High Court Bulletin

[2010] HCAB 12

High Court Bulletin

Produced by the High Court of Australia Library

[2010] HCAB 12 (21 December 2010)

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

1: Cases Handed Down

The following cases were handed down by the High Court of Australia during the November-December 2010 sittings.

Aid/Watch Incorporated v Commissioner of Taxation

S82/2010: [2010] HCA 42.

Judgment delivered: 1 December 2010.

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

Catchwords:

Taxation — Charitable institution — Appellant had object of promoting greater efficiency and effectiveness of foreign aid — Whether appellant “charitable institution” for purposes of Commonwealth tax exemptions and concessions — Whether meaning of “charitable institution” in revenue laws governed by law of charitable trusts — Whether meaning of “charitable institution” interpreted as at time of enactment — Whether appellant's main, predominant or dominant objects charitable — Whether for relief of poverty — Whether for advancement of education — Whether otherwise for purpose within spirit and intendment of preamble to Statute of Elizabeth 1601 (43 Eliz I c 4).

Trusts — Charitable trusts — Political objects doctrine — Whether, and to what extent, doctrine recognised by common law of Australia.

Words and phrases — “charitable institution”, “political objects”, “political purposes”.

Appealed from FCA FC: [2009] FCAFC 128; (2009) 178 FCR 423; (2009) 266 ALR 526; (2009) 74 ATR 19.

Commissioner of State Taxation v Cyril Henschke Pty Ltd & Ors

A4/2010: [2010] HCA 43.

Judgment delivered: 1 December 2010.

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

Catchwords:

Stamp duties — Conveyance — Partnership — Dissolution of partnership — Retirement Deed effected retirement of one partner and reconstitution of partnership and continuation of business by remaining partners — Nature of partner’s interest in partnership assets — Whether Retirement Deed a conveyance of interest in personal property — Whether satisfaction of retiring partner’s interest and creation of new partnership assured or vested interest in personal property.

Words and phrases — “conveyance on sale”, “dissolution of partnership”, “equitable interest of partner”.

Appealed from SA SC: [2009] SASC 148; (2009) 104 SASR 22; (2009) 263 LSJS 224.

Port of Portland Pty Ltd v State of Victoria

M62/2010: [2010] HCA 44.

Judgment delivered: 8 December 2010.

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

Catchwords:

Constitutional law — States — Reception of English law — Status in Victoria of constitutional principle recognised in s 12 of Bill of Rights 1688.

Contract — Construction — Enforceability of contractual obligation — Treasurer of State of Victoria directed Port of Portland Authority to sell its assets and business to appellant under contract (“Contract”) — Section 4A(1) of Port of Portland Authority Act 1958 (Vic) gave Treasurer power to make direction — Treasurer party to Contract on behalf of State — State agreed, in cl 11.4(a) of Contract, to amend statutes to ensure port improvements excluded from land value used to calculate appellant’s land tax — State agreed, in cl 11.4(b), to refund or allow to appellant excess tax if amendments did not become law — Whether cl 11.4(b) void as dispensation by executive from land tax legislation contrary to s 12 of Bill of Rights — Whether cl 11.4(b) effected dispensation — Whether cl 11.4(b) authorised by legislature enacting s 4A(1).

Land tax — Valuation of land — Whether State’s obligation in cl 11.4(b) arose — Legislative amendments made in purported conformity with cl 11.4(a) — Whether amendments ensured port improvements excluded from land value — Statutory scheme provided for “general valuation” of all rateable land in municipal district every six years — At time of Contract, no valuation for part of appellant’s land by reason of former municipal rates exemption — Whether valuer had power to make supplementary valuation — Whether supplementary valuation could take into account amendments not in force at time of last general valuation — Whether court or tribunal could take into account amendments on objection against general valuation of balance of land.

Words and phrases — “dispensation”, “dispensing power”, “general valuation”, “supplementary valuation”.

Appealed from Vic SC (CA): [2009] VSCA 282.

Hili v The Queen; Jones v The Queen

S142/2010; S143/2010: [2010] HCA 45.

Judgment delivered: 8 December 2010.

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

Catchwords:

Criminal law — Sentence — Principles — Federal offences — Applicants pleaded guilty to federal offences — Prosecution successfully appealed on ground of manifest inadequacy against head sentences and recognizance release orders imposed by sentencing judge — Court of Criminal Appeal stated that “the ‘norm’ for a period of mandatory imprisonment under the Commonwealth legislation is between 60 and 66% [of head sentence]” — Whether any judicially determined “norm” for ratio between time to be served in custody by federal offender and length of head sentence imposed — How consistency in federal sentencing to be achieved — Whether sentences imposed by sentencing judge manifestly inadequate — Whether Court of Criminal Appeal’s reasons sufficient.

Words and phrases — “manifest inadequacy”.

Appealed from NSW SC (CCA): [2010] NSWCCA 108.

Rowe & Anor v Electoral Commissioner & Anor

M101/2010: [2010] HCA 46.

Judgment delivered: 15 December 2010.

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

Catchwords:

Constitutional law (Cth) — Legislative power — Franchise — Constitutional limitations upon power of Parliament to regulate exercise of entitlement to enrol to vote — Date for close of Electoral Rolls in Commonwealth Electoral Act 1918 (Cth) amended — Amendments precluded consideration until after election of claims for enrolment received after 8 pm on date of writs and of claims for transfer of enrolment received after 8 pm on third working day after date of writs — Whether denial of enrolment effected by amendments contravened constitutional requirement that representatives be “directly chosen by the people” — Whether amendments operated as disqualification from entitlement to vote and, if so, whether disqualification for substantial reason — Relevance of Roach v Electoral Commissioner (2007) 233 CLR 162.

Words and phrases — “directly chosen by the people”, “disqualification”, “substantial reason”.

This matter was brought in the original jurisdiction of the High Court.

Aktas v Westpac Banking Corporation Limited & Anor

High Court of Australia: [2010] HCA 47.

Judgment delivered: 15 December 2010.

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

Catchwords:

High Court — Practice and procedure — Judgments and orders — Costs — Power to vary orders not yet authenticated — Circumstances in which power should be exercised.

This matter was brought in the original jurisdiction of the High Court.

Minister for Immigration and Citizenship v SZJSS & Ors

S147/2010: [2010] HCA 48.

Judgment delivered: 15 December 2010.

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

Catchwords:

Immigration — Refugees — Review by Refugee Review Tribunal (“RRT”) — RRT gave “no weight” to certain letters tendered in evidence by first respondent — RRT described the giving of certain oral evidence by first respondent as “baseless tactic” — Whether RRT fell into jurisdictional error by failing to give “proper, genuine and realistic consideration” to letters or by describing certain oral evidence of first respondent as “baseless tactic” — Whether RRT’s reasons, including use of expression “baseless tactic”, gave rise to reasonable apprehension of bias by reason of pre-judgment.

Words and phrases — “jurisdictional error”, “proper, genuine and realistic consideration”, “reasonable apprehension of bias”.

Appealed from FCA: [2009] FCA 1577; (2009) 113 ALD 270.

TEC Desert Pty Ltd & Anor v Commissioner of State Revenue

P26/2010: [2010] HCA 49.

Judgment delivered: 15 December 2010.

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

Catchwords:

Stamp duties — Conveyance on sale — Interest in land — Sale Agreement provided for sale to appellants of chattels of WMC Resources Ltd (“WMC”) — Sale Agreement required WMC to grant appellants, for a fee, licences to use “Fixtures” — “Fixtures” defined in Sale Agreement as items “affixed to land, and an estate or interest in which is therefore an estate or interest in land” — Most WMC assets on land subject of WMC mining tenements — Whether Sale Agreement transferred interest in land — Whether interest in items affixed to land subject of mining tenements interest in land — Whether such items “Fixtures”.

Real property — Mining tenements — Mining plant — Whether interest of holder of mining tenement interest in land — Whether interest in mining plant, affixed to land, interest in land — Relevance of general law concerning fixtures.

Stamp duties — Conveyance on sale — Interest in land — Some WMC assets on WMC freehold land — On termination of licences, appellants required to acquire WMC’s right, title and interest in “Fixtures” — WMC warranted it had title to “Fixtures” notwithstanding their affixation to freehold — Whether obligation to acquire “Fixtures” on WMC freehold effected transfer of interest in land — Nature of title to “Fixtures” dealt with under licences — Whether appellants’ obligation to rehabilitate land, or negative covenant preventing WMC assigning freehold without assignee being bound by licences, created interests in land.

Words and phrases — “fixture”, “mining lease”, “mining plant”.

Appealed from WA SC (CA): [2009] WASCA 128.

2: Cases Reserved

The following cases have been reserved or part heard for judgment by the High Court of Australia.

**** Indicates cases reserved or part heard for judgment since High Court Bulletin 11 [2010] HCAB 11.

Administrative Law

See Practice and Procedure: British American Tobacco Australia Services Ltd v Laurie (as Administratrix of the Estate of Donald Henry Laurie and on her own behalf) & Ors.

Citizenship and Migration

Minister for Immigration and Citizenship v SZGUR & Anor

S179/2010: [2010] HCATrans 250.

Date heard: 24 September 2010 — Judgment reserved.

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

Catchwords:

Citizenship and Migration — Migration — Review of decisions — Refugee Review Tribunal (“RRT”) — Conduct of review — Whether failure by RRT to consider using power under s 427(1)(d) of the Migration Act 1958 (Cth) to obtain a medical report for purposes of review is a jurisdictional error — Whether absence of reference to consideration of using power in s 427(1)(d) in RRT’s statement of reasons provides sufficient or proper basis for inferring lack of consideration — Where respondent had provided material from psychiatrist and from friends to explain deficiencies in evidence — Where migration agent requested independent assessment of respondent’s mental health be arranged by RRT — Where adverse finding subsequently made about respondent’s credibility — Where RRT did not mention request for independent assessment in statement of reasons.

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

Constitutional Law

****Wainohu v State of New South Wales

S164/2010: [2010] HCATrans 319.

Date heard: 2 December 2010 — Judgment reserved.

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

Catchwords:

Constitutional law — Operation and effect of Commonwealth Constitution — Chapter III — Institutional integrity of State courts — Plaintiff member of Hells Angels Motorcycle Club (“Hells Angels”) — Crimes (Criminal Organisations Control) Act 2009 (NSW) (“the Act”) provided for any judge of Supreme Court of NSW to be declared, with consent, “eligible Judge” for purposes of the Act — Commissioner of Police applied to eligible judge for declaration under the Act in respect of Hells Angels — Where some evidence classified “criminal intelligence” under the Act and withheld from legal representatives of Hells Angels — Where ex parte hearing held under the Act to allow eligible judge to determine whether certain evidence “properly classified” by Commissioner of Police — Where eligible judge under no obligation to give reasons — Whether the Act or any provision thereof undermines institutional integrity of Supreme Court of NSW — Whether the Act or any provision thereof outside legislative powers of Parliament of NSW — Whether eligible judge acts persona designata in exercising functions under the Act — Crimes (Criminal Organisations Control) Act 2009 (NSW).

Constitutional law — Operation and effect of Commonwealth Constitution — Implied freedom of political communication —Section 26 of the Act created offence of associating with person the subject of control order made under the Act — Where associating defined to include any communication — Whether the Act burdens political communication and, if so, whether the Act reasonably appropriate and adapted to serve a purpose compatible with representative and responsible government.

This writ of summons was filed in the original jurisdiction of the High Court.

Detective Senior Constable Hogan v Hinch

M105/2010: [2010] HCATrans 284 and [2010] HCATrans 285.

Date heard: 2-3 November 2010 — Judgment reserved.

Catchwords:

Constitutional law — Operation and effect of Commonwealth Constitution — Restrictions on Commonwealth and State legislation — Rights and freedoms implied in Commonwealth Constitution — Freedom of political communication — Validity of legislation allowing courts to prohibit publication of names of serious sex offenders if in public interest to do so — Where applicant at public rally stated names of two offenders whose names were subject of suppression orders — Serious Sex Offenders Monitoring Act 2005 (Vic) s 42.

Constitutional law — Operation and effect of Commonwealth Constitution — Chapter III of Constitution— Whether implication from Ch III that proceedings be conducted in public and details of proceedings be open to public except where interests of justice otherwise require — Whether “public interest” sufficient reason for not adhering to principle of open justice — State courts invested with judicial power of the Commonwealth — Validity of legislation allowing courts to prohibit publication of name of serious sex offenders if in public interest to do so — Serious Sex Offenders Monitoring Act 2005 (Vic) s 42.

Removed from Melbourne Magistrates Court: X02916632.

Conveyancing

Marcolongo v Chen & Anor

S114/2010: [2010] HCATrans 253.

Date heard: 30 September 2010 — Judgment reserved.

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

Catchwords:

Conveyancing — Invalid conveyance as a result of fraud — Intent to defraud creditors — Dishonest intent — Conveyancing Act 1919 (NSW) (“the Act”) s 37A — Whether sufficient material upon which to conclude there was requisite intent to defraud appellant — Whether alienation of property with intent to defraud creditors, within meaning of s 37 of the Act, requires real or actual honest intent.

Appealed from NSW SC (CA): [2009] NSWCA 326; (2009) 260 ALR 353; (2009) 14 BPR 27,153.

Criminal Law

****Lacey v The Attorney-General of Queensland

B40/2010: [2010] HCATrans 317.

Date heard: 30 November 2010 — Judgment reserved.

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

Catchwords:

Criminal law — Appeal and new trial — Appeal against sentence — Appeals by Crown — Principles applied by appellate court to Crown appeals — Rule in House v The King (1936) 55 CLR 499 — Whether s 669A of the Criminal Code 1899 (Qld) requires error on the part of the sentencing court before appellate jurisdiction enlivened — Whether inclusion of the words “unfettered discretion” in s 669A removes the requirement for error on the part of the sentencing court before appellate court can substitute an alternative sentence.

Appealed from Qld SC (CA): [2009] QCA 274; (2009) 197 A Crim R 399.

SKA v The Queen

S100/2010: [2010] HCATrans 290.

Date heard: 9 November 2010 — Judgment reserved.

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

Catchwords:

Criminal law — Appeal and new trial — Verdict unreasonable or insupportable having regard to evidence — Test to be applied — Where appellate court had available to it videotape of interview of complainant played at trial — Where appellate court did not view videotaped evidence — Whether appellate court erred in application of test by not viewing videotaped evidence — M v The Queen (1994) 181 CLR 487.

Criminal law — Appeal and new trial — Verdict unreasonable or insupportable having regard to evidence — Opinion of trial judge — Where inconsistencies in complainant’s evidence — Where trial judge said “impossible to see how any jury acting reasonably could be satisfied beyond reasonable doubt” — Where appellate court made no reference to opinion of trial judge — Whether appellate court erred in not adverting to opinion of trial judge.

Appealed from NSW SC (CCA): [2009] NSWCCA 186.

Roach v The Queen

B41/2010: [2010] HCATrans 288.

Date heard: 5 November 2010 — Judgment reserved.

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

Catchwords:

Criminal law — Evidence — Propensity, tendency and co-incidence — Admissibility and relevancy — Propensity evidence — Evidence of uncharged acts — Appellant convicted of one count of assault occasioning bodily harm — “Relationship evidence” — Principles from Pfennig v The Queen (1995) 182 CLR 461 (“Pfennig”) — History of violence and of domestic relationship between appellant and complainant — Whether Evidence Act 1977 (Qld) (“the Act”) s 132B allows admission of evidence of relevant history without application of Pfennig test — Whether requirement of fairness in admission of evidence in s 130 of the Act mandates application of Pfennig test to admission of relationship evidence — Whether unfair to admit evidence unless, as stated in Phillips v The Queen (2006) 225 CLR 303 at 308, when “viewed in the context of the prosecution case, there is no reasonable view of the [relationship] evidence consistent with the innocence of the accused”.

Appealed from Qld SC (CA): [2009] QCA 360.

Stubley v State of Western Australia

P29/2010: [2010] HCATrans 269.

Date heard: 20 October 2010 – Orders made on 20 October 2010.  Written reasons of the Court to be published at a future date.

Catchwords:

Criminal law — Evidence — Admissibility and relevancy — Propensity evidence — Evidence of uncharged acts — Appellant former psychiatrist charged with offences relating to sexual activity with two former patients — Evidence of sexual activity with three further former patients adduced at trial — Whether trial judge erred in ruling evidence had significant probative value — Evidence Act 1906 (WA) s 31A.

Appealed from WA SC (CA): [2010] WASCA 36.

Braysich v The Queen

P32/2010: [2010] HCATrans 268.

Date heard: 19 October 2010 — Judgment reserved.

Catchwords:

Criminal law — Particular offences — Financial transaction offences — Creating false or misleading appearance of active trading in securities — Corporations Act 2001 (Cth) s 998(1) — Where “deeming” provision relied on by Crown — Where applicant deemed to have created false or misleading appearance of active trading by virtue of entering into or carrying out share transaction not involving change in beneficial ownership: s 998(5) — Where defence available if proved that purpose of transaction was not or did not include creating false or misleading appearance of active trading: s 998(6)— Where applicant did not expressly state in examination-in-chief that purpose was not to create false or misleading appearance of active trading — Where trial judge directed jury defence not available — Whether sufficient evidence to support defence — Whether direction to jury that defence unavailable correct.

Criminal law — Evidence — Where Crown adduced expert evidence to show that share trading transactions were likely to create a false or misleading appearance of active trading in order to rebut any defence applicant might raise — Where applicant sought to adduce expert evidence to refute Crown evidence — Where trial judge ruled defence not available — Whether applicant’s expert evidence admissible.

Appealed from WA SC (CCA): [2009] WASCA 178; (2009) 260 ALR 719; (2009) 238 FLR 1; (2009) 74 ACSR 387.

Equity

****Byrnes & Anor v Kendle

A23/2010: [2010] HCATrans 322.

Date heard: 8 December 2010 — Judgment reserved.

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

Catchwords:

Equity — Trusts and trustees — Powers, duties, rights and liabilities of trustees — Purchase or lease of trust property — Respondent husband held legal title to property but held half-share on trust for wife, the second appellant — Respondent leased property to his son but failed to collect rent — Where second appellant aware of failure to collect rent and did not object — Whether respondent had a duty as trustee of the property to collect rent — Whether second appellant was able to, and in fact did, consent to respondent’s actions.

Appealed from SA SC (FC): [2009] SASC 385.

Native Title

****Edwards & Ors v Santos Ltd & Ors

S153/2010: [2010] HCATrans 318.

Date heard: 1 December 2010 — Judgment reserved.

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

Catchwords:

Native title — Permissible future acts — Where parties negotiating an indigenous land use agreement — Where defendants asserted during course of negotiations that grant of petroleum lease under Petroleum Act 1923 (Qld) is a “future act” within meaning of Native Title Act 1993 (Cth) (“the Act”) and so not subject to right to negotiate provisions of the Act and should not be part of indigenous land use agreement negotiations — Where plaintiffs disagreed and sought declaratory and injunctive relief in Federal Court of Australia — Whether plaintiffs required to prove native title in order to obtain such relief — Whether plaintiffs’ claim was one to enforce procedural rights under Pt 2 Div 3 of the Act or whether claim was to have Federal Court of Australia resolve dispute between parties to indigenous land use agreement — Application of The Lardil Peoples v State of Queensland (2001) 108 FCR 453.

This application to show cause was filed in the original jurisdiction of the High Court.

Practice and Procedure

British American Tobacco Australia Services Ltd v Laurie (as Administratrix of the Estate of Donald Henry Laurie and on her own behalf) & Ors

S138/2010: [2010] HCATrans 223.

Date heard: 1 September 2010 — Judgment reserved.

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

Catchwords:

Practice and procedure — Courts and judges — Disqualification of judges for interest or bias — Apprehended bias — Judge’s refusal to recuse himself from proceedings — Where judge previously made findings adverse to party in interlocutory judgment in separate proceedings — Kind of characteristics and knowledge to be attributed to fair minded lay observer in terms of whether reasonable to apprehend that judge might not bring impartial and unprejudiced mind to later proceedings — Whether fair minded lay observer to take into account distinction between interlocutory hearing and final hearing, including differences in applicable rules of evidence — Whether fair minded lay observer to take into account subsequent statements by judge who expresses willingness to maintain open mind — Livesey v New South Wales Bar Association (1983) 151 CLR 288.

Administrative law — Procedural fairness — Bias — Whether nature of findings in previous interlocutory judgment gives impression that judge might not bring impartial and unprejudiced mind to later proceedings.

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

Real Property

Springfield Land Corporation (No 2) Pty Ltd & Anor v State of Queensland & Anor

B39/2010: [2010] HCATrans 291.

Date heard: 10 November 2010 — Judgment reserved.

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

Catchwords:

Real property — Compulsory acquisition of land — Compensation — Assessment — Adjoining land — Where parties agreed compensation would be determined using Acquisition of Land Act 1963 (Qld) (“Act”) — Where disagreement as to compensation referred to arbitrator — Whether s 20(3) of the Act requires causal connection between enhancement in value and carrying out of purpose for which land was acquired — Whether characterisation of purpose for which land was acquired should be broad or narrow — Whether characterisation of purpose for which land was acquired a question of fact — Whether enhancement of value of land adjoining land compulsorily acquired which arose prior to and independently of expansion of purpose for which land was acquired can be set off against assessed compensation under s 20(3) of the Act — Acquisition of Land Act 1963 (Qld).

Appealed from Qld SC (CA): [2009] QCA 381; (2009) 171 LGERA 38.

Taxation and Duties

****Commissioner of Taxation v BHP Billiton Limited; Commissioner of Taxation v BHP Billiton Petroleum (North West Shelf) Pty Ltd; Commissioner of Taxation v Broken Hill Proprietary Company Pty Ltd; Commissioner of Taxation v BHP Billiton Minerals Pty Ltd

M117/2010-M120/2010; M121/2010 and M123 2010; M122/2010; M124/2010 and M125/2010: [2010] HCATrans 320 and [2010] HCATrans 321.

Date heard: 7 and 8 December 2010 — Judgment reserved.

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

Catchwords:

Taxes and duties — Income tax and related legislation — Deductions — BHP Billiton Finance Limited (“BHP Finance”) and BHP Billiton Direct Reduced Iron Pty Ltd (“BHP Direct”) wholly owned subsidiaries of BHP Billiton Limited — BHP Direct partly financed capital expenditure on processing plant with funds borrowed from BHP Finance — BHP Finance classified large portion of loans to BHP Direct as irrecoverable after carrying value of BHP Direct’s assets written down — BHP Direct able to claim capital allowance tax deductions for expenditure incurred on processing plant — Capital allowance deductions reduced by appellant applying Income Tax Assessment Act 1997 (Cth) Div 243 — Div 243 applies where “limited recourse debt” used to finance expenditure, debt not paid in full at time of discharge and debtor can deduct amount as capital allowance for year in which discharge occurs, or has done so for earlier year: s 243-15 — “Limited recourse debt” is debt where creditor’s rights of recovery against debtor limited to property purchased using borrowed funds or where creditors rights are capable of being so limited: s 243-20 — Whether loans from BHP Finance to BHP Direct were “limited recourse debts” by virtue of being capable of being so limited — Income Tax Assessment Act 1997 (Cth) s 243-20(2).

Appealed from FCA FC: [2010] FCAFC 25; (2010) 182 FCR 526.

Torts

Miller v Miller

P25/2010: [2010] HCATrans 286.

Date heard: 4 November 2010 — Judgment reserved.

Catchwords:

Torts — Negligence — Defences to negligence — Duty of care — Duty of care in joint criminal exercise — Duty of care arising between driver and passenger — Motor vehicle accident — Unlawful use of motor vehicle — Appellant and two others stole car in which motor vehicle accident later occurred — Respondent not involved in theft of motor vehicle, but was driving vehicle at time of accident — Respondent pleaded guilty to dangerous driving causing death, dangerous driving causing grievous bodily harm and driving under influence of alcohol — Whether Court of Appeal erred in finding that respondent owed no duty of care to applicant as passenger where appellant was participant in theft of vehicle — Whether Court of Appeal erred in its application of Gala v Preston (1991) 172 CLR 243 which was distinguished by trial judge on its facts — Whether doctrine of joint illegal enterprise as defence to negligence requires restatement — Imbree v McNeilly (2008) 236 CLR 510 — Cook v Cook (1986) 162 CLR 376.

Appealed from WA SC (CA): [2009] WASCA 199; (2009) 54 MVR 367.

Kuhl v Zurich Financial Services & Anor

P31/2010: [2010] HCATrans 267.

Date heard: 19 October 2010 — Judgment reserved.

Catchwords:

Torts — Negligence — Essentials of action for negligence — Duty of care — Reasonable foreseeability of damage — Where appellant injured while operating high-pressure vacuum hose — Where company insured by first respondent provided vacuum hose — Where appellant not employee of company — Whether duty of cared owed by company to appellant — Whether risk of injury reasonably foreseeable — Whether any duty of care owed was breached — Where modifications made to hose system following injury to appellant — Whether subsequent changes to work system relevant to analysis of whether any duty of care breached — Where speculation as to precise mechanism whereby appellant injured – Whether evidence as to how, precisely, accident occurred necessary before causation can be found — Nelson v John Lysaght (Australia) Ltd (1975) 132 CLR 201.

Appealed from WA SC (CA): [2010] WASCA 50; (2010) 194 IR 74.

3: Original Jurisdiction

The following cases are ready for hearing in the original jurisdiction of the High Court of Australia.

**** Indicates cases made ready for hearing since High Court Bulletin 11 [2010] HCAB 11.

Constitutional Law

****Nicholas v Commonwealth & Anor

S183/2010

Catchwords:

Constitutional law — Operation and effect of Commonwealth Constitution — Plaintiff convicted by Australian Military Court of offences under Defence Force Discipline Act 1982 (Cth) (“the Act”) on 25 August 2008 and sentenced accordingly — High Court of Australia declared provisions of the Act establishing Australian Military Court invalid on 26 August 2009: Lane v Morrison (2009) 239 CLR 230 — On 22 September 2009 Military Justice (Interim Measures) Act (No 2) 2009 (Cth) (“Interim Measures Act”) came into operation — Part 2 of Sch 1 of Interim Measures Act applies to punishments purportedly imposed by Australian Military Court prior to High Court decision — Pursuant to item 5, Sch 1 of Interim Measures Act rights and liabilities of plaintiff declared to be, and always to have been, same as if punishments purportedly imposed by Australian Military Court had been properly imposed by general court martial and certain other conditions satisfied — Rights and liabilities declared to be subject to any review provided for by Sch 1, Pt 7 — No review sought by plaintiff — Whether item 5, Sch 1 of Interim Measures Act valid law of Commonwealth — Military Justice (Interim Measures) Act (No 2) 2009 (Cth) Sch 1, item 5.

This matter was filed in the original jurisdiction of the High Court.

KPMG (a firm) v Commonwealth & Anor

M66/2010

Catchwords:

Constitutional law — Operation and effect of Commonwealth Constitution — Powers with respect to property — Power to acquire property on just terms (Constitution s 51(xxxi)) — Acquisition of property — Where Australian Securities and Investment Commission (“ASIC”) has power to cause proceedings to be brought in the name of a company for recovery of damages or property in certain circumstances — Where ASIC caused proceedings to be brought against plaintiff in the name of various companies — Whether the commencement of proceedings in the name of a company by ASIC effects an acquisition of property on other than just terms — Australian Securities and Investment Commission Act 2001 (Cth) s 50.

This writ of summons 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.

**** Indicates cases granted special leave to appeal since High Court Bulletin 11 [2010] HCAB 11.

Administrative Law

Australian Crime Commission v Stoddart & Anor

P27/2010: [2010] HCATrans 292.

Date heard: Determined without oral argument — Special leave granted.

Catchwords:

Administrative law — First respondent summoned under Australian Crime Commission Act 2002 (Cth) (“the Act”) s 28 — 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 the Act — Australian Crime Commission Act 2002 (Cth).

Appealed from FCA FC: [2010] FCAFC 89; (2010) 185 FCR 409; (2010) 271 ALR 53.

Arbitration

See Insurance: Westport Insurance Corporation & Ors v Gordian Runoff Limited

Constitutional Law

****Roy Morgan Research Pty Ltd v Commissioner of Taxation

M89/2010: [2010] HCATrans 323.

Date heard: 10 December 2010 — Special leave granted.

Catchwords:

Constitutional law — Operation and effect of Commonwealth Constitution — Power with respect to taxation (Constitution, s 51(ii)) — Commonwealth legislative scheme imposing obligation upon employers to pay superannuation guarantee charge — Whether charge a tax — Whether charge imposed for public purposes — Luton v Lessels (2002) 210 CLR 333; Australian Tape Manufacturers Association Ltd v Commonwealth (1993) 176 CLR 480 — Superannuation Guarantee Charge Act 1992 (Cth) and Superannuation Guarantee (Administration) Act 1992 (Cth).

Appealed from FCA FC: [2010] FCAFC 52; (2010) 184 FCR 448; (2010) 268 ALR 232; (2010) 76 ATR 264.

Jemena Asset Management (3) Pty Ltd & Ors v Coinvest Limited

M6/2010: [2010] HCATrans 228.

Date heard: 3 September 2010 — Special leave granted on limited grounds.

Catchwords:

Constitutional law — Operation and effect of Commonwealth Constitution — Inconsistency of laws (Constitution, s 109) — Commonwealth legislative scheme imposing obligation upon employers to pay for long service leave — State law imposing obligation upon employers in construction industry to contribute to fund for portable long service leave entitlements — Whether inconsistency between State and federal legislative schemes — Construction Industry Long Service Leave Act 1997 (Vic).

Appealed from FCA FC: [2009] FCAFC 176; (2009) 180 FCR 576; (2009) 263 ALR 374; (2009) 191 IR 236.

See also Criminal Law: Momcilovic v The Queen.

Contracts

Shoalhaven City Council v Firedam Civil Engineering Pty Limited

S118/2010: [2010] HCATrans 234.

Date heard: 3 September 2010 — Special leave granted.

Catchwords:

Contracts — Building, engineering and related contracts — Settlement of disputes — Expert determination — Where express contractual obligation to give reasons in expert determination — Nature and extent of contractual obligation to give reasons — Whether expert determination contained inconsistency in reasons — Whether inconsistency in reasons means expert did not give reasons for determination as a whole — Whether inconsistency in reasons means contractual obligation not fulfilled and determination not binding on parties.

Appealed from NSW SC (CA): [2010] NSWCA 59.

Corporations

Australian Securities and Investments Commission v Lanepoint Enterprises Pty Ltd (Receivers and Managers Appointed)

P27/2010: [2010] HCATrans 276.

Date heard: 21 October 2010 — Special leave granted.

Catchwords:

Corporations — Winding up — Winding up in insolvency — Where respondent presumed to be insolvent once receiver was appointed: Corporations Act 2001 (Cth) s 459C — Where respondent required to rebut presumption in an application for winding up in insolvency — Respondent disputed extent of indebtedness — Whether company should be wound-up on basis of disputed debt — Whether court may determine merits of disputed debt in course of winding up proceeding.

Appealed from FCA FC: [2010] FCAFC 49; (2010) 78 ACSR 487.

Criminal Law

Commonwealth Director of Public Prosecutions v Poniatowska

A20/2010: [2010] HCATrans 304.

Date heard: 12 November 2010 — Referred to an enlarged Court.

Catchwords:

Criminal law — Offences — Obtain financial advantage from Commonwealth, knowing of lack of entitlement: s 135.2 Criminal Code 1995 (Cth) — 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] SASCFC 19.

White v The Director of Public Prosecutions (WA); Bowers & Anor v Director of Public Prosecutions (WA)

P17/2010 and P12/2010: [2010] HCATrans 277.

Date heard: 21 October 2010 — Special leave granted.

Catchwords:

Criminal law — Procedure — Confiscation of proceeds of crime and related matters — Restraining or freezing order — Where applicants did not own and have effective control of property where offences committed — Where freezing orders made over applicants’ property in place of property where offences took place: Criminal Property Confiscation Act 2000 (WA) (“the Act”) s 22 — Whether property where offences took place was “crime-used” property as defined by s 146 of the Act — Scope of court’s power to set aside a freezing order under s 82 of the Act — Criminal Property Confiscation Act 2000 (WA) s 22.

Words and phrases — “crime-used”, “criminal use”.

Appealed from WA SC (CA): [2010] WASCA 47 and [2010] WASCA 46.

Momcilovic v The Queen

M28/2010: [2010] HCATrans 227.

Date heard: 3 September 2010 — Special leave granted.

Catchwords:

Criminal law — Particular offences — Drug offences — Possession — — Where person deemed to be in possession of drugs “upon any land or premises” occupied by person, unless person satisfies court to the contrary: Drugs, Poisons and Controlled Substances Act 1981 (Vic) (“the Act”) s 5 — Whether s 5 of the Act creates legal onus on accused to disprove possession on balance of probabilities or evidential onus to show that he or she was not in possession.

Criminal law — Appeal — Grounds of appeal — Conduct of trial judge — Misdirection or non-direction — Where drugs found in applicant’s home — Where applicant and her partner gave evidence that drugs were her partner’s and that applicant had no knowledge of them — Whether trial judge should have directed jury that prosecution must prove applicant’s knowledge of drugs in order to prove possession.

Human rights — Presumption of innocence — Statutory reversal of burden of proof of possession of drugs — Where Charter of Human Rights and Responsibilities Act 2006 (Vic) (“Charter”) s 32 provides “[s]o far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights” — Whether “possible” to interpret s 5 of the Act compatibly with right to presumption of innocence — Charter ss 7(2), 25(1), 32(1).

Statutes — Acts of Parliament — Interpretation — Function of courts — Whether s 32 of Charter creates “special rule of interpretation” allowing court to depart from legislative intention of enacting Parliament to ensure compatibility with human rights — Ghaidan v Godin-Mendoza [2004] UKHL 30.

Constitutional law — Operation and effect of Commonwealth Constitution — Chapter III — Federal jurisdiction of State courts — Local limitations of State court — Whether s 32 of the Charter confers a legislative function on State courts — Whether institutional integrity of State courts impaired — Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51.

High Court and Federal Court — High Court of Australia — Appellate jurisdiction — Where relief sought includes order setting aside declaration of inconsistent interpretation under s 36 of Charter made by intermediate appellate court — Whether High Court has jurisdiction under s 73 of Constitution to grant relief sought.

Appealed from Vic SC (CA): [2010] VSCA 50; (2010) 265 ALR 751.

Damages

****Maurice Blackburn Cashman v Brown

M111/2010: [2010] HCATrans 331.

Date heard: 10 December 2010 — Special leave granted.

Catchwords:

Damages — Statutory constraint on action for damages — Respondent former employee of applicant — Respondent made claim pursuant to Accident Compensation Act 1985 (Vic) (“the Act”) for statutory compensation for non-economic loss arising from psychological injury suffered as result of actions of fellow employee — Victorian WorkCover Authority (“WorkCover”) accepted respondent had psychological injury arising out of employment with applicant — WorkCover referred medical questions to Medical Panel for opinion under s 67 of the Act — Medical Panel certified respondent had 30% permanent psychiatric impairment resulting from accepted injury — Respondent deemed by Act to have suffered “serious injury” and permitted to commence common law proceedings for damages as result — Proceedings commenced in County Court of Victoria — Applicant’s pleadings in defence contested causation and injury — Respondent pleaded in reply that applicant estopped from making assertion inconsistent with Medical Panel opinion — Whether defendant’s right to contest common law damages claims subject to the Act compromised by Medical Board opinion — Whether Medical Board opinion gives rise to issue estoppel for purposes of common law damages proceeding.

Appealed from Vic SC (CA): [2010] VSCA 206.

Defamation

****Boland v Dillon; Cush v Dillon

S177/2010; S178/2010: [2010] HCATrans 333.

Date heard: 10 December 2010 — Special leave granted.

Catchwords:

Defamation — Defences — Qualified privilege — Boland and respondent directors and Cush General Manager of Borders River-Gwydir Catchment Management Authority (“the CMA”) — Respondent told chairman of CMA that “It is common knowledge among people in the CMA that [the applicants] are having an affair” — Common ground at trial that applicants not having affair and that respondent did not believe applicants having affair when comment made — Respondent denied making comment — Jury found respondent made defamatory comment — Respondent advanced defence of qualified privilege founded on perceived need to inform chairman of “the rumour and the accusation” of affair — Whether common law defence of qualified privilege available to publisher of defamatory statement who denies making statement — Whether publication of imputations of affair between director and General Manager of body, rather than rumour of possible affair, can be published by another director to chairman on occasion of qualified privilege — Whether voluntary nature of defamatory imputations decisive against defence of qualified privilege.

Appealed from NSW SC (CA): [2010] NSWCA 165.

Energy and Resources

****Jemena Gas Networks (NSW) Ltd v Mine Subsidence Board
S165/2010: [2010] HCATrans 332.

Date heard: 10 December 2010 — Special leave granted.

Catchwords:

Energy and resources — Compensation for subsidence caused by mining — Applicant owned and operated gas pipeline — Coal mining in vicinity of pipeline caused subsidence — Subsidence insufficient to damage pipeline, but future mining expected to cause cumulative level of subsidence sufficient to damage pipeline — Applicant engaged in preventive and mitigation works to protect pipeline — Works concluded prior to commencement of mining expected to cause damaging subsidence — Claim for compensation for costs of works rejected by respondent — Whether compensation payable for costs incurred with respect to anticipated subsidence — Whether requirement of causation in Mine Subsidence Compensation Act 1961 (NSW) s 12A(1)(b) determined by reference to single mining event or by reference to ongoing extraction in accordance with mining plan — Mine Subsidence Board v Wambo Coal Pty Ltd (2007) 54 LGERA 60 — Mine Subsidence Compensation Act 1961 (NSW) s 12A(1)(b).

Appealed from NSW SC (CA): [2010] NSWCA 146, 175 LGERA 16, [2010] ALMD 7059.

Evidence

****Dasreef Pty Limited v Nawaf Hawchar
S170/2010: [2010] HCATrans 339.

Date heard: 10 December 2010 — Special leave granted.

Catchwords:

Evidence — Admissibility and relevance — Opinion evidence — Expert opinion —Expert with experience relevant to general topic of industrial dust gave opinion evidence to Dust Diseases Tribunal on concentration of silica in air — Whether expert disclosed facts, assumptions and reasoning in manner sufficient to make it plain to trial judge that expert opinion wholly or substantially based on expert’s expertise in area of contention — Whether such disclosure necessary in order for evidence to be admissible — Evidence Act 1995 (NSW) s 79.

Appealed from NSW SC (CA): [2010] NSWCA 154.

High Court and Federal Court

See Criminal Law: Momcilovic v The Queen.

Human Rights

See Criminal Law: Momcilovic v The Queen.

Immigration

****SZNKX v Minister for Immigration and Citizenship & Anor; SZNKW v Minister for Immigration and Citizenship & Anor
S2/2010; S32/2010: [2010] HCATrans 335.

Date heard: 10 December 2010 — Special leave granted.

Catchwords:

Immigration — Refugees — Review by Refugee Review Tribunal (“RRT”) — Applicants claimed to be homosexual couple — RRT received anonymous facsimile stating SZKNW’s claim to be homosexual “totally bogus” — Applicants advised of letter, but not given copy, at separate hearings before RRT — Letter included material particular to SZKNW, including passport number and departmental file number — Where applicants allege letter provided by disgruntled former migration agent — Whether RRT failed to comply with statutory requirement in s 424A of the Migration Act 1958 (Cth) (“the Act”) to provide clear particulars of letter by not providing copy of letter and failing to advise letter contained departmental file number — Whether s 424AA of the Act engaged — Migration Act 1958 (Cth) ss 424AA, 424A.

Appealed from FCA: [2009] FCA 1407; [2010] FCA 55.

Insurance

Westport Insurance Corporation & Ors v Gordian Runoff Limited

S110/2010: [2010] HCATrans 233.

Date heard: 3 September 2010 — Special leave granted on limited grounds.  Referred to an enlarged Court on limited grounds.

Catchwords:

Insurance — Reinsurance — Application of Insurance Act 1902 (NSW) (“the Act”) s 18B to reinsurance contracts.

Arbitration — The award — Appeal or judicial review — Grounds for remitting or setting aside — Error of law or error in relation to mixed question of fact and law — Where arbitrators found existence of underlying insurance contract to be cause of respondent’s loss within meaning of s 18B(1) of the Act — Whether error of law or mixed error of fact and law to conclude that s 18B(1) of the Act had no application to reinsurance contract — Commercial Arbitration Act 1984 (NSW) ss 38(5)(b)(i) and 38(5)(b)(ii).

Arbitration — The award — Appeal or judicial review — Grounds for remitting or setting aside — Whether arbitrators gave adequate reasons for making the award — Commercial Arbitration Act 1984 (NSW) s 29(1).

Appealed from NSW SC (CA): [2010] NSWCA 57; (2010) 267 ALR 74.

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 Warehouse Sales Pty Ltd
M13/2010, M14/2010 and M16/2010-M18/2010: [2010] HCATrans 231.

Date heard: 3 September 2010 — Special leave granted.

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”) — Applicant lent money to Rural — Rural subsequently wound up — Loan contracts between respondents and Rural assigned to applicant — Applicant’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 applicant 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] VSCA 1; (2010) 265 ALR 336.

Statutes

See Criminal Law: Momcilovic v The Queen.

Trade and Commerce

Insight Vacations Pty Ltd t/as Insight Vacations v Young S159/2010: [2010] HCATrans 305.

Date heard: 12 November 2010 — Special leave granted.

Catchwords:

Trade and commerce — Trade Practices Act 1974 (Cth) (“TPA”) and related legislation — Consumer protection — Conditions and warranties in consumer transactions — Warranties — Whether s 74(2A) of TPA applies to State law authorising contractual provision limiting or precluding liability for breach of implied warranty of due care and skill in s 74(1) of TPA — Whether s 74(2A) of TPA only applies to State laws which limit or preclude liability for breach of implied warranty in s 74(1) of TPA by their own terms — Whether s 74(2A) of TPA picks up and applies s 5N(1) of Civil Liability Act 2002 (NSW) (“CLA”) — Whether exclusion clause authorised by s 5N of CLA is contract term purporting to exclude, restrict or modify application of s 74(1) of TPA, within meaning of s 68 of TPA — Trade Practices Act 1974 (Cth), ss 68 and 74(2A) — Civil Liability Act 2002 (NSW) s 5N.

Appealed from NSW SC (CA): [2010] NSWCA 137.

5: Cases Not Proceeding or Vacated

There are no cases in the High Court of Australia that are not proceeding or have been vacated since High Court Bulletin 11 [2010] HCAB 11.

6: Special Leave Refused

The results of special leave applications are available through the High Court of Australia website.  Transcripts of special leave applications and reasons for special leave dispositions are available through though transcripts may not be published at the same time as the Bulletin.

Canberra: 8 December 2010

(Publication of reasons)

MZYCE & Anor v Minister for Immigration and Citizenship & Anor

Re: Clampett

SZOAX v Minister for Immigration and Citizenship & Anor

SZNMM & Anor v Minister for Immigration and Citizenship & Anor

SZLPO v Minister for Immigration and Citizenship & Anor

Bevan v State of Western Australia

Ives v Johnson

MZYGV v Minister for Immigration and Citizenship & Anor

Khademollah v Khademollah

MZYGR v Minister for Immigration and Citizenship & Anor

MZYGZ & Anor v Minister for Immigration and Citizenship & Anor

Culley v Australian Securities & Investment Commission

Shaw v Gadens Lawyers

Clampett v David Kerslake, Electoral Commissioner of Queensland

Clampett v Her Excellency Penelope Wensley, Governor of Queensland & Ors

Full list of results

Dispositions

Melbourne: 10 December 2010

Mokbel v The Queen

Construction, Forestry, Mining and Energy Union & Anor v Cahill

The Queen v Guthridge

Minister administering the Mining Act 1978 (WA) v McKern & Ors

Pravidur v Scental Pacific Pty Ltd

Commissioner of Taxation v Secretary of the Department of Transport (Victoria)

Iliopoulos v BM2008 Pty Ltd (in Liquidation)

Full list of results
Recent transcripts

Sydney: 10 December 2010

SZNZL v Minister for Immigration and Citizenship & Anor

SAS Trustee Corporation v Patterson

Thomas v Shaw & Anor

Registrar General of New South Wales v Van den Heuvel

Registrar General of New South Wales v Van den Heuvel & Anor

Pang v Bydand Holdings Pty Limited

Full list of results
Recent transcripts