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High Court Bulletin

Produced by the High Court of Australia Library

[2009] HCAB 1 (17 February 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: Special Leave Dismissed

1: Cases Handed Down

The following cases were handed down by the High Court of Australia during the February 2009 sittings.

K-Generation Pty Limited v Liquor Licensing Court

High Court of Australia: [2009] HCA 4.

Judgment delivered: 2 February 2009.

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

Catchwords:

Constitutional law (Cth) — Chapter III — Judicial power — Vesting of federal jurisdiction in State courts — Licensing Court of South Australia established under Liquor Licensing Act 1997 (SA) (“Licensing Act”) — Licensing Court constituted by District Court judge — Whether Licensing Court “court of a State” within meaning of s 77(iii) of Constitution — Whether Licensing Court invested with federal jurisdiction by s 39(2) of Judiciary Act 1903 (Cth) (“Judiciary Act”) — Significance of absence of express power of punishment for contempt.
Constitutional law (Cth) — Chapter III — Judicial power — Vesting of federal jurisdiction in State courts — Integrity of State courts — Requirement of impartiality and independence for repository of federal jurisdiction — Licensing Act, s 28A required Licensing Court to take steps to maintain confidentiality of information classified by Commissioner of Police as “criminal intelligence” in proceedings under Licensing Act — Steps included receipt of evidence and argument in absence of parties — Whether s 28A invalid for denying Licensing Court character of independent and impartial tribunal.
Statutes — Interpretation — Licensing Act, s 28A — “Criminal intelligence” defined to include information which “could reasonably be expected” to prejudice criminal investigations — Whether classification by Commissioner of Police of information as “criminal intelligence” amenable to review by Licensing Court — Whether mandatory for Licensing Court to hear evidence and argument in absence of parties.
Constitutional law (Cth) — Chapter III — Judicial power — Vesting of federal jurisdiction in State courts — Integrity of State courts — Whether consequence of impairment of integrity is that Licensing Court no longer “court of a State” to which s 77(iii) of Constitution applies — Whether s 39(2) of Judiciary Act ambulatory and would cease to apply — Whether States may establish “court of a State” then subsequently deprive court of independence and impartiality.
Constitutional law (Cth) — Chapter III — Judicial power — Nature of judicial power — Whether exercise by Licensing Court of judicial or administrative power.
Practice and procedure — Interveners — Procedure where interveners seek remedy and assert arguments opposed by immediate parties.
Words and phrases — “could reasonably be expected”, “court of a State”, “criminal intelligence”.

Appealed from SA SC: [2007] SASC 319; (2007) 99 SASR 58

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2009] HCAB 1
Decision Date

CaseChat Overview and Summary

In K-Generation Pty Limited v Liquor Licensing Court, the High Court was asked to determine whether the Liquor Licensing Court of South Australia was a "court of a State" within the meaning of s 77(iii) of the Constitution and whether it was invested with federal jurisdiction by s 39(2) of the Judiciary Act. The Court also considered whether s 28A of the Licensing Act, which required the Licensing Court to maintain confidentiality of information classified as "criminal intelligence," impaired the court's integrity and independence, and whether such impairment meant the court was no longer a "court of a State." The Court held that the Licensing Court was indeed a "court of a State" and was invested with federal jurisdiction. However, the Court found that s 28A of the Licensing Act was invalid because it impaired the court's integrity and independence.

In Parker v Comptroller–General of Customs, the High Court examined whether the appellant was denied procedural fairness when the Court of Appeal decided an appeal without affording the appellant the opportunity to make submissions on a non-binding decision. The Court concluded that the appellant was not denied procedural fairness and that the Court of Appeal was not required to afford the appellant the opportunity to be heard on the non-binding decision.

In PNJ v The Queen, the High Court considered whether proceedings on an information alleging murder should be permanently stayed as an abuse of process. The Court held that the proceedings should not be stayed because the applicant had not demonstrated that the administration of justice had been brought into disrepute or that the prosecution for murder was unjustifiably oppressive. The Court also found that the applicant's conviction for wounding with intent to cause grievous bodily harm did not constitute double punishment for the conduct alleged in the murder charge.

In Tabcorp Holdings Ltd v Bowen Investments Pty Ltd, the High Court determined the appropriate measure of damages for a tenant's breach of a covenant not to make substantial alterations to the premises without consent. The Court held that the landlord was entitled to damages for diminution in value of the reversion, and that the principle in Robinson v Harman was not applicable in this case.

Orders