High Court Bulletin
[2010] HCAB 1
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 duty criminal offence — Statement of offences as particularised did not identify what measures defendant could have taken but did not take to fulfil duty — Whether statement of offence must identify act or omission said to constitute contravention of s 15 or s 16 — Whether failure to charge act or omission an error of law — Whether error on the face of the record — Whether jurisdictional error.
Evidence — Competence and compellability of accused persons — Joint trial — Industrial Relations Act 1996 (NSW), s 163(2) required hearing to be conducted in accordance with the rules of evidence — Evidence Act 1995 (NSW), s 17(2) provided that a defendant is not competent to give evidence as witness for prosecution — No power of Industrial Court of New South Wales to dispense with s 17(2) — Defendant called as witness for prosecution — Whether jurisdictional error — Whether error on the face of the record.
Administrative law — Jurisdictional error — Error of law on the face of the record — Whether orders in nature of certiorari available.
Statutes — Privative clause — Industrial Court of New South Wales — Construction of privative clause — Whether privative provision effective to prevent review for jurisdictional error — Whether effective to prevent review for error of law on the face of the record — Relevance of exclusion of right to appeal to Supreme Court of New South Wales and to High Court of Australia.
Constitutional law (Cth) — Chapter III — State Supreme Courts — Power of State Parliament to alter defining characteristic of Supreme Court of a State — Supervisory jurisdiction — Whether a defining characteristic is power to confine inferior courts and tribunals within limit of their authority to decide.
Procedure — Costs — Appellate court exercising supervisory not appellate jurisdiction — Appellate court makes orders in nature of certiorari — Whether appellate court has power to make orders in place of orders quashed.
Words and phrases — “act or omission”, “certiorari”, “description of offence”, “error of law on the face of the record”, “jurisdictional error”, “privative provisions”, “reasonably practicable”, “superior court of record”, “Supreme Court of a State”, “the record”.
S106/2009 appealed from NSW SC (CA): [2008] NSWCA 156; (2008) 173 IR 465.
S347/2008 appealed from NSW IR Comm: [2006] NSWIRComm 355; (2006) 158 IR 281.
S348/2008 appealed from NSW IR Comm: [2007] NSWIRComm 86; (2006) 164 IR 146.
Mandurah Enterprises Pty Ltd & Ors v Western Australian Planning Commission
High Court of Australia: [2010] HCA 2.
Judgment delivered: 3 February 2010.
Coram: French CJ, Gummow, Hayne, Crennan and Bell JJ.
Catchwords:
Real property — Compulsory acquisition — Parts of various lots reserved under town planning scheme for Primary Regional Roads — Whole lots subsequently acquired for purpose of railways and primary regional roads — Whether land reserved for one purpose could be acquired for another purpose — Whether valid acquisition under s 13 of Town Planning and Development Act 1928 (WA) — Whether valid acquisition under s 161 of Land Administration Act 1997 (WA) (“Land Act”).
Real property — Compulsory acquisition — Section 161 of Land Act provided that acquisition must be for purposes of public work — Portions of lots cut off from access to public roads by railway — Whole lots acquired to avoid statutory obligation to construct crossings — Whether acquisition incidental to purposes of public work — Whether compulsory acquisition of whole lots valid — Whether severance possible where same taking order effected both valid and invalid acquisitions.
Words and phrases — “for the purpose of a town planning scheme”, “for the purposes of the work”, “public work”, “railway purposes”.
Appealed from WA SC (CA): [2008] WASCA 211.
2: Cases Reserved
The following cases have been reserved for judgment by the High Court of Australia.
**** Indicates cases reserved or part heard for judgment since High Court Bulletin 11 [2009] HCAB 11.
Constitutional Law
See 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.
Date heard: 9-10 February 2010 — Judgment reserved.
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.
Damages
****European Bank Ltd v Robb Evans of Robb Evans & Associates
S272/2009: [2010] HCATrans 3.
Date heard: 3 February 2010 — Judgment reserved.
Coram: French CJ, Gummow, Hayne, Heydon and Kiefel JJ.
Catchwords:
Damages — Undertakings as to damages — Remoteness of loss —
Compensation pursuant to undertaking to court for loss of use of money — Tracing moneys — Respondent gave undertaking as to damages which was part of an arrangement ancillary to orders that led to the Appellant being owed money — Pursuant to an order, money was held by the Prothonotary and deposited with an Australian bank in a US dollar account earning interest — Appellant claimed that had it held money, it would have invested it more advantageously than the Prothonotary — Whether the rule in Hadley v Baxendale (1854) 9 Ex 341; 156 ER 145 as to remoteness is applied in the assessment of compensation — Whether the Court retains a discretion to treat as too remote compensation which otherwise satisfies the applicable rule — Whether losses of income which would otherwise be realised by a bank on currency fluctuations are too remote to be recoverable as compensation pursuant to an undertaking as to damages.
Appealed from NSW SC (CA): [2009] NSWCA 67.
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.
Date heard: 10-11 February 2010 — Matter part heard.
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.
Family Law
MRR v GR
B44/2009: [2009] HCATrans 316.
Date heard: 3 December 2009 — Orders made 3 December 2009 allowing the appeal. Written reasons of the Court to be published at a future date.
Coram: French CJ, Gummow, Hayne, Kiefel and Bell JJ.
Catchwords:
Family law — Children — Relocation, Living and visiting arrangements of children — Both parents of child sought orders that they have equal shared parental responsibility — Appellant mother sought orders that this be achieved inter alia by her and child living in Sydney, but Respondent father not prepared to move due to employment — Whether there was a failure to have regard to, and give specific reasons on, the matters referred to in s 65DAA(5) of the Family Law Act 1975 (Cth) (“Act”) concerning whether it is reasonably practicable for a child to spend equal time with each parent — Whether failure to have regard to s 65DAA(5) of the Act is ameliorated by consideration of matters specified in s 60CC of the Act: “How a court determines what is in a child’s best interests” — Whether, when considering relocation, the focus should be on whether one parent is permitted to remove the child instead of properly considering and assessing the proposals of both parents.
Appealed from FamCA FC: [2009] FamCAFC.
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.
Insurance
****Wallaby Grip Ltd v QBE Insurance (Australia) Ltd & Anor; Stewart v QBE Insurance (Australia) Ltd & Anor
S281/2009; S284/2009: [2010] HCATrans 2.
Date heard: 2 February 2010 — Judgment reserved.
Coram: French CJ, Gummow, Hayne, Heydon and Kiefel JJ.
Catchwords:
Insurance law — Employer’s indemnity insurance — Workers’ compensation insurance — Extent of insurer’s liability — Employee, who died from mesothelioma, claimed he was exposed negligently to asbestos dust and fibre during course of employment — Policy of insurance could not be found — Workers Compensation Act 1926 (NSW) required that employer be indemnified for at least $40,000 — Whether onus is on insurer to prove cover is limited — Whether the issue is one concerning proof of an essential term of the policy or one concerning proof of the existence of the limitation of liability under the policy.
Appealed from NSW SC (CA): [2009] NSWCA 66.
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.
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
****Muslimin v The Queen
D12/2009: [2010] HCATrans 5.
Date heard: 5 February 2010 — Judgment reserved.
Coram: French CJ, Gummow, Hayne, Heydon and Kiefel JJ.
Catchwords:
Statutes — Interpretation — Construction of statute — Appellant convicted by jury pursuant to s 101 of the of the Fisheries Management Act 1991 (Cth) (“Act”), which renders it a strict liability offence to be in possession or charge of a foreign vessel equipped with fishing equipment in the Australian Fishing Zone (“AFZ”) — Section 12(2) of the Act extends provisions in the Act relating to fishing in the AFZ “to the extent that it is capable of doing so” to fishing for sedimentary organisms in or on any part of the Australian continental shelf not within the AFZ — Appellant had in his possession a foreign boat, equipped with nets, traps and other equipment for fishing, above the Australian continental shelf not within the AFZ — Whether ss 12, 101 of the Act should be constructed narrowly so as to be consistent with Australia’s limited sovereignty in the area — Whether s 12(2) of the Act extends the offence of strict liability in s 101 of the Act to the mere possession of equipment for fishing of sedentary organisms in waters over the Australian continental shelf — Whether s 101 of the Act extends the offence of strict liability to mere possession of fishing equipment into waters over the Australian continental shelf which are also in the Indonesian Exclusive Economic Zone.
Appealed from NT SC (CCA): [2009] NTCCA 3.
Torts
Amaca Pty Ltd v Ellis & Ors; State of South Australia v Ellis & Ors; Millennium Inorganic Chemicals Ltd v Ellis & Ors
P13/2008; P14/2009; P12/2009: [2009] HCATrans 296; [2009] HCATrans 297.
Date heard: 4-5 November 2009 — Judgment reserved.
Coram: French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.
Catchwords:
Torts — Negligence — Causation — Regular smoker who was exposed to asbestos during two periods of his working life died of lung cancer — Medical and scientific evidence could not conclusively establish cause of lung cancer — Whether exposure to asbestos caused or materially contributed to lung cancer — Whether trial judge erred in failing to separately consider whether each appellant’s negligence caused or materially contributed to the injury.
Appealed from WA SC (CA): [2008] WASCA 200.
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 11 [2009] HCAB 11.
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.
Berenguel v Minister for Immigration and Citizenship
M66/2009.
Catchwords:
Immigration — Visa application — “Skilled visa” — Language requirements for visa application — Part 885 of schedule 2 to the Migration Regulations 1994 (Cth) requires that an applicant for a skilled visa has “vocational English” or “competent English” — Whether delegate of defendant misconstrued regulations in finding that plaintiff had not provided International English Language Testing System (“IELTS”) test more than 2 years before the day in which the application was lodged — Whether defendant could lodge IELTS test report on a date after which they lodged their visa application.
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 11 [2009] HCAB 11.
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.
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.
Cadia Holdings Pty Ltd & Anor v State of New South Wales & Anor
S174/2009: [2009] HCATrans 321.
Date heard: 11 December 2009 — Special leave granted.
Catchwords:
Constitutional law — Prerogative rights of the Crown — Royal mines and minerals — Mine comprises of parcels of land granted by Crown between 1852-1881 period without express reservation for copper — Whether, at common law, the Crown’s 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).
Constitutional law — Imperial, colonial, State and Commonwealth relationships — Reception of English law in New South Wales — 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”.
Appealed from NSW SC (CA): [2009] NSWCA 174; (2009) 257 ALR 528.
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 trail impossible — Whether the law ought 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.
Defamation
Aktas v Westpac Banking Corporation Ltd & Anor
S48/2009: [2009] HCATrans 326.
Date heard: 11 December 2009 — Special leave granted.
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
****See Taxation and Duties: Commissioner of State Taxation v Cyril Henschke Pty Ltd & Ors.
Extradition
****Republic of Croatia v Snedden
S253/2009: [2010] HCATrans 10.
Date heard: 12 February 2010 — Special leave granted.
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
Saeed v Minister for Immigration and Citizenship
S90/2009: [2009] HCATrans 287.
Date heard: 3 November 2009 — Special leave granted.
Catchwords
Immigration — Procedural fairness — Applicant 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.
Mining Law
See Constitutional Law: Cadia Holdings Pty Ltd & Anor v State of New South Wales & Anor.
Practice and Procedure
AWB Ltd v Australian Securities & Investments Commission & Anor
M93/2009: [2009] HCATrans 331.
Date heard: 11 December 2009 — Special leave granted.
Catchwords:
Practice and procedure — Professional privilege — Privileged communication — “Loss” of professional privilege — Australian Securities & Investment Commission (“ASIC”) ordered to make discovery to second Respondent of all transcripts of examinations conducted and all other statements relating to pleadings — Australian Securities & Investment Commission Act 2001 (Cth), s19 — Applicant sought orders that ASIC documents be provided to it before being provided to second Respondent to test claim for professional privilege — Whether professional privilege in a privileged communication is “lost” if a person discloses the privileged communication to the first Respondent without the authority or consent of the person who is holder of the privilege — Calcraft v Guest [1898] 1 QB 759 — Whether it was open to the court to conclude that legal professional privilege had been “lost” when proposition not expressly raised in argument at first instance or in the Court of Appeal and Applicant not given opportunity to make submissions in relation to the proposition.
Appealed from Vic SC (CA): [2009] VSCA 234; (2009) 261 ALR 207; (2009) 74 ACSR 360.
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 Immigration: Saeed v Minister for Immigration and Citizenship.
See also Constitutional Law: Cadia Holdings Pty Ltd & Anor v State of New South Wales & 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.
Commissioner of Taxation v Bamford & Ors; Bamford & Anor v Commissioner of Taxation & Anor
S155/2009; S156/2009: [2009] HCATrans 284.
Date heard: 3 November 2009 — Special leave granted.
Catchwords:
Taxation — Trust income — Share of the net income of the trust estate — Capital receipt — Whether the expression “the income of the trust estate” in Division 6, and in particular, s 97 of the Income Tax Assessment Act 1936 (Cth) (“Act”) has a fixed denotation as income under ordinary concepts or whether it is governed by the terms of the trust — Whether capital receipts deemed income by trust deed are income for the purposes of income tax assessment — The manner in which s 97 of the Act is to be applied in a case where the amount of the “net income of the trust estate” ascertained under s 95 of the Act differs from the net income of the trust fund for trust purposes and the beneficiaries under the terms of the trust are not entitled to share in income in fixed proportions — FCT v ANZ Savings Bank Ltd (1998) 194 CLR 328; FCT v Totledge (1982) 40 ALR 385.
Words and phrases — “the income of the trust estate” — “presently entitled to a share of the income of trust estate”.
Appealed from FCA FC: [2009] FCAFC 66; (2009) 176 FCR 250.
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.
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.
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 11 [2009] HCAB 11.
There are no cases in the High Court of Australia that are not proceeding or have been vacated since High Court Bulletin 11 [2009] HCAB 11.
6: Special Leave Dismissed
The following cases were refused special leave to appeal to the High Court of Australia.
Sydney: 12 February 2010
Civil
University of Western Australia v Gray
P40/2009.
Special leave dismissed with costs.
Appealed from FCA FC: [2009] FCAFC 116.
Varas v Fairfield City Council
S176/2009.
Special leave dismissed with costs.
Appealed from FCA: [2009] FCA 689.
Liddiard v Bostik Australia Pty Ltd & Anor
S177/2009.
Special leave dismissed with costs.
Appealed from NSW SC (CA): [2009] NSWCA 167.
Lujans v Yarrabee Coal Company Pty Ltd & Anor
S201/2009.
Special leave dismissed with costs.
Appealed from NSW SC (CA): [2009] NSWCA 85.
M W McIntosh Pty Ltd & Anor v Commissioner of Taxation
S205/2009.
Adjourned to a date to be fixed
Appealed from FCA FC: [2009] FCAFC 88.
Concept Equity Pty Ltd v Challenger Group Holdings Ltd
S222/2009.
Special leave dismissed with costs.
Appealed from NSW SC (CA): [2009] NSWCA 190.
Lopwell Pty Ltd v Clarke & Ors
S233/2009.
Special leave dismissed with costs.
Appealed from NSW SC (CA): [2009] NSWCA 165.
Lewis v Shimokawa
S267/2009.
Special leave dismissed with costs.
Appealed from NSW SC (CA): [2009] NSWCA 266.
Hastings Point Progress Association v Tweed Shire Council & Anor
S270/2009.
Special leave dismissed with costs.
Appealed from NSW SC (CA): [2009] NSWCA 285.
Melbourne: 12 February 2010
Civil
Gilchrist & Anor v Down
A11/2009.
Special leave dismissed with costs.
Appealed from SA SC FC: [2009] SASC 217.
McDonald v State of South Australia
A12/2009.
Special leave dismissed with costs.
Appealed from SA SC FC: [2009] SASC 219.
Fifteenth Eestin Nominees Pty Ltd & Ors v Rosenberg & Anor
M82/2009.
Special leave dismissed with costs.
Appealed from Vic SC (CA): [2009] VSCA 112.
Manaf & Ors v Minister for Immigration and Citizenship & Anor
M87/2009.
Special leave dismissed with costs.
Appealed from FCA: [2009] FCA 963.
Johnstone v Director of Public Prosecutions
M88/2009.
Extension of time refused.
Appealed from Vic SC (CA): (no media neutral citation).
Inglis v Metrolink Victoria Pty Ltd
M95/2009.
Special leave dismissed with costs.
Appealed from Vic SC (CA): [2009] VSCA 227.
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