High Court Bulletin

[2010] HCAB 10

High Court Bulletin

Produced by the High Court of Australia Library

[2010] HCAB 10 (3 November 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 October 2010 sittings.

WorkCover Queensland v Amaca Pty Ltd

B10/2010: [2010] HCA 34.

Judgment delivered: 20 October 2010.

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

Catchwords:

Practice and procedure — Action — Death of worker — Survival of cause of action — Section 66(1) of Succession Act 1981 (Q) (“Succession Act”) provided causes of action vested in deceased person shall survive for benefit of person's estate — Section 66(2) limited damages recoverable “in any action brought” where cause of action survives under s 66(1) — Whether s 66(1) creates new cause of action — Discussion of history of survival of causes of action.

Workers’ compensation — Insurance — Statutory scheme — Insurer’s right of indemnity against third party for compensation paid — Insurer paid compensation to worker exposed to asbestos manufactured and supplied by respondents — Worker died and no proceedings instituted by worker or estate against any persons — Section 207B(7) of Workers’ Compensation and Rehabilitation Act 2003 (Q) (“Compensation Act”) gave insurer, in these circumstances, right of indemnity against third party up to amount of compensation paid to worker, but only “to the extent of that person’s liability for the damages” — Whether s 66(2) of Succession Act limits amount recoverable under right of indemnity in s 207B(7) of Compensation Act — Nature of cause of action created by s 207B(7) — Difference between liability and damages recoverable — Relevance of history of s 66(2) of Succession Act.

Words and phrases — “in any action brought”, “liability”, “to the extent of that person’s liability for the damages”.

Appealed from Qld SC (CA): [2009] QCA 72; [2009] 2 Qd R 181.

Pollock v The Queen

B14/2010: [2010] HCA 35.

Judgment delivered: 20 October 2010.

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

Catchwords:

Criminal law — Defences — Provocation — Elements of provocation — Meaning of “sudden” — Whether accused's loss of self-control must immediately follow provocation — Scope of objective test — Whether there exists a discrete requirement that accused must commit fatal act before there has been time for loss of self-control to abate.

Criminal procedure — Directions — Use of model directions — Duty to frame directions by reference to issues.

Words and phrases — “loss of self-control”, “sudden provocation”, “time for passion to cool”.

Appealed from Qld SC (CA): [2009] QCA 268.

Finch v Telstra Super Pty Ltd

M5/2010: [2010] HCA 36.

Judgment delivered: 20 October 2010.

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

Catchwords:

Superannuation — Construction of superannuation trust deed — Applicant applied for total and permanent invalidity (“TPI”) benefit under superannuation trust deed — Definition of TPI required continuous absence from “all active Work” for six months — Whether “all active Work” limited to work for employer responsible for superannuation fund (“Telstra”) — Whether period of absence assessed at date applicant left Telstra or date of trustee's determination.

Trusts — Superannuation — Review of decisions of trustees of superannuation trusts — Trustee required to determine whether applicant was “unlikely ever to engage in any gainful Work” — Whether Karger v Paul [1984] VR 161 applies to superannuation trusts — Whether trustee’s decision discretionary — Whether trustee gave genuine consideration to application — Whether trustee failed to comply with duties to make inquiries.

Practice and procedure — Whether Court should remit matter to trustee — Whether trustee incapable of forming opinion satisfactorily — Whether only one decision open.

Words and phrases — “all active work”, “genuine consideration”, “total and permanent invalidity”.

Appealed from Vic SC (CA): [2009] VSCA 318.

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 8 [2010] HCAB 8.

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.

Minister for Immigration and Citizenship v SZJSS & Ors

S147/2010: [2010] HCATrans 247.

Date heard: 21 September 2010 — Judgment reserved.

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

Catchwords:

Citizenship and Migration — Migration — Review of decisions — Refugee Review Tribunal (“RRT”) — Conduct of review — Weight to be given to particular evidence or information reviewing court considers probative — Married couple from Nepal applied for protection visas after arrival in Australia based on claims by husband of persecution — Husband produced three letters highly corroborative of claims of persecution prior to first of three adverse RRT hearings — Third RRT referred to letters but expressly stated no weight given to them — Whether distinction between “relevant consideration” RRT obliged to consider on one hand and evidence in support of claim reviewing court considers probative on other — Whether “failure to give proper, genuine and realistic consideration” or failure to engage in “active intellectual process” equate to jurisdictional error where particular evidence or information referred to, but reviewing court considers greater or different consideration of that evidence should have occurred.

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

Plaintiff M61/2010E v Commonwealth of Australia & Ors; Plaintiff M69/2010 v Commonwealth of Australia & Ors

M61/2010 & M69/2010: [2010] HCATrans 218 and [2010] HCATrans 219.

Date heard: 24 and 25 August 2010 — Judgment reserved.

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

Catchwords:

Citizenship and Migration — Migration — Plaintiffs “offshore entry persons” — Plaintiffs require determination from Minister to lodge valid visa applications: Migration Act 1958 (Cth) s 46A — Plaintiffs’ claims to refugee status assessed under non-statutory Refugee Status Assessment process (RSA) — Offshore entry persons found to be refugees by RSA are referred to Minister for determination under s 46A — Plaintiffs assessed as not satisfying definition of refugee in Art 1A(2) of Convention Relating to the Status of Refugees 1951 — Assessments affirmed on review by third defendants — Whether RSA process consistent with ss 46A and 195A of Migration Act 1958 (Cth) — Whether review of RSA valid — Whether relevant and/or irrelevant considerations taken into account by RSA — Whether plaintiffs denied procedural fairness.

Constitutional law — Operation and effect of the Commonwealth Constitution — Validity of laws of the Commonwealth — Whether s 46A is a ‘law’ within the meaning of s 51 or s 52 of the Constitution — Whether s 46A purports to confer part of judicial power of Commonwealth on Executive — Whether RSA supported by s 61 of the Constitution.

High Court and Federal Court — High Court of Australia — Original jurisdiction — Matters in which High Court has original jurisdiction — Constitutional writs and/or Commonwealth as a party— Where RSA review decisions made by employees of a private entity — To what extent decisions made under RSA (including review decisions) are reviewable by High Court in exercise of its original jurisdiction.

These applications for an order to show cause were filed in the original jurisdiction of the High Court.

Constitutional Law

Rowe & Anor v Electoral Commissioner & Anor

M101/2010: [2010] HCA 204, [2010] HCA 205, [2010] HCA 206 and [2010] HCA 207.

Date heard: 4-5 August 2010 – Orders made on 6 August 2010.  Written reasons of the Court to be published at a future date.

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

Catchwords:

Constitutional law — Operation and effect of Commonwealth Constitution — Restrictions on Commonwealth and State legislation — Electoral Act 1918 (Cth) ss 102(4) (new enrolments), 102(4AA) (transfer of enrolment) and 155 (closing of the rolls) — Whether invalid as contrary to ss 7 and 24 of the Constitution — Whether beyond legislative powers of the Commonwealth conferred by ss 51(xxxvi) and 30 of the Constitution or any other head of legislative power — Whether beyond what is reasonably appropriate and adapted, or proportionate, to the maintenance of the constitutionally prescribed system of representative government.

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

State of South Australia v Totani & Anor

A1/2010: [2010] HCATrans 95; [2010] HCATrans 96; [2010] HCATrans 157.

Date heard: 20-21 April and 17 June 2010 — Judgment reserved.

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

Catchwords:

Constitutional law — Chapter III — Kable doctrine — Control orders — South Australian Police Commissioner applied to Attorney-General for declaration under Part 2 of Serious and Organised Crime (Control) Act 2008 (SA) (“Act”) regarding Finks Motorcycle Club Inc — Section 10(1) of the Act provides that if the Attorney-General is satisfied that members of an organisation associate for the purposes of, inter alia, organising serious criminal activity, and present a risk to public safety, the Attorney-General “may make a declaration order under this section in respect of the organisation” — Section 14(1) of the Act provides “The Court must, on application by the Commissioner, make a control order against a person (the “defendant”) if the Court is satisfied that the defendant is a member of a declared organisation” — Whether s 10(1) of the Act is incompatible with, or repugnant to, the exercise by the Court of the judicial power of the Commonwealth invested in Chapter III of the Constitution — Whether the Kable doctrine is engaged by an exercise of judicial power involving proof of a fact where the fact is an executive determination arrived at by a process other than a judicial process — Whether Kable doctrine can serve as a restriction on the selection by the legislature of a fact, which, if established along with other facts in a judicial proceeding in a manner consistent with judicial process, triggers a particular legislative consequence — Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51.

Appealed from SA SC (CCA): [2009] SASC 301; (2009) 105 SASR 244; (2009) 259 ALR 673; (2009) 231 FLR 422.

See also Citizenship and Migration: Plaintiff M61/2010E v Commonwealth of Australia & Ors; Plaintiff M69/2010 v Commonwealth of Australia & Ors.

Contracts

Port of Portland Pty Ltd v State of Victoria

M62/2010: [2010] HCATrans 220 and [2010] HCATrans 221.

Date heard: 26 and 27 August 2010 — Judgment reserved.

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

Catchwords:

Contracts — Interpretation — Enforcement of promise — Contract for sale of assets by public authority — Agreement to sell assets and business of Port of Portland Authority — Agreement by respondent to amend land tax legislation — Agreement for allowance in appellant’s favour for certain payments of land tax if amendments not made — Whether Court of Appeal erred in holding land sale agreement unenforceable as dispensation or exemption from land tax laws contrary to Bill of Rights 1688 (1 Wm & M. 2 c 2) art 12, as applied by Imperial Acts Application Act 1980 (Vic) s 8 — Whether promise by Minister, on behalf of Crown, to allow adjustment in purchase price because of failure by Parliament to amend law imposing tax enforceable.

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

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

****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.

The Queen v Nguyen

M23/2010: [2010] HCATrans 252.

Date heard: 29 September 2010 — Judgment reserved.

Coram: Hayne, Heydon, Crennan, Kiefel and Bell JJ.

Catchwords:

Criminal law — Appeal and new trial — Whether verdict unsafe and unsatisfactory having regard to evidence — Test to be applied — Where no direct evidence of criminal complicity between respondent and other offenders — Whether sufficient evidence for inference to be drawn that such complicity existed — Where respondent and two other men entered apartment in search of person owing money to one of the men — Where respondent superficially injured people in apartment using samurai sword — Where no direct evidence respondent knew money owing was from a drug debt — Where no direct evidence respondent knew one of the other men was carrying a revolver — Where two people shot by man carrying revolver — Where respondent convicted of murder and attempted murder — M v The Queen (1994) 181 CLR 487.

Criminal law — Appeal and new trial — Particular grounds of appeal — Misdirection and non-direction — Whether trial judge failed to properly direct jury on complicity and manslaughter — Whether trial judge failed to properly direct jury as to possible bases on which respondent could be convicted of manslaughter where shooter convicted of murder.

Appealed from Vic SC (CA): [2010] VSCA 23.

Hili v The Queen & Jones v The Queen

S142/2010 & S143/2010: [2010] HCATrans 248.

Date heard: 22 September 2010 — Judgment reserved.

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

Catchwords:

Criminal law — Sentence — Sentencing orders — Pre-release period or minimum term — New South Wales — Federal offenders — Where offenders convicted of offences relating to tax evasion — Where sentence increased on appeal — Where appellate court stated that “‘norm’ for a period of mandatory imprisonment under the Commonwealth legislation is between 60 and 66% [of the head sentence]” — Whether there is norm or starting point expressed as percentage of head sentence for period of imprisonment — Whether such norm applies to all federal offences.

Criminal law — Appeal and review — Appeal against sentence — Appeals by Crown — Whether minimum reasons given by appellate court for decision to increase sentence of federal offender based on manifest inadequacy of sentence.

Criminal law — Sentence — Non-custodial orders — Recognisance release orders — Whether recognisance release order separate from overall order appropriate — Where three separate offences — Whether Crimes Act 1914 (Cth) requires one recognisance order for all offences or separate recognisance orders for each offence — Crimes Act 1914 (Cth) ss 19AB and 19AC.

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

Equity

See Taxation and Duties: Commissioner of State Taxation v Cyril Henschke Pty Ltd & Ors.

High Court and Federal Court

See Citizenship and Migration: Plaintiff M61/2010E v Commonwealth of Australia & Ors; Plaintiff M69/2010 v Commonwealth of Australia & Ors.

Insurance

Selected Seeds Pty Ltd v QBEMM Pty Ltd & Ors

B16/2010: [2010] HCATrans 249.

Date heard: 23 September 2010 — Judgment reserved.

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

Catchwords:

Insurance — Insurance policy — Construction of insurance policy — Exclusion clause — Efficacy clause — Indemnity against product liability — Appellant seed merchant contracted with a purchaser who supplied seed to a third party, and was supplied to other parties, causing damage to property — Appellant purchased liability insurance from respondent which included an efficacy clause excluding liability caused or arising from, inter alia, “a failure of any product to germinate or grow or meet the level of growth or germination warranted or represented by the insured” — Whether a literal interpretation of the efficacy clause, for which the appellant sought indemnity, deprived the policy of all practical operation as a product liability cover.

Appealed from Qld SC (CA): [2009] QCA 286.

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

****See Taxation and Duties: TEC Desert Pty Ltd & Anor v Commissioner of State Revenue.

Taxation and Duties

****TEC Desert Pty Ltd & Anor v Commissioner of State Revenue

P26/2010: [2010] HCATrans 266.

Date heard: 18 October 2010 — Judgment reserved.

Catchwords:

Taxes and duties — Stamp duty — Sale, transfer or conveyance of interest in land — Sale agreement — Appellant entered into sale agreement to allow vendor to divest itself of responsibility to generate power for mining operations in favour of appellants — Respondent assessed sale agreement as being subject to stamp duty under s 74(1) of Stamps Act 1921 (WA) (“Act”) which provides “Every contract or agreement, howsoever executed, for the sale of any estate or interest in any property shall be charged with the same ad valorem duty to be paid by the purchaser as if it were an actual conveyance on sale of the estate, interest or property contracted or agreed to be sold.” — Taxpayers objected on basis that there was no relevant transfer of land or any interest in land — Whether sale agreement an agreement under s 74(1) of Act.

Real property law — Law of fixtures — Interest held in fixtures by person who does not own land to which they are attached — Whether disposition of interest in fixtures is sale of an interest in land.

Words and phrases — “sale”.

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

Commissioner of State Taxation v Cyril Henschke Pty Ltd & Ors

A4/2010: [2010] HCATrans 203.

Date heard: 3 August 2010 — Judgment reserved.

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

Catchwords:

Taxation and duties — Stamp duties — Deed of retirement — Conveyance — Partnership — Partners executed a Retirement Deed (“Deed”) — Appellant assessed stamp duty on Deed on basis that it effected a transfer of retiree’s interest in the goodwill of partnership — Section 60(d) of the Stamp Duties Act 1923 (SA) provides, inter alia, that conveyance on sale includes “every other assurance or instrument, by which or by virtue of which any real or personal property, upon the sale thereof, is legally or equitably transferred to, or vested in, the purchaser or any other person on his behalf or by his direction” — Whether Deed effected a conveyance within the meaning of s 60 of the Act — Whether stamp duty to be levied on Deed.

Equity — Equitable interest — Interest of partner in partnership assets — Chose in action — Beneficial interest of partner in relation to partnership — Dissolution of partnership — Whether equitable right should be categorised as a chose in action — Relationship between beneficial interest and chose in action of partner — Whether retiree’s interest extinguished or conveyed.

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

Commissioner of Taxation v Anstis

M64/2010: [2010] HCATrans 183.

Date heard: 29 July 2010 — Judgment reserved.

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

Catchwords:

Taxation and duties — Income tax — Youth Allowance payments — Allowable deductions for expenses — Characterisation of expenditure — Appellant disallowed respondent’s deduction claim for self-education expenses on the basis that such expenses were only deductible where they enabled the taxpayer to improve or maintain professional skill or knowledge, or would likely lead to an increase in income from current activities — Whether outgoings incurred by taxpayer in undertaking course of study were deductible under s 8-1 of the Income Tax Assessment Act 1997 (Cth) (“Act”) as having sufficient connection with receipt of Youth Allowance payments — Whether payments under the Social Security Act 1991 (Cth) were unearned income — Whether outgoings can be productive of unearned income and whether those outgoings were deductible under s 8-1 of the Act.

Appealed from FCA FC: [2009] FCAFC 154; (2009) 180 FCR 288; (2009) 73 ATR 483.

Aid/Watch Incorporated v Commissioner of Taxation

S82/2010: [2010] HCATrans 154; [2010] HCATrans 155.

Date heard: 15-16 June 2010 — Judgment reserved.

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

Catchwords:

Taxation and duties — Charities — Characterisation of main purpose — Scope of political purpose where activities also include a charitable purpose — Appellant is a non-governmental organisation which had income tax exempt status and charitable status revoked — Whether the law as to “political disqualification” of an otherwise charitable institution should form part of the law of Australia: Bowman v Secular Society Ltd [1917] AC 406; extended in McGovern v Attorney-General [1982] Ch 321 — Whether seeking to influence government policy through the advancement of public debate constitutes political debate and therefore disentitles charitable status — Royal North Shore Hospital of Sydney v Attorney-General (NSW) (1938) 60 CLR 396.

Appealed from FCA FC: [2009] FCAFC 128.

Torts

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 8 [2010] HCAB 8.

Constitutional Law

****Wainohu v State of New South Wales

M66/2010

Catchwords:

Constitutional law — Operation and effect of Commonwealth Constitution — Chapter III — Kable doctrine — Plaintiff member of Hells Angels Motorcycle Club (“Hells Angels”) — Application made by Commission of NSW Police Force to Supreme Court of NSW for declaration under Crimes (Criminal Organisations Control) Act 2009 (NSW) (“the Act”) in respect of Hells Angels — Where application to be heard by “eligible judge” as defined in the Act — 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 — Whether the Act or any provision undermines institutional integrity of Supreme Court of NSW — Whether the Act or any provision outside legislative powers of Parliament of NSW — Crimes (Criminal Organisations Control) Act 2009 (NSW).

This writ of summons 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.

Native Title

Edwards & Ors v Santos Ltd & Ors

S153/2010

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 a dispute between parties to an 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.

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 8 [2010] HCAB 8.

Arbitration

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

Constitutional Law

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.

Hinch v Detective Senior Constable Hogan

M19/2010: [2010] HCATrans 184.

Date heard: 30 July 2010 — Removal of part of cause from the Melbourne Magistrates Court to the High Court of Australia.

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.

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

****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.

SKA v The Queen

S100/2010: [2010] HCATrans 198.

Date heard: 30 July 2010 — Referred to an enlarged Full Court.

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 only evidence of complainant at trial — Where appellate court did not view videotaped evidence — Where appellate court had regard to transcript evidence not before jury — Whether appellate court erred in application of test, by not viewing videotaped evidence and by having regard to additional 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 trial judge expressed a view that jury acting reasonably could not have convicted applicant — 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.

Lacey v The Attorney-General of Queensland

B39/2009: [2010] HCATrans 162.

Date heard: 24 June 2010 — Special leave granted.

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 1889 (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.

Roach v The Queen

B13/2010: [2010] HCATrans 166.

Date heard: 24 June 2010 — Special leave granted.

Catchwords:

Criminal law — Evidence — Propensity, tendency and co-incidence — Admissibility and relevancy — Propensity evidence — Evidence of uncharged acts — Applicant convicted of one count of assault occasioning actual bodily harm — “Relationship” evidence — Principles from Pfennig v The Queen (1995) 182 CLR 461 (“Pfennig”) — History of violence and of domestic relationship between offender and complainant — Whether s 132B of the Evidence Act 1977 (Qld) (“Act”) 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 the Pfennig test to the admission of relationship evidence — Whether it was unfair to admit the 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.

Equity

Byrnes & Anor v Kendle

A6/2010: [2010] HCATrans 226.

Date heard: 3 September 2010 — Special leave granted.

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 applicant — Respondent leased property to his son but failed to collect rent — Where second applicant 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 applicant was able to and in fact did consent to the respondent’s actions.

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

High Court and Federal Court

See Criminal Law: Momcilovic v The Queen.

Human Rights

See Criminal Law: Momcilovic v The Queen.

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.

Real Property

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

B1/2010: [2010] HCATrans 164.

Date heard: 24 June 2010 — Special leave granted.

Catchwords:

Real property — Compulsory acquisition of land — Compensation — Assessment — Adjoining land — Where parties agreed that 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 a causal connection between the enhancement in value and the carrying out of the purpose for which land was acquired — 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 — Where there was a change of public agency implementing 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 is a question of fact.

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

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.

Taxes 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

M30/2010-M33/2010; M34/2010 and M36 2010; M35/2010; M37/2010 and M38/2010: [2010] HCATrans 229.

Date heard: 3 September 2010 — Special leave granted.

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 applicant 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

P50/2009: [2010] HCATrans 130.

Date heard: 28 May 2010 — Special leave granted.

Catchwords:

Torts — Negligence — Defences to negligence — Duty of care — Duty of care in a joint criminal exercise — Duty of care arising between a driver and a passenger — Motor vehicle accident — Unlawful use of a motor vehicle — Applicant and her sister stole a car in which a motor vehicle accident occurred — Respondent pleaded guilty to dangerous driving causing death, dangerous driving causing grievous bodily harm and driving under the influence of alcohol — Whether the Court of Appeal erred in finding that the respondent owed no duty of care to the applicant as a passenger by virtue of the fact that the applicant was a participant in the theft of the vehicle — Whether the Court of Appeal erred in its application of Gala v Preston (1991) 172 CLR 243 which was properly distinguished by the trial judge on its facts — Whether the doctrine of joint illegal enterprise as a 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.

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 8 [2010] HCAB 8.

6: Special Leave Refused

Perth: 21 October 2010

Civil

Hammond v Heath & Anor
P9/2010: [2010] HCATrans 272.

Special leave refused with costs.
Appealed from WA SC (CA): [2010] WASCA 6.

Pearce v Gomez & Anor
P13/2010: [2010] HCATrans 274.

Special leave refused with costs.
Appealed from FamCA FC (no media neutral citation).

Sterndale v Laurie
P20/2010: [2010] HCATrans 280.

Special leave refused with costs.
Appealed from WA SC (CA): [2010] WASCA 79.

Noye v Robbins
P22/2010: [2010] HCATrans 273.

Special leave refused with costs.
Appealed from WA SC (CA): [2010] WASCA 83.

GMA Garnet Pty Ltd & Anor v Barton International Inc; Barton International Inc v GMA Garnet Pty Ltd & Anor
P23/2010 & P24/2010: [2010] HCATrans 275.

Special leave refused with costs.
Appealed from FCA FC: [2010] FCAFC 38.

Adam Jonathon Ireland (as Executor of the Estate of Dean Edward Ireland, Clark Ervin Easterday, Leonard Lancelot Ireland & Ors v Norilya Minerals Pty Ltd
P40/2010: [2010] HCATrans 271.

Special leave refused with costs.
Appealed from WA SC (CA) (no media neutral citation).

Criminal

Koushappis v The State of Western Australia
P15/2010: [2010] HCATrans 279.

Special leave refused.
Appealed from WA SC (CA): [2007] WASCA 26.

Heijne v The State of Western Australia
P21/2010: [2010] HCATrans 278.

Special leave refused.
Appealed from WA SC (CA): [2010] WASCA 86.