High Court Bulletin

[2010] HCAB 7

High Court Bulletin

Produced by the High Court of Australia Library

[2010] HCAB 7 (12 August 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 July-August 2010 sittings.

Aktas v Westpac Banking Corporation Limited & Anor

High Court of Australia: [2010] HCA 25.

Judgment delivered: 4 August 2010.

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

Catchwords:

Defamation — Defences — Qualified privilege — Common law — Respondent bank mistakenly dishonoured cheques of appellant and communicated dishonour to payees of cheques — Communication defamatory — Whether communication made on occasion of qualified privilege — Rationale for defence of qualified privilege — Whether reciprocity of interest between respondent bank and payees — Whether public interest in privilege attaching to occasion of such communication — Relevance of mistake leading to communication — Relevance of statutory obligations.

Words and phrases — “community of interest”, “malice”, “occasion of qualified privilege”, “reciprocity of interest”, “refer to drawer”.

Appealed from NSW SC (CA): [2009] NSWCA 9.

CGU Insurance Ltd v One.Tel Ltd (In Liquidation) & Ors

High Court of Australia: [2010] HCA 26.

Judgment delivered: 4 August 2010.

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

Catchwords:

Bankruptcy — Deed of Arrangement — Directors and officers liability policy of insurance — Equitable assignment of rights under policy of insurance to trustee under Deed of Arrangement — Trustee commenced proceedings in pursuit of rights under policy of insurance — Deed of Arrangement terminated — Effect of termination — Whether trustee had power to continue proceedings — Whether "loss" suffered under policy of insurance — Whether certain clauses of Deed of Arrangement survived termination.

Trusts — Bare trust — Duties and powers of trustee.

Words and phrases — “loss”, “bare trust”.

Appealed from NSW SC (CA): [2009] NSWCA 282.

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 6 [2010] HCAB 6.

Banking and Finance

See Restitution: Heperu Pty Ltd & Ors v Perpetual Trustees Australia Ltd.

Constitutional Law

****Rowe & Anor v Electoral Commissioner & Anor

High Court of Australia: [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.

Cadia Holdings Pty Ltd & Anor v State of New South Wales & Anor

S367/2009: [2010] HCATrans 42.

Date heard: 9 March 2010 — Judgment reserved

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

Catchwords:

Constitutional law — Prerogative rights of the Crown — Royal mines and minerals — Mine land granted by Crown between 1852-1881 without express reservation of copper — Whether Crown prerogative right to minerals other than gold and silver was dependent upon the Crown being entitled to enter the land in question and remove gold or silver from it — Case of Mines (1568) 1 Plow 310; 75 ER 472 — Royal Mines Act of 1688 (1 Wm & M. c. 30) and 1693 (5 Wm & M. c. 6).

Mining law — Minerals — Ownership of minerals under prerogative — Ownership of mined copper — Whether copper is a privately owned mineral for the purposes of the Mining Act 1992 (NSW).

Statutes — Interpretation — Rules of construction — Imperial statutes — Effect on Crown prerogative — Royal Mines Act of 1688 (1 Wm & M. c. 30) (“1688 Act”) and 1693 (5 Wm & M. c. 6) (“1693 Act”) — Whether repealed 1688 Act can be used in interpretation of 1693 Act.

Words and phrases — “publicly owned mineral”, “royal mine”.

Appealed from NSW SC (CA): [2009] NSWCA 174; (2009) 257 ALR 528.

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 High Court and Federal Court: Spencer v Commonwealth of Australia.

Corporations

Public Trustee of Queensland v Fortress Credit Corporation (Aus) 11 Pty Ltd & Ors

B9/2010: [2010] HCATrans 158; [2010] HCATrans 159.

Date heard: 21-22 June 2010 — Judgment reserved.

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

Catchwords:

Corporations — Charges — Registration of charge — Notification of creation of charge — Notification of variation of charge — First and second respondent and latter’s wholly owned subsidiary entered into an agreement which included a guarantee liability in a charge, and no notice of any charge created or varied was lodged with ASIC — Whether agreement was a new charge, or a variation in the terms of a charge, which required lodgement of notice with ASIC in accordance with s 263 or s 268 of the Corporations Act 2001 (Cth) (“Act”) — Whether in the absence of such a notice a new charge would be void pursuant to s 266(1) of the Act and a varied charge void pursuant to s 266(3) of the Act.

Appealed from Qld SC (CA): [2009] QCA 282.

Courts and Judicial System

Kostas & Anor v HIA Insurance Services Pty Ltd t/as Home Owners Warranty & Anor

S84/2010: [2010] HCATrans 121.

Date heard: 19 May 2010 — Judgment reserved.

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

Catchwords:

Courts and judicial system — Consumer Trade and Tenancy (“Tribunal”) — Appeals — Section 67 of the Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) (“Act”) provides for appeals against decisions of Tribunal with respect to a matter of law — Whether the limitation upon appeals in s 67 of the Act from decisions of the Tribunal to decisions of a question “with respect to matter of law” is confined to the matter of law — Whether right of appeal provided by s 67 of the Act may extend to a question of mixed law and fact.

Appealed from NSW SC (CA): [2009] NSWCA 292.

Criminal Law

Pollock v The Queen

B14/2010: [2010] HCATrans 161.

Date heard: 23 June 2010 — Judgment reserved.

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

Catchwords:

Criminal law — Criminal defences — Provocation — Trial judge’s direction to the jury — Elements of provocation and directions to the jury — Court of Appeal in appellant’s first appeal formulated seven-fold test in relation to provocation, which was adopted by the trial judge and Court of Appeal in the present appeal — Whether seven-fold test unfairly fragments concept of provocation in way which is inconsistent with defence of provocation — Whether fifth limb of seven-fold test, that is, had the Crown established “that the loss of self-control was not sudden”, invited the jury to exclude defence of provocation on the basis of a requirement that does not form part of that defence — Whether seventh limb of seven-fold test, that is, had the Crown established “when the appellant killed, there had been time for his loss of self-control to abate”, invited the jury to exclude defence of provocation on the basis of a requirement that does not form part of the defence — Criminal Code 1899 (Qld) s 304.

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

High Court and Federal Court

Spencer v Commonwealth of Australia

S87/2009: [2010] HCATrans 156.

Date heard: 16 June 2010 — Decision on application for special leave reserved.

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

Catchwords:

High Court and Federal Court — Federal Court — Original jurisdiction — Procedure and evidence — Summary disposal and stay of proceedings — Section 31A of the Federal Court of Australia Act 1976 (Cth) provides that the Court may give judgment for one party against another if the Court is satisfied that one party has no reasonable prospects — effect of the High Court decision in ICM Agriculture Pty Ltd v The Commonwealth [2009] HCA 51 on reasonable prospects in context of a dispute under s 51(xxxi) of the Constitution.

Constitutional law (Cth) — Powers of Commonwealth Parliament — Acquisition of property on just terms — Constitution, s 51(xxxi) — the Native Vegetation Act 2003 (NSW), previously subject to the Native Vegetation Conservation Act 1997 (NSW) (“State statutes”), prohibits clearing of native vegetation other than in specified circumstances — Applicant claimed that operation of State statutes made property unsuitable for farming — Applicant made further claim that State statutes operated with the effect of the Natural Resources Management (Financial Assistance) Act 1992 (Cth) and the Natural Heritage Trust of Australia Act 1997 (Cth) (“Commonwealth statutes”) and that Commonwealth statutes are laws with respect to acquisition of property other than on just terms: Constitution, s 51(xxxi) — Whether it is within the legislative power of the Commonwealth to authorise an agreement that requires a State to use its power to acquire property on unjust terms — ICM Agriculture Pty Ltd v The Commonwealth [2009] HCA 51.

Appealed from FCA FC: [2009] FCAFC 38; (2009) 174 FCR 398; (2009) 254 ALR 234.

Equity

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

Mining Law

See Constitutional Law: Cadia Holdings Pty Ltd & Anor v State of New South Wales & Anor.

Restitution

Heperu Pty Ltd & Ors v Perpetual Trustees Australia Ltd

S26/2010: [2010] HCATrans 127; [2010] HCATrans 128.

Date heard: 26-27 May 2010 — Judgment reserved.

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

Catchwords:

Restitution — Defences — Defence of change of position — Recovery of money under mistake or induced by fraud — Appellants’ agents defrauded them, which involved the drawing and purchasing of cheques by appellants, their delivery to agent for investment on appellants’ behalf and use by agent for own benefit — Respondent was trustee of company managing common funds into which agent deposited cheques — Whether payments are to be taken as on the faith of the receipts when they would not have been made unless the receipts had been recognised as valid — Whether respondent changed its position — Application of David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353.

Banking and finance — Instruments — Cheques — Delivery by an agent when that agent is acting fraudulently — Whether an investment contract, which is distinct in its promises and consideration, is a source of apparent authority (in the absence of, or abuse of, actual authority) for delivery of cheques which provided funds for part of the investment.

Appealed from NSW SC (CA): [2009] NSWCA 84.

Statutes

See Constitutional Law: Cadia Holdings Pty Ltd & Anor v State of New South Wales & Anor.

See also Immigration: Saeed v Minister for Immigration and Citizenship.

Taxation and Duties

****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.

Travelex Ltd v Commissioner of Taxation

S79/2010: [2010] HCATrans 125.

Date heard: 21 May 2010 — Judgment reserved.

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

Catchwords:

Taxation and duties — GST — Transaction in foreign currency — Customs barrier in Australian airports — Supply made in relation to rights — Appellant claimed that transaction was exempt from paying GST on sale of foreign currency (the purchase of Fijian $400 in cash) to a passenger who had passed through customs — Whether the Fijian currency transaction was a supply made “in relation to rights” and whether those rights were outside Australia — Whether the transaction was a GST-free supply by reason of s 38-190(1) of the A New Tax System (Goods and Services Tax) Act 1999 (Cth) which provides for “Supplies of things, other than goods or real property, for consumption outside Australia”.

Appealed from FCA FC: [2009] FCAFC 133.

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.

Trade Practices

Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd

M69/2009: [2009] HCATrans 94.

Date heard: 16 April 2010 — Judgment reserved.

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

Catchwords:

Trade practices — Misleading or deceptive conduct — Representation by omission or ambiguity — Alleged misrepresentation was that the nature of insurance to be premium funded was cancellable property insurance whereas in fact it was cost of production insurance (not cancellable) — Whether misleading or deceptive conduct — Whether there was a failure to inform about the true nature of the policy — In what circumstances can representation which is, on its face, ambiguous, be misleading or deceptive — Trade Practices Act 1974 (Cth), ss 52 and 82.

Trade practices — Misleading or deceptive conduct — Causation — Whether respondent who funded an insurance policy that was not cancellable suffered loss or damage as a result of conduct of appellant — Whether there was any proper basis upon which Court of Appeal could have interfered with trial judge’s finding of fact in relation to causation.

Appealed from Vic SC (CA): [2009] VSCA 234; [2009] VSCA 117.

Workers’ Compensation

WorkCover Queensland v Amaca Pty Ltd & Anor

B10/2010: [2010] HCATrans 160.

Date heard: 22 June 2010 — Judgment reserved.

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

Catchwords:

Workers’ compensation — Quantum of indemnity — Reduction of indemnity as a result of death — Worker dies from mesothelioma after compensation is paid but before commencement of damages action against manufacturer of asbestos — Section 207B(7) Workers’ Compensation and Rehabilitation Act 2003 (Qld) provides that where a person has received compensation but has not recovered damages from another person “the insurer is entitled to be indemnified for the amount of the compensation by the other person to the extent of that person's liability for the damages, so far as the amount of damages payable for the injury by that person extends” — Whether assessment of quantum of indemnity is reduced by the operation of s 66 of the Succession Act 1981 (Qld) if worker dies after compensation is paid and before proceedings commenced to recover the indemnity.

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

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 6 [2010] HCAB 6.

Constitutional Law

****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.

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

Immigration

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

M61/2010 & M69/2010

Catchwords:

Immigration — 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.

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 6 [2010] HCAB 6.

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.

Constitutional Law

****Dickson v The Queen

M11/2009 and M102/2010: [2010] HCATrans 181.

Date heard: 27 July 2010 — Special leave granted in relation to constitutional point; special leave referred to an enlarged Full Court in relation to other points of application.

Catchwords:

Constitutional law — Operation and effect of Commonwealth Constitution — Inconsistency of laws (Constitution, s 109) — Where facts may disclose offence under Criminal Code Act 1995 (Cth) — Whether offence under State law inconsistent with offence under Commonwealth law pursuant to s 109 of the Constitution rendering State law inoperative — Whether indictment disclosed offence known to State law — Crimes Act 1958 (Vic) s 88(1) — Criminal Code Act 1995 (Cth) ss 11.5 and 131.1.

Criminal law — Conspiracy to steal — Potential miscarriage of justice — Applicant convicted of one count of conspiracy to steal, while co-conspirators acquitted in earlier trial — Whether open to convict one conspirator and acquit another who was jointly presented with him — Rule in The Queen v Darby (1982) 148 CLR 668 — Whether Court of Appeal erred in failing to find substantial miscarriage of justice in circumstances where applicant was convicted and alleged original conspirators were acquitted.

Evidence — Admissibility — Conspiracy to steal — Acts and declarations of alleged co-conspirators — Whether acts and declarations of acquitted co-conspirators were admissible as proof of guilt in applicant’s trial — Ahern v The Queen (1998) 165 CLR 87.

Appealed from Vic SC (CA): [2008] VSCA 271; (2008) 192 A Crim R 121.

****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.

Contract

Port of Portland Pty Ltd v State of Victoria

M120/2009: [2010] HCATrans 108.

Date heard: 23 April 2010 — Special leave granted.

Catchwords:

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

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

Conveyancing

Marcolongo v Chen & Anor

S304/2009: [2010] HCATrans 97.

Date heard: 23 April 2010 — Special leave granted.

Catchwords:

Conveyancing — Invalid conveyance as a result of fraud — Intent to defraud creditors — Dishonest intent — Section 37A of the Conveyancing Act 1919 (NSW) (“Act”) — Whether there was sufficient material upon which to conclude there was requisite intent to defraud applicant — Whether an alienation of property with intent to defraud creditors, within the 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

****Braysich v The Queen

P45/2009: [2010] HCATrans 189.

Date heard: 30 July 2010 — Special leave granted.

Catchwords:

Criminal law — Particular offences — Financial transaction offences — Create false or misleading appearance of active trading in ordinary shares of corporation — 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 if involved in transaction that does not involve 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 may raise — Where applicant sought to adduce expert evidence to rebut Crown evidence — Where trial judge directed jury 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.

****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.

****Stubley v State of Western Australia

P10/2010: [2010] HCATrans 190.

Date heard: 30 July 2010 — Special leave granted.

Catchwords:

Criminal law — Evidence — Propensity, tendency and co-incidence — Admissibility and relevancy — Propensity evidence — Evidence of uncharged acts — Where applicant former psychiatrist charged with offences relating to sexual activity with two former patients — Where 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.

****The Queen v Nguyen

M23/2010: [2010] HCATrans 185.

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 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 applicant 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 — M v The Queen (1994) 181 CLR 487.

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

****Hili v The Queen & Jones v The Queen

S142/2010 & S143/2010: [2010] HCATrans 194.

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

Catchwords:

Criminal law — Sentence — Sentencing orders — Non-parole 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 a norm or starting point expressed as percentage of head sentence for period of imprisonment — Whether such a norm applies to all federal offences.

Criminal law — Appeal and review — Appeal against sentence — Appeals by Crown — Whether there is a minimum for reasons for decision from appellate court when increasing 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.

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.

****See also Constitutional Law: Dickson v The Queen.

Evidence

****See Constitutional Law: Dickson v The Queen.

Immigration

****Minister for Immigration and Citizenship v SZGUR & Anor

S81/2010: [2010] HCATrans 202.

Date heard: 30 July 2010 — Special leave granted.

Catchwords:

Immigration — Refugees — Review of Refugee Review Tribunal (“RRT”) decisions — 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 applicant’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

S15/2010: [2010] HCATrans 133.

Date heard: 28 May 2010 — Special leave granted.

Immigration law — Refugees — Review of Refugee Review Tribunal (“RRT”) decisions — Weight to be given to particular evidence or information that court considers probative — Husband and wife applicants from Nepal applied for protection visas after arrival in Australia and only husband made claims of persecution — Prior to first of three adverse RRT hearings the husband produced three letters that were highly corroborative of his claims of persecution — The third RRT gave no weight to the letters — Whether there is a distinction between a “relevant consideration” or a “claim” that the RRT is jurisdictionally obliged to consider on the one hand and mere evidence in support of a claim that the Court considers probative on the other — Whether such formulae as “failure to give proper genuine and realistic consideration” or failure to engage in an “active intellectual process”, equate to jurisdictional error in a case where particular evidence or information are referred to by the RRT and expressly given no weight, but the Court considers that greater or different consideration of that evidence ought to have occurred.

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

Insurance

Selected Seeds Pty Ltd v QBEMM Pty Ltd & Ors

B43/2009: [2010] HCATrans 50.

Date heard: 12 March 2010 — Special leave granted.

Catchwords:

Insurance — Insurance policy — Construction of insurance policy — Exclusion clause — Efficacy clause — Indemnity against product liability — Applicant seed merchant contracted with a purchaser who supplied seed to a third party, and was supplied to other parties, causing damage to property — Applicant 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 applicant 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

S10/2010: [2010] HCATrans 132.

Date heard: 28 May 2010 — Special leave granted.

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 a judge previously made findings that were adverse to a party in an interlocutory judgment in separate proceedings — Kind of characteristics and knowledge to be attributed to a fair minded lay observer in terms of whether it would be reasonable to apprehend that a judge might not bring an impartial and unprejudiced mind to later proceedings — Whether the fair minded lay observer is to take into account the distinction between an interlocutory hearing and a final hearing and the differences between the rules of evidence applicable in an interlocutory application and those of a final hearing — Whether the fair minded lay observer is to take into account subsequent statements by a judge who expresses a willingness to maintain an 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 the impression that a judge might not bring an 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

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.

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

Superannuation

Finch v Telstra Super Pty Ltd

M5/2010: [2010] HCATrans 111.

Date heard: 23 April 2010 — Referred to an enlarged Court.

Catchwords:

Superannuation — Total and permanent invalidity (“TPI”) — Construction of superannuation fund trust deed (“Deed”) — Criteria for seeking to disturb a decision of a trustee in the context of a disability claim on a superannuation trust — Karger v Paul [1984] VR 161 — Deed provided that a member of trust is eligible for TPI benefit if they ceased to be an employee because of a TPI — Applicant underwent gender reassignment surgery to become a woman, but later realised surgery was a mistake which led to him suffering severe depression — Trustee made determination that applicant not eligible for TPI benefit as clause in Deed provided that “the member has been continuously absent from all active work for a period of at least six months . . .” — Whether “active work” referred to in the clause of the Deed was not limited to work at Telstra — Whether the Court of Appeal should have applied the doctrine of construction contra proferentem — Whether the Court of Appeal should have attempted to adopt practical and purposive approach to construing the provisions of the Deed.

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

Taxation and Duties

TEC Desert Pty Ltd & Anor v Commissioner of State Revenue

P8/2010: [2010] HCATrans 131.

Date heard: 28 May 2010 — Special leave granted.

Catchwords:

Taxes and duties — Stamp duty — Sale, transfer or conveyance of an interest in land — Sale agreement — Applicant entered into a sale agreement to allow vendor to divest itself of the responsibility to generate power for its mining operations in favour of the applicants — Respondent assessed the sale agreement as being subject to stamp duty under s 74(1) of the Stamps Act 1921 (WA) (“Act”) which provides that “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 the basis that there was no relevant transfer of land or any interest in land — Whether the Court of Appeal erred by construing the sale agreement as an agreement under s 74(1) of the Act for the sale of any estate or interest in land and as such dutiable as a conveyance on sale of the estate or interest agreed to be sold.

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

Words and phrases — “sale”.

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

Torts

****Kuhl v Zurich Financial Services & Anor

P14/2010: [2010] HCATrans 193.

Date heard: 30 July 2010 — Special leave granted.

Catchwords:

Torts — Negligence — Essentials of action for negligence — Duty of care — Reasonable foreseeability of damage — Where applicant injured while operating high-pressure vacuum hose — Where company insured by first respondent provided vacuum hose — Where applicant not employee of company — Whether duty of cared owed by company to applicant — Whether risk of injury reasonably foreseeable — Where modifications made to hose system following injury to applicant — Whether subsequent changes to work system suggest negligence — Nelson v John Lysaght (Australia) Ltd (1975) 132 CLR 201.

Appealed from WA SC (CA): [2010] WASCA 50.

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

The following cases in the High Court of Australia are not proceeding or have been vacated since High Court Bulletin 6 [2010] HCAB 6.

Torts

Zotti v Australian Associated Motor Insurers Ltd & Anor

S297/2009: [2009] HCATrans 62.

Date: Matter discontinued by parties.

Catchwords:

Torts — Negligence — Third party insurance — Second respondent collided with another car at an intersection and less than two hours later applicant slipped on oil as a result of collision — Whether there was a temporal connection between oil spillage and bicycle accident — Whether injury was a result of, and caused during, the accident — Allianz Australia Insurance Ltd v GSF Australia Pty Ltd (2005) 221 CLR 568.

Statutes — Interpretation — Motor Accidents Compensation Act 1999 (NSW) (as at December 2005) (“Act”) — Definition of injury in s 3 of the Act — Whether the definition of injury in s 3 of the Act requires an injury to be sustained during and at the same time of the events listed in sub-ss (i)-(iv) of the Act.

Words and phrases — “injury” — “caused during”.

Appealed from NSW SC (CA): [2009] NSWCA 323; (2009) 54 MVR 111.

6: Special Leave Refused

The following cases were refused special leave to appeal to the High Court of Australia.

Melbourne: 30 July 2010

Civil

Quall v Northern Territory of Australia
D13/2009.

Special leave refused.
Appealed from FCA FC: [2009] FCAFC 157.

Filipovski v Ogemi Services Pty Ltd & Anor

M97/2009.

Special leave refused with costs.
Appealed from Vic SC (CA): [2009] VSCA 230.

West Australian Newspapers Ltd & Anor v Hogan

P3/2010.

Special leave refused.
Appealed from Qld SC (CA): [2009] WASCA 221.

Criminal

Malho v State of Western Australia

P11/2010.

Special leave refused.
Appealed from WA SC (CA): [2010] WASCA 41.

Sydney: 30 July 2010

Civil

Dhanoa v Minister for Immigration and Citizenship & Anor
S319/2009

Special leave refused with costs.
Appealed from FCA FC: [2009] FCAFC 153.

Spry v Moylan & Ors

M7/2010.

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

SJB v SRB
S70/2010.

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

Dwyer v Craft Printing Pty Ltd
S9/2010

Special leave refused with costs.
Appealed from NSW SC (CA): [2009] NSWCA 405.

Telstra Corporation Ltd v Optus Networks Pty Ltd
S72/2010.

Special leave refused with costs.
Appealed from FCA FC: [2010] FCAFC 21.

Tony Saad Pty Ltd v Lift Capital Partners Pty Ltd (In Liquidation) & Ors
S131/2010.

Special leave refused with costs.
Appealed from FCA FC: [2010] FCAFC 36.

Bacnet Pty Ltd & Ors v Lift Capital Partners Pty Ltd (In Liquidation) & Ors
S132/2010 and S133/2010.

Special leave refused with costs.
Appealed from FCA FC: [2010] FCAFC 36