High Court Bulletin
[2010] HCAB 6
High Court Bulletin
Produced by the High Court of Australia Library
[2010] HCAB 6 (5 July 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 Dismissed
1: Cases Handed Down
The following cases were handed down by the High Court of Australia during the June 2010 sittings.
Dupas v The Queen
High Court of Australia: [2010] HCA 20.
Judgment delivered: 16 June 2010.
Coram: French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.
Appealed from Vic SC (CA): [2009] VSCA 202.
Hogan v Australian Crime Commission & Ors
High Court of Australia: [2010] HCA 21.
Judgment delivered: 16 June 2010.
Coram: French CJ, Gummow, Hayne, Heydon and Kiefel JJ.
Appealed from FCA FC: [2009] FCAFC 71.
Wicks v State Rail Authority of New South Wales; Sheehan v State Rail Authority of New South Wales
High Court of Australia: [2010] HCA 22.
Judgment delivered: 16 June 2010.
Coram: French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.
Appealed from NSW SC (CA): [2009] NSWCA 261.
Saeed v Minister for Immigration and Citizenship
High Court of Australia: [2010] HCA 23.
Judgment delivered: 23 June 2010.
Coram: French CJ, Gummow, Hayne, Heydon, Crennan and Kiefel JJ.
Appealed from FCA FC: [2009] FCAFC 41; (2009) 176 FCR 53; (2009) 108 ALD 4.
Osland v Secretary to the Department of Justice
High Court of Australia: [2010] HCA 24.
Judgment delivered: 23 June 2010.
Coram: French CJ, Gummow, Hayne, Heydon, Kiefel and Bell JJ.
Appealed from Vic SC (CA): [2009] VSCA 69; (2009) 254 ALR 590.
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 5 [2010] HCAB 5.
Banking and Finance
See Restitution: Heperu Pty Ltd & Ors v Perpetual Trustees Australia Ltd.
Bankruptcy
CGU Insurance Ltd v One.Tel Ltd (In Liquidation) & Ors
S78/2010: [2010] HCATrans 123.
Date heard: 20 May 2010 — Judgment reserved.
Coram: French CJ, Heydon, Crennan, Kiefel and Bell JJ.
Catchwords:
Bankruptcy — Deed of arrangement — Termination of deed of arrangement — Maintenance of proceedings after termination of deed of arrangement — Third Respondent executed deed of arrangement, pursuant to Pt X of the Bankruptcy Act 1966 (Cth), with Second Respondent trustee assigning debtor’s rights under a company directors’ liability insurance policy — Whether trustee proceedings when deed of arrangement was terminated — Bankruptcy Act 1966 (Cth), ss 224, 276 — Conveyancing Act 1919 (NSW), s 12.
Bankruptcy — Deed of arrangement — Assignments — Chose in action — Whether the assignment was absolute with respect to the meaning of s 12 of the Conveyancing Act 1919 (NSW)
Bankruptcy — Deed of arrangement — Assignments — Effect if the assignment is equitable.
Insurance — Professional Indemnity Insurance — Directors and Officers Liability Insurance Policy — Interpretation — “Loss” — Effect of deed of arrangement — Whether there was any “loss”, in terms of the policy, for which the Second Respondent trustee can sue.
Appealed from NSW SC (CA): [2009] NSWCA 282.
Constitutional Law
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.
Defamation
Aktas v Westpac Banking Corporation Ltd & Anor
S3/2010: [2010] HCATrans 43.
Date heard: 10 March 2010 — Judgment reserved.
Coram: French CJ, Gummow, Hayne, Heydon and Kiefel JJ.
Catchwords:
Defamation — Defamation defences — Privilege — Qualified privilege — Defamatory imputation in relation to a dishonoured cheque — Respondent dishonoured cheques in error and jury found Respondent’s endorsement “refer to drawer” on cheques conveyed defamatory imputations — Qualified privilege found on basis that Respondent had duty to communicate decision to refuse payment of cheque and payee had interest in receiving communication — Whether a bank who wrongfully refuses payment on a customer’s cheque because of its own mistake, and then communicates that refusal to payee, has protection of common law qualified privilege against a defamation claim — Cheques Act 1986 (Cth).
Appealed from NSW SC (CA): [2009] NSWCA 9.
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.
Insurance
See Bankruptcy: CGU Insurance Ltd v One.Tel Ltd (In Liquidation) & 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.
Taxation and Duties
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: [2010] 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 5 [2010] HCAB 5.
There are no cases in the High Court of Australia that are ready for hearing in the original jurisdiction since High Court Bulletin 5 [2010] HCAB 5.
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 5 [2010] HCAB 5.
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.
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
Dickson v The Queen
M11/2009: [2010] HCATrans 105.
Date heard: 23 April 2010 — Referred to an enlarged Court.
Catchwords:
Criminal law — Conspiracy to steal — Potential miscarriage of justice — Applicant convicted and sentenced of one count of conspiracy to steal, while co-conspirators had been acquitted in an earlier trial — Whether it was open to convict one accused before the court and acquit another who was jointly presented with him, even if they were the only two persons alleged to have participated in the crime — Rule in The Queen v Darby (1982) 148 CLR 668 — Whether Court of Appeal erred in failing to find that a substantial miscarriage of justice had occurred in circumstances where the Applicant was convicted and the 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 part of the proof of guilt in the Applicant’s trial — Ahern v The Queen (1998) 165 CLR 87.
Appealed from Vic SC (CA): [2008] VSCA 271.
****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
See Taxation and Duties: Commissioner of State Taxation v Cyril Henschke Pty Ltd & Ors.
Evidence
See Criminal Law: Dickson v The Queen.
Immigration
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.
Statutes
See Torts: Zotti v Australian Associated Motor Insurers Ltd & Anor.
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
Commissioner of State Taxation v Cyril Henschke Pty Ltd & Ors
A9/2009: [2010] HCATrans 23.
Date heard: 12 February 2010 — Special leave granted on limited grounds.
Catchwords:
Taxation and duties — Stamp duties — Deed of retirement — Conveyance — Partners executed a Retirement Deed (“Deed”) and Applicant later assessed stamp duty on Deed on the basis that it effected a transfer of retiree’s interest in the goodwill of the continuing partners — 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 there was a conveyance of the interest by the document on which stamp duty is to be levied — Whether Deed did not effect a conveyance within the meaning of s 60 of the Act.
Equity — Equitable interest — Interest of partner in partnership property — Chose in action — Beneficial interest of partner in relation to the partnership — Whether right was an equitable right and should be categorised as a chose in action — Whether Deed effected a transaction by which the equitable chose in action was converted into an entitlement to payment of a specific amount; and once that payment was satisfied that chose in action ceased to exist — Whether transaction was not a sale and therefore not subject to stamp duty.
Appealed from SA SC: [2009] SASC 148; (2009) 104 SASR 22.
Commissioner of Taxation v Anstis
M105/2009: [2010] HCATrans 110.
Date heard: 23 April 2010 — Special leave granted.
Catchwords:
Taxation and duties — Income tax — Youth Allowance payments — Allowable deductions for expenses — Characterisation of expenditure — Applicant 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.
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 — The 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
Zotti v Australian Associated Motor Insurers Ltd & Anor
S297/2009: [2009] HCATrans 62.
Date heard: 12 March 2010 — Special leave granted.
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.
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 — The 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 5 [2010] HCAB 5.
6: Special Leave Dismissed
The following cases were refused special leave to appeal to the High Court of Australia.
Brisbane: 24 June 2010
Civil
Simpson v Witheyman
B3/2010.
Special leave dismissed.
Appealed from Qld SC (CA): [2009] QCA 388.
Waller v Suncorp Metway Insurance Limited & Anor
B7/2010.
Special leave dismissed with costs.
Appealed from Qld SC (CA): [2010] QCA 17.
Criminal
Lacey v The Queen
B37/2010.
Special leave dismissed.
Appealed from Qld SC (CA): [2009] QCA 275.
Lacey v The Queen
B38/2010.
Special leave dismissed.
Appealed from Qld SC (CA): [2009] QCA 274.
WAC v The Queen
B4/2010.
Special leave dismissed.
Appealed from Qld SC (CA): [2008] QCA 151.
Canberra: 16 June 2010
(Publication of reasons)
Civil
Bahonko v State of Victoria & Anor
M55/2009: [2010] HCASL 141.
Special leave dismissed.
Appealed from Vic SC (CA): (no media neutral citation).
Bahonko v Casey City Council
M56/2009: [2010] HCASL 142.
Special leave dismissed.
Appealed from Vic SC (CA): (no media neutral citation).
Bahonko v Moorfields Community & Ors
M46/2009: [2010] HCASL 143.
Special leave dismissed.
Appealed from Vic SC (CA): (no media neutral citation).
Bahonko v Moorfields Community & Ors
M70/2009: [2010] HCASL 144.
Special leave dismissed.
Appealed from Vic SC (CA): (no media neutral citation).
Bahonko v Moorfields Community & Ors
M74/2009: [2010] HCASL 145.
Special leave dismissed.
Appealed from Vic SC (CA): (no media neutral citation).
Luck v Federal Court of Australia & Ors
M26/2010: [2010] HCASL 146.
Special leave dismissed.
Appealed from HCA: [2010] HCA Trans 86.
Luck v Secretary of the Department of Human Services & Ors
M27/2010: [2010] HCASL 147.
Special leave dismissed.
Appealed from HCA: [2010] HCA Trans 76.
Canberra: 17 June 2010
(Publication of reasons)
Civil
Mbuzi v Hall & Ors
B8/2010: [2010] HCASL 121.
Special leave dismissed.
Appealed from Qld SC (CA): [2009] QCA 405.
SZNPB & Anor v Minister for Immigration and Citizenship & Anor
S34/2010: [2010] HCASL 122.
Special leave dismissed.
Appealed from FCA: [2010] FCA 61.
SZNOA & Anor v Minister for Immigration and Citizenship & Anor
S35/2010: [2010] HCASL 123.
Special leave dismissed.
Appealed from FCA: [2010] FCA 60.
SZNGI v Minister for Immigration and Citizenship & Anor
S37/2010: [2010] HCASL 124.
Special leave dismissed.
Appealed from FCA: [2010] FCA 154.
SZGZH v Minister for Immigration and Citizenship & Anor
S39/2010: [2010] HCASL 125.
Special leave dismissed.
Appealed from FCA: [2010] FCA 80.
SZMTI v Minister for Immigration and Citizenship & Anor
S40/2010: [2010] HCASL 126.
Special leave dismissed.
Appealed from FCA: [2010] FCA 94.
SZNPS v Minister for Immigration and Citizenship & Anor
S42/2010: [2010] HCASL 127.
Special leave dismissed.
Appealed from FCA: [2010] FCA 101.
SZNSJ v Minister for Immigration and Citizenship & Anor
S43/2010: [2010] HCASL 128.
Special leave dismissed.
Appealed from FCA: [2010] FCA 100.
SZNHC v Minister for Immigration and Citizenship & Anor
S44/2010: [2010] HCASL 129.
Special leave dismissed.
Appealed from FCA: [2010] FCA 85.
SZKDS v Minister for Immigration and Citizenship & Anor
S45/2010: [2010] HCASL 130.
Special leave dismissed.
Appealed from FCA: [2010] FCA 79.
SZNPI v Minister for Immigration and Citizenship & Anor
S46/2010: [2010] HCASL 131.
Special leave dismissed.
Appealed from FCA: [2010] FCA 106.
SZNRX & Anor v Minister for Immigration and Citizenship & Anor
S49/2010: [2010] HCASL 132.
Special leave dismissed.
Appealed from FCA: [2010] FCA 82.
SZNOC & Anor v Minister for Immigration and Citizenship & Anor
S51/2010: [2010] HCASL 133.
Special leave dismissed.
Appealed from FCA: [2010] FCA 149.
SZHFG v Minister for Immigration and Citizenship & Anor
S52/2010: [2010] HCASL 134.
Special leave dismissed.
Appealed from FCA: [2010] FCA 118.
SZJYR & Ors v Minister for Immigration and Citizenship & Anor
S53/2010: [2010] HCASL 135.
Special leave dismissed.
Appealed from FCA: [2010] FCA 135.
SZNNE & Anor v Minister for Immigration and Citizenship & Anor
S60/2010: [2010] HCASL 136.
Special leave dismissed.
Appealed from FCA: [2010] FCA 194.
SZNUX v Minister for Immigration and Citizenship & Anor
S62/2010: [2010] HCASL 137.
Special leave dismissed.
Appealed from FCA: [2010] FCA 182.
Yao v Secretary, Department of Education, Employment and Workplace Relations
S74/2010: [2010] HCASL 138.
Special leave dismissed.
Appealed from FCA: [2010] FCA 241.
SZNBV v Minister for Immigration and Citizenship & Anor
S85/2010: [2010] HCASL 139.
Special leave dismissed.
Appealed from FCA: [2010] FCA 236.
SZMUV v Minister for Immigration and Citizenship & Anor
S88/2010: [2010] HCASL 140.
Special leave dismissed.
Appealed from FCA: [2010] FCA 205.
Canberra: 17 June 2010
(Publication of reasons)
Civil
Labaj v Hambleton & Ors
B15/2010: [2010] HCASL 148.
Special leave dismissed.
Appealed from Qld SC (CA): [2010] QCA 59.
MZDYA v Minister for Immigration and Citizenship & Anor
M116/2009: [2010] HCASL 149.
Special leave dismissed.
Appealed from FCA: [2009] FCA 1389.
AZAAM v Minister for Immigration and Citizenship & Anor
M122/2009: [2010] HCASL 150.
Special leave dismissed.
Appealed from FCA: [2009] FCA 1411.
HEB v SMS
M12/2010: [2010] HCASL 151.
Special leave dismissed.
Appealed from FamCA FC: (no media neutral citation).
O’Donoghue v Ireland & Anor
P2/2010: [2010] HCASL 152.
Special leave dismissed.
Appealed from FCA FC: [2009] FCAFC 184.
Zhao v Goodman & Anor
S31/2010: [2010] HCASL 153.
Special leave dismissed.
Appealed from NSW SC (CA): [2010] NSWCA 2.
SZNIM v Minister for Immigration and Citizenship & Anor
S41/2010: [2010] HCASL 154.
Special leave dismissed.
Appealed from FCA: [2010] FCA 74.
SZJOU & Anor v Minister for Immigration and Citizenship & Anor
S54/2010: [2010] HCASL 155.
Special leave dismissed.
Appealed from FCA: [2010] FCA 224.
SZNJU v Minister for Immigration and Citizenship & Anor
S55/2010: [2010] HCASL 156.
Special leave dismissed.
Appealed from FCA: [2010] FCA 120.
SZNHF v Minister for Immigration and Citizenship & Anor
S58/2010: [2010] HCASL 157.
Special leave dismissed.
Appealed from FCA: [2010] FCA 157.
SZNWN v Minister for Immigration and Citizenship & Anor
S59/2010: [2010] HCASL 158.
Special leave dismissed.
Appealed from FCA: [2010] FCA 131.
SZNXQ & Anor v Minister for Immigration and Citizenship & Anor
S61/2010: [2010] HCASL 159.
Special leave dismissed.
Appealed from FCA: [2010] FCA 276.
BRGAN of 2008 v Minister for Immigration and Citizenship & Anor
S63/2010: [2010] HCASL 160.
Special leave dismissed.
Appealed from FCA: [2010] FCA 172.
SZNPM & Anor v Minister for Immigration and Citizenship & Anor
S65/2010: [2010] HCASL 161.
Special leave dismissed.
Appealed from FCA: [2010] FCA 159.
SZMJH v Minister for Immigration and Citizenship & Anor
S66/2010: [2010] HCASL 162.
Special leave dismissed.
Appealed from FCA: [2010] FCA 165.
SZNLE v Minister for Immigration and Citizenship & Anor
S67/2010: [2010] HCASL 163.
Special leave dismissed.
Appealed from FCA: [2010] FCA 212.
SZNSF & Ors v Minister for Immigration and Citizenship & Anor
S71/2010: [2010] HCASL 164.
Special leave dismissed.
Appealed from FCA: [2010] FCA 266.
Gorman v Medical Board of NSW & Anor
S73/2010: [2010] HCASL 165.
Special leave dismissed.
Appealed from NSW SC (CA): [2010] NSWCA 26.
SZNOP v Minister for Immigration and Citizenship & Anor
S80/2010: [2010] HCASL 166.
Special leave dismissed.
Appealed from FCA: [2010] FCA 179.
SZNVM v Minister for Immigration and Citizenship & Anor
S97/2010: [2010] HCASL 167.
Special leave dismissed.
Appealed from FCA: [2010] FCA 261.
Canberra: 18 June 2010
(Publication of reasons)
Civil
Hu v Commonwealth Ombudsman
B2/2010: [2010] HCASL 168.
Special leave dismissed.
Appealed from FCA: [2009] FCA 1516.
SS v AH
B5/2010: [2010] HCASL 169.
Special leave dismissed.
Appealed from FamCA FC: (no media neutral citation).
SZNHY & Anor v Minister for Immigration and Citizenship & Anor
C1/2010: [2010] HCASL 170.
Special leave dismissed.
Appealed from FCA: [2010] FCA 51.
BMG Poseidon Corp Pty Ltd v Adelaide Bank Limited
S359/2009: [2010] HCASL 171.
Special leave dismissed.
Appealed from FCA FC: [2009] FCAFC 169.
Deva v University of Western Sydney
S7/2010: [2010] HCASL 172.
Special leave dismissed.
Appealed from NSW SC (CA): [2009] NSWCA 389.
Heyward v Minister for Immigration and Citizenship & Anor
S20/2010: [2010] HCASL 173.
Special leave dismissed.
Appealed from FCA FC: [2009] FCAFC 177.
RWF v BEB
S25/2010: [2010] HCASL 174.
Special leave dismissed.
Appealed from FamCA FC: (no media neutral citation).
SZNJQ v Minister for Immigration and Citizenship & Anor
S29/2010: [2010] HCASL 175.
Special leave dismissed.
Appealed from FCA: [2010] FCA 138.
SZNQR v Minister for Immigration and Citizenship & Anor
S33/2010: [2010] HCASL 176.
Special leave dismissed.
Appealed from FCA: [2010] FCA 152.
SZNQS & Anor v Minister for Immigration and Citizenship & Anor
S36/2010: [2010] HCASL 177.
Special leave dismissed.
Appealed from FCA: [2010] FCA 77.
SZNJE & Anor v Minister for Immigration and Citizenship & Anor
S38/2010: [2010] HCASL 178.
Special leave dismissed.
Appealed from FCA: [2010] FCA 76.
“A” Team Diamond Headquarters Pty Ltd & Anor v Main-Road Property Group Pty Ltd & Ors
M94/2009: [2010] HCASL 179.
Special leave dismissed with costs.
Appealed from Vic SC (CA): [2009] VSCA 208.
Shmee Pty Ltd v Anor v Bresam Investments Pty Ltd & Ors
M4/2010: [2010] HCASL 180.
Special leave dismissed with costs.
Appealed from Vic SC (CA): [2009] VSCA 315.
Clarke v BHP Billiton Direct Reduced Iron Pty Ltd
P37/2009: [2010] HCASL 181.
Special leave dismissed with costs.
Appealed from WA SC (CA): [2009] WASCA 134.
Mavaddat v Real Estate and Business Agents Supervisory Board
P43/2009: [2010] HCASL 182.
Special leave dismissed with costs.
Appealed from WA SC (CA): [2009] WASCA 179.
McMurtrie v The Quadriplegic Centre Board of Management
P44/2009: [2010] HCASL 183.
Special leave dismissed with costs.
Appealed from WA SC (CA): [2009] WASCA 173.
Defendi v Eden Hill Plasterers
P4/2010: [2010] HCASL 184.
Special leave dismissed with costs.
Appealed from WA SC (CA): [2009] WASCA 222.
Davies v Tomkins & Anor
P7/2010: [2010] HCASL 185.
Special leave dismissed with costs.
Appealed from WA SC (CA): [2009] WASCA 228.
Singh & Ors v Minister for Immigration and Citizenship & Anor
S251/2009: [2010] HCASL 186.
Special leave dismissed with costs.
Appealed from FCA: [2010] FCA 906.
Criminal
Wimbridge v The State of Western Australia
P51/2009: [2010] HCASL 187.
Special leave dismissed.
Appealed from WA SC (CCA): [2009] WASCA 196.
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