High Court Bulletin
[2010] HCAB 3
High Court Bulletin
Produced by the High Court of Australia Library
[2010] HCAB 3 (6 April 2010)
A record of recent High Court of Australia cases: decided, reserved for judgment, awaiting hearing in the Court’s original jurisdiction, granted special leave to appeal, refused special leave to appeal and not proceeding or vacated.
1: Cases Handed Down
2: Cases Reserved
3: Original Jurisdiction
4: Special Leave Granted
5: Cases Not Proceeding or Vacated
6: Special Leave Dismissed
1: Cases Handed Down
The following cases were handed down by the High Court of Australia during the Late March 2010 sittings.
Commissioner of Taxation v Bamford & Ors; Bamford & Anor v Commissioner of Taxation & Anor
High Court of Australia: [2010] HCA 10.
Judgment delivered: 30 March 2010.
Coram: French CJ, Gummow, Hayne, Heydon and Crennan JJ.
Catchwords:
Income tax — Income of trust estate — Assessable income of beneficiary — Income Tax Assessment Act 1936 (Cth) (“the Act”), s 97(1) provided that where beneficiary presently entitled to “a share of the income of the trust estate”, assessable income of beneficiary included “that share of the net income of the trust estate” — Beneficiaries entitled to specific amounts of distributable income — One beneficiary also entitled to residue of distributable income — Disparity between net income and distributable income — Meaning of “that share of the net income” in s 97(1)(a)(i) of the Act — Whether beneficiaries to be assessed by reference to their proportion of distributable income or specific amounts.
Income tax — Income of trust estate — Trustee determined, pursuant to deed of settlement, net capital gain to be treated as distributable income — Whether net capital gain was “income of the trust estate” under s 97(1) of the Act — Relevance of trustee's determination — Whether “income of the trust estate” income according to trust law or “ordinary concepts” but excluding “statutory income”.
Words and phrases — “income of the trust estate”, “presently entitled”, “that share of the net income of the trust estate”, “trust estate”, “trustee”.
Appealed from FCA FC: [2009] FCAFC 66; (2009) 176 FCR 250.
Wallaby Grip Ltd v QBE Insurance (Australia) Ltd & Anor; Stewart v QBE Insurance (Australia) Ltd & Anor
High Court of Australia: [2010] HCA 9.
Judgment delivered: 30 March 2010.
Coram: French CJ, Gummow, Hayne, Heydon and Kiefel JJ.
Catchwords:
Insurance — Workers' compensation — Workers' Compensation Act 1926 (NSW) (“Act”) s 18(1) required employers to obtain insurance or indemnity policy from insurer in respect of liability for injury to any worker — Act stipulated minimum level of cover in respect of employer's liability independently of Act — General terms and conditions of policy referred to in Act and in Appendix to Workers' Compensation Regulations 1926 (NSW) (“Regulations”) — Where insurance policy lost — Where no evidence as to level of indemnity in policy — Whether any limitation upon indemnity imposed by Act or policy — Whether insurer or insured carries burden of proving limitation upon indemnity.
Statutory construction — Interaction between Act and Regulations — Whether Regulations can be used to construe Act.
Appealed from NSW SC (CA): [2009] NSWCA 66.
2: Cases Reserved
The following cases have been reserved or part heard for judgment by the High Court of Australia.
**** Indicates cases reserved or part heard for judgment since High Court Bulletin 2 [2010] HCAB 2.
Constitutional Law
Cadia Holdings Pty Ltd & Anor v State of New South Wales & Anor
S367/2009: [2010] HCATrans 42.
Date heard: 9 March 2010 — Judgment reserved
Coram: French CJ, Gummow, Hayne, Heydon and Crennan JJ.
Catchwords:
Constitutional law — Prerogative rights of the Crown — Royal mines and minerals — Mine land granted by Crown between 1852-1881 without express reservation of copper — Whether Crown prerogative right to minerals other than gold and silver was dependent upon the Crown being entitled to enter the land in question and remove gold or silver from it — Case of Mines (1568) 1 Plow 310; 75 ER 472 — Royal Mines Act of 1688 (1 Wm & M. c. 30) and 1693 (5 Wm & M. c. 6).
Mining law — Minerals — Ownership of minerals under prerogative — Ownership of mined copper — Whether copper is a privately owned mineral for the purposes of the Mining Act 1992 (NSW).
Statutes — Interpretation — Rules of construction — Imperial statutes — Effect on Crown prerogative — Royal Mines Act of 1688 (1 Wm & M. c. 30) (“1688 Act”) and 1693 (5 Wm & M. c. 6) (“1693 Act”) — Whether repealed 1688 Act can be used in interpretation of 1693 Act.
Words and phrases — “publicly owned mineral”, “royal mine”.
Appealed from NSW SC (CA): [2009] NSWCA 174; (2009) 257 ALR 528.
See also Criminal Law: The Queen v LK; The Queen v RK.
Contract
See Equity: John Alexander’s Clubs Pty Ltd & Anor v White City Tennis Club Ltd; Walker Corporation Pty Ltd v White City Tennis Club Ltd & Ors.
Corporations
****Lehman Brothers Holdings Inc v City of Swan & Ors; Lehman Brothers Asia Holdings Ltd (In Liquidation) v City of Swan & Ors
S1/2010; S362/2009: [2010] HCATrans 6; [2010] HCATrans 7; [2010] HCATrans 82.
Date heard: 9-10 February 2010 — Orders made 30 March 2010 dismissing the appeals. Written reasons of the Court to be published at a future date.
Coram: French CJ, Gummow, Hayne, Heydon and Kiefel JJ.
Catchwords:
Corporations — Deed of company arrangement (“DOCA”) — Validity of clauses in DOCA — Part 5.3A of the Corporations Act 2001 (Cth) (“Act”) — Creditors to company in administration (Lehman Brothers Australia Limited) submitted that the DOCA purported to extinguish their rights to sue Lehman entities not parties to the DOCA and was therefore invalid — Whether creditors may resolve under s 439C(a) that a DOCA, by force of s 44D(1), have the effect of extinguishing creditors’ rights against third parties — Whether provisions of the DOCA, extinguishing creditors’ rights against third parties, were outside the scope of Part 5.3A of the Act — Whether ss 447A, 445D and 600A can apply to permit the Court to authorise provisions in a DOCA that extinguish creditors’ rights against third parties.
Appealed from FCA FC: [2009] FCAFC 130.
Criminal Law
The Queen v LK; The Queen v RK
S162/2009; S163/2009: [2009] HCATrans 310; [2009] HCATrans 312.
Date heard: 1-2 December 2009 — Judgment reserved.
Coram: French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.
Catchwords:
Criminal law — Conspiracy — Fault element — Respondents charged with conspiring to deal with money reckless as to the fact that the money was the proceeds of crime — Section 11.5(2)(b) of the Criminal Code (Cth) provides that for a person to be guilty of the offence of conspiracy, inter alia, ‘the person and at least one other party to the agreement must have intended that an offence would be committed pursuant to the agreement’ — The offence the subject of the alleged conspiracy (dealing with proceeds of crime) provides that a person is guilty of an offence if, inter alia, ‘the person is reckless as to the fact that the money or property is proceeds of crime’: s 400.3(2)(c) — Whether a fault element for the offence of conspiracy is recklessness.
Constitutional law (Cth) — Trial by jury — Section 80 of Constitution provides that the “trial on indictment of any offence against any law of the Commonwealth shall be by jury” — Section 68 of Judiciary Act 1903 (Cth) provides that laws of State respecting procedure for hearing and determination of appeals arising out of trial of persons charged with offences apply “so far as they are applicable to persons who are charged with offences against the laws of the Commonwealth” — Section 107 of Crimes (Appeal and Review) Act 2001 (NSW) provided for an appeal by the prosecution to the Court of Criminal Appeal of the Supreme Court of New South Wales against a directed jury verdict — Whether s 107 contrary to s 80 of Constitution.
Appealed from NSW SC (CCA): [2008] NSWCCA 338.
Hajamaideen Ansari v The Queen; Abdul Ansari v The Queen
S287/2009; S288/2009: [2009] HCATrans 313; [2009] HCATrans 315.
Date heard: 2-3 December 2009 — Judgment reserved.
Coram: French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.
Catchwords:
Criminal law — Conspiracy — Fault element — Recklessness — Appellants charged with conspiring to deal with money where there was a risk that money would become an instrument of crime and were reckless as to that risk: Criminal Code (Cth) ss 11.5, 400.3(2) (“the Code”) — Whether it is not bad law for the Crown under the Code to charge a conspiracy to commit an offence, the fault element of which is recklessness — Whether the physical and fault elements of the offence of conspiracy have been properly characterised.
Appealed from NSW SC (CCA): [2007] NSWCCA 204.
Defamation
Aktas v Westpac Banking Corporation Ltd & Anor
S3/2010: [2010] HCATrans 43.
Date heard: 10 March 2010 — Judgment reserved.
Coram: French CJ, Gummow, Hayne, Heydon and Kiefel JJ.
Catchwords:
Defamation — Defamation defences — Privilege — Qualified privilege — Defamatory imputation in relation to a dishonoured cheque — Respondent dishonoured cheques in error and jury found Respondent’s endorsement “refer to drawer” on cheques conveyed defamatory imputations — Qualified privilege found on basis that Respondent had duty to communicate decision to refuse payment of cheque and payee had interest in receiving communication — Whether a bank who wrongfully refuses payment on a customer’s cheque because of its own mistake, and then communicates that refusal to payee, has protection of common law qualified privilege against a defamation claim — Cheques Act 1986 (Cth).
Appealed from NSW SC (CA): [2009] NSWCA 9.
Equity
****John Alexander’s Clubs Pty Ltd & Anor v White City Tennis Club Ltd; Walker Corporation Pty Ltd v White City Tennis Club Ltd & Ors
S309/2009; S308/2009: [2010] HCATrans 8; [2010] HCATrans 9; [2010] HCATrans 84; [2010] HCATrans 85.
Date heard: 10-11 February 2010, 30-31 March 2010 — Judgment reserved.
Coram: French CJ, Gummow, Hayne, Heydon and Kiefel JJ.
Catchwords:
Equity — Equitable remedies — Constructive trust — Where a claim for unconscionability is based upon the provisions of a contract and a constructive trust is sought, whether the contract must be binding and operative at the time the remedy is granted.
Equity — Constructive trust — Rights and interests of a third party — Whether court should declare that a defendant holds a right, title and interest in land on constructive trust for a plaintiff, and orders the defendant transfer the interest in land, where such orders may affect or defeat the rights and interests of a third party not joined in the proceedings.
Contract — Termination of contract — Vitiating factors — Unconscionable conduct — Special disadvantage — Whether the requirement of a special disadvantage as a basis for a finding of unconscionability derives solely from a contract repudiated by the party claiming unconscionability.
Real property — Indefeasibility of title — In personam exception — Limits of in personam exception to indefeasibility under s 42 of Real Property Act 1900 (NSW).
S309/2009 appealed from NSW SC (CA): [2009] NSWCA 114.
S308/2009 appealed from NSW SC (CA): [2009] NSWCA 194.
Extradition
****Republic of Croatia v Snedden
S24/2010: [2010] HCATrans 81; [2010] HCATrans 83.
Date heard: 29-30 March 2010 — Orders made 30 March 2010 allowing the appeal. Written reasons of the Court to be published at a future date.
Coram: French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.
Catchwords:
Extradition — Opposition to extradition based on extradition objection — Substantial grounds for believing there is an extradition objection — Republic of Croatia sought extradition of Respondent who fought for the Krajina Serbs against the Croatian forces — Section 19(2) of the Extradition Act 1988 (Cth) (“Act”) provides that a person is only eligible for surrender if “the person does not satisfy the magistrate that there are substantial grounds for believing that there is an extradition objection in relation to the offence” — Section 7(c) of the Act provides that there is an extradition objection if on surrender the person may be prejudiced at his or her trial by reason of his or her political opinions — Whether a person may be punished, detained or restricted in personal liberty “by reason of … political opinions”, for the purposes of s 7(c), is determined by comparing the position of the Respondent holding political opinion “A” with the class of persons hold political opinion “B” — Whether a person may be punished, detained or restricted in personal liberty “by reason of … political opinions”, for the purposes of s 7(c), is determined by comparing the position of persons who do not hold political opinion B (including Respondent) with class of persons who do — Whether holding of political opinion B can be ascribed to a class of persons by reason only of their participation in the armed forces in a particular conflict.
Appealed from FCA FC: [2009] FCAFC 111; (2009) 178 FCR 546.
Immigration
Minister for Immigration and Citizenship v SZMDS & Anor
S193/2009: [2009] HCATrans 301.
Date heard: 10 November 2009 — Judgment reserved.
Coram: Gummow ACJ, Heydon, Crennan, Kiefel and Bell JJ.
Catchwords:
Immigration — Refugees — Jurisdictional error — First respondent is a citizen of Pakistan and applied for a protection visa on the basis that he feared persecution in Pakistan by reason of being homosexual — Whether faulty or illogical findings of fact amount to an error in law — Whether there is any jurisdictional error because of some standard of “articulation” not being reached.
Appealed from FCA: [2009] FCA 210.
Saeed v Minister for Immigration and Citizenship
S305/2009: [2010] HCATrans 44.
Date heard: 11 March 2010 — Judgment reserved.
Coram: French CJ, Gummow, Hayne, Heydon, Crennan and Kiefel JJ.
Catchwords:
Immigration — Procedural fairness — Appellant applied for Skilled Independent visa for which procedural fairness obligations otherwise imposed by s 57 of the Migration Act 1958 (“Act”) did not apply — Application refused on basis of adverse information provided by third party — Whether, and to what extent, s 51A of the Act applies to exclude the rules of procedural fairness — To what extent adverse personal information can be used without providing opportunity to comment under laws of natural justice.
Statutes — Interpretation — Whether common law natural justice applies when s 51A of the Act is read with s 57 of the Act, which provides “Certain information must be given to applicant”.
Appealed from FCA FC: [2009] FCAFC 41; (2009) 176 FCR 53; (2009) 108 ALD 4.
Intellectual Property
E & J Gallo Winery v Lion Nathan Australia Pty Ltd
S189/2009: [2009] HCATrans 317; [2009] HCATrans 318.
Date heard: 8-9 December 2009 — Judgment reserved.
Coram: French CJ, Gummow, Heydon, Crennan and Bell JJ.
Catchwords:
Intellectual Property — Trade marks — Register of trade marks — Non-use claim — Appellant registered a trade mark in respect of wines — Registered owner applied for trade mark overseas — Sold goods to a foreign distributor and may not have known goods were re-sold in Australia — Whether that use of the registered trade mark constitutes use by the registered owner — Whether only use of the registered trade mark in Australia is use by the wholesaler or retailer — Whether the term “use” in s 92(4) of the Trade Marks Act 1995 (Cth) refers to more than physical use of the trade mark — Whether relief to be granted as at conclusion of proceedings or at conclusion of non-use period.
Appealed from FCA FC: [2009] FCAFC 27.
Health World Ltd v Shin-Sun Australia Pty Ltd; Health World Ltd v Shin-Sun Australia Pty Ltd
S199/2009; S200/2009: [2009] HCATrans 319; [2009] HCATrans 320.
Date heard: 9-10 December 2009 — Judgment reserved.
Coram: French CJ, Gummow, Heydon, Crennan and Bell JJ.
Catchwords:
Intellectual Property — Trade marks — Standing requirement — Registration of vitamins and dietary supplements — Whether standing in s 92 of the Trade Marks Act 1995 (Cth) (“Act”) is met where trademark on register is misleading and deceptive — Whether standing requirement in s 92 of the Act the subject of cancellation must be deceptively similar to trade mark owned by Appellant under s 92 — Whether to have regard to prior reputation under s 88(1) of the Act which requires “a prescribed court may, on the application of an aggrieved person or the Registrar, order that the Register be rectified” — Meaning of “person aggrieved” under s 88(1) — Re Powell’s Trade Mark [1894] AC 8.
Appealed from FCA FC: [2009] FCAFC 14.
Mining Law
See Constitutional Law: Cadia Holdings Pty Ltd & Anor v State of New South Wales & Anor.
Practice and Procedure
Hogan v Australian Crime Commission & Ors
S289/2009: [2010] HCATrans 4.
Date heard: 4 February 2010 — Judgment reserved.
Coram: French CJ, Gummow, Hayne, Heydon and Kiefel JJ.
Catchwords:
Practice and procedure — Confidentiality orders — Confidentiality of documents — Principles of open justice — Scope of confidentiality orders under s 50 of the Federal Court of Australia Act 1976 (Cth) which provides that the Court may make such an order forbidding or restricting publication of particular evidence as appears to the Court necessary in order to prevent the administration of justice — Australian Crime Commission (“the Commission”) issued a notice (“the Notice”) pursuant to s 29 of the Australian Crime Commission Act 2002 (Cth) (“the Commission Act”) to the Appellant’s accountants requiring them to produce documents pertaining to individuals and entities including the Appellant — Notice contained a notation that prohibited the accountants from disclosing the existence of the Notice to the Appellant: Commission Act, s 29A — Notation was subsequently varied to allow accountants to disclose the existence of the Notice to the Appellant — Whether, in light of the events, it would convert the process and procedure of the Court into an instrument of injustice and bring the administration of justice into disrepute if the confidentiality of the documents were not preserved — Whether the subject documents are inherently confidential, such that there is a competing public interest in preserving their confidentiality which must be weighed against the principle of open justice.
Appealed from FCA FC: [2009] FCAFC 71.
Real Property
See Equity: John Alexander’s Clubs Pty Ltd & Anor v White City Tennis Club Ltd; Walker Corporation Pty Ltd v White City Tennis Club Ltd & Ors.
Statutes
See Constitutional Law: Cadia Holdings Pty Ltd & Anor v State of New South Wales & Anor.
See also Immigration: Saeed v Minister for Immigration and Citizenship.
Torts
Tabet v Gett
S259/2009: [2009] HCATrans 303; [2009] HCATrans 304.
Date heard: 12-13 November 2009 — Judgment reserved.
Coram: Gummow ACJ, Hayne, Heydon, Crennan, Kiefel and Bell JJ.
Catchwords:
Torts — Negligence — Medical negligence — Loss of chance — A six year old girl initially admitted to hospital complaining of headaches and vomiting — Girl re-admitted two weeks later and diagnosed incorrectly with meningitis — Breach of duty of care in not ordering CT scan earlier — Increased brain pressure resulting in brain damage — Immediate surgery and subsequent chemotherapy successful but girl left severely disabled — 40 per cent of overall disability attributable to brain damage from increased brain pressure — Not able to establish that this 40 per cent increase in disability was caused by the doctor on a balance of probabilities — Whether the causal effects of clinical negligence could be assessed on the basis of loss of chance of a better outcome — If loss of chance of a better outcome is accepted, whether the loss of chance of a better outcome was valued correctly.
Appealed from NSW SC (CA): [2009] NSWCA 76.
3: Original Jurisdiction
The following cases are ready for hearing in the original jurisdiction of the High Court of Australia.
**** Indicates cases made ready for hearing since High Court Bulletin 2 [2010] HCAB 2.
Immigration
Mam v Minister for Immigration and Citizenship
M68/2009.
Catchwords:
Immigration — Visa application — Actual and apprehended bias in assessing application — The nature of business activity, an unregistered business in Cambodia, characterised by defendant as “not generally accepted in Australia” — Whether defendant formed a view in a letter that was incapable of alteration — Whether defendant failed to take into account plaintiff’s claim that laws relating to the registration of businesses in Cambodia were not enforced — Whether defendant misconstrued subclause 165.215 in schedule 2 to the Migration Regulations 1994 (Cth) — Whether a fair minded lay observer would consider from views expressed in letter that defendant had formed a view that was incapable of alteration — Whether defendant showed actual and apprehended bias in arriving at decision to refuse application for subclause 165 visa.
This matter was brought in the original jurisdiction of the High Court.
4: Special Leave Granted
The following cases have been granted special leave to appeal to the High Court of Australia.
**** Indicates cases granted special leave to appeal since High Court Bulletin 2 [2010] HCAB 2.
Administrative Law
Osland v Secretary to the Department of Justice
M41/2009: [2010] HCATrans 27.
Date heard: 12 February 2010 — Special leave granted on limited grounds.
Catchwords:
Administrative law — Freedom of information — Exempt documents — Applicant, convicted of murdering husband, unsuccessfully submitted Petition for Mercy to Attorney-General — Announcement of Attorney-General’s decision did not refer to all legal advice received and Applicant sought access to documents — Section 50(4) of the Freedom of Information Act 1982 (Vic) (“Act”) provides that on a hearing for application for review the Victorian Civil and Administrative Tribunal (VCAT) has power to grant access to exempt documents where the public interest requires that access should be granted — Whether the advice received by the Minister, the existence of which had not been disclosed, was both relevantly and, as a matter of substance, materially different to the advice on which the decision is based — Whether, in applying s 50(4) of the Act, the Attorney-General fell under an obligation of public accountability by issuing a press release — Whether by issuing a press release the Attorney-General was seeking to give the fullest information as to the process that had been followed — Whether the Attorney-General was not giving the fullest information as to the process that had been followed but, rather, had created a misleading impression as to that process — Whether the Attorney-General had assumed political accountability in respect of the decision made on the Applicant’s Petition of Mercy in circumstances that attracted the operation of s 50(4) of the Act.
Appealed from Vic SC (CA): [2009] VSCA 69; (2009) 254 ALR 590.
Habib v Minister for Foreign Affairs and Trade; Habib v Director-General of Security
S111/2009; S112/2009: [2009] HCATrans 215.
Date heard: 4 September 2009 — Special leave granted.
Catchwords:
Administrative law — Procedural fairness — Natural justice — Australian citizen detained in Pakistan as a suspected terrorist and transferred to Guantanamo Bay was subsequently released without charge — Minister for Foreign Affairs and Trade refused to issue a fresh Australian passport and Administrative Appeals Tribunal (“AAT”) affirmed the decision — Refusal to issue passport made on an adverse security assessment — Whether in exercising the jurisdiction conferred by s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) there is an entitlement to refuse relief in circumstances where it is found that the decisions of the AAT were affected by a breach of procedural fairness concerning a matter of fact on the basis of its assessment that, had the breach not occurred, the same outcome would have resulted.
Appealed from FCA FC: [2009] FCAFC 48.
Banking and Finance
See Restitution: Heperu Pty Ltd & Ors v Perpetual Trustees Australia Ltd.
Bankruptcy
CGU Insurance Ltd v One.Tel Ltd (In Liquidation) & Ors
S294/2009: [2010] HCATrans 60.
Date heard: 12 March 2010 — Special leave granted.
Catchwords:
Bankruptcy — Deed of arrangement — Termination of deed of arrangement — Maintenance of proceedings after termination of deed of arrangement — Third Respondent executed deed of arrangement with Second Respondent trustee assigning debtor’s rights under a company directors’ liability insurance policy — Whether trustee had power to maintain proceedings when deed of arrangement was terminated — Bankruptcy Act 1966 (Cth), s 224.
Bankruptcy — Deed of arrangement — Assignments — Chose in action — Whether the assignment was absolute with respect to the meaning of s 12 of the Conveyancing Act 1919 (NSW).
Words and phrases — “terminated”.
Appealed from NSW SC (CA): [2009] NSWCA 282.
Constitutional Law
State of South Australia v Totani & Anor
A20/2009: [2010] HCATrans 22.
Date heard: 12 February 2010 — Special leave granted.
Catchwords:
Constitutional law — Chapter III — Kable doctrine — Control orders — South Australian Police Commissioner applied to Attorney-General for declaration under Part 2 of Serious and Organised Crime (Control) Act 2008 (SA) (“Act”) regarding Finks Motorcycle Club Inc — Section 10(1) of the Act provides that if the Attorney-General is satisfied that members of an organisation associate for the purposes of, inter alia, organising serious criminal activity, and present a risk to public safety, the Attorney-General “may make a declaration order under this section in respect of the organisation” — Section 14(1) of the Act provides “The Court must, on application by the Commissioner, make a control order against a person (the “defendant”) if the Court is satisfied that the defendant is a member of a declared organisation” — Whether s 10(1) of the Act is incompatible with, or repugnant to, the exercise by the Court of the judicial power of the Commonwealth invested in Chapter III of the Constitution — Whether the Kable doctrine is engaged by an exercise of judicial power involving proof of a fact where the fact is an executive determination arrived at by a process other than a judicial process — Whether Kable doctrine can serve as a restriction on the selection by the legislature of a fact, which, if established along with other facts in a judicial proceeding in a manner consistent with judicial process, triggers a particular legislative consequence — Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51.
Appealed from SA SC (CCA): [2009] SASC 301; (2009) 105 SASR 244; (2009) 259 ALR 673; (2009) 231 FLR 422.
Spencer v Commonwealth of Australia
S87/2009: [2010] HCATrans 55.
Date heard: 12 March 2010 — Referred to Full Court.
Catchwords:
Constitutional law (Cth) — Powers of Commonwealth Parliament — Acquisition of property on just terms — Constitution, s 51(xxxi) — the Native Vegetation Act 2003 (NSW), previously subject to the Native Vegetation Conservation Act 1997 (NSW) (“State statutes”), prohibits clearing of native vegetation other than in specified circumstances — Applicant claimed that operation of State statutes made property unsuitable for farming — Applicant made further claim that State statutes operated with the effect of the Natural Resources Management (Financial Assistance) Act 1992 (Cth) and the Natural Heritage Trust of Australia Act 1997 (Cth) (“Commonwealth statutes”) and that Commonwealth statutes are laws with respect to acquisition of property other than on just terms: Constitution, s 51(xxxi) — Whether it is within the legislative power of the Commonwealth to authorise an agreement that requires a State to use its power to acquire property on unjust terms — ICM Agriculture Pty Ltd v The Commonwealth [2009] HCA 51.
Appealed from FCA FC: [2009] FCAFC 38; (2009) 174 FCR 398; (2009) 254 ALR 234.
Corporations
Public Trustee of Queensland v Fortress Credit Corporation (Aus) 11 Pty Ltd & Ors
B40/2009: [2010] HCATrans 49.
Date heard: 12 March 2010 — Special leave granted.
Catchwords:
Corporations — Charges — Registration of charge — Notification of creation of charge — Notification of variation of charge — First and second Respondent and latter’s wholly owned subsidiary entered into an agreement which included a guarantee liability in a charge, and no notice of any charge created or varied was lodged with ASIC — Whether agreement was a new charge, or a variation in the terms of a charge, which required lodgement of notice with ASIC in accordance with s 263 or s 268 of the Corporations Act 2001 (Cth) (“Act”) — Whether in the absence of such a notice a new charge would be void pursuant to s 266(1) of the Act and a varied charge void pursuant to s 266(3) of the Act.
Appealed from Qld SC (CA): [2009] QCA 282.
Courts and Judicial System
Kostas & Anor v HIA Insurance Services Pty Ltd T/as Home Owners Warranty & Anor
S273/2009: [2010] HCATrans 57.
Date heard: 12 March 2010 — Special leave granted.
Catchwords:
Courts and judicial system — Consumer Trade and Tenancy (“Tribunal”) — Appeals — Section 67 of the Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) (“Act”) provides for appeals against decisions of Tribunal with respect to a matter of law — Whether the limitation upon appeals in s 67 of the Act from decisions of the Tribunal to decisions of a question “with respect to matter of law” is confined to the matter of law — Whether right of appeal provided by s 67 of the Act may extend to a question of mixed law and fact.
Appealed from NSW SC (CA): [2009] NSWCA 292.
Criminal Law
Dupas v The Queen
M92/2009: [2010] HCATrans 30.
Date heard: 12 February 2010 — Special leave granted on limited grounds.
Catchwords:
Criminal law — Criminal procedure — Stay of Applicant’s trial — Granting of permanent stay — Applicant, charged with murder, applied to trial judge for permanent stay of trial on the ground that adverse pre-trial publicity about two previous murder convictions made fair trial impossible — Whether the law ought to allow for an extreme case where prejudicial media publicity concerning an accused will create such a level of prejudice and prejudgment that a miscarriage of justice will arise and permanent stay should be granted: R v Glennon (1992) 173 CLR 592 — Whether court below erred by failing to stay the Applicant’s trial and failing to find that the trial judge erred in not ordering that there be a stay of the Applicant’s trial.
Appealed from Vic SC (CA): [2009] VSCA 202.
Pollock v The Queen
B36/2009: [2010] HCATrans 54.
Date heard: 12 March 2010 — Special leave granted.
Catchwords:
Criminal law — Criminal defences — Provocation — Trial judge’s direction to the jury — Elements of provocation and directions to the jury — Definition of “suddenness” with respect to provocation — Section 304 of the Criminal Code 1899 (Qld) (“Code”) requires that the accused acted “before there is time for the person’s passion to cool” — Test formulated by the Court of Appeal in the Applicant’s first appeal, and adopted by the trial judge and Court of Appeal in the present appeal, was that “the loss of self control was not sudden” — Whether the test formulated was more onerous than that of s 304 of the Code — Whether the Court of Appeal erred in holding that the direction by the trial judge to the jury did not mislead the jury as to their task in considering the defence of provocation.
Appealed from Qld SC (CA): [2009] QCA 268.
Forbes v The Queen
C10/2009: [2010] HCATrans 45.
Date heard: 12 March 2010 — Referred to Full Court.
Catchwords:
Criminal law — DNA evidence — Sexual assault — Likelihood ratio for committing an offence — DNA evidence only incriminating evidence — DNA evidence was characterised by expert witness at trial as providing “extremely strong” evidence on the likelihood ratio that the Applicant was the source of the DNA — Whether there was no rule or principle to the effect that where the only evidence which incriminated the accused was DNA evidence, the accused should be acquitted — Whether a likelihood ratio produced by statistical calculations was highly probative.
Appealed from ACT SC (CA): [2009] ACTCA 10.
Equity
See Taxation and Duties: Commissioner of State Taxation v Cyril Henschke Pty Ltd & Ors.
Insurance
Selected Seeds Pty Ltd v QBEMM Pty Ltd & Ors
B43/2009: [2010] HCATrans 50.
Date heard: 12 March 2010 — Special leave granted.
Catchwords:
Insurance — Insurance policy — Construction of insurance policy — Exclusion clause — Efficacy clause — Indemnity against product liability — Applicant seed merchant contracted with a purchaser who supplied seed to a third party, and was supplied to other parties, causing damage to property — Applicant purchased liability insurance from Respondent which included an efficacy clause excluding liability caused or arising from, inter alia, “a failure of any product to germinate or grow or meet the level of growth or germination warranted or represented by the insured” — Whether a literal interpretation of the efficacy clause, for which the Applicant sought indemnity, deprived the policy of all practical operation as a product liability cover.
Appealed from Qld SC (CA): [2009] QCA 286.
Restitution
Heperu Pty Ltd & Ors v Perpetual Trustees Australia Ltd
S105/2009: [2010] HCATrans 16.
Date heard: 12 February 2010 — Special leave granted in part. Other grounds referred to the Full Court.
Catchwords:
Restitution — Defences — Defence of change of position — Recovery of money under mistake or induced by fraud — Applicants’ agents defrauded them, which involved the drawing and purchasing of cheques by Applicants, their delivery to agent for investment on Applicants’ behalf and use by agent for own benefit — Respondent was trustee of company managing common funds into which agent deposited cheques — Whether payments are to be taken as on the faith of the receipts when they would not have been made unless the receipts had been recognised as valid — Whether Respondent changed its position — Application of David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353.
Banking and finance — Instruments — Cheques — Delivery by an agent when that agent is acting fraudulently — Whether an investment contract, which is distinct in its promises and consideration, is a source of apparent authority (in the absence of, or abuse of, actual authority) for delivery of cheques which provided funds for part of the investment.
Appealed from NSW SC (CA): [2009] NSWCA 84.
Statutes
See Torts: Zotti v Australian Associated Motor Insurers Ltd & Anor.
Taxation and Duties
Commissioner of State Taxation v Cyril Henschke Pty Ltd & Ors
A9/2009: [2010] HCATrans 23.
Date heard: 12 February 2010 — Special leave granted on limited grounds.
Catchwords:
Taxation and duties — Stamp duties — Deed of retirement — Conveyance — Partners executed a Retirement Deed (“Deed”) and Applicant later assessed stamp duty on Deed on the basis that it effected a transfer of retiree’s interest in the goodwill of the continuing partners — Section 60(d) of the Stamp Duties Act 1923 (SA) provides, inter alia, that conveyance on sale includes “every other assurance or instrument, by which or by virtue of which any real or personal property, upon the sale thereof, is legally or equitably transferred to, or vested in, the purchaser or any other person on his behalf or by his direction” — Whether there was a conveyance of the interest by the document on which stamp duty is to be levied — Whether Deed did not effect a conveyance within the meaning of s 60 of the Act.
Equity — Equitable interest — Interest of partner in partnership property — Chose in action — Beneficial interest of partner in relation to the partnership — Whether right was an equitable right and should be categorised as a chose in action — Whether Deed effected a transaction by which the equitable chose in action was converted into an entitlement to payment of a specific amount; and once that payment was satisfied that chose in action ceased to exist — Whether transaction was not a sale and therefore not subject to stamp duty.
Appealed from SA SC: [2009] SASC 148; (2009) 104 SASR 22.
Aid/Watch Incorporated v Commissioner of Taxation
S280/2009: [2010] HCATrans 58.
Date heard: 12 March 2010 — Special leave granted.
Catchwords:
Taxation and duties — Charities — Characterisation of main purpose — Scope of political purpose where activities also include a charitable purpose — Applicant is a non-governmental organisation which had income tax exempt status and charitable status revoked — Whether the law as to “political disqualification” of an otherwise charitable institution should form part of the law of Australia: Bowman v Secular Society Ltd [1917] AC 406; extended in McGovern v Attorney-General [1982] Ch 321 — Whether seeking to influence government policy through the advancement of public debate constitutes political debate and therefore disentitles charitable status — Royal North Shore Hospital of Sydney v Attorney-General (NSW) (1938) 60 CLR 396.
Appealed from FCA FC: [2009] FCAFC 128.
Travelex Ltd v Commissioner of Taxation
S290/2009: [2010] HCATrans 56.
Date heard: 12 March 2010 — Special leave granted.
Catchwords:
Taxation and duties — GST — Transaction in foreign currency — Customs barrier in Australian airports — Supply made in relation to rights — Applicant claimed that transaction was exempt from paying GST on sale of foreign currency (the purchase of Fijian $400 in cash) to a passenger who had passed through customs — Whether the Fijian currency transaction was a supply made “in relation to rights” and whether those rights were outside Australia — Whether the transaction was a GST-free supply by reason of s 38-190(1) of the A New Tax System (Goods and Services Tax) Act 1999 (Cth) which provides for “Supplies of things, other than goods or real property, for consumption outside Australia”.
Appealed from FCA FC: [2009] FCAFC 133.
Torts
Wicks v State Rail Authority of New South Wales known as State Rail; Sheehan v State Rail Authority of New South Wales known as State Rail
S262/2009; S263/2009: [2010] HCATrans 15.
Date heard: 12 February 2010 — Special leave granted.
Catchwords:
Torts — Civil Liability Act 2000 (NSW) (“Act”) — Pure mental harm arising from shock — Damages for rescuer, not initially at scene of accident, who suffers consequent mental harm — Applicant police officers, who attended Waterfall train crash, brought a claim against Respondent alleging they had suffered psychiatric injury due to negligence — Section 30(2) of the Act provides that plaintiff is not entitled to recover damages for (a) pure mental harm unless “the plaintiff witnessed, at the scene, the victim being killed, injured or put in peril” … or (b) “the plaintiff is a close member of the family of the victim” — Whether s 30(2)(a) of the Act precludes a damages claim for pure mental harm being brought by a rescuer who arrived at scene after Respondent committed any breach of duty to primary victim or when primary victim first sustained injury — Whether rescuer can claim damages for pure mental harm who subsequently arriving at the scene, and while at the scene, suffers consequent pure mental harm — Whether breach of duty was still causing a continuing peril of initial, additional or aggravated physical or mental injury to potential primary victims.
Appealed from NSW SC (CA): [2009] NSWCA 261.
Zotti v Australian Associated Motor Insurers Ltd & Anor
S297/2009: [2009] HCATrans 62.
Date heard: 12 March 2010 — Special leave granted.
Catchwords:
Torts — Negligence — Third party insurance — Second Respondent collided with another car at an intersection and less than two hours later Applicant slipped on oil as a result of collision — Whether there was a temporal connection between oil spillage and bicycle accident — Whether injury was a result of, and caused during, the accident — Allianz Australia Insurance Ltd v GSF Australia Pty Ltd (2005) 221 CLR 568.
Statutes — Interpretation — Motor Accidents Compensation Act 1999 (NSW) (as at December 2005) (“Act”) — Definition of injury in s 3 of the Act — Whether the definition of injury in s 3 of the Act requires an injury to be sustained during and at the same time of the events listed in sub-ss (i)-(iv) of the Act.
Words and phrases — “injury” — “caused during”.
Appealed from NSW SC (CA): [2009] NSWCA 323.
Trade Practices
Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd
M69/2009: [2009] HCATrans 337.
Date heard: 11 December 2009 — Appeal referred to Full Court.
Catchwords:
Trade practices — Misleading or deceptive conduct — Representation by omission or ambiguity — Alleged misrepresentation was that the nature of insurance to be premium funded was cancellable property insurance whereas in fact it was cost production insurance (not cancellable) — Whether misleading or deceptive conduct — Whether there was a failure to inform about the true nature of the policy — In what circumstances can representation which is, on its face, ambiguous, be misleading or deceptive — Trade Practices Act 1974 (Cth), ss 52 and 82.
Trade practices — Misleading or deceptive conduct — Causation — Whether Respondent who funded an insurance policy that was not cancellable suffered loss or damage as a result of conduct of Applicant — Whether there was any proper basis upon which Court of Appeal could have interfered with trial judge’s finding of fact in relation to causation.
Appealed from Vic SC (CA): [2009] VSCA 234; [2009] VSCA 117.
Workers’ Compensation
Workcover Queensland v Amaca Pty Ltd & Anor
B12/2009: [2010] HCATrans 48.
Date heard: 12 March 2010 — Special leave granted.
Catchwords:
Workers’ compensation — Quantum of indemnity — Reduction of indemnity as a result of death — Worker dies from mesothelioma after compensation is paid but before commencement of damages action against manufacturer of asbestos — Section 207B(7) Workers’ Compensation and Rehabilitation Act 2003 (Qld) provides that where a person has received compensation but has not recovered damages “the insurer is entitled to be indemnified by the employer or other person who is required by the settlement to pay the damages” — Whether assessment of quantum of indemnity is reduced by the operation of s 66 of the Succession Act 1981 (Qld) if worker dies after compensation is paid and before proceedings commenced to recover the indemnity.
Appealed from Qld SC (CA): [2009] QCA 72; [2009] 2 Qd R 181.
5: Cases Not Proceeding or Vacated
The following cases in the High Court of Australia are not proceeding or have been vacated since High Court Bulletin 2 [2010] HCAB 2.
There are no cases in the High Court of Australia that are not proceeding or have been vacated since High Court Bulletin 2 [2010] HCAB 2.
6: Special Leave Dismissed
The following cases were refused special leave to appeal to the High Court of Australia.
Canberra: 30 March 2010
(Publication of reasons)
Civil
Obieta v Consumer, Trader and Tenancy Tribunal NSW
S230/2009: [2010] HCASL 39.
Special leave dismissed.
Appealed from NSW SC (CA): [2009] NSWCA 249.
Webb v Child Support Registrar
S238/2009: [2010] HCASL 40.
Special leave dismissed.
Appealed from FamCA: no media neutral citation.
SZMXP v Minister for Immigration and Citizenship & Anor
S242/2009: [2010] HCASL 41.
Special leave dismissed.
Appealed from FCA: [2009] FCA 938.
Macatangay v State of New South Wales
S258/2009: [2010] HCASL 42.
Special leave dismissed.
Appealed from NSW SC (CA): [2009] NSWCA 272.
Alexakis v Secretary Department of Education, Employment and Workplace Relations & Anor
S271/2009: [2010] HCASL 43.
Special leave dismissed.
Appealed from FCA FC: [2009] FCAFC 124.
SZBQS v Minister for Immigration and Citizenship & Anor
S275/2009: [2010] HCASL 44.
Special leave dismissed.
Appealed from FCA: [2009] FCA 1031.
Field v St George Bank Ltd
S278/2009: [2010] HCASL 45.
Special leave dismissed.
Appealed from FCA: [2009] FCA 1042.
SZMTQ v Minister for Immigration and Citizenship & Anor
S279/2009: [2010] HCASL 46.
Special leave dismissed.
Appealed from FCA: [2009] FCA 1062.
Serobian & Anor v Commonwealth Bank of Australia
S282/2009: [2010] HCASL 47.
Special leave dismissed.
Appealed from NSW SC (CA): no media neutral citation.
SZNIJ v Minister for Immigration and Citizenship & Anor
S291/2009: [2010] HCASL 48.
Special leave dismissed.
Appealed from FCA: [2009] FCA 1106.
SZNKK v Minister for Immigration and Citizenship & Anor
S292/2009: [2010] HCASL 49.
Special leave dismissed.
Appealed from FCA: [2009] FCA 1107.
SZNCT & Anor v Minister for Immigration and Citizenship & Anor
S293/2009: [2010] HCASL 50.
Special leave dismissed.
Appealed from FCA: [2009] FCA 907.
Yang v Mead
S306/2009: [2010] HCASL 51.
Special leave dismissed.
Appealed from FCA: [2009] FCA 1202.
Mead v Mead
S307/2009: [2010] HCASL 52.
Special leave dismissed.
Appealed from FCA: [2009] FCA 1202.
SZNIU v Minister for Immigration and Citizenship & Anor
S312/2009: [2010] HCASL 53.
Special leave dismissed.
Appealed from FCA: [2009] FCAFC 1270.
SZNOX v Minister for Immigration and Citizenship & Anor
S313/2009: [2010] HCASL 54.
Special leave dismissed.
Appealed from FCA: [2009] FCA 1233.
SZNIR & Anor v Minister for Immigration and Citizenship & Anor
S315/2009: [2010] HCASL 55.
Special leave dismissed.
Appealed from FCA: [2009] FCA 1273.
In the matter of an application by Ivan Robert Marko Milat
S356/2009: [2010] HCASL 56.
Special leave dismissed.
Appealed from NSW SC: [2009] NSWSC 732.
Jacobs v Hurstville City Council
S102/2009: [2010] HCASL 57.
Special leave dismissed with costs.
Appealed from NSW SC (CA): [2009] NSWCA 86.
Jacobs v Hurstville City Council
S219/2009: [2010] HCASL 57.
Special leave dismissed.
Appealed from NSW SC (CA): [2009] NSWCA 86.
Jacobs v Hurstville City Council
S220/2009: [2010] HCASL 57.
Special leave dismissed.
Appealed from NSW SC (CA): [2009] NSWCA 86.
SZNCO & Anor v Minister for Immigration and Citizenship & Anor
S317/2009: [2010] HCASL 58.
Special leave dismissed.
Appealed from FCA: [2009] FCA 1274.
SZNJM v Minister for Immigration and Citizenship & Anor
S336/2009: [2010] HCASL 59.
Special leave dismissed.
Appealed from FCA: [2009] FCA 1295.
Canberra: 31 March 2010
(Publication of reasons)
Civil
Satchithanantham & Anor v King Mortgage Pty Ltd in liquidation & Anor
S300/2009; S301/2009: [2010] HCASL 61.
Special leave dismissed.
Appealed from NSW SC (CA): [2009] NSWCA 358.
SZNIF v Minister for Immigration and Citizenship & Anor
S318/2009: [2010] HCASL 62.
Special leave dismissed.
Appealed from FCA: [2009] FCA 1256.
SZNMZ v Minister for Immigration and Citizenship & Anor
S320/2009: [2010] HCASL 63.
Special leave dismissed.
Appealed from FCA: [2009] FCA 1263.
SZNNI v Minister for Immigration and Citizenship & Anor
S322/2009: [2010] HCASL 64.
Special leave dismissed.
Appealed from FCA: [2009] FCA 1232.
SZNPK & Anor v Minister for Immigration and Citizenship & Anor
S323/2009: [2010] HCASL 65.
Special leave dismissed.
Appealed from FCA: [2009] FCA 1271.
SZNNY & Anor v Minister for Immigration and Citizenship & Anor
S324/2009: [2010] HCASL 66.
Special leave dismissed.
Appealed from FCA: [2009] FCA 1275.
SZNOM v Minister for Immigration and Citizenship & Anor
S325/2009: [2010] HCASL 67.
Special leave dismissed.
Appealed from FCA: [2009] FCA 1244.
SZNLU v Minister for Immigration and Citizenship & Anor
S326/2009: [2010] HCASL 68.
Special leave dismissed.
Appealed from FCA: [2009] FCA 1251.
SZNHS v Minister for Immigration and Citizenship & Anor
S327/2009: [2010] HCASL 69.
Special leave dismissed.
Appealed from FCA: [2009] FCA 1254.
SZNPW & Anor v Minister for Immigration and Citizenship & Anor
S328/2009: [2010] HCASL 70.
Special leave dismissed.
Appealed from FCA: [2009] FCA 1269.
SZNKP v Minister for Immigration and Citizenship & Anor
S339/2009: [2010] HCASL 71.
Special leave dismissed.
Appealed from FCA: [2009] FCA 1316.
SZMDZ & Ors v Minister for Immigration and Citizenship & Anor
S341/2009: [2010] HCASL 72.
Special leave dismissed.
Appealed from FCA: [2009] FCA 1304.
SZNLQ v Minister for Immigration and Citizenship & Anor
S342/2009: [2010] HCASL 73.
Special leave dismissed.
Appealed from FCA: [2009] FCA 1312.
SZMUW & Anor v Minister for Immigration and Citizenship & Anor
S343/2009: [2010] HCASL 74.
Special leave dismissed.
Appealed from FCA: [2009] FCA 1444.
SZNHU v Minister for Immigration and Citizenship & Anor
S329/2009: [2010] HCASL 75.
Special leave dismissed.
Appealed from FCA: [2009] FCA 1243.
von Risefer v Mainfreight International Pty Ltd
M80/2009: [2010] HCASL 76.
Special leave dismissed.
Appealed from Vic SC (CA): [2009] VSCA 179.
O’Hara v Sims
B31/2009: [2010] HCASL 77.
Special leave dismissed with costs.
Appealed from Qld SC (CA): [2009] QCA 186.
J & WL Consulting Services & Ors v Carwyn Constructions Pty Ltd
B35/2009: [2010] HCASL 78.
Special leave dismissed with costs.
Appealed from Qld SC (CA): [2009] QCA 225.
Criminal
Westphal v The Queen
B34/2009: [2010] HCASL 79.
Special leave dismissed.
Appealed from Qld SC (CA): [2009] QCA 223.
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