High Court Bulletin
[2024] HCAB 5
High Court Bulletin
Produced by the Legal Research Officer,
High Court of Australia Library
[2024] HCAB 5 (13 June 2024)
A record of recent High Court of Australia cases: decided, reserved for judgment, awaiting hearing in the Court’s original jurisdiction, granted special leave to appeal, refused special leave to appeal and not proceeding or vacated
1: Summary of New Entries
2: Cases Handed Down
3: Cases Reserved
4: Original Jurisdiction
5: Section 40 Removal
6: Special Leave Granted
7: Cases Not Proceeding or Vacated
8: Special Leave Refused
1: Summary of New Entries
2: Cases Handed Down
| Case | Title |
| Dayney v The King | Criminal Law |
| The King v Hatahet | Criminal Law (Cth) |
| Godolphin Australia Pty Ltd v Chief Commissioner of State Revenue | Land Tax |
| Greylag Goose Leasing 1410 Designated Activity Company v P.T. Garuda Indonesia Ltd | Private International Law |
3: Cases Reserved
| Case | Title |
| Morgan & Ors v McMillan Investment Holdings Pty Ltd & Anor | Bankruptcy |
| Steven Moore (a pseudonym) v The King | Evidence |
| Automotive Invest Pty Limited v Commissioner of Taxation | Taxation |
4: Original Jurisdiction
| Case | Title |
| MJZP v DG Security | Constitutional Law |
5: Section 40 Removal
6: Special Leave Granted
| Case | Title |
| SkyCity Adelaide Pty Ltd v Treasurer of South Australia & Anor | Statutes |
7: Cases Not Proceeding or Vacated
8: Special Leave Refused
2: Cases Handed Down
The following cases were handed down by the High Court of Australia during the June 2024 sittings.
Criminal Law
Dayney v The King
B69/2023: [2024] HCA 22
Judgment delivered: 12 June 2024
Coram: Gageler CJ, Gordon, Gleeson, Jagot and Beech-Jones JJ
Catchwords:
Criminal law – Appeal against conviction – Self-defence against provoked assault – Where appellant convicted of murder – Where s 272(1) of Criminal Code (Qld) affords defence of self-defence against provoked assault – Where s 272(2) identifies cases to which defence does not apply – Where s 272(2) contains three clauses – Where third clause of s 272(2) states that accused will not obtain protection of s 272(1) unless they declined further conflict and quitted it or retreated from it as far as practicable before using force in self-defence – Whether condition in third clause of s 272(2) is an independent condition or modifies effect of first two clauses of s 272(2) – Whether trial judge erred in directing jury that appellant must satisfy retreat condition for defence of self-defence against provoked assault.
Words and phrases – "death or grievous bodily harm", "murder", "necessity", "nor, in either case", "reasonably necessary", "self-defence", "self-defence against provoked assault".
Criminal Code (Qld), s 272.
Appealed from QLDSC (CA): [2023] QCA 62; (2023) 13 QR 650
Held: Appeal dismissed.
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Criminal Law (Cth)
The King v Hatahet
S37/2024: [2024] HCA 23
Judgment delivered: 12 June 2024
Coram: Gordon A-CJ, Steward, Gleeson, Jagot and Beech-Jones JJ
Catchwords:
Criminal law (Cth) – Sentence – Where respondent convicted under s 6 of Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth) – Where s 19ALB of Crimes Act 1914 (Cth) provides Attorney-General must not make parole order in relation to person involved in, or convicted of, certain terrorist-related activities unless "exceptional circumstances exist to justify making a parole order" – Where sentencing judge sentenced respondent without taking into account likelihood (if any) of release on parole by reason of s 19ALB of Crimes Act – Where parole subsequently refused by Attorney-General pursuant to s 19ALB of Crimes Act – Whether Court of Criminal Appeal erred in concluding that sentencing judge should have considered application of s 19ALB when sentencing respondent – Whether Court of Criminal Appeal erred in concluding that expectation that parole would be refused due to an application of s 19ALB warranted imposition of lesser sentence.
Words and phrases – "conditions of imprisonment", "executive function", "length of sentence", "non-parole period", "onerous conditions", "parole", "presumption against parole", "prospects of parole", "purpose of sentencing", "sentencing", "terrorism".
Crimes Act 1914 (Cth), ss 16A, 19AB, 19ALB.
Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth), s 6(1)(b).
Appealed from NSWSC (CCA): [2023] NSWCCA 305
Held: Appeal allowed.
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Land Tax
Godolphin Australia Pty Ltd ACN 093921021 v Chief Commissioner of State Revenue
S130/2023: [2024] HCA 20
Judgment delivered: 5 June 2024
Coram: Gageler CJ, Gordon, Edelman, Steward and Jagot JJ
Catchwords:
Land tax – Exemption – Statutory construction – Primary production exemption – Where s 10AA(1) of Land Tax Management Act 1956 (NSW) ("Land Tax Act") exempts from land tax rural land if used for primary production – Where s 10AA(3)(b) provides "land used for primary production" means land dominant use of which is for maintenance of animals for purpose of selling them or their natural increase or bodily produce – Whether requirement of "dominant use" of land applied both to "maintenance of animals" and also to "purpose of sale" in s 10AA(3)(b) of Land Tax Act – Whether "dominant" confined to required use of land only or "dominant" qualifies composite "use-for-a-purpose" phrase.
Words and phrases – "dominant", "dominant purpose", "dominant use", "exempt from taxation", "exemption", "integrated business", "land tax", "multiple purposes", "primary production", "significant use", "tax", "use-for-a-purpose", "use-for-the-identified-purpose", "use-for-the-purpose", "use of land".
Land Tax Management Act 1956 (NSW), ss 7, 9, 10, 10AA, 10A.
Appealed from NSWSC (CA): [2023] NSWCA 44; (2023) 115 ATR 490
Held: Appeal dismissed with costs.
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Private International Law
Greylag Goose Leasing 1410 Designated Activity Company & Anor v P.T. Garuda Indonesia Ltd
S135/2023: [2024] HCA 21
Judgment delivered: 5 June 2024
Coram: Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot and Beech-Jones JJ
Catchwords:
Private international law – Foreign State immunity – Immunity from jurisdiction – Proceedings for winding up of body corporate registered as foreign company – Where appellants commenced proceeding for winding up of respondent under Pt 5.7 of Corporations Act 2001 (Cth) – Where respondent sought order that originating process be set aside on basis that court lacked jurisdiction by operation of ss 9 and 22 of Foreign States Immunities Act 1985 (Cth) ("Act") – Where common ground that respondent an agency or instrumentality of Republic of Indonesia and accordingly a "separate entity" within meaning of Act and entitled to immunity from jurisdiction unless applicable exception from immunity – Where appellants rely on exception in s 14(3)(a) read with s 22 of Act – Where s 14(3)(a) of Act provides that "[a] foreign State is not immune in a proceeding in so far as the proceeding concerns ... bankruptcy, insolvency or the winding up of a body corporate" – Where by operation of s 22 of Act, s 14(3)(a) applies "in relation to a separate entity of a foreign State" as it applies "in relation to the foreign State" – Whether exception from immunity in s 14(3)(a) read with s 22 applies to proceeding for winding up of body corporate that is separate entity of foreign State.
Words and phrases – "agency or instrumentality", "exception from immunity", "foreign State", "immunity from jurisdiction", "legislative history", "purpose and context", "separate entity", "winding up".
Corporations Act 2001 (Cth), Pt 5.7, Pt 5B.2, Div 2.
Foreign States Immunities Act 1985 (Cth), ss 3(1), 3(3), 9, 11, 14(3), 16, 22.
Appealed from NSWSC (CA): [2023] NSWCA 134; (2023) 111 NSWLR 550; (2023) 378 FLR 101; (2023) 410 ALR 371
Held: Appeal dismissed with costs.
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3: Cases Reserved
The following cases have been reserved or part heard by the High Court of Australia.
Arbitration
CBI Constructors Pty Ltd & Anor v Chevron Australia Pty Ltd
P22/2023: [2024] HCATrans 25
Date heard: 16 April 2024
Coram: Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot and Beech-Jones JJ
Catchwords:
Arbitration – Bifurcation of proceedings – Admissibility/jurisdiction dichotomy – Functus officio – Standard of supervisory court review – Where arbitration proceedings arose from contract under which appellants required to provide staff to carry out work at construction sites and respondent required to reimburse appellants for costs of providing staff – Where arbitral tribunal bifurcated proceedings principally on basis that first hearing would deal with liability and second hearing would deal with quantum – Where following first interim award appellants included additional pleading in repleaded case as to staff costs calculation ("Contract Criteria Case") – Where respondent objected to Contract Criteria Case on basis of res judicata, issue estoppel, Anshun estoppel and Tribunal functus officio in respect of liability – Where Tribunal in second interim award declared appellants not prevented from advancing Contract Criteria Case by any estoppels and Tribunal not functus officio in respect of Contract Criteria Case – Where respondent applied to set aside second interim award pursuant to s 34(2)(a)(iii) of Commercial Arbitration Act 2012 (WA) on ground beyond scope of parties’ submission to arbitration – Where Court of Appeal dismissed appeal – Whether Court of Appeal erred finding arbitral tribunal functus officio with respect to Contract Criteria Case for purpose of s 34(2)(a)(iii) – Whether Court erred finding standard of supervisory court’s review of scope of parties’ submission to arbitration in application to set aside arbitral award under s 34(2)(a)(iii) is de novo review in which supervisory court applies "correctness" standard of intervention.
Appealed from WASC (CA): [2023] WASCA 1
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Tesseract International Pty Ltd v Pascale Construction Pty Ltd
A9/2023: [2023] HCATrans 160
Date heard: 15 November 2023
Coram: Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot and Beech-Jones JJ
Catchwords:
Arbitration – Arbitral proceedings – Proportionate liability – Powers and duties of arbitrator – Where appellant agreed to provide engineering consultancy services to respondent in relation to design and construction of warehouse – Where, under contract, if dispute between appellant and respondent arose, dispute could be submitted to arbitration – Where dispute arose where respondent alleged breach of contract, duty of care and misleading or deceptive conduct in contravention of s 18 of Australian Consumer Law – Where appellant denied allegations, but pleaded in alternative that any damages payable should be reduced by reason of proportionate liability provisions under Part 3 of Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 (SA) and Part VIA of Competition and Consumer Act 2010 (Cth) (collectively "proportionate liability regimes") – Whether proportionate liability regimes amenable to arbitration – Whether s 28 of Commercial Arbitration Act 2011 (SA) empowers arbitrator to apply proportionate liability regimes, or whether terms of legislation preclude arbitrator from doing so – Whether implied power conferred on arbitrator to determine parties’ dispute empowers arbitrator to apply proportionate liability regimes, or whether terms of legislation preclude arbitrator from doing so.
Appealed from SASC (CA): [2022] SASCA 107; (2022) 140 SASR 395; (2022) 406 ALR 293
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Bankruptcy
Morgan & Ors v McMillan Investment Holdings Pty Ltd & Anor
S119/2023: [2024] HCATrans 43
Date heard: 12 June 2024
Coram: Gageler CJ, Edelman, Steward, Gleeson and Beech-Jones JJ
Catchwords:
Bankruptcy – Pooling order – Corporations Act 2001 (Cth), s 579E – Meaning of "particular property" – Where first appellant is liquidator of second and third appellants – Where first appellant sought order before primary judge that, inter alia, Australian Securities and Investments Commission ("ASIC") reinstate registration of third appellant, and Court make pooling order pursuant to s 579E of Corporations Act in respect of second and third appellant – Where primary judge made orders that ASIC reinstate registration of third appellant, and that second and third appellants be pooled group for purpose of s 579E of Corporations Act – Where first respondent appealed to Full Court on question of whether pooling order should be set aside – Where Full Court found precondition in s 570E(1)(b)(iv) of Corporations Act not satisfied – Whether Full Court majority erred in finding precondition in s 579E(1)(b)(iv) of Corporations Act not satisfied in circumstances where second and third appellants jointly and severally owned "particular property", being chose in action, at time of making pooling order, being immediately following reinstatement of third appellant – Whether Full Court majority impermissibly departed from clear and unambiguous language of s 601AH(5) of Corporations Act.
Appealed from FCA (FC): [2023] FCAFC 9; (2023) 295 FCR 543; (2023) 407 ALR 328; (2023) 164 ACSR 129
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Civil Procedure
RC v The Salvation Army (Western Australia) Property Trust
P7/2023: [2024] HCATrans 32; [2024] HCATrans 33
Date heard: 7 and 8 May 2024
Coram: Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot and Beech-Jones JJ
Catchwords:
Civil procedure – Permanent stay of proceedings – Prejudice – Where appellant claimed damages with respect to loss and damage suffered as result of sexual abuse by Salvation Army Officer between August 1959 and April 1960, when appellant aged 12 and 13 years old, while in care of respondent – Where Salvation Army Officer died in 2006, eight years before respondent first became aware appellant alleged sexual abuse – Where another key witness died in 1968 – Where respondent applied for permanent stay of proceedings – Where primary judge granted permanent stay – Where appellant unsuccessfully appealed to Court of Appeal – Whether Court of Appeal erred in concluding open to primary judge to grant permanent stay of appellant's action against respondent – Whether Court of Appeal erred in upholding finding of prejudice.
Appealed from WASC (CA): [2023] WASCA 29
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Willmot v The State of Queensland
B65/2023: [2024] HCATrans 31
Date heard: 7 May 2024
Coram: Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot and Beech-Jones JJ
Catchwords:
Civil procedure – Stay of proceedings – Where appellant claimed damages as result of physical and sexual abuse which she claimed she suffered whilst State Child pursuant to State Children Act 1911 (Qld) and under control of respondent by virtue of Aboriginals Protection and Restriction of the Sale of Opium Act 1897 (Qld) – Where alleged perpetrators either deceased or in case of NW, 78 year old man who was 16 at time of alleged conduct – Where trial judge held case in exceptional category where permanent stay warranted – Where Court of Appeal upheld trial judge’s decision – Whether Court of Appeal erred in determining trial judge did not err in exercise of discretion to grant permanent stay of appellant's proceeding.
Appealed from QLDSC (CA): [2023] QCA 102
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Constitutional Law
Attorney-General for the State of Tasmania v Casimaty & Anor
H3/2023: [2024] HCATrans 20
Date heard: 9 April 2024
Coram: Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot and Beech-Jones JJ
Catchwords:
Constitutional law – Legislature – Privileges – Privilege of parliamentary debate and proceedings – Admissibility of report of parliamentary committee – Where proceedings concern road works at intersection – Where first respondent claims to hold interest in land at intersection – Where proposal by Department of State Growth to upgrade intersection considered and reported upon by Parliamentary Standing Committee on Public Works ("Committee") in 2017 – Where second respondent engaged to construct new interchange – Where first respondent claims that works that second respondent was to perform not same as public works considered and reported upon by Committee – Where Attorney-General joined as second defendant and applied to, inter alia, strike out parts of statement of claim as offending parliamentary privilege – Where primary judge found cause of action could not proceed without court adjudicating upon 2017 report of Committee, which would contravene Article 9 of Bill of Rights – Where Full Court dismissed Attorney-General’s interlocutory application – Whether Full Court erred in construing s 15 and s 16 of Public Works Committee Act 1914 (Tas) ("PWC Act") as creating public obligation which falls outside parliamentary process and hence ambit of parliamentary privilege – Whether it would infringe parliamentary privilege for court to determine whether road works complied with s 16(1) of PWC Act by adjudicating upon whether road works that second respondent were engaged to undertake were different from road works reported on by Committee.
Appealed from TASSC (FC): [2023] TASFC 2
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Courts
HBSY Pty Ltd ACN 151 894 049 v Lewis & Anor
S106/2023: [2024] HCATrans 34
Date heard: 9 May 2024
Coram: Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot and Beech-Jones JJ
Catchwords:
Courts – Jurisdiction – Cross-vesting – Appeals – State court invested with federal jurisdiction – Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) ss 7(3), 7(5) – Where dispute arose in respect of first defendant’s late aunt’s estate – Where first defendant’s brother director of Lewis Securities Ltd – Where estate’s largest asset money owing to it by Sir Moses Montefiore Jewish Home ("Montefiore sum") – Where brother deposited Montefiore Sum with Lewis Securities – Where Lewis Securities entered liquidation and Montefiore sum lost – Where brother liable to estate and declared bankrupt – Where plaintiff purchased various assets from trustee in bankruptcy including interest in residue of estate – Where brother discharged from bankruptcy – Where plaintiff sought orders in Supreme Court revoking letters of administration granted to first defendant, or alternatively order that he be replaced as trustee – Where first defendant cross-claimed seeking declarations that plaintiff not entitled to be paid brother’s share of estate – Where plaintiff unsuccessful at first-instance – Where on 27 July 2022, plaintiff filed and served notice of intention to appeal to New South Wales Court of Appeal – Where on 31 August 2022, plaintiff’s legal advisers came to view appeal would concern matter arising under Bankruptcy Act1966 (Cth) and would therefore have to be brought in Full Federal Court – Where plaintiff sought extension of time to appeal from judgment of Supreme Court of New South Wales to Full Court of Federal Court of Australia – Where Full Court held s 7(5) of Cross-Vesting Act did not apply and suggested plaintiff may wish to revive process it had commenced in Court of Appeal – Where plaintiff seeks writ of mandamus requiring Full Court to determine substantive appeal – Whether Full Court has jurisdiction to hear appeal – Proper construction of s 7(5) of Cross-Vesting Act.
Application for constitutional or other writ referred to the Full Court on 22 November 2023.
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Criminal Practice
Director of Public Prosecutions v Smith
M16/2024: [2024] HCATrans 27
Date heard: 18 April 2024
Coram: Gageler CJ, Edelman, Gleeson, Jagot and Beech-Jones JJ
Catchwords:
Criminal practice – Open justice – Where respondent faces trial in County Court of Victoria on indictment charging them with four child sexual offences – Where child complainant gave evidence at special hearing conducted pursuant to s 370 of Criminal Procedure Act 2009 (Vic) ("CPA") – Where day prior to special hearing, presiding judge met with complainant in presence of both prosecutor and defence counsel at offices of Child Witness Service – Where respondent's counsel did not object to introductory meeting and judge made directions for fair and efficient conduct of proceeding pursuant to s 389E of CPA, having regard to recommendations made by intermediary – Where introductory meeting not recorded and accused not present – Whether Court of Appeal erred in finding introductory meeting between child complainant, presiding judge, prosecutor and defence counsel prior to special hearing at which complainant gave evidence, not authorised by s 389E of CPA – Whether Court of Appeal erred in finding introductory meeting inconsistent with principle of open justice – Whether Court of Appeal erred in finding introductory meeting fundamental irregularity in respondent’s trial that could not be waived.
Appealed from VSC (CA): [2023] VSCA 293
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Evidence
BQ v The King
S173/2023: [2024] HCATrans 35
Date heard: 10 May 2024
Coram: Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot and Beech-Jones JJ
Catchwords:
Evidence – Admissibility of expert evidence – Evidence Act 1995 (NSW), s 79 – Where complainants two sisters and nieces of appellant – Where appellant convicted at second trial of child sexual assault offending – Where Crown sought to rely on expert evidence with respect to (a) how victims of child sexual assault respond to and disclose their victimisation and (b) matters relevant to complainants’ conduct during and after alleged assaults and whether such conduct consistent with research – Where trial judge ruled evidence in respect of (a) admissible but refused to admit evidence in respect of (b) – Whether Court of Criminal Appeal erred in holding expert evidence concerning behaviour of perpetrators of child sexual assault offences, risk factors for sexual abuse and when abuse commonly takes place admissible as expert opinion evidence and occasioned no miscarriage of justice in trial – Whether Court erred in holding that trial judge’s directions to jury in respect of expert evidence adequate and did not occasion miscarriage of justice.
Appealed from NSW (CCA): [2023] NSWCCA 34
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Cook (A Pseudonym) v The King
S158/2023: [2024] HCATrans 38
Date heard: 15 May 2024
Coram: Gordon A-CJ, Edelman, Steward, Gleeson and Jagot JJ
Catchwords:
Evidence – Admissibility of evidence about complainant’s sexual experience or activity – Temporal limitations – Where appellant convicted of sexual offences against child – Where issue arose prior to trial regarding admissibility of evidence relating to complainant’s complaint of sexual assault by another member of her family – Where common ground evidence of other offences probative and appellant sought to adduce the evidence in their defence – Where s 293 of Criminal Procedure Act 1986 (NSW) provides evidence of sexual experience inadmissible subject to exceptions – Where trial judge ruled evidence of other offences inadmissible in appellant’s trial – Whether Court of Criminal Appeal erred in constructing s 293(4) – Whether Court erred in holding permissible to mislead jury by cross-examination in order to attempt to counteract unfairness occasioned by exclusion of s 293 evidence – Whether Court erred in ordering appellant be retried – Whether Court erred in refusing to stay proceedings.
Appealed from NSW (CCA): [2022] NSWCCA 282
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Steven Moore (a pseudonym) v The King
M23/2024: [2024] HCATrans 42
Date heard: 5 June 2024
Coram: Gageler CJ, Edelman, Steward, Gleeson and Beech-Jones JJ
Catchwords:
Evidence – Criminal trial – Hearsay – Exclusion of prejudicial evidence – Interlocutory appeal – Where appellant charged with seven violence offences and pleaded not guilty – Where appellant accepted he was at complainant's house and engaged in argument, but denied any violence on his part – Where Crown case relies in large part on complainant's account – Where complainant passed away in circumstances unconnected to allegations – Where Crown relied on hearsay rule in s 65 of Evidence Act 2008 (Vic) to adduce representations made by complainant – Where prosecution's notice of intention to adduce hearsay evidence referred to large number of representations by complainant to various people – Where appellant objected to admission of evidence – Where trial judge ruled 67 of 70 previous representations admissible – Where appellant unsuccessfully appealed interlocutory decision to Court of Appeal – Whether Court of Appeal applied wrong standard of review on interlocutory appeal from ruling on admissibility of evidence under s 137 of Evidence Act 2008 (Vic) – Whether Court of Appeal erred in assessing "danger of unfair prejudice to the accused" of admitting evidence.
Appealed from VSC (CA): [2023] VSCA 236
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Taxation
Automotive Invest Pty Limited v Commissioner of Taxation
S170/2023: [2024] HCATrans 44
Date heard: 13 June 2024
Coram: Gageler CJ, Edelman, Steward, Gleeson and Jagot JJ
Catchwords:
Taxation – Luxury car tax – Goods and services tax – A New Tax System (Luxury Car Tax) Act 1999 (Cth) ("LCT Act") – Where appellant operated business called "Gosford Classic Car Museum" – Where museum displayed motor vehicles – Where displayed motor vehicles also generally available for sale and were trading stock – Where LCT Act is single stage tax imposed on supply or importation of "luxury cars" where value exceeds "luxury car tax threshold" – Proper test for non-application of LCT Act – Whether LCT Act to be read and construed by reference to underlying legislative policy – Whether whole of s 9-5(1) determinative of whether appellant subject to increasing adjustment under charging provisions in ss 15-30(3)(c) and 15-35(3)(c) – Whether Full Court majority erred in concluding because LCT Act does not define "retail" sale no basis for importing into s 9-5(1)(a) "the idea of taking only a ‘retail sale’".
Appealed from FCA (FC): [2023] FCAFC 129; (2023) 299 FCR 288; (2023) 117 ATR 151
Torts
Bird v DP (a pseudonym)
M82/2023: [2024] HCATrans 16
Date heard: 14 March 2024
Coram: Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot and Beech-Jones JJ
Catchwords:
Torts – Personal Injury – Sexual assault – Vicarious liability – Where trial concerned allegations of sexual assaults against respondent by Catholic Priest in 1971, when respondent was five years of age – Where respondent sued Diocese of Ballarat through current Bishop, who was nominated defendant – Where respondent’s negligence case failed, but appellant, representing Diocese, found to be vicariously liable for Priest’s sexual assaults – Whether Court of Appeal erred in holding that appellant could be vicariously liable for tortfeasor’s wrong where express finding that tortfeasor not in employment relationship with appellant and was no finding that tortious conduct occurred as part of any agency relationship between tortfeasor and appellant – Where in circumstances Court finds relationship between appellant and tortfeasor gives rise to relationship of vicarious liability, whether Court of Appeal erred in concluding, based on general and non-specific evidence accepted, that conduct of tortfeasor was conduct for which appellant ought be liable as having provided both opportunity and occasion for its occurrence.
Appealed from VSC (CA): [2023] VSCA 66; (2023) 69 VR 408; (2023) 323 IR 174
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Mallonland Pty Ltd ACN 051 136 291 & Anor v Advanta Seeds Pty Ltd ACN 010 933 061
B60/2023: [2024] HCATrans 12
Date heard: 6 March 2024
Coram: Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot and Beech-Jones JJ
Catchwords:
Torts – Negligence – Pure economic loss – Duty of care – Where appellants and other group members commercial sorghum growers who between 2010 and 2014 conducted business of planting and commercial cultivation and sale of sorghum – Where they purchased, via distributors and resellers, "MR43 Elite" sorghum seeds manufactured by respondent, which were contaminated – Where MR43 sold in bags with "Conditions of Sale and Use" printed, including generic disclaimer – Where trial judge and Court of Appeal found that respondent did not owe duty of care to appellants – Whether Court of Appeal erred in failing to find respondent owed duty of care to appellants as end users of respondent’s product, to take reasonable care to avoid risk that such end users who used product as intended would sustain economic losses by reason of hidden defects in those goods – Whether Court of Appeal erred in finding that presence of disclaimer of liability on product packaging negated any assumption of responsibility by respondent so as to preclude duty of care on part of manufacturer arising, and thereby overwhelming consideration of all other salient features – Whether Court of Appeal erred by proceeding on basis that potential for farmers to avail themselves of contractual and statutory protection in dealings with distributors, and absence of statutory protection of farmers as consumers in Commonwealth consumer protection legislation, were matters which supported not expanding protection available to persons in position of appellants by recognising duty of care.
Appealed from QLDSC (CA): [2023] QCA 24; (2023) 13 QR 492
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Trade Practices
Capic v Ford Motor Company of Australia Pty Ltd ACN 004 116 223
S25/2024: [2024] HCATrans 23; [2024] HCATrans 24
Date heard: 11 and 12 April 2024
Coram: Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot and Beech-Jones JJ
Catchwords:
Trade Practices – Consumer law – Measure of damages for failure to comply with guarantee of acceptable quality – Where appellant brought representative proceedings under Part IVA of Federal Court of Australia Act 1976 (Cth) in respect of Ford-badged motor vehicles fitted with DPS6 dual-clutch transmission system ("affected vehicles") – Where primary judge found affected vehicles supplied in breach of guarantee of acceptable quality under s 25 of Australian Consumer Law – Where primary judge held damages under s 272(1) requires assessment of reduction in value only at time of supply – Where Full Court found in order to avoid overcompensation under s 272(1)(a), it may be necessary to depart from date of supply as reference state for statutory reduction in value damages – Where Full Court held post-supply information may be relevant – Whether Full Court erred in construing s 272(1)(a) as subject to qualification that assessment of damages may require departure from assessment at time of supply or adjustment to avoid over-compensation – Whether s 272(1)(a) permits, and for what purpose, evidence of post-supply events to be used when assessing statutory compensation under the provision.
Appealed from FCA (FC): [2023] FCAFC 179; (2023) 300 FCR 1
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Productivity Partners Pty Ltd (trading as Captain Cook College) ACN 085 570 547 & Anor v Australian Competition and Consumer Commission & Anor
S118/2023: [2024] HCATrans 5; [2024] HCATrans 6
Date heard: 7 and 8 February 2024
Coram: Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot and Beech-Jones JJ
Catchwords:
Trade Practices – Consumer law – Unconscionable conduct – Statutory unconscionability under s 21 of Australian Consumer Law ("ACL") – Where first appellant carried on business providing vocational education and training courses to students – Where second appellant parent company of first appellant – Where students enrolled in courses by first appellant eligible for funding support under Commonwealth government scheme (VET-FEE HELP) – Where first appellant engaged agents to market to or recruit potential students – Where changes made to VET-FEE HELP scheme by Commonwealth to protect students from risk of misconduct by agents and providers – Where prior to 7 September 2015, first appellant had several controls in enrolment system to ameliorate risk of unethical or careless conduct of agents with respect to enrolments – Where first appellant removed controls after suffering declining enrolments – Where primary judge and Full Court held first appellant engaged in unconscionable conduct in contravention of s 21 of ACL – Whether Full Court ought to have held primary judge erred in holding first appellant engaged in unconscionable conduct within meaning of s 21 of ACL, which claim was framed, and considered by trial judge, without reference to factors prescribed by s 22 of ACL – Whether Full Court erred in holding first appellant's conduct of removing controls and operating enrolment system without those controls, in absence of intention that risks ameliorated by those controls eventuate, constituted unconscionable conduct in contravention of s 21 – Whether Full Court erred in holding second appellant knowingly concerned or party to first appellant's contravention of s 21.
Appealed from FCA (FC): [2023] FCAFC 54; (2023) 297 FCR 180
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Williams & Anor v Toyota Motor Corporation Australia Limited (ACN 009 686 097); Toyota Motor Corporation Australia Limited (ACN 009 686 097) v Williams & Anor
S157/2023; S155/2023: [2024] HCATrans 21; [2024] HCATrans 22
Date heard: 10 and 11 April 2024
Coram: Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot and Beech-Jones JJ
Catchwords:
Trade Practices – Consumer law – Measure of damages for failure to comply with guarantee of acceptable quality – Where representative proceedings concerned 264,170 Toyota motor vehicles with diesel engines sold to Australian consumers – Where vehicles supplied with defective diesel particulate filter system – Where appellant introduced effective solution known as "2020 field fix" – Where 2020 field fix effective in remedying defect and its consequences in all relevant vehicles – Where primary judge found on "common sense approach" breach of s 54 Australian Consumer Law ("ACL") resulted in reduction in value of all vehicles by 17.5% – Where primary judge ordered reduction in damages under s 272(1)(a) of ACL be awarded to all group members who had not opted out, had not received 2020 field fix and first consumer had not sold it during relevant period – Where Full Court set aside order awarding reduction in value damages and reassessed reduction in value to be 10% before taking into account availability of 2020 field fix – Whether Full Court erred in finding damages for reduction in value recoverable when no ongoing reduction in value due to availability of free repair - Whether Full Court erred in failing to find damages for breach of guarantee of acceptable quality always to be assessed by reference to true value of goods at time of supply - Whether assessment of damages imports discretion exercisable under standard of appropriateness to assess reduction in value of goods at some later time or make adjustment downwards to reflect future event unknown at date of supply.
Appealed from FCA (FC): [2023] FCAFC 50; (2023) 296 FCR 514; (2023) 408 ALR 582
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Wills v Australian Competition and Consumer Commission & Ors
S116/2023: [2024] HCATrans 5; [2024] HCATrans 6
Date heard: 7 and 8 February 2024
Coram: Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot and Beech-Jones JJ
Catchwords:
Trade Practices – Consumer law – Unconscionable conduct – Statutory unconscionability under s 21 of Australian Consumer Law ("ACL") – Knowing concern in unconscionable conduct – Accessorial liability – Where second respondent carried on business providing vocational education and training courses to students – Where third respondent parent company of second respondent – Where appellant was Chief Operating Officer of third respondent, and for period Chief Executive Officer of second respondent – Where students enrolled in courses by second respondent eligible for funding support under Commonwealth government scheme (VET-FEE HELP) – Where second respondent engaged agents to market to or recruit potential students – Where changes made to VET-FEE HELP scheme by Commonwealth to protect students from risk of misconduct by agents and providers – Where prior to 7 September 2015, second respondent had several controls in enrolment system to ameliorate risk of unethical or careless conduct of agents with respect to enrolments – Where second respondent removed controls after suffering declining enrolments – Where primary judge and Full Court held second respondent engaged in unconscionable conduct in contravention of s 21 of ACL – Where primary judge held appellant knowingly concerned in contravention of prohibition second respondent’s unconscionable conduct – Where Full Court majority allowed one of appellant's grounds of appeal in part, that appellant did not know all of matters essential to contravention until he was acting CEO – Whether Full Court majority erred in finding that appellant had requisite knowledge to be liable as accessory to contravention of s 21, notwithstanding appellant not have knowledge that conduct involved taking advantage of consumers or was otherwise against conscience – Whether Full Court majority erred in finding that appellant satisfied participation element for accessorial liability by (i) appellant's conduct before he had knowledge of essential matters which make up contravention; together with (ii) appellant's continued holding of position of authority, but no identified positive acts after appellant had requisite knowledge.
Appealed from FCA (FC): [2023] FCAFC 54; (2023) 297 FCR 180
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4: Original Jurisdiction
The following cases are ready for hearing in the original jurisdiction of the High Court of Australia.
Constitutional Law
MJZP v Director-General of Security & Anor
S142/2023
Catchwords:
Constitutional law – Judicial power of Commonwealth – Procedural fairness – Where plaintiff company is carriage service provider within meaning of Telecommunications Act 1997 (Cth) – Where in June 2021 Australian Security Intelligence Organisation ("ASIO") furnished to Minister for Home Affairs adverse security assessment in respect of plaintiff in connection with s 315A of Telecommunications Act – Where plaintiff applied to Administrative Appeals Tribunal ("Tribunal") for review of adverse security assessment – Where Minister made various certifications under Administrative Appeals Tribunal Act 1975 (Cth) ("AAT Act") that disclosure of certain documents and evidence contrary to public interest – Where Tribunal provided open reasons to plaintiff and first defendant, and closed reasons only to first defendant – Where plaintiff appealed to Federal Court of Australia – Where s 46(1) of AAT Act requires Tribunal to send to Federal Court all documents before Tribunal in connexion with proceeding, including documents subject to certificates issued by Minister – Where s 46(2) of AAT Act requires Federal Court to ensure matter subject to certificates not disclosed to any person other than member of Federal Court for purposes of appeal – Whether s 46(2) substantially impairs institutional integrity of Federal Court – Whether s 46(2) requires Federal Court to exercise Commonwealth judicial power in manner inconsistent with nature of that power – Whether s 46(2) invalid on basis it infringes Ch III of Constitution.
Special case referred to the Full Court on 4 June 2024.
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Pearson v Commonwealth of Australia & Ors
S126/2023: [2023] HCATrans 178
Catchwords:
Constitutional law – Judicial power of Commonwealth – Usurpation or interference with Commonwealth judicial power – Where plaintiff New Zealand national – Where plaintiff convicted of offences including supply of prohibited drug and sentenced to aggregate term of imprisonment of four years and three months – Where plaintiff's Australian visa cancelled on basis she failed character test in s 501 of Migration Act 1958 (Cth) and upheld on appeal – Where plaintiff commenced fresh proceeding in original jurisdiction of Federal Court seeking judicial review – Where Full Court held aggregate sentence not "a term of imprisonment" within meaning of s 501(7)(c) and plaintiff released from immigration detention – Where plaintiff re-detained following commencement of Migration Amendment (Aggregate Sentences) Act 2023 (Cth) ("Amending Act") – Whether Amending Act invalid usurpation of, or interference with, judicial power of Commonwealth – Whether Amending Act does not operate to validate decision of third defendant because decision not "a thing" done under Migration Act, but "a thing" done under s 43 of Administrative Appeals Tribunal Act 1975 (Cth).
Constitutional law – Powers of Commonwealth Parliament – Acquisition of property on just terms – Whether Amending Act invalid acquisition by Commonwealth of plaintiff's right to sue Commonwealth for false imprisonment other than on just terms, contrary to s 51(xxxi) of Constitution.
Application for constitutional or other writ referred to the Full Court on 7 March 2024.
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YBFZ v Minister for Immigration, Citizenship and Multicultural Affairs & Anor
S27/2024
Catchwords:
Constitutional law – Judicial power of Commonwealth – Monitoring and curfew powers – Where plaintiff sentenced to aggregate term of imprisonment of 18 months and his permanent refugee visa cancelled – Where after release from prison, plaintiff detained under s 189 of Migration Act 1958 (Cth) – Where plaintiff released from detention and granted various visas, each with curfew condition and electronic monitoring condition imposed – Whether curfew and monitoring powers under cl 070.612A(1) of Sch 2 of Migration Regulations 1994 (Cth), together or alone, "punitive" and therefore contrary to Ch III of Constitution
Application for constitutional or other writ referred to the Full Court on 22 May 2024.
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5: Section 40 Removal
The following cases are ready for hearing in the original jurisdiction of the High Court of Australia.
Constitutional Law
Commonwealth of Australia v Mr Stradford (a pseudonym) & Ors; His Honour Judge Salvatore Paul Vasta v Mr Stradford (a pseudonym) & Ors
C3/2024; C4/2024: [2024] HCASL 24; [2024] HCASL 25
Removed into the High Court under s 40 of the Judiciary Act 1903 (Cth) on 8 February 2024.
Catchwords:
Constitutional law – Chapter III Court – Judicial Immunity – Contempt order – Where Judge of Federal Circuit Court ("Judge"), incorrectly found Mr Stradford ("Mr S") in contempt and sentenced him to 12 months’ imprisonment – Where Mr S detained for six days – Where Full Court allowed Mr S' appeal and set aside contempt declaration and imprisonment order – Where Mr S commenced proceeding in Federal Court alleging false imprisonment by Judge – Where Federal Court held Judge liable for false imprisonment – Where Federal Court found Commonwealth and State of Queensland ("Queensland") vicariously liable – Where Mr S, Commonwealth and Queensland each appealed to Full Court of the Federal Court – Whether Judge liable to Mr S for tort of false imprisonment – Whether Federal Circuit Court of Australia had power to punish for contempt despite its designation as inferior court – Whether order for contempt by inferior court affected by jurisdictional error void ab initio – Whether Judge had same immunity as superior court judge with respect to making of contempt orders – Whether Federal Court erred in concluding Commonwealth and Queensland not afforded protection at common law from civil liability in circumstances where their respective officers executed imprisonment order and warrant issued by Circuit Court which appeared valid on their face – Whether Federal Court erred in concluding Circuit Court’s constitutionally derived power to punish contempts and its power under s 17 of Federal Circuit Court of Australia Act 1999 (Cth) ousted or limited by Pts XIIIA and XIIIB of Family Law Act 1975 (Cth) – Whether Federal Court erred in finding errors Judge made "outside" or "in excess of" jurisdiction and he had pre-judged outcome of hearing in relation to contempt orders.
Removed from Full Court of the Federal Court of Australia.
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Practice and Procedure
Bogan & Anor v The Estate of Peter John Smedley (Deceased) & Ors
M21/2024: [2024] HCASL 55
Removed into the High Court under s 40 of the Judiciary Act 1903 (Cth) on 7 March 2024.
Catchwords:
Practice and Procedure – Transfer of proceedings – Group costs order – Where Victoria legislated to permit costs orders calculated as percentage of judgment or settlement in representative proceedings – Where provision unique to Victoria – Where appellants commenced representative proceedings in Supreme Court of Victoria against respondents – Where fifth respondent applied to transfer proceedings to Supreme Court of NSW under s 1337H of Corporations Act 2001 (Cth) – Where appellants applied for group costs order ("GCO") under s 33ZDA of Supreme Court Act 1986 (Vic) – Where Supreme Court directed GCO application be determined before transfer application, and later made GCO – Where fifth respondent's first removal application to High Court dismissed – Where fifth respondent referred transfer application to Victorian Court of Appeal for provision of reasons without final orders – Where Court of Appeal held proceedings should not be transferred to Supreme Court of NSW – Where fifth respondent successfully made second removal application to High Court – Whether GCO made under s 33ZDA of Supreme Court Act relevant in deciding whether to transfer proceedings to another court under s 1337H(2) of Corporations Act – Whether GCO will remain in force if proceedings are transferred to Supreme Court of NSW – Whether Supreme Court of NSW would have power to vary or revoke GCO if proceedings transferred – Whether proceedings should be transferred to Supreme Court of NSW.
Removed from Victorian Court of Appeal.
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Torts
State of Queensland v Mr Stradford (a pseudonym) & Ors
S24/2024: [2024] HCASL 23
Removed into the High Court under s 40 of the Judiciary Act 1903 (Cth) on 8 February 2024.
Catchwords:
Torts – False imprisonment – Contempt order – Where second respondent incorrectly found first respondent in contempt and sentenced him to 12 months’ imprisonment – Where first respondent detained for six days – Where officers of appellant took and held first respondent in custody – Where Full Court allowed first respondent's appeal and set aside contempt declaration and imprisonment order – Where first respondent commenced proceeding in Federal Court alleging false imprisonment by second respondent – Where Federal Court held second respondent liable for false imprisonment – Where Federal Court found third respondent and appellant vicariously liable – Where third respondent, second respondent and appellant each appealed to Full Court of the Federal Court – Whether appellant liable to first respondent for tort of false imprisonment – Whether Federal Court erred in concluding third respondent and appellant not afforded protection at common law from civil liability in circumstances where their respective officers executed imprisonment order and warrant issued by Circuit Court which appeared valid on their face – Whether Federal Court erred in concluding s 249 of Criminal Code (Qld) did not apply to warrant issued by Federal Circuit Court, and Court ought to have held ss 247, 249 and 250, which together relevantly provide for limited immunity for persons executing sentences passed and warrants issued without authority, applied to Queensland’s officers executing warrant and imprisonment order.
Removed from Full Court of the Federal Court of Australia.
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6: Special Leave Granted
The following cases have been granted special leave to appeal to the High Court of Australia.
Administrative Law
Fuller & Anor v Lawrence
B24/2024: [2024] HCASL 91
Date determined: 11 April 2024 – Special leave granted
Catchwords:
Administrative law – Judicial review – Reviewable decisions and conduct – Meaning of "decision... made under an enactment" – Where respondent is prisoner released under supervision order pursuant to Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) – Where Corrective Services Officer gave direction to respondent approving phone contact with particular person including video calls, but denying respondent’s request to have in-person contact with that person – Where respondent requested reasons for direction in so far as it denied in-person contact – Where appellants' response was respondent not entitled to statement of reasons under Judicial Review Act 1991 (Qld) ("JRA") – Where primary judge found direction was decision under enactment within meaning of JRA and therefore respondent entitled to statement of reasons under s 33 of JRA – Where Court of Appeal dismissed appeal – Whether Court of Appeal erred in concluding direction "itself" affects rights in sense necessary to qualify as "decision … made under an enactment" within meaning of JRA.
Appealed from QLDSC (CA): [2023] QCA 257
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Costs
Birketu Pty Ltd ACN 003 831 392 & Anor v Atanaskovic & Ors
S52/2024: [2024] HCASL 117
Date determined: 11 April 2024 – Special leave granted
Catchwords:
Costs – General rule that self-represented litigants cannot recover costs for own time – Whether partners of unincorporated law firm entitled to recover costs for work done by employed solicitors of that firm in proceedings brought by or against partners of firm – Whether Court of Appeal erred finding first and second respondents able to recover costs of employed solicitors in proceedings in which they were self-represented solicitor litigants by their unincorporated law firm – Whether Court of Appeal erred finding s 98(1) of Civil Procedure Act 2005 (NSW) ("CPA") and definition of costs in s 3(1) authorised recovery of costs – Whether Court of Appeal erred in finding employed solicitor rule operated to authorise recovery of costs – Whether Court of Appeal erred in declining to follow United Petroleum v Herbert Smith Freehills [2020] VSCA 15 in applying CPA to recovery of costs by employed solicitors of self-represented solicitor litigants.
Appealed from NSWSC (CA): [2023] NSWCA 312
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Constitutional Law
Commonwealth of Australia v Yunupingu (on behalf of the Gumatj Clan or Estate Group) & Ors
D5/2023: [2023] HCATrans 143
Date determined: 19 October 2023 – Special leave granted
Catchwords:
Constitutional law – Constitution, s 51(xxxi) – Acquisition of property on just terms – Extinguishment of native title – Where principal proceeding is application for compensation under Native Title Act 1993 (Cth) for alleged effects of grants or legislative acts on native title in period after Northern Territory became territory of Commonwealth in 1911 and before enactment of Northern Territory Self-Government Act 1978 (Cth) – Whether Full Court erred by failing to find that just terms requirement contained in s 51(xxxi) of Constitution does not apply to laws enacted pursuant to s 122 of Constitution, including Northern Territory (Administration) Act 1910 (Cth) and Ordinances made thereunder – Whether Wurridjal v Commonwealth (2009) 237 CLR 309 should be re-opened – Whether Full Court erred in failing to find that, on facts set out in appellant’s statement of claim, neither vesting of property in all minerals on or below surface of land in claim area in Crown, nor grants of special mineral leases capable of amounting to acquisitions of property under s 51(xxxi) of Constitution because native title inherently susceptible to valid exercise of Crown’s sovereign power to grant interests in land and to appropriate to itself unalienated land for Crown purposes.
Native title – Extinguishment – Reservations of minerals – Whether Full Court erred in failing to find that reservation of "all minerals" from grant of pastoral lease "had the consequence of creating rights of ownership" in respect of minerals in Crown, such that Crown henceforth had right of exclusive possession of minerals and could bring an action for intrusion.
Appealed from FCA (FC): [2023] FCAFC 75; (2023) 298 FCR 160; (2023) 410 ALR 231
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JZQQ v Minister for Immigration, Citizenship and Multicultural Affairs & Anor
B15/2024: [2024] HCASL 42
Date determined: 7 March 2024 – Special leave granted
Catchwords:
Constitutional law – Judicial power of Commonwealth – Direction principle – Where appellant born in Somalia and granted refugee status in New Zealand – Where appellant convicted of intentionally causing injury and making threats to kill and sentenced to aggregate term of 15 months imprisonment – Where appellant's Australian visa cancelled on basis he failed character test in s 501 of Migration Act 1958 (Cth) – Where Administrative Appeals Tribunal ("Tribunal") affirmed non-revocation decision and concluded appellant did not pass character test – Where appellant lodged originating motion in Federal Court seeking judicial review – Where appellant released from immigration detention following Pearson v Minister for Home Affairs (2022) 295 FCR 177 ("Pearson") – Where Full Federal Court in Pearson held aggregate sentence does not fall within s 501(7)(c) – Where appellant amended originating application raising Pearson ground – Where Migration Amendment (Aggregate Sentences) Act 2023 (Cth) ("Amending Act") amended Migration Act with retrospective effect to treat aggregate sentence as equivalent to sentence for single offence for purposes of s 501(7)(c) – Where appellant re-detained under Amending Act – Where Full Court held Tribunal's decision and Amending Act valid – Whether Amending Act beyond legislative power of Commonwealth Parliament by directing courts as to conclusions they should reach in exercise of their jurisdiction – Whether Amending Act denies court exercising jurisdiction under, or derived from, s 75(v) of Constitution, ability to enforce limits which Parliament has expressly or impliedly set on decision-making power.
Immigration – Visas – Cancellation – Application for judicial review –
– Whether decision made by Tribunal under s 43 of Administrative Appeals Tribunal Act 1975 (Cth) capable of meeting Amending Act’s description of decision made "under" Migration Act – Whether appellant's aggregate sentence of 15 months’ imprisonment is "term of imprisonment of 12 months or more" within meaning of s 501(7)(c) of Migration Act 1958.
Appealed from FCA (FC): [2023] FCAFC 168; (2023) 300 FCR 370; (2023) 413 ALR 620
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State of New South Wales v Wojciechowska & Ors
S39/2024: [2024] HCASL 63
Date determined: 7 March 2024 – Special leave granted with undertakings
Catchwords:
Constitutional law – Judicial Power of Commonwealth – Where first respondent resided in Tasmania – Where first respondent commenced various proceedings in New South Wales Civil and Administrative Tribunal ("Tribunal") against third and fourth respondents, emanations of State of New South Wales – Where first respondent sought review of various decisions and conduct under Government Information (Public Access) Act 2009 (NSW) ("GIPA Act") and Privacy and Personal Information Protection Act1998 (NSW) ("PPIP Act") – Where claim included claim for damages under s 52(2)(a) PPIP Act – Where first respondent challenged jurisdiction of Tribunal on basis functions performed by Tribunal when determining administrative review applications under GIPA Act and PPIP Act involved exercise of judicial power – Where Court of Appeal held determining administrative review under GIPA Act did not involve exercise of judicial power – Where Court of Appeal held determination of application for damages under s 55(2)(a) of PPIP Act brought by out-of-state resident would involve Tribunal exercising judicial power of Commonwealth – Whether Burns v Corbett (2018) 265 CLR 304 applies to exercise of non-judicial power – Whether Court of Appeal erred in holding Tribunal, when performing at instance of out-of-State resident claiming damages review of public sector agency conduct under Pt 5 of PPIP Act and Administrative Decisions Review Act 1997 (NSW) exercises Commonwealth judicial power.
Courts – State tribunals – Jurisdiction.
Appealed from NSWSC (CA): [2023] NSWCA 191; (2023) 379 FLR 256
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Tapiki v Minister for Immigration, Citizenship and Multicultural Affairs
P10/2024: [2024] HCASL 43
Date determined: 7 March 2024 – Special leave granted
Catchwords:
Constitutional law – Judicial power of Commonwealth – Usurpation or interference with Commonwealth judicial power – Where appellant New Zealand national – Where appellant's Australian visa purportedly cancelled under s 501(3A) of Migration Act 1958 (Cth) – Where appellant sentenced to 12 months' imprisonment imposed in September 2020 – Where delegate considered appellant had "been sentenced to a term of imprisonment of 12 months or more" within meaning of s 501(7)(c) – Where appellant unsuccessfully sought revocation of cancellation – Where Administrative Appeals Tribunal ("Tribunal") affirmed non-revocation decision – Where appellant released from immigration detention following decision in Pearson v Minister for Home Affairs (2022) 295 FCR 177 ("Pearson") – Where appellant succeeded in Full Federal Court on appeal and in original jurisdiction, declaring Tribunal's decision and cancellation decision invalid – Where following Pearson, Migration Amendment (Aggregate Sentences) Act 2023 (Cth) ("Amending Act") enacted – Where appellant taken back into immigration detention after commencement of Amending Act – Where appellant commenced proceedings in original jurisdiction of Federal Court for declaration items 4(3), 4(4) and 4(5)(b)(i) of Amending Act invalid, and writ of habeas corpus – Where Full Court dismissed application – Whether Full Court erred in not finding relevant items of Amending Act invalid usurpation or interference with judicial power of Commonwealth by reversing or dissolving effect of orders made by Chapter III court.
Constitutional law – Powers of Commonwealth Parliament – Acquisition of property on just terms – Whether Full Court erred in not finding relevant item of Amending Act effectuated acquisition of property other than on just terms contrary to s 51(xxxi) of Constitution by extinguishing cause of action for false imprisonment.
Appealed from FCA (FC): [2023] FCAFC 167; (2023) 300 FCR 354; (2023) 413 ALR 605
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Criminal Law
The King v ZT
S38/2024: [2024] HCASL 49
Date determined: 7 March 2024 – Special leave granted
Catchwords:
Criminal law – Appeal against conviction – Unreasonable verdict – Joint criminal enterprise – Where respondent found guilty at trial of party to murder – Where case against him founded upon series of admissions made as to involvement in killing – Where respondent's accounts numerous and inconsistent – Where respondent successfully appealed conviction to Court of Criminal Appeal on ground jury's verdict unreasonable – Where Court of Criminal Appeal majority found admissions not sufficiently reliable to establish guilt beyond reasonable doubt – Whether Court of Criminal Appeal majority erred in concluding jury enjoyed no relevant or significant advantage over appellate court – Whether Court of Criminal Appeal majority erred in its application of test in M v The Queen (1994) 181 CLR 487.
Appealed from NSWSC (CCA): [2023] NSWCCA 241
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Damages
Commonwealth of Australia v Sanofi (formerly Sanofi-Aventis) & Ors
S169/2023: [2023] HCATrans 184
Date heard: 18 December 2023 – Special leave granted
Catchwords:
Damages – Patent litigation – Compensation for loss flowing from interlocutory injunction – Where respondent held patent for clopidogrel – Where interlocutory injunction obtained restraining generic supplier from entering market – Where generic supplier undertook not to seek Pharmaceutical Benefits Scheme ("PBS") listing – Where respondent undertook to compensate persons adversely affected by injunction – Where respondent's patent subsequently found invalid – Where Commonwealth sought recovery of additional subsidies provided to respondent due to non-listing of generic clopidogrel – Where primary judge dismissed Commonwealth's application, and Full Court dismissed appeal by Commonwealth – Whether Full Court erred in failing to hold Commonwealth’s evidential burden was to establish prima facie case that its loss flowed directly from interlocutory injunction with evidential burden shifted to respondents to establish that generic supplier would not have sought listing on PBS even if not enjoined – Whether Full Court erred in failing to hold Commonwealth discharged its evidential burden but respondents did not – Whether Full Court erred in failing to find, by inference from evidence, that in absence of interlocutory injunction, it was likely that Dr Sherman would have reconfirmed plan to seek PBS listing.
Appealed from FCA (FC): [2023] FCAFC 97; (2023) 411 ALR 315; (2023) 174 IPR 66
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Elisha v Vision Australia Limited
M22/2024: [2024] HCASL 60
Date determined: 7 March 2024 – Special leave granted
Catchwords:
Damages – Contract – Breach – Psychiatric injury – Where appellant entered employment contract with respondent – Where during hotel stay while performing his work duties, appellant involved in incident with hotel proprietor – Where appellant's employment terminated for alleged "serious misconduct" – Where appellant developed major depressive disorder, which trial judge found caused by dismissal – Where appellant sued for damages, claiming alleged breaches of due process provision contained in clause 47.5 of Vision Australia Unified Enterprise Agreement 2013 and respondent's "disciplinary procedure" – Where appellant claimed respondent's duty of care extended to discipline and termination procedures – Where at trial, appellant succeeded in contract and failed in negligence – Where Court of Appeal held respondent did not owe alleged duty of care, and affirmed trial judge's finding in respect of contract claim – Whether Court of Appeal erred in concluding damages for psychiatric injury suffered by appellant not recoverable for breach of contract.
Tort – Negligence – Duty of care owed by employers – Whether Court of Appeal erred in concluding respondent did not owe duty to take reasonable care to avoid injury to appellant in its implementation of processes leading to and resulting in termination of his employment.
Appealed from VSC (CA): [2023] VSCA 265; (2023) 328 IR 299
Appealed from VSC (CA): [2023] VSCA 288; (2023) 328 IR 357
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Equity
Kramer & Anor v Stone
S53/2024: [2024] HCASL 120
Date determined: 11 April 2024 – Special leave granted
Catchwords:
Equity – Proprietary estoppel – Estoppel by encouragement – Knowledge of detriment – Where in 1975, respondent commenced share-farming 100-acre property situated on Colo River ("Property") under oral contract described as share-farming agreement – Where shortly after death of then-joint proprietor, his wife ("deceased") told respondent about agreement to pass Property and sum of money to respondent upon deceased's death – Where under her final will, deceased left Property to one of couple's two daughters, first appellant – Where primary judge held respondent established entitlement to equitable relief on basis of proprietary estoppel and characterised case as based upon estoppel by encouragement –Where primary judge found respondent acted to his detriment on faith of deceased's assurance by continuing share farming operation on Property for about 23 years in belief that he would inherit Property under deceased’s will – Where primary judge found in absence of such belief, respondent would have terminated share-farming agreement and pursued more remunerative occupation – Where Court of Appeal dismissed appeal – Whether Court of Appeal erred concluding in cases of proprietary estoppel by encouragement elements of encouragement coupled with reasonable and detrimental reliance are sufficient, without more, to establish unconscionable conduct.
Appealed from NSWSC (CA): [2023] NSWCA 270; (2023) 112 NSWLR 564
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Naaman v Jaken Properties Australia Pty Limited ACN 123 423 432 & Ors
S26/2024: [2024] HCASL 21; [2024] HCASL 147
Date determined: 8 February and 9 May 2024 – Special leave granted
Catchwords:
Equity – Fiduciary duty – Fiduciary duty between former and successor trustees – Duties of trustees – Where first respondent successor trustee – Where second respondent sole director and shareholder of former trustee – Where former trustee appointed in June 2005 – Where in November 2006, appellant commenced proceedings against former trustee seeking damages of $2 million – Where first respondent replaced former trustee by way of deed of appointment – Where former trustee promised indemnity from first respondent as successor trustee – Where former trustee wound up because of claim for $2,500, with effect appellant's pending proceedings stayed – Where legal title to trust assets transferred to first respondent as trustee – Where on March 2014, default judgment entered in favour of appellant against former trustee – Where judgment set aside by consent, and proceedings reheard in December 2014 – Where on 25 February 2016, primary judge made orders entering judgment for appellant against former trustee in amount of $3.4 million and declared former trustee entitled to be indemnified out of trust assets – Where in meantime, trust assets dissipated by first respondent at discretion of third respondent – Where other respondents either knowingly involved in conduct or received trust property – Where primary judge found first respondent breached fiduciary duties, and other respondents either knowingly involved in the conduct or received trust property – Where Court of Appeal majority held first respondent did not owe fiduciary obligation at any time – Whether Court of Appeal majority erred in concluding first respondent as successor trustee did not owe fiduciary duty to former trustee not to deal with trust assets so as to destroy, diminish or jeopardise former trustee’s right of indemnity or exoneration from those assets.
Appealed from NSWSC (CA): [2023] NSWCA 214; (2023) 112 NSWLR 318; (2023) 21 BPR 44,317
Appealed from NSWSC (CA): [2023] NSWCA 254
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Evidence
MDP v The King
B72/2023: [2023] HCASL 215
Date determined: 7 December 2023 – Special leave granted
Catchwords:
Evidence – Propensity evidence – Miscarriage of justice – Where appellant convicted of various child sexual assault and domestic violence offences against former partner’s daughter – Where evidence included evidence from complainant’s sister that appellant smacked complainant on bottom – Where trial judge directed jury if they accepted bottom slapping evidence was true, and that it displayed sexual interest of appellant in complainant beyond reasonable doubt, they could use it to reason that it was more likely that offences occurred – Where Court of Appeal found bottom slapping evidence did not meet test for admissibility of propensity evidence – Where Court of appeal found evidence admissible under s 132B of Evidence Act 1977 (Qld) ("evidence of domestic violence") – Whether Court of Appeal erred holding that no miscarriage of justice occurred when evidence inadmissible as propensity evidence was nonetheless left to jury to be used as propensity evidence.
Appealed from QLDSC (CA): [2023] QCA 134
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Immigration
BIF23 v Minister for Immigration, Citizenship and Multicultural Affairs
M44/2024: [2024] HCASL 145
Date determined: 9 May 2024 – Special leave granted
Catchwords:
Immigration – Visas – Cancellation – Notice of cancellation decision – Legal incapacity from acting on notice – Where delegate of Minister cancelled appellant's visa under s 501 (3A) of Migration Act 1958 (Cth) – Where s 501CA(3) provided after making decision, Minister must give person written notice that sets out original decision and invite person to make representations to Minister – Where written notice for purposes of s 501CA(3) handed to appellant, who at relevant time in psychiatric unit of Correctional Centre – Where subsequent to notification, Victorian Civil and Administrative Tribunal made order under s 30 of Guardianship and Administration Act 2019 (Vic) appointing Public Advocate as guardian of appellant – Where appellant commenced proceeding in Federal Circuit Court seeking judicial review of Minister's decision to give 501CA(3) notice – Where primary judge and Full Court dismissed application and appeal – Whether Full Court erred failing to find not "practicable" within meaning of s 501CA(3) for Minister's delegate to give appellant notice in circumstances where appellant lacked decision-making capacity – Whether, alternatively, Full Court erred failing to find further notice could be issued to appellant, after guardian appointed for him under Guardianship and Administration Act 2019 (Vic) – Whether legally unreasonable for Minister not to give further notice in circumstances where appellant now able to make representations about revocation of cancellation of his visa by his guardian.
Appealed from FCA (FC): [2023] FCAFC 201; (2023) 301 FCR 229
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Minister for Immigration, Citizenship and Multicultural Affairs & Ors v MZAPC
P21/2024: [2024] HCASL 146
Date determined: 9 May 2024 – Special leave granted
Catchwords:
Immigration – Duty to remove unlawful citizen as soon as reasonably practicable – Personal and non-compellable powers of Minister – Where respondent's visa cancelled in November 2015 – Where respondent in immigration detention and exhausted all rights of review and appeal in relation to his immigration status – Where primary judge made orders restraining appellants from performing duty imposed by s 198(6) of Migration Act 1958 (Cth) to remove respondent from Australia as soon as reasonably practicable – Where primary judge concluded following this Court's decision in Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 10, serious question to be tried as to whether officers of Department had, acting beyond power, made assessments of respondent’s circumstances against ministerial guidelines concerning referral of cases to Minister for personal consideration under ss 195A and 417 of Act – Where Full Court majority upheld primary judge's decision – Whether Full Court erred concluding primary judge had power to grant interlocutory injunction restraining respondent’s removal from Australia.
Practice and procedure – Interlocutory injunction restraining removal from Australia – Serious question to be tried.
Appealed from FCA (FC): [2024] FCAFC 34
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Native Title
Stuart & Ors v State of South Australia & Ors
A1/2024: [2024] HCASL 10
Date determined: 8 February 2024 – Special leave granted
Catchwords:
Native title – Extinguishment – Proper construction of "native title" in s 223(1) Native Title Act 1993 (Cth) ("NTA") – Overlapping claims – Where appellants together comprise applicant in native title determination under s 61 of NTA made on behalf of Arabana people in March 2013 over area in vicinity of township of Oodnadatta in South Australia – Where over subsequent five years different claim group, Walka Wani people, made two claims concerning same area ("overlap area") – Where in January 1998 Arabana made claim over area abutting overlap area, resulting in consent determination in 2012 in favour of Arabana in Dodd v State of South Australia [2012] FCA 519 ("Dodd") – Where overlap area omitted from 1998 claim area because Arabana believed different accommodation of their rights in overlap area would be made by state government – Where primary judge dismissed Arabana claim and made determination of native title in favour of Walka Wani – Where appellants unsuccessfully appealed orders dismissing Arabana Claim to Full Court – Whether Full Court majority erred by not finding trial judge failed to correctly construe and apply definition of "native title" in s 223(1) when dismissing Arabana’s native title determination application – Whether Full Court erred by treating all aspects of determination in Dodd as being geographically specific.
Appealed from FCA (FC): [2023] FCAFC 131; (2023) 299 FCR 507; (2023) 412 ALR 407
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Statutes
SkyCity Adelaide Pty Ltd v Treasurer of South Australia & Anor
A2/2024: [2024] HCASL 168
Date determined: 6 June 2024 – Special leave granted
Catchwords:
Statutes – Interpretation – Principles – Taking into account ordinary meaning of defined term in construing definition – Where appellant and respondent entered casino duty agreement ("CDA)" under s 17 of Casino Act 1997 (SA) whereby appellant liable to pay duty on net gambling revenue according to schedule to CDA – Where dispute arose regarding correct interpretation of CDA and duty payable in accordance with it – Where master ordered questions of law be reserved for determination by Court of Appeal – Where question one of case stated whether "Converted Credits", being electronic gaming credits arising from conversion of loyalty points by appellant's customers, when played by customers, constitutes "amount received by the Licensee during the period for or in respect of consideration for gambling in the Casino premises" within meaning of "gross gambling revenue" within definition in clause 1.1 of operative terms of CDA – Where Court of Appeal answered "Yes" to question one – Whether Court of Appeal erred in answering "Yes" to question one of case stated, on basis concepts of "gross gambling revenue" and "net gambling revenue" in CDA included value of credits wagered on electronic gambling which had their source in loyalty points given to customers by appellant – Whether ordinary meaning of expression being defined, or part of expression, provides part of context that is properly capable of informing interpretation of words used in definition.
Taxation – Miscellaneous taxation – Casino duty – Casino duty agreement.
Appealed from SASC (CA): [2024] SASCA 14
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Tort
Pafburn Pty Limited (ACN 003 485 505) & Anor v The Owners - Strata Plan No 84674
S54/2024: [2024] HCASL 96
Date determined: 11 April 2024 – Special leave granted
Catchwords:
Tort – Statutory duty of care for construction work – Proportionate liability – Apportionable claims – Where second appellant retained first appellant to design and construct building – Where respondent sued appellants for damages under Pt 4 of Design and Building Practitioners Act 2020 (NSW) ("DBPA") alleging defective works in common property – Where appellants pleaded proportionate liability defences under Pt 4 Civil Liability Act 2002 (NSW) ("CLA") – Where respondent sought to strike out paragraphs of appellants' pleadings on basis s 5Q CLA operates so claims under Pt 4 DBPA are not apportionable – Where primary judge held proportionate liability defence could be pleaded – Where Court of Appeal held proportionate liability cannot apply as defence to respondent’s claim under Pt 4 DBPA – Whether Court of Appeal erred in concluding s 5Q of CLA enlivened by cause of action brought under Pt 4 of DBPA – Whether Court of Appeal erred in concluding s 39 of DBPA implicitly excludes application of Pt 4 of CLA to claims under Pt 4 of DBPA – Whether, alternatively, if s 5Q of CLA is enlivened by cause of action under Pt 4 of DBPA, Court of Appeal erred in concluding no apportionment is to occur.
Appealed from NSWSC (CA): [2023] NSWCA 301; (2023) 113 NSWLR 105
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7: Cases Not Proceeding or Vacated
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8: Special Leave Refused
Publication of Reasons: 6 June 2024 (Canberra)
| No. |
| Respondent | Court appealed from | Result |
| 1. | Cwalina | Rose | Supreme Court of Victoria | Special leave refused |
| 2. | Xie | The King (S40/2024) | Supreme Court of New South Wales | Special leave refused [2024] HCASL 154 |
| 3. | Jamie Landale (a pseudonym) | The King (M13/2024) | Supreme Court of Victoria | Special leave refused [2024] HCASL 155 |
| 4. | Ahamed | Secretary of Department of Human Services & Ors | High Court of Australia | Leave refused [2024] HCASL 156 |
| 5. | Anderson & Anor | Indigenous Land and Sea Corporation ABN 59912679254 | Supreme Court of | Special leave refused [2024] HCASL 157 |
| 6. | Palmer | Magistrates Court of Queensland & Ors (B9/2024) | Supreme Court of Queensland | Special leave refused [2024] HCASL 158 |
| 7. | Palmer Leisure Coolum Pty Ltd ACN 146 828 122 | Magistrates Court of Queensland & Ors (B12/2024) | Supreme Court of Queensland [2024] QCA 8 | Special leave refused with costs [2024] HCASL 159 |
| 8. | Palmer | Magistrates Court of Queensland & Ors (B13/2024) | Supreme Court of Queensland | Special leave refused with costs [2024] HCASL 159 |
| 9. | Nathaniel Corbett by next friend Debra Todd | Town of Port Hedland (P9/2024) | Supreme Court of | Special leave refused with costs [2024] HCASL 160 |
| 10. | Sentinel Property Group Pty Ltd ACN 149 805 489 | ABH Hotel Pty Ltd ACN 622 296 011 as trustee for the | Supreme Court of Queensland [2024] QCA 14 | Special leave refused with costs [2024] HCASL 161 |
| 11. | G & J Drivas Pty Ltd ACN 002544372 & Anor | Sydney Metro | Supreme Court of | Special leave refused with costs |
| 12. | Noubia Pty Ltd (ACN 103624504) | Coffs Harbour City Council (ABN 79126214487) (S32/2024) | Supreme Court of [2024] NSWCA 19 | Special leave refused with costs [2024] HCASL 163 |
| 13. | Provide Nominees Pty Ltd (ACN 644 657 161) | Australian Securities and Investments Commission (M26/2024) | Full Court of the Federal Court of Australia | Special leave refused with costs [2024] HCASL 164 |
| 14. | Hells Angels Motorcycle Corporation (Australia) Pty Limited | Redbubble Ltd (now named Articore Group Limited) ACN 119 200 592 & Anor (B18/2024) | Full Court of the Federal Court of Australia | Special leave refused with costs [2024] HCASL 165 |
| 15. | McIver | The King & Anor (C5/2024) | Supreme Court of the Australian Capital Territory (Court of Appeal) | Special leave refused [2024] HCASL 166 |
| 16. | Lee | Star Aged Living Limited (B16/2024) | Supreme Court of Queensland | Special leave refused with costs [2024] HCASL 167 |
| 17. | Dib | The King (S28/2024) | Supreme Court of | Special leave refused [2024] HCASL 169 |
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127
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