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High Court Bulletin

Produced by the Legal Research Officer,
High Court of Australia Library

[2023] HCAB 1 (17 February 2023)

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
Stanley v Director of Public Prosecutions (NSW) & Anor	Administrative Law
Unions NSW & Ors v State of New South Wales	Constitutional Law
Bryant & Ors as Liquidators of Gunns Limited and Auspine Limited v Badenoch Integrated Logging Pty Ltd	Corporations
Metal Manufactures Pty Limited v Gavin Morton as Liquidator of MJ Woodman Electrical Contractors Pty Ltd (in Liquidation) & Anor	Corporations

3: Cases Reserved

Case	Title
Vanderstock & Anor v The State of Victoria	Constitutional Law
Vunilagi v The Queen & Anor	Constitutional Law
BA v The King	Criminal Law

4: Original Jurisdiction

5: Section 40 Removal

6: Special Leave Granted

Case	Title
Real Estate Tool Box Pty Ltd & Ors v Campaigntrack Pty Ltd & Anor	Copyright
Mitsubishi Motors Australia Ltd & Anor v Begovic	Trade Practices

7: Cases Not Proceeding or Vacated

Case	Title
Barnett v Secretary, Department of Communities and Justice	Family Law

8: Special Leave Refused

2: Cases Handed Down

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

Administrative Law

Stanley v Director of Public Prosecutions (NSW) & Anor

S126/2022: [2023] HCA 3

Publication of reasons: 15 February 2023

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

Catchwords:

Administrative law – Judicial review – Jurisdictional error – Sentencing powers of inferior court – Where s 7 of Crimes (Sentencing Procedure) Act 1999 (NSW) ("Sentencing Procedure Act") empowered sentencing court to make intensive correction order ("ICO") directing that a sentence of imprisonment be served by way of intensive correction in community – Where power to make ICO was a discrete function arising after sentence of imprisonment imposed – Where s 66(1) of Sentencing Procedure Act provided community safety was paramount consideration in exercising discretion to make ICO – Where s 66(2) of Sentencing Procedure Act required sentencing court, when considering community safety, to assess whether making ICO or serving sentence by way of full-time detention more likely to address offender's risk of reoffending – Whether failure to comply with s 66(2) amounted to jurisdictional error – Consideration of categories of jurisdictional error in Craig v South Australia (1995) 184 CLR 163 and Kirk v Industrial Court (NSW) (2010) 239 CLR 531.
Sentence – Sentence imposed by State court – Discretion to make ICO – Where community safety was paramount consideration in exercising discretion to order ICO – Where sentencing judge declined…

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: [2023] HCAB 1
Decision Date

CaseChat Overview and Summary

In the case of Stanley v Director of Public Prosecutions (NSW) & Anor, the High Court of Australia considered whether a failure to comply with a statutory requirement to assess community safety when making an intensive correction order (ICO) constituted a jurisdictional error. The case involved a sentencing judge declining to make an ICO and ordering the sentence of imprisonment to be served by way of full-time detention. The High Court held that the appeal was allowed, returning the matter to the lower court for reconsideration.

In Bryant & Ors as Liquidators of Gunns Limited and Auspine Limited v Badenoch Integrated Logging Pty Ltd, the High Court examined the construction of section 588FA(3) of the Corporations Act 2001 (Cth) and whether the "peak indebtedness rule" was part of or excluded by the provision. The Court concluded that the appeal was dismissed, with special leave to cross-appeal granted, and the cross-appeal was also dismissed. The appellants were ordered to pay the respondent's costs of the appeal, and the respondent was ordered to pay the appellants' costs of the cross-appeal.

In Metal Manufactures Pty Limited v Gavin Morton as Liquidator of MJ Woodman Electrical Contractors Pty Ltd (in Liquidation) & Anor, the High Court considered whether set-off under section 553C(1) of the Corporations Act 2001 (Cth) was available to an appellant against a liquidator's claim for recovery of unfair preferences. The Court held that the appeal was dismissed, and the costs of the appeal were to be costs in the cause.

The final orders of the High Court in these cases were as follows:

1. Stanley v Director of Public Prosecutions (NSW) & Anor - Appeal allowed, returning the matter to the lower court for reconsideration.
2. Bryant & Ors as Liquidators of Gunns Limited and Auspine Limited v Badenoch Integrated Logging Pty Ltd - Appeal dismissed; special leave to cross-appeal granted; cross-appeal dismissed; appellants pay the respondent's costs of the appeal and respondent pay the appellants' costs of the cross-appeal.
3. Metal Manufactures Pty Limited v Gavin Morton as Liquidator of MJ Woodman Electrical Contractors Pty Ltd (in Liquidation) & Anor - Appeal dismissed; costs of the appeal be costs in the cause.

Orders