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High Court Bulletin

Produced by the High Court of Australia Library

[2010] HCAB 1 (19 February 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 February 2010 sittings.

Arnold & Ors v Minister Administering the Water Management Act 2000 & Ors

High Court of Australia: [2010] HCA 3.

Judgment delivered: 10 February 2010.

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

Catchwords:

Constitutional law (Cth) — Powers of Commonwealth Parliament — Limitation on legislative power — Right of State or residents therein to reasonable use of waters of rivers for conservation or irrigation — Appellants held bore licences under Water Act 1912 (NSW) — Appellants' bore licences replaced, pursuant to funding agreement between Commonwealth and State of New South Wales, with aquifer access licences under Water Management Act 2000 (NSW) (“2000 Act”) — Replacement of bore licences effectuated by making of Water Sharing Plan for the Lower Murray Groundwater Source by Minister Administering the 2000 Act (“Minister”) pursuant to s 50 of 2000 Act — Whether Commonwealth legislation under which funding agreement allegedly made, or funding agreement, contravened s 100 of the Constitution — Whether appellants' bore licences entitled them to use “the waters of rivers”.
Administrative law — Relevant and irrelevant considerations — Whether Minister took irrelevant considerations into account in making plan under s 50 of 2000 Act.
Constitutional law (Cth) — Powers of Commonwealth Parliament – Acquisition of property on just terms — Whether replacement of bore licences acquisition of property.
Words and phrases — “the waters of rivers”.

Appealed from NSW SC (CA): [2008] NSWCA 338; (2008) 163 LGERA 429; (2008) 253 ALR 173.

Kirk & Anor v Industrial Relations Commission of New South Wales & Anor; Kirk Group Holdings Pty Ltd & Anor v Workcover Authority of New South Wales (Inspector Childs); Kirk Group Holdings Ltd & Anor v Workcover Authority of New South Wales (Inspector Childs)

High Court of Australia: [2010] HCA 1.

Judgment delivered: 3 February 2010.

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

Catchwords:

Occupational health and safety — Statutory duty — Occupational Health and Safety Act 1983 (NSW), ss 15 and 16 provided duties of employer to “ensure the health, safety and welfare at work of all the employer's employees” and that “persons not in the employer's employment are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking” — Section 53(a) provided a defence where it was “not reasonably practicable ... to comply with the provision of this Act” — Breach of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] HCAB 1
Decision Date

CaseChat Overview and Summary

Arnold & Ors v Minister Administering the Water Management Act 2000 & Ors [2010] HCA 3 is a case concerning the constitutionality of Commonwealth legislation and a funding agreement between the Commonwealth and the State of New South Wales, and whether they contravened s 100 of the Constitution. The case also addressed whether the Minister administering the Water Management Act 2000 (NSW) ("2000 Act") took irrelevant considerations into account when making a plan under s 50 of the 2000 Act. The High Court held that the Commonwealth legislation and funding agreement did not contravene s 100 of the Constitution and that the Minister did not take irrelevant considerations into account when making the plan. The Court further held that the appellants' bore licences did not entitle them to use "the waters of rivers". Kirk & Anor v Industrial Relations Commission of New South Wales & Anor; Kirk Group Holdings Pty Ltd & Anor v Workcover Authority of New South Wales (Inspector Childs); Kirk Group Holdings Ltd & Anor v Workcover Authority of New South Wales (Inspector Childs) [2010] HCA 1 concerned various aspects of occupational health and safety, evidence, administrative law, statutes, and constitutional law. The High Court held that the Industrial Court of New South Wales did not have jurisdiction to dispense with s 17(2) of the Evidence Act 1995 (NSW), which provided that a defendant is not competent to give evidence as witness for the prosecution. The Court further held that the privative provisions in the Industrial Relations Act 1996 (NSW) were effective to prevent review for jurisdictional error and error of law on the face of the record. The Court also held that the State Parliament of New South Wales did not have the power to alter the defining characteristic of the Supreme Court of New South Wales, which was its supervisory jurisdiction. The Court held that an appellate court exercising supervisory not appellate jurisdiction could make orders in nature of certiorari. Finally, the Court held that an appellate court had the power to make orders in place of orders quashed.

Orders