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High Court Bulletin

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

[2022] HCAB 4 (13 May 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
Citta Hobart Pty Ltd v Cawthorn	Constitutional Law
Fairbairn v Radecki	Family Law
Plaintiff M1/2021 v Minister for Home Affairs	Immigration

3: Cases Reserved

Case	Title
Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor	Administrative Law
Hore v The Queen; Wichen v The Queen	Criminal Law
O'Dea v The State of Western Australia	Criminal Law
Google LLC v Defteros	Defamation

4: Original Jurisdiction

5: Section 40 Removal

6: Special Leave Granted

Case	Title
Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Ors; DCM20 v Secretary of Department of Home Affairs & Anor	Administrative Law
Attorney-General (Cth) v Huynh & Ors	Constitutional Law
Metal Manufacturers Pty Limited v Gavin Morton as Liquidator of MJ Woodman Electrical Contractors Pty Ltd (in liquidation) & Anor	Corporations 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

7: Cases Not Proceeding or Vacated

8: Special Leave Refused

2: Cases Handed Down

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

Constitutional law

Citta Hobart Pty Ltd v Cawthorn

H7/2021: [2022] HCA 16

Judgment: 4 May 2022

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

Catchwords:

Constitutional law (Cth) – Chapter III – Where respondent's complaint made under Anti Discrimination Act 1998 (Tas) ("State Act") was referred to Anti-Discrimination Tribunal ("Tribunal") – Where appellants in defence asserted provisions in State Act inconsistent with Disability Discrimination Act 1992 (Cth) and Disability (Access to Premises – Buildings) Standards 2010 (Cth) – Where Tribunal dismissed complaint for want of jurisdiction without addressing merits of defence – Where Full Court of Supreme Court of Tasmania on appeal considered merits of, and rejected, defence – Where Tribunal not "court of a State" within meaning of ss 77(ii) and 77(iii) of Constitution – Where Chapter III implication recognised in Burns v Corbett (2018) 265 CLR 304 prevents State Parliament conferring on State tribunal that is not "court of a State" judicial power with respect to any matter of kind described in ss 75 and 76 of Constitution – Whether Tribunal exercised judicial power when determining complaint under State Act – Whether Tribunal had jurisdiction to hear and determine complaint – Whether defence needed to meet some threshold…

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 4
Decision Date

CaseChat Overview and Summary

In Citta Hobart Pty Ltd v Cawthorn (2022) HCA 16, the High Court of Australia held that the Anti-Discrimination Tribunal of Tasmania did not have jurisdiction to hear and determine a complaint under the Anti-Discrimination Act 1998 (Tas) ("State Act") because it was not a "court of a State" within the meaning of ss 77(ii) and 77(iii) of the Constitution. The Full Court of the Supreme Court of Tasmania had previously rejected the defence of the appellants that provisions in the State Act were inconsistent with the Disability Discrimination Act 1992 (Cth) and the Disability (Access to Premises – Buildings) Standards 2010 (Cth). The High Court held that the Tribunal did not exercise judicial power when determining the complaint under the State Act, and that the Full Court had erred in considering the merits of the defence.

In Fairbairn v Radecki (2022) HCA 18, the High Court of Australia held that a de facto relationship had broken down within the meaning of s 90SM of the Family Law Act 1975 (Cth) where one of the parties suffered rapid cognitive decline and was diagnosed with dementia. The appellant and respondent had been in a de facto relationship and resided in the appellant's home, and had agreed to keep their assets strictly separate. When the appellant was diagnosed with dementia, the NSW Trustee and Guardian was appointed to manage the appellant's financial affairs and moved the appellant into an aged care facility permanently. The Trustee then sought property settlement orders pursuant to s 90SM of the Family Law Act. The Full Court of the Family Court of Australia had previously held that the de facto relationship had not broken down, but the High Court held that the relationship had broken down within the meaning of s 90SM.

In Plaintiff M1/2021 v Minister for Home Affairs (2022) HCA 17, the High Court of Australia held that the delegate of the Minister for Home Affairs was required to consider the plaintiff's representations raising potential breach of Australia's international non-refoulement obligations when deciding whether there was "another reason" to revoke the cancellation decision under s 501CA(4) of the Migration Act 1958 (Cth). The delegate had decided that there was not "another reason" to revoke the cancellation decision, and had considered it unnecessary to determine whether non-refoulement obligations owed because the plaintiff could make a valid application for a protection visa. The High Court held that the delegate had failed to exercise the jurisdiction conferred by s 501CA(4) and had denied the plaintiff procedural fairness.

Orders