High Court Bulletin
[2010] HCAB 5
High Court Bulletin
Produced by the High Court of Australia Library
[2010] HCAB 5 (4 June 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 May 2010 sittings.
Ansari v The Queen; Ansari v The Queen
High Court of Australia: [2010] HCA 18.
Judgment delivered: 26 May 2010.
Coram: French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.
Appealed from NSW SC (CCA): [2007] NSWCCA 204.
E & J Gallo Winery v Lion Nathan Australia Pty Ltd
High Court of Australia: [2010] HCA 15.
Judgment delivered: 19 May 2010.
Coram: French CJ, Gummow, Heydon, Crennan and Bell JJ.
Appealed from FCA FC: [2009] FCAFC 27.
John Alexander’s Clubs Pty Ltd & Anor v White City Tennis Club Ltd; Walker Corporation Pty Ltd v White City Tennis Club Ltd & Ors
High Court of Australia: [2010] HCA 19.
Judgment delivered: 26 May 2010.
Coram: French CJ, Gummow, Hayne, Heydon and Kiefel JJ.
S309/2009 appealed from NSW SC (CA): [2009] NSWCA 114.
S308/2009 appealed from NSW SC (CA): [2009] NSWCA 194.
Minister for Immigration and Citizenship v SZMDS & Anor
High Court of Australia: [2010] HCA 16.
Judgment delivered: 26 May 2010.
Coram: Gummow ACJ, Heydon, Crennan, Kiefel and Bell JJ.
Appealed from FCA: [2009] FCA 210.
Republic of Croatia v Snedden
High Court of Australia: [2010] HCA 14.
Judgment delivered: 19 May 2010.
Coram: French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.
Appealed from FCA FC: [2009] FCAFC 111; (2009) 178 FCR 546.
The Queen v LK; The Queen v RK
High Court of Australia: [2010] HCA 17.
Judgment delivered: 26 May 2010.
Coram: French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.
Appealed from NSW SC (CCA): [2008] NSWCCA 338.
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 4 [2010] HCAB 4.
Administrative Law
Osland v Secretary to the Department of Justice
M11/2010: [2010] HCATrans 91; [2010] HCATrans 93.
Date heard: 14-15 April 2010 — Judgment reserved.
Coram: French CJ, Gummow, Hayne, Heydon, Kiefel and Bell JJ.
Catchwords:
Administrative law — Freedom of information — Exempt documents — Appellant, convicted of murdering husband, unsuccessfully submitted Petition for Mercy to Attorney-General — Announcement of Attorney-General’s decision did not refer to all legal advice received — Appellant sought access to legal advice referred to — Section 50(4) of the Freedom of Information Act 1982 (Vic) (“FOI Act”) provides that on hearing an application for review the Victorian Civil and Administrative Tribunal (“VCAT”) has power to grant access to exempt documents where the public interest requires that access should be granted — Whether legal advice not referred to was both relevantly and, as a matter of substance, materially different to the advice on which the decision was based — Whether, in applying s 50(4) of FOI Act, the Attorney-General fell under an obligation of public accountability by issuing a press release — Whether by issuing a press release the Attorney-General was seeking to give the fullest information as to the process that had been followed — Whether the Attorney-General was not giving the fullest information as to the process that had been followed but, rather, had created a misleading impression as to that process — Whether the Attorney-General had assumed political accountability in respect of the decision made on the Appellant’s Petition of Mercy in circumstances that attracted the operation of s 50(4) of FOI Act.
Administrative law — Judicial review — Error of law — Victorian Civil and Administrative Tribunal Act 1998 (Vic) (“VCAT Act”), s 148(1)(a) provides for an appeal on a question of law from an order of VCAT to the Court of Appeal — Section 148(7)(b) of VCAT Act enables Court of Appeal to make order VCAT could have made where error of law found — VCAT granted access pursuant to s 50(4) of FOI Act — Court of Appeal found error of law and allowed appeal — High Court vacated Court of Appeal's orders and remitted to Court of Appeal — Whether Court of Appeal, on remitter, performed task required of it — Whether Court of Appeal, on remitter, found error of law in VCAT decision — Whether error of law in VCAT decision — Whether s 50(4) of FOI Act was incapable of application — Whether further remitter required.
Appealed from Vic SC (CA): [2009] VSCA 69; (2009) 254 ALR 590.
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.
Date heard: 20-21 April 2010 — Matter part heard.
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.
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
Dupas v The Queen
M20/2010: [2010] HCATrans 92.
Date heard: 15 April 2010 — Orders made 15 April 2010 dismissing the appeal. Written reasons of the Court to be published at a future date.
Coram: French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.
Catchwords:
Criminal law — Criminal procedure — Stay of Appellant's trial — Granting of permanent stay — Right to fair trial — Appellant, charged with murder, applied to trial judge for permanent stay of trial on the ground that adverse pre-trial publicity about two previous murder convictions made fair trial impossible — Power to order permanent stay for extreme or singular case of prejudicial pre-trial media publicity concerning an accused: R v Glennon (1992) 173 CLR 592 — Concept of extreme or singular case — Whether this is an extreme or singular case — Whether court below erred in failing to find that the trial judge erred in not ordering that there be a permanent stay of the Appellant's trial and in failing to order that the appellant's trial be stayed until further order.
Appealed from Vic SC (CA): [2009] VSCA 202.
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.
Immigration
Saeed v Minister for Immigration and Citizenship
S305/2009: [2010] HCATrans 44.
Date heard: 11 March 2010 — Judgment reserved.
Coram: French CJ, Gummow, Hayne, Heydon, Crennan and Kiefel JJ.
Catchwords:
Immigration — Procedural fairness — Appellant applied for Skilled Independent visa for which procedural fairness obligations otherwise imposed by s 57 of the Migration Act 1958 (“Act”) did not apply — Application refused on basis of adverse information provided by third party — Whether, and to what extent, s 51A of the Act applies to exclude the rules of procedural fairness — To what extent adverse personal information can be used without providing opportunity to comment under laws of natural justice.
Statutes — Interpretation — Whether common law natural justice applies when s 51A of the Act is read with s 57 of the Act, which provides “Certain information must be given to applicant”.
Appealed from FCA FC: [2009] FCAFC 41; (2009) 176 FCR 53; (2009) 108 ALD 4.
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.
Practice and Procedure
Hogan v Australian Crime Commission & Ors
S289/2009: [2010] HCATrans 4.
Date heard: 4 February 2010 — Judgment reserved.
Coram: French CJ, Gummow, Hayne, Heydon and Kiefel JJ.
Catchwords:
Practice and procedure — Confidentiality orders — Confidentiality of documents — Principles of open justice — Scope of confidentiality orders under s 50 of the Federal Court of Australia Act 1976 (Cth) which provides that the Court may make such an order forbidding or restricting publication of particular evidence as appears to the Court necessary in order to prevent the administration of justice — Australian Crime Commission (“the Commission”) issued a notice (“the Notice”) pursuant to s 29 of the Australian Crime Commission Act 2002 (Cth) (“Commission Act”) to the Appellant’s accountants requiring them to produce documents pertaining to individuals and entities including the Appellant — Notice contained a notation that prohibited the accountants from disclosing the existence of the Notice to the Appellant: Commission Act, s 29A — Notation was subsequently varied to allow accountants to disclose the existence of the Notice to the Appellant — Whether, in light of the events, it would convert the process and procedure of the Court into an instrument of injustice and bring the administration of justice into disrepute if the confidentiality of the documents were not preserved — Whether the subject documents are inherently confidential, such that there is a competing public interest in preserving their confidentiality which must be weighed against the principle of open justice.
Appealed from FCA FC: [2009] FCAFC 71.
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
****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.
Torts
Wicks v State Rail Authority of New South Wales known as State Rail; Sheehan v State Rail Authority of New South Wales known as State Rail
S27/2010; S28/2010: [2010] HCATrans 87.
Date heard: 13 April 2010 — Judgment reserved.
Coram: French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.
Catchwords:
Torts — Civil Liability Act 2000 (NSW) (“Act”) — Pure mental harm arising from shock — Damages for rescuer, not initially at scene of accident, who suffers consequent mental harm — Appellant police officers, who attended Waterfall train crash, brought a claim against Respondent alleging they had suffered psychiatric injury due to negligence — Section 30(2) of the Act provides that plaintiff is not entitled to recover damages for (a) pure mental harm unless “the plaintiff witnessed, at the scene, the victim being killed, injured or put in peril” … or (b) “the plaintiff is a close member of the family of the victim” — Whether s 30(2)(a) of the Act precludes a damages claim for pure mental harm being brought by a rescuer who arrived at scene after Respondent committed any breach of duty to primary victim or when primary victim first sustained injury — Whether rescuer can claim damages for pure mental harm who subsequently arriving at the scene, and while at the scene, suffers consequent pure mental harm — Whether breach of duty was still causing a continuing peril of initial, additional or aggravated physical or mental injury to potential primary victims.
Appealed from NSW SC (CA): [2009] NSWCA 261.
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.
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 4 [2010] HCAB 4.
There are no cases in the High Court of Australia that are ready for hearing in the original jurisdiction since High Court Bulletin 4 [2010] HCAB 4.
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 4 [2010] HCAB 4.
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
Spencer v Commonwealth of Australia
S87/2009: [2010] HCATrans 55.
Date heard: 12 March 2010 — Referred to Full Court.
Catchwords:
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.
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.
Corporations
Public Trustee of Queensland v Fortress Credit Corporation (Aus) 11 Pty Ltd & Ors
B40/2009: [2010] HCATrans 49.
Date heard: 12 March 2010 — Special leave granted.
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.
Criminal Law
Pollock v The Queen
B36/2009: [2010] HCATrans 54.
Date heard: 12 March 2010 — Special leave granted.
Catchwords:
Criminal law — Criminal defences — Provocation — Trial judge’s direction to the jury — Elements of provocation and directions to the jury — Definition of “suddenness” with respect to provocation — Section 304 of the Criminal Code 1899 (Qld) (“Code”) requires that the accused acted “before there is time for the person’s passion to cool” — Test formulated by the Court of Appeal in the Applicant’s first appeal, and adopted by the trial judge and Court of Appeal in the present appeal, was that “the loss of self control was not sudden” — Whether the test formulated was more onerous than that of s 304 of the Code — Whether the Court of Appeal erred in holding that the direction by the trial judge to the jury did not mislead the jury as to their task in considering the defence of provocation.
Appealed from Qld SC (CA): [2009] QCA 268.
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.
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
****See Taxation and Duties: TEC Desert Pty Ltd & Anor v Commissioner of State Revenue.
Statutes
See Taxation and Duties: 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.
Aid/Watch Incorporated v Commissioner of Taxation
S280/2009: [2010] HCATrans 58.
Date heard: 12 March 2010 — Special leave granted.
Catchwords:
Taxation and duties — Charities — Characterisation of main purpose — Scope of political purpose where activities also include a charitable purpose — Applicant 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.
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.
****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.
Workers’ Compensation
Workcover Queensland v Amaca Pty Ltd & Anor
B12/2009: [2010] HCATrans 48.
Date heard: 12 March 2010 — Special leave granted.
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 “the insurer is entitled to be indemnified by the employer or other person who is required by the settlement to pay the damages” — 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.
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 4 [2010] HCAB 4.
Forbes v The Queen
C10/2009: [2010] HCATrans 120.
Date heard: Special leave refused on 18 May 2010.
Catchwords:
Criminal law — DNA evidence — Sexual assault — Likelihood ratio for committing an offence — DNA evidence only incriminating evidence — DNA evidence was characterised by expert witness at trial as providing “extremely strong” evidence on the likelihood ratio that the Applicant was the source of the DNA — Whether there was no rule or principle to the effect that where the only evidence which incriminated the accused was DNA evidence, the accused should be acquitted — Whether a likelihood ratio produced by statistical calculations was highly probative.
Appealed from ACT SC (CA): [2009] ACTCA 10.
Habib v Minister for Foreign Affairs and Trade; Habib v Director-General of Security
S248/2009; S249/2009: [2010] HCATrans 124.
Date heard: Pronouncement of orders by consent on 21 May 2010.
Catchwords:
Administrative law — Procedural fairness — Natural justice — Australian citizen detained in Pakistan as a suspected terrorist and transferred to Guantanamo Bay was subsequently released without charge — Minister for Foreign Affairs and Trade refused to issue a fresh Australian passport and Administrative Appeals Tribunal (“AAT”) affirmed the decision — Refusal to issue passport made on an adverse security assessment — Whether in exercising the jurisdiction conferred by s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) there is an entitlement to refuse relief in circumstances where it is found that the decisions of the AAT were affected by a breach of procedural fairness concerning a matter of fact on the basis of its assessment that, had the breach not occurred, the same outcome would have resulted.
Appealed from FCA FC: [2009] FCAFC 48.
6: Special Leave Dismissed
The following cases were refused special leave to appeal to the High Court of Australia.
Sydney: 28 May 2010
Civil
Doumit v Jabbs Excavations Pty Ltd
S334/2009.
Special leave dismissed with costs.
Appealed from NSW SC (CA): [2009] NSWCA 360.
Bracks v Smyth-Kirk
S369/2009.
Special leave dismissed with costs.
Appealed from NSW SC (CA): [2009] NSWCA 401.
New South Wales Aboriginal Land Council & Anor v Minister Administering the Crown Lands Act
S8/2010.
Special leave dismissed.
Appealed from NSW SC (CA): [2009] NSWCA 352.
Kation Pty Ltd & Anor v Lamru Pty Ltd & Anor
S13/2010.
Special leave dismissed with costs.
Appealed from NSW SC (CA): [2009] NSWCA 428.
Rose v Meriton Apartments Pty Ltd & Ors
S17/2010.
Special leave dismissed with costs.
Appealed from NSW SC (CA): [2009] NSWCA 434.
Criminal
Nagi v The Queen
S218/2009.
Special leave dismissed.
Appealed from NSW SC (CCA): [2009] NSWCCA 198.
Burrell v The Queen
S14/2010.
Special leave dismissed.
Appealed from NSW SC (CCA): [2009] NSWCCA 163.
Canberra: 28 May 2010
Civil
Norman v National Australia Bank Ltd & Ors
A22/2009.
Special leave dismissed with costs.
Appealed from FCA FC: [2009] FCAFC 152.
Bropho v The State of Western Australia
P24/2009.
Special leave dismissed.
Appealed from WA SC (CA): [No 2][2009] WASCA 94.
Tipperary Developments Pty Ltd v The State of Western Australia
P34/2009.
Special leave dismissed with costs.
Appealed from WA SC (CA): [2009] WASCA 126.
Coates v The State of Western Australia
P38/2009.
Special leave dismissed.
Appealed from WA SC (CCA): [2009] WASCA 142.
Corporate Systems Publishing Pty Ltd & Anor v Lingard & Ors
P39/2009.
Special leave dismissed with costs.
Appealed from WA SC (CA): [2009] WASCA 158.
Halpern Glick Pty Ltd v City of Fremantle & Ors
P46/2009
Special leave dismissed with costs.
Appealed from WA SC (CA): [2009] WASCA 181.
Computer Accounting & Tax Pty Ltd v Professional Services of Australia Pty Ltd & Anor
P47/2009.
Special leave dismissed with costs.
Appealed from WA SC (CA): [No 2][2009] WASCA 183.
Drexel London (A Firm) v Gove (Blackman) & Ors
P48/2009; P49/2009.
Special leave dismissed with costs.
Appealed from WA SC (CA): [2009] WASCA 181.
Gove (Blackman) & Ors v City of Fremantle & Anor
P5/2010
Special leave dismissed with costs.
Appealed from WA SC (CA): [2009] WASCA 181.
Gove (Blackman) & Ors v Owners of the Old Soap Factory (Strata Title Plan 11175) & Ors
P6/2010
Special leave dismissed with costs.
Appealed from WA SC (CA): [2009] WASCA 181.
Canberra: 26 May 2010
(Publication of reasons)
Civil
MZYCQ v Minister for Immigration and Citizenship & Anor
M106/2009: [2010] HCASL 100.
Special leave dismissed.
Appealed from FCA: [2009] FCA 1286.
Ahmad v Minister for Immigration and Citizenship & Anor
M111/2009: [2010] HCASL 101.
Special leave dismissed.
Appealed from FCA: [2009] FCA 1368.
Slaveski v Rostein & Associates Pty Ltd
M115/2009: [2010] HCASL 102.
Special leave dismissed.
Appealed from FCA: [2009] FCA 1428.
Chu v Telstra Corporation Ltd
M121/2009: [2010] HCASL 103.
Special leave dismissed.
Appealed from FCA: [2009] FCA 1384.
Chin v Hall & Ors
P1/2010: [2010] HCASL 104.
Special leave dismissed.
Appealed from WA SC (CA): [2009] WASCA 216.
SZNMS v Minister for Immigration and Citizenship & Anor
S321/2009: [2010] HCASL 105.
Special leave dismissed.
Appealed from FCA: [2009] FCA 1265.
SZNKU v Minister for Immigration and Citizenship & Anor
S348/2009: [2010] HCASL 106.
Special leave dismissed.
Appealed from FCA: [2009] FCA 1564.
SZNRE v Minister for Immigration and Citizenship & Anor
S350/2009: [2010] HCASL 107.
Special leave dismissed.
Appealed from FCA: [2009] FCA 1333.
SZMWU & Anor v Minister for Immigration and Citizenship & Anor
S351/2009: [2010] HCASL 108.
Special leave dismissed.
Appealed from FCA: [2009] FCA 1375.
SZNLT v Minister for Immigration and Citizenship & Anor
S352/2009: [2010] HCASL 109.
Special leave dismissed.
Appealed from FCA: [2009] FCA 1332.
SZMZV & Anor v Minister for Immigration and Citizenship & Anor
S357/2009: [2010] HCASL 110.
Special leave dismissed.
Appealed from FCA: [2009] FCA 1380.
SZNLV v Minister for Immigration and Citizenship & Anor
S360/2009: [2010] HCASL 111.
Special leave dismissed.
Appealed from FCA: [2009] FCA 1490.
SZNIH v Minister for Immigration and Citizenship & Anor
S363/2009: [2010] HCASL 112.
Special leave dismissed.
Appealed from FCA: [2009] FCA 1374.
SZNKF v Minister for Immigration and Citizenship & Anor
S364/2009: [2010] HCASL 113.
Special leave dismissed.
Appealed from FCA: [2009] FCA 1455.
Slater v Slater
S4/2010: [2010] HCASL 114.
Special leave dismissed.
Appealed from FamCA FC.
SZMXS v Minister for Immigration and Citizenship & Anor
S12/2010: [2010] HCASL 115.
Special leave dismissed.
Appealed from FCA: [2009] FCA 1542.
Wang v Botany View Hotel
S21/2010: [2010] HCASL 116.
Special leave dismissed.
Appealed from NSW SC (CA): [2009] NSWCA 384.
SZMSN v Minister for Immigration and Citizenship & Anor
S30/2010: [2010] HCASL 117.
Special leave dismissed.
Appealed from FCA: [2010] FCA 96.
SZNBX & Anor v Minister for Immigration and Citizenship & Anor
S372/2009: [2010] HCASL 119.
Special leave dismissed.
Appealed from FCA: [2009] FCA 1403.
Makucha v Fairbrook PMA Pty Ltd
S264/2009: [2010] HCASL 118.
Special leave dismissed with costs.
Appealed from FCA: [2009] FCA 985.
Canberra: 27 May 2010
(Publication of reasons)
Civil
SZBYH and Anor v Minister for Immigration and Citizenship & Anor
S399/2008: [2010] HCASL 120.
Special leave dismissed.
Appealed from FCA: [2008] FCA 1157.
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