aeronautical engineer, designed the engine component that ultimately caused the engine failure. Nautronix, the surviving passengers and the spouses of the deceased passengers commenced proceedings in the Supreme Court of Western Australia against Mr Penberthy, Fugro and Mr Barclay. The primary judge found that each of Mr Penberthy, Fugro and Mr Barclay was liable to each of the surviving passengers and the spouses of the deceased passengers in negligence. The primary judge further found that Mr Penberthy and Fugro (but not Mr Barclay) were liable to Nautronix in negligence. Some of the primary judge's conclusions were appealed and cross-appealed to the Court of Appeal. That Court concluded that Mr Penberthy, Fugro and Mr Barclay were liable in negligence for any economic loss suffered by Nautronix as a result of the loss of its three injured employees. It further held that Nautronix could not claim for damages resulting from the loss of its two deceased employees due to the rule established in Baker v Bolton that a person cannot recover damages for the death of another. Mr Penberthy, Fugro and Mr Barclay appealed to the High Court and Nautronix sought special leave to cross-appeal. In the High Court, Nautronix did not support the conclusion of the Court of Appeal that Mr Barclay was liable to it in negligence. The proceedings in the High Court raised three broad issues. The first issue was the status of the rule in Baker v Bolton. The High Court unanimously held that this rule formed part of the common law of Australia and that it prevented Nautronix from recovering damages for the loss of its two deceased employees. The second issue was the liability of Mr Penberthy and Fugro to Nautronix in negligence. A majority of the Court held that Mr Penberthy and Fugro owed Nautronix a duty to take care not to cause it economic loss. The third set of issues concerned the per quod action, which enables an employer to recover damages for wrongful loss of an employee's services. The Court unanimously held that this action was a part of the common law of Australia and that, if it were permissible for Nautronix to raise the claim in the High Court, Mr Penberthy, Fugro and Mr Barclay would be liable to Nautronix for the wrongful loss of the services of its injured employees. A majority of the Court held that it was open to Nautronix to raise this claim, and the majority therefore held that each of Mr Penberthy, Fugro and Mr Barclay was thus liable to Nautronix in this action. The majority further concluded that the amount of damages in this action was to be measured by reference to the market value of the services lost. That market value was generally to be calculated by reference to the price of employing a substitute less the wages no longer payable to the injured employee.
+HIGH COURT OF AUSTRALIA Public Information Officer 6 August, 2003 ANTHONY PETER SUVAAL v CESSNOCK CITY COUNCIL Mr Suvaal, 35 and a former professional cyclist at the time of his accident, became a quadriplegic when he fell from his bicycle on the edge of Quorrobolong Road near Cessnock on February 2, 1993. He was travelling at 40km an hour and was training with the intention of returning to professional racing. He had ridden along the road hundreds of times before. Although he did not mention it at the accident scene, Mr Suvaal claimed he was brushed by an unidentified motor vehicle and pushed into potholes on the left shoulder of the road. The handlebars then collapsed, causing him to lose control of his bicycle and to crash into a ditch on the opposite side of the road. Mr Suvaal sued the Nominal Defendant, in place of the unidentified driver, for negligent driving and Cessnock City Council for negligent road construction and maintenance. A hearing before Master Joanne Harrison in the New South Wales Supreme Court only concerned liability, as damages had been agreed at $2.35 million against the Nominal Defendant and $2.8 million against the City Council. Master Harrison found in favour of the Nominal Defendant, rejecting Mr Suvaal's claim that a car was involved, but found against the City Council. She held that the accident occurred because Mr Suvaal briefly lost concentration, struck potholes and rough road edges on the left side, the handlebars then fractured and turned anti-clockwise, careering the bike to the other side of the road. Master Harrison found him guilty of contributory negligence and discounted the city council's damages by 20 per cent to $2.24 million. The City Council appealed. The NSW Court of Appeal allowed the appeal, holding that Master Harrison had no proper basis for finding in favour of Mr Suvaal when she had rejected his evidence that an unidentified car caused the sudden deviation into the potholes, the fractured steering mechanism and the fall. The High Court of Australia, by a 3-2 majority, upheld the decision of the Court of Appeal, holding that Master Harrison had erred in finding facts and matters not alleged or put in issue by Mr Suvaal.
+HIGH COURT OF AUSTRALIA TRAVELEX LTD v COMMISSIONER OF TAXATION [2010] HCA 33 29 September 2010 Today the High Court held that a sale of foreign currency on the departures side of the Customs barrier at Sydney International Airport was a GST-free supply under s 38-190(1) of A New Tax System (Goods and Services Tax) Act 1999 (Cth) ("the GST Act"). In November 2007, an employee of Travelex Ltd flew from Sydney to Fiji. After clearing Customs, he went to the Travelex counter in the departure hall and purchased F$400 in bank notes. Travelex sought a declaration in the Federal Court that it was exempt from paying GST on the sale of foreign currency to a passenger who had passed through Customs. Item 4(a) of s 38-190(1) of the GST Act provides that, except to the extent that it is a supply of goods or real property, a supply that is made in relation to rights is GST-free if the rights are for use outside Australia. The primary judge and, on appeal, a majority of the Full Court of the Federal Court rejected Travelex's argument that the supply was a supply "in relation to" rights, and therefore a GST-free supply. Both the primary judge and the majority of the Full Court took the view that the relevant supply was the supply of bank notes and that the rights attaching to those bank notes, as legal tender in Fiji, were merely incidental to that supply. The High Court allowed the appeal and substituted for the orders of the primary judge a declaration that the sale was a supply of or in relation to rights and a GST-free supply under the GST Act. A majority of the Court, observing that the value of bank notes is in the rights that attach to them, characterised the transaction as a supply by which the purchaser acquires the rights that attach to the bank notes, rather than simply a supply of bank notes. The Commissioner of Taxation was ordered to pay Travelex's costs.
+HIGH COURT OF AUSTRALIA 7 November 2012 RCB AS LITIGATION GUARDIAN OF EKV, CEV, CIV AND LRV v THE HONOURABLE JUSTICE COLIN JAMES FORREST, ONE OF THE JUDGES OF THE FAMILY COURT OF AUSTRALIA & ORS [2012] HCA 47 On 7 August 2012 the High Court dismissed a challenge to an order of the Family Court ("the Court") to return four children to the custody of their father in Italy, holding that there had been no denial of procedural fairness. Today the High Court delivered its reasons in this matter. The order to return the children was made after the mother of the children, divorced from the father and living in Australia, refused to return the children to their father, who was living in Italy. This was contrary to a consensual custody agreement between the parents that the children habitually reside with their father. The order was made under provisions of the Family Law Act 1975 (Cth) ("the Act") which give effect to the Convention on the Civil Aspects of International Child Abduction to which Australia is a party. These provisions do not provide for consideration of the merits of the custody arrangements, but simply for an order to be made to return children who have been 'wrongfully' removed from their habitual country of residence. The Court retains a discretion to refuse to make an order in certain circumstances, including where, as the children did in this matter, a child objects to the order. The plaintiff argued that a denial of procedural fairness had occurred where the Court had failed to fully consider those objections and to afford the children an opportunity to intervene as parties or to have independent legal representation. In the reasons handed down today, the High Court observed that the Court had appointed a Family Consultant to report to the Court and the parties on the nature and strength of the children's objections, and that the Family Consultant, as an officer of the Court and a person skilled in advising the Court on such questions, could be relied on to inform the Court fairly and sufficiently on the relevant issues. A majority of the Court noted that, in addition to the evidence of the Family Consultant, the mother of the children had also had the opportunity to adduce evidence on the children's objections from a psychologist. The High Court rejected the submission that resolution of questions about a child's objections always required separate legal representation for each child, as this incorrectly assumed that a child would always have sufficient maturity to instruct a lawyer, and that only a lawyer could adequately determine the child's views. A majority of the High Court also observed that no practical unfairness had resulted from the children's non-intervention as parties in the proceeding. Accordingly the High Court concluded that there was no procedural unfairness to the children.
+HIGH COURT OF AUSTRALIA Public Information Officer 19 June, 2003 NEAT DOMESTIC TRADING PTY LTD v AWB LIMITED AND AWB (INTERNATIONAL) LIMITED The High Court of Australia today dismissed a challenge to a decision made in the administration of AWB’s control over bulk export of wheat brought by a grain trader wishing to operate outside the single-desk system. Since July 1999, under the Wheat Marketing Act, every prospective exporter of bulk wheat, other than AWBI, must obtain permission from the Wheat Export Authority. The WEA can only give that consent if AWBI approves the export. The Act restructured the Australian Wheat Board from a statutory marketing authority to a grower-owned company. AWBI is a wholly owned subsidiary of AWB. AWB and AWBI’s constitutions required them to maximise returns for growers who sell NEAT Domestic Trading, of Armidale, sought the WEA’s consent six times between November 1999 and January 2000 for the bulk export of durum wheat to Morocco and Italy, but each time AWBI refused to give its approval. NEAT challenged AWBI’s conduct on administrative law grounds. Its challenge failed in the Federal Court and in the Full Court of the Federal Court. The High Court also held that NEAT’s challenge failed. The Court, by a 4-1 majority, dismissed NEAT’s appeal.
+HIGH COURT OF AUSTRALIA 10 March 2021 MARION ANTOINETTE WIGMANS v AMP LIMITED & ORS [2021] HCA 7 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 manner in which a court should respond to competing applications to stay one or more open class representative proceedings commenced under Pt 10 of the Civil Procedure Act 2005 (NSW) in relation to the same controversy. Following evidence given by executives of AMP Limited at the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry on 16 and 17 April 2018, five open class representative actions were brought against AMP Limited. There is considerable overlap between the claims made in the proceedings, although they are not identical. The representative plaintiff in four of the proceedings filed a notice of motion in the Supreme Court of New South Wales seeking orders that each other proceeding be permanently stayed. An application was made (and ultimately granted) for the remaining proceeding to be consolidated with one of the other four proceedings, filed by Komlotex Pty Ltd ("consolidated Komlotex proceedings"). The primary judge, adopting a "multifactorial approach", found that the consolidated Komlotex proceedings should proceed and the other proceedings should be stayed. The primary judge gave most weight to a comparison of competing funding proposals, costs estimates and net hypothetical return to members, and found that Komlotex Pty Ltd's funding model was likely to provide the best return for group members. Ms Wigmans, the representative plaintiff in the proceeding filed first in time, appealed on grounds that the consolidated Komlotex proceedings were an abuse of process. A majority of the High Court found that there can be no "one size fits all" approach and, where the defendant's interests are not differentially affected, the court is to determine which proceeding going ahead would be in the best interests of group members. The Supreme Court's power to grant a stay of competing representative proceedings is not confined by a rule or presumption that the proceeding filed first in time is to be preferred. Further, while litigation funding arrangements are not a mandatory consideration relevant to the exercise of the stay power, they are not irrelevant. The primary judge assumed there was no basis for distinguishing between the legal teams and litigation funders in each matter and tested the likelihood of achieving particular results by applying the common assumptions to each case. Ms Wigmans conducted her case consistently with those assumptions, and there was no error in the primary judge's approach. The primary judge's approach was not the only manner in which a court might determine which proceeding going ahead would be in the best interests of group members. The appropriate approach will invariably depend on the nature of the case in hand.
+HIGH COURT OF AUSTRALIA 16 October 2008 Public Information Officer NORTHERN TERRITORY OF AUSTRALIA v VINCENT COLLINS AND MARYANN COLLINS The grant of licenses by the Northern Territory to harvest cypress pine timber did not amount to contributory infringement of a patent for methods to produce blue cypress oil because the timber was a staple commercial product, the High Court of Australia held today. Vincent and Maryann Collins have since 1999 owned a patent for methods of producing essential oils from cypress pine. The oil is used in aromatherapy and in cosmetics and body care products, and it may possess anti-bacterial properties and act as a preservative in the treatment of wood. During the 1960s, the NT government planted cypress pine at various sites to try to produce a commercial crop of timber. Results were disappointing and by 1995 the timber was no longer considered to be of suitable commercial quality. However several commercial uses remained for timber harvested from the Howard Springs Plantation outside Darwin, including milling for poles, fencing, flooring and light construction; woodchip mulch; potting mix and firewood. The NT granted four licenses to the Australian Cypress Oil Company (ACOC) from 1998 to 2001 to enter the plantation and take cypress pine timber. Mr and Mrs Collins commenced proceedings in 2005 in the Federal Court of Australia alleging that the NT was liable under section 117 of the Commonwealth Patents Act for infringement by supplying timber to ACOC. Section 117 dealt with contributory infringement of patents by providing that the supply of a product from one person to another was a patent infringement if use of the product would infringe a patent. However, under section 117(2)(b), supply of a “staple commercial product” was not an infringement. Mr and Mrs Collins alleged that ACOC used the bark and wood of the timber to extract blue cypress oil by steam distillation, one of the methods claimed in the patent. The NT denied the validity of the patent and did not admit that ACOC produced blue cypress oil by a process protected by the patent. It also denied that section 117 was engaged by the grant of the licenses, irrespective of whether the patent was valid or whether ACOC used the timber to produce blue cypress oil by a process which infringed the patent. ACOC was not a party to the proceedings. Justice John Mansfield assumed, without deciding, that the patent was valid but dismissed the proceedings. He held that there was no “supply” within section 117 as the licences merely permitted ACOC to harvest the trees and the NT had not engaged in a sale or other means of supply. Moreover, even if there were a supply by the NT, he held that it was of a “staple commercial product” and thus not an infringement. The Full Court of the Federal Court, by majority, allowed the appeal by Mr and Mrs Collins. It held that, although the conduct of the NT amounted to supply of the timber, in all the circumstances the timber was not a staple commercial product. The NT appealed to the High Court. It argued that the supply of an input for a patented method or process was incapable of engaging the operation of section 117, that the grant of licences to ACOC did not amount to a “supply” of timber for the purposes of section 117, and that the timber was a “staple commercial product” within the meaning of section 117(2)(b). The Court unanimously allowed the appeal on the third issue. While the Court considered there had been a “supply” of cypress pine timber by the NT for the purposes of the Patents Act, it held that the timber was a “staple commercial product”, which meant a product supplied commercially for various uses. The cypress pine was supplied to various licensees for a variety of uses and the supply of this staple commercial product by the NT to ACOC could not infringe the patent according to section 117(2)(b). It followed that the order of Justice Mansfield to dismiss the proceeding against the NT was reinstated.
+HIGH COURT OF AUSTRALIA Public Information Officer 31 January 2007 SONS OF GWALIA LTD (subject to deed of company arrangement) v LUKA MARGARETIC AND ING INVESTMENT MANAGEMENT LLC ING INVESTMENT MANAGEMENT LLC v LUKA MARGARETIC AND SONS OF GWALIA LTD (subject to deed of company arrangement) A person who buys shares in a company in reliance upon misleading or deceptive information from the company, or misled as to the company’s worth by its failure to make disclosures required by law, may have a claim for damages against the company which ranks equally with claims of other creditors, the High Court of Australia held today. Sons of Gwalia Ltd was a publicly listed gold mining company. On 18 August 2004, Mr Margaretic bought 20,000 shares for $26,200. Eleven days later, administrators were appointed pursuant to the Corporations Act, and the shares were then worthless. Mr Margaretic alleges that Sons of Gwalia failed to notify the Australian Stock Exchange that its gold reserves were insufficient to meet its sale contracts and that it could not continue as a going concern. He says he is a victim of misleading and deceptive conduct in contravention of the Trade Practices Act, the Corporations Act and the Australian Securities and Investments Commission Act. He sought compensation for the lost value of the shares. Many other shareholders have similar claims. The proceedings have been brought to test the entitlement of shareholders in Mr Margaretic’s position to make a claim, in competition with other creditors, under the deed of arrangement for distributing funds to creditors. The deed administrators applied to the Federal Court of Australia for a declaration that Mr Margaretic’s claim is not provable in the deed of arrangement or alternatively that payment of the claim be postponed until all debts owed to persons other than in their capacity as Sons of Gwalia members are met. ING, a creditor, but not a shareholder, was named as the second respondent. Mr Margaretic cross-claimed for a declaration that he is a creditor entitled to all the rights of a creditor. Justice Arthur Emmett made such a declaration and further declared that his claim is not postponed until all other debts have been satisfied. The Full Court of the Federal Court dismissed appeals by Sons of Gwalia and ING, who then appealed to the High Court. The Court, by a 6-1 majority, dismissed the appeals. Section 563A of the Corporations Act provides that payment of debts such as dividends owed by a company to someone in their capacity as a member of the company is to be postponed until all debts owed to persons otherwise than as members of the company are satisfied. The Court held that this did not apply to a shareholder claiming damages for the loss sustained in their acquisition of the shares when the shares were less valuable than represented, or would have been revealed to be the case had proper disclosure been made. Mr Margaretic’s claim is not one owed to him in his capacity as a member of the company, therefore section 563A does not apply to it. The claim falls within section 553 of the Act, which provides that only claims arising before the relevant date – in this case, the date Sons of Gwalia went into administration – will be considered a debt against the company.
+HIGH COURT OF AUSTRALIA 8 February 2023 METAL MANUFACTURES PTY LIMITED v MORTON AS LIQUIDATOR OF MJ WOODMAN ELECTRICAL CONTRACTORS PTY LTD (IN LIQ) (ACN 602 067 863) & ANOR [2023] HCA 1 Today, the High Court dismissed an appeal from a decision of the Full Court of the Federal Court of Australia. The appeal concerned whether a creditor is entitled, pursuant to s 553C(1) of the Corporations Act 2001 (Cth) ("the Act"), to set off an amount equivalent to that received as an unfair preference against another debt which the creditor can prove in the winding up of a company. Metal Manufactures Pty Limited ("the appellant") was paid $50,000 and $140,000 by MJ Woodman Electrical Contractors Pty Ltd ("MJ Woodman"), a company now in liquidation. Both payments were made within the six-month period prior to the winding up of MJ Woodman. The liquidator of MJ Woodman ("the first respondent") sought to recover those payments from the appellant under s 588FF(1)(a) of the Act on the basis that each was an unfair preference under s 588FA of the Act. The appellant sought to set off its potential liability to repay the alleged unfair preferences against a separate and distinct debt owed to it by MJ Woodman. By an Amended Special Case, the primary judge reserved the following question for consideration by the Full Court of the Federal Court: "Is statutory set-off, under s 553C(1) of the [Act], available to the [appellant] in this proceeding against the [first respondent's] claim as liquidator for the recovery of an unfair preference under s 588FA of the Act?" The Full Court said that the question posed should be answered "No". Before the High Court, the appellant submitted that it was entitled to set off its potential liability under s 588FF(1)(a) against amounts owing to it by MJ Woodman because there had been a mutual dealing between it and that company. The appellant contended that its future liability under s 588FF(1)(a) was no different to any other claim owed to the company because the company would be entitled to receive that amount beneficially. In dismissing the appeal, the High Court held that any liability arising from the making of an order under s 588FF(1)(a) was not eligible to be set off against the debt owed to the appellant. Construed in the context of the statutory scheme of liquidation, s 553C(1) requires that the mutual credits, mutual debts or other mutual dealings be credits, debts or dealings arising from circumstances that subsisted in some way or form before the commencement of the winding up. Here, immediately before the winding up there was nothing to set off as between the appellant and MJ Woodman; the company owed money to the appellant, but the appellant owed nothing to the company. The contingent right held by the liquidator to sue for an order under s 588FF could not and did not exist before then. Moreover, there was no mutual dealing within the meaning of s 553C(1) because there had been no dealing between the same persons and there was no mutuality of interest.
+HIGH COURT OF AUSTRALIA 7 August 2019 [2019] HCA 23 Today the High Court unanimously allowed an appeal from the Administrative Appeals Tribunal ("the Tribunal"), removed from the Federal Court of Australia under s 40(1) of the Judiciary Act 1903 (Cth). The High Court held that ss 10(1), 13(11) and 15(1) of the Public Service Act 1999 (Cth) did not impose an unjustified burden on the implied freedom of political communication, with the result that the termination of the respondent's employment with the Commonwealth was not unlawful. As set out in the Public Service Act, the Australian Public Service ("APS") Code of Conduct ("the Code") included a requirement that APS employees "at all times behave in a way that upholds the APS Values and the integrity and good reputation of the APS" (s 13(11)); the APS Values included that "the APS is apolitical, performing its functions in an impartial and professional manner" (s 10(1)); and an Agency Head could impose sanctions on an APS employee found to have breached the Code, including termination of employment (s 15(1)). Departmental and APS guidelines cautioned against unofficial public comment and recorded a "rule of thumb" that anyone posting material online should assume that their identity and employment would be revealed. While an employee in the Department of Immigration and Citizenship, the respondent used the Twitter handle "@LaLegale" to broadcast more than 9,000 tweets, many of which were critical of that Department, its other employees, policies and administration, and Government and Opposition immigration policies and members of Parliament. Following an investigation, a delegate of the relevant Agency Head determined that the respondent had breached the Code and proposed a sanction of termination of employment. After providing the respondent with opportunities to respond to the proposed sanction, the delegate decided to impose that sanction under s 15(1) of the Public Service Act, and a notice of termination was provided to the respondent. The respondent claimed compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) for injury resulting from the termination of her employment. In that Act, "injury" was defined to exclude injury suffered as a result of "reasonable administrative action taken in a reasonable manner in respect of the employee's employment" (s 5A(1)). A delegate of the appellant rejected the claim, and another delegate affirmed that determination, on the basis that the respondent's injury was suffered as a result of such action. That decision was set aside by the Tribunal, on the basis that the use of the Code impermissibly trespassed upon the respondent's implied freedom of political communication. On appeal, the High Court unanimously held that the impugned provisions had a purpose consistent with the constitutionally prescribed system of representative and responsible government, namely the maintenance of an apolitical public service. The Court also held that the provisions were reasonably appropriate and adapted or proportionate to their purpose and accordingly did not impose an unjustified burden on the implied freedom.
+HIGH COURT OF AUSTRALIA 10 March 2011 HOGAN v HINCH [2011] HCA 4 Today the High Court rejected a challenge by Mr Derryn Hinch to the validity of a provision which permitted suppression orders to be made in proceedings under the Serious Sex Offenders Monitoring Act 2005 (Vic) ("the Act"), and which made publication of material contravening those orders an offence. In 2008, Mr Hinch was charged with contravening orders made by the Victorian County Court under s 42 of the Act. The Act has since been repealed and replaced by the Serious Sex Offenders (Detention and Supervision) Act 2009 (Vic). Those orders prohibited publication of any information that might enable certain convicted sex offenders, made the subject of extended supervision orders, to be identified. The terms of the suppression orders reflected the words of s 42(1)(c) of the Act, a provision which empowered the courts to make such orders where it was satisfied that it was "in the public interest" to do so. Section 42(3) created an offence of publication of material in contravention of a suppression order made under s 42(1). The charges arose out of alleged publications made by Mr Hinch on the website "HINCH.net" and at a public protest rally in Melbourne. On 30 July 2010, so much of the cause as concerned the validity of s 42 was removed into the High Court. In the High Court, Mr Hinch alleged that the section was invalid on three grounds. The first two grounds were based on implications sought to be drawn from Chapter III of the Constitution, namely, that s 42 impermissibly diminished the institutional integrity of the courts of Victoria and, secondly, that suppression orders made pursuant to s 42 were contrary to an implication to be derived from Chapter III that all State and federal court proceedings must be conducted in public. The third ground was that s 42 was invalid because it infringed the implied constitutional freedom of political communication. The Court today declared that s 42 was not invalid upon any of those grounds. The Court, noting that the requirement that justice be administered publicly is not an absolute rule, unanimously held that the power under the Act to make suppression orders was not contrary to any implication arising out of Chapter III of the Constitution. The requirement of s 42 that courts have reference to the "public interest" when deciding whether to make a suppression order ensured that the power did not render the relevant courts inappropriate repositories of federal judicial power under Chapter III. Although the Court accepted that s 42(3) did burden freedom of communication about government or political matters, it held that the law operated in support of the broader scheme embodied in the Act, namely, the protection of the community by the effective monitoring of released sex offenders. Properly construed, it was reasonably appropriate and adapted to serve a legitimate end in a manner compatible with the maintenance of the constitutionally prescribed system of government, and therefore was not invalid on this ground. The focus of s 42 was upon the conduct of proceedings under the Act, not upon naming a particular person as having committed or having been convicted of an offence. Whether publishing a person's name was to publish information which might enable an offender or another person who has appeared or given evidence in the proceeding under the Act to be identified would be a question of fact to be decided by reference to the whole of the publication and any other relevant evidence.
+HIGH COURT OF AUSTRALIA Public Information Officer 10 April, 2003 PHILIP CHEE MING NG v THE QUEEN PETER ANDREW FITTOCK v THE QUEEN The High Court of Australia today unanimously upheld the use of reserve jurors in federal criminal trials, holding that the practice of having additional jurors did not conflict with section 80 of the Constitution. The applications for special leave to appeal by Mr Ng and Mr Fittock against their convictions were based on claims that the empanelling of reserve jurors at their respective trials was unconstitutional so they had not received a proper trial by jury. Their applications were rejected in February, and the High Court handed down its reasons for judgment today. Mr Ng was convicted by a jury in Victoria for conspiring to import a commercial quantity of heroin, an offence under the Commonwealth Customs Act. Fifteen jurors were empanelled and before the jury retired to consider its verdict three jurors were removed by ballot to reduce the jury to 12. The jury foreperson’s name was drawn out but the foreperson is immune from removal by ballot and another name was drawn instead. Mr Fittock was convicted in the Northern Territory of murdering his pregnant girlfriend and of attempted unlawful killing of another man. The NT also permits up to three extra jurors, but unlike Victoria, they remain in reserve to replace any juror who becomes incapacitated rather than being part of a larger pool whittled down to 12 towards the end of the trial. A reserve juror who sat through the trial was not required and was discharged before the jury retired. The High Court said of both applications for special leave that they had no prospect of success.
+HIGH COURT OF AUSTRALIA 1 May 2013 AMIRAM DAVID WEINSTOCK & ANOR v TAMAR RIVQA BECK & ANOR [2013] HCA 14 Today the High Court unanimously allowed an appeal by Mr Amiram Weinstock and Mrs Helen Weinstock regarding the purported appointment of Mrs Weinstock as a director of LW Furniture Consolidated (Aust) Pty Ltd. The Court held that under s 1322(4)(a) of the Corporations Act 2001 (Cth) Mrs Weinstock's appointment could be validated even though Mr Weinstock had not been properly appointed as a director when he purported to appoint her as an additional director. LW Furniture was incorporated in 1971. Its articles of association required that there be no fewer than two directors. If the number of directors dropped below two, the continuing director could appoint an additional director. The two initial directors were the parents of Mr Weinstock and his sister, Mrs Tamar Beck. In 1973, Mr Weinstock and Mrs Beck were appointed additional directors of LW Furniture until the next annual general meeting of the company. Their appointment as directors ended before the meeting started. At that meeting (and those following), it was resolved to reappoint directors retiring at that meeting. Given Mr Weinstock and Mrs Beck had retired before the meeting began, the resolution did not apply to them and they were not reappointed. However, both Mrs Beck and Mr Weinstock acted as if they had been validly appointed. In 1982, Mrs Beck resigned as a director of the company. In 2003, the father of Mr Weinstock and Mrs Beck died. Their mother could not hold office as she was unable to look after her own affairs, and Mr Weinstock continued to act as the only director of the company. He purported to appoint his wife, Mrs Weinstock, as a director of the company. Mrs Beck challenged this appointment on the basis Mr Weinstock was not a director. In the Supreme Court of New South Wales, Barrett J made an order under s 1322(4)(a) of the Act declaring the appointment of Mrs Weinstock valid. On appeal, the Court of Appeal set aside this order. By special leave, Mr and Mrs Weinstock appealed to the High Court. The High Court allowed the appeal. The Court held that the purported appointment of Mrs Weinstock was a contravention of LW Furniture's constitution and that s 1322(4)(a) of the Act gave power to a court to declare the appointment valid. The Court remitted the matter to the Equity Division of the Supreme Court of New South Wales for determination.
+HIGH COURT OF AUSTRALIA 8 September 2005 PELLEGRINO PAUL MULE v THE QUEEN The jury at Mr Mule’s drug trial was correctly instructed about the weight that it may choose to give to particular statements he made in a police interview, the High Court of Australia held today. Mr Mule was convicted of possessing 27 ecstasy tablets weighing 5.5 grams with intent to sell or supply them to another and was jailed for two years and nine months. Under section 11 of the Misuse of Drugs Act, a person is deemed, unless the contrary is proved, to have an intent to supply if possessing two grams of ecstasy. The tablets, $32,750 in cash, a loaded pistol and a stun gun were found in two safes at Mr Mule’s home in the Perth suburb of Ballajura in August 2001. He was in Broome at the time but his wife phoned him during the search and they spoke in both English and Italian. This conversation was intercepted by police. Mr Mule did not give evidence at his trial in the District Court of Western Australia. A videotaped police interview and transcripts of certain intercepted telephone conversations were tendered as evidence without objection. In the interview, he and his solicitor admitted that the ecstasy tablets belonged to him but that they were for personal use. In summing up, Judge Allan Fenbury contrasted the admission of possession with the exculpatory assertions about personal use and pointed out that Mr Mule’s denials were not supported by evidence from him on oath. No objection or request for redirection were sought but this direction was the subject of the sole ground of appeal against conviction. The Court of Criminal Appeal dismissed the appeal. Mr Mule appealed to the High Court. The Court unanimously dismissed the appeal. It held that Judge Fenbury’s remarks to the jury did not amount to a misdirection. Under section 638 of the WA Criminal Code, instructions about the applicable law are mandatory, while observations on evidence are discretionary within established principles. Observations must be fair and balanced but a judge is not prohibited from making observations favourable to one side or the other if he or she makes clear that it is for the jury alone to decide the facts. Judge Fenbury instructed the jury that as a matter of law the videotaped interview became evidence for Mr Mule as well as against him and that it was not obliged to give the same weight to everything that was said in the interview. Judge Fenbury correctly instructed the jury about Mr Mule’s right to silence and did not detract from this right by pointing out that statements made during the interview were not on oath. The Court held that, in the circumstances of the case, it was appropriate for Judge Fenbury to tell the jury that it was entitled to give less weight to the assertion that the ecstasy was for Mr Mule’s own use than to the admission of possession. The summing-up as a whole made clear that this was a question for the jury.
+HIGH COURT OF AUSTRALIA 5 October 2011 WESTPORT INSURANCE CORPORATION & ORS v GORDIAN RUNOFF LIMITED [2011] HCA 37 Today the High Court allowed an appeal from the Court of Appeal of the Supreme Court of New South Wales and reinstated orders of the primary judge setting aside an arbitral award. On 10 October 2008, in an arbitration conducted under the Commercial Arbitration Act 1984 (NSW) ("the Arbitration Act"), arbitrators delivered the arbitral award in favour of Gordian Runoff Ltd ("Gordian"). The award determined the rights of the parties to treaties for reinsurance ("the treaties") and the effect of s 18B(1) of the Insurance Act 1902 (NSW) ("Insurance Act") upon the obligation of Westport Insurance Corporation and four other reinsurers ("the reinsurers") under the treaties to indemnify Gordian. Gordian was an underwriter of professional indemnity insurance and directors and officers liability ("D&O") insurance. One D&O insurance policy was written for FAI Insurance Ltd ("FAI"), insuring for claims for prior wrongful acts occurring before 31 May 1999 and allowing claims to be made and notified for seven years thereafter ("the FAI policy"). In the arbitration, the dispute between the parties turned upon whether the liabilities of Gordian for claims under the FAI policy were reinsured under the treaties between Gordian and the reinsurers. The central issue was whether the reinsurance treaties covered the FAI policy, given that it covered claims made and notified to Gordian within an extended period of seven years, rather than three years which was said to be the usual period for making claims under the reinsurance treaties. The reinsurers had not been aware of the existence of the FAI policy until 23 February 2001. The treaties required the dispute to be decided by arbitration in accordance with, and subject to, the Arbitration Act. Section 18B(1) relevantly provides that the insured shall not be disentitled to be indemnified by the insurer only by reason of any exclusion clause if, on the balance of probability, "the loss in respect of which the insured seeks to be indemnified was not caused or contributed to by the happening of those events or the existence of those circumstances, unless in all the circumstances it is not reasonable for the insurer to be bound to indemnify the insured". The loss in respect of which Gordian sought to be indemnified was its liability on the three year claims. The "particular circumstance" was that the FAI policy covered claims which were made and notified to Gordian in a seven, not three, year period. Section 29(1) of the Arbitration Act required the arbitrators, relevantly, to make the award in writing and state the reasons for making the award. Under s 38(2), a proceeding described as "an appeal" lay to the Supreme Court "on any question of law arising out of an award". In their reasons for the award, the arbitrators were not persuaded that the reinsurance treaties covered the FAI policy. However, they found that s 18B(1) of the Insurance Act applied to contracts of reinsurance at the time of the arbitration and, as a result, the reinsurance treaties covered Gordian's liability under the FAI policy in relation to the three year claims. The reinsurers appealed to the Supreme Court of New South Wales. The primary judge set aside the arbitral award on the basis that the arbitrators had failed to recognise that the agreement by the reinsurers to extend cover under one of the reinsurance treaties was not a limitation or exclusion in the sense contemplated by s 18B(1) of the Insurance Act. The Court of Appeal allowed Gordian's appeal from the decision of the primary judge and refused leave to the reinsurers to "appeal" against the award. The reinsurers appealed by special leave to the High Court. A majority of the High Court held that the arbitrators, in relying on s 18B of the Insurance Act, were obliged to explain why the steps in that provision were satisfied. The Court held that there was no indication of factual findings in the reasons for the award supporting the inapplicability of the proviso nor supporting its application. The result of the inadequacy of reasons was that the award was set aside. Their Honours also held that s 18B did not apply because the treaties did not exclude or limit the reinsurers liability to indemnify Gordian because the FAI policy was for seven years.
+HIGH COURT OF AUSTRALIA Public Information Officer 30 September, 2003 VICTIMS COMPENSATION FUND CORPORATION v SCOTT BROWN, SHARON LEWIS AND THE DISTRICT COURT OF NEW SOUTH WALES The High Court of Australia today unanimously held that “and” meant “and”, not “or”, in New South Wales victims’ compensation legislation. Mr Brown was stabbed, punched and kicked after answering the door at his Wollongong home in March 1998. His partner, Ms Lewis, witnessed the attack. Both applied for compensation from the Victims Compensation Tribunal. Mr Brown received compensation for physical injuries, but his and Ms Lewis’s claims for shock were dismissed. Clause 5(a) in Schedule 1 of the Victims Support and Rehabilitation Act provided that compensation for shock was only payable if the symptoms and the disability persisted for more than six weeks. The couple had symptoms persisting for six weeks but neither had a disability. Clause 5 listed typical psychological and physical symptoms and typical disabilities. District Court Judge Joseph Phelan held that the “and” in Clause 5(a) meant “or” and allowed Mr Brown’s and Ms Lewis’s appeal. That decision was upheld by a majority of the Court of Appeal. The Victims Compensation Fund Corporation appealed to the High Court, which upheld the approach of the dissenting Court of Appeal judge, NSW Chief Justice James Spigelman. The High Court held “and” should be given its ordinary meaning as a conjunction. It held that in the context of the Act there was no reason to give “and” the meaning “or”, especially when “or” was used elsewhere in Schedule 1 to convey a disjunctive meaning. Neither earlier Acts covering victims’ compensation nor the Act’s second reading speech indicated an intention that “and” mean “or”. Before the Act was introduced, the NSW Auditor-General had warned about the financial viability of the earlier scheme, and the Brahe Review of that scheme suggested a sliding scale of payments for different injuries. Therefore, the Act as a whole and its background pointed to “and” being a conjunction, which had the effect of limiting eligibility. The Court held that the Act endeavoured to define the circumstances for paying compensation in precise language which did not permit universal recovery, and allowed the corporation’s appeal.
+HIGH COURT OF AUSTRALIA 5 November 2014 WELLINGTON CAPITAL LTD v AUSTRALIAN SECURITIES & INVESTMENTS COMMISSION & ANOR [2014] HCA 43 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 responsible entity of a managed investment scheme ("Wellington") was not authorised by the scheme constitution to distribute scheme property in specie to unit holders. Perpetual Nominees Ltd ("Perpetual") was the custodian of the scheme, appointed by Wellington as its agent to hold scheme property on its behalf. On 4 September 2012, Wellington sold assets of the scheme to Asset Resolution Ltd ("ARL") in consideration of the issue of 830,532,768 shares in ARL to Perpetual. The assets disposed of had a publicly stated value of $90.75 million and represented about 41% of the value of the assets comprising the scheme property. On the same day, Wellington instructed Perpetual to transfer the ARL shares held by Perpetual to the unit holders in the scheme in proportion to the number of units held by each unit holder. That transfer was effected on the following day. The Australian Securities and Investments Commission commenced proceedings in the Federal Court of Australia challenging the validity of the transfer. Its application was dismissed by the primary judge. The Full Court of the Federal Court allowed an appeal from that decision and made declarations that the in specie distribution was beyond the power of Wellington under the scheme constitution and that, by making the distribution, Wellington had contravened s 601FB(1) of the Corporations Act 2001 (Cth). Section 601FB(1) required Wellington to operate the scheme and perform the functions conferred on it by the scheme's constitution and by the Corporations Act. By grant of special leave, Wellington appealed to the High Court. The High Court dismissed the appeal, holding that the scheme constitution, properly construed, confined the return of capital to specified circumstances and did not authorise Wellington to make an in specie distribution of scheme property to unit holders. The High Court also held that the declarations made by the Full Court of the Federal Court were appropriate.
+HIGH COURT OF AUSTRALIA 5 August 2015 SMITH v THE QUEEN [2015] HCA 27 Today the High Court unanimously held that the appellant was not denied procedural fairness when the trial judge who had been informed of a jury’s interim votes for and against conviction did not disclose those votes or the voting pattern to counsel. The appellant was tried on one count of rape in the District Court of Queensland in February 2014. During its deliberations, the jury sent three notes to the trial judge. The trial judge disclosed to counsel the precise contents of the first two notes. The jury’s third note indicated that the jury could not agree on a unanimous verdict. It also stated two iterations of the jury's interim votes for and against conviction. The trial judge informed counsel that the jury could not agree and that the note contained the jury’s interim voting patterns, but decided not to disclose the interim votes or voting patterns to counsel. Neither counsel objected. At this point, the judge proposed to permit the jury to consider a majority verdict. Under s 59A of the Jury Act 1995 (Q) (“the Jury Act”), a trial judge has a discretion to permit a jury to return a majority verdict if, after a prescribed period of deliberation, the judge is satisfied that the jury is unlikely to reach a unanimous verdict. A trial judge also has a discretion to discharge a jury at any time under s 60 of the Jury Act. The trial judge asked the jury if further time for deliberation would assist the jury to return a majority verdict. The jury indicated that it might. Accordingly, the trial judge permitted the jury to retire to consider a majority verdict. Neither counsel objected. The jury subsequently returned a guilty verdict by a majority of 11 to 1. The appellant appealed against his conviction to the Court of Appeal of the Supreme Court of Queensland. He contended that he was denied procedural fairness when the judge failed to disclose the precise contents of the jury's third note. He argued that the jury's interim voting patterns were relevant to the trial judge’s discretion either to allow a majority verdict or to discharge the jury, and so ought to have been disclosed to counsel. The Court of Appeal dismissed the appellant's appeal. By grant of special leave, the appellant appealed to the High Court. The High Court unanimously dismissed the appeal, holding that there was no denial of procedural fairness. Procedural fairness requires that a trial judge disclose to counsel all information available to the trial judge but not available to counsel, where that information is relevant to an issue before the court. However, the jury’s interim votes and voting patterns were not and could not be relevant to an issue before the court because of the protean and changeable character of the jury's deliberations. Nothing in the Jury Act otherwise made the interim votes and voting patterns relevant.
+HIGH COURT OF AUSTRALIA 23 June 2011 WAINOHU v THE STATE OF NEW SOUTH WALES [2011] HCA 24 The High Court today held the Crimes (Criminal Organisations Control) Act 2009 (NSW) ("the Act") invalid. In July 2010, the Acting Commissioner of Police for New South Wales applied to a judge of the Supreme Court of New South Wales for a declaration under Part 2 of the Act in respect of the Hells Angels Motorcycle Club in New South Wales ("the Club"). Under the Act, a judge who had been designated an "eligible Judge" by the Attorney-General could make a declaration in relation to an organisation. The eligible Judge had to be satisfied that the members of the organisation associated for the purposes of organising, planning, facilitating, supporting or engaging in serious criminal activity and that the organisation represented a risk to public safety and order in New South Wales. Section 13(2) of the Act provided that an eligible Judge had no obligation to provide reasons for making or refusing to make a declaration. If a declaration was made in respect of an organisation, the Supreme Court was empowered, on the application of the Commissioner of Police, to make control orders against individual members of that organisation. A person the subject of a control order was referred to in the Act as a "controlled member". It is an offence for controlled members of an organisation to associate with one another. They are also barred from certain classes of business and certain occupations. The plaintiff, Mr Wainohu, is a member of the Club. He applied to the High Court for a declaration that the Act was invalid on the basis that it conferred functions on the Supreme Court and its judges which undermined its institutional integrity in a way inconsistent with Ch III of the Constitution. He also argued that the Act infringed the implied constitutional freedom of political communication and political association. The parties agreed a special case which was referred to the Full Court of the High Court in October 2010. The High Court held, by majority, that the Act was invalid. The Act provided that no reasons need be given for making a declaration. The jurisdiction of the Supreme Court to make control orders was enlivened by the decision of an eligible Judge to make a declaration. Six members of the High Court held that, in those circumstances, the absence of an obligation to give reasons for the declaration after what may have been a contested application was repugnant to, or incompatible with, the institutional integrity of the Supreme Court. Because the validity of other parts of the Act relied on the validity of Part 2, the whole Act was declared invalid. The State of New South Wales was ordered to pay Mr Wainohu's costs.
+HIGH COURT OF AUSTRALIA 2 October 2013 ERNEST MUNDA v THE STATE OF WESTERN AUSTRALIA [2013] HCA 38 Today the High Court, by majority, dismissed an appeal from a decision of the Court of Appeal of the Supreme Court of Western Australia, which had allowed an appeal against the original sentence imposed on Mr Ernest Munda for the manslaughter of his de facto spouse ("the deceased") on the basis that it was manifestly inadequate. On 12 July 2010, Mr Munda and the deceased attended a local tavern. Both became intoxicated and Mr Munda used some cannabis. When they returned to their house, an argument developed which soon turned violent. Mr Munda punched the deceased on numerous occasions, threw her about the bedroom and repeatedly rammed her head into the wall. After Mr Munda had finished assaulting the deceased, they both went to sleep. The next morning, Mr Munda had sexual intercourse with the deceased. He then briefly left the house. When he returned, he noticed that the deceased had stopped breathing. The deceased was transported to hospital but was pronounced dead on arrival. She had died from traumatic brain injury. Mr Munda pleaded guilty to manslaughter and was sentenced in the Supreme Court of Western Australia to a term of imprisonment of five years and three months, with a non-parole period of three years and three months. The sentencing judge took Mr Munda's personal circumstances into consideration as a mitigating factor, noting that he was a traditional Aboriginal man who had been exposed to the negative influences of alcohol and family violence from a young age. The Court of Appeal allowed the State's appeal against the sentence and resentenced Mr Munda to seven years and nine months imprisonment. Mr Munda remained eligible for parole. By special leave, Mr Munda appealed to the High Court on the grounds that the Court of Appeal failed to correctly apply the principles concerning State appeals against sentence and that it failed to give proper regard to Mr Munda's antecedents and personal circumstances. A majority of the High Court upheld the Court of Appeal's decision that the original sentence was manifestly inadequate. While it was relevant to take into consideration an offender's circumstances of severe social disadvantage, the High Court held that the same sentencing principles must be applied in every case irrespective of an offender's identity or his or her membership of an ethnic or other group. It was also held that the Court of Appeal did not err in not exercising its residual discretion to refuse to allow the State's appeal.
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