High Court Bulletin

[2009] HCAB 11

High Court Bulletin

Produced by the High Court of Australia Library

[2009] HCAB 11 (18 December 2009)

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, and refused special leave to appeal.

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 December 2009 sittings.

ICM Agriculture Pty Ltd v The Commonwealth

High Court of Australia: [2009] HCA 51.

Judgment delivered: 9 December 2009.

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

Catchwords:

Constitutional law (Cth) — Powers of Commonwealth Parliament — Agreement between Commonwealth and a State — National Water CommissionAct 2004 (Cth) authorised Chief Executive Officer (“CEO”) of National Water Commission to enter into funding agreement with State — Whether CEO authorised to enter into funding agreement with State for purpose of State acquiring property on other than just terms — Whether legislative power conferred by s 96 of Constitution, or by s 96 with s 51(xxxvi), is subject to limitations contained in s 51(xxxi) — Relevance of distinction between coercive and non-coercive legislative power.

Constitutional law (Cth) — Powers of Commonwealth Parliament — Acquisition of property on just terms — Plaintiffs held bore licences under Water Act 1912 (NSW) (“Water Act”) — Plaintiffs' licences replaced with aquifer access licences under Water Management Act 2000 (NSW) — Whether Water Act divested common law rights with respect to extraction of groundwater — Whether plaintiffs' Water Act licences property within s 51(xxxi) of Constitution — Whether replacement of licences amounted to acquisition of property.

Words and phrases — “abstraction”, “acquisition”, “coercive and non-coercive power”, “control”, “just terms”, “property”, “the use and flow”.

This matter was brought in the original jurisdiction of the High Court.

Taiapa v The Queen

High Court of Australia: [2009] HCA 53.

Judgment delivered: 16 December 2009.

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

Catchwords:

Criminal law — Defences — Compulsion — Applicant convicted of possession of and trafficking in a dangerous drug — Whether Court of Appeal erred in holding that evidence did not disclose a case fit for consideration by jury that there were reasonable grounds for applicant's belief that he was otherwise unable to escape the carrying out of the threat within the meaning of s 31(1)(d) of the Criminal Code (Q).

Words and phrases — “reasonable belief”.

Appealed from Qld SC (CA): [2008] QCA 204.

Zheng v Cai

High Court of Australia: [2009] HCA 52.

Judgment delivered: 9 December 2009.

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

Catchwords:

Tort — Negligence — Damages — Motor vehicle accident — Personal injury — Assessment — Economic loss — Regular payments made by church to applicant following motor vehicle accident — Whether benevolent payments should be taken into account when calculating damages — Whether intention of giver of benevolent payments determinative — Where collateral benefit exists for giving benevolent payments — Relevance of public policy in disregarding benevolent payments in assessment of damages.

Appeal — Issue not raised at trial — Motor vehicle accident — Personal injury — Economic loss — Issue at trial whether plaintiff an employee — Issue on appeal concerned real intent behind benevolent payments — Where applicant would have objected to admissibility of evidence or called further witnesses if issue raised at trial — Whether party bound by presentation of case at trial — Prejudice.

Words and phrases — “assessment of damages”, “benevolent payment”, “gift”, “intention”, “public policy”, “volunteer work”.

Appealed from NSW SC (CA): [2009] NSWCA 13.

Zurich Australian Insurance Ltd v Metals & Minerals Insurance Pte Ltd

High Court of Australia: [2009] HCA 50.

Judgment delivered: 2 December 2009.

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

Catchwords:

Insurance contracts — Validity of “other insurance” provision — Whether rendered void by s 45 of Insurance Contracts Act 1984 (Cth) — Where s 45 rendered void provisions in contracts of general insurance that had effect of limiting or excluding liability of insurer under the contract by reason that the insured had entered into some other contract of insurance — Whether s 45 applied to provision purporting to limit or exclude liability by reason that the insured was named as non-party beneficiary under another contract of insurance — Whether insured had “entered into” that contract within meaning of s 45.

Statutes — Interpretation — Meaning of “provision” in s 45 of Insurance Contracts Act 1984 (Cth) — Where “other insurance” clause applied in two different circumstances, only one of which attracted application of s 45 — Whether clause void only to the extent that it had the impugned effect — Whether clause void as a whole — Whether s 45 rendered void words or operation of clause.

Words and phrases — “double insurance”, “entered into”, “excess insurance”, “other insurance”, “provision”.

Appealed from WA SC (CA): [2009] WASCA 31.

Hamersley Iron Pty Ltd v Speno Rail Maintenance Australia Pty Ltd & Ors; Metals & Minerals Insurance Pte Ltd v Speno Rail Maintenance Australia Pty Ltd & Ors

High Court of Australia: [2009] HCATrans311.

Court pronounced orders: 2 December 2009.

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

These appeals (No P29 of 2009, No 30 of 2009) were listed for hearing together with Zurich Australian Insurance Limited v Metals and Minerals Insurance Proprietary Limited and Ors, No P33 of 2009. “In written submissions and during argument the appellants accepted that if the latter appeal were to be dismissed then these appeals would not need to be resolved. The appeal in P33 of 2009 having been dismissed it follows that these appeals should also be dismissed with costs.”

2: Cases Reserved

The following cases have been reserved for judgment by the High Court of Australia.

**** Indicates cases reserved for judgment since High Court Bulletin 10 [2009] HCAB 10.

Administrative Law

See Constitutional Law: Arnold & Ors v Minister Administering the Water Management Act 2000 & Ors.

See also Statutes: Kirk & Anor v Industrial Relations Commission of New South Wales & Anor; Kirk Group Holdings 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).

Constitutional Law

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

S110/2009: [2009] HCATrans 203; [2009] HCATrans 204.

Date heard: 27-28 August 2009 — Judgment reserved.

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

Catchwords:

Constitutional law — Grants power — Limits of — State acquisition of property — Whether Commonwealth legislative power under s 96 of the Constitution extends to grants authorised pursuant to an agreement requiring a State to acquire property on unjust terms — Constitution, ss 51(xxxi), 96.

Constitutional law — Abridgment of rights to use of water — Commonwealth “shall not, by any law or regulation of trade or commerce, abridge the right of a State or of the residents therein to the reasonable use of the waters of rivers for conservation or irrigation”: Constitution, s 100 — Whether prohibition in s 100 is limited to laws made under s 51(i) (“interstate trade and commerce”) — Whether Morgan v Commonwealth (1947) 74 CLR 421 should be reconsidered — Constitution, ss 51(i), 100.

Administrative law — Irrelevant considerations — Whether Minister acted on belief that intergovernmental agreement with Commonwealth was legally binding — Whether that belief mistaken.

Words and phrases — Meaning of the phrase “waters of rivers for conservation or irrigation” — Constitution, s 100.

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

****See also Criminal Law: The Queen v LK; The Queen v RK.

Courts and Judicial System

See Statutes: Kirk & Anor v Industrial Relations Commission of New South Wales & Anor; Kirk Group Holdings 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).

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.

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.

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.

Real Property

Mandurah Enterprises Pty Ltd & Ors v Western Australian Planning Commission

P15/2009: [2009] HCATrans 268.

Date heard: 12 October 2009 — Judgment reserved.

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

Catchwords:

Real property — Compulsory acquisition — Parts of various lots of land reserved under a town planning scheme called the Peel Regional Scheme (“PRS”) for “Primary Regional Road” — Land subsequently acquired by a single taking order under s 13 of the Town Planning and Development Act 1928 (WA) for the purposes of railways as well as primary regional roads — Acquisition included lands not reserved under PRS — Whether acquisition valid — Whether invalid takings of unreserved land and railway land can be severed from valid takings.

Real property — Compulsory acquisition — Whether acquisition of property for railway construction nonetheless valid under s 161 of the Land Administration Act 1997 (WA) permitting compulsory acquisition for public works — Whether acquiring body (a local authority) can acquire land under s 161 or whether it can only acquire land for town planning purposes.

Real property — Compulsory acquisition — Access to land — Whether acquiring body required to install level crossing to provide access to land under s 102 of the Public Works Act 1902 (WA).

Appealed from WA SC (CA): [2008] WASCA 211.

Statutes

Kirk & Anor v Industrial Relations Commission of New South Wales & Anor; Kirk Group Holdings 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)

S106/2009; S347/2008; S348/2008: [2009] HCATrans 237; [2009] HCATrans 238; [2009] HCATrans 239.

Date heard: 29-30 September, 1 October 2009 — Judgment reserved.

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

Catchwords:

Statutes — Interpretation — Employer charged under s 15 of the Occupational Health and Safety Act 1983 (NSW), which requires that “[e]very employer shall ensure the health, safety and welfare at work of all the employer’s employees” — Industrial Court of NSW discounted any suggestion that the duty is restricted to conduct that is “reasonably foreseeable” — Whether Industrial Court’s construction of s 15 renders provision incapable of compliance due to impossibility of creating risk free environment.

Administrative law — Jurisdictional error — Full Court of Industrial Court failed to consider one submission that underlay the basis upon which leave to appeal had been granted — Whether failure to consider this submission constituted jurisdictional error — Craig v South Australia (1995) 184 CLR 163.

Courts and judicial system — Jurisdiction — Whether an appeal lies to the High Court from a judgment of the Industrial Court of NSW.

Courts and judicial system — Jurisdiction — Appellants sought to appeal the decision of the trial judge in the NSW Court of Criminal Appeal and sought prerogative relief in the NSW Court of Appeal — Court of Criminal Appeal found no appeal was available under s 5 of the Criminal Appeal Act 1912 (NSW) — The Court of Appeal refused prerogative relief — Full Court of Industrial Court denied leave to file an appeal out of time — Whether it is appropriate for an appellate court dealing with a criminal matter to decline to exercise its discretion to hear an appeal out of time on the basis that the appellant sought an alternative right of appeal.

S346/2008 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.

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 10 [2009] HCAB 10.

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 10 [2009] HCAB 10.

Administrative Law

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.

Constitutional Law

****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.

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

S285/2009; S286/2009: [2009] HCATrans 323.

Date heard: 11 December 2009 — Special leave granted.

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 other members of the Lehman Group and was therefore invalid — The extent to which the object of Part 5.3A of the Act is to provide flexible and efficient means of enabling insolvent companies to be permitted by creditors or third parties to continue trading — Whether clauses in DOCA provided for some creditors to release claims against creditors, other than the company under administration, were valid— Whether provisions of the DOCA, providing for releases of claims of certain creditors against third parties, were outside the scope of Part 5.3A of the Act.

Statutes — Construction — Scope of Part 5.3A of the Corporations Act 2001 (Cth) (“Act”) — Whether parliament only intends to interfere with fundamental rights, including property rights, when it uses unambiguously clear language — Whether the scope of Part 5.3A permits the execution of a deed of company arrangement (“DOCA”) that deprives creditors of claims against persons other than the company subject to the DOCA.

Appealed from FCA FC: [2009] FCAFC 130.

Damages

European Bank Ltd v Robb Evans of Robb Evans & Associates

S91/2009: [2009] HCATrans 251.

Date heard: 2 October 2009 — Special leave granted.

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 Applicant 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 — Applicant 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.

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

John Alexander’s Clubs Pty Ltd & Anor v White City Tennis Club Ltd; Walker Corporation Pty Ltd v White City Tennis Club Ltd & Ors

S134/2009; S198/2009: [2009] HCATrans 285.

Date heard: 3 November 2009 — Special leave granted.

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).

S134/2009 appealed from NSW SC (CA): [2009] NSWCA 114.
S198/2009 appealed from NSW SC (CA): [2009] NSWCA 194.

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.

Insurance

Wallaby Grip Ltd v QBE Insurance (Australia) Ltd & Anor; Stewart v QBE Insurance (Australia) Ltd & Anor

S95/2009; S96/2009: [2009] HCATrans 249.

Date heard: 2 October 2009 — Special leave granted.

Catchwords:

Insurance law — Employer’s indemnity insurance — Workers’ compensation insurance — Scope of insurer’s liability — Employee, who died from mesothelioma, claimed during course of employment he was exposed negligently to asbestos dust and fibre which caused his mesothelioma — Proceedings continued by employee’s wife, and legal personal representative — Whether insurer is liable for more than the minimum limit of an employer’s indemnity policy under the Workers Compensation Act 1926 (NSW) — Whether onus is on insurer to prove cover is limited — Whether the issue of a monetary limitation on the policy of workers compensation insurance is an issue concerning the proof of an essential term of the policy or, rather an issue concerning the proof of the existence of the limitation of liability under the policy.

Appealed from NSW SC (CA): [2009] NSWCA 66.

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

S170/2009: [2009] HCATrans 252.

Date heard: 2 October 2009 — Special leave granted.

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 Applicant’s accountants requiring them to produce documents pertaining to individuals and entities including the Applicant — Notice contained a notation that prohibited the accountants from disclosing the existence of the Notice to the Applicant: Commission Act, s 29A — Notation was subsequently varied to allow accountants to disclose the existence of the Notice to the Applicant — 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.

****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.

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

D9/2009: [2009] HCATrans 240.

Date heard: 2 October 2009 — Special leave granted.

Catchwords:

Statutes — Interpretation — Construction of statute — Applicant 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 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 organism in or on any part of the Australian continental shelf not within the AFZ — Applicant convicted as he 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 a construction 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.

See also Immigration: Saeed v Minister for Immigration and Citizenship.

****See also Corporations: Lehman Brothers Holdings Inc v City of Swan & Ors; Lehman Brothers Asia Holdings Ltd (In Liquidation) v City of Swan & Ors.

****See also Constitutional Law: Cadia Holdings Pty Ltd & Anor v State of New South Wales & Anor.

Taxation

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.

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 10 [2009] HCAB 10.

There are no cases in the High Court of Australia that are not proceeding or have been vacated since High Court Bulletin 10 [2009] HCAB 10.

6: Special Leave Dismissed

The following cases were refused special leave to appeal to the High Court of Australia.

Sydney: 11 December 2009

Civil

SZKNX v Minister for Immigration and Citizenship & Anor

S488/2009.

Discontinued.

Alphapharm Pty Ltd v H Lundbeck A/S & Anor

S135/2009.

Special leave dismissed with costs.
Appealed from FCA FC: [2009] FCAFC 70.

Arrow Pharmaceuticals Pty Ltd v H Lundbeck A/S

S151/2009.

Special leave dismissed with costs.
Appealed from FCA FC: [2009] FCAFC 70.

H Lundbeck A/S & Anor v Alphapharm Pty Ltd

S164/2009.

Special leave dismissed with costs.
Appealed from FCA FC: [2009] FCAFC 70.

H Lundbeck A/S v Arrow Pharmaceuticals Pty Ltd

S165/2009.

Special leave dismissed with costs.
Appealed from FCA FC: [2009] FCAFC 70.

H Lundbeck A/S v Commissioner of Patents & Anor

S166/2009.

Special leave dismissed with costs.
Appealed from FCA FC: [2009] FCAFC 70.

Dura-Post (Aust) Pty Ltd v Delnorth Pty Ltd

S178/2009.

Special leave dismissed with costs.
Appealed from FCA FC: [2009] FCAFC 81.

Hoy Mobile Pty Ltd v Allphones Retail Pty Ltd

S184/2009.

Special leave dismissed with costs.
Appealed from FCA FC: [2009] FCAFC 85.

Cedric Bohrsmann Vass And The Other 24 Persons Named in Schedule “A” Hereto v Symonds & Ors

S186/2009.

Special leave dismissed with costs.
Appealed from NSW SC (CA): [2009] NSWCA 139.

Criminal

Mitreski v The Queen

S175/2009.

Special leave dismissed.
Appealed from NSW SC (CCA): [2008] NSWCCA 301.

Langbein v The Queen

S187/2009.

Special leave dismissed.
Appealed from NSW SC (CCA): [2008] NSWCCA 38.

Melbourne: 11 December 2009

Civil

Zhang v University of Tasmania & Ors

H6/2009.

Special leave dismissed with costs.
Appealed from FCA FC: [2008] FCAFC 35.

State of Tasmania v Johnston

H9/2009.

Special leave dismissed.
Appealed from Tas SC: [2009] TASSC 60.

Rixon v Thompson

M57/2009.

Special leave dismissed.
Appealed from Vic SC (CA): [2009] VSCA 84.

Glodale Pty Ltd & Ors v Investec Bank (Australia) Ltd

M58/2009.

Special leave dismissed with costs.
Appealed from Vic SC (CA): [2009] VSCA 97.

Bow Ye Investments Pty Ltd (in Liquidation) v Director of Public Prosecutions (Victoria) & Ors

M73/2009.

Special leave dismissed with costs.
Appealed from Vic SC (CA): [2009] VSCA 149.

Penola Trading Co Pty Ltd v Sunny Springs Pty Ltd

M77/2009.

Special leave dismissed with costs.
Appealed from Vic SC (CA): [2009] VSCA 161.

Sopov & Ors v Kane Constructions Pty Ltd

M79/2009.

Special leave dismissed with costs.
Appealed from Vic SC (CA): [2009] VSCA 141.

Criminal

Clarke v The Queen

M31/2009.

Special leave dismissed.
Appealed from Vic SC (CA): [2009] VSCA 43.

Athanasi v The Queen

M63/2009.

Special leave dismissed.
Appealed from Vic SC (CA): [2009] VSCA 43.

Cavkic v The Queen

M72/2009.

Special leave dismissed.
Appealed from Vic SC (CA): [2009] VSCA 43.

Canberra: 4 December 2009

(Publication of reasons)

Civil

SZKHV & Anor v Minister for Immigration and Citizenship & Anor

S194/2009: [2009] HCASL 237.

Special leave dismissed.
Appealed from FCA: [2009] FCA 823.

SZMWR v Minister for Immigration and Citizenship & Anor

S202/2009: [2009] HCASL 238.

Special leave dismissed.
Appealed from FCA: [2009] FCA 863.

SZNGF v Minister for Immigration and Citizenship & Anor

S204/2009: [2009] HCASL 239.

Special leave dismissed.
Appealed from FCA: [2009] FCA 843.

SZMYR v Minister for Immigration and Citizenship & Anor

S206/2009: [2009] HCASL 240.

Special leave dismissed.
Appealed from FCA: [2009] FCA 986.

SZMVW & Anor v Minister for Immigration and Citizenship & Anor

S207/2009: [2009] HCASL 241.

Special leave dismissed.
Appealed from FCA: [2009] FCA 824.

SZMOF v Minister for Immigration and Citizenship & Anor

S211/2009: [2009] HCASL 242.

Special leave dismissed.
Appealed from FCA: [2009] FCA 827.

SZMYN v Minister for Immigration and Citizenship & Anor

S216/2009: [2009] HCASL 243.

Special leave dismissed.
Appealed from FCA: [2009] FCA 840.

SZMYX & Anor v Minister for Immigration and Citizenship & Anor

S217/2009: [2009] HCASL 244.

Special leave dismissed.
Appealed from FCA: [2009] FCA 835.

SZNCZ v Minister for Immigration and Citizenship & Anor

S232/2009: [2009] HCASL 245.

Special leave dismissed.
Appealed from FCA: [2009] FCA 902.

SZMYG v Minister for Immigration and Citizenship & Anor

S236/2009: [2009] HCASL 246.

Special leave dismissed.
Appealed from FCA: [2009] FCA 946.

SZNIK v Minister for Immigration and Citizenship & Anor

S237/2009: [2009] HCASL 247.

Special leave dismissed.
Appealed from FCA: [2009] FCA 957.

SZIFJ v Minister for Immigration and Citizenship & Anor

S239/2009: [2009] HCASL 248.

Special leave dismissed.
Appealed from FCA: [2009] FCA 911.

SZMYI v Minister for Immigration and Citizenship & Anor

S240/2009: [2009] HCASL 249.

Special leave dismissed.
Appealed from FCA: [2009] FCA 934.

SZFQY v Minister for Immigration and Citizenship & Anor

S245/2009: [2009] HCASL 250.

Special leave dismissed.
Appealed from FCA: [2009] FCA 935.

SZMXY v Minister for Immigration and Citizenship & Anor

S246/2009: [2009] HCASL 251.

Special leave dismissed.
Appealed from FCA: [2009] FCA 995.

SZNBB v Minister for Immigration and Citizenship & Anor

S250/2009: [2009] HCASL 252.

Special leave dismissed.
Appealed from FCA: [2009] FCA 927.

SZNFS v Minister for Immigration and Citizenship & Anor

S252/2009: [2009] HCASL 253.

Special leave dismissed.
Appealed from FCA: [2009] FCA 919.

SZNJH v Minister for Immigration and Citizenship & Anor

S254/2009: [2009] HCASL 254.

Special leave dismissed.
Appealed from FCA: [2009] FCA 914.

SZNEV v Minister for Immigration and Citizenship & Anor

S212/2009: [2009] HCASL 255.

Special leave dismissed.
Appealed from FCA: [2009] FCA 876.

Canberra: 9 December 2009

(Publication of reasons)

Civil

Manwin v Board of Professional Engineers

B2/2009: [2009] HCASL 257.

Special leave dismissed.
Appealed from Qld SC (CA): [2008] QCA 348.

Mantonella Pty Ltd v Thompson

B18/2009: [2009] HCASL 258.

Special leave dismissed.
Appealed from Qld SC (CA): [2009] QCA 80.

CAO v Department of Child Safety & Ors

B25/2009: [2009] HCASL 259.

Special leave dismissed.
Appealed from Qld SC (CA): [2009] QCA 169.

Althaus & Anor v Australia Meat Holdings Pty Ltd & Anor

B33/2009: [2009] HCASL 260.

Special leave dismissed.
Appealed from Qld SC (CA): [2009] QCA 221.

Koutroumanis v Transport Accident Commission

M62/2009: [2009] HCASL 261.

Special leave dismissed.
Appealed from Vic SC (CA): [2009] VSCA 119.

Smolarek v Roper

P31/2009: [2009] HCASL 256.

Special leave dismissed.
Appealed from WA SC (CA): [2009] WASCA 124.

Smolarek v Roper

P32/2009: [2009] HCASL 262.

Special leave dismissed.
Appealed from WA SC (CA): [2009] WASCA 124.

SZMNS v Minister for Immigration and Citizenship & Anor

S148/2009: [2009] HCASL 263.

Special leave dismissed.
Appealed from FCA: [2009] FCA 777.

Luthra & Ors v Minister for Immigration and Citizenship & Anor

S152/2009: [2009] HCASL 264.

Special leave dismissed.
Appealed from FCA: [2009] FCA 575.

SZMSW v Minister for Immigration and Citizenship & Anor

S153/2009: [2009] HCASL 265.

Special leave dismissed.
Appealed from FCA: [2009] FCA 576.

SZMNP v Minister for Immigration and Citizenship & Anor

S157/2009: [2009] HCASL 266.

Special leave dismissed.
Appealed from FCA: [2009] FCA 596.

Samootin v Wagner & Ors

S169/2009: [2009] HCASL 267.

Special leave dismissed.
Appealed from FCA FC: [2009] FCAFC 77.

SZNBT & Anor v Minister for Immigration and Citizenship & Anor

S171/2009: [2009] HCASL 268.

Special leave dismissed.
Appealed from FCA: [2009] FCA 670.

SZMVE & Anor v Minister for Immigration and Citizenship & Anor

S173/2009: [2009] HCASL 269.

Special leave dismissed.
Appealed from FCA: [2009] FCA 691.

SZMOK & Anor v Minister for Immigration and Citizenship & Anor

S180/2009: [2009] HCASL 270.

Special leave dismissed.
Appealed from FCA FC: [2009] FCAFC 83.

SZKOB v Minister for Immigration and Citizenship & Anor

S181/2009: [2009] HCASL 271.

Special leave dismissed.
Appealed from FCA: [2007] FCA 1949.

SZJTW & Anor v Minister for Immigration and Citizenship & Anor

S185/2009: [2009] HCASL 272.

Special leave dismissed.
Appealed from FCA: [2009] FCA 756.

SZMWY v Minister for Immigration and Citizenship & Anor

M84/2009: [2009] HCASL 273.

Special leave dismissed.
Appealed from FCA: [2009] FCA 882.

Ferdinands v Lander and Ors

A18/2009: [2009] HCASL 274.

Special leave dismissed.
High Court of Australia: [2009] HCATrans 194.

Armellin v CLG and Anor

C2/2009: [2009] HCASL 275.

Special leave dismissed with costs.
Appealed from ACT SC (CA): [2009] ACTCA 6.

SZMCI v Minister for Immigration and Citizenship & Anor

S86/2009: [2009] HCASL 276.

Special leave dismissed with costs.
Appealed from FCA: [2009] FCA 98.