High Court Bulletin
[2024] HCAB 2
High Court Bulletin
Produced by the Legal Research Officer,
High Court of Australia Library
[2024] HCAB 2 (15 March 2024)
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: Summary of New Entries
2: Cases Handed Down
3: Cases Reserved
4: Original Jurisdiction
5: Section 40 Removal
6: Special Leave Granted
7: Cases Not Proceeding or Vacated
8: Special Leave Refused
1: Summary of New Entries
2: Cases Handed Down
| Case | Title |
| Hurt v The King; Hurt v The King; Delzotto v The King | Criminal Law |
| The King v Anna Rowan – A Pseudonym | Criminal Law |
| Xerri v The King | Criminal Law |
| Lesianawai v Minister for Immigration, Citizenship and Multicultural Affairs | Immigration |
| AB (a pseudonym) v Independent Broad-based Anti-corruption Commission | Statutes |
| Redland City Council v Kozik | Statutes |
3: Cases Reserved
| Case | Title |
| Obian v The King | Criminal Law |
| The Director of Public Prosecutions v Benjamin Roder (a pseudonym) | Evidence |
| Greylag Goose Leasing 1410 Designated Activity Company & Anor v P.T. Garuda Indonesia Ltd | Private International Law |
| Godolphin Australia Pty Ltd ACN 093921021 v Chief Commissioner of State Revenue | Taxation |
| Mallonland Pty Ltd ACN 051 136 291 & Anor v Advanta Seeds Pty Ltd ACN 010 933 061 | Torts |
| Bird v DP (a pseudonym) | Torts |
4: Original Jurisdiction
5: Section 40 Removal
| Case | Title |
| Bogan & Anor v The Estate of Peter John Smedley (Deceased) & Ors | Practice and Procedure |
6: Special Leave Granted
| Case | Title |
| JZQQ v Minister for Immigration, Citizenship and Multicultural Affairs & Anor | Constitutional Law |
| State of New South Wales v Wojciechowska & Ors | Constitutional Law |
| Tapiki v Minister for Immigration, Citizenship and Multicultural Affairs | Constitutional Law |
| The King v Hatahet | Criminal Law |
| The King v ZT | Criminal Law |
| Elisha v Vision Australia Ltd | Damages |
| Steven Moore (a pseudonym) v The King | Evidence |
7: Cases Not Proceeding or Vacated
8: Special Leave Refused
2: Cases Handed Down
The following cases were handed down by the High Court of Australia during the December 2023 sittings.
Criminal Law
Hurt v The King; Hurt v The King; Delzotto v The King
C7/2023; C8/2023; S44/2023: [2024] HCA 8
Judgment delivered: 13 March 2024
Coram: Gageler CJ, Edelman, Steward, Gleeson and Jagot JJ
Catchwords:
Criminal law – Sentencing – Appeal against sentence – Minimum sentences – Where s 16AAB of Crimes Act 1914 (Cth), inserted by Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020 (Cth) ("Amendment Act"), provided for minimum terms of imprisonment, subject to limited exceptions, for offences – Where offences included s 474.22A(1) of Criminal Code (Cth) ("Possessing or controlling child abuse material obtained or accessed using a carriage service") – Where elements of offence included, relevantly, "the person has possession or control of material" and "the person used a carriage service to obtain or access the material" – Where transitional provision in Amendment Act required "relevant conduct ... engaged in" to take place on or after commencement of amendments, including insertion of s 16AAB – Whether minimum sentence provides yardstick for calculation of appropriate penalty in addition to restricting sentencing power – Whether "relevant conduct" concerns only "conduct" element of offence or also "circumstance in which conduct ... occurs".
Words and phrases – "appropriate penalty", "appropriate term of imprisonment", "child sexual abuse offence", "conduct", "double function", "engaged in", "relevant conduct", "restriction on power", "sentencing", "sentencing discretion", "statutory minimum sentence", "yardstick".
Crimes Act 1914 (Cth), ss 16AAA, 16AAB, 16AAC.
Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020 (Cth), Sch 6, items 3, 9. Criminal Code (Cth), s 474.22A.
Appealed from ACTSC (CA) (C25/2022; C26/2022): [2022] ACTCA 49; (2022) 18 ACTLR 272; (2022) 372 FLR 312
Appealed from NSWSC (CCA): [2022] NSWCCA 117; (2022) 298 A Crim R 483
Held: Appeals dismissed.
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The King v Anna Rowan – A Pseudonym
M47/2023: [2024] HCA 9
Judgment delivered: 13 March 2024
Coram: Gageler CJ, Gordon, Edelman, Jagot and Beech-Jones JJ
Catchwords:
Criminal law – Defences – Defence of duress – Where respondent charged with sexual offences committed against two of her daughters in presence of respondent's partner "JR" – Where, prior to trial, respondent sought to raise defence of duress – Where supporting evidence on voir-dire included daughters' evidence, forensic psychologist's report and tendency evidence concerning JR's threatening, violent and controlling behaviour – Where trial judge ruled no factual basis for duress – Where trial proceeded without duress being put to jury and respondent convicted – Where Court of Appeal of Supreme Court of Victoria found duress should have been put to jury – Whether Court of Appeal implicitly adopted doctrine of "duress of circumstances" instead of requirement there be threat to inflict harm if accused failed to commit acts charged – Whether Court of Appeal erred in concluding evidence was sufficient to raise defence of duress at common law and under s 322O of Crimes Act 1958 (Vic).
Words and phrases – "defence of duress", "duress at common law", "duress of circumstances", "ongoing threat", "operative threat", "threat to inflict harm", "unstated demand".
Crimes Act 1958 (Vic), s 322O.
Appealed from VSC (CA): [2022] VSCA 236
Held: Appeal dismissed.
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Xerri v The King
S76/2023: [2024] HCA 5
Judgment delivered: 6 March 2024
Coram: Gageler CJ, Gordon, Steward, Gleeson and Jagot JJ
Catchwords:
Criminal law – Sentence – Calculation – Statutory interpretation – Maximum penalty – Persistent child sexual abuse offence – Where s 66EA of Crimes Act 1900 (NSW) came into effect from 1 December 2018 with maximum penalty of life imprisonment – Where previous s 66EA of Crimes Act provided for maximum penalty of 25 years – Where appellant pleaded guilty to offence of being an adult who had maintained an unlawful sexual relationship with child – Where appellant sentenced under current s 66EA to eight years imprisonment – Where maximum penalty of life imprisonment served as "valuable guidepost" in sentencing – Where appellant's offending occurred prior to commencement of current s 66EA and appellant pleaded guilty after current s 66EA commenced – Whether replacement of s 66EA of Crimes Act constituted new offence or increase in penalty for "offence" which already existed for purposes of s 19 of Crimes (Sentencing Procedure) Act 1999 (NSW) ("Procedure Act") – Meaning of word "offence" in s 19 of Procedure Act – Where retrospective operation of s 66EA offence – Whether maximum penalty for offence committed by appellant remained 25 years imprisonment by operation of s 19 of Procedure Act – Whether significant differences between former and current s 66EA of Crimes Act such that they are not same offence.
Words and phrases – "child sexual abuse", "differences of substance", "increased penalty", "life imprisonment", "maximum penalty", "new offence", "offence", "persistent sexual abuse of a child", "retrospective", "retrospective offence", "sentence".
Crimes Act 1900 (NSW), s 66EA.
Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (NSW).
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 19, 25AA.
Appealed from NSW (CCA): [2021] NSWCCA 268; (2021) 292 A Crim R 355
Held: Appeal dismissed.
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Immigration
Lesianawai v Minister for Immigration, Citizenship and Multicultural Affairs
S12/2023: [2024] HCA 6
Judgment delivered: 6 March 2024
Coram: Gageler CJ, Gordon, Edelman, Gleeson and Beech-Jones JJ
Catchwords:
Immigration – Visas – Cancellation of visa – Where plaintiff found guilty of robbery offences when under 16 years of age before Children's Court of New South Wales – Where plaintiff committed subsequent robbery offences as adult – Where plaintiff's visa cancelled under s 501(2) of Migration Act 1958 (Cth) – Where delegate of Minister took into account "National Police Certificate" that listed robbery offences committed by plaintiff when under 16 years of age – Where "National Police Certificate" described plaintiff as being "convicted" of offences dealt with by Children's Court – Where delegate advised that plaintiff had "serious convictions" from 13 years of age – Where, at time of offending, s 14(1)(a) of Children (Criminal Proceedings) Act 1987 (NSW) prohibited Children's Court from proceeding to, or recording, any conviction if child was under 16 years of age – Where s 85ZR(2)(b) of Crimes Act 1914 (Cth) provided that where, under a State law, a person is, in particular circumstances or for a particular purpose, taken never to have been convicted of an offence, the person shall be taken in any State, in corresponding circumstances or for a corresponding purpose, by any Commonwealth authority in that State never to have been convicted of that offence – Whether delegate erroneously took into account matters precluded by ss 85ZR(2)(b) and 85ZS(1)(d)(ii) of Crimes Act by considering the offences committed by plaintiff when under 16 years of age – Whether delegate's decision affected by jurisdictional error.
Words and phrases – "conviction", "criminal history", "finding of guilt", "for any purpose", "jurisdictional error", "materiality", "proceeding to conviction", "recording of conviction", "taken to be", "visa cancellation".
Children (Criminal Proceedings) Act 1987 (NSW), s 14.
Crimes Act 1914 (Cth), ss 85ZM, 85ZR, 85ZS.
Migration Act 1958 (Cth), s 501(2).
Application for constitutional or other writ referred to the Full Court on 14
July 2023.
Held: A writ of certiorari issue quashing the decision of the delegate of the defendant; the defendant pay the plaintiff's costs.
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Statutes
AB (a pseudonym) & Anor v Independent Broad-based Anti-corruption Commission
M63/2023: [2024] HCA 10
Judgment delivered: 13 March 2024
Coram: Gageler CJ, Gordon, Edelman[1], Steward, Gleeson, Jagot and Beech-Jones JJ
[1] The parties consented to Justice Edelman participating in the hearing by reading the transcript.
Catchwords:
Statutes – Construction – Procedural fairness – Reasonable opportunity to respond – Where Independent Broad-based Anti-corruption Commission ("IBAC") conducted investigation into allegations of unauthorised access to and disclosure of internal email accounts – Where IBAC provided redacted draft special report containing proposed adverse findings against appellants – Where IBAC refused to provide evidentiary material for proposed adverse findings – Where s 162(3) of Independent Broad-based Anti-corruption Commission Act 2011 (Vic) relevantly provided that, if IBAC intends to include in report "a comment or an opinion which is adverse to any person", then IBAC must first provide person reasonable opportunity to respond to adverse material – Whether "adverse material" in s 162(3) referred to proposed adverse comments or opinions in report, or evidentiary material upon which proposed adverse comments or opinions based – Whether provision of substance or gravamen of adverse material sufficient to comply with obligation under s 162(3) – Whether substantive relief warranted where findings unaffected by misconstruction of s 162(3).
Words and phrases – "adverse comment or opinion", "adverse finding", "adverse material", "evidentiary material", "reasonable opportunity", "reasonable opportunity to respond", "special report", "substance or gravamen".
Independent Broad-based Anti-corruption Commission Act 2011 (Vic), s 162(3).
Appealed from VSC (CA): [2022] VSCA 283
Held: Appeal allowed with costs.
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Redland City Council v Kozik & Ors
B17/2023: [2024] HCA 7
Judgment delivered: 13 March 2024
Coram: Gageler CJ, Gordon, Edelman, Steward and Jagot JJ
Catchwords:
Statutes – Construction – Statutory debt – Local government – Special rates and charges – Where appellant empowered by Local Government Act 2009 (Qld) ("Act") to levy special rates and charges in respect of rateable land – Where appellant purported to levy special charges on respondents' land – Where special charges levied pursuant to invalid resolutions – Where respondents paid special charges contained in rate notices – Where regulations made pursuant to Act provided for return of special rates or charges levied on land to which special rates or charges did not apply – Whether provision in regulations providing for return of special charges applicable where resolution levying special rates invalid.
Restitution – Unjust enrichment – Defence of good consideration – Where respondents paid special charges to appellant under mistake of law – Where appellant spent funds levied on works conducted on waterways adjacent to respondents' land – Where appellant statutorily obliged to conduct relevant works – Whether appellant had defence to respondents' claim for restitution.
Words and phrases – "benefit", "failure of consideration", "good consideration", "local government", "mistake of law", "money had and received", "recipient not unjustly enriched", "regulations", "restitution", "special rates and charges", "statutory construction", "statutory debt", "unjust enrichment".
Local Government Act 2009 (Qld), ss 91, 92, 93, 94.
Local Government (Finance, Plans and Reporting) Regulation 2010 (Qld), ss 28, 32.
Local Government Regulation 2012 (Qld), ss 94, 98.
Appealed from QLDSC (CA): [2022] QCA 158; (2022) 11 QR 524; (2022) 252 LGERA 315
Held: Appeal dismissed with costs; special leave to cross-appeal granted; cross-appeal dismissed with costs.
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3: Cases Reserved
The following cases have been reserved or part heard by the High Court of Australia.
Arbitration
Tesseract International Pty Ltd v Pascale Construction Pty Ltd
A9/2023: [2023] HCATrans 160
Date heard: 15 November 2023
Coram: Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot and Beech-Jones JJ
Catchwords:
Arbitration – Arbitral proceedings – Proportionate liability – Powers and duties of arbitrator – Where appellant agreed to provide engineering consultancy services to respondent in relation to design and construction of warehouse – Where, under contract, if dispute between appellant and respondent arose, dispute could be submitted to arbitration – Where dispute arose where respondent alleged breach of contract, duty of care and misleading or deceptive conduct in contravention of s 18 of Australian Consumer Law – Where appellant denied allegations, but pleaded in alternative that any damages payable should be reduced by reason of proportionate liability provisions under Part 3 of Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 (SA) and Part VIA of Competition and Consumer Act 2010 (Cth) (collectively "proportionate liability regimes") – Whether proportionate liability regimes amenable to arbitration – Whether s 28 of Commercial Arbitration Act 2011 (SA) empowers arbitrator to apply proportionate liability regimes, or whether terms of legislation preclude arbitrator from doing so – Whether implied power conferred on arbitrator to determine parties’ dispute empowers arbitrator to apply proportionate liability regimes, or whether terms of legislation preclude arbitrator from doing so.
Appealed from SASC (CA): [2022] SASCA 107; (2022) 140 SASR 395; (2022) 406 ALR 293
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Constitutional Law
Chief Executive Officer, Aboriginal Areas Protection Authority v Director of National Parks (ABN 13 051 694 963) & Anor
D3/2023: [2023] HCATrans 181; [2023] HCATrans 182
Date heard: 12 and 13 December 2023
Coram: Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot and Beech-Jones JJ
Catchwords:
Constitutional law – Territories – Territory crown – Crown immunity – Where s 34(1) of Northern Territory Aboriginal Sacred Sites Act 1989 (NT) ("Sacred Sites Act") prescribes offence and penalty for carrying out work on sacred site – Where Director of National Parks arranged for contractor to perform work on walking track at Gunlom Falls, in Kakadu National Park in Northern Territory – Where track works in area amounting to "sacred site" – Where Director a corporation with perpetual succession established by s 15 of National Parks and Wildlife Conservation Act 1975 (Cth) and continued in existence as body corporate by s 514A of Environment Protection and Biodiversity Conservation Act 1999 (Cth) – Whether s 34(1) of Sacred Sites Act applies to Director.
Statutory interpretation – Statutory presumption – Presumption against imposition of criminal liability on executive – Where presumption considered in Cain v Doyle (1946) 72 CLR 409 – Proper approach to scope of presumption in Cain v Doyle – Whether presumption in Cain v Doyle applies to statutory corporations – Whether Sacred Sites Act expresses intention to apply to persons or bodies corporate associated with Commonwealth.
Appealed from NTSC (FC): [2022] NTSCFC 1
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Contract
Cessnock City Council (ABN 60 919 148 928) v 123 259 932 Pty Ltd (ACN 123 259 932)
S115/2023: [2024] HCATrans 8
Date heard: 13 February 2024
Coram: Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot and Beech-Jones JJ
Catchwords:
Contract – Breach of contract – Remedies – Damages – Reliance damages – Recoupment presumption – Where dispute arose from plan to develop airport at Cessnock – Where applicant operated as both commercial party and relevant planning authority – Where applicant lodged development applicant for consolidation of airport land into lots 1 and 2 – Where respondent was company that hoped to build hanger on lot 2 – Where on 26 July 2007, applicant executed agreement whereby it promised to grant respondent lease of part of airport – Where respondent spent around $3.7 million constructing hangar – Where on 29 June 2011, applicant told respondent that it would not be proceeding with subdivision of airport as it could not afford to connect proposed lots to sewerage system – Where primary judge held applicant breached parties’ agreement by not committing funds to connect proposed lots to sewerage, but only awarded nominal damages – Where primary judge distinguished case from Amann Aviation and McRae v Commonwealth Disposals Commission (1951) 84 CLR 377, such that recoupment presumption did not arise, and even if such presumption had arisen, applicant rebutted – Where Court of Appeal held recoupment presumption engaged, and presumption not rebutted – Whether Court of Appeal erred in concluding presumption arose that respondent would have at least recouped its wasted expenditure if contract had been performed – Whether presumption arises where contract has inherent contingency that no net profit would be made.
Appealed from NSWSC (CA): [2023] NSWCA 21; (2023) 110 NSWLR 464
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Criminal Law
Director of Public Prosecutions (Cth) v Kola
A21/2023: [2024] HCATrans 10
Date heard: 15 February 2024
Coram: Gageler CJ, Steward, Gleeson, Jagot and Beech-Jones JJ
Catchwords:
Criminal law – Drug offences – Scope of conspiracy – Misdirection and non-direction – Where respondent charged with conspiring to import commercial quantity of border controlled drug contrary to ss 1.5(1) and 307.1(1) of Criminal Code (Cth) – Where Crown case respondent agreed with others to conduct being engaged in, which if successful, would result in commercial quantity of cocaine being imported from Panama to Australia – Where no direct evidence of quantity of cocaine agreed to import – Where Crown relied on inferences to support case amount of cocaine to be imported 2kg or more – Where trial judge directed jury elements to be proven beyond reasonable doubt included substance imported pursuant to agreement commercial quantity – Where approach to directing juries about elements of conspiracy offence differs in Victoria, New South Wales and present South Australian case – Whether Court of Appeal erred in concluding element of offence of conspiracy to import commercial quantity that conspirators agree to conduct which, if executed would have resulted in importation of commercial quantity where conspirators knew or intended agreement would result in importation of product of that weight.
Appealed from SASC (CA): [2023] SASCA 50; (2023) 377 FLR 253
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Obian v The King
M77/2023: [2024] HCATrans 17
Date heard: 15 March 2024
Coram: Gageler CJ, Gordon, Gleeson, Jagot and Beech-Jones JJ
Catchwords:
Criminal law – Reopening of prosecution case – Substantial miscarriage of justice – Proper test for re-opening under s 233(2) Criminal Procedure Act 2009 (Vic) – Where appellant charged with three counts of trafficking in not less than commercial quantity of 1,4-butanediol ("1,4-BD"), which is drug of dependence except when possessed or used "for a lawful industrial purpose and not for human consumption" – Where defence case was that appellant imported and used 1,4-BD in course of his cleaning business – Where prosecution case was appellant imported and possessed 1,4-BD for purposes of sale for human consumption – Where after close of prosecution case, appellant gave evidence, which included admitting hiring HiAce van but did so on behalf of another person – Where part-way through appellant’s cross-examination, prosecution granted leave to re-open its case to call evidence from surveillance operatives to rebut aspects of appellant’s evidence about his hiring of van – Where majority of Court of Appeal refused appellant’s application for leave to appeal against conviction – Whether trial judge erred in permitting prosecution to reopen prosecution case under s 233(2) of Criminal Procedure Act and that substantial miscarriage of justice occurred as result.
Appealed from VSC (CA): [2023] VSCA 18; (2023) 69 VR 553
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Evidence
The Director of Public Prosecutions v Benjamin Roder (a pseudonym)
M85/2023: [2024] HCATrans 14
Date heard: 13 March 2024
Coram: Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot and Beech-Jones JJ
Catchwords:
Evidence – Tendency evidence – Standard of proof – Where respondent is to be tried in County Court of Victoria on indictment charging him with 27 sexual offences against two sons of his former domestic partner – Where prosecution gave notice of intention to adduce tendency evidence that respondent had tendency to have improper sexual interest in stepchildren and tendency to act in particular ways towards them – Where trial judge ruled jury should be directed that "the charged acts must be proved beyond reasonable doubt" before they could be used as tendency evidence – Where Court of Appeal refused leave to appeal from trial judge’s decision – Whether Court of Appeal erred in upholding interlocutory decision of County Court of Victoria on basis that where charged act relied upon as evidence to prove tendency, jury should be directed that charged act must be proved beyond reasonable doubt before it can be so used – Whether such direction prohibited by s 61 of Jury Directions Act 2015 (Vic).
Appealed from VSC (CA): [2023] VSCA 262
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Immigration
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor
M70/2023: [2024] HCATrans 2
Date heard: 6 February 2024
Coram: Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot and Beech-Jones JJ
Catchwords:
Immigration – Visas – Cancellation – Direction 90 – Materiality – Where applicant convicted of criminal offences and sentenced to term of imprisonment – Where applicant’s visa cancelled under s 501(3A) of Migration Act 1958 (Cth) – Where applicant applied under s 501CA(4) to have cancellation revoked – Where Minister required Tribunal under s 499(1) of Migration Act to comply with certain directions as to how evaluative discretionary power should be exercised – Where Direction 90 requires Tribunal to consider "seriousness" of conduct – Where delegate decided not to revoke cancellation under s 501CA of Migration Act – Where Administrative Appeals Tribunal and primary judge affirmed delegate’s decision – Where Full Court found Tribunal erred in purporting to consider certain matters set out in cl 8.1.1 of Direction 90 – Where Full Court found each error immaterial – Whether Full Court erred in concluding each of second respondent’s multiple failures to comply with Direction 90 not material to Tribunal’s decision – Whether Full Court erred in failing to conclude that, cumulatively, Tribunal’s multiple non-compliances with Direction 90 were material – Proper approach to materiality of jurisdictional error.
Appealed from FCA (FC): [2023] FCAFC 64; (2023) 297 FCR 1
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Miller v Minister for Immigration, Citizenship and Multicultural Affairs & Anor
S120/2023: [2024] HCATrans 9
Date heard: 14 February 2024
Coram: Gageler CJ, Gordon, Edelman, Jagot and Beech-Jones JJ
Catchwords:
Immigration – Visas – Cancellation – Invalid applications – Jurisdiction of Administrative Appeals Tribunal ("Tribunal") Application for review of decision of Tribunal – Requirements under s 29(1) of Administrative Appeals Tribunal Act 1975 (Cth) for application for review of migration decision – Where applicant filed document in Tribunal seeking review of delegate’s decision not to revoke cancellation of visa under s 501CA(4) of Migration Act 1958 (Cth) – Where in courts below, Minister accepted application complied with all requirements in s 29(1) of Administrative Appeals Tribunal Act other than requirement in s 29(1)(c) to "contain a statement of reasons for the application" – Where at directions hearing on 1 April 2021, Tribunal requested applicant provide by 9 April 2021 email stating reasons for application – Where on that day, applicant’s migration agent emailed reasons – Where primary judge and Full Court held that statement required by s 29(1)(c) essential to validity of application and thus Tribunal’s jurisdiction – Where Full Court held that 9 April 2021 email stating reasons sent outside nine-day period specified by s 500(6B) of Migration Act 1958 (Cth) "perfected" application out of time – Whether Full Court erred in concluding second respondent did not have jurisdiction to determine applicant’s application filed on 24 March 2021.
Appealed from FCA (FC): [2022] FCAFC 183; (2022) 295 FCR 254
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Minister for Immigration, Citizenship and Multicultural Affairs v McQueen
P2/2023: [2023] HCATrans 183
Date heard: 14 December 2023
Coram: Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot and Beech-Jones JJ
Catchwords:
Immigration – Visas – Mandatory cancellation – Representations to Minister to revoke cancellation – Relying on Departmental summary or synthesis of documents – Where respondent’s visa mandatorily cancelled pursuant to s 501(3A) of Migration Act1958 (Cth) – Where s 501CA requires Minister to invite person affected by mandatory cancellation to "make representations to the Minister", and empowers Minister to revoke such cancellation if "person makes representations in accordance with the invitation" and Minister satisfied, inter alia, that there is another reason why the original decision should be revoked – Where following notification of visa cancellation respondent submitted documents and former Minister personally decided not to revoke cancellation – Where primary judge found former Minister did not consider representation by respondent – Where Full Court upheld finding, and concluded that where Minister exercises power under s 501CA(4), Minister required to read actual documents submitted, and that Minister cannot rely on Departmental synthesis or summary of those documents – Whether Minister when required by statute to consider documents may rely on Departmental synthesis or summary of those documents.
Appealed from FCA (FC): [2022] FCAFC 199; (2022) 292 FCR 595
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Private International Law
Greylag Goose Leasing 1410 Designated Activity Company & Anor v P.T. Garuda Indonesia Ltd
S135/2023: [2024] HCATrans 13
Date heard: 7 March 2024
Coram: Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot and Beech-Jones JJ
Catchwords:
Private international law – Jurisdiction – Immunities – Foreign State Immunities Act 1985 (Cth) ("FSIA") – Where s 9 of FSIA provides immunity for foreign States from proceedings in Australian courts, except as provided by FSIA – Where s 14(3)(a) of FSIA provides exception for proceedings concerning "bankruptcy, insolvency or the winding up of a body corporate" – Where appellants instituted proceedings to wind up respondent – Where respondent is separate entity of foreign State under FSIA – Where primary judge and Court of Appeal held s 14(3)(a) did not apply, because it applied only to insolvency or winding up of body corporate other than separate entity of foreign State – Whether Court of Appeal erred in construing s 14(3)(a) as not applying to proceedings in so far as they concern winding up, including in insolvency, of body corporate that is separate entity of foreign State.
Appealed from NSWSC (CA): [2023] NSWCA 134; (2023) 111 NSWLR 550; (2023) 378 FLR 101; (2023) 410 ALR 371
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Taxation
Godolphin Australia Pty Ltd ACN 093921021 v Chief Commissioner of State Revenue
S130/2023: [2024] HCATrans 11
Date heard: 5 March 2024
Coram: Gageler CJ, Gordon, Edelman, Steward and Jagot JJ
Catchwords:
Taxation – Land tax – Assessments – Exemption for land used for primary production – Where appellant runs thoroughbred stud operation – Where appellant also engages in associated agricultural activities such as raising cattle and growing lucerne – Where no dispute that appellant’s broad use or activities on land involved maintenance of horses and that use dominated over any other use of land – Where s10AA(1) of Land Tax Management Act 1956 (NSW) provides exemption for "land that is rural land from taxation if it is land used for primary production" – Where s10AA(3)(b) provides that "land used for primary production" means land the dominant purpose of which is for "the maintenance of animals (including birds), whether wild or domesticated, for the purpose of selling them or their natural increase or bodily produce" – Where Court of Appeal found appellant failed to establish exempt purpose was dominant including that non-exempt purpose was not merely incidental and subservient to exempt purpose – Whether Court of Appeal erred in concluding that requirement of dominance in s 10AA(3)(b) applies to both use and purpose – Whether Court of Appeal should have concluded that where dominant use of land involves same physical activity for two or more complementary or overlapping purposes, one of which satisfies s 10AA(3)(b) and does not prevail over other purpose, it is unnecessary to demonstrate separately that exempt purpose is dominant purpose – Whether Court of Appeal should have concluded that appellant’s use of land for maintenance of animals was for purpose of selling animals, their progeny and bodily produce.
Appealed from NSWSC (CA): [2023] NSWCA 44; (2023) 115 ATR 490
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Torts
Bird v DP (a pseudonym)
M82/2023: [2024] HCATrans 16
Date heard: 14 March 2024
Coram: Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot and Beech-Jones JJ
Catchwords:
Torts – Personal Injury – Sexual assault – Vicarious liability – Where trial concerned allegations of sexual assaults against respondent by Catholic Priest in 1971, when respondent was five years of age – Where respondent sued Diocese of Ballarat through current Bishop, who was nominated defendant – Where respondent’s negligence case failed, but appellant, representing Diocese, found to be vicariously liable for Priest’s sexual assaults – Whether Court of Appeal erred in holding that appellant could be vicariously liable for tortfeasor’s wrong where express finding that tortfeasor not in employment relationship with appellant and was no finding that tortious conduct occurred as part of any agency relationship between tortfeasor and appellant – Where in circumstances Court finds relationship between appellant and tortfeasor gives rise to relationship of vicarious liability, whether Court of Appeal erred in concluding, based on general and non-specific evidence accepted, that conduct of tortfeasor was conduct for which appellant ought be liable as having provided both opportunity and occasion for its occurrence.
Appealed from VSC (CA): [2023] VSCA 66; (2023) 69 VR 408; (2023) 323 IR 174
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Mallonland Pty Ltd ACN 051 136 291 & Anor v Advanta Seeds Pty Ltd ACN 010 933 061
B60/2023: [2024] HCATrans 12
Date heard: 6 March 2024
Coram: Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot and Beech-Jones JJ
Catchwords:
Torts – Negligence – Pure economic loss – Duty of care – Where appellants and other group members commercial sorghum growers who between 2010 and 2014 conducted business of planting and commercial cultivation and sale of sorghum – Where they purchased, via distributors and resellers, "MR43 Elite" sorghum seeds manufactured by respondent, which were contaminated – Where MR43 sold in bags with "Conditions of Sale and Use" printed, including generic disclaimer – Where trial judge and Court of Appeal found that respondent did not owe duty of care to appellants – Whether Court of Appeal erred in failing to find respondent owed duty of care to appellants as end users of respondent’s product, to take reasonable care to avoid risk that such end users who used product as intended would sustain economic losses by reason of hidden defects in those goods – Whether Court of Appeal erred in finding that presence of disclaimer of liability on product packaging negated any assumption of responsibility by respondent so as to preclude duty of care on part of manufacturer arising, and thereby overwhelming consideration of all other salient features – Whether Court of Appeal erred by proceeding on basis that potential for farmers to avail themselves of contractual and statutory protection in dealings with distributors, and absence of statutory protection of farmers as consumers in Commonwealth consumer protection legislation, were matters which supported not expanding protection available to persons in position of applicants by recognising duty of care.
Appealed from QLDSC (CA): [2023] QCA 24
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Trade Practices
Productivity Partners Pty Ltd (trading as Captain Cook College) (ACN 085 570 547) & Anor v Australian Competition and Consumer Commission & Anor
S118/2023: [2024] HCATrans 5
Date heard: 7 February 2024
Coram: Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot and Beech-Jones JJ
Catchwords:
Trade Practices – Consumer law – Unconscionable conduct – Statutory unconscionability under s 21 of Australian Consumer Law ("ACL") – Where first applicant carried on business providing vocational education and training courses to students – Where second applicant parent company of first applicant – Where students enrolled in courses by first applicant eligible for funding support under Commonwealth government scheme (VET-FEE HELP) – Where first applicant engaged agents to market to or recruit potential students – Where changes made to VET-FEE HELP scheme by Commonwealth to protect students from risk of misconduct by agents and providers – Where prior to 7 September 2015, first applicant had several controls in enrolment system to ameliorate risk of unethical or careless conduct of agents with respect to enrolments – Where first applicant removed controls after suffering declining enrolments – Where primary judge and Full Court held first applicant engaged in unconscionable conduct in contravention of s 21 of ACL – Whether Full Court ought to have held primary judge erred in holding first applicant engaged in unconscionable conduct within meaning of s 21 of ACL, which claim was framed, and considered by trial judge, without reference to factors prescribed by s 22 of ACL – Whether Full Court erred in holding first applicant’s conduct of removing controls and operating enrolment system without those controls, in absence of intention that risks ameliorated by those controls eventuate, constituted unconscionable conduct in contravention of s 21 – Whether Full Court erred in holding second applicant knowingly concerned or party to first applicant’s contravention of s 21.
Appealed from FCA (FC): [2023] FCAFC 54; (2023) 297 FCR 180
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Wills v Australian Competition and Consumer Commission & Ors
S116/2023: [2024] HCATrans 5; [2024] HCATrans 6
Date heard: 7 and 8 February 2024
Coram: Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot and Beech-Jones JJ
Catchwords:
Trade Practices – Consumer law – Unconscionable conduct – Statutory unconscionability under s 21 of Australian Consumer Law ("ACL") – Knowing concern in unconscionable conduct – Accessorial liability – Where second respondent carried on business providing vocational education and training courses to students – Where third respondent parent company of second respondent – Where applicant was Chief Operating Officer of third respondent, and for period Chief Executive Officer of second respondent – Where students enrolled in courses by second respondent eligible for funding support under Commonwealth government scheme (VET-FEE HELP) – Where second respondent engaged agents to market to or recruit potential students – Where changes made to VET-FEE HELP scheme by Commonwealth to protect students from risk of misconduct by agents and providers – Where prior to 7 September 2015, second respondent had several controls in enrolment system to ameliorate risk of unethical or careless conduct of agents with respect to enrolments – Where second respondent removed controls after suffering declining enrolments – Where primary judge and Full Court held second respondent engaged in unconscionable conduct in contravention of s 21 of ACL – Where primary judge held applicant knowingly concerned in contravention of prohibition second respondent’s unconscionable conduct – Where Full Court majority allowed one of applicant’s grounds of appeal in part, that applicant did not know all of matters essential to contravention until he was acting CEO – Whether Full Court majority erred in finding that applicant had requisite knowledge to be liable as accessory to contravention of s 21, notwithstanding applicant not have knowledge that conduct involved taking advantage of consumers or was otherwise against conscience – Whether Full Court majority erred in finding that applicant satisfied participation element for accessorial liability by (i) applicant’s conduct before he had knowledge of essential matters which make up contravention; together with (ii) applicant’s continued holding of position of authority, but no identified positive acts after applicant had requisite knowledge.
Appealed from FCA (FC): [2023] FCAFC 54; (2023) 297 FCR 180
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4: Original Jurisdiction
The following cases are ready for hearing in the original jurisdiction of the High Court of Australia.
Courts
HBSY Pty Ltd ACN 151 894 049 v Lewis & Anor
S106/2023
Catchwords:
Courts – Jurisdiction – Cross-vesting – State court invested with federal jurisdiction – Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) ss 7(3), 7(5) – Where dispute arose in respect of first defendant’s late aunt’s estate – Where first defendant’s brother director of Lewis Securities Ltd – Where estate’s largest asset money owing to it by Sir Moses Montefiore Jewish Home ("Montefiore sum") – Where brother deposited Montefiore Sum with Lewis Securities – Where Lewis Securities entered liquidation and Montefiore sum lost – Where brother liable to estate and declared bankrupt – Where plaintiff purchased various assets from trustee in bankruptcy including interest in residue of estate – Where brother discharged from bankruptcy – Where plaintiff sought orders in Supreme Court revoking letters of administration granted to first defendant, or alternatively order that he be replaced as trustee – Where first defendant cross-claimed seeking declarations that plaintiff not entitled to be paid brother’s share of estate – Where plaintiff unsuccessful at first-instance – Where on 27 July 2022, plaintiff filed and served notice of intention to appeal to New South Wales Court of Appeal – Where on 31 August 2022, plaintiff’s legal advisers came to view appeal would concern matter arising under Bankruptcy Act1966 (Cth) and would therefore have to be brought in Full Federal Court – Where plaintiff sought extension of time to appeal from judgment of Supreme Court of New South Wales to Full Court of Federal Court of Australia – Where Full Court held s 7(5) of Cross-Vesting Act did not apply and suggested plaintiff may wish to revive process it had commenced in Court of Appeal – Where plaintiff seeks writ of mandamus requiring Full Court to determine substantive appeal – Whether Full Court has jurisdiction to hear appeal – Proper construction of s 7(5) of Cross-Vesting Act.
Application for constitutional or other writ referred to the Full Court on 22 November 2023.
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5: Section 40 Removal
The following cases are ready for hearing in the original jurisdiction of the High Court of Australia.
Constitutional Law
ASF17 v Commonwealth of Australia
P7/2024
Removed into the High Court under s 40 of the Judiciary Act 1903 (Cth) on 16 February 2024.
Catchwords:
Constitutional law – Judicial power of Commonwealth – Immigration detention – Where appellant Iranian citizen currently detained under ss 189(1) and 196(1) of Migration Act 1958 (Cth) ("Act") as unlawful non-citizen – Where appellant arrived in Australia on 13 July 2013 and in immigration detention since 10 February 2014 – Where following this Court's decision in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37 ("NZYQ"), appellant filed application in Federal Court for habeas corpus and declaratory relief to effect his ongoing detention has been and is unlawful – Where respondent argued appellant could be removed to Iran with their cooperation – Where appellant argued they had good reasons for fearing harm in Iran and thus for not cooperating – Where primary judge did not accept appellant's claimed bases for fearing harm if returned to Iran – Where primary judge held constitutional limit in NZYQ should be determined on hypothetical basis first respondent is cooperating – Where primary judge's finding inconsistent with aspects of reasoning in AZC20 v Secretary Department of Home Affairs (No 2) [2023] FCA 1497 – Whether appellant's ongoing detention lawful – Whether limit on constitutionally permissible duration of immigration detention identified in NZYQ applies in relation to unlawful non-citizens detained under ss 189(1) and 196(1), who are not cooperative with efforts to remove them and, in doing so, prevent their own removal pursuant to s 198.
Removed from Full Court of the Federal Court of Australia.
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Commonwealth of Australia v Mr Stradford (a pseudonym) & Ors; His Honour Judge Salvatore Paul Vasta v Mr Stradford (a pseudonym) & Ors
C3/2024; C4/2024: [2024] HCASL 24; [2024] HCASL 25
Removed into the High Court under s 40 of the Judiciary Act 1903 (Cth) on 8 February 2024.
Catchwords:
Constitutional law – Chapter III Court – Judicial Immunity – Contempt order – Where Judge of Federal Circuit Court ("Judge"), incorrectly found Mr Stradford ("Mr S") in contempt and sentenced him to 12 months’ imprisonment – Where Mr S detained for six days – Where Full Court allowed Mr S' appeal and set aside contempt declaration and imprisonment order – Where Mr S commenced proceeding in Federal Court alleging false imprisonment by Judge – Where Federal Court held Judge liable for false imprisonment – Where Federal Court found Commonwealth and State of Queensland ("Queensland") vicariously liable – Where Mr S, Commonwealth and Queensland each appealed to Full Court of the Federal Court – Whether Judge liable to Mr S for tort of false imprisonment – Whether Federal Circuit Court of Australia had power to punish for contempt despite its designation as inferior court – Whether order for contempt by inferior court affected by jurisdictional error void ab initio – Whether Judge had same immunity as superior court judge with respect to making of contempt orders – Whether Federal Court erred in concluding Commonwealth and Queensland not afforded protection at common law from civil liability in circumstances where their respective officers executed imprisonment order and warrant issued by Circuit Court which appeared valid on their face – Whether Federal Court erred in concluding Circuit Court’s constitutionally derived power to punish contempts and its power under s 17 of Federal Circuit Court of Australia Act 1999 (Cth) ousted or limited by Pts XIIIA and XIIIB of Family Law Act 1975 (Cth) – Whether Federal Court erred in finding errors Judge made "outside" or "in excess of" jurisdiction and he had pre-judged outcome of hearing in relation to contempt orders.
Removed from Full Court of the Federal Court of Australia.
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Practice and Procedure
Bogan & Anor v The Estate of Peter John Smedley (Deceased) & Ors
M21/2024: [2024] HCASL 55
Removed into the High Court under s 40 of the Judiciary Act 1903 (Cth) on 7 March 2024.
Catchwords:
Practice and Procedure – Transfer of proceedings – Group costs order – Where Victoria legislated to permit costs orders calculated as percentage of judgment or settlement in representative proceedings – Where provision unique to Victoria – Where appellants commenced representative proceedings in Supreme Court of Victoria against respondents – Where fifth respondent applied to transfer proceedings to Supreme Court of NSW under s 1337H of Corporations Act 2001 (Cth) – Where appellants applied for group costs order ("GCO") under s 33ZDA of Supreme Court Act 1986 (Vic) – Where Supreme Court directed GCO application be determined before transfer application, and later made GCO – Where fifth respondent's first removal application to High Court dismissed – Where fifth respondent referred transfer application to Victorian Court of Appeal for provision of reasons without final orders – Where Court of Appeal held proceedings should not be transferred to Supreme Court of NSW – Where fifth respondent successfully made second removal application to High Court – Whether GCO made under s 33ZDA of Supreme Court Act relevant in deciding whether to transfer proceedings to another court under s 1337H(2) of Corporations Act – Whether GCO will remain in force if proceedings are transferred to Supreme Court of NSW – Whether Supreme Court of NSW would have power to vary or revoke GCO if proceedings transferred – Whether proceedings should be transferred to Supreme Court of NSW.
Removed from Victorian Court of Appeal.
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Torts
State of Queensland v Mr Stradford (a pseudonym) & Ors
S24/2024: [2024] HCASL 23
Removed into the High Court under s 40 of the Judiciary Act 1903 (Cth) on 8 February 2024.
Catchwords:
Torts – False imprisonment – Contempt order – Where second respondent incorrectly found first respondent in contempt and sentenced him to 12 months’ imprisonment – Where first respondent detained for six days – Where officers of appellant took and held first respondent in custody – Where Full Court allowed first respondent's appeal and set aside contempt declaration and imprisonment order – Where first respondent commenced proceeding in Federal Court alleging false imprisonment by second respondent – Where Federal Court held second respondent liable for false imprisonment – Where Federal Court found third respondent and appellant vicariously liable – Where third respondent, second respondent and appellant each appealed to Full Court of the Federal Court – Whether appellant liable to first respondent for tort of false imprisonment – Whether Federal Court erred in concluding third respondent and appellant not afforded protection at common law from civil liability in circumstances where their respective officers executed imprisonment order and warrant issued by Circuit Court which appeared valid on their face – Whether Federal Court erred in concluding s 249 of Criminal Code (Qld) did not apply to warrant issued by Federal Circuit Court, and Court ought to have held ss 247, 249 and 250, which together relevantly provide for limited immunity for persons executing sentences passed and warrants issued without authority, applied to Queensland’s officers executing warrant and imprisonment order.
Removed from Full Court of the Federal Court of Australia.
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6: Special Leave Granted
The following cases have been granted special leave to appeal to the High Court of Australia.
Arbitration
CBI Constructors Pty Ltd & Anor v Chevron Australia Pty Ltd
P22/2023: [2023] HCATrans 166
Date heard: 17 November 2023 – Special leave granted
Catchwords:
Arbitration – Bifurcation of proceedings – Admissibility/jurisdiction dichotomy – Functus officio – Standard of supervisory court review – Where arbitration proceedings arose from contract under which appellants required to provide staff to carry out work at construction sites and respondent required to reimburse appellants for costs of providing staff – Where arbitral tribunal bifurcated proceedings principally on basis that first hearing would deal with liability and second hearing would deal with quantum – Where following first interim award appellants included additional pleading in repleaded case as to staff costs calculation ("Contract Criteria Case") – Where respondent objected to Contract Criteria Case on basis of res judicata, issue estoppel, Anshun estoppel and Tribunal functus officio in respect of liability – Where Tribunal in second interim award declared appellants not prevented from advancing Contract Criteria Case by any estoppels and Tribunal not functus officio in respect of Contract Criteria Case – Where respondent applied to set aside second interim award pursuant to s 34(2)(a)(iii) of Commercial Arbitration Act 2012 (WA) on ground beyond scope of parties’ submission to arbitration – Where Court of Appeal dismissed appeal – Whether Court of Appeal erred finding arbitral tribunal functus officio with respect to Contract Criteria Case for purpose of s 34(2)(a)(iii) – Whether Court erred finding standard of supervisory court’s review of scope of parties’ submission to arbitration in application to set aside arbitral award under s 34(2)(a)(iii) is de novo review in which supervisory court applies "correctness" standard of intervention.
Appealed from WASC (CA): [2023] WASCA 1
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Bankruptcy
Morgan & Ors v McMillan Investment Holdings Pty Ltd & Anor
S119/2023: [2023] HCATrans 122
Date heard: 15 September 2023 – Special leave granted
Catchwords:
Bankruptcy – Pooling order – Corporations Act 2001 (Cth), s 579E – Meaning of "particular property" – Where first applicant is liquidator of second and third applicants – Where first applicant sought order before primary judge that, inter alia, Australian Securities and Investments Commission ("ASIC") reinstate registration of third applicant, and Court make pooling order pursuant to s 579E of Corporations Act in respect of second and third applicants – Where primary judge made orders that ASIC reinstate registration of third applicant, and that second and third applicants be pooled group for purpose of s 579E of Corporations Act – Where first respondent appealed to Full Court on question of whether pooling order should be set aside – Where Full Court found precondition in s 570E(1)(b)(iv) of Corporations Act not satisfied – Whether Full Court majority erred in finding precondition in s 579E(1)(b)(iv) of Corporations Act not satisfied in circumstances where second and third applicants jointly and severally owned "particular property", being chose in action, at time of making pooling order, being immediately following reinstatement of third applicant – Whether Full Court majority impermissibly departed from clear and unambiguous language of s 601AH(5) of Corporations Act.
Appealed from FCA (FC): [2023] FCAFC 9; (2023) 295 FCR 543; (2023) 407 ALR 328; (2023) 164 ACSR 129
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Civil Procedure
RC v The Salvation Army (Western Australia) Property Trust
P7/2023: [2024] HCASL 12
Date determined: 8 February 2024 – Application for special leave to appeal referred to Full Court as if on appeal
Catchwords:
Civil procedure – Permanent stay of proceedings – Prejudice – Where appellant claimed damages with respect to loss and damage suffered as result of sexual abuse by Salvation Army Officer between August 1959 and April 1960, when appellant aged 12 and 13 years old, while in care of respondent – Where Salvation Army Officer died in 2006, eight years before respondent first became aware appellant alleged sexual abuse – Where another key witness died in 1968 – Where respondent applied for permanent stay of proceedings – Where primary judge granted permanent stay – Where appellant unsuccessfully appealed to Court of Appeal – Whether Court of Appeal erred in concluding open to primary judge to grant permanent stay of appellant's action against respondent – Whether Court of Appeal erred in upholding finding of prejudice.
Appealed from WASC (CA): [2023] WASCA 29
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Willmot v The State of Queensland
B65/2023: [2023] HCATrans 155
Date determined: 9 November 2023 – Special leave granted
Catchwords:
Civil procedure – Stay of proceedings – Where appellant claimed damages as result of physical and sexual abuse which she claimed she suffered whilst State Child pursuant to State Children Act 1911 (Qld) and under control of respondent by virtue of Aboriginals Protection and Restriction of the Sale of Opium Act 1897 (Qld) – Where alleged perpetrators either deceased or in case of NW, 78 year old man who was 16 at time of alleged conduct – Where trial judge held case in exceptional category where permanent stay warranted – Where Court of Appeal upheld trial judge’s decision – Whether Court of Appeal erred in determining trial judge did not err in exercise of discretion to grant permanent stay of applicant’s proceeding.
Appealed from QLDSC (CA): [2023] QCA 102
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Constitutional Law
Attorney-General for the State of Tasmania v Casimaty & Anor
H3/2023: [2023] HCATrans 139
Date heard: 13 October 2023 – Special leave granted
Catchwords:
Constitutional law – Legislature – Privileges – Privilege of parliamentary debate and proceedings – Admissibility of report of parliamentary committee – Where proceedings concern road works at intersection – Where first respondent claims to hold interest in land at intersection – Where proposal by Department of State Growth to upgrade intersection considered and reported upon by Parliamentary Standing Committee on Public Works ("Committee") in 2017 – Where second respondent engaged to construct new interchange – Where first respondent claims that works that second respondent was to perform not same as public works considered and reported upon by Committee – Where Attorney-General joined as second defendant and applied to, inter alia, strike out parts of statement of claim as offending parliamentary privilege – Where primary judge found cause of action could not proceed without court adjudicating upon 2017 report of Committee, which would contravene Article 9 of Bill of Rights – Where Full Court dismissed Attorney-General’s interlocutory application – Whether Full Court erred in construing s 15 and s 16 of Public Works Committee Act 1914 (Tas) ("PWC Act") as creating public obligation which falls outside parliamentary process and hence ambit of parliamentary privilege – Whether it would infringe parliamentary privilege for court to determine whether road works complied with s 16(1) of PWC Act by adjudicating upon whether road works that second respondent were engaged to undertake were different from road works reported on by Committee.
Appealed from TASSC (FC): [2023] TASFC 2
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Commonwealth of Australia v Yunupingu (on behalf of the Gumatj Clan or Estate Group) & Ors
D5/2023: [2023] HCATrans 143
Date determined: 19 October 2023 – Special leave granted
Catchwords:
Constitutional law – Constitution, s 51(xxxi) – Acquisition of property on just terms – Extinguishment of native title – Where principal proceeding is application for compensation under Native Title Act 1993 (Cth) for alleged effects of grants or legislative acts on native title in period after Northern Territory became territory of Commonwealth in 1911 and before enactment of Northern Territory Self-Government Act 1978 (Cth) – Whether Full Court erred by failing to find that just terms requirement contained in s 51(xxxi) of Constitution does not apply to laws enacted pursuant to s 122 of Constitution, including Northern Territory (Administration) Act 1910 (Cth) and Ordinances made thereunder – Whether Wurridjal v Commonwealth (2009) 237 CLR 309 should be re-opened – Whether Full Court erred in failing to find that, on facts set out in appellant’s statement of claim, neither vesting of property in all minerals on or below surface of land in claim area in Crown, nor grants of special mineral leases capable of amounting to acquisitions of property under s 51(xxxi) of Constitution because native title inherently susceptible to valid exercise of Crown’s sovereign power to grant interests in land and to appropriate to itself unalienated land for Crown purposes.
Native title – Extinguishment – Reservations of minerals – Whether Full Court erred in failing to find that reservation of "all minerals" from grant of pastoral lease "had the consequence of creating rights of ownership" in respect of minerals in Crown, such that Crown henceforth had right of exclusive possession of minerals and could bring an action for intrusion.
Appealed from FCA (FC): [2023] FCAFC 75; (2023) 298 FCR 160; (2023) 410 ALR 231
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JZQQ v Minister for Immigration, Citizenship and Multicultural Affairs & Anor
B64/2023: [2024] HCASL 42
Date determined: 7 March 2024 – Special leave granted
Catchwords:
Constitutional law – Judicial power of Commonwealth – Direction principle – Where appellant born in Somalia and granted refugee status in New Zealand – Where appellant convicted of intentionally causing injury and making threats to kill and sentenced to aggregate term of 15 months imprisonment – Where appellant's Australian visa cancelled on basis he failed character test in s 501 of Migration Act 1958 (Cth) – Where Administrative Appeals Tribunal ("Tribunal") affirmed non-revocation decision and concluded appellant did not pass character test – Where appellant lodged originating motion in Federal Court seeking judicial review – Where appellant released from immigration detention following Pearson v Minister for Home Affairs (2022) 295 FCR 177 ("Pearson") – Where Full Federal Court in Pearson held aggregate sentence does not fall within s 501(7)(c) – Where appellant amended originating application raising Pearson ground – Where Migration Amendment (Aggregate Sentences) Act 2023 (Cth) ("Amending Act") amended Migration Act with retrospective effect to treat aggregate sentence as equivalent to sentence for single offence for purposes of s 501(7)(c) – Where appellant re-detained under Amending Act – Where Full Court held Tribunal's decision and Amending Act valid – Whether Amending Act beyond legislative power of Commonwealth Parliament by directing courts as to conclusions they should reach in exercise of their jurisdiction – Whether Amending Act denies court exercising jurisdiction under, or derived from, s 75(v) of Constitution, ability to enforce limits which Parliament has expressly or impliedly set on decision-making power.
Immigration – Visas – Cancellation – Application for judicial review –
– Whether decision made by Tribunal under s 43 of Administrative Appeals Tribunal Act 1975 (Cth) capable of meeting Amending Act’s description of decision made "under" Migration Act – Whether appellant's aggregate sentence of 15 months’ imprisonment is "term of imprisonment of 12 months or more" within meaning of s 501(7)(c) of Migration Act 1958.
Appealed from FCA (FC): [2023] FCAFC 168; (2023) 413 ALR 620
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State of New South Wales v Wojciechowska & Ors
S110/2023: [2024] HCASL 63
Date determined: 7 March 2024 – Special leave granted with undertakings
Catchwords:
Constitutional law – Judicial Power of Commonwealth – Where first respondent resided in Tasmania – Where first respondent commenced various proceedings in New South Wales Civil and Administrative Tribunal ("Tribunal") against third and fourth respondents, emanations of State of New South Wales – Where first respondent sought review of various decisions and conduct under Government Information (Public Access) Act 2009 (NSW) ("GIPA Act") and Privacy and Personal Information Protection Act1998 (NSW) ("PPIP Act") – Where claim included claim for damages under s 52(2)(a) PPIP Act – Where first respondent challenged jurisdiction of Tribunal on basis functions performed by Tribunal when determining administrative review applications under GIPA Act and PPIP Act involved exercise of judicial power – Where Court of Appeal held determining administrative review under GIPA Act did not involve exercise of judicial power – Where Court of Appeal held determination of application for damages under s 55(2)(a) of PPIP Act brought by out-of-state resident would involve Tribunal exercising judicial power of Commonwealth – Whether Burns v Corbett (2018) 265 CLR 304 applies to exercise of non-judicial power – Whether Court of Appeal erred in holding Tribunal, when performing at instance of out-of-State resident claiming damages review of public sector agency conduct under Pt 5 of PPIP Act and Administrative Decisions Review Act 1997 (NSW) exercises Commonwealth judicial power.
Courts – State tribunals – Jurisdiction.
Appealed from NSWSC (CA): [2023] NSWCA 191
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Tapiki v Minister for Immigration, Citizenship and Multicultural Affairs
P23/2023: [2024] HCASL 43
Date determined: 7 March 2024 – Special leave granted
Catchwords:
Constitutional law – Judicial power of Commonwealth – Usurpation or interference with Commonwealth judicial power – Where appellant New Zealand national – Where appellant's Australian visa purportedly cancelled under s 501(3A) of Migration Act 1958 (Cth) – Where appellant sentenced to 12 months' imprisonment imposed in September 2020 – Where delegate considered appellant had "been sentenced to a term of imprisonment of 12 months or more" within meaning of s 501(7)(c) – Where appellant unsuccessfully sought revocation of cancellation – Where Administrative Appeals Tribunal ("Tribunal") affirmed non-revocation decision – Where appellant released from immigration detention following decision in Pearson v Minister for Home Affairs (2022) 295 FCR 177 ("Pearson") – Where appellant succeeded in Full Federal Court on appeal and in original jurisdiction, declaring Tribunal's decision and cancellation decision invalid – Where following Pearson, Migration Amendment (Aggregate Sentences) Act 2023 (Cth) ("Amending Act") enacted – Where appellant taken back into immigration detention after commencement of Amending Act – Where appellant commenced proceedings in original jurisdiction of Federal Court for declaration items 4(3), 4(4) and 4(5)(b)(i) of Amending Act invalid, and writ of habeas corpus – Where Full Court dismissed application – Whether Full Court erred in not finding relevant items of Amending Act invalid usurpation or interference with judicial power of Commonwealth by reversing or dissolving effect of orders made by Chapter III court.
Constitutional law – Powers of Commonwealth Parliament – Acquisition of property on just terms – Whether Full Court erred in not finding relevant item of Amending Act effectuated acquisition of property other than on just terms contrary to s 51(xxxi) of Constitution by extinguishing cause of action for false imprisonment.
Appealed from FCA (FC): [2023] FCAFC 167; (2023) 413 ALR 605
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Criminal Law
Dayney v The King
B69/2023: [2023] HCATrans 174
Date heard: 21 November 2023 – Special leave granted
Catchwords:
Criminal law – Appeal against conviction – Self-defence against provoked assault – Criminal Code (Qld), s 272 – Where appellant involved in violent altercation resulting in death of another individual – Where appellant convicted of murder – Where appellant successfully appealed conviction – Where s 272 of Criminal Code (Qld) affords defence of self-defence against provoked assault – Where majority in first appeal held final clause of s 272(2) ousts protection afforded by s 271(1) only where force used in self-defence results in death or grievous bodily harm – Where minority held final clause of s 272(2) applies to modify effect of first two clauses in s 272(2) – Where jury in retrial directed in accordance with majority’s interpretation of s 272 and appellant convicted of murder – Where appellant appeals second time on ground minority’s interpretation of s 272(2) in first appeal is correct and decision of majority plainly wrong – Whether Court of Appeal erred in holding final clause of s 272(2) constitutes standalone exception to protection afforded by self-defence against provoked assault – Proper meaning of "before such necessity arose".
Appealed from QLDSC (CA): [2023] QCA 62
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The King v Hatahet
S37/2024: [2024] HCASL 68
Date determined: 7 March 2024 – Special leave granted
Catchwords:
Criminal law – Sentencing – Terrorism offences – Parole only available in exceptional circumstances – Manifestly excessive – Crimes Act 1914 (Cth), s 19ALB – Where respondent sentenced to imprisonment of 5 years with non-parole period of 3 years for engaging in hostile activity in foreign country – Where respondent successfully appealed sentence on basis aggregate sentence manifestly excessive – Where Court of Criminal Appeal resentenced respondent to imprisonment of 4 years with non-parole period of 3 years – Where s 19ALB inserted into Crimes Act by Counter-Terrorism Legislation Amendment (2019 Measures No 1) Act 2019 (Cth) – Where s 19ALB provides "the Attorney-General must not make a parole order... unless the Attorney-General is satisfied that exceptional circumstances exist to justify making a parole order" – Whether in sentencing for offence to which s 19ALB applies court should or may take into account effect of s 19ALB and unlikelihood of parole – Whether Court of Criminal Appeal erred in concluding sentencing judge committed error in principle in not considering s 19ALB of Crimes Act in sentencing respondent – Whether Court of Criminal Appeal erred in concluding expectation and/or fact parole would be refused due to s 19ALB of Crimes Act warranted imposition of lesser sentence than imposed by sentencing judge.
Appealed from NSWSC (CCA): [2023] NSWCCA 305
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The King v ZT
S38/2024: [2024] HCASL 49
Date determined: 7 March 2024 – Special leave granted
Catchwords:
Criminal law – Appeal against conviction – Unreasonable verdict – Joint criminal enterprise – Where respondent found guilty at trial of party to murder – Where case against him founded upon series of admissions made as to involvement in killing – Where respondent's accounts numerous and inconsistent – Where respondent successfully appealed conviction to Court of Criminal Appeal on ground jury's verdict unreasonable – Where Court of Criminal Appeal majority found admissions not sufficiently reliable to establish guilt beyond reasonable doubt – Whether Court of Criminal Appeal majority erred in concluding jury enjoyed no relevant or significant advantage over appellate court – Whether Court of Criminal Appeal majority erred in its application of test in M v The Queen (1994) 181 CLR 487.
Appealed from NSWSC (CCA): [2023] NSWCCA 241
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Criminal Practice
Director of Public Prosecutions v Smith
M16/2024: [2024] HCASL 26
Date determined: 8 February 2024 – Special leave granted
Catchwords:
Criminal practice – Open justice – Where respondent faces trial in County Court of Victoria on indictment charging them with four child sexual offences – Where child complainant gave evidence at special hearing conducted pursuant to s 370 of Criminal Procedure Act 2009 (Vic) ("CPA") – Where day prior to special hearing, presiding judge met with complainant in presence of both prosecutor and defence counsel at offices of Child Witness Service – Where respondent's counsel did not object to introductory meeting and judge made directions for fair and efficient conduct of proceeding pursuant to s 389E of CPA, having regard to recommendations made by intermediary – Where introductory meeting not recorded and accused not present – Whether Court of Appeal erred in finding introductory meeting between child complainant, presiding judge, prosecutor and defence counsel prior to special hearing at which complainant gave evidence, not authorised by s 389E of CPA – Whether Court of Appeal erred in finding introductory meeting inconsistent with principle of open justice – Whether Court of Appeal erred in finding introductory meeting fundamental irregularity in respondent’s trial that could not be waived.
Appealed from VSC (CA): [2023] VSCA 293
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Damages
Commonwealth of Australia v Sanofi (formerly Sanofi-Aventis) & Ors
S169/2023: [2023] HCATrans 184
Date heard: 18 December 2023 – Special leave granted
Catchwords:
Damages – Patent litigation – Compensation for loss flowing from interlocutory injunction – Where respondent held patent for clopidogrel – Where interlocutory injunction obtained restraining generic supplier from entering market – Where generic supplier undertook not to seek Pharmaceutical Benefits Scheme ("PBS") listing – Where respondent undertook to compensate persons adversely affected by injunction – Where respondent's patent subsequently found invalid – Where Commonwealth sought recovery of additional subsidies provided to respondent due to non-listing of generic clopidogrel – Where primary judge dismissed Commonwealth's application, and Full Court dismissed appeal by Commonwealth – Whether Full Court erred in failing to hold Commonwealth’s evidential burden was to establish prima facie case that its loss flowed directly from interlocutory injunction with evidential burden shifted to respondents to establish that generic supplier would not have sought listing on PBS even if not enjoined – Whether Full Court erred in failing to hold Commonwealth discharged its evidential burden but respondents did not – Whether Full Court erred in failing to find, by inference from evidence, that in absence of interlocutory injunction, it was likely that Dr Sherman would have reconfirmed plan to seek PBS listing.
Appealed from FCA (FC): [2023] FCAFC 97; (2023) 411 ALR 315; (2023) 174 IPR 66
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Elisha v Vision Australia Ltd
M22/2024: [2024] HCASL 60
Date determined: 7 March 2024 – Special leave granted
Catchwords:
Damages – Contract – Breach – Psychiatric injury – Where appellant entered employment contract with respondent – Where during hotel stay while performing his work duties, appellant involved in incident with hotel proprietor – Where appellant's employment terminated for alleged "serious misconduct" – Where appellant developed major depressive disorder, which trial judge found caused by dismissal – Where appellant sued for damages, claiming alleged breaches of due process provision contained in clause 47.5 of Vision Australia Unified Enterprise Agreement 2013 and respondent's "disciplinary procedure" – Where appellant claimed respondent's duty of care extended to discipline and termination procedures – Where at trial, appellant succeeded in contract and failed in negligence – Where Court of Appeal held respondent did not owe alleged duty of care, and affirmed trial judge's finding in respect of contract claim – Whether Court of Appeal erred in concluding damages for psychiatric injury suffered by appellant not recoverable for breach of contract.
Tort – Negligence – Duty of care owed by employers – Whether Court of Appeal erred in concluding respondent did not owe duty to take reasonable care to avoid injury to appellant in its implementation of processes leading to and resulting in termination of his employment.
Appealed from VSC (CA): [2023] VSCA 265; [2023] VSCA 288
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Equity
Naaman v Jaken Properties Australia Pty Limited ACN 123 423 432 & Ors
S26/2024: [2024] HCASL 21
Date determined: 8 February 2024 – Special leave granted
Catchwords:
Equity – Fiduciary duty – Fiduciary duty between former and successor trustees – Duties of trustees – Where first respondent successor trustee – Where second respondent sole director and shareholder of former trustee – Where former trustee appointed in June 2005 – Where in November 2006, appellant commenced proceedings against former trustee seeking damages of $2 million – Where first respondent replaced former trustee by way of deed of appointment – Where former trustee promised indemnity from first respondent as successor trustee – Where former trustee wound up because of claim for $2,500, with effect appellant's pending proceedings stayed – Where legal title to trust assets transferred to first respondent as trustee – Where on March 2014, default judgment entered in favour of appellant against former trustee – Where judgment set aside by consent, and proceedings reheard in December 2014 – Where on 25 February 2016, primary judge made orders entering judgment for appellant against former trustee in amount of $3.4 million and declared former trustee entitled to be indemnified out of trust assets – Where in meantime, trust assets dissipated by first respondent at discretion of third respondent – Where other respondents either knowingly involved in conduct or received trust property – Where primary judge found first respondent breached fiduciary duties, and other respondents either knowingly involved in the conduct or received trust property – Where Court of Appeal majority held first respondent did not owe fiduciary obligation at any time – Whether Court of Appeal majority erred in concluding first respondent as successor trustee did not owe fiduciary duty to former trustee not to deal with trust assets so as to destroy, diminish or jeopardise former trustee’s right of indemnity or exoneration from those assets.
Appealed from NSWSC (CA): [2023] NSWCA 214
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Evidence
BQ v The King
S173/2023: [2023] HCASL 214
Date determined: 7 December 2023 – Special leave granted on limited grounds
Catchwords:
Evidence – Admissibility of expert evidence – Where complainants two sisters and nieces of appellant – Where appellant convicted at second trial of child sexual assault offending – Where Crown sought to rely on evidence from Associate Professor Shackel with respect to (a) how victims of child sexual assault respond to and disclose their victimisation and (b) matters relevant to complainants’ conduct during and after alleged assaults and whether such conduct consistent with research – Where trial judge ruled evidence in respect of (a) admissible but refused to admit evidence in respect of (b) – Whether Court of Criminal Appeal erred in holding expert evidence concerning behaviour of perpetrators of child sexual assault offences, risk factors for sexual abuse and when abuse commonly takes place admissible as expert opinion evidence and occasioned no miscarriage of justice in trial – Whether Court erred in holding that trial judge’s directions to jury in respect of expert evidence adequate and did not occasion miscarriage of justice.
Appealed from NSW (CCA): [2023] NSWCCA 34
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Cook (A Pseudonym) v The King
S158/2023: [2023] HCATrans 169
Date heard: 21 November 2023 – Special leave granted
Catchwords:
Evidence – Admissibility of evidence about complainant’s sexual experience or activity – Temporal limitations – Where appellant convicted of sexual offences against child – Where issue arose prior to trial regarding admissibility of evidence relating to complainant’s complaint of sexual assault by another member of her family – Where common ground evidence of other offences probative and appellant sought to adduce the evidence in their defence – Where s 293 of Criminal Procedure Act 1986 (NSW) provides evidence of sexual experience inadmissible subject to exceptions – Where trial judge ruled evidence of other offences inadmissible in appellant’s trial – Whether Court of Criminal Appeal erred in constructing s 293(4) – Whether Court erred in holding permissible to mislead jury by cross-examination in order to attempt to counteract unfairness occasioned by exclusion of s 293 evidence – Whether Court erred in ordering appellant be retried – Whether Court erred in refusing to stay proceedings.
Appealed from NSW (CCA): [2022] NSWCCA 282
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MDP v The King
B72/2023: [2023] HCASL 215
Date determined: 7 December 2023 – Special leave granted
Catchwords:
Evidence – Propensity evidence – Miscarriage of justice – Where appellant convicted of various child sexual assault and domestic violence offences against former partner’s daughter – Where evidence included evidence from complainant’s sister that appellant smacked complainant on bottom – Where trial judge directed jury if they accepted bottom slapping evidence was true, and that it displayed sexual interest of appellant in complainant beyond reasonable doubt, they could use it to reason that it was more likely that offences occurred – Where Court of Appeal found bottom slapping evidence did not meet test for admissibility of propensity evidence – Where Court of appeal found evidence admissible under s 132B of Evidence Act 1977 (Qld) ("evidence of domestic violence") – Whether Court of Appeal erred holding that no miscarriage of justice occurred when evidence inadmissible as propensity evidence was nonetheless left to jury to be used as propensity evidence.
Appealed from QLDSC (CA): [2023] QCA 134
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Steven Moore (a pseudonym) v The King
M23/2024: [2024] HCASL 53
Date determined: 7 March 2024 – Special leave granted
Catchwords:
Evidence – Criminal trial – Hearsay – Exclusion of prejudicial evidence – Where appellant charged with seven violent offences and pleaded not guilty – Where appellant accepted he was at complainant's house and engaged in argument, but denied any violence on his part – Where Crown case relies in large part on complainant's account – Where complainant passed away in circumstances unconnected to allegations – Where Crown relied on hearsay rule in s 65 of Evidence Act 2008 (Vic) to adduce representations made by complainant – Where prosecution's notice of intention to adduce hearsay evidence referred to large number of representations by complainant to various people – Where appellant objected to admission of evidence – Where trial judge ruled 67 of 70 previous representations admissible – Where appellant unsuccessfully appealed interlocutory decision to Court of Appeal – Whether Court of Appeal applied wrong standard of review on interlocutory appeal from ruling on admissibility of evidence under s 137 of Evidence Act 2008 (Vic) – Whether Court of Appeal erred in assessing "danger of unfair prejudice to the accused" of admitting evidence.
Appealed from VSC (CA): [2023] VSCA 236
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Native Title
Stuart & Ors v State of South Australia & Ors
A1/2024: [2024] HCASL 10
Date determined: 8 February 2024 – Special leave granted
Catchwords:
Native title – Extinguishment – Proper construction of "native title" in s 223(1) Native Title Act 1993 (Cth) ("NTA") – Overlapping claims – Where appellants together comprise applicant in native title determination under s 61 of NTA made on behalf of Arabana people in March 2013 over area in vicinity of township of Oodnadatta in South Australia – Where over subsequent five years different claim group, Walka Wani people, made two claims concerning same area ("overlap area") – Where in January 1998 Arabana made claim over area abutting overlap area, resulting in consent determination in 2012 in favour of Arabana in Dodd v State of South Australia [2012] FCA 519 ("Dodd") – Where overlap area omitted from 1998 claim area because Arabana believed different accommodation of their rights in overlap area would be made by state government – Where primary judge dismissed Arabana claim and made determination of native title in favour of Walka Wani – Where appellants unsuccessfully appealed orders dismissing Arabana Claim to Full Court – Whether Full Court majority erred by not finding trial judge failed to correctly construe and apply definition of "native title" in s 223(1) when dismissing Arabana’s native title determination application – Whether Full Court erred by treating all aspects of determination in Dodd as being geographically specific.
Appealed from FCA (FC): [2023] FCAFC 131; (2023) 412 ALR 407
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Taxation
Automotive Invest Pty Limited v Commissioner of Taxation
S170/2023: [2023] HCASL 200
Date determined: 7 December 2023 – Special leave granted
Catchwords:
Taxation – Luxury car tax – Goods and services tax – A New Tax System (Luxury Car Tax) Act 1999 (Cth) ("LCT Act") – Where appellant operated business called "Gosford Classic Car Museum" – Where museum displayed motor vehicles – Where displayed motor vehicles also generally available for sale and were trading stock – Where LCT Act is single stage tax imposed on supply or importation of "luxury cars" where value exceeds "luxury car tax threshold" – Proper test for non-application of LCT Act – Whether LCT Act to be read and construed by reference to underlying legislative policy – Whether whole of s 9-5(1) determinative of whether appellant subject to increasing adjustment under charging provisions in ss 15-30(3)(c) and 15-35(3)(c) – Whether Full Court majority erred in concluding because LCT Act does not define "retail" sale there was no basis for importing into s 9-5(1)(a) "the idea of taking only a ‘retail sale’".
Appealed from FCA (FC): [2023] FCAFC 129; (2023) 299 FCR 288
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Trade Practices
Capic v Ford Motor Company of Australia Pty Ltd ACN 004 116 223
S25/2024: [2024] HCASL 27
Date determined: 13 February 2024 – Special leave granted
Catchwords:
Trade Practices – Consumer law – Measure of damages for failure to comply with guarantee of acceptable quality – Where appellant brought representative proceedings under Part IVA of Federal Court of Australia Act 1976 (Cth) in respect of Ford-badged motor vehicles fitted with DPS6 dual-clutch transmission system ("affected vehicles") – Where primary judge found affected vehicles supplied in breach of guarantee of acceptable quality under s 25 of Australian Consumer Law – Where primary judge held damages under s 272(1) requires assessment of reduction in value only at time of supply – Where Full Court found in order to avoid overcompensation under s 272(1)(a), it may be necessary to depart from date of supply as reference state for statutory reduction in value damages – Where Full Court held post-supply information may be relevant – Whether Full Court erred in construing s 272(1)(a) as subject to qualification that assessment of damages may require departure from assessment at time of supply or adjustment to avoid over-compensation – Whether s 272(1)(a) permits, and for what purpose, evidence of post-supply events to be used when assessing statutory compensation under the provision.
Appealed from FCA (FC): [2023] FCAFC 179
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Toyota Motor Corporation Australia Limited (ACN 009 686 097) v Williams & Anor; Williams & Anor v Toyota Motor Corporation Australia Limited (ACN 009 686 097)
S155/2023; S157/2023: [2023] HCATrans 162
Date heard: 17 November 2023 – Special leave granted
Catchwords:
Trade Practices – Consumer law – Measure of damages for failure to comply with guarantee of acceptable quality – Where representative proceedings concerned 264,170 Toyota motor vehicles with diesel engines sold to Australian consumers – Where vehicles supplied with defective diesel particulate filter system – Where appellant introduced effective solution known as "2020 field fix" – Where 2020 field fix effective in remedying defect and its consequences in all relevant vehicles – Where primary judge found on "common sense approach" breach of s 54 Australian Consumer Law ("ACL") resulted in reduction in value of all vehicles by 17.5% – Where primary judge ordered reduction in damages under s 272(1)(a) of ACL be awarded to all group members who had not opted out, had not received 2020 field fix and first consumer had not sold it during relevant period – Where Full Court set aside order awarding reduction in value damages and reassessed reduction in value to be 10% before taking into account availability of 2020 field fix – Whether Full Court erred in finding damages for reduction in value recoverable when no ongoing reduction in value due to availability of free repair - Whether Full Court erred in failing to find damages for breach of guarantee of acceptable quality always to be assessed by reference to true value of goods at time of supply - Whether assessment of damages imports discretion exercisable under standard of appropriateness to assess reduction in value of goods at some later time or make adjustment downwards to reflect future event unknown at date of supply.
Appealed from FCA (FC): [2023] FCAFC 50; (2023) 296 FCR 514; (2023) 408 ALR 582
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7: Cases Not Proceeding or Vacated
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8: Special Leave Refused
Publication of Reasons: 7 March 2024 (Canberra)
| No. |
| Respondent | Court appealed from | Result |
| 1. | Wynn | Danilov & Anor | Federal Circuit and Family Court of Australia (Division 1) | Special leave refused |
| 2. | In the matter of an application by William Anicha Bay for leave to appeal (B62/2023) | High Court of Australia | Leave refused [2024] HCASL 29 | |
| 3. | Guss | Larkfield Industrial Estates Pty Ltd (M74/2023) | Federal Court of Australia [2023] FCA 1105 | Special leave refused [2024] HCASL 30 |
| 4. | Austin | Dwyer & Ors (M95/2023) | Supreme Court of Victoria (Court of Appeal) [2023] VSCA 227 | Special leave refused [2024] HCASL 31 |
| 5. | Carevic | Carevic (S132/2023) | Federal Circuit and Family Court of Australia (Division 1) Appellate Jurisdiction | Special leave refused with costs [2024] HCASL 32 |
| 6. | Wilczynski & Anor | District Court of South Australia & Ors (A14/2023) | Supreme Court of South Australia (Court of Appeal) [2023] SASCA 82 | Special leave refused [2024] HCASL 33 |
| 7. | Miglani | Minister for Immigration, Citizenship and Multicultural Affairs & Anor (M75/2023) | Federal Court of Australia (Unreported) | Special leave refused [2024] HCASL 34 |
| 8. | Yenuga | Attorney General of NSW & Anor (S129/2023) | Supreme Court of New South Wales (Court of Appeal) [2023] NSWCA 227 | Special leave refused [2024] HCASL 35 |
| 9. | In the matter of an application by JE for leave to appeal (S148/2023) | High Court of Australia | Leave refused [2024] HCASL 36 | |
| 10. | Cheadle | Pointer & Anor (S159/2023) | Federal Circuit and Family Court of Australia (Division 1) Appellate Jurisdiction | Special leave refused [2024] HCASL 37 |
| 11. | BCK21 | Minister for Immigration, Citizenship and Multicultural Affairs & Anor | Federal Court of Australia | Special leave refused |
| 12. | Caspersz | Garry & Warren Smith Pty Ltd (ACN 004 753 333) & Ors (M91/2023) | Supreme Court of Victoria (Court of Appeal) [2023] VSCA 264 | Special leave refused [2024] HCASL 39 |
| 13. | Hobart | Medical Board of Australia (M94/2023) | Supreme Court of Victoria (Court of Appeal) [2023] VSCA 270 | Special leave refused [2024] HCASL 40 |
| 14. | Macatangay | State of New South Wales (S136/2023) | Supreme Court of New South Wales (Court of Appeal) [2023] NSWCA 238 | Special leave refused [2024] HCASL 41 |
| 15. | Corporation of the Roman Catholic Diocese of Toowoomba ABN 88 934 244 646 & Anor | Murtagh & Ors (B66/2023) | Full Court of the Federal Court of Australia [2023] FCAFC 172 | Special leave refused [2024] HCASL 44 |
| 16. | Ibrahim | Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor (B68/2023) | Full Court of the Federal Court of Australia [2023] FCAFC 173 | Special leave refused with costs [2024] HCASL 45 |
| 17. | Vuolo | Fall (C14/2023) | Supreme Court of the Australian Capital Territory (Court of Appeal) [2023] ACTCA 33 | Special leave refused [2024] HCASL 46 |
| 18. | Jess Jnr & Ors | Jess & Ors (M89/2023) | Federal Circuit and Family Court of Australia (Division 1) Appellate Jurisdiction | Special leave refused with costs [2024] HCASL 47 |
| 19. | AS | The King (S99/2023) | Supreme Court of New South Wales (Court of Criminal Appeal) [2022] NSWCCA 291 | Special leave refused [2024] HCASL 48 |
| 20. | Alamdo Holdings Pty Limited ACN 003 309 206 | Croc's Franchising Pty Ltd ACN 158 241 911 & Ors (S146/2023) | Supreme Court of New South Wales (Court of Appeal) [2023] NSWCA 286 | Special leave refused with costs [2024] HCASL 50 |
| 21. | BEB | The King | Supreme Court of Queensland | Special leave refused |
| 22. | Sherrington | Independent Commissioner Against Corruption & Ors (D6/2023) | Supreme Court of the Northern Territory (Court of Appeal) [2023] NTCA 11 | Special leave refused with costs [2024] HCASL 52 |
| 23. | Mr B Saklani | Ms Valder & Ors (S127/2023) | Federal Circuit and Family Court of Australia (Division 1) Appellate Jurisdiction | Special leave refused with costs [2024] HCASL 54 |
| 24. | Kazal & Anor | Thunder Studios Inc (California) & Anor (S156/2023) | Full Court of the | Special leave refused with costs [2024] HCASL 56 |
| 25. | Elliott | The King (B45/2023) | Supreme Court of Queensland (Court of Appeal) [2023] QCA 138 | Special leave refused [2024] HCASL 57 |
| 26. | Fisher | Commonwealth of Australia & Ors (M59/2023) | Full Court of the Federal Court of Australia [2023] FCAFC 106 | Special leave refused with costs [2024] HCASL 58 |
| 27. | Fisher | Commonwealth of Australia & Ors (M86/2023) | Full Court of the Federal Court of Australia [2023] FCAFC 181 | Special leave refused with costs [2024] HCASL 59 |
| 28. | Marrell | The State of Western Australia (P21/2023) | Supreme Court of Western Australia (Court of Appeal) [2023] WASCA 139 | Special leave refused [2024] HCASL 61 |
| 29. | MK | The King (S103/2023) | Supreme Court of New South Wales (Court of Criminal Appeal) [2023] NSWCCA 180 | Special leave refused [2024] HCASL 62 |
| 30. | RB | The King (S112/2023) | Supreme Court of New South Wales (Court of Criminal Appeal) [2023] NSWCCA 180 | Special leave refused [2024] HCASL 64 |
| 31. | RB | The King (S113/2023) | Supreme Court of New South Wales (Court of Criminal Appeal) [2022] NSWCCA 142 | Special leave refused [2024] HCASL 65 |
| 32. | Lieschke | Lieschke & Ors | Supreme Court of | Special leave refused with costs |
| 33. | Plaintiff S111A/2018 | Director-General of Security & Ors (S31/2023) | Full Court of the Federal Court of Australia [2023] FCAFC 33 | Special leave refused with costs [2024] HCASL 67 |
| 34. | Gebregiorgis | Director of Public Prosecutions & Anor (M58/2023) | Supreme Court of Victoria (Court of Appeal) [2023] VSCA 166 | Special leave refused [2024] HCASL 69 |
| 35. | Kassa | Director of Public Prosecutions & Anor (M61/2023) | Supreme Court of Victoria (Court of Appeal) [2023] VSCA 166 | Special leave refused [2024] HCASL 70 |
0
152
0