High Court Bulletin

[2008] HCAB 10

High Court Bulletin

Produced by the High Court of Australia Library

[2008] HCAB 10 (21 October 2008)

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 September–October 2008 sittings.

Lujans v Yarrabee Coal Company Pty Ltd

High Court of Australia: [2008] HCA 51.

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

Judgment delivered: 16 October 2008.

Catchwords:

Torts — Causation — Road accident — Whether road deceptive due to defendants' maintenance — Whether driver error constituted contributory negligence — Whether driver error sole cause of accident.

Courts — Jurisdiction and powers on appeal — Court of Appeal of Supreme Court of New South Wales — Whether rehearing under Supreme Court Act 1970 (NSW), s 75A(5) properly conducted — Whether failure to conduct real review of trial.

Courts — Jurisdiction and powers on appeal — Court of Appeal of Supreme Court of New South Wales — Conduct of rehearing — Whether evidence and trial judge's findings adequately considered — Whether original photographs relied upon — Whether inconsistent evidence taken into account.

Words and phrases — “appeal”, “rehearing”.

Appealed from NSW CA: [2007] NSWCA 342; (2007) 49 MVR 178.

Northern Territory v Collins

High Court of Australia: [2008] HCA 49.

Gummow ACJ, Kirby, Hayne, Heydon and Crennan JJ.

Judgment delivered: 16 October 2008.

Catchwords:

Intellectual property — Patents — Infringement — Contributory infringement — Respondents owned patent for methods of producing oils from species of a particular genus of tree — Appellant Territory licensed third party (“ACOC”) to enter Crown land and remove timber from trees of this species — Patents Act 1990 (Cth), s 117(1) provided that, if “use of a product by a person” would infringe a patent, “supply” of that product by one person to another was an infringement by supplier — Respondents alleged Territory infringed patent by supply of timber to ACOC — Relationship between exclusive rights to exploit patent and s 117 — Meaning of “product” in s 117 where patent said to be infringed is for method or process — Whether “product” confined to product that itself results from use of a patented method or process.

Intellectual property — Patents — Infringement — Contributory infringement — Meaning of “supply” in s 117 — Whether grant of licences to sever and take timber from Crown land constituted “supply” of timber by Territory for purposes of s 117(1) — Relevance of classification of interest of ACOC as realty or personalty.

Intellectual property — Patents — Infringement — Contributory infringement — Section 117(2)(b) provided that “use of a product by a person” in s 117(1) meant “any use” if product was not a “staple commercial product” — Meaning of “staple commercial product” — Whether timber taken by ACOC under licences a “staple commercial product”.

Words and phrases — “exploit”, “method or process”, “product”, “staple commercial product”, “supply”, “use of a product by a person”.

Appealed from FCA FC: [2007] FCAFC 152; (2007) 161 FCR 549; (2007) 243 ALR 483; (2007) 74 IPR 296.

Sok v Minister for Immigration and Citizenship

High Court of Australia: [2008] HCA 50.

Gummow, Hayne, Heydon, Crennan and Kiefel JJ.

Judgment delivered: 16 October 2008.

Catchwords:

Citizenship and migration — Visa — Spouse visa — Non-judicially determined claim of domestic violence — Grant of relevant permanent visa required visa applicant to remain spouse of sponsor at time of grant — Exception where relationship had ceased and visa applicant had suffered domestic violence committed by sponsoring spouse — Minister's delegate not satisfied applicant was spouse of sponsor — Grant of visa refused — After Minister's refusal, applicant claimed to have suffered domestic violence — Timing of claim — Whether domestic violence exception can be engaged where applicant first raises domestic violence claim in application to Migration Review Tribunal (“Tribunal”) for review of Minister's refusal — Whether Div 1.5 of Migration Regulations 1994 (Cth) (“Regulations”) applies to review by Tribunal or confines criteria for grant of visa to claims before original decision-maker.

Citizenship and migration — Visa — Spouse visa — Non-judicially determined claim of domestic violence — Conduct of review by Tribunal — Tribunal to exercise powers and discretions conferred by Migration Act 1958 (Cth) (“Act”) on Minister — Under Div 1.5 of Regulations, Minister must be satisfied applicant suffered domestic violence — If not satisfied, Minister must take opinion of independent expert as correct — Whether Tribunal can reach state of non-satisfaction without permitting applicant to appear before Tribunal to give evidence and present arguments under s 360 of Act — Whether review conducted in accordance with requirements of Div 5 of Pt 5 of Act — Whether opinion of independent expert dispositive.

Words and phrases — “non-judicially determined claim of domestic violence”, “not satisfied”, “relevant domestic violence”, “spouse”.

Appealed from FCA FC: [2008] FCAFC 18; (2008) 165 FCR 586; (2008) 245 ALR 488; (2008) 100 ALD 260.

SZHDC v Minister for Immigration and Multicultural Affairs & Anor

High Court of Australia: [2008] HCATrans 355.

Order by consent pronounced: 16 October 2008.

Appealed from FCA: [2006] FCA 600.

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 9 [2008] HCAB 9.

Constitutional Law

****Wong v Commonwealth of Australia & Anor; Selim v Lele & Ors

S362/2008; S363/2008: [2008] HCATrans 352.

Date heard: 14 October 2008 — Judgment reserved.

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

Catchwords:

Constitutional law — Power to make laws with respect to the provision of medical and dental services (but not so as to authorise any form of civil conscription) — Health Insurance Act 1973 (Cth) (“the Act”) — Professional Services Review Scheme — Medical practitioners required not to engage in “inappropriate practice” — Meaning of “civil conscription” — Whether ss 10, 20, 20A and Part VAA (or any provision of Part VAA) of the Act amount to “civil conscription” within the meaning of s 51(xxiiiA) of the Constitution, and are outside the legislative powers of the Commonwealth and invalid.

Appealed from FCA FC: [2008] FCAFC 13; (2008) 167 FCR 61; (2008) 246 ALR 61.

Wurridjal & Ors v The Commonwealth of Australia & Anor

M122/2007: [2008] HCATrans 348; [2008] HCATrans 349.

Date heard: 2–3 October 2008 — Judgment reserved.

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

Catchwords:

Constitutional law — Acquisition of property other than on just terms — Aboriginal land — Five year lease to Commonwealth —Whether ss 31, 32, 34, 35, 36, 37, 50, 51, 52, 60, 61, 62, 68(2) and 134 of Northern Territory National Emergency Response Act 2007 (Cth) (“the Emergency Response Act”) and items 12, 15 and 18 to Sch 4 of Families, Community Services and Indigenous Affairs and Other Legislation Amendment (Northern Territory National Emergency Response and Other Measures) Act 2007 (Cth) ("impugned provisions") effect acquisition of property subject to Constitution, s 51(xxxi) — Whether s 51(xxxi) applies to impugned provisions — Whether s 51(xxxi) abstracts power to acquire property from Constitution, s 122 — Whether impugned provisions enacted for purposes in ss 51(xxvi) and 51(xxix) — Whether acquisition of property other than on just terms and therefore invalid — Whether payment of reasonable compensation is just terms — Constitution, ss 51(xxxi), 51(xxvi), 51(xxix), 122.

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

Contract

Agricultural & Rural Finance Pty Ltd v Gardiner & Anor

S180/2008: [2008] HCATrans 264.

Date heard: 31 July 2008 — Judgment reserved.

Gummow, Kirby, Hayne, Heydon and Kiefel JJ.

Catchwords:

Contract — Loan Agreements — Indemnity Agreements — Common form —  Construction — Punctual payment — Clauses 2(a) and 2(b) of Indemnity Agreements provide that indemnity shall be effective and enforceable if Borrower has “punctually paid” interest and reductions of Principal Sum payable under Loan Agreement — Whether the requirements for “punctual payment” in cll 2(a) and 2(b) of the Indemnity Agreement bore their original meaning, namely, that the payments had to be made on or before the day fixed for payment by the Loan Agreements in question.

Contract — Loan Agreements — Indemnity Agreements — Common form — Construction  — Waiver — Variation — Punctuality — Appellant sent letter (dated 2 June 1999) to first respondent indicating that as the appellant had failed to send reminder notices, payment would be accepted as “on time” until a later date — Whether the appellant’s letter to the first respondent constituted a variation or waiver of the first respondent’s obligations under the first and second Loan Agreements to make instalments of principal and interest by the due dates — If so, whether such variation or waiver, if made without the consent of the second respondent as surety, constituted a variation or waiver of the requirements of cll 2(a) and 2(b) of the Indemnity Agreements.

Appealed from NSW CA: [2007] NSWCA 235; (2008) Aust Contract R 90–274.

Criminal Law

Cesan v The Queen; Mas Rivadavia v The Queen

S233/2008; S236/2008: [2008] HCATrans 320.

Date heard: 3 September 2008 — Orders made on 3 September 2008 allowing the appeals. Written reasons of the Court to be published at a future date.

French CJ, Gummow, Hayne, Heydon, Crennan and Kiefel JJ.

Catchwords:

Criminal law — Appeal and new trial — Miscarriage of justice — Judge asleep during trial — Where appellant is not able to point to any particular error on part of trial judge in the conduct of the trial — Whether the fact that a trial judge, sitting with a jury, was asleep during the course of a trial, constitutes a substantial miscarriage of justice — Criminal Appeal Act 1912 (NSW), s 6.

Criminal law — Appeal and new trial — Miscarriage of justice — Where a court of criminal appeal has no particular experience in assessing impact on a jury of conduct complained of — What must defendant show to establish “miscarriage of justice” in such circumstances — Criminal Appeal Act 1912 (NSW), s 6.

Criminal law — Appeal and new trial — Judge asleep during trial — Fundamental defect — Proviso — Whether the fact that a judge is asleep for parts of a trial is a fundamental defect to which proviso cannot be applied — Criminal Appeal Act 1912 (NSW), s 6 — Weiss v The Queen (2005) 224 CLR 300.

Appealed from NSW CCA: [2007] NSWCCA 273; (2007) 174 A Crim R 385.

The Queen v Keenan

B23/2008: [2008] HCATrans 347.

Date heard: 1 October 2008 — Judgment reserved.

Kirby, Hayne, Heydon, Crennan and Kiefel JJ.

Catchwords:

Criminal law — Interpretation — Criminal Code (Qld) (“the Code”), s 8 — Offences committed in prosecution of common purpose — “[O]ffence….of such a nature” — Conviction for grievous bodily harm with intent — Complainant was shot — Court of Appeal held that it was not sufficient for the prosecution to demonstrate that a probable consequence of the plan was the generic offence of doing grievous bodily harm with intent, but that it had to establish that a probable consequence of the plan was doing grievous bodily harm with intent by intentionally shooting — Whether the meaning of the term “offence….of such a nature” in s 8 of the Code, requires the Crown, in order to satisfy the requirements of s 8, to prove beyond a reasonable doubt that the mechanism by which the offence said to have been committed in the prosecution of the unlawful purpose was a probable consequence of the prosecution of the unlawful purpose.

Appealed from Qld CA: [2007] QCA 440.

Equity

Spry v Kennon & Ors; Kennon & Anor v Spry & Ors

M26/2008; M25/2008: [2008] HCATrans 319.

Date heard: 2 September 2008 — Judgment reserved.

French CJ, Gummow, Hayne, Heydon and Kiefel JJ.

Catchwords:

Equity — Trusts — Where a beneficiary of a trust has, by deed, formally and absolutely released all beneficial rights and interest in the trust — Whether the beneficiary can subsequently cancel the release so as to acquire again beneficial rights or an interest in the trust — Whether a cancellation of a deed operates retrospectively so as to nullify releases or dispositions of property that have already occurred.

Equity — Trusts — Family law — Divorce — Family trust — Husband is sole trustee — Whether the trustee of a trust, in which neither party to the relevant marriage has beneficial rights or a beneficial interest, can be compelled by order of the Family Court of Australia to admit one of those parties as a beneficiary or to confer beneficial rights in the trust upon the party — Rights of other beneficiaries.

Family law — Divorce — Property settlement — Family trust — Husband originally a beneficiary — Husband always sole trustee — Where a beneficiary of a trust has, by deed, formally and absolutely released all beneficial rights and interest in the trust — Whether the Family Court of Australia can subsequently treat the trust property as the releasor’s and include all or any of that property in the releasor’s property for the purpose of ss 4, 75, 79 or 85A of the Family Law Act 1975 (Cth) — Rights of other beneficiaries.

Appealed from Fam CA: [No media neutral citation].

Evidence

See Practice and Procedure: Parker v Comptroller–General of Customs.

Family Law

See Equity: Spry v Kennon & Ors; Kennon & Anor v Spry & Ors.

Intellectual Property

****IceTV Pty Ltd v Nine Network Australia Pty Ltd

S415/2008: [2008] HCATrans 356; [2008] HCATrans 357.

Date heard: 16–17 October 2008 — Judgment reserved.

French CJ, Gummow, Hayne, Heydon, Crennan and Kiefel JJ.

Catchwords:

Intellectual property — Copyright — Infringement — Television program schedules — Appellants created electronic program guide using, in part, information reproduced from Respondent's weekly television schedules — Whether Appellants infringed copyright of Respondent as “original literary works”, being “compilations” — Whether “substantial part” of copyright work reproduced — Relevance of originality of part reproduced — Relevance of skill and labour expended by Respondent creating part reproduced — Relevance of “preparatory” or “antecedent” skill and labour in determining programs to be broadcast — Copyright Act 1968 (Cth), ss 10, 14.

Intellectual property — Copyright — Original literary works — Compilations — Extent of copyright in compilations — Meaning of “original” — Whether degree of creativity essential to subsistence of copyright — Whether copyright extends only to matters of form, arrangement and expression — Correctness of Desktop Marketing Systems Pty Ltd v Telstra Corporation Ltd (2002) 119 FCR 491.

Appealed from FCA FC: [2008] FCAFC 71; (2008) 168 FCR 14; (2008) 76 IPR 31; (2008) AIPC ¶92-285.

Practice and Procedure

Parker v Comptroller–General of Customs

S317/2008: [2008] HCATrans 332.

Date heard: 24 September 2008 — Judgment reserved.

French CJ, Gummow, Hayne, Heydon and Kiefel JJ.

Catchwords:

Practice and procedure — Procedural fairness — Illegality of conduct of Customs officers regarding the issue and execution of a Customs Warrant — Where the Court of Appeal overturned finding made by the trial judge in favour of the Applicant as to illegal conduct by Customs, based on the correctness of the judgment in O’Neill’s Case (unreported; NSW District Court, 18 August 1988), without the respondent seeking such an outcome or the Court of Appeal giving notice that it would consider it.

Evidence — Exclusion of evidence obtained improperly or in contravention of an Australian law.

Appealed from NSW CA: [2007] NSWCA 348; (2007) 243 ALR 574.

Private International Law

Puttick v Fletcher Challenge Forests Limited

M40/2008: [2008] HCATrans 322.

Date heard: 4 September 2008 — Judgment reserved.

French CJ, Gummow, Hayne, Heydon, Crennan and Kiefel JJ.

Catchwords:

Private international law — Torts — Negligence — Place of occurrence of the tort — Respondent a New Zealand company — Appellant employed by New Zealand subsidiary of Respondent — Appellant sent by employer from New Zealand to visit asbestos manufacturing plants in Belgium and Malaysia — Appellant later died of mesothelioma in Australia — Claim for damages for personal injury caused by an alleged negligent omission to act on the part of the Respondent — Whether the place of occurrence of a tort is the place where the act or omission of the defendant gives the plaintiff a cause of complaint in law — Whether that test requires locating a consequential event involving the plaintiff that gives the omission factual, causal and legal significance.

Private international law — Torts — Overseas inhalation of asbestos — Applicable law — Victorian Court of Appeal held that the applicable law was not the place where the toxic substance was inhaled — Whether that decision involves a departure from the common law of Australia as stated in other cases concerning overseas inhalation of asbestos.

Private international law — Forum non conveniens — Torts — Application by Respondent for permanent stay — Where governing law is said to be the law of New Zealand — Where New Zealand law a no fault statutory scheme — Where Appellant resident in Victoria and some factors connected to Victoria — Where other factors connected to New Zealand — Whether Victoria a clearly inappropriate forum.

Appealed from Vic CA: [2007] VSCA 264; (2007) 18 VR 70.

Taxation

Commissioner of Taxation v Day

S315/2008: [2008] HCATrans 315.

Date heard: 28 August 2008 — Judgment reserved.

Gummow, Kirby, Hayne, Heydon and Kiefel JJ.

Catchwords:

Taxation — Deductions — Legal expenses — Taxpayer involved in legal proceedings concerning alleged failure to fulfil duties as public officer — Whether legal expenses incurred by taxpayer in defending disciplinary and other action deductible pursuant to s 8-1 of the Income Tax Assessment Act 1997 (Cth) (“the Act”) — Whether legal expenses were incurred in gaining or producing assessable income of taxpayer within s 8-1(1)(a) of the Act and/or are of a capital, private or domestic nature within s 8-1(2) of the Act.

Appealed from FCA FC: [2007] FCAFC 193; (2007) 164 FCR 250; (2007) 243 ALR 448; (2007) 67 ATR 936; (2007) ATC 5426.

Commissioner of Taxation v Word Investments Limited

M41/2008: [2008] HCATrans 314.

Date heard: 27 August 2008 — Judgment reserved.

Gummow, Kirby, Hayne, Heydon and Crennan JJ.

Catchwords:

Taxation — Income tax — Exemptions — Charitable institution — Respondent established by persons associated with Wycliffe Bible Translators Australia — Respondent’s Memorandum of Association sets out commercial objects and also objects relating to the advancement of religion and things conducive to the good of religion — Distributes part of profits to charities — Whether a company whose sole activity is the conduct of a commercial and investment enterprise for profit is a charitable institution because it exercises the discretion conferred under its Memorandum of Association to distribute its profits from time to time to one or more charitable institutions — Income Tax Assessment Act 1997 (Cth), s 50-5.

Taxation — Income tax — Exemptions — Charitable institution — Whether a company whose sole activity is the conduct of a commercial and investment enterprise for profit is a charitable institution because it distributes such part of the profits as it does not retain for its own business purposes for purposes that are, and are permitted by the Memorandum to be, both charitable and non—charitable Income Tax Assessment Act 1997 (Cth), s 50-5.

Taxation — Income tax — “Principally in Australia” — Whether a company that derives its profits in Australia, principally for the purpose of applying the profits by donating them in Australia to another entity which pursues its objectives outside Australia, is pursuing its objectives principally in Australia when it so applies its profits — Income Tax Assessment Act 1997 (Cth), s 50-50.

Appealed from FCA FC: [2007] FCAFC 171; (2007) 164 FCR 194; (2007) 243 ALR 44; (2007) ATC 5164.

3: Original Jurisdiction

There are currently no cases ready for hearing in the original jurisdiction of the High Court of Australia.

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 9 [2008] HCAB 9.

Constitutional Law

K–Generation Pty Ltd & Anor v Liquor Licencing Court & Anor

A12/2008: [2008] HCATrans 197.

Date heard: 23 May 2008 — Special leave granted.

Catchwords:

Constitutional law — Judicial power — Chapter III court — Liquor Licensing Court of South Australia — Required to hear and determine a review without disclosing to the applicant information classified as “criminal intelligence” relied on by the Liquor Licensing Commissioner in refusing an application for a licence — Validity — Natural justice — Whether legislation requiring a court capable of exercising federal jurisdiction to make a determination at trial level on the basis of evidence not to be disclosed to the affected party is constitutionally invalid — Constitution, Ch III — Liquor Licensing Act 1997 (SA), s28A.

Appealed from SA SC: [2007] SASC 319; (2007) 99 SASR 58; (2007) 213 FLR 394; (2007) 250 LSJS 375.

Contracts

Campbell & Anor v Backoffice Investments Pty Ltd & Anor

S261/2008: [2008] HCATrans 310.

Date heard: 26 August 2008 — Special leave granted.

Catchwords:

Contracts — Misleading and deceptive conduct — Reliance — Pre-contractual representations — Share purchase agreement — Contract provided that purchaser “has not relied on any warranty made by … the Vendor” — Vendor made incorrect representations regarding the company’s finances — Whether purchaser relied on representations — Whether conduct amounted to misleading and deceptive conduct under Fair Trading Act 1987 (NSW), s 42 — Whether remedy amounting to setting aside sale agreement appropriate.

Appealed from NSW CA: [2008] NSWCA 95; (2008) 66 ACSR 359; (2008) 26 ACLC 537.

Courts and Judicial System

Keramianakis & Anor v Regional Publishers Pty Ltd

S311/2008: [2008] HCATrans 230; [2008] HCATrans 331.

Date heard: 13 June 2008 — Special leave granted; 23 September 2008 — Case adjourned to allow supplementary written submissions and filing of notices under Judiciary Act 1903 (Cth), s 78B.

Catchwords:

Courts and judicial system — Jurisdiction — Appeal — Interpretation — District Court Act 1973 (NSW), s 127 — Whether there is any right to appeal to the New South Wales Court of Appeal from a civil trial with a jury in the District Court under s 127 of the District Court Act 1973 (NSW) — Whether the New South Wales Court of Appeal has power to order a verdict for the appellant or a retrial in an appeal to it from a civil trial in the District Court.

Defamation — Jury verdicts — Imputations — Applicants brought defamation action against the respondent regarding an article published by them and against a general practitioner (“the GP”), who was quoted in the article — Jury was asked to find an imputation that the first or second applicant, as a medical practitioner, was more concerned with making money than the well–being of his patients — Jury found that such an imputation to be conveyed by quotes of the GP, however, that such an imputation was not made out against the respondents in relation to the article — Whether there was any reasonable basis for the jury to conclude that this imputation was not conveyed by the publication.

Appealed from NSW CA: [2007] NSWCA 375.

Criminal Law

Jones v The Queen

B24/2008: [2008] HCATrans 337.

Date heard: 30 September 2008 — Special leave granted.

Catchwords:

Criminal law — Propensity evidence — Admissibility of — Applicant and another conjointly charged with murder — Trial Judge refused to let Applicant develop that co-accused had attempted to murder a friend on another occasion and had been previously charged with occasioning grievous bodily harm — Whether miscarriage of justice occurred.

Appealed from Qld CA: [2007] QCA 443.

PNJ v The Queen

A8/2008: [2008] HCATrans 291.

Date heard: 8 August 2008 — Referred to Full Court.

Catchwords:

Criminal law — Double jeopardy — Abuse of process — Applicant stabbed victim — Found not guilty of attempted murder but guilty of wounding with intent to cause grievous bodily harm — Victim died as result of stabbing after verdicts delivered — An Information subsequently laid against applicant for offence of murder — Applicant has served majority of head-sentence — Whether it is an abuse of process by reason of double punishment, for the applicant to be tried again for murder in respect of the same stabbing where, if convicted, a sentence will consist of (1) a second conviction; (2) a second head sentence — the usual mandatory sentence of life imprisonment; and (3) a second non-parole period — of a mandatory minimum 20 years.

Criminal law — Sentencing — Non-parole period — Backdating — Whether it is possible to avoid an abuse of process, by the sentencing court “backdating” a non-parole period punishment pursuant to s 30 of the Criminal Law (Sentencing) Act 1988 (SA) (“the Act”) so that the two sentences for the stabbing operate concurrently from the time when the first sentence began — Whether it is correct for the court hearing the stay to assume that a future sentencing court will backdate a sentence in this way.

Criminal law — Sentencing — Non-parole period — Power to backdate — Whether s 30(1) of the Act empowers a sentencing court to backdate the commencement of the non-parole period, and thereby render nugatory the new 20 year minimum mandatory non-parole period — If so, whether it is within the exercise of such a power to impose a sentence that precedes the commission of the crime.

Appealed from SA SC: [2008] SASC 97; (2008) 254 LSJS 302.

Defamation

Radio 2UE Sydney Pty Ltd v Chesterton

S190/2008: [2008] HCATrans 346.

Date heard: 30 September 2008 — Special leave granted.

Catchwords:

Defamation — Whether a class of “business defamation”, as opposed to “general defamation”, exists at common law — Whether Gacic v John Fairfax Publications Pty Ltd (2006) 66 NSWLR 675 should be overruled.

Appealed from NSW CA: [2008] NSWCA 66; (2008) Aust Torts Reports ¶81-946.

See also Courts and Judicial System: Keramianakis & Anor v Regional Publishers Pty Ltd.

Equity

Friend v Brooker & Anor

S306/2008: [2008] HCATrans 344.

Date heard: 30 September 2008 — Special leave granted.

Catchwords:

Equity — Equitable contribution — “Co-ordinate liability” — Applicant and Respondent company directors — Respondent personally borrowed money which was on-lent to the company — Company ceased trade and Respondent sought funds to repay personal loan — Whether fiduciary duty existed between the two — Whether co-ordinate liability existed so as to require equitable contribution from Applicant.

Appealed from NSW CA: [2008] NSWCA 118.

Immigration

Minister for Immigration and Citizenship v Kumar & Anor

S204/2008: [2008] HCATrans 341.

Date heard: 30 September 2008 — Special leave granted.

Catchwords:

Immigration — “Non-disclosable information” — Breach of confidence — Scope of inquiry into — Informant provided information to Migration Review Tribunal regarding Respondent’s visa application — Whether information is “non-disclosable information”, defined under s 5(1) of the Migration Act 1958 (Cth) as information which, if disclosed, would found an action for breach of confidence — Whether consideration of “iniquity defence” (a true defence to breach of confidence) lies beyond scope of inquiry mandated by definition of “non-disclosable information” — Migration Act 1958 (Cth), s 359A(1).

Appealed from FCA FC: [No media neutral citation].

Landlord and Tenant

Tabcorp Holdings Ltd v Bowen Investments Pty Ltd

M63/2008: [2008] HCATrans 266.

Date heard: 1 August 2008 — Special leave granted.

Catchwords:

Landlord and tenant — Breach of covenant in lease — Damages — Rule in Joyner v Weeks [1891] 2 QB 31 (“Joyner”) — Where, in breach of a covenant in a lease, the lessee failed to get consent for removing the existing foyer and replacing it with a new foyer in a different style — Where the lessee’s breach caused no damage to the value of the building and only nominal diminution in the lessor’s reversion, and any foyer in place at the end of the lessee’s tenancy would need extensive renovation — Whether, in such circumstances, damages for the breach to be assessed by reference to Joyner, or whether that assessment should be governed by the principles that generally determine damages for breach of contract — Scope of rule in Joyner — Whether the Full Court should not have relied on Joyner to conclude that the appropriate measure of damage was reinstatement cost rather than the diminution in value of the premises or the reversionary interest.

Practice and procedure — Procedural fairness — Where the Full Court considered the repair covenant in the lease, and a particular construction of an agreement between the parties that was accepted into evidence on appeal as decisive in assessing damages — Where neither ground formed part of the respondent’s case at first instance or on appeal — Whether the Full Court exceeded its proper role and denied the applicant procedural fairness by deciding the appeal on these grounds.

Appealed from FCA FC: [2008] FCAFC 38; (2008) 166 FCR 494; (2008) 247 ALR 208; (2008) ANZ ConvR ¶8–018.

Local Government

R & R Fazzolari Pty Ltd v Parramatta City Council; Mac’s Pty Ltd v Parramatta City Council & Anor

S323/2008; S324/2008: [2008] HCATrans 305.

Date heard: 26 August 2008 — Special leave granted.

Catchwords:

Local government — Compulsory land acquisition — Statutory interpretation — Section 188(1) of the Local Government Act 1993 (NSW) (“the Act”) provides that “[a] Council may not acquire land … if it is being acquired for the purpose of re-sale” — Definition of “purpose” — Whether land acquired for part of a redevelopment project by private developers falls within prohibition contained in the Act.

Appealed from NSW CA: [2008] NSWCA 132.

Police

Stuart & Anor v Kirkland–Veenstra & Anor

M39/2008: [2008] HCATrans 217.

Date heard: 23 May 2008 — Special leave granted.

Catchwords:

Police — Torts — Duty of care — Respondents found the applicant’s husband sitting in his car with a tube running from the exhaust through to the rear window at 5:40am — Spoke to applicant’s husband and allowed him to leave the car park — Applicant’s husband committed suicide later on that day — Whether a duty of care should be imposed on police officers, which requires them to take reasonable care to protect a member of the public from the risk of suicide, by reason of the existence of a discretionary statutory power of apprehension — Mental Health Act 1986 (Vic), s 10.

Police — Torts — Duty of care — Whether, in considering the existence or otherwise of such a duty of care, police officers should be equated with a statutory authority and thus the criteria formulated for the imposition of a duty of care on statutory authorities should be applied.

Police — Powers of apprehension — Apprehension of mentally ill persons in certain circumstances — Interpretation — Whether s 10 of the Mental Health Act 1986 (Vic) requires a police officer to regard a person who attempts suicide as a person who is mentally ill and therefore liable to apprehension by the police officer.

Appealed from Vic CA: [2008] VSCA 32; (2008) Aust Torts Reports ¶81–936.

Practice and Procedure

See Landlord and Tenant: Tabcorp Holdings Ltd v Bowen Investments Pty Ltd.

Workers’ Compensation

Hickson v Goodman Fielder Ltd

S202/2008: [2008] HCATrans 345.

Date heard: 30 September 2008 — Special leave granted.

Catchwords:

Workers’ compensation — Statutory construction — Worker injured by third party and paid workers’ compensation — Worker sued third party for damages and claim settled — No judicial determination of level of worker’s contributory negligence — Whether workers’ compensation payment reduced under s 151Z(1)(b) of Workers Compensation Act 1987 (NSW) by total sum recovered from third party or whether sum adjusted for contributory negligence — Effect of Law Reform (Miscellaneous Provisions) Act 1965 (NSW), s 10(2).

Appealed from NSW CA: [2008] NSWCA 69.

5: Special Leave Dismissed

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

Canberra: 17 October 2008

(Publication of reasons)

Civil

Di Carlo v Dubois & Ors

B55/2007: [2008] HCASL 537.

Special leave dismissed.
Appealed from Qld CA: [2007] QCA 316.

Hadiuzzaman v Minister for Immigration and Citizenship & Anor

M55/2008: [2008] HCASL 538.

Special leave dismissed.
Appealed from FCA: [2008] FCA 1015.

Narayan v Minister for Immigration and Citizenship & Anor

M59/2008: [2008] HCASL 539.

Special leave dismissed.
Appealed from FCA: [2008] FCA 687.

Vasiliou & Anor v Marchesi

M61/2008: [2008] HCASL 540.

Special leave dismissed.
Appealed from FCA FC: [2008] FCAFC 129.

SZLHA v Minister for Immigration and Citizenship & Anor

S312/2008: [2008] HCASL 541.

Special leave dismissed.
Appealed from FCA: [2008] FCA 782.

SZHNC v Minister for Immigration and Citizenship & Anor

S325/2008: [2008] HCASL 542.

Special leave dismissed.
Appealed from FCA: [2008] FCA 917.

SZLGS v Minister for Immigration and Citizenship & Anor

S326/2008: [2008] HCASL 543.

Special leave dismissed.
Appealed from FCA: [2008] FCA 893.

Wecker v Secretary, Department of Education Science and Training

S336/2008: [2008] HCASL 544.

Special leave dismissed.
Appealed from FCA FC: [2008] FCAFC 108.

SZCWE v Minister for Immigration and Citizenship & Anor

S338/2008: [2008] HCASL 545.

Special leave dismissed.
Appealed from FCA: [2008] FCA 1019.

SZLGW & Ors v Minister for Immigration and Citizenship & Anor

S328/2008: [2008] HCASL 546.

Special leave dismissed.
Appealed from FCA: [2008] FCA 942.

Astway Pty Ltd v Council of the City of the Gold Coast

B16/2008: [2008] HCASL 547.

Special leave dismissed with costs.
Appealed from Qld CA: [2008] QCA 73.

SZCOS v Minister for Immigration and Citizenship & Anor

S212/2008: [2008] HCASL 548.

Special leave dismissed with costs.
Appealed from FCA: [2008] FCA 570.

Muc v Deputy Commissioner of Taxation

S270/2008: [2008] HCASL 549.

Special leave dismissed with costs.
Appealed from NSW CA: [2008] NSWCA 96.

Vella v State of Western Australia

P10/2007: [2008] HCASL 552.

Special leave dismissed.
Appealed from WA CA: [2007] WASCA 59.

Eastman v Australian Capital Territory; Eastman v The Honourable Jeffrey Allan Miles & Anor

C5/2008; C6/2008: [2008] HCASL 553.

Special leave dismissed.
Appealed from ACT CA: [2008] ACTCA 7; [2008] ACTCA 8.

Criminal

Eastman v The Queen

C4/2008: [2008] HCASL 550.

Special leave dismissed.
Appealed from FCA FC: [2008] FCAFC 62.

The Queen v Bakewell

D1/2008: [2008] HCASL 551.

Special leave dismissed.
Appealed from NT CCA: [2008] NTCCA 3.