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High Court Bulletin

Produced by the Legal Research Officer,
High Court of Australia Library

[2011] HCAB 04 (19 May 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
Braysich v The Queen	Criminal Law
Roach v The Queen	Criminal Law
SKA v The Queen	Criminal Law
Springfield Land Corporation (No 2) Pty Ltd & Anor v State of Queensland & Anor	Real Property
Kuhl v Zurich Financial Services Australia Ltd & Anor	Torts
Insight Vacations Pty Ltd t/as Insight Vacations v Young	Trade and Commerce

2: Cases Reserved

Case	Title
Phonographic Performance Company of Australia Limited & Ors v The Commonwealth & Ors	Constitutional Law
Maurice Blackburn Cashman v Brown	Damages
Lithgow City Council v Jackson	Evidence

3: Original Jurisdiction

Case	Title
Williams v The Commonwealth & Ors	High Court of Australia
Wotton v State of Queensland & Anor	Constitutional Law

4: Special Leave Granted

Case	Title
Stoten v The Queen; Hargraves v The Queen	Constitutional Law
Handlen v The Queen; Paddison v The Queen	Constitutional Law
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	Corporations
BBH v The Queen	Criminal Law
Strong v Woolworths Limited t/as Big W & Anor	Torts

1: Cases Handed Down

The following cases were handed down by the High Court of Australia during the May 2011 sittings.

Contracts

See Trade and Commerce: Insight Vacations Pty Ltd t/as Insight Vacations v Young

Corporations

See Criminal Law: Braysich v The Queen

Criminal Law

Braysich v The Queen

P32/2010: [2011] HCA 14.

Judgment delivered: 11 May 2011.

Coram: French CJ, Heydon, Crennan, Kiefel and Bell JJ.

Catchwords:

Criminal law — Evidence — Burden of proof — Defences — Directions to jury — Appellant charged with creating a false or misleading appearance of active trading in securities — Appellant deemed to have created false or misleading appearance of active trading if proved to have caused a sale of securities where, to his knowledge, there was no change in beneficial ownership of securities — Section creating offence included a defence to prove that the purpose or purposes of the trades was not or did not include purpose of creating a false or misleading appearance of active trading ("proscribed purpose") — Where appellant did not give direct evidence of whether subjective purpose or purposes included proscribed purpose — Trial judge ruled…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] HCAB 4
Decision Date

CaseChat Overview and Summary

In Braysich v The Queen, the High Court considered the burden of proof in relation to the creation of a false or misleading appearance of active trading in securities. The appellant was charged with creating such an appearance and the defence required him to prove that the purpose or purposes of the trades was not or did not include the purpose of creating a false or misleading appearance of active trading. The court held that the trial judge did not err in ruling that the defence was not raised and withholding it from the jury. The court also held that the evidence presented by the defence was not sufficient to require the defence to be left to the jury.

In Roach v The Queen, the court considered the admissibility of propensity evidence in relation to domestic violence. The appellant was charged with assault occasioning bodily harm and the trial judge admitted evidence of other assaults by the appellant upon the complainant during their relationship. The court held that the evidence was admissible under s 132B of the Evidence Act 1977 (Q) and that the trial judge had the discretion to exclude the evidence if it was unfair to the accused.

In SKA v The Queen, the court considered the test for determining whether a jury verdict is unreasonable or cannot be supported by the evidence. The Court of Criminal Appeal had relied on the transcript of evidence rather than the video evidence and the court held that this was sufficient. The court also held that the trial judge's opinion that a jury acting reasonably could not have been satisfied beyond reasonable doubt of the accused's guilt should be considered.

In Kuhl v Zurich Financial Services Australia Ltd & Anor, the court considered the duty of care owed by a supplier of a high-pressure vacuum hose to an employee who was injured while using the hose. The court held that the supplier owed a duty of care and that the failure to install a break box and to issue instructions not to pass the hose while power was on amounted to a breach of that duty. The court also held that the changes made to the safety systems were not inordinately expensive or disadvantageous.

In Insight Vacations Pty Ltd t/as Insight Vacations v Young, the court considered the limitation or preclusion of liability for breach of an implied warranty in a contract for the supply of recreation services. The court held that the relevant State law applied to limit or preclude liability for breach of the implied warranty and that the exemption clause in the contract was not effective to limit liability.

In Springfield Land Corporation (No 2) Pty Ltd & Anor v State of Queensland & Anor, the court considered whether the purpose for which land was acquired would enhance the value of adjoining land. The court held that the purpose for which the land was acquired was to enhance the value of the adjoining land and that the appellants were entitled to compensation for the enhancement of value.

In Williams v The Commonwealth, the court considered whether the parent of children enrolled at a school had standing to challenge the validity of a funding agreement between the Commonwealth and a religious organisation for the provision of chaplaincy services at the school. The court held that the parent had standing to challenge the validity of the funding agreement and the drawing of money from the Consolidated Revenue Fund for the purpose of making payments pursuant to the funding agreement. The court also held that the funding agreement was invalid by reason of s 116 of the Commonwealth Constitution.

In Wotton v State of Queensland & Anor, the court considered whether restrictions on parole conditions, including restrictions on attending public meetings and speaking to the media, impermissibly burdened the implied freedom of political communication. The court held that the restrictions were not contrary to the Commonwealth Constitution.

In the reserved cases, the High Court will consider issues such as the existence of a common law privilege against spousal incrimination, the legislative competence of provisions in the Copyright Act 1968 (Cth), the validity of the Military Justice (Interim Measures) Act (No 2) 2009 (Cth), and the inconsistency between State and federal legislative schemes.

In the special leave cases, the High Court will consider issues such as the application of a proviso in the Criminal Code (Q) that allows a court to dismiss an appeal where it considers no substantial miscarriage of justice has occurred, the interpretation of planning instruments in relation to building control, and the validity of a charge imposed by a Ministerial determination as an excise.

In the special leave refused cases, the High Court refused special leave to appeal in cases involving issues such as the characterisation of payments as revenue from a financial supply, the admissibility of evidence of discreditable conduct, and the validity of a charge imposed by a Ministerial determination as an excise.

Orders