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High Court Bulletin

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

[2022] HCAB 6 (19 August 2022)

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
Nathanson v Minister for Home Affairs & Anor	Administrative Law
Farm Transparency International Ltd & Anor v State of New South Wales	Constitutional Law
O'Dea v The State of Western Australia	Criminal Law
Dansie v The Queen	Criminal Practice
Google LLC v Defteros	Defamation
Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor	Immigration
Aristocrat Technologies Australia Pty Ltd v Commissioner of Patents	Patents

3: Cases Reserved

Case	Title
Bosanac v Commissioner of Taxation & Anor	Equity
TL v The Queen	Evidence
Allianz Australia Insurance Limited v Delor Vue Apartments CTS 39788	Insurance
BHP Group Limited v Impiombato & Anor	Representative Proceedings

4: Original Jurisdiction

5: Section 40 Removal

6: Special Leave Granted

Case	Title
Stanley v Director of Public Prosecutions (NSW) (Sydney) & Anor	Administrative Law
Laundy Hotels (Quarry) Pty Limited v Dyco Hotels Pty Limited atf The Parras Family Trust & Ors	Contract
QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor	Courts and Judges

7: Cases Not Proceeding or Vacated

Case	Title
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor v Montgomery	Constitutional Law

8: Special Leave Refused

2: Cases Handed Down

The following cases were handed down by the High Court of Australia during the August 2022 sittings.

Administrative Law

Nathanson v Minister for Home Affairs & Anor

M73/2021: [2022] HCA 26

Judgment: 17 August 2022

Coram: Kiefel CJ, Gageler, Keane, Gordon, Edelman and Gleeson JJ

Catchwords:

Administrative law – Judicial review – Jurisdictional error – Requirement that error must be material – When error will be material – Where appellant's visa cancelled under s 501(3A) of Migration Act 1958 (Cth) – Where delegate of Minister for Home Affairs decided not to revoke cancellation – Where appellant sought review of non-revocation decision by Administrative Appeals Tribunal ("AAT") – Where AAT denied appellant procedural fairness by not giving opportunity to address relevance of incidents of domestic violence to primary consideration prescribed by direction made under s 499 of Migration Act – Whether denial of procedural fairness material – Whether, in discharging onus, appellant required to establish nature of evidence or submissions that might have been presented had AAT hearing been procedurally fair.
Words and phrases – "judicial review", "jurisdictional error", "material", "materiality", "natural justice", "onus of proof", "practical injustice", "procedural fairness", "realistic possibility of a different outcome", "reasonable conjecture".

Appealed from FCA (FC): [2020] FCAFC…

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: [2022] HCAB 6
Decision Date

CaseChat Overview and Summary

Nathanson v Minister for Home Affairs [2022] HCA 26 dealt with an appeal against the decision of the Administrative Appeals Tribunal (AAT) that denied the appellant procedural fairness. The legal issue was whether the denial of procedural fairness by the AAT was material. The High Court held that the denial of procedural fairness by the AAT was material. The Court held that the appellant was not required to establish the nature of evidence or submissions that might have been presented had the AAT hearing been procedurally fair. The appeal was allowed with costs.

Farm Transparency International Ltd v State of New South Wales [2022] HCA 23 involved a challenge to the validity of sections 11 and 12 of the Surveillance Devices Act 2007 (NSW) which prohibited the publication or communication of records or reports, and possession of records obtained in contravention of section 8 of the same Act. The legal issue was whether sections 11 and 12 burdened the implied freedom of communication about governmental or political matters. The High Court held that sections 11 and 12 did burden the implied freedom of communication about governmental or political matters. However, the burden was for a legitimate purpose and the provisions were suitable, necessary, and adequate in balance.

O'Dea v The State of Western Australia [2022] HCA 24 dealt with an appeal against a conviction for the offence of unlawfully doing grievous bodily harm with intent. The legal issue was whether the trial judge's direction to the jury occasioned a miscarriage of justice. The High Court held that the jury direction did not occasion a miscarriage of justice. The appeal was allowed.

Dansie v The Queen [2022] HCA 25 involved an appeal against a conviction for murder. The legal issue was whether the Full Court of the Supreme Court of South Australia sitting as the Court of Criminal Appeal misapplied the test in M v The Queen (1994) 181 CLR 487. The High Court held that the Full Court did not misapply the test. The appeal was allowed.

Google LLC v Defteros [2022] HCA 27 dealt with an appeal against a finding that Google was liable for defamatory statements made in search results. The legal issue was whether Google was a "publisher" of the defamatory matter. The High Court held that Google was not a "publisher" of the defamatory matter and that providing a search result did not amount to an act of participation in the communication of defamatory matter to a third party. The appeal was allowed and the appellant was ordered to pay the respondent's costs.

Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28 involved an application for an extension of time to file an application for review of a visa cancellation decision. The legal issue was whether the primary judge misapprehended or misconceived the statutory power in section 477A(2) of the Migration Act 1958 (Cth). The High Court held that the primary judge did not misapprehend or misconceive the statutory power. The application was dismissed with costs.

Aristocrat Technologies Australia Pty Ltd v Commissioner of Patents [2022] HCA 29 dealt with an appeal against the revocation of innovation patents for electronic gaming machines. The legal issue was whether the claimed invention was a "manner of manufacture" within the meaning of section 18(1A)(a) of the Patents Act 1990 (Cth). The High Court held that the claimed invention was not a "manner of manufacture". The appeal was dismissed with costs.

The final orders in these cases were as follows: Nathanson v Minister for Home Affairs [2022] HCA 26 - Appeal allowed with costs. Farm Transparency International Ltd v State of New South Wales [2022] HCA 23 - Special case answered. O'Dea v The State of Western Australia [2022] HCA 24 - Appeal allowed. Dansie v The Queen [2022] HCA 25 - Appeal allowed. Google LLC v Defteros [2022] HCA 27 - Appeal allowed; appellant to pay the respondent's costs. Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28 - Application dismissed with costs. Aristocrat Technologies Australia Pty Ltd v Commissioner of Patents [2022] HCA 29 - Appeal dismissed with costs.

Orders