High Court Bulletin
[2011] HCAB 8
High Court Bulletin
Produced by the Legal Research Officer,
High Court of Australia Library
[2011] HCAB 08 (13 October 2011)
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: Cases Handed Down
2: Cases Reserved
3: Original Jurisdiction
4: Special Leave Granted
5: Cases Not Proceeding or Vacated
6: Special Leave Refused
Summary of New Entries
1: Cases Handed Down
| Case | Title |
| Westport Insurance Corporation v Gordion Runoff Limited | Arbitration |
| Queanbeyan City Council v ACTEW Corporation Ltd | Constitutional Law |
| Roy Morgan Research Pty Ltd v Commissioner of Taxation | Constitutional Law |
| Shoalhaven City Council v Firedam Civil Engineering Pty Limited | Contracts |
| Muldrock v The Queen | Criminal Law |
| Lithgow City Council v Jackson | Evidence |
| AB v State of Western Australia; AH v State of Western Australia | Statutes |
| Tasty Chicks Pty Limited v Chief Commissioner of State Revenue | Taxation and Duties |
2: Cases Reserved
| Case | Title |
| Shahi v Minister for Immigration and Citizenship | Citizenship and Migration |
| PGA v The Queen | Criminal Law |
| Waller v Hargraves Secured Investments Limited | Mortgages |
| Australian Education Union v Department of Education and Children's Services | Statutes |
| Amaca Pty Limited (Under NSW Administered Winding Up) v Booth; Amaba Pty Limited (Under NSW Administered Winding Up) v Booth | Torts |
3: Original Jurisdiction
| Case | Title |
| Plaintiff S10/2011 v Minister for Immigration and Citizenship & Anor | Citizenship and Migration |
| Plaintiff S49/2011 v Minister for Immigration and Citizenship & Anor | Citizenship and Migration |
| Kaur v Minister for Immigration and Citizenship & Anor | Citizenship and Migration |
4: Special Leave Granted
| Case | Title |
| Fortescue Metals Group Ltd v Australian Securities and Investments Commission & Anor; Forrest v Australian Securities and Investments Commission & Anor | Corporations Law |
| R v Getachew | Criminal Law |
| R v Khazaal | Criminal Law |
| PT Garuda Indonesia Ltd v Australian Competition and Consumer Commission | Public International Law |
1: Cases Handed Down
The following cases were handed down by the High Court of Australia during the September and October 2011 sittings.
Arbitration
Westport Insurance Corporation v Gordion Runoff Limited
S110/2010; S219/2010: [2011] HCA 37.
Judgment delivered: 5 October 2011.
Coram: French CJ, Gummow, Heydon, Crennan, Kiefel and Bell JJ.
Catchwords:
Arbitration — Judicial review of awards — Section 38(5) of Commercial Arbitration Act 1984 (NSW) ("Arbitration Act") provided that the Supreme Court shall not grant leave to appeal on any question of law unless it considers that, having regard to all the circumstances, the determination of the question of law could substantially affect the rights of a party to the arbitration agreement (par (a)), and there is a "manifest error of law on the face of the award" (par (b)(i)) — Reinsurance treaties between respondent and appellants included arbitration agreement which required that any dispute arising thereunder be referred to arbitration to be held in accordance with and subject to Arbitration Act — Appellants appealed to Supreme Court on questions of law arising out of award — Whether leave to appeal should have been granted — Whether error of law manifest on face of award.
Arbitration — Reasons for award — Section 29(1)(c) of Arbitration Act required arbitrator to include in award a statement of reasons for making award, unless parties otherwise agreed in writing — Arbitrators delivered written award accompanied by "Reasons for Award" comprising 96 paragraphs — Nature and extent of reasons for award required by s 29(1)(c) of Arbitration Act — Whether reasons for award must be same standard as judicial reasons — Whether nature and extent of reasons for award depends upon circumstances of particular dispute.
Insurance — Statutory construction — Statutory limitation on exclusion clauses — Section 18B of Insurance Act 1902 (NSW) prevented insurer from avoiding liability by relying upon exclusion clause in contract of insurance where operation of exclusion clause was triggered by event with no relationship to cause of event giving rise to particular loss and claim, unless in all the circumstances it was not reasonable for insurer to be bound to indemnify insured — Respondent sought to rely on s 18B to overcome finding by arbitrators that reinsurance treaties between respondent and appellants did not respond to certain policies of insurance underwritten by respondent — Whether s 18B applicable to reinsurance treaties between respondent and appellants.
Words and phrases — "appeal", "arbitration agreement", "award", "considerations of general justice and fairness", "exclusion clause", "judicial standard", "manifest error of law on the face of the award", "question of law", "reasons", "reinsurance treaty".
Appealed from NSW SC (CA): (2010) 267 ALR 74; (2010) 16 ANZ Insurance Cases 61-840; [2010] NSWCA 57.
Constitutional Law
Queanbeyan City Council v ACTEW Corporation Ltd
C2/2011; C3/2011: [2011] HCA 40.
Judgment delivered: 5 October 2011.
Coram: French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.
Catchwords:
Constitutional law (Cth) — Duties of excise — Water Resources Act 1998 (ACT) and Water Resources Act 2007 (ACT) imposed licence fees upon first respondent for extracting water from Australian Capital Territory water catchments, and Utilities (Network Facilities Tax) Act 2006 (ACT) imposed charge upon first respondent calculated by reference to route length of its water infrastructure network — First respondent passed on cost of imposts to appellant — Territory-owned Corporations Act 1990 (ACT) provided that first respondent was a "territory-owned corporation" and regulated share ownership, corporate decision-making and corporate borrowing of first respondent — Section 8(1) also provided that first respondent is not "the Territory" only because of its status as a "territory-owned corporation" — Whether first respondent identified with government of Australian Capital Territory — Whether imposts are duties of excise — Whether imposts are financial arrangements internal to government of Australian Capital Territory.
Words and phrases — "compulsory exaction", "duties of excise", "extensive control", "identified with the Territory", "tax".
Appealed from FCA FC: (2010) 188 FCR 541; (2010) 273 ALR 553; [2010] FCAFC 124.
Roy Morgan Research Pty Ltd v Commissioner of Taxation
M177/2010: [2011] HCA 35.
Judgment delivered: 28 September 2011.
Coram: French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.
Catchwords:
Constitutional law (Cth) — Taxation — s 51(ii) — Superannuation guarantee charge imposed upon employers who fail to provide to employees a prescribed level of superannuation — Charge debt due to Commonwealth and paid into Consolidated Revenue Fund for benefit of employees — Whether law imposing charge not a law with respect to taxation because charge is not imposed for "public purposes", and because it confers a "private and direct benefit" on employees of those employers who pay charge.
Words and phrases — "charge", "compulsory exaction", "private and direct benefit", "public purposes".
Appealed from FCA FC: (2010) 184 FCR 448; (2010) 268 ALR 232; [2010] FCAFC 52; (2010) 76 ATR 264; (2010) ATC 20-184.
Contracts
Shoalhaven City Council v Firedam Civil Engineering Pty Limited
S216/2010: [2011] HCA 38.
Judgment delivered: 5 October 2011.
Coram: French CJ, Gummow, Heydon, Crennan, Kiefel and Bell JJ.
Catchwords:
Contract — Construction — Dispute resolution clause — Parties to contract agreed to expert determination of claims for damages for breach of contract — Expert contractually obliged to give reasons — Whether inconsistency in expert's reasons — Whether court has power to review expert's determination made under contract.
Words and phrases — "expert determination", "inconsistency", "issue", "valid and sufficient reasons".
Appealed from NSW SC (CA): [2010] NSWCA 59.
Criminal Law
Muldrock v The Queen
S121/2011: [2011] HCA 39.
Judgment delivered: 5 October 2011.
Coram: French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.
Catchwords:
Criminal law — Sentencing — Mentally retarded appellant pleaded guilty to offence of sexual intercourse with a child under 10 years — Appellant sentenced to nine years' imprisonment and non-parole period of 96 days — Standard non-parole period for offence 15 years — Relevance of statutory provision of a standard non-parole period in sentencing of offenders — Whether "two-stage approach" to sentencing of offenders for offences with standard non-parole periods required or permitted — Whether R v Way (2004) 60 NSWLR 168 correctly decided with respect to operation of standard non-parole periods.
Criminal law — Sentencing — Offender suffering mental retardation — Relevance of mental retardation — Relevance of availability of rehabilitative treatment.
Criminal law — Sentencing — Community protection — Relevance of availability of orders under Crimes (Serious Sex Offenders) Act 2006 (NSW).
Words and phrases — "objective seriousness", "standard non-parole period".
Appealed from NSW SC (CCA): [2010] NSWCCA 106.
Evidence
Lithgow City Council v Jackson
S66/2011: [2011] HCA 36.
Judgment delivered: 28 September 2011.
Coram: French CJ, Gummow, Heydon, Crennan and Bell JJ.
Catchwords:
Evidence — Admissibility — Opinion evidence — Section 78 of Evidence Act 1995 (NSW) ("Act") provided that rule excluding evidence of opinion does not apply where "opinion is based on what the person saw, heard or otherwise perceived about a matter or event" and evidence "is necessary to obtain an adequate account or understanding of the person's perception of the matter or event" — Respondent found unconscious and injured in drain — Respondent conceded appellant only liable if respondent fell from vertical retaining wall — Ambulance record contained representation "? Fall from 1.5 metres onto concrete" — Whether representation was admissible under s 78 of Act as opinion that respondent fell from vertical retaining wall.
Evidence — Admissibility — Hearsay evidence — Business records exception under s 69 of Act — Representation was hearsay evidence in business record — Whether representation must also comply with s 78.
Negligence — Causation — Whether circumstantial inferences sufficient to establish causation.
Appealed from NSW SC (CA): [2010] NSWCA 136.
Statutes
AB v State of Western Australia; AH v State of Western Australia
P15/2011; P16/2011: [2011] HCA 42.
Judgment delivered: 6 October 2011.
Coram: French CJ, Gummow, Hayne, Kiefel and Bell JJ.
Catchwords:
Statutes — Construction — Gender reassignment — Applications for recognition certificates as males — Reassignment procedures undertaken to alter genitals and gender characteristics — Appellants adopted lifestyle and have physical appearance of males — Retain some female sexual organs — Whether requirement that person have "the physical characteristics by virtue of which a person is identified as male or female" met — Whether adverse social consequences or community standards and expectations permissible considerations.
Words and phrases — "gender", "gender characteristics", "physical characteristics by virtue of which a person is identified", "reassignment procedure", "recognition certificate", "transsexual".
Appealed from WA SC (CA): (2010) AMLC 30-025; [2010] WASCA 172.
Taxation and Duties
Tasty Chicks Pty Limited v Chief Commissioner of State Revenue
S218/2011: [2011] HCA 41.
Judgment delivered: 5 October 2011.
Coram: French CJ, Gummow, Crennan, Kiefel and Bell JJ.
Catchwords:
State taxation — Pay-roll tax — Taxpayer dissatisfied with Chief Commissioner's determination of objection to assessments may apply to Supreme Court for "review" pursuant to Taxation Administration Act 1996 (NSW), s 97.
Administrative law — Courts — Original jurisdiction upon statutory "appeal" and "review" in respect of administrative decision — Nature, power and duties of court in exercise of that jurisdiction.
Words and phrases — "appeal", "review".
Appealed from NSW SC (CA): [2010] NSWCA 326.
2: Cases Reserved
The following cases have been reserved or part heard by the High Court of Australia.
Administrative Law
Australian Crime Commission v Stoddart & Anor
B71/2010: [2011] HCATrans 44.
Date heard: 1 March 2011 — Judgment reserved.
Coram: French CJ, Gummow, Heydon, Crennan, Kiefel and Bell JJ.
Catchwords:
Administrative law — First respondent summoned under s 28 of Australian Crime Commission Act 2002 (Cth) (“Act”) — First respondent declined to answer questions in relation to husband’s activities on basis of common law privilege against spousal incrimination — Whether distinct common law privilege against spousal incrimination exists — Whether privilege abrogated by s 30 of Act.
Appealed from FCA FC: (2010) 185 FCR 409; (2010) 271 ALR 53; [2010] FCAFC 89; [2010] ALMD 6989.
Citizenship and Migration
Shahi v Minister for Immigration and Citizenship
M10/2011: [2011] HCATrans 266.
Date heard: 26 September 2011 — Judgment reserved.
Coram: French CJ, Gummow, Hayne, Heydon and Bell JJ.
Catchwords:
Citizenship and migration — Migration — Refugees — Humanitarian visas — Part 202 of Sched 2 to Migration Regulations 1994 (Cth) ("Regulations") prescribes criteria for grant of, inter alia, Refugee and Humanitarian (Class XB), Subclass 202 (Global Special Humanitarian) visa — Criteria include, inter alia, that applicant's entry to Australia proposed by holder of Subclass 866 (Protection) visa, applicant a "member of the immediate family of the proposer on the date of application for that visa" and "applicant continues to be a member of the immediate family of the proposer" — Plaintiff born in Afghanistan — Plaintiff's precise age unknown — In May 2009, plaintiff arrived in Australia at Christmas Island as unaccompanied minor without valid visa — Plaintiff granted Subclass 866 (Protection) visa in September 2009 — In December 2009, plaintiff's mother applied for Subclass 202 (Global Special Humanitarian) visa — Plaintiff the "proposer" of his mother's application — Plaintiff's mother a "member of the immediate family" of plaintiff in December 2009 for purpose of reg 1.12AA(1) of Regulations — In September 2010, delegate of defendant refused plaintiff's mother's application on grounds including that, at time of decision, plaintiff's mother not a member of plaintiff's immediate family because plaintiff had turned 18 — Whether applicant who satisfies criterion in cl 202.211 of Sched 2 to Regulations at time of application is eligible for Subclass 202 visa if, at time of decision, applicant no longer a "member of the immediate family" of proposer — Whether cl 202.221 of Sched 2 to Regulations requires that, at time of decision, applicant continues to be a "member of the immediate family" of proposer where application made pursuant to cl 202.211(1)(b) — Whether defendant's delegate committed jurisdictional error in finding plaintiff's mother failed to meet requirements of cl 202.221 of Sched 2 to Regulations — Migration Act 1958 (Cth), ss 29, 31, 39, 40, 45, 65.
Words and phrases — "continues to be", "continues to satisfy", "member of the immediate family", "on the date of application for that visa", "proposer".
This matter was filed in the original jurisdiction of the High Court.
Constitutional Law
Sportsbet Pty Ltd v The State of New South Wales & Ors; Betfair Pty Limited v Racing New South Wales & Ors
S118/2011; S116/2011: [2011] HCATrans 230; [2011] HCATrans 231; [2011] HCATrans 232.
Dates heard: 30 & 31 August 2011, 1 September 2011 — Judgment reserved.
Coram: French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.
Catchwords:
Constitutional law (Cth) — Freedom of interstate trade, commerce and intercourse — Appellant Sportsbet Pty Ltd ("Sportsbet") a licensed wagering operator in Northern Territory ("NT") — Section 33 of Racing Administration Act 1998 (NSW) ("Racing Act") prohibited use of race field information by wagering operators unless operator authorised by approval and complied with conditions of approval — Section 33A(2)(a) of Racing Act and reg 16 of Racing Administration Regulations 2005 (NSW) ("Regulations") gave racing control bodies, including second and third respondents, power to grant approvals and impose conditions including imposition of race field fee of up to 1.5 per cent of wagering turnover — Fees imposed on all wagering operators irrespective of whether in NSW — NSW racing control bodies set thresholds for payment of fees, and arranged reduction in pre-existing fees, such that NSW on-course bookmakers largely unaffected — Sportsbet required to pay fees without regard to fees paid as conditions for licence in NT — TAB Limited ("TAB"), dominant wagering operator in NSW, received sums of money by second and third respondents equal to fees paid by it to those bodies — Whether intended and practical effect of ss 33 and 33A of Racing Act and Pt III of Regulations ("Scheme") was to impose discriminatory burden of protectionist nature on Sportsbet and other interstate wagering operators by prohibiting use of essential element of interstate trade and commerce subject to discretion of racing control bodies — Whether purpose and effect of Scheme was imposition of economic impost on interstate traders which would not be borne by intrastate traders — Whether validity of Scheme to be determined by comparing interstate and intrastate traders' positions — Whether practical effect of Scheme determinable without consideration of offsetting reductions in existing fees payable by intrastate traders — Whether fee conditions imposed by racing control bodies inconsistent with freedom of interstate trade, commerce and intercourse — Whether necessary for Sportsbet to demonstrate that it had a competitive advantage derived from its place of origin, or that the Scheme sought to erode its competitive advantage — Whether arrangements amongst NSW wagering operators and TAB were private contractual arrangements falling outside the purview of s 49 of Northern Territory (Self Government) Act 1978 (Cth) — Whether Scheme appropriate and adapted to legitimate non-protectionist objective — Whether fee conditions, approvals or Scheme invalid — Whether Scheme can be read consistently with freedom of interstate trade, commerce and intercourse pursuant to s 31 of Interpretation Act 1987 (NSW) ("Interpretation Act") — Commonwealth Constitution, ss 92 and 109.
S118/2011 appealed from FCA FC: (2010) 189 FCR 448; (2010) 274 ALR 12; [2010] FCAFC 132.
Constitutional law (Cth) — Freedom of interstate trade, commerce and intercourse — Appellant Betfair Pty Limited ("Betfair") a licensed betting exchange domiciled in Tasmania — Section 33 of Racing Act prohibited use of race field information by wagering operators unless operator authorised by approval and complied with conditions of approval — Section 33A(2)(a) of Racing Act and reg 16 of Regulations gave racing control bodies, including first and second respondents, power to grant approvals and impose conditions including imposition of race field fee of 1.5 per cent of wagering turnover — Wagering turnover defined as revenue from wagers that an event will occur ("back bets") — Fees imposed on all wagering operators irrespective of whether in NSW — Betfair generates revenue from back bets and bets that an event will not occur — Fees constituted greater proportion of Betfair's gross revenue than that of TAB and other wagering operators with different commission structures — Whether fee conditions imposed by first and second respondents pursuant to s 33 of Racing Act inconsistent with freedom of interstate trade, commerce and intercourse — Whether sufficient for Betfair to show that fee conditions imposed and were intended to impose significantly greater business costs on Betfair than on TAB — Whether Betfair required to demonstrate that practical effect or likely practical effect of fee conditions was to cause it to suffer loss of market share or profitability because fee conditions facially neutral — Whether Scheme appropriate and adapted to legitimate non-protectionist objective — Whether fee conditions, approvals or Scheme invalid — Whether Scheme can be read consistently with freedom of interstate trade, commerce and intercourse pursuant to s 31 of Interpretation Act — Commonwealth Constitution, s 92.
S116/2011 appealed from FCA FC: (2010) 189 FCR 356; (2010) 273 ALR 664; [2010] FCAFC 133.
Williams v The Commonwealth
S307/2010: [2011] HCATrans 198; [2011] HCATrans 199; [2011] HCATrans 200.
Dates heard: 9, 10 & 11 August 2011 — Judgment reserved.
Coram: French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.
Catchwords:
Constitutional law (Cth) — Executive — Plaintiff the parent of children enrolled at Darling Heights State Primary School ("School") — Commonwealth implemented National School Chaplaincy Programme ("NSCP") in 2007 — Commonwealth entered into funding agreement with Scripture Union Queensland ("SUQ") for provision of funding to School under NSCP ("Funding Agreement") — From 2007, chaplaincy services provided to School by SUQ for reward using NSCP funding — Whether Funding Agreement invalid by reason of being beyond executive power of Commonwealth — Whether executive power of Commonwealth includes power to enter into, and make payments pursuant to, contracts in respect of matters other than those in respect of which the Constitution confers legislative power — Whether executive power of Commonwealth includes power to enter into, and make payments pursuant to, contracts in respect of which the Constitution confers legislative power — Whether executive power of Commonwealth includes power to enter into, and make payments pursuant to, contracts with respect to the provision of benefits to students within meaning of s 51(xxiiiA) of Constitution — Whether executive power of Commonwealth includes power to enter into contracts with trading corporations within meaning of s 51(xx) of Constitution — Whether payments to SUQ under Funding Agreement provide "benefits to students" — Whether SUQ a trading corporation — Commonwealth Constitution, ss 51(xx), 51(xxiiiA), 61.
Constitutional law (Cth) — Revenue and appropriation — Payments under Funding Agreement drawn from Consolidated Revenue Fund ("CRF") by Appropriation Acts — Whether drawing of money from CRF for purpose of making payments under Funding Agreement authorised by Appropriation Acts — Whether Appropriation Acts authorised expenditure only for "ordinary annual services of government" — Whether permitted and appropriate to have regard to practices of Parliament to determine "ordinary annual services of the Government" — Whether payments to SUQ under Funding Agreement were "ordinary annual services of government" — Commonwealth Constitution, ss 54, 56, 81, 83.
Constitutional law (Cth) — Restrictions on Commonwealth legislation — Laws relating to religion — Whether definition of "school chaplains" in NSCP Guidelines, as incorporated in Funding Agreement, invalid by reason of imposing religious test as qualification for office under the Commonwealth in contravention of s 116 of Commonwealth Constitution.
High Court of Australia — Original jurisdiction — Practice and procedure — Parties — Standing — Whether plaintiff has standing to challenge validity of Funding Agreement — Whether plaintiff has standing to challenge drawing of money from CRF for purpose of making payments pursuant to Funding Agreement — Whether plaintiff has standing to challenge Commonwealth payments to SUQ pursuant to Funding Agreement.
Words and phrases — "office under the Commonwealth", "ordinary annual services of the Government", "provision of benefits to students", "religious test", "school chaplains", "trading corporation".
This matter was filed in the original jurisdiction of the High Court.
Wotton v The State of Queensland & Anor
S314/2010: [2011] HCATrans 191.
Date heard: 3 August 2011 — Judgment reserved.
Coram: French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.
Catchwords:
Constitutional law (Cth) — Implied freedom of communication about government or political matters — Section 132(1)(a) of Corrective Services Act 2006 (Q) ("Act") prohibits person from interviewing prisoners or obtaining written or recorded statements from prisoners, including persons on parole — Section 200(2) of Act allows parole board to impose conditions on grant of parole order — Plaintiff convicted of offence of rioting causing destruction and sentenced to imprisonment — Plaintiff granted parole subject to conditions prohibiting, inter alia, attendance at public meetings on Palm Island without prior approval of corrective services officer, and receipt of direct or indirect payments from the media ("Conditions") — Plaintiff sought approval to attend public meeting on Palm Island concerning youth crime and juvenile justice — Plaintiff's request denied by parole officer of second defendant, Central and Northern Queensland Regional Parole Board — Whether s 132(1)(a) of Act contrary to Commonwealth Constitution by impermissibly burdening implied freedom — Whether s 132(1)(a) of Act to be construed so as not to apply to a prisoner on parole — Whether s 200(2) of Act invalid to extent it authorises imposition of Conditions — Whether Conditions invalid as infringing implied freedom if s 200(2) of Act construed in conformity with implied freedom.
This matter was filed in the original jurisdiction of the High Court.
Phonographic Performance Company of Australia Limited & Ors v The Commonwealth & Ors
S23/2010: [2011] HCATrans 117; [2011] HCATrans 118; [2011] HCATrans 119.
Dates heard: 10, 11 & 12 May 2011 — Judgment reserved.
Coram: French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.
Catchwords:
Constitutional law (Cth) — Operation and effect of Commonwealth Constitution — Copyrights, patents and trade marks — Powers with respect to property — Power to acquire property on just terms — Whether some or all of provisions in ss 109 and 152 of Copyright Act 1968 (Cth) ("provisions") within legislative competence of Parliament by reason of s 51(xviii) of Commonwealth Constitution — Whether provisions beyond legislative competence of Parliament by reason of s 51(xxxi) of Commonwealth Constitution — Whether provisions should be read down or severed and, if so, how — Whether copyright in sound recordings under Copyright Act 1912 (Cth) property — Whether provisions effected acquisition of property — Whether any acquisition of property on just terms within s 51(xxxi) of Commonwealth Constitution.
This matter was filed in the original jurisdiction of the High Court.
Criminal Law
PGA v The Queen
A15/2011: [2011] HCATrans 267.
Date heard: 27 September 2011 — Judgment reserved.
Coram: French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.
Catchwords:
Criminal law — Rape and sexual assault — Consent — Existence of common law presumption of marital consent — Appellant charged in 2010 with two counts of rape, allegedly committed in 1963, against then wife — In 1963, s 48 of Criminal Law Consolidation Act 1935 (SA) ("Act") made person convicted of rape guilty of felony — Where elements of offence of rape in South Australia in 1963 supplied by common law — Act amended in 1976 to remove presumption of marital consent to sexual intercourse in certain circumstances — Whether common law of Australia in 1963 permitted husband to be found guilty of rape of his wife — Whether common law recognises retrospective imposition of criminal liability absent statutory requirement — Whether appellant liable to be found guilty of offence of rape of his wife allegedly committed in 1963 — Effect of R v L (1991) 174 CLR 379 — Whether enactment of Criminal Law Consolidation Act Amendment Act 1976 (SA) precluded subsequent amendment of common law position prevailing in 1963 — Act, ss 48 and 73 — Acts Interpretation Act 1915 (SA), s 16.
Appealed from SA SC (CCA): [2010] SASCFC 81.
BBH v The Queen
B76/2010: [2011] HCATrans 254.
Date heard: 7 September 2011 — Judgment reserved.
Coram: French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.
Catchwords:
Criminal law — Appeal and new trial — Evidence — Applicant found guilty by jury of maintaining indecent relationship with child under 16, indecent treatment of child under 16 and sodomy of a person under 18 — Complainant was applicant's daughter — Complainant's brother gave evidence of incident involving applicant and complainant which was said to be capable of establishing the applicant's sexual interest in the complainant — Whether evidence of discreditable conduct admissible in a criminal trial when a reasonable view of that evidence is consistent with innocence— Whether evidence of complainant's brother admissible at applicant's trial — Whether test for admissibility in Pfennig v The Queen (1995) 182 CLR 461 applies to evidence of discreditable conduct.
Words and phrases — "discreditable conduct".
Appealed from Qld SC (CA): [2007] QCA 348.
Stoten v The Queen; Hargraves v The Queen
B24/2011; B28/2011: [2011] HCATrans 253.
Date heard: 6 September 2011 — Judgment reserved.
Coram: French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.
Catchwords:
Criminal law — Appeal and new trial — Directions to jury — Miscarriage of justice — Section 668E(1A) of Criminal Code (Q) ("proviso") allows a court to dismiss an appeal, even though points raised by an appellant might be decided in appellant's favour, if court considers no substantial miscarriage of justice occurred — Appellants found guilty by jury of conspiracy to defraud Commonwealth — Whether trial judge's directions to jury breached prohibition against giving direction to evaluate reliability of evidence of accused on basis of accused's interest in outcome of trial — Court of Appeal found errors in directions given to jury but applied proviso and dismissed appellants' appeals — Whether direction at trial constituted a substantial miscarriage of justice — Robinson v The Queen (1991) 180 CLR 531 — Weiss v The Queen (2005) 224 CLR 300.
Words and phrases — "fair trial", "substantial miscarriage of justice".
Appealed from Qld SC (CA): [2010] QCA 328.
Handlen v The Queen; Paddison v The Queen
B26/2011; B27/2011: [2011] HCATrans 253.
Date heard: 6 September 2011 — Judgment reserved.
Coram: French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.
Catchwords:
Criminal law — Appeal and new trial — Directions to jury — Miscarriage of justice — Section 668E(1A) of Criminal Code (Q) ("proviso") allows a court to dismiss an appeal, even though points raised by an appellant might be decided in appellant's favour, if court considers no substantial miscarriage of justice occurred — Appellants found guilty by jury of two counts of importing commercial quantity of border controlled drugs contrary to s 307.1 of Criminal Code (Cth) ("Code") ("importation counts") and one count of attempting to possess border controlled drugs contrary to s 307.5 of Code ("possession count") — Court of Appeal found case put to jury in respect of importation counts "in terms alien to the forms of criminal responsibility" then recognised by the Code and appellants only criminally responsible as aiders and abetters under s 11.2 of Code — Court of Appeal applied proviso and dismissed appeals — Whether misdirection as to factual requirements for conviction under Code in respect of importation counts a substantial miscarriage of justice — Whether misdirection gave rise to substantial miscarriage of justice in respect of possession count.
Words and phrases — "fair trial", "substantial miscarriage of justice".
Appealed from Qld SC (CA): (2010) 247 FLR 261; [2010] QCA 371.
Moti v The Queen
B19/2011: [2011] HCATrans 192; [2011] HCATrans 194.
Dates heard: 3 & 4 August 2011 — Judgment reserved.
Coram: French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.
Catchwords:
Criminal law — Procedure — Stay of proceedings — Abuse of process — Primary judge stayed indictment charging appellant with seven counts of engaging in sexual intercourse with person under age of 16 whilst outside Australia — Primary judge found financial support given to witnesses by Australian Federal Police an abuse of process — Whether open to conclude that appellant's prosecution, based on evidence of witnesses paid by Australian Executive in amounts alleged to exceed expenses of giving evidence and in response to alleged threats to withdraw from prosecution, an abuse of process — Whether stay of proceedings should be set aside.
Criminal law — Procedure — Stay of proceedings — Abuse of process — Appellant deported from Solomon Islands to Australia without extradition proceedings and allegedly with knowledge and "connivance or involvement" of Australian Executive — Appellant previously charged with similar offences in Vanuatu but discharged — Appellant contended removal from Solomon Islands a disguised extradition in breach of Solomon Islands' Deportation Act and Order of Magistrates' Court restraining authorities from effecting deportation — Whether principle in R v Horseferry Magistrates' Court; Ex Parte Bennett (No 1) [1994] 1 AC 42 allows an Australian court to grant stay of proceedings — Meaning of "connivance or involvement" — Whether Australian Executive involved itself or connived in unlawful rendition of appellant to Australia.
Words and phrases — "connivance", "involvement".
Appealed from Qld SC (CA): (2010) 240 FLR 218; [2010] QCA 178.
Commonwealth Director of Public Prosecutions v Poniatowska
A20/2010: [2011] HCATrans 46.
Date heard: 3 March 2011 — Judgment reserved.
Coram: French CJ, Gummow, Heydon, Kiefel and Bell JJ.
Catchwords:
Criminal law — Offences — Respondent failed to declare $71,000 in commission payments while receiving parenting benefit from Centrelink — Whether omitting to perform act a physical element of offence — Whether existence of legal duty or obligation to perform act, imposed by offence provision or other Commonwealth statute, determinative of question about physical element — Criminal Code 1995 (Cth), ss 4.3 and 135.2.
Words and phrases — “engages in conduct”.
Appealed from SA SC (FC): (2010) SASR 578; (2010) 240 FLR 466; (2010) 271 FLR 610; [2010] SASCFC 19; [2010] ALMD 7469.
High Court of Australia
See Constitutional Law: Williams v The Commonwealth
Mortgages
Waller v Hargraves Secured Investments Limited
S223/2011: [2011] HCATrans 278.
Date heard: 6 October 2011 — Judgment reserved.
Coram: French CJ, Hayne, Heydon, Crennan and Kiefel JJ.
Catchwords:
Mortgages — Primary industry — Farm debt mediation — Mortgagee's remedies — Possession — Section 8(1) of Farm Debt Mediation Act 1994 (NSW) ("Act") provides that creditor to whom farm debt is owed under farm mortgage must not take enforcement action against farmer until notice given of availability of mediation ("Notice") — Where Rural Assistance Authority ("Authority") may issue certificate that Act does not apply to farm mortgage in prescribed circumstances — Where s 8(1) of Act inapplicable where certificate issued by Authority in force "in respect of the farm mortgage concerned" — Where enforcement action taken by creditor other than in compliance with Act is void — Respondent loaned money to appellant secured by statutory charge over appellant's farm under Real Property Act 1900 (NSW) — Appellant breached terms of loan agreement and respondent gave Notice — Parties engaged in mediation under Act and entered into deed of settlement and second loan agreement — Appellant defaulted under second loan agreement — Parties entered into third loan agreement, under which appellant also defaulted — Respondent did not give Notice and applied for certificate from Authority — Authority issued certificate referring to appellant's indebtedness under first loan agreement — Respondent commenced proceedings for possession of property and money judgment — Whether extinguishment of first and second farm debts and creation of new farm debts by second and third loan agreements created new farm mortgages — Whether certificate issued by Authority void or issued in respect of previous farm mortgage — Whether respondent failed to comply with s 8(1) of Act by not giving Notice to appellant in respect of farm mortgage sought to be enforced — Whether respondent's non-compliance with Act requires setting aside of grant of possession and money judgment in amount owing under mortgage — Act, ss 4, 6, 8 and 11.
Words and phrases — "enforcement action", "farm debt", "farm mortgage", "in respect of the farm mortgage concerned".
Appealed from NSW SC (CA): [2010] NSWCA 300.
Practice and Procedure
Michael Wilson & Partners Limited v Nicholls & Ors
S67/2011: [2011] HCATrans 141; [2011] HCATrans 142.
Dates heard: 31 May 2011, 1 June 2011 — Judgment reserved.
Coram: Gummow ACJ, Hayne, Heydon, Crennan and Bell JJ.
Catchwords:
Practice and procedure — Supreme Court procedure — Abuse of process — Appellant obtained judgment against respondents in Supreme Court of NSW ("NSWSC") for knowing participation in breach of fiduciary duty by a non-party — London arbitrators subsequently issued interim award upholding breach of duties by non-party but denying compensation to appellant ("Award") — Respondents not party to Award — Whether abuse of process for appellant to seek to enforce judgment in NSWSC in face of Award.
Practice and procedure — Courts and judges — Disqualification of judges for interest or bias — Apprehended bias — Application of lay observer test in Johnson v Johnson (2000) 201 CLR 488 — Whether lay observer test "unnecessary" and "wholly artificial" where judge personally apprehends bias — Whether conclusion of NSW Court of Appeal on trial judge's apprehensible bias justified on facts.
Practice and procedure — Waiver — Trial judge refused to recuse himself ("recusal decision") and invited respondents to appeal recusal decision — Respondents did not appeal recusal decision until after trial and judgment adverse to respondents delivered — Whether recusal decision an order or judgment — Whether recusal decision amenable to appeal — Whether respondents waived right to appeal recusal decision by proceeding with trial.
Appealed from NSW SC (CA): (2010) 243 FLR 177; [2010] NSWCA 222.
Restitution
Equuscorp Pty Ltd (formerly Equus Financial Services Ltd) v Haxton; Equuscorp Pty Ltd (formerly Equus Financial Services Ltd) v Bassat; Equuscorp Pty Ltd (formerly Equus Financial Services Ltd) v Cunningham's Warehouse Sales Pty Ltd
M128/2010; M129/2010; M130/2010—M132/2010:
[2011] HCATrans 50; [2011] HCATrans 51.
Dates heard: 9 & 10 March 2011 — Judgment reserved.
Coram: French CJ, Gummow, Heydon, Crennan, Kiefel and Bell JJ.
Catchwords:
Restitution — Restitution resulting from unenforceable, incomplete, illegal or void contracts — Recovery of money paid or property transferred — Respondents investors in tax driven blueberry farming schemes — Funds for farm management fees lent to investors by Rural Finance Ltd (“Rural”) — Appellant lent money to Rural — Rural subsequently wound up — Loan contracts between respondents and Rural assigned to applicant — Appellant’s enforcement of contractual debts statute-barred — Where parties agreed in court below loan contracts illegal and unenforceable — Whether total failure of consideration — Whether respondents’ retention of loan funds “unjust”.
Restitution — Assignment of rights of restitution — Where Deed of Assignment assigning Rural’s loans to appellant included assignment of “legal right to such debts … and all legal and other remedies” — Whether rights of restitution able to be assigned — Whether rights of restitution assigned in this case.
Appealed from Vic SC (CA): (2010) 265 ALR 336; [2010] VSCA 1.
Statutes
Australian Education Union v Department of Education and Children's Services
A4/2011: [2011] HCATrans 269.
Date heard: 28 September 2011 — Judgment reserved.
Coram: French CJ, Hayne, Heydon, Kiefel and Bell JJ.
Catchwords:
Statutes — Acts of Parliament — Interpretation — Statutory powers and duties — Conferral and extent of power — General matters constrained by specific — Applicants teachers appointed under
s 9(4) of Education Act 1972 (SA) ("Act") — Where s 15 of Act enabled Minister to appoint teachers "officers of the teaching service" — Where s 9(4) of Act enabled Minister to appoint officers and employees "in addition to" officers of teaching service — Meaning of "in addition to" — Whether general power in s 9(4) constrained by specific power in s 15 — Whether within Minister's power to appoint teachers under s 9(4) of Act or whether s 15 sole source of Executive power.
Words and phrases — "in addition to".
Appealed from SA SC (FC): [2010] SASC 161.
Torts
Amaca Pty Limited (Under NSW Administered Winding Up) v Booth & Anor; Amaba Pty Limited (Under NSW Administered Winding Up) v Booth & Anor
S219/2011; S220/2011: [2011] HCATrans 276; [2011] HCATrans 277.
Dates heard: 4 & 5 October 2011 — Judgment reserved.
Coram: French CJ, Gummow, Hayne, Heydon and Crennan JJ.
Catchwords:
Torts — Negligence — Causation — Dust diseases — First respondent ("Booth") suffers from mesothelioma — Booth exposed to asbestos in four domestic and employment periods, in addition to ordinary background exposure — Third and fourth periods of exposure occurred while Booth worked with brake linings containing asbestos manufactured by appellants — Trial judge found each appellant responsible for 70 per cent of asbestos fibre to which Booth exposed in third and fourth periods, and each appellant negligent in failing to warn Booth of dangers associated with working with asbestos brake linings — Whether evidence capable of establishing that Booth's mesothelioma caused by exposure to asbestos products manufactured by appellants — Whether causation can be established by reference to increased risk of developing mesothelioma and, if so, whether increase in risk attributable to appellants caused Booth's injury.
Appealed from SC NSW (CA): [2010] Aust Torts Reports 82-079; [2010] NSWCA 344.
Strong v Woolworths Limited t/as Big W & Anor
S172/2011: [2011] HCATrans 194.
Date heard: 13 May 2011 — Judgment reserved.
Coram: French CJ, Gummow, Heydon, Crennan and Bell JJ.
Catchwords:
Torts — Negligence — Causation — Appellant slipped on chip and fell in area of shopping centre where respondent had exclusive right to conduct sidewalk sales — Whether causation established — Whether s 5D(1) of Civil Liability Act 2002 (NSW) excludes consideration of material contribution to harm and increase in risk — Whether appellant demonstrated lack of adequate cleaning system responsible for debris on centre floor.
Words and phrases — "necessary condition".
Appealed from SC NSW (CA): [2010] NSWCA 282.
3: Original Jurisdiction
The following cases are ready for hearing in the original jurisdiction of the High Court of Australia.
Citizenship and Migration
Plaintiff S10/2011 v Minister for Immigration and Citizenship & Anor
S49/2011
Catchwords:
Citizenship and migration — Migration — Ministerial discretion — Procedural fairness — Section 417 of Migration Act 1958 (Cth) ("Act") empowers first defendant ("Minister") to substitute decision of Refugee Review Tribunal ("RRT") made under s 415 of Act with another decision more favourable to an applicant, if Minister thinks it is "in the public interest to do so" — Section 48B of Act empowers Minister to determine that s 48A of Act does not apply to prevent application for protection visa made by non-citizen, if Minister thinks it is "in the public interest to do so" — Plaintiff applied for Ministerial intervention pursuant to ss 48B and 417 of Act — In October 2010, Minister's delegate informed plaintiff that Minister had decided not to exercise power under s 417 of Act ("the s 417 decision), and plaintiff's s 48B application had been assessed against Minister's Guidelines but was not referred to Minister ("the
s 48B decision") — Whether Minister and or second defendant through his officers failed to accord procedural fairness to plaintiff in the s 48B decision and the s 417 decision by taking into consideration certain matters without providing plaintiff with opportunity to know about or comment on those matters — Whether plaintiff had legitimate expectation that information provided by him in respect of his applications would be considered in assessing whether he fell within Guidelines — Whether Minister and or second defendant through his officers failed to apply Minister's Guidelines correctly by taking into account irrelevant considerations or failing to take into account relevant considerations — Whether jurisdictional error occurred irrespective of privative clause in s 474(2) of Act.
This application for an order to show cause was filed in the original jurisdiction of the High Court.
Plaintiff S49/2011 v Minister for Immigration and Citizenship & Anor
S49/2011
Catchwords:
Citizenship and migration — Migration — Ministerial discretion — Procedural fairness — Section 417 of Migration Act 1958 (Cth) ("Act") empowers first defendant ("Minister") to substitute decision of Refugee Review Tribunal ("RRT") made under s 415 of Act with another decision more favourable to an applicant, if Minister thinks it is "in the public interest to do so" — Section 48B of Act empowers Minister to determine that s 48A of Act does not apply to prevent application for protection visa made by non-citizen, if Minister thinks it is "in the public interest to do so" — Plaintiff, an Indian national, arrived in Australia in 1998 carrying Indian passport issued in particular name — Plaintiff detained as unlawful non-citizen in 2003 — Plaintiff claimed to be national of Bangladesh with different name to that in Indian passport — In June 2009, plaintiff applied for Ministerial intervention under ss 48B and 417 of Act — In October 2009, Minister's delegate informed plaintiff that his
s 48B application did not meet Minister's Guidelines for intervention and was not referred to Minister ("the s 48B decision") — In December 2010, Minister's delegate informed plaintiff that Minister had decided not to exercise power under s 417 of Act with respect to plaintiff ("the s 417 decision") — Whether Minister and or second defendant through his officers failed to accord procedural fairness to plaintiff in the s 48B decision and the s 417 decision by taking into consideration certain matters without providing plaintiff with opportunity to know about or comment on those matters — Whether Minister and or second defendant through his officers failed to apply Minister's Guidelines correctly by taking into account irrelevant considerations or failing to take into account relevant considerations — Whether jurisdictional error occurred irrespective of privative clause in s 474(2) of Act.
This application for an order to show cause was filed in the original jurisdiction of the High Court.
Kaur v Minister for Immigration and Citizenship & Anor
S43/2011
Catchwords:
Citizenship and migration — Migration — Ministerial discretion — Procedural fairness — Section 351 of Migration Act 1958 (Cth) ("Act") empowers first defendant ("Minister") to substitute decision of Migration Review Tribunal ("MRT") made under s 349 of Act with another decision more favourable to an applicant, if Minister thinks it is "in the public interest to do so" — Plaintiff granted Subclass 573 Higher Education Sector student visa in September 2005, expiring in August 2008 — In June 2006, Minister's delegate notified plaintiff by letter that she had been granted Subclass 573 Higher Education Sector student visa with permission to change education provider — Letter stated plaintiff's visa valid until June 2008 — Plaintiff applied for Subclass 572 Vocational Education and Training Sector visa in September 2008 — Applications for Subclass 572 visas must be made within 28 days after day when last substantive visa ceased to be in effect: Migration Regulations 1994 (Cth), Sched 2, sub-item 572.211(3)(c)(i) — Minister's delegate refused plaintiff's application for Subclass 572 visa because application filed out of time — MRT rejected plaintiff's application for review of delegate's decision — Plaintiff unsuccessfully applied for Ministerial intervention under s 351 of Act — Federal Court of Australia rejected plaintiff's application for review of decision of MRT — Plaintiff again sought Ministerial intervention under s 351 of Act — In January 2011, Minister's delegate informed plaintiff that second Ministerial intervention application would not be forwarded to Minister — Whether Minister and or second defendant through his officers failed to accord procedural fairness to plaintiff by considering information or matters adverse to plaintiff without providing plaintiff with opportunity to know about or comment on those matters — Whether second defendant through his officers denied plaintiff procedural fairness by failing to apply Minister's Guidelines correctly — Whether jurisdictional error occurred irrespective of privative clause in s 474(2) of Act.
This application for an order to show cause was filed in the original jurisdiction of the High Court.
4: Special Leave Granted
The following cases have been granted special leave to appeal to the High Court of Australia.
Administrative Law
Public Service Association of South Australia Incorporated v Industrial Relations Commission of South Australia & Anor
A7/2011: [2011] HCATrans 149.
Date heard: Referred to an enlarged Court on 8 June 2011 without oral submissions.
Catchwords:
Administrative law — Judicial review — Grounds of review — Jurisdictional matters — Applicant notified two disputes in Industrial Relations Commission of South Australia ("Commission") — Commission at first instance and on appeal ruled it lacked jurisdiction to determine disputes — Section 206 of Fair Work Act 1994 (SA) ("Act") precludes review of Commission determinations unless "on the ground of an excess or want of jurisdiction" — Full Court of Supreme Court of South Australia ("Court") held it lacked jurisdiction to review Commission's determinations and dismissed summons for judicial review — Whether s 206 of Act precludes judicial review by Court of jurisdictional error not in "excess or want of jurisdiction" — Whether s 206 of Act beyond power of South Australian Parliament — Whether Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 impliedly overruled Public Service Association of South Australia v Federated Clerks' Union of Australia, South Australian Branch (1991) 173 CLR 132.
Constitutional law (Cth) — Commonwealth Constitution, Ch III — State Supreme Courts — Power of State Parliament to alter defining characteristic of Supreme Court of a State — Supervisory jurisdiction — Whether all jurisdictional errors of tribunals must be subject to review by the Supreme Court of a State — Whether s 206 of Act impermissibly limits Court's jurisdiction to exercise judicial review where jurisdictional error has occurred.
Industrial law — South Australia — Commission — Jurisdiction — Public servants — Disputes raised in Commission concerning "no forced redundancy" commitment, recreational leave loading and long service leave provisions in Enterprise Agreement — Whether Commission and Court erred in relation to jurisdiction.
Words and phrases — "on the ground of an excess or want of jurisdiction".
Appealed from SA SC (FC): (2011) SASR 223; [2011] SASCFC 14.
Constitutional Law
See Administrative Law: Public Service Association of South Australia Incorporated v Industrial Relations Commission of South Australia & Anor
Contracts
ALH Group Property Holdings Pty Limited v Chief Commissioner of State Revenue
S128/2011: [2011] HCATrans 215.
Date heard: 12 August 2011 — Special leave granted on limited grounds.
Catchwords:
Contracts — Discharge by agreement — Novation — Contract for sale of land ("Parkway Hotel") between Oakland Glen Pty Ltd ("Vendor") and Permanent Trustee Company Limited as trustee of ALE Direct Property Trust ("Purchaser") executed in 2003 ("2003 Contract") — Deed of Consent and Assignment between Vendor, Purchaser and applicant, executed in 2008, assigned rights and entitlements of Purchaser under 2003 Contract to applicant ("Deed") — Commissioner assessed Deed to ad valorem duty under s 22(2) of Duties Act 1997 (NSW) ("Duties Act") as transfer of dutiable property — By Deed of Termination, Vendor and applicant rescinded Deed and 2003 Contract and entered new contract for sale of Parkway Hotel on which ad valorem duty paid — Applicant claimed Deed of Termination avoided liability of Deed for ad valorem duty and conferred right to refund under s 50 of Duties Act — Whether Deed effected novation of 2003 Contract — Whether Deed rescinded 2003 Contract and substituted for it a new contract for sale of Parkway Hotel between Vendor and applicant on terms of 2003 Contract as varied by Deed — Whether Deed a "hybrid tripartite contract" wherein Vendor's obligations flowed from assignment and applicant's obligations flowed from Deed — Duties Act ss 8(1)(a), 22(2), 50.
Words and phrases — "hybrid tripartite contract".
Appealed from NSW SC (CA): [2011] NSWCA 32.
See also Corporations Law: Fortescue Metals Group Ltd v Australian Securities and Investments Commission & Anor; Forrest v Australian Securities and Investments Commission & Anor
Corporations Law
Fortescue Metals Group Ltd v Australian Securities and Investments Commission & Anor; Forrest v Australian Securities and Investments Commission & Anor
P6/2011; P7/2011: [2011] HCATrans 271.
Date heard: 29 September 2011 — Special leave granted.
Catchwords:
Corporations law — Continuous disclosure — Misleading and deceptive conduct — Fortescue Metals Group Ltd ("FMG") entered into framework agreements with three Chinese entities — Forrest the Chairman and CEO of FMG — FMG made public announcements that FMG and Chinese entities had executed binding agreements to build, finance and transfer infrastructure for mining project in Pilbara region — Whether, in making announcements, FMG contravened ss 674(2) and 1041H of Corporations Act 2001 (Cth) ("Act"), and Forrest contravened ss 180(1) and 674(2) of Act — Whether announcements made by FMG misleading or deceptive or likely to be misleading or deceptive in contravention of s 1041H of Act or s 52 of Trade Practices Act 1974 (Cth) — Whether announcements would have been understood by reasonable person as statement of FMG's honest, or honest and reasonable, belief as to terms and effect of framework agreements rather than statements that warranted or guaranteed their truth — Whether FMG and Forrest honestly, or honestly and reasonably, believed framework agreements effective as binding contracts — Whether FMG and Forrest contravened s 674(2) of Act because neither had "information" that framework agreements unenforceable at law — Whether, if announcements by FMG misleading or deceptive or likely to be misleading or deceptive, Forrest contravened s 180(1) of Act — Whether s 180(1) of Act provides for civil liability of directors for contraventions of other provisions of Act — Whether
s 180(2) of Act available as defence to alleged contravention of
s 180(1) if proceedings based on contravention of provisions containing exculpatory provisions — Whether s 180(2) of Act applies to decisions concerning compliance with Act.Contracts — Agreements contemplating existence of fuller contracts — Certainty — Whether framework agreements contained binding core obligations on Chinese entities in respect of Pilbara project — Whether framework agreements uncertain as to subject matter — Whether inclusion of terms making price determinable by third party rendered framework agreements uncertain.
Appealed from FCA (FC): (2011) 190 FCR 364; (2011) 274 ALR 731; (2011) 5 BFRA 220; (2011) 81 ACSR 563; (2011) 29 ACLC 11-015; [2011] FCAFC 19.
Australian Securities and Investments Commission v Shafron; Australian Securities and Investments Commission v Terry; Australian Securities and Investments Commission v Hellicar; Australian Securities and Investments Commission v Brown; Australian Securities and Investments Commission v Gillfillan; Australian Securities and Investments Commission v Koffel; Australian Securities and Investments Commission v O'Brien; Australian Securities and Investments Commission v Willcox; Shafron v Australian Securities and Investments Commission
S29/2011; S30/2011; S31/2011; S32/2011; S33/2011; S34/2011; S35/2011; S36/2011; S37/2011: [2011] HCATrans 128.
Date heard: 13 May 2011 — Special leave granted.
Catchwords:
Corporations — Management and administration — Evidence — Misleading announcement sent to Australian Stock Exchange ("ASX") — At trial, Australian Securities and Investments Commission ("ASIC") failed to call solicitor ("Mr Robb") advising James Hardie Industries Ltd ("JHIL") who attended meeting of Board of Directors — Trial judge made adverse findings and declarations of contravention against first to eighth respondents — Whether ASIC obliged to call particular witnesses pursuant to obligation of fairness — Whether ASIC failed to discharge burden of proving that JHIL Board passed Draft ASX Announcement resolution — Whether ASIC obliged to call Mr Robb to give evidence of firm's receipt of Draft ASX Announcement — Whether ASIC's failure to comply with obligations, if extant, had negative evidentiary impact on ASIC's case — Whether certain oral evidence of respondents Brown and Koffel ought to have been accepted as correlating with terms of Draft ASX Announcement — Whether ASIC failed to prove that JHIL Board passed resolution approving tabled ASX Announcement — Whether of evidentiary significance that company associated with respondent O'Brien produced to ASIC identical version of Draft ASX Announcement — Whether evidence of JHIL company secretary that practice of retaining versions of announcements approved for market release did not relate to period of release of misleading announcement — Whether reliability and weight to be attributed to Board minutes open to question — Whether declarations of contravention made in respect of first to eighth respondents should be set aside — Whether, in respect of Shafron cross-appeal: Shafron was an officer of JHIL who participated in decisions affecting the business of JHIL; Shafron's responsibilities as company secretary and general counsel fell within scope of duty of care and diligence imposed on him as an "officer" by s 180(1) of Corporations Law and Corporations Act 2001 (Cth) ("Acts"); Shafron's conduct was in his capacity as JHIL company secretary; Shafron breached s 180(1) of the Acts.
Appealed from NSW SC (CA): (2010) 274 ALR 205; (2010) 247 FLR 140; (2010) 81 ACSR 285; [2010] NSWCA 331.
Criminal Law
R v Khazaal
S236/2011: [2011] HCATrans 279.
Date heard: 7 October 2011 — Special leave granted.
Catchwords:
Criminal law — Terrorism — Collecting or making documents likely to facilitate terrorist acts — Section 101.5(1) of Criminal Code 1995 (Cth) ("Code") makes an offence the collection or making of a document connected with preparation for, engagement of a person in, or assistance in a terrorist act, where that person knows of the connection — Section 101.5(5) of Code creates defence if collection or making of document not intended to facilitate preparation for, engagement of a person in, or assistance in a terrorist act — Defendant bears evidential burden of proof under s 101.5(5), as defined in s 13.3(6) of Code — Respondent found guilty of offence of making document connected with terrorist act knowing of that connection contrary to s 101.5(1) of Code — Whether respondent discharged evidential burden under s 101.5(5) of Code, having regard to s 13.3(6) of Code — Whether evidence at trial suggested reasonable possibility that making of document by respondent not intended to facilitate assistance in terrorist act so as to engage defence in s 101.5(5) of Code.
Words and phrases — "assistance in a terrorist act", "connected with", "evidential burden".
Appealed from NSW SC (CCA): [2011] NSWCCA 129.
R v Getachew
M58/2011: [2011] HCATrans 275.
Date heard: 29 September 2011 — Special leave granted.
Catchwords:
Criminal law — Rape — Mens rea — Trial judge directed jury that mens rea established if accused ("respondent") aware that complainant might be asleep — Respondent led no evidence of his mental state at trial — Court of Appeal held direction precluded consideration by jury of possibility that respondent believed complainant was consenting to anal intercourse while asleep — Whether sufficient evidence before jury to require direction that respondent may have believed complainant consenting while asleep — Whether incumbent upon respondent's counsel to raise respondent's awareness of complainant's lack of consent — Appropriate test to be applied in determining sufficiency of evidence for purpose of giving direction — Whether respondent able to hold belief that complainant gave consent where jury found beyond reasonable doubt that respondent knew or believed complainant asleep at time of penetration — Crimes Act 1958 (Vic), ss 36, 37, 37AA, 37AAA, 38 — Pemble v The Queen (1971) 124 CLR 107.
Appealed from Vic SC (CA): [2011] VSCA 164.
Baiada Poultry Pty Ltd v The Queen
M20/2011: [2011] HCATrans 251.
Date heard: 2 September 2011 — Special leave granted on limited grounds.
Catchwords:
Criminal law — Occupational health and safety — Duties of employer — Control — Applicant convicted of breaching s 21(1) of Occupational Health and Safety Act 2004 (Vic) ("Act") following death of driver ("decedent") engaged as independent contractor by applicant — Decedent struck by crate being moved by forklift operated by unlicensed driver employed by third party company engaged as independent contractor by applicant — Court of Appeal held trial judge's directions to jury inadequate on basis that jury ought to have been directed that, if satisfied that control on the part of the applicant was established, they were bound to consider whether they were satisfied beyond reasonable doubt that the applicant's engagement of independent contractors was not sufficient to discharge obligations — Court of Appeal held no substantial miscarriage of justice occasioned by misdirection and applied s 568(1) of Crimes Act 1958 (Vic) ("proviso") to dismiss appeal — Whether Court of Appeal erred in application of proviso by finding it had discretion to apply proviso and in circumstances where applicant was denied jury's consideration of one of its principal defences.
Appealed from Vic SC (CA): (2011) 203 IR 396; [2011] VSCA 23.
King v The Queen
M27/2011: [2011] HCATrans 249.
Date heard: 2 September 2011 — Special leave granted.
Catchwords:
Criminal law — Dangerous driving causing death — Direction to jury — Applicant found guilty of two counts of culpable driving causing death contrary to s 318 of Crimes Act 1958 (Vic) ("Act") — Primary judge left to jury alternative charge of dangerous driving causing death contrary to s 319(1) of Act — Primary judge directed jury that Crown case in respect of dangerous driving charge required same analysis as culpable driving charge — Whether primary judge erred in directing jury that, in relation to dangerous driving charge, driving need only have significantly increased risk of hurting or harming others, and that driving need not be deserving of criminal punishment — Whether a substantial miscarriage of justice — R v De Montero (2009) 25 VR 694.
Words and phrases — "substantial miscarriage of justice".
Appealed from Vic SC (CA): (2011) 57 MVR 373; [2011] VSCA 69.
Bui v Director of Public Prosecutions (Cth)
M28/2011: [2011] HCATrans 244.
Date heard: 2 September 2011 — Special leave granted on limited grounds.
Catchwords:
Criminal law — Sentencing — Application of State legislation in Crown appeal against sentence instituted by respondent — Applicant pleaded guilty to importation of marketable quantity of heroin contrary to s 307.2(1) of Criminal Code (Cth) — Applicant sentenced to three years imprisonment to be released forthwith upon provision of security and good behaviour undertaking — In mitigation, applicant relied on exceptional hardship to infant daughters and undertaking to cooperate with future investigations — Respondent appealed on basis that sentence manifestly inadequate and that sentencing judge erred in finding exceptional circumstances or in weight afforded to exceptional circumstances — At time of appeal, Criminal Procedure Act 2009 (Vic) ("Act") in operation — Sections 289 and 290 of Act provide that double jeopardy in relation to Crown appeals against sentence not to be taken into account — Whether ss 289(2) and 290(3) of Act picked up and applied pursuant to Judiciary Act 1903 (Cth) in Crown appeal against sentence instituted by respondent.
Words and phrases — "double jeopardy".
Appealed from Vic SC (CA): [2011] VSCA 61.
Aytugrul v The Queen
S149/2011: [2011] HCATrans 238.
Date heard: 2 September 2011 — Special leave granted on limited grounds.
Catchwords:
Criminal law — Identification evidence — DNA evidence — Admissibility — Discretion to admit or exclude evidence — Applicant convicted of murder of former partner — Evidence led by prosecution at trial that a hair found on deceased's thumbnail consistent with applicant's mitochondrial DNA profile — Prosecution expert gave evidence that 99.9 per cent of people in general population would not have a profile matching the hair ("the statistical evidence") — Expert's statistical evidence did not take ethnicity into account — Different prosecution witness gave evidence that approximately two per cent of persons of applicant's ethnicity would be expected to share DNA profile found in the hair — Whether trial judge ought to have refused to admit the statistical evidence — Evidence Act 1995 (NSW), ss 135 and 137.
Appealed from NSW SC (CCA): (2010) 205 A Crim R 157; [2010] NSWCCA 272.
Defamation
Harbour Radio Pty Limited v Keysar Trad
S141/2011: [2011] HCATrans 234.
Date heard: 2 September 2011 — Special leave granted on limited grounds.
Catchwords:
Defamation — Defence of substantial truth — Application of defence — Respondent engaged in public speech concerning activities of Radio 2GB, a station owned and operated by the applicant — Radio 2GB broadcast response to respondent's speech consisting of a presenter monologue, audio recording of part of respondent's speech and talkback calls — Respondent brought proceedings for defamation — Jury found certain defamatory imputations arose from broadcast — Applicant relied on, inter alia, defence of substantial truth — Trial judge found certain imputations were matters of substantial truth and applicant not actuated by malice — Court of Appeal overturned trial judge's findings with respect to defence of truth on the basis that while the correct test had been identified, it was not applied, and therefore could not be sustained — Whether trial judge failed to apply relevant test for defence of truth — Defamation Act 1974 (NSW), s 15.
Appealed from NSW SC (CA): (2011) 279 ALR 183; [2011] Aust Torts Reports 82-080; [2011] NSWCA 61.
Papaconstuntinos v Holmes a Court
S142/2011: [2011] HCATrans 235.
Date heard: 2 September 2011 — Special leave granted.
Catchwords:
Defamation — Defence of qualified privilege — Respondent involved in bid to invest funds in South Sydney District Rugby League Football Club ("Club") in exchange for controlling interest — Applicant, employee of Construction, Forestry, Mining and Energy Union ("CFMEU"), opposed respondent's bid — Prior to Extraordinary General Meeting at which bid was to be put to Club members, respondent sent letter of complaint to State Secretary of CFMEU, copied to former Chairman of Club, which also came to attention of applicant's immediate supervisor — Trial judge found letter conveyed three defamatory imputations and rejected, inter alia, respondent's plea of common law qualified privilege on the basis that there was no "pressing need" for the respondent to protect his interests by volunteering the defamatory information — Court of Appeal held defence of qualified privilege established since respondent had a legitimate interest in publishing the defamatory letter, and that the trial judge erred in applying the test of "pressing need" to establish qualified privilege — Whether defence of qualified privilege at common law requires evidence of "pressing need" to communicate defamatory matter — Whether absence of "pressing need" decisive — Whether requisite reciprocity of interest existed on occasion of communication of defamatory matter — Whether respondent's communication of suspicion of applicant's criminality fairly warranted to protect of further respondent's interests.
Words and phrases — "pressing need".
Appealed from NSW SC (CA): [2011] Aust Torts Reports 82-081; [2011] NSWCA 59.
Industrial Law
Australian Education Union v General Manager of Fair Work Australia Tim Lee & Ors
M8/2011: [2011] HCATrans 245.
Date heard: 2 September 2011 — Referred to an enlarged Court.
Catchwords:
Industrial law — Registered organisations — Interpretation of Fair Work (Registered Organisations) Act 2009 (Cth) ("Act") — Third respondent applied to Australian Industrial Relations Commission ("AIRC") for registration and organisation under Workplace Relations Act 1996 (Cth) — Applicant objected to registration — AIRC granted application for registration — Full Court of Federal Court ("FCAFC") quashed decision of AIRC and third respondent's registration because its rules did not contain "purging rule" — Third respondent applied to AIRC for leave to change its rules — Applicant objected to application and FCAFC reserved decision — On 1 July 2009, s 26A of the Act, which provides that registration of an organisation which would have been valid but for the absence of a purging rule is taken to be valid and always have been valid, came into effect — First respondent informed applicant and third respondent that Fair Work Australia regarded itself as obliged by s 26A of the Act to treat third respondent as registered organisation — Third respondent withdrew application to AIRC to alter rules — Whether s 26A of the Act validates registration of third respondent when such registration previously quashed by FCAFC prior to commencement of s 26A — Whether s 26A invalid as impermissible usurpation of, or interference with, judicial power of Commonwealth.
Appealed from FC FCA: (2010) 189 FCR 259; (2010) 201 IR 315; [2010] FCAFC 153.
Board of Bendigo Regional Institute of Technical and Further Education v Barclay & Anor
M18/2011: [2011] HCATrans 243.
Date heard: 2 September 2011 — Special leave granted.
Catchwords:
Industrial law — Adverse action — General protection — First respondent ("Barclay") an employee of applicant ("Institute") and Sub-Branch President at Institute of second respondent ("AEU") — Barclay sent email to AEU members employed at Institute noting reports of serious misconduct by unnamed persons at Institute — Barclay did not advise managers of details of alleged misconduct — Chief Executive Officer ("CEO") of Institute wrote to Barclay requiring him to show cause why he should not be disciplined for failing to report alleged misconduct — Barclay suspended on full pay — Respondents alleged action taken by CEO of Institute constituted adverse action under s 342 of Fair Work Act 2009 (Cth) ("Act") — Trial judge found adverse action taken by CEO on basis of breach of Institute's code of conduct rather than Barclay's union activity — Full Court of Federal Court held that sending of email was part of Barclay's functions as AEU officer and therefore adverse action had been taken within meaning of Act — Whether evidence that adverse action taken for innocent and non-proscribed reason sufficient to establish defence to cause of action under Pt 3.1 of Act ("general protections provisions") — Whether a decision-maker who is not conscious of a proscribed reason able to be found to have engaged in adverse action contrary to general protection provisions — Whether a distinction exists between the cause of conduct said to constitute adverse action and the reason a person took adverse action — Act, ss 341, 342, 346, 360, 361 — General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605; Purvis v State of New South Wales (2003) 217 CLR 92.
Appealed from FCA FC: (2011) 182 FCR 27; [2011] FCAFC 14.
See also Administrative Law: Public Service Association of South Australia Incorporated v Industrial Relations Commission of South Australia & Anor
Intellectual Property
Roadshow Films Pty Ltd & Ors v iiNet Limited
S115/2011: [2011] HCATrans 210.
Date heard: 12 August 2011 — Special leave granted on limited grounds.
Catchwords:
Intellectual property — Copyright — Infringement — Authorisation — Applicants owners and exclusive licensees of copyright in commercially-released motion pictures — Respondent an internet service provider whose agreements with customers contained terms requiring customers to comply with all laws and reasonable directions by respondent as well as obligation not to use service to infringe copyright — Respondent availed of legal and technical capacity to issue warnings to customers whose services being used to infringe copyright — Australian Federation Against Copyright Theft, on behalf of applicants, served copyright infringement notices on respondent, alleging users of respondent's network infringing copyright in cinematographic films by making them available online — Respondent took no action in response to notices — Whether respondent authorised infringements of applicants' copyright by users of respondent's internet services — Whether proper account taken of matters listed in s 101(1A) of Copyright Act 1968 (Cth) — Whether respondent had sufficient knowledge of infringing acts to support finding of authorisation — Whether applicants required to present respondent with "unequivocal and cogent evidence" of infringing acts and undertaking to reimburse and indemnify respondent — Application of principles in University of New South Wales v Moorhouse (1975) 133 CLR 1 — Whether respondent's conduct constituted "countenancing" of infringing acts.
Words and phrases — "authorise", "copyright", "countenance", "infringe", "unequivocal and cogent evidence".
Appealed from FCA FC: (2011) 194 FCR 285; (2011) 275 ALR 1; (2011) 89 IPR 1; [2011] AIPC 92-410; [2011] FCAFC 23.
Public International Law
PT Garuda Indonesia Ltd v Australian Competition and Consumer Commission
S166/2011: [2011] HCATrans 280.
Date heard: 7 October 2011 — Special leave granted.
Catchwords:
Public international law — Jurisdiction — Sovereign immunity — Section 11(1) of Foreign States Immunities Act 1985 (Cth) ("Act") provides that a foreign State is not immune in a proceeding that concerns a "commercial transaction" — Respondent commenced proceedings against applicant alleging anti-competitive conduct in relation to international air freight contrary to Pt IV of Trade Practices Act 1974 (Cth) — Applicant a "separate entity" of Republic of Indonesia, as defined in s 22 of Act — Respondent alleges applicant participated in conduct outside Australia amounting to arrangements or understandings with other carriers concerning fuel surcharges — Whether civil penalty proceeding brought by respondent against an entity otherwise entitled to sovereign immunity falls within "commercial transaction" exception in Act — Whether applicant immune under Act from exercise of jurisdiction.
Words and phrases — "commercial transaction", "concern".
Appealed from FCA (FC): (2011) 192 FCR 393; (2011) 277 ALR 67; [2011] FCAFC 52.
Taxation and Duties
The Commissioner of Taxation of the Commonwealth of Australia v Bargwanna & Anor
S104/2011: [2011] HCATrans 211.
Date heard: 12 August 2011 — Special leave granted.
Catchwords:
Taxation and duties — Income tax — Non-assessable income — Exempt entities — Funds established for public charitable purposes by instrument of trust — Section 50-105 of Income Tax Assessment Act 1997 (Cth) ("ITAA") requires Commissioner to endorse entity as exempt from income tax in certain circumstances — Section 50-60 of ITAA provides that funds established in Australia for public charitable purposes by will or instrument of trust are not exempt from income tax unless, inter alia, "the fund is applied for the purposes for which it was established" — Respondents constituted by deed the Kalos Metron Charitable Trust ("Fund") for public charitable purposes — Fund administered by accountant and held in accountant's trust account — Interest from Fund applied to pay accountant's fees — Respondents obtained housing loan with provision of mortgage security — Loan arrangements involved Fund depositing $210,000 into interest-offset account with lender — Respondents deposited other funds into account and withdrew funds in excess of deposits — Applicant refused Fund's application for endorsement under s 50-105 of ITAA — Whether application of part of Fund for purposes other than public charitable purposes meant criteria in s 50-60 of ITAA not satisfied — Whether misapplication of Fund moneys must be deliberate or intentional for conclusion that "is applied" criterion in s 50-60 not satisfied — Whether relevant inquiry is to application of Fund as a whole rather than individual transactions.
Words and phrases — "deliberate", "the fund is applied for the purposes for which it was established".
Appealed from FCA FC: (2010) 191 FCR 184; (2011) ATC 20-244; [2010] FCAFC 126.
Torts
Australian Native Landscapes Pty Ltd v Minogue & Anor
S277/2010: [2010] HCATrans 240.
Date heard: 2 September 2011 — Referred to an enlarged Court.
Catchwords:
Torts — Damages — Contribution between tortfeasors — Applicant and first respondent found liable in action for personal injuries pursuant to Motor Accidents Compensation Act 1999 (NSW) ("MAC Act") — First respondent deemed to be applicant's agent by s 112 of MAC Act — Second respondent, employer of plaintiff and first respondent, found not liable because case pleaded and conducted against it not within MAC Act — Damages reduced by 50 per cent pursuant to s 151Z(2) of Workers Compensation Act 1987 (NSW) ("WC Act") — Applicant sought contribution and indemnity from respondents pursuant to s 5(1)(c) of Law Reform (Miscellaneous Provisions) Act 1946 (NSW) ("LRMP Act") — Primary judge held
s 5(1)(c) of LRMP Act did not apply because second respondent not liable, and first respondent liable as applicant's agent rather than second respondent's agent — Court of Appeal held applicant prevented from seeking contribution because plaintiff in personal injury action unable to recover from second respondent under WC Act, and applicant's s 5(1)(c) claim raised issue not previously raised — Whether respondents' negligence able to be considered in applicant's proceeding for contribution under s 5(1)(c) of LRMP Act — Whether Court of Appeal erred in failing to allow applicant's claims against respondents — Effect of s 151E of WC Act — Application of James Hardie & Co v Seltsam (1998) 196 CLR 53.
Appealed from NSW SC (CA): [2010] NSWCA 279.
5: Cases Not Proceeding or Vacated
The following cases in the High Court of Australia are not proceeding or have been vacated since High Court Bulletin 07 [2011] HCAB 07.
Moloney t/a Moloney & Partners v Workers Compensation Tribunal
A5/2011: [2011] HCATrans 268.
Date heard: 28 September 2011 — Special leave revoked.
Coram: French CJ, Gummow, Hayne, Kiefel and Bell JJ.
Catchwords:
Statutes — Subordinate legislation — Validity — Where s 88E(1)(f) of Workers Rehabilitation Compensation Act 1986 (SA) ("Act") authorised President of Workers Compensation Tribunal to make Rules regulating "costs" — Where s 88G of Act regulated recovery of costs by worker's representative — Where r 31(2) of Workers Compensation Tribunal Rules 2009 restricted recovery of costs by worker's representative — Whether "costs" in s 88E(1)(f) of Act includes solicitor-client costs or only party-party costs — Whether power conferred by s 88E(1)(f) limited by s 88G of Act — Whether
s 88G invalidates r 31(2).
Appealed from SA SC (FC): (2010) 108 SASR 1; [2010] SASCFC 17.
6: Special Leave Refused
Adelaide: 28 September 2011
Criminal
| Applicant | Respondent | Court appealed from | Result |
| Allen | The Queen | Full Court of the Supreme Court of South Australia | Special leave refused |
Adelaide: 29 September 2011
(Also heard by video link to Darwin)
Civil
| Applicant | Respondent | Court appealed from | Result |
| GRD Group (NT) Pty Ltd | K & J Burns Electrical Pty Ltd & Anor | Supreme Court of the Northern Territory (Court of Appeal) | Special leave refused with costs |
| Palmer & Anor | MacDonnell Shire Council | Supreme Court of the Northern Territory (Court of Appeal) | Special leave refused with costs |
| Terry | Leventeris | Full Court of the Supreme Court of South Australia | Special leave refused with costs |
Canberra: 6 October 2011
(Publication of reasons)
| Applicant | Respondent | Court appealed from | Result |
| Badcock | Pirie Street Holdings Limited (formerly Adelaide Bank Limited) & Anor (A15/2011) | Federal Court of Australia [2010] FCA 628 | Application dismissed |
| Badcock | Pirie Street Holdings Limited (formerly Adelaide Bank Limited) & Anor (A16/2011) | Federal Court of Australia [2010] FCA 627 | Application dismissed |
| Le | Minister for Immigration and Citizenship & Anor (M166/2010) | Federal Court of Australia [2010] FCA 1260 | Application dismissed |
| Eastman | ACT Commissioner for Social Housing (C4/2011) | Supreme Court of the Australian Capital Territory (Court of Appeal) | Application dismissed |
| Vonidis | BMW Australia Finance Limited (M59/2011) | Federal Court of Australia [2011] FCA 589 | Application dismissed |
| Rees | County Court of Victoria & Anor (M64/2011) | Supreme Court of Victoria (Court of Appeal) | Application dismissed |
| Goodman | Westpac Banking Corporation (M68/2011) | Federal Court of Australia [2011] FCA 777 | Application dismissed |
| O'Donoghue | Minister for Immigration and Citizenship & Anor (P27/2011) | Federal Court of Australia [2011] FCA 668 | Application dismissed |
| SZORI | Minister for Immigration and Citizenship & Anor (S203/2011) | Federal Court of Australia [2011] FCA 528 | Application dismissed |
| SZOWC | Minister for Immigration and Citizenship & Anor (S204/2011) | Federal Court of Australia [2011] FCA 555 | Application dismissed |
| SZOPX | Minister for Immigration and Citizenship & Anor (S213/2011) | Federal Court of Australia [2011] FCA 552 | Application dismissed |
| Mr Warren | Child Support Registrar & Anor (S228/2011) | Family Court of Australia | Application dismissed |
| ECH Incorporated | Halliday & Ors (A13/2011) | Full Court of the Federal Court of Australia | Application dismissed with costs |
| WPD | JCW | Full Court of the Family Court of Australia | Application dismissed with costs |
| Milne | Minister for Immigration and Citizenship & Anor (M30/2011) | Full Court of the Federal Court of Australia | Application dismissed with costs |
| Minister for Immigration and Citizenship | Ahmed | High Court of Australia | Application dismissed with costs |
| Byrne | Macquarie Group Services Australia Pty Ltd | Supreme Court of New South Wales (Court of Appeal) | Application dismissed with costs |
| Lo Castro | The Queen (D2/2011) | Supreme Court of the Northern Territory (Court of Criminal Appeal) | Application dismissed |
Sydney: 7 October 2011
Civil
| Applicant | Respondent | Court appealed from | Result |
| Weller | Phipps | Supreme Court of New South Wales (Court of Appeal) | Special leave refused with costs |
| Lukacevic | Coates Hire Operations Pty Limited & Ors (S195/2011) | Supreme Court of New South Wales (Court of Appeal) | Special leave refused with costs |
| EMI Songs Australia Pty Limited & Anor | Larrikin Music Publishing Pty Ltd (S153/2011) | Full Court of the Federal Court of Australia | Special leave refused with costs |
| EMI Songs Australian Pty Limited & Ors | Larrikin Music Publishing Pty Ltd & Anor | Full Court of the Federal Court of Australia | Special leave refused with costs |
| Vanderhum | Doriemus (S196/2011) | Full Court of the Family Court of Australia | Special leave refused with costs |
| Dib Group Pty Limited | Coolabah Tree Aust-Wide Pty Limited | Full Court of the Federal Court of Australia | Special leave refused with costs |
Criminal
| Applicant | Respondent | Court appealed from | Result |
| Sam | The Queen (S131/2011) | Supreme Court of New South Wales (Court of Criminal Appeal) | Special leave refused |
| Sam | The Queen (S161/2011) | Supreme Court of New South Wales (Court of Criminal Appeal) | Special leave refused |
| BP | The Queen (S157/2011) | Supreme Court of New South Wales (Court of Criminal Appeal) | Special leave refused |
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