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High Court Bulletin

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

[2021] HCAB 4 (21 May 2021)

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
MZAPC v Minister for Immigration and Border Protection & Anor	Immigration
Zhang v Commissioner of Police & Ors	Police
Talacko v Talacko & Ors	Torts

3: Cases Reserved

Case	Title
Chetcuti v Commonwealth of Australia	Constitutional Law
Director of Public Prosecutions Reference No 1 of 2019	Criminal Law
Edwards v The Queen	Criminal Law
Fairfax Media Publications Pty Ltd v Voller; Nationwide News Pty Limited v Voller; Australian News Channel Pty Ltd v Voller	Defamation
WorkPac Pty Ltd v Rossato & Ors	Industrial Law

4: Original Jurisdiction

5: Section 40 Removal

6: Special Leave Granted

Case	Title
George v The State of Western Australia	Criminal Law
Australian Building and Construction Commissioner v Pattinson & Anor	Industrial Law
Kozarov v State of Victoria	Torts

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 April 2021 sittings.

Immigration

MZAPC v Minister for Immigration and Border Protection & Anor

M77/2020: [2021] HCA 17

Judgment delivered: 19 May 2021

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

Catchwords:

Immigration – Refugees – Application for protection visa – Where appellant applied to Refugee Review Tribunal ("Tribunal") for review of first respondent's decision to refuse protection visa under Migration Act 1958 (Cth) ("Act") – Where s 438 notification issued under Act in relation to material including appellant's criminal record – Where Tribunal did not disclose existence of s 438 notification to appellant – Where first respondent conceded failure to disclose amounted to breach of procedural fairness – Where information covered by s 438 notification not referred to in reasons for decision – Whether breach material – Whether Tribunal in fact took s 438 notification information into account in making decision – Whether Federal Court erred by erecting presumption that Tribunal did not take s 438 notification information into account – Whether disclosure to appellant of fact of s 438 notification could realistically have led to different decision – Whether appellant or first respondent bore onus of proof of materiality – Whether Federal Court erred by confining materiality consideration to offence of dishonesty to exclusion of other offences.
Words and phrases – "counterfactual inquiry", "credit", "discharging the burden of proof", "failure to disclose", "judicial review", "jurisdictional error", "lost opportunity to present legal and factual argument", "materiality", "onus of proof", "opportunity to be heard", "practical injustice",…

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: [2021] HCAB 4
Decision Date

CaseChat Overview and Summary

The High Court handed down three decisions on 12 May 2021, including a decision on a question reserved for the Court by the Full Court of the Federal Court of Australia. The Court was called upon to decide the validity of warrants used by officers of the Australian Federal Police to search premises and seize data from electronic devices. The Court was also required to determine whether the warrants identified the substance of the offences with sufficient precision. The Court also handed down a decision on an appeal from the Supreme Court of Victoria in tort, finding that a conspiracy by unlawful means was actionable. The Court was required to determine whether the loss or damage was proved and whether damages for unlawful means conspiracy should be discounted. The High Court dismissed the appeal and allowed the cross-appeals. The Court also handed down a decision on a question reserved for it by the Full Court of the Federal Court of Australia. The Court was required to determine whether the Constitution Act 1901 (Cth) implied a freedom of political communication. The Court held that it did not.

Orders