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: Summary of New Entries
2: Cases Handed Down
3: Cases Reserved
4: Original Jurisdiction
5: Section 40 Removal
6: Special Leave Granted
7: Cases Not Proceeding or Vacated
8: Special Leave Refused

1: Summary of New Entries

2: Cases Handed Down

Case	Title
Laundy Hotels (Quarry) Pty Limited v Dyco Hotels Pty Limited atf The Parras Family Trust & Ors	Contract
Mitchell v The King; Rigney v The King; Carver v The King; Tenhoopen v The King	Criminal Law
Barnett v Secretary, Department of Communities and Justice	Family Law
Self Care IP Holdings Pty Ltd & Anor v Allergan Australia Pty Ltd & Anor; Self Care IP Holdings Pty Ltd & Anor v Allergan Australia Pty Ltd & Anor	Intellectual Property

3: Cases Reserved

Case	Title
ENT19 v Minister for Home Affairs & Anor	Constitutional Law
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton	Immigration
Young & Anor v Chief Executive Officer (Housing)	Leases and Tenancies
Disorganized Developments Pty Ltd & Ors v State of South Australia	Statutes
CCIG Investments Pty Ltd v Schokman	Torts

4: Original Jurisdiction

5: Section 40 Removal

6: Special Leave Granted

Case	Title
Karpik v Carnival PLC ARBN 107 998 443 & Anor	Contract
Huxley v The Queen	Criminal Practice
Redland City Council v Kozik & Ors	Restitution

7: Cases Not Proceeding or Vacated

Case	Title
Facebook Inc v Australian Information Commissioner & Anor	Practice and Procedure

8: Special Leave Refused

2: Cases Handed Down

The following cases were handed down by the High Court of Australia during the March 2023 sittings.

Contract

Laundy Hotels (Quarry) Pty Limited v Dyco Hotels Pty Limited atf The Parras Family Trust & Ors

S125/2022: [2023] HCA 6

Date of judgment: 8 March 2023

Coram: Kiefel CJ, Gageler, Gordon, Gleeson and Jagot JJ

Catchwords:

Contract – Construction – Where clause in contract for sale and purchase of property and assets of hotel business obliged vendor from contract date until completion to carry on business in "usual and ordinary course as regards its nature, scope and manner" – Where hotel business operated pursuant to licence and gaming machine entitlements – Where hotel business subject to variable licence conditions imposed under Liquor Act 2007 (NSW) and regulations – Where operation of business prior to completion restricted by public health order in response to COVID 19 pandemic – Whether vendor obliged to carry on business in manner conducted as at time of contract to extent lawful – Whether vendor "ready, willing and able to complete and ... not in default" at time vendor served notice to complete.
Words and phrases – "breach", "carry on the business", "contractual construction", "contractual obligation", "COVID 19",…

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.

Continue reading High Court Bulletin

Details

AGLC: High Court Bulletin [2023] HCAB 2
Case: [2023] HCAB 2
Decision Date

CaseChat Overview and Summary

In the matter of Laundy Hotels (Quarry) Pty Limited v Dyco Hotels Pty Limited atf The Parras Family Trust & Ors, the High Court of Australia considered the construction of a clause in a contract for the sale and purchase of property and assets of a hotel business. The clause required the vendor to carry on the business in the "usual and ordinary course" from the contract date until completion. The hotel business was operated under a licence and gaming machine entitlements, subject to variable licence conditions imposed under the Liquor Act 2007 (NSW) and regulations. The operation of the business was restricted by a public health order in response to the COVID-19 pandemic. The court had to determine whether the vendor was obliged to carry on the business in the manner conducted as at the time of the contract to the extent lawful, and whether the vendor was "ready, willing and able to complete and... not in default" at the time the vendor served notice to complete.

The High Court held that the appeal should be allowed with costs. The court found that the vendor was not obliged to carry on the business in the manner conducted as at the time of the contract to the extent lawful, and that the vendor was not "ready, willing and able to complete and... not in default" at the time the vendor served notice to complete.

In the matter of Mitchell v The King; Rigney v The King; Carver v The King; Tenhoopen v The King, the High Court of Australia considered the applicability of the common law doctrine of extended joint criminal enterprise in combination with s 12A of the Criminal Law Consolidation Act 1935 (SA) to render appellants guilty of murder based on the foresight of the possibility of commission by a co-venturer of any intentional act of violence causing death. The appellants had agreed to commit an indictable offence of criminal trespass, but their agreement did not extend to the intentional act of violence causing death. The court had to determine whether the common law doctrine of extended joint criminal enterprise could operate in combination with s 12A to render the appellants guilty of murder based on the foresight of the possibility of commission by a co-venturer of any intentional act of violence causing death.

The High Court held that the appeals should be allowed. The court found that the common law doctrine of extended joint criminal enterprise could not operate in combination with s 12A to render the appellants guilty of murder based on the foresight of the possibility of commission by a co-venturer of any intentional act of violence causing death. The court held that the appellants could only be guilty of murder if they had the foresight of the possibility of commission by a co-venturer of an intentional act of violence causing death, and if they had the intention to commit the offence of murder.

In the matter of Barnett v Secretary, Department of Communities and Justice, the High Court of Australia considered whether a bare declaration by an Irish court, absent a transcript or reasons for decision, created an issue estoppel preventing the mother from submitting that the father did not have rights of custody under the Family Law (Child Abduction Convention) Regulations 1986 (Cth) at the date of the child's removal from Ireland. The court also considered whether the continuation of the appeal was contrary to the interests of the administration of justice and whether special leave should be revoked.

The High Court held that special leave should be revoked. The court found that the bare declaration by the Irish court did not create an issue estoppel. The court also found that the continuation of the appeal was contrary to the interests of the administration of justice, as the factual foundation for the grant of special leave had been removed. The court held that the revocation of special leave was in the interests of the administration of justice and that the appeal should not continue.

In the matter of Self Care IP Holdings Pty Ltd & Anor v Allergan Australia Pty Ltd & Anor; Self Care IP Holdings Pty Ltd & Anor v Allergan Australia Pty Ltd & Anor, the High Court of Australia considered whether the use of "instant Botox® alternative" as a trade mark was deceptively similar to the defensive trade mark "BOTOX", and whether the reputation of the defensive trade mark was relevant to the determination of deceptive similarity. The court also considered whether the alleged representation that the wrinkle reducing effects of Inhibox would last, after treatment, for a period equivalent to that achieved with treatment by Botox injection, was conveyed.

The High Court held that the appeals should be allowed with costs. The court found that the use of "instant Botox® alternative" as a trade mark was not deceptively similar to the defensive trade mark "BOTOX". The court also found that the reputation of the defensive trade mark was not relevant to the determination of deceptive similarity. The court held that the alleged representation that the wrinkle reducing effects of Inhibox would last, after treatment, for a period equivalent to that achieved with treatment by Botox injection, was not conveyed.

Orders