High Court Bulletin
[2021] HCAB 4
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", "presumption", "procedural fairness", "realistic possibility", "reasonable conjecture", "statutory interpretation", "subconscious impact", "threshold of materiality".
Migration Act 1958 (Cth) – Pt 7, s 438.
Appealed from FCA: [2019] FCA 2024
Held: Appeal dismissed with costs.
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Police
Zhang v Commissioner of Police & Ors
S129/2020: [2021] HCA 16
Judgment delivered: 12 May 2021
Coram: Kiefel CJ, Gageler, Keane, Gordon, Edelman, Steward and Gleeson JJ
Catchwords:
Police – Search warrants – Validity of warrants – Validity of orders – Where officers of Australian Federal Police ("AFP") searched premises in reliance on warrants – Where officers of AFP seized material they believed relevant to offences against s 92. 3(1) and (2) of Criminal Code (Cth) – Where officers examined and copied data from electronic devices at searched premises – Where plaintiff compelled to provide passcodes to devices pursuant to orders under s 3LA of Crimes Act 1914 (Cth) – Where warrants purported to authorise search and seizure of material relevant to offences against s 92. 3(1) and (2) of Criminal Code – Where plaintiff accepted warrants severable – Whether warrants identified the substance of offences against s 92. 3(1) of Criminal Code with sufficient precision.
Constitutional law (Cth) – Implied freedom of communication about government or political matters – Where warrants purported to authorise search and seizure of material relevant to offences against s 92. 3(1) and (2) of Criminal Code – Where plaintiff accepted warrants severable – Where plaintiff accepted various sub-paragraphs of s 92. 3(1)(b), (c) and (d) capable of severance under s 15A of Acts Interpretation Act 1901 (Cth) – Whether appropriate to proceed to determine constitutional validity of s 92. 3(1) of Criminal Code or construction of "covert".
Words and phrases – "covert", "foreign government principal", "foreign influence", "foreign interference", "foreign principal", "implied freedom of political communication", "necessary to decide", "premature interpretation of statutes", "prudential considerations", "read down", "search warrants", "severable", "severance", "substance of the offences", "sufficient precision", "unnecessary and inappropriate to answer".
Acts Interpretation Act 1901 (Cth) – s 15A.
Crimes Act 1914 (Cth) – ss 3C(1), 3E, 3LA.
Criminal Code (Cth) – ss 90. 1, 90. 2, 90. 3, 92. 3.
Special case referred for consideration by Full Court on 12 November 2020.
Held: Questions answered.
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Tort
Talacko v Talacko & Ors
M111/2020: [2021] HCA 15
Judgment delivered: 12 May 2021
Coram: Kiefel CJ, Gageler, Keane, Gordon, Edelman, Steward and Gleeson JJ
Catchwords:
Tort – Unlawful means conspiracy – Loss or damage – Loss of chance – Loss of value of rights or chose in action – Damages – Where conspiracy by unlawful means undertaken to deprive first to fifth respondents ("Respondents") of value of chose in action arising from judgment in their favour – Where conspiracy involved agreements by which valuable properties in Czech Republic were transferred to impede recovery by Respondents of anticipated judgment debt ("Donation Agreement") – Where Respondents commenced proceedings in Czech Republic against two conspirators to set aside Donation Agreement ("Donation Agreement Proceedings") – Where Respondents had 20% prospect of successfully recovering through Donation Agreement Proceedings – Whether loss or damage proved such that unlawful means conspiracy was actionable – Whether damages for unlawful means conspiracy should be discounted to reflect 20% prospect of separate recovery through Donation Agreement Proceedings.
Words and phrases – "actionable", "chance of recovery", "chose in action", "contingent", "damages", "diminution in value", "judgment debt", "loss of chance", "loss of opportunity", "loss or damage", "prospect of recovery", "quantification of damages", "unlawful means conspiracy", "value of a plaintiff's rights".
Appealed from VSC: [2018] VSC 807
Appealed from VSC (CA): [2017] VSCA 163; [2020] VSCA 99
Held: Appeal dismissed; cross-appeals allowed.
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3: Cases Reserved
The following cases have been reserved or part heard by the High Court of Australia.
Constitutional Law
Chetcuti v Commonwealth of Australia
M122/2020: [2021] HCATrans 82
Date heard: 11 May 2021
Coram: Kiefel CJ, Gageler, Keane, Gordon, Edelman, Steward and Gleeson JJ
Catchwords:
Constitutional law – Legislative power – Naturalisation and aliens – Where appellant entered Australia in 1948 – Where appellant was born in Malta and entered Australia as British subject – Where appellant became citizen of United Kingdom and Colonies in 1949 and citizen of Malta on 1961 – Whether within power of Commonwealth Parliament to treat appellant as alien within s 51(xix) of Constitution – Whether within power of Parliament to specify criteria for alienage – Whether appellant entered Australia as alien.
Appealed from HCA (Single Justice): [2020] HCA 42; (2020) 95 ALJR 1
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Commonwealth of Australia v AJL20
C16/2020; C17/2020: [2021] HCATrans 68
Date heard: 13 April 2021
Coram: Kiefel CJ, Gageler, Keane, Gordon, Edelman, Steward and Gleeson JJ
Catchwords:
Constitutional law – Chapter III – Immigration detention – Where respondent citizen of Syria and granted visa in 2005 – Where Minister for Immigration and Border Protection cancelled visa on character grounds in 2014 under s 501(2) Migration Act 1958 (Cth) (“Act”) – Where respondent detained by officer of Commonwealth from 8 October 2014 under s 189(1) of Act – Where Minister accepted Australia has non-refoulement obligations to respondent – Where Minister refused to grant protection visa and declined to consider granting visa under s 195A of Act on 25 July 2019 – Where detention of unlawful non-citizen lawful if for permissible purpose – Where removal from Australia permissible purpose – Where, from 26 July 2019, officer of Commonwealth obliged to remove respondent from Australia “as soon as reasonably practicable” under s 198 of Act – Where primary judge held detention unlawful since 26 July 2019 and ordered respondent be released from detention – Whether respondent’s removal from Australia “reasonably practicable” – Whether respondent’s detention for purpose of removal from Australia – Whether respondent’s detention lawful – Whether ss 189 and 196 require detention of unlawful non-citizen until removal from Australia despite non-compliance with duty of removal consistently with Ch III of Constitution.
Torts – False imprisonment – Whether respondent falsely imprisoned.
Removed from Full Court of the Federal Court of Australia under s 40 of the Judiciary Act 1903 (Cth).
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LibertyWorks Inc v Commonwealth of Australia
S10/2020: [2021] HCATrans 35
Date heard: 2 March 2021
Coram: Kiefel CJ, Gageler, Keane, Gordon, Edelman, Steward and Gleeson JJ
Catchwords:
Constitutional law – Implied freedom of political communication – Validity of legislation – Foreign Influence Transparency Scheme Act 2018 (Cth) (“FITS Act”) – Where plaintiff not-for-profit think-tank incorporated in Queensland – Where in August 2019, plaintiff organised and held Conservative Political Action Conference in Sydney – Where US corporation, American Conservative Union (“ACU”), runs conference with same name in US, where ACU board members spoke at Sydney conference, and where ACU advertised as “Think Tank Host Partners” for Sydney conference – Where plaintiff not registered under FITS Act – Where in October 2019, notice under s 45 of FITS Act issued to President of plaintiff, requiring plaintiff to provide certain information within specified period – Where s 59 of FITS Act provides for offence of failing to comply with s 45 notice within time – Where in November 2019, President of plaintiff replied to notice, refusing to provide requested information and disputing validity of notice – Whether terms, operation, or effect of FITS Act impermissibly burden implied freedom of political communication.
Special case referred for consideration by Full Court on 20 August 2020.
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Contracts
Matthew Ward Price as Executor of the Estate of Alan Leslie Price (Deceased) & Ors v Christine Claire Spoor as Trustee & Ors
B55/2020: [2021] HCATrans 36
Date heard: 4 March 2021
Coram: Kiefel CJ, Gageler, Gordon, Edelman and Steward JJ
Catchwords:
Contracts – Statutory limitation periods – Exclusion by agreement – Where in 1998, two mortgages executed by deceased Mr A Price and second appellant, and deceased Mr J Price and third applicant in favour of Law Partners Mortgages Pty Ltd (“LPM”), securing $320,000 loan advanced by LPM to mortgagors – Where respondents trustees of pension fund successor in title as mortgagee to LPM – Where by 30 April 2001, only $50,000 of principal repaid and where no repayments made after that date – Where respondents commenced proceedings in 2017, claiming $4,014,969.22 and possession of mortgaged land – Where proceedings commenced outside of statutory bars in Limitation of Actions Act 1974 (Qld) – Where cl 24 of mortgages provided that “[t]he Mortgagor covenants with the Mortgage[e] that the provisions of all statutes now or hereafter in force whereby or in consequence whereof any o[r] all of the powers rights and remedies of the Mortgagee and the obligations of the Mortgagor hereunder may be curtailed, suspended, postponed, defeated or extinguished shall not apply hereto and are expressly excluded insofar as this can lawfully done” – Whether agreement not to plead or to rely on provisions of Limitation of Actions Act made at time of entry into loan contract and before accrual of cause of action unenforceable on public policy grounds – Whether, on proper construction of cl 24, applicants entitled to plead defence under Limitation of Actions Act – Whether operation of s 24 of Limitation of Actions Act can be excluded by agreement – Whether, on proper construction, terms of cl 24 ambiguous – If cl 24 enforceable, whether breach of cl 24 could sound in any remedy other than claim for damages for breach of warranty.
Appealed from QSC (CA): [2019] QCA 297; (2019) 3 QR 176
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Criminal Law
Director of Public Prosecutions Reference No 1 of 2019
M131/2020: [2021] HCATrans 86
Date heard: 14 May 2021
Coram: Kiefel CJ, Gageler, Keane, Gordon, Edelman, Steward and Gleeson JJ
Catchwords:
Criminal law – Mental element – Recklessness – Where Victorian Court of Appeal in R v Campbell [1997] 2 VR 585 held that “recklessness” requires foresight of probability of consequence – Where High Court in Aubrey v The Queen (2017) 260 CLR 305 held that “recklessness” for offences other than murder requires foresight of possibility of consequence – Where reference arose from trial in which accused acquitted of recklessly causing serious injury, contrary to s 17 of Crimes Act 1958 (Vic) – Where Court of Appeal concluded nothing in Aubrey compelled reconsideration of Campbell – Where Court of Appeal held correct interpretation of “recklessness” requires foresight of “probability” of serious injury – Whether, in Victoria, correct interpretation of “recklessness” for offences not resulting in death is foresight of the “possibility” of serious injury – Whether principle in Campbell should be followed.
Appealed from VSC (CA): [2020] VSCA 181; (2020) 284 A Crim R 19
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Edwards v The Queen
S235/2020: [2021] HCATrans 89
Date heard: 19 May 2021
Coram: Kiefel CJ, Keane, Edelman, Steward and Gleeson JJ
Catchwords:
Criminal law – Prosecution’s duty of disclosure – Where appellant charged with sexual offences against child – Where appellant’s mobile phone seized and contents downloaded – Where prosecution disclosed existence of download and offered to provide appellant with copy of downloaded data – Where data not provided to appellant – Where prosecution did not disclose relevance of download data – Where prosecution case on two counts relied on evidence of complainant – Where defence case on same counts relied on documentary evidence contradicting complainant’s evidence – Where NSW Court of Criminal Appeal (“CCA”) dismissed appeal against conviction – Whether prosecutor breached duty of disclosure by not providing download data to applicant, contrary to s 142 of Criminal Procedure Act 1987 (NSW) – Whether CCA erred in concluding verdicts on two counts not unreasonable as there remained reasonable doubt as to existence of opportunity for offending to have occurred.
Appealed from NSWSC (CCA): [2020] NSWCCA 57
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Defamation
Fairfax Media Publications Pty Ltd v Voller; Nationwide News Pty Limited v Voller; Australian News Channel Pty Ltd v Voller
S236/2020; S237/2020; S238/2020: [2021] HCATrans 88
Date heard: 18 May 2021
Coram: Kiefel CJ, Gageler, Keane, Gordon, Edelman, Steward and Gleeson JJ
Catchwords:
Defamation – Publication – Where appellants created and operated public Facebook pages on which Facebook users can view and comment on items posted – Where Facebook users posted comments on appellants’ Facebook posts – Where respondent commenced defamation proceedings against appellants’ – Where primary judge determined separate question – Where NSW Court of Appeal dismissed appeal from determination – Whether intention to communicate defamatory material is necessary for person to be “publisher” – Whether operators of Facebook pages “publish” third-party comments posted on page prior to being aware of comments.
Appealed from NSWSC (CA): [2020] NSWCA 102; (2020) 380 ALR 700
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Evidence
Deputy Commissioner of Taxation v Shi
S211/2020: [2021] HCATrans 69
Date heard: 14 April 2021
Coram: Kiefel CJ, Gageler, Gordon, Edelman and Gleeson JJ
Catchwords:
Evidence – Exceptions to privilege against self-incrimination – Evidence Act 1995 (Cth) s 128A – Where appellant commenced proceedings against respondent and two others seeking satisfaction of tax liabilities – Where appellant sought freezing orders with respect to respondent’s assets – Where Federal Court made ex parte freezing orders in relation to respondent’s worldwide assets – Where respondent also ordered to file and serve affidavit disclosing worldwide assets – Where respondent filed two affidavits, one which was served on appellant, and one which was delivered to Federal Court in sealed envelope – Where respondent claimed privilege against self-incrimination in respect of second affidavit, invoking s 128A – Where prior to hearing of privilege claim, judgment entered for appellant in sum of $42,297,437.65 – Where primary judge accepted reasonable grounds for respondent’s claim for privilege against self-incrimination, but considered not in interests of justice that certificate be granted pursuant to s 128A(7), with consequence that appellant did not get access to second affidavit – Where majority of Full Court of Federal Court held primary judge erred in certain respects, but dismissed appeal – Whether availability of mechanism to compulsorily examine respondent as judgment debtor relevant to determining whether in interests of justice to grant s 128A certificate – Whether risk of derivative use of privileged information in event that s 128A certificate granted should have been taken into account when determining whether in interests of justice to grant certificate.
Appealed from FCA (FC): [2020] FCAFC 100; (2020) 277 FCR 1; (2020) 380 ALR 226
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Immigration
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Moorcroft
B66/2020: [2021] HCATrans 70
Date heard: 15 April 2021
Coram: Kiefel CJ, Keane, Gordon, Steward and Gleeson JJ
Catchwords:
Immigration – Removal and deportation – Where s 5(1) of Migration Act 1958 (Cth) provided that person who had “been removed or deported from Australia or removed or deported from another country” was “behaviour concern non-citizen” – Where respondent held special category visa – Where that visa purportedly cancelled, and respondent detained and removed from Australia to New Zealand – Where, by consent, Federal Circuit Court quashed cancellation decision – Where respondent returned to Australia and was interviewed by Minister’s delegate at airport on arrival – Where delegate asked whether she had ever been removed, deported, or excluded from any country, including Australia – Where respondent answered yes, and explained circumstances of earlier removal – Where delegate refused to grant respondent special category visa, not being satisfied that the respondent had not been “removed … from Australia” within meaning of definition of “behaviour concern non-citizen” – Where Federal Circuit Court dismissed respondent’s application for judicial review of delegate’s decision – Where Federal Court allowed appeal from Circuit Court’s decision – Whether “removed or deported from” means taken out of some country by or on behalf of government of that country in fact, or whether it means being taken out of some country validly or lawfully, or whether it bears different meanings in same section, namely, valid or lawful removal or deportation in case of ejection from Australia, and removal or deportation in fact in case of other countries.
Appealed from FCA: [2020] FCA 382; (2020) 275 FCR 276
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Industrial Law
WorkPac Pty Ltd v Rossato & Ors
B73/2020: [2021] HCATrans 83; [2021] HCATrans 84
Date heard: 12-13 May 2021
Coram: Kiefel CJ, Gageler, Keane, Gordon, Edelman, Steward and Gleeson JJ
Catchwords:
Industrial law – Characterisation as “casual employee” – Restitution – Where Fair Work Act 2009 (Cth) contained National Employment Standards (NES) – Where NES provided that permanent employees entitled to certain leave entitlements – Where first respondent employed under contract describing him as “casual employee” – Where first respondent employed for indefinite period with regular and predictable shifts – Where first respondent’s hours set far in advance and not given option to elect not to work particular shifts – Where first respondent paid casual loading in lieu of leave entitlements – Where appellant sought declarations that first respondent not entitled to leave – Where Full Court of Federal Court dismissed application – Whether first respondent “casual employee” for the purposes of Fair Work Act or enterprise agreement – If not, whether appellant is entitled to apply casual loading paid to first respondent in satisfaction of his leave entitlements by way of set-off, restitution or by reg 2.03A of Fair Work Regulations 2009 (Cth).
Appealed from FCA (FC): [2020] FCAFC 84; (2020) 278 FCR 179; (2020) 296 IR 38; (2020) 378 ALR 585
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4: Original Jurisdiction
The following cases are ready for hearing in the original jurisdiction of the High Court of Australia.
Constitutional Law
Palmer v The State of Western Australia; Mineralogy Pty Ltd & Anor v The State of Western Australia
B52/2020; B54/2020: [2021] HCATrans 56
Catchwords:
Constitutional law – State legislative power – Federalism – Chapter III of Constitution – Where, on 5 December 2001, plaintiffs and defendant entered into Agreement in relation to development of certain projects in Western Australia – Where Agreement ratified by Iron Ore Processing (Minerology Pty Ltd) Agreement Act 2002 (WA) – Where Agreement subsequently varied in 2008 and ratified by Iron Ore Processing (Minerology Pty Ltd) Agreement Amendment Act 2008 (WA) – Where various disputes arose in relation to development proposal and plaintiff claimed defendant breached terms of Agreement – Where disputes referred to arbitrator in Queensland – Where Iron Ore Processing (Mineralogy Pty Ltd) Agreement Amendment Act 2020 (WA) enacted in 2020 – Where effect of 2020 Amendment Act to exclude defendant’s liability, and prohibit any enforcement or payment of any liability, arising in respect of disputes and arbitrations – Whether 2020 Amendment Act contravenes s 118 of Constitution by failure to give full faith and credit and effect to Commercial Arbitration Act 2013 (Qld) and equivalent legislation in each State and Territory – Whether 2020 Amendment Act contravenes s 6 of Australia Act 1986 (Cth) because not enacted pursuant to manner and form specified in Agreement - Whether 2020 Amendment Act purports to direct federal courts and courts exercising federal jurisdiction as to manner of exercise of federal jurisdiction, withdraws or limits federal jurisdiction, impermissibly interferes with federal court proceedings, or confers powers and duties repugnant to exercise of federal judicial power – Whether 2020 Amendment Act beyond state legislative power because violates rule of law – Whether 2020 Amendment Act incompatible with institutional integrity of courts – Whether 2020 Amendment Act impermissibly exercises state judicial power without possibility of review by courts – Whether 2020 Amendment Act invalid because alters consequences of actions and conduct of Commonwealth Government – Whether 2020 Amendment Act invalid under s 109 of Constitution – Whether 2020 Amending Act invalid for specifically targeting Mr Palmer and depriving him of personal rights and property rights – Whether 2020 Amendment Act involves abdication of State legislative power – Whether 2020 Amendment Act contravenes s 117 of Constitution by discriminating against Mr Palmer as resident of Queensland – Whether 2020 Amendment Act invalid in entirety or in part.
Special case referred to the Full Court on 6 April 2021.
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Immigration
Plaintiff M1/2021 v Minister for Home Affairs
M1/2021: [2021] HCATrans 52
Catchwords:
Immigration – Judicial review – Non-refoulement obligations – Where plaintiff granted Refugee and Humanitarian (Class XB) Subclass 202 (Global Special Humanitarian) visa in 2006 – Where, on 19 September 2017, plaintiff convicted of unlawful assault and sentenced to 12 months’ imprisonment – Where, on 27 October 2017, delegate of Minister cancelled plaintiff’s visa pursuant to s 501(3A) of Migration Act 1958 (Cth) – Where plaintiff made representations to Minister regarding possibility of refoulement if plaintiff returned to home country – Where, on 9 August 2018, delegate of Minister decided not to revoke cancellation decision pursuant to s 501CA(4) of Migration Act – Where, in making decision, delegate did not consider whether non-refoulement obligations owed to plaintiff because plaintiff able to apply for protection visa under Migration Act – Whether delegate required to consider plaintiff’s representations concerning non-refoulement obligations in making non-revocation decision pursuant to s 501CA(4) where plaintiff can apply for protection visa – If so, whether delegate failed to consider representations – If so, whether delegate failed to exercise jurisdiction under Migration Act or denied plaintiff procedural fairness – Whether non-revocation decision affected by jurisdictional error.
Special case referred to the Full Court on 30 March 2021.
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5: Section 40 Removal
The following cases are ready for hearing in the original jurisdiction of the High Court of Australia.
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6: Special Leave Granted
The following cases have been granted special leave to appeal to the High Court of Australia.
Administrative Law
Sunland Group Limited & Anor v Gold Coast City Council
B64/2020: [2021] HCATrans 61
Date heard: 9 April 2021
Coram: Kiefel CJ, Keane, Gordon, Steward and Gleeson JJ
Catchwords:
Administrative law – Planning and environment – Development approvals – Where in 2015 second applicant bought parcel of undeveloped land which carried with it benefit of preliminary development approval granted in 2007 – Where preliminary approval approved multi-stage residential development subject to 56 conditions – Where some conditions provided for payment of infrastructure contributions to respondent – Where preliminary approval made under Integrated Planning Act 1997 (Qld) – Where Integrated Planning Act replaced by other legislation – Whether conditions concerning infrastructure contributions, properly construed, should be read as binding on applicant or landowner, or merely as statements as to scope of future possible conditions – Whether, in construction of conditions, contra proferentem rule applies so that ambiguities are to be resolved against approving authority.
Appealed from QSC (CA): [2020] QCA 89
Hearing adjourned.
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Aviation
Wells Fargo Trust Company, National Association (As Owner Trustee) & Anor v VB Leaseco Pty Ltd (Administrators Appointed) & Ors
S60/2021: [2021] HCATrans 63
Date heard: 12 April 2021 – Special leave granted.
Catchwords:
Aviation – Construction of art XI Protocol to the Convention on International Interests in Mobile Equipment on Matters Specific to Aircraft Equipment (Protocol) – Where International Interest in Mobile Equipment (Cape Town Convention) Act 2013 (Cth) gives domestic effect to Convention on International Interests in Mobile Equipment (Cape Town Convention) – Where art XI(2) of Protocol provides upon occurrence of insolvency-related event, insolvency administrator or debtor shall “give possession of the aircraft object” to creditor – Where appellants owners of aircraft engines leased to first respondent and subleased to second and fourth respondents – Where third respondent appointed administrator of other respondents following insolvency-related event – Where lease imposes on lessees return obligations in respect of aircraft – Where appellants sought compliance with respondents’ Art XI(2) obligations to “give possession” – Where third respondent, instead of physically redelivering engines, issued a notice under s 443B(3) of Corporations Act 2001 (Cth) disclaiming leased engines and leaving engines still attached to aircraft operated by lessees and owned by third parties – Where primary judge held respondents failed to “give possession” of engines – Where respondents successfully appealed to Full Court Federal Court – Whether
“give possession” means physical delivery of aircraft objects or merely enables creditor to exercise self-help remedy – Whether respondents failed to “give possession”.
Appealed from FCA (FC): [2020] FCAFC 168; (2020) 384 ALR 378
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Competition Law
Port of Newcastle Operations Pty Limited v Glencore Coal Assets Australia Pty Ltd & Ors
S33/2021: [2021] HCATrans 42
Date heard: 12 March 2021 – Special leave granted.
Catchwords:
Competition law – Arbitration determination – Third party access – Calculation of user contributions – Where appellant operator of Port of Newcastle – Where provision of access and use of Port shipping channels declared service pursuant to Pt IIIA of Competition and Consumer Act 2010 (Cth) – Where appellant levies certain charges payable by vessel owner or charterer in respect of use of Port infrastructure – Where first respondent coal mining company exported coal through Port via both own chartered vessels and vessels owned by other persons – Where first respondent sought arbitration by Australian Competition and Consumer Commission (“ACCC”) of dispute about quantum of charge – Where ACCC and Australian Competition Tribunal on review determined first respondent could not arbitrate terms on which other persons’ vessels carrying first respondent’s coal were charged – Where parties agreed ACCC use “depreciated optimised replacement cost methodology” to calculate asset base component of appropriate charge – Where ACCC and Tribunal on review decided s 44X(1)(e) required it to deduct historical service user contributions to Port infrastructure from asset base in calculation of charge – Where applicant unsuccessfully appealed to Full Court of Federal Court – Whether persons with economic interest in arbitration determination or who causes access to occur are third party for purposes of Pt IIIA – Proper approach to calculation of historical user contributions in charge.
Appealed from FCA (FC): [2020] FCAFC 145; (2020) 382 ALR 331
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Contracts
Hobart International Airport Pty Ltd v Clarence City Council & Anor; Australia Pacific Airports (Launceston) Pty Ltd v Northern Midlands Council & Anor
H2/2021; H3/2021: [2021] HCATrans 26
Date heard: 12 February 2021 – Special leave granted.
Catchwords:
Contracts – Privity of contract – Declaratory relief – Where second respondent Commonwealth registered proprietor of land leased to applicants – Where first respondent Councils not party to lease – Where cl 26.2(a) of lease provides amount equivalent to council rates to be paid to first respondents in respect of leased land – Where lease contemplates that first respondents will participate in mechanism in determining amount payable – Where dispute arose between applicants and first respondents as to amounts payable – Where first respondents sought declaratory and consequential relief with respect to proper construction of cl 26.2(a) – Where primary judge held first respondents did not have standing to seek declaratory relief on basis of privity of contract – Where first respondents successfully appealed to Full Federal Court, which held doctrine of privity only prevents third parties from obtaining executory judgment to enforce terms of contract, not declaratory judgment – Whether doctrine of privity prevents third parties from seeking declaratory relief – Whether third parties have standing to seek declaratory relief in respect of contract.
Constitutional law – Judicial power of Commonwealth – Requirement for a “matter” – Jurisdiction of Federal Court – Where there is no dispute between contracting parties as to interpretation of contract – Whether first respondents have rights, duties or liabilities to be established by determination of a court – Whether there is a justiciable controversy or enforceable right, duty or liability to found a “matter”.
Appealed from FCA (FC): [2020] FCAFC 134; (2020) 382 ALR 273
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Corporations
Walton & Anor v ACN 004 410 833 Ltd (formerly Arrium Ltd) (in liquidation) & Ors
S20/2021: [2021] HCATrans 18
Date heard: 11 February 2021 – Special leave granted
Catchwords:
Corporations – Examinations relating to insolvency – Abuse of process – Where s 596A of Corporations Act 2001 (Cth) requires court to issue examinations summons to a person about a company if “eligible applicant” applies for summons – Where “eligible applicants” include persons authorised by Australian Securities and Investments Commission (“ASIC”) – Where ASIC can only authorise person if person’s purpose is for benefit of corporation, its contributories or its creditors – Where applicants shareholders of respondent – Where, in 2014, respondent successfully completed capital raising for purpose of paying down debt – Where respondent entered into voluntary administration in 2016 and liquidation in 2019 – Where ASIC authorised applicants as “eligible applicants” to conduct examinations of respondent’s directors and officers – Where NSW Court of Appeal found applicants’ predominant purpose investigation and pursuit of shareholders’ private claim against directors in relation to 2014 capital raising – Where Court of Appeal held fulfilment of that purpose would not confer benefit on corporation, creditors or contributories, and therefore offensive to purpose for which s 596A enacted and abuse of process – Whether implicit purpose of obtaining information about potential misconduct is beneficial to corporation – Whether applicants’ purposes offensive or foreign to s 596A.
Appealed from NSW (CA): [2020] NSWCA 157; (2020) 383 ALR 298; (2020) 17 ABC(NS) 320
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Criminal Law
Bell v State of Tasmania
H2/2020: [2021] HCATrans 5
Date heard: 3 February 2021
Coram: Kiefel CJ, Gageler, Keane, Edelman and Steward JJ
Catchwords:
Criminal law – Defences – Honest and reasonable mistake – Where applicant charged with one count of rape and one count of supply of controlled drug to child – Where trial judge left defence of honest and reasonable mistake as to age in relation to rape charge – Where counsel for applicant requested similar direction in respect of supply charge – Where trial judge refused to make such direction on basis that defence of honest and reasonable mistake as to age would not relieve applicant of criminal responsibility with respect to supply charge – Where jury convicted applicant of supply charge but could not reach verdict on rape or alternative charge of sexual intercourse with person under age of 17 – Where at retrial of sexual offence jury found applicant not guilty of rape but convicted on alternative charge – Where Court of Criminal Appeal upheld trial judge’s decision that defence of honest and reasonable mistake as to age not available in relation to supply charge – Whether defence of honest and reasonable mistake of fact only available where its successful use would lead to defendant not being guilty of any crime.
Appealed from TASSC (CCA): [2019] TASCCA 19; (2019) 279 A Crim R 553
Hearing adjourned to a date to be fixed to notify State and Territory Attorneys-General of the appeal and allow the opportunity to intervene.
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George v The State of Western Australia
P45/2020: [2021] HCATrans 95
Date heard: 20 May 2021 – Application referred to Full Court for argument as on appeal
Catchwords:
Criminal law – Jury directions – Right to silence – Where applicant charged with indecently dealing with child between ages 13 and 16 years, contrary to s 321(4) of Criminal Code (WA) – Where prosecution adduced evidence of investigating police officer, who gave evidence of electronic record of interview in which applicant denied offences and gave alternative account, and tendered record of interview – Where applicant did not give or adduce any evidence at trial – Where applicant submitted prosecution had not proved beyond reasonable doubt all elements of offence – Where trial judge failed to warn jury that applicant’s silence could not be used as evidence against him, does not constitute admission, could not be used to fill gaps in prosecution’s evidence and could not be used as a make-weight in assessing whether prosecution proved case beyond reasonable doubt (Azzopardi direction) – Where majority of WA Court of Appeal held absence of Azzopardi direction not miscarriage of justice – Whether miscarriage of justice occurred because of absence of Azzopardi direction.
Appealed from WASC (CA): [2020] WASCA 139
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Hofer v The Queen
S37/2021: [2021] HCATrans 44
Date heard: 12 March 2021 – Special leave granted
Catchwords:
Criminal law – Criminal procedure – Conduct of cross-examination – Where appellant charged with 11 counts of having sexual intercourse without consent – Where two complainants testified as prosecution witnesses – Where appellant gave evidence – Where, during cross-examination, prosecutor asked appellant about aspects of his evidence arising from defence counsel’s failure to comply with Browne v Dunn rule in respect of those matters in cross-examination of complainants – Where prosecutor suggested appellant lying in evidence about those matters because defence counsel had not put those matters to complainants – Where defence counsel did not object to prosecutor’s questions – Where appellant convicted and unsuccessfully appealed to NSW Court of Criminal Appeal – Whether prosecutor able to cross-examine accused with regard to defence counsel’s non-compliance with rule in Browne v Dunn – Whether prosecutor engaged in impermissible questioning – Whether defence counsel at trial incompetent – Whether trial miscarried.
Appealed from NSWSC (CCA): [2019] NSWCCA 244
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Orreal v The Queen
B25/2021: [2021] HCATrans 71
Date heard: 16 April 2021 – Special leave granted
Catchwords:
Criminal law – Application of proviso – Substantial miscarriage of justice – Prejudicial evidence – Where appellant charged with sexual offending against child – Where, at trial, irrelevant, inadmissible and prejudicial medical evidence placed before jury – Where prosecution, in summing up, contended evidence could be of some use to jury – Where trial judge did not direct jury to disregard inadmissible evidence and directed jury could use evidence – Where applicant unsuccessfully appealed to Court of Appeal – Where majority of Court of Appeal held, despite reception of inadmissible and prejudicial evidence, no substantial miscarriage of justice occurred – Whether, in cases turning on issues of contested credibility, appropriate for intermediate Court of Appeal to make own assessment of admissible evidence for purpose of determining whether no substantial miscarriage of justice occurred.
Appealed from QSC (CA): [2020] QCA 95
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Park v The Queen
S61/2021: [2021] HCATrans 75
Date heard: 16 April 2021 – Special leave granted
Catchwords:
Criminal law – Sentencing – Guilty plea reduction - Where s 22(1) of Crimes (Sentencing Procedure) Act 1999 (NSW) provides that, in passing sentence on offender who has pleaded guilty to offence, court may impose lesser penalty “than it would otherwise have imposed” – Where appellant pleaded guilty to offence – Where offence has 5 year maximum penalty but jurisdictional limit of 2 years applies when dealt with summarily by District Court – Where primary judge would have imposed sentence of 2 years 8 months for offence and applied 25 per cent reduction to sentence pursuant to s 22(1) – Where appellant sentenced to 2 years imprisonment – Where appellant appealed to Court of Criminal Appeal on basis reduction should have been applied to 2 years (jurisdictional limit applied to appropriate sentence) instead of 2 years 8 months (appropriate sentence before jurisdictional limit applied) - Where Court of Criminal Appeal dismissed appeal and held “would otherwise have imposed” refers to appropriate sentence despite jurisdictional limit, and jurisdictional limit only relevant if sentence post-reduction exceeds jurisdictional limit – Correct construction of “would otherwise have imposed” – Whether reduction of sentence applies to sentence appropriate to judicial officer but beyond jurisdictional limit or to sentence court would actually have imposed if no guilty plea.
Appealed from NSW (CCA): [2020] NSWCCA 90; (2020) 282 A Crim R 551
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Equity
Stubbings v Jams 2 Pty Ltd & Ors
M13/2021: [2021] HCATrans 23
Date heard: 12 February 2021 – Special leave granted
Catchwords:
Equity – Unconscionable conduct – Wilful blindness – Where applicant borrowed from respondent lenders secured only on applicant’s assets – Where applicant without regular income and defaulted – Where respondents’ system of asset-based lending included deliberate intention to avoid receipt of information about personal and financial circumstances of borrower or guarantor – Where certificate of independent financial advice given in respect of transaction – Where respondents brought proceedings for possession of applicant’s assets – Where primary judge found respondents wilfully blind and had actual knowledge as to applicant’s personal and financial circumstances – Where respondents successfully appealed to Court of Appeal, which overturned primary judge’s findings as to knowledge – Whether lender’s conduct unconscionable by engaging in system of asset-based lending without receipt of information about personal or financial situation of borrower, or alternatively, wilfully or recklessly failing to make such enquiries an honest and reasonable person would make – Whether Court of Appeal entitled to overturn findings of primary judge as to respondents’ knowledge.
Appealed from VSC (CA): [2020] VSCA 200
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Evidence
Hamilton (a pseudonym) v The Queen
S24/2021: [2021] HCATrans 19
Date heard: 11 February 2021 – Special leave granted on limited grounds
Catchwords:
Evidence – Tendency evidence – Jury directions – Where appellant charged with ten counts of aggravated indecent assault against three separate complainants – Where trial judge ruled evidence from complainants admissible but not cross-admissible for tendency purposes – Where anti-tendency direction not given – Where Court of Criminal Appeal held anti-tendency direction not necessary as appellant had not established risk of jury engaging in tendency reasoning – Where Court of Criminal Appeal found defence counsel made deliberate decision not to request anti-tendency direction to obtain forensic advantage – Whether anti-tendency direction generally be given in multi-complainant trial – Whether miscarriage of justice occasioned by failure to direct jury it was prohibited from using evidence led in support of each count as tendency evidence in support of other counts.
Appealed from NSWSC (CCA): [2020] NSWCCA 80
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Family Law
Charisteas v Charisteas & Ors
P6/2021: [2021] HCATrans 28
Date determined: 12 February 2021 – Special leave granted
Catchwords:
Family law – Appeals – Apprehension of bias – Where parties involved in protracted proceedings since 2008, including two trials in Family Court of Western Australia where orders were set aside by Full Court of Family Court of Australia – Where primary judge in third trial engaged in undisclosed communication and personal contact with then-counsel for respondent prior to commencement of trial and after judgment reserved but before judgment delivered – Where fact but not full details of communication subsequently disclosed after applicant became aware of relationship between primary judge and respondent counsel – Where applicant unsuccessfully applied to have judge recused and unsuccessfully appealed to Full Court – Where Full Court held hypothetical observer would not have reasonable apprehension of bias because would accept judge may have mistaken views about proprietary of private communications after judgment reserved but before judgment delivered and would tolerate some amount of private communication – Whether hypothetical observer would have reasonable apprehension of bias from failure to disclose communications between primary judge and respondent counsel.
Family law – Practice and procedure – Powers under s 79 of Family Court Act 1975 (Cth) (“Act”) – Where, in 2011 trial judgment, primary judge made final orders under s 79 – Where some orders set aside without remitter by 2013 appeal to Full Court – Where primary judge in third trial made 2015 interlocutory interpretation decision that power to make orders under s 79 not exhausted – Where primary judge made orders in 2017 varying 2011 orders – Where Full Court held primary judge had power to vary or set aside 2011 orders – Whether, when orders made in exercise of statutory power and some set aside on appeal without remittal or rehearing, power under s 79 is exhausted – Whether primary judge acting in excess of jurisdiction – Whether applicant waived right to challenge exercise of power because did not appeal 2015 interpretation decision.
Appealed from FamCA (FC): [2020] FamCAFC 162; (2020) 354 FLR 167; (2020) 60 Fam LR 483
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Immigration
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane
S34/2021: [2021] HCATrans 46
Date determined: 12 March 2021 – Special leave granted on conditions
Catchwords:
Immigration – Judicial review – No evidence – Where respondent’s visa mandatorily cancelled under s 501(3A) of Migration Act 1958 (Cth) – Where respondent made representations pursuant to s 501CA as to why cancellation should be revoked – Where, if visa cancellation not revoked, respondent and family would be removed to Samoa or American Samoa – Where Minister decided not to revoke cancellation decision – Where respondent unsuccessfully appealed to Federal Court and successfully appealed to Full Court – Whether Minister made factual findings regarding language and availability of welfare and social services in Samoa and American Samoa without evidence – Whether Minister made factual findings based on personal or specialised knowledge about Samoa or American Samoa – If not, whether errors material and jurisdictional.
Appealed from FCA (FC): [2020] FCAFC 144; (2020) 278 FCR 386
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Industrial Law
Australian Building and Construction Commissioner v Pattinson & Anor
M117/2020: [2021] HCATrans 90
Date determined: 20 May 2021 – Special leave granted on limited grounds
Catchwords:
Industrial law – Civil penalties – Determination of appropriate penalty – Where s 349(1) of Fair Work Act 2009 (Cth) provided unlawful for person to knowingly or recklessly make false or misleading representation about another person’s obligation to engage in industrial activity – Where second respondent union had “no ticket no start” policy and respondents carried out policy by representing to two workers they could not work unless joined union – Where respondents admitted liability for two contraventions of s 349(1) – Where second respondent well-resourced and, since 2000, had breached pecuniary penalty provisions on more than 150 occasions, including at least 15 occasions involving “no ticket no start” policy and 7 previous contraventions of s 349(1) – Where primary judge considered statutory maximum penalty required to sufficiently deter respondents in light of previous contraventions and imposed maximum – Where respondents appealed to Full Federal Court, which held maximum penalty must only be imposed for most serious and grave contravening conduct and imposed lower penalty – Whether statutory maximum penalty must only be imposed for most serious and grave contravening conduct – Whether statutory maximum penalty can be imposed if necessary to deter contravening conduct.
Appealed from FCA (FC): [2020] FCAFC 177; (2020) 384 ALR 75; (2020) 299 IR 404
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Construction, Forestry, Maritime, Mining and Energy Union & Anor v Personnel Contracting Pty Ltd
P5/2021: [2021] HCATrans 30
Date determined: 12 February 2021 – Special leave granted
Catchwords:
Industrial law – Employee and independent contractor – Proper test for distinguishing – Labour hire agreement – Definition of “employee” –Where second appellant signed Administrative Services Agreement with respondent labour hire agency and offered work cleaning and moving materials for builder – Where contract between second appellant and respondent for work, contract between respondent and builder for labour supply, but no contract between second appellant and respondent – Where builder “controlled” second appellant – Where arrangement of casual nature included right to reject assignment – Where second appellant not integrated into respondent’s business and not given uniform – Where work required personal service and second appellant not in business on own account – Where second appellant 22-year old backpacker on working holiday visa – Where express term of contract categorises relationship not employment – Where applicants allege respondent contravened various National Employment Standards and s 45 of Fair Work Act 2009 (Cth) by not paying second appellant in accordance with relevant award – Where Standards apply only if second appellant “employee” – Where primary judge, applying multi-factorial test, found second appellant not employee – Where Full Court preferred approach second appellant employee but for authority of intermediate appellate court in Personnel Contracting v Construction, Forestry, Mining and Energy Union [2004] WASCA 312 decided in similar circumstances, which Full Court held not plainly wrong – Whether second appellant “employee” of respondent – Whether, in triangular labour hire agreement, control test satisfied when second appellant controlled by builder and not respondent – Whether multi-factorial test correctly applied.
Appealed from FCA (FC): [2020] FCAFC 122; (2020) 381 ALR 457; (2020) 297 IR 269
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NSW Commissioner of Police v Cottle & Anor
S56/2021: [2021] HCATrans 62
Date heard: 12 April 2021 – Special leave granted
Catchwords:
Industrial law – Jurisdiction of Industrial Relations Commission of New South Wales (IRC) – Police – Where appellant made decision under s 72A of Police Act 1990 (NSW) to retire first respondent police officer on medical grounds – Where first respondent applied for unfair dismissal remedy in IRC under s 84 of Industrial Relations Act 1996 (NSW) – Where Police Act does not expressly provide for review by IRC for medical retirement but does for other types of removal – Where appellant successfully challenged IRC’s jurisdiction, following High Court’s decision in Commissioner for Police for NSW v Eaton (2013) 252 CLR 1 – Where Full Bench overturned decision – Where applicant successfully sought judicial review of Full Bench decision by NSW Supreme Court – Where first respondent successfully appealed to Court of Appeal – Whether IRC has jurisdiction to hear and determine unfair dismissal application filed by police office retired on medical grounds – Whether Court of Appeal applied correct statutory construction principles in interpreting two overlapping statutory schemes.
Appealed from NSW (CA): [2020] NSWCA 159; (2020) 298 IR 202
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Ridd v James Cook University
B12/2021: [2020] HCATrans 15
Date heard: 11 February 2021 – Special leave granted
Catchwords:
Industrial law – Enterprise agreement – Where appellant employed as professor by respondent under James Cook University Enterprise Agreement (“EA”) – Where EA cl 14 protected right to intellectual freedom and specified limits – Where respondent has Code of Conduct and in cl 13, parties to EA expressed commitment to Code – Where cl 54 provided disciplinary action could only be taken for “misconduct” or “serious misconduct” – Where “serious misconduct” included breach of Code – Where respondent took disciplinary action against appellant on basis appellant breached Code by failure to act in collegial manner and to uphold integrity and good reputation of respondent – Where appellant successfully brought proceedings in Federal Circuit Court alleging respondent contravened EA because he could not be disciplined for conduct protected under cl 14 – Where respondent successfully appealed to Full Court of the Federal Court – Whether appellant’s conduct protected by cl 14 – Whether, on proper construction of EA, cl 14, 13 and Code should be read together – If so, whether cl 13 qualifies cl 14 or vice versa.
Appealed from FCA (FC): [2020] FCAFC 123; (2020) 382 ALR 8; (2020) 298 IR 50
Appealed from FCA (FC): [2020] FCAFC 132
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ZG Operations Australia Pty Ltd & Anor v Jamsek & Ors
S27/2021: [2021] HCATrans 27
Date heard: 12 February 2021 – Special leave granted on limited grounds
Catchwords:
Industrial law – Employee and contractor – Proper test for distinguishing – Multi-factorial test – Where respondents commenced employment with applicants as truck drivers in 1980 – Where, in 1985, appellants and respondents agreed respondents would become contractors – Where respondents formed partnerships with respective wives, purchased truck from appellants and executed written contract with appellants to provide delivery services – Where respondents worked exclusively for and derived sole income from appellants for nearly forty years, and contract expressly permitted respondents to service other clients – Where respondents required to be available to work during set hours – Where impractical for respondents to work for or generate goodwill with other clients – Where respondents required to purchase truck to retain work, display company logo on truck and wear branded clothing – Where respondents responsible for upkeep, maintenance and insurance of trucks – Where respondents paid by invoice and charged GST to appellants – Where respondents conducted partnerships as one would expect of business - Where contract terminated in 2017 – Where respondents unsuccessfully claimed in Federal Court for unpaid employee entitlements under various statutory regimes and Federal Court held respondents “contractors” – Where respondents successfully appealed to Full Court, which held respondents “employees” – Whether respondents “employees” for purposes of Fair Work Act 2009 (Cth), Superannuation Guarantee (Administration) Act 1992 (Cth) and “workers” for purpose of Long Service Leave Act 1955 (NSW).
Appealed from FCA (FC): [2020] FCAFC 119; (2020) 297 IR 210
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Patents
H. Lundbeck A/S & Anor v Sandoz Pty Ltd; CNS Pharma Pty Ltd v Sandoz Pty Ltd
S22/2021; S23/2021: [2021] HCATrans 13
Date heard: 11 February 2021 – Special leave granted
Catchwords:
Patents – Patent extension – Contract construction – Where s 79 of Patents Act 1990 (Cth) provides if patentee applies for extension of term of patent and patent expires before application determined and extension is granted, patentee has same rights to commence infringement proceedings during extension period as if extension had been granted when alleged infringement was done – Where appellants patentee and exclusive licensees of pharmaceutical compound – Where patent expired in 13 June 2009 – Where, on 25 June 2014, patent extension granted to 9 December 2012 – Where, from 15 June 2009 onwards, respondent supplied generic version of compound – Where, in 2007, patentee and respondent entered into Settlement Agreement, giving respondent licence to exploit patent prior to expiry – Where Agreement specified possible commencement dates of licence conditioned on whether extension granted, but did not specify end date – Where appellants commenced infringement proceedings in Federal Court on 26 June 2014 in respect of acts done during extension period – Where Federal Court held Agreement gave licence only for two weeks prior to original expiry date (31 May 2009) until original expiry (13 June 2009) but not extension period – Where respondent successfully appealed to Full Court, which held Agreement gave licence from 31 May 2009 to extended expiry date (9 December 2012) – Whether licence applied in relation to acts occurring after patent original expiry date and before term extended – Whether, on respondent’s construction, Agreement produced commercially nonsensical result – Whether exclusive licensee may commence infringement proceeding for acts done between original date of expiry and date on which term subsequently extended.
Appealed from FCA (FC): [2020] FCAFC 133
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Practice and Procedure
Deputy Commissioner of Taxation v Huang
S26/2021: [2021] HCATrans 21
Date determined: 11 February 2021 – Special leave granted
Catchwords:
Practice and procedure – Freezing order – Where appellant filed originating application in Federal Court seeking judgment against respondent – Where appellant obtained ex parte worldwide freezing order against respondent’s Australian and foreign assets pursuant to r 7.32 of Federal Court Rules 2011 (Cth) – Where respondent holds significant assets in China and Hong Kong – Where prospective judgment obtained against respondent not likely to be enforceable in China or Hong Kong – Where judgment subsequently entered against respondent – Where respondent successfully appealed to Full Court against freezing order on ground freezing order requires realistic possibility any judgment obtained by applicant can be enforced against respondent’s assets in relevant foreign jurisdiction – Whether r 7.32 imposes mandatory jurisdictional precondition on appellant to prove realistic possibility of enforcement in relevant foreign jurisdiction – Whether, absent realistic possibility, disposition of respondent’s foreign assets would frustrate or inhibit Federal Court processes and create danger of judgment being wholly or partly unsatisfied.
Appealed from FCA (FC): [2020] FCAFC 141
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Taxation
Addy v Commissioner of Taxation
S25/2021: [2021] HCATrans 17
Date heard: 11 February 2021 – Special leave granted on limited grounds
Catchwords:
Taxation – Double taxation treaty – Non-discrimination clause – Where Art 25 of Australia and United Kingdom Double Taxation Treaty provides foreign nationals shall not be subjected to more burdensome tax treatment compared to hypothetical Australian national in same circumstances – Where appellant citizen of United Kingdom and holder of working holiday visa – Where working holiday visa-holders subject to special working holiday tax rate in Pt III of Sch 7 of Income Tax Rates Act 1986 (Cth) – Where appellant taxed $3,986 compared to $1,591.44 by Australian national on same income – Where appellant selected as test case by respondent Commissioner – Where Federal Court held appellant entitled to benefit of Art 25 – Where respondent successfully appealed to Full Court – Whether appellant subject to more burdensome taxation by reason of nationality – If so, whether appellant Australian resident for tax purposes.
Appealed from FCA (FC): [2020] FCAFC 135; (2020) 382 ALR 68
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Commissioner of Taxation v Carter & Ors
S62/2021: [2021] HCATrans 72
Date heard: 16 April 2021 – Special leave granted
Catchwords:
Taxation – Trust distribution – Effect of disclaimer – Where respondents default beneficiaries of trust – Where trust deed provided respondents entitled to income of trust for given tax year (ending 30 June) if trustee did not make effective determination departing from default position – Where trustee had not made effective determination as at 30 June 2014 – Where s 97(1) of Income Tax Assessment Act 1936 (Cth) provides if beneficiary of trust is “presently entitled” to share of trust income, that share included in assessable income of beneficiary – Where, following audit, on 27 September 2015, appellant issued income tax assessments to respondents for income year ended 30 June 2014 including their share of 2014 trust income – On 30 September 2016, respondents purported to disclaim entitlement to income from trust for 2014 income year – Where Full Court of Federal Court considered themselves bound to hold general law extinguishes entitlement to trust income ab initio and held disclaimers displaced application of s 97(1) – Whether disclaimer of gift render gift void ab initio for all purposes – Whether, if beneficiary disclaims trust distribution after end of income year, beneficiary “presently entitled” to distribution for purposes of s 97(1).
Appealed from FCA (FC): [2020] FCAFC 150; (2020) 279 FCR 83
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Torts
Arsalan v Rixon; Nguyen v Cassim
S35/2021; S36/2021: [2021] HCATrans 43
Date heard: 12 March 2021 – Special leave granted
Catchwords:
Torts – Damages – Damage to chattel – Where applicants’ negligence resulted in motor vehicle collision with respondents’ “high-value”, “prestige” vehicles – Where respondents’ vehicles damaged, and respondents hired replacement vehicles of equivalent value while damaged vehicles underwent repairs – Where respondents claimed damages for cost of hiring replacement vehicles of equivalent value in NSW Local Court – Where magistrate awarded damages only for cost of hiring suitable replacement vehicle for uses vehicle will likely to be put, not necessarily of equivalent value – Where respondents’ appeal to Supreme Court dismissed – Where respondents’ appeal to Court of Appeal allowed – Where Court of Appeal majority held damages be awarded to put claimant in position they would have been in before wrongdoing, i.e., for replacement vehicle of equivalent value – Where each judge in Court of Appeal applied different standard – Whether respondents entitled to claim damages for cost of hiring replacement vehicles of equivalent value to damaged prestige vehicles – Whether equivalent value replacement vehicle reasonable – Correct test of quantification of damages.
Appealed from NSWSC (CA): [2020] NSWCA 115; (2020) 92 MVR 366
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Kozarov v State of Victoria
M130/2020: [2021] HCATrans 101
Date heard: 21 May 2021 – Special leave granted
Catchwords:
Torts – Negligence – Causation – Where applicant worked in Serious Sex Offenders Unit (SSOU) of Office of Public Prosecutions (OPP) – Where work in SSOU required applicant to deal with confronting material of graphic sexual nature – Where, on 11 August 2011, applicant took sick leave for symptoms consistent with post-traumatic stress disorder (PTSD) but was not diagnosed and returned to work on 29 August 2011 – Where, on return, applicant was involved in dispute with manager and stated she did not wish to be rotated to different unit within OPP – Where, on 9 February 2012, applicant emailed manager requesting she be rotated out of SSOU due to effect of SSOU work on her health, but request was not actioned – Where primary judge held respondent was put on notice as to risks to applicant’s health in August 2011 – Where primary judge made inference that timely welfare enquiry by respondent would have revealed applicant’s PTSD and, if applicant had been made aware of her condition, she would have consented to be rotated out of SSOU – Where primary judge held respondent failed to discharge duty of care in August 2011 by not making welfare enquiry and not rotating applicant out of SSOU – Where Court of Appeal overturned primary judge’s inference that applicant would have consented to be rotated out and held that applicant’s own actions in not consenting to be rotated out caused injury rather than respondent’s actions – Where Court of Appeal did not address primary judge’s finding that return to work after February 2012 caused applicant injury – Where Court of Appeal allowed respondent’s appeal – Whether open to Court of Appeal to overturn primary judge’s finding that if duty of care had been discharged in August 2011, applicant would have consented to be rotated out of SSOU – Whether Court of Appeal erred in failing to consider injury caused by return to work after February 2012.
Appealed from VSC (CA): [2020] VSCA 301; (2020) 301 IR 446
Appealed from VSC (CA): [2020] VSCA 316
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Tapp v Australian Bushmen’s Campdraft & Rodeo Association Limited
S63/2021: [2021] HCATrans 74
Date heard: 16 April 2021 – Special leave granted on limited grounds
Catchwords:
Torts – Negligence – Breach of duty – Obvious risk – Where applicant injured in competition conducted by respondent when horse she was riding slipped and fell – Where applicant contended cause of fall was deterioration in ground surface and respondent negligent in failing to plough ground at site of event, failing to stop competition, or failing to warn competitors when ground became unsafe – Where prior to applicant’s participation, there had already been 7 falls – Where trial judge held no breach of duty of care established – Where majority of Court of Appeal held applicant failed to establish cause of fall was ground surface deterioration and therefore failed to establish respondent breached duty – Where majority of Court of Appeal held even if breach established, s 5L of Civil Liability Act 2002 (NSW) applied to exclude respondent’s liability as injury suffered was manifestation of “obvious risk” – Whether Court of Appeal’s approach to evidence of ground surface deterioration did not afford applicant rehearing – Proper approach to identification of “obvious risk”.
Appealed from NSWSC (CA): [2020] NSWCA 263
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7: Cases Not Proceeding or Vacated
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8: Special Leave Refused
Publication of Reasons: 13 May 2021 (Canberra)
| No. |
| Respondent | Court appealed from | Result |
| 1. | Tseng | Queensland Police Service | Supreme Court of Queensland | Application dismissed |
| 2. | Zepinic | Chateau Constructions (Aust) Limited (S12/2021) | Supreme Court of New South Wales (Court of Appeal) [2020] NSWCA 291 | Application dismissed [2021] HCASL 91 |
| 3. | Pasnin | The Queen (B11/2021) | Supreme Court of Queensland | Application dismissed [2021] HCASL 93 |
Publication of Reasons: 18 May 2021 (Canberra)
| No. |
| Respondent | Court appealed from | Result |
| 1. | Glendining & Anor | SF Cosentino Pty Ltd | Supreme Court of Victoria | Application dismissed |
| 2. | Wilson Pastoral International Pty Ltd & Anor | George Street Steel Pty Ltd (A5/2021) | Supreme Court of | Application dismissed with costs [2021] HCASL 95 |
| 3. | Anderson | The State of Tasmania (H3/2020) | Supreme Court of Tasmania | Application dismissed [2021] HCASL 96 |
Publication of Reasons: 20 May 2021 (Canberra)
| No. |
| Respondent | Court appealed from | Result |
| 1. | BJO18 | Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor | Full Court of the | Application dismissed |
| 2. | French | Bremner (S11/2021) | Supreme Court of | Application dismissed [2021] HCASL 98 |
| 3. | Rickards | The Queen (B68/2020) | Supreme Court of Queensland (Court of Appeal) [2020] QCA 21 | Application dismissed [2021] HCASL 99 |
| 4. | Mount Atkinson Holdings Pty Ltd & Anor | Landfill Operations Pty Ltd & Ors (M3/2021) | Supreme Court of Victoria | Application dismissed with costs [2021] HCASL 100 |
| 5. | Bailey | WIN Television NSW Pty Limited & Anor (S10/2021) | Supreme Court of New South Wales (Court of Appeal) [2020] NSWCA 352 | Application dismissed |
20 May 2021: Canberra and by video link
| No. | Applicant | Respondent | Court appealed from | Results |
| 1. | TRG | The Board of Trustees of the Brisbane Grammar School | Supreme Court of Queensland | Application refused [2021] HCATrans 85 |
| 2. | WCL (QLD) Albert St Pty Ltd | ORB Holdings Pty Ltd (B63/2020) | Supreme Court of Queensland (Court of Appeal) [2020] QCA 198 | Application refused with costs [2021] HCATrans 93 |
| 3. | Imago Holdings Pty Ltd | City of Fremantle & Ors (P24/2020) | Supreme Court of Western Australia (Court of Appeal) [2020] WASCA 61 | Application refused with costs [2021] HCATrans 94 |
| 4. | Sydney Capitol Hotels Pty Ltd | Bandelle Pty Limited | Supreme Court of New South Wales (Court of Appeal) [2020] NSWCA 303 | Application refused with costs [2021] HCATrans 91 |
21 May 2021: Canberra and by video link
| No. | Applicant | Respondent | Court appealed from | Results |
| 1. | Virgin Blue International Pty Ltd | Edwards | Supreme Court of | Application refused with costs [2021] HCATrans 102 |
| 2. | Ogawa | Attorney General of the Commonwealth of Australia & Ors (B71/2020) | Full Court of the Federal Court of Australia [2020] FCAFC 180 | Application refused [2021] HCATrans 97 |
| 3. | Lucky Eights Pty Ltd | Bevendale Pty Ltd (M133/2020) | Supreme Court of Victoria (Court of Appeal) [2020] VSCA 312 | Application refused with costs [2021] HCATrans 99 |
| 4. | The Commissioner of Taxation of the Commonwealth of Australia (3 applications) | Glencore Investment Pty Ltd (S223; S224; S225/2020) | Full Court of the Federal Court of Australia [2020] FCAFC 187 | Applications refused with costs [2021] HCATrans 98 |
| 5. | Communications Electrical Electronic Energy Information Postal Plumbing and Allied Services Union of Australia & Ors | Qantas Airways Limited (S242/2020) | Full Court of the Federal Court of Australia [2020] FCAFC 205 | Application refused with costs [2021] HCATrans 100 |
| 6. | The Queen | Camurtay (M101/2020) | Supreme Court of Victoria | Application refused [2021] HCATrans 96 |
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