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High Court Bulletin

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

[2020] HCAB 7 (11 September 2020)

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
Private R v Brigadier Michael Cowen & Anor	Constitutional Law
Applicant S270/2019 v Minister for Immigration and Border Protection	Immigration

3: Cases Reserved

Case	Title
GBF v The Queen	Criminal Law
The Queen v Abdirahman-Khalif	Criminal Law
Roy v O’Neill	Evidence
Clayton v Bant	Family Law
AUS17 v Minister for Immigration and Border Protection	Migration Law
Minister for Home Affairs & Ors v DMA18 as Litigation Guardian for DLZ18 & Anor; Minister for Home Affairs & Anor v Marie Theresa Arthur as Litigation Representative for BXD18; Minister for Home Affairs & Anor v FRX17 as Litigation Representative for FRM17; Minister for Home Affairs & Anor v DJA18 as Litigation Representative for DIZ18	Migration Law
Deguisa & Anor v Lynn & Ors	Real Property

4: Original Jurisdiction

Case	Title
LibertyWorks Inc v Commonwealth of Australia	Constitutional Law
Palmer & Anor v The State of Western Australia & Anor	Constitutional Law

5: Section 40 Removal

6: Special Leave Granted

Case	Title
Victoria International Container Terminal Limited v Lunt & Ors	Civil Procedure
Matthew Ward Price and Daniel James Price as Executors of the Estate of Alan Leslie Price (Deceased) & Ors v Christine Claire Spoor as Trustee & Ors	Contracts
Davidson v The Queen	Evidence
DQU16 & Ors v Minister for Home Affairs & Anor	Migration Law

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 September 2020 sittings.

Constitutional Law

Private R v Brigadier Michael Cowen & Anor

S272/2019: [2020] HCA 31

Judgment delivered: 9 September 2020

Coram: Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ

Catchwords:

Constitutional law (Cth)
– Defence – Military discipline – Where plaintiff charged with assault occasioning actual bodily harm – Where plaintiff and complainant members of Australian Defence Force at time of alleged conduct – Where neither plaintiff nor complainant on duty or in uniform – Where plaintiff charged under s 61(3) of Defence Force Discipline Act 1982 (Cth) – Where s 61(3) provided defence member guilty of offence if engaged in conduct outside Jervis Bay Territory and that conduct would constitute Territory offence if it took place in Jervis Bay Territory – Where plaintiff's conduct also constituted offence under ordinary criminal law and civil courts available – Where plaintiff challenged jurisdiction of Defence Force magistrate to hear charge – Whether s 51(vi) of Constitution

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: [2020] HCAB 7
Decision Date

CaseChat Overview and Summary

In the case of Private R v Brigadier Michael Cowen & Anor, the High Court dismissed the applicant's constitutional writ application. The applicant, a member of the Australian Defence Force, was charged with assault occasioning actual bodily harm and challenged the jurisdiction of a Defence Force magistrate to hear the charge. The Court held that section 51(vi) of the Constitution supported the conferral of jurisdiction by the Defence Force Discipline Act upon a service tribunal to hear the charge. In the case of Applicant S270/2019 v Minister for Immigration and Border Protection, the High Court dismissed the appeal and held that the Minister was not obliged to consider whether non-refoulement obligations were owed to the appellant when exercising power under s 501CA(4) of the Migration Act 1958 (Cth). The Court held that the appeal was without merit and dismissed it with costs.

Orders