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High Court Bulletin

Produced by the High Court of Australia Library

[2011] HCAB 02 (18 March 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.

A: Summary of New Entries
1: Cases Handed Down
2: Cases Reserved
3: Original Jurisdiction
4: Special Leave Granted
5: Cases Not Proceeding or Vacated
6: Special Leave Refused

A: Summary of New Entries

1: Cases Handed Down

Case	Title
Hogan v Hinch	Constitutional Law
Marcolongo v Chen	Conveyancing

2: Cases Reserved

Case	Title
Australian Crime Commission v Stoddart & Anor	Administrative Law
Jemena Asset Management (3) Pty Ltd & Ors v Coinvest Limited	Constitutional Law
Commonwealth Director of Public Prosecutions v Poniatowska	Criminal Law
White v Director of Public Prosecutions for Western Australia	Criminal Law
Australian Securities and Investments Commission v Lanepoint Enterprises Pty Ltd	Corporations
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	Restitution

3: Original Jurisdiction

Case	Title
Phonographic Performance Company of Australia Limited v EMI Music Australia Pty Limited & Ors	Constitutional Law

4: Special Leave Granted

Case	Title
Sportsbet Pty Ltd v State of New South Wales & Ors	Constitutional Law
Betfair Pty Limited v Racing New South Wales & Ors	Constitutional Law
Muldrock v The Queen	Criminal Law
Cumerlong Holdings Pty Ltd v Dalcross Properties Pty Ltd & Ors	Environment and Planning
HIH Claims Support Limited v Insurance Australia Limited	Equity
Wynton Stone Australia Pty Ltd (in liq) v MWH Australia Pty Ltd (formerly Montgomery Watson Australia Pty Ltd)	Practice and Procedure

1: Cases Handed Down

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

Constitutional Law

Hogan v Hinch

M105/2010: [2011] HCA 4.

Judgment delivered: 10 March 2011.

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

Catchwords:

Constitutional law — Judicial power of Commonwealth — Constitution, Ch III — Institutional integrity of State courts vested with federal jurisdiction — Section 42(1) of Serious Sex Offenders Monitoring Act 2005 (Vic) ("Act") allowed court to make "suppression order" preventing publication of evidence given, contents of documents adduced or information that might enable identification of offender in proceedings under Act, if court satisfied it is "in the public interest" to make order — Section 42(3) made publishing material in contravention of suppression order an offence — Defendant charged with publishing material identifying offenders in proceedings subject to suppression orders — Whether power conferred by s 42(1) impermissibly diminishes institutional integrity of State courts — Whether and to what extent there exists implication derived from Ch III that State and federal courts must be open to public and carry out activities in public.
Constitutional law — Implied freedom of political communication — Whether s 42 of Act…

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 2
Decision Date

CaseChat Overview and Summary

Hogan v Hinch involved a challenge to the constitutionality of a provision of the Serious Sex Offenders Monitoring Act 2005 (Vic) that allowed a court to make a "suppression order" preventing the publication of evidence given, contents of documents adduced, or information that might enable identification of the offender in proceedings under the Act. The appellant was charged with publishing material identifying offenders in proceedings subject to suppression orders. The legal issues were whether the power conferred by the provision impermissibly diminished the institutional integrity of the State courts and whether it impermissibly burdened the implied freedom of political communication. The Court held that the power did not impermissibly diminish the institutional integrity of the State courts, but it did burden the implied freedom of political communication. However, the burden was reasonably appropriate and adapted to serve a legitimate end in a manner compatible with the maintenance of representative and responsible government. Marcolongo v Chen involved the interpretation of s 37A of the Conveyancing Act 1919 (NSW) which provides that a voluntary alienation to defraud creditors will be set aside. The legal issue was whether the intent to defraud creditors could be inferred where the transfer was voluntary and whether the transfer would "delay, hinder or defraud" creditors. The Court held that the intent to defraud creditors could be inferred from the voluntary nature of the transfer and that the transfer would "delay, hinder or defraud" creditors.

Orders