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High Court Bulletin

Produced by the High Court of Australia Library

[2011] HCAB 01 (24 February 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
British American Tobacco Australia Services Limited v Laurie & Ors	Courts and Judges
Minister for Immigration & Citizenship v SZGUR & Anor	Immigration

2: Cases Reserved

Case	Title
Shoalhaven City Council v Firedam Civil Engineering Pty Limited	Contracts
Momcilovic v The Queen & Ors	Criminal Law
Westport Insurance Corporation & Ors v Gordian Runoff Limited	Insurance

3: Original Jurisdiction

Case	Title
Haskins v The Commonwealth	Constitutional Law

4: Special Leave Granted

Case	Title
Lithgow City Council v Jackson	Evidence
Michael Wilson & Partners Limited v Nicholls & Ors	Practice and Procedure
Australian Education Union v Department of Education and Children's Services	Statutes
Moloney t/as Moloney & Partners v Workers Compensation Tribunal	Statutes
American Express Wholesale Currency Services Pty Ltd v Commissioner of Taxation; American Express International Inc v Commissioner of Taxation	Taxation and Duties

1: Cases Handed Down

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

Courts and Judges

British American Tobacco Australia Services Limited v Laurie & Ors

S138/2010: [2011] HCA 2.

Judgment delivered: 9 February 2011.

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

Catchwords:

Courts and judges — Bias — Reasonable apprehension of bias by reason of pre-judgment — Where judge previously made finding on same issue in unrelated interlocutory proceeding — Knowledge and characteristics to be attributed to fair-minded lay observer — Whether fair-minded lay observer taken to understand rules of evidence and procedure — Whether later statements of judge in recusal application relevant to fair-minded lay observer's assessment — Livesey v New South Wales Bar Association (1983) 151 CLR 288.
Words and phrases – "fair-minded lay observer", "reasonable apprehension of bias".

Appealed from NSW SC (CA): [2009] NSWCA 414.

Immigration

Minister for Immigration and Citizenship v SZGUR & Anor

S179/2010: [2011] HCA 1.

Judgment delivered: 2 February 2011.

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

Catchwords:

Immigration — Refugees — Review by Refugee Review Tribunal ("RRT") — Where visa applicant's migration agent asked RRT to arrange "independent assessment of [applicant's] mental health, if required" — Section 427(1)(d) Migration Act 1958 (Cth) gave RRT power to require Secretary to arrange for making of medical examination — Whether duty on RRT to consider exercising power under s 427(1)(d) — Whether general duty to inquire.

Words and phrases — "information".

Appealed from FCA: [2010] FCA 171; (2010) 114 ALD 112.

2: Cases Reserved

The following cases have…

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 1
Decision Date

CaseChat Overview and Summary

British American Tobacco Australia Services Limited (BATASL) sought to establish that Laurie and others, who were former employees, were biased in their employment claims against BATASL. BATASL alleged that the trial judge had made a finding in an interlocutory proceeding on the same issue, which may have led to a reasonable apprehension of bias. The issue before the High Court was whether the trial judge's prior finding on the same issue in an interlocutory proceeding could have led to a reasonable apprehension of bias by the fair-minded lay observer. The High Court held that the trial judge's prior finding did not give rise to a reasonable apprehension of bias. The High Court found that the fair-minded lay observer would not have been influenced by the trial judge's prior finding, as it was not a determination on the merits of the case. Additionally, the High Court held that the fair-minded lay observer would not have been influenced by the trial judge's later statements in the recusal application. The appeal was dismissed.

Minister for Immigration and Citizenship (the Minister) appealed against the decision of the Federal Court that the Refugee Review Tribunal (RRT) had a duty to consider exercising its power to require the Secretary to arrange for the making of a medical examination of the visa applicant's mental health. The RRT had received a request from the visa applicant's migration agent to arrange an independent assessment of the applicant's mental health. The issue before the High Court was whether the RRT had a duty to consider exercising its power to require the Secretary to arrange for the making of a medical examination of the visa applicant's mental health. The High Court held that the RRT did not have a duty to consider exercising its power to require the Secretary to arrange for the making of a medical examination of the visa applicant's mental health. The High Court found that the RRT was not required to consider exercising its power to require the Secretary to arrange for the making of a medical examination of the visa applicant's mental health. The High Court held that the RRT had a general duty to inquire, but that did not necessarily mean that the RRT was required to consider exercising its power to require the Secretary to arrange for the making of a medical examination of the visa applicant's mental health. The appeal was dismissed.

Orders