High Court Bulletin
[2019] HCAB 2
High Court Bulletin
Produced by the Legal Research Officer,
High Court of Australia Library[2019] HCAB 2 (2 April 2019)
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
Director of Public Prosecutions Reference No 1 of 2017
Criminal Law
Grajewski v Director of Public Prosecutions (NSW)
Criminal Law
OKS v Western Australia
Criminal Law
Northern Territory v Mr A Griffiths (deceased) and Lorraine Jones on behalf of the Ngaliwurru and Nungali Peoples; Commonwealth of Australia v Mr A Griffiths (deceased) and Lorraine Jones on behalf of the Ngaliwurru and Nungali Peoples; Mr A Griffiths (deceased) and Lorraine Jones on behalf of the Ngaliwurru and Nungali Peoples v Northern Territory
Native Title
3: Cases Reserved
Case
Title
Comcare v Banerji
Constitutional Law
Spence v State of Queensland
Constitutional Law
4: Original Jurisdiction
Case
Title
Taylor v Attorney-General of the Commonwealth
Administrative Law
Love v Commonwealth of Australia; Thoms v Commonwealth of Australia
Migration Law
5: Section 40 Removal
6: Special Leave Granted
Case
Title
Fennell v The Queen
Criminal Law
Lordianto & Anor v Commissioner of the Australian Federal Police; Kalimuthu & Anor v Commissioner of the Australian Federal Police
Criminal Law
Commissioner of Taxation of the Commonwealth of Australia v Sharpcan Pty Ltd
Taxation Law
7: Cases Not Proceeding or Vacated
2: Cases Handed Down
The following cases were handed down by the High Court of Australia during the March 2019 sittings.
Criminal Law
Director of Public Prosecutions Reference No 1 of 2017
M129/2018: [2019] HCA 9
Judgment delivered: 20 March 2019
Coram: Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ
Catchwords:
Criminal practice – Trial – Jury directions – Prasad direction – Where accused charged with murder – Where Prasad direction given over objection at close of Crown case – Where another Prasad direction given at close of defence case – Whether Prasad direction contrary to law and should not be administered to jury determining criminal trial.
Criminal practice – Jury – Reserve jurors – Where one of 13 jurors balloted off to consider response to Prasad direction – Where jury wished to hear more – Where juror balloted off re-joined jury – Where second ballot conducted to reduce jury to 12 jurors again – Where jury delivered verdicts of not guilty of murder and not guilty of manslaughter after second ballot – Whether ballot conducted at time at which "jury required to retire to consider its verdict".
Words and phrases – "fair trial", "fairness to the prosecution", "jury's suggested right to stop the case", "no case submission", "power of the trial judge", "practice of inviting the jury to stop the case", "Prasad direction", "retire to consider its verdict".
Criminal Procedure Act 2009 (Vic) – ss 66, 213, 234, 238, 241.
Juries Act 2000 (Vic) – s 48.
Appealed from VSC (CA): [2018] VSCA 69; (2018) 55 VR 551
Held: Appeal allowed; point of law answered
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Grajewski v Director of Public Prosecutions (NSW)
S141/2018: [2019] HCA 8
Judgment delivered: 13 March 2019
Coram: Kiefel CJ, Bell, Keane, Nettle and Gordon JJ
Catchwords:
Criminal law – Appeal against conviction – Question of law referred to Court of Criminal Appeal – Case stated – Destroying or damaging property – Physical element of offence – Where appellant harnessed himself to ship loader – Where ship loader shut down due to safety concerns – Where ship loader inoperable until appellant removed – Where no alteration to physical integrity of ship loader – Whether property damaged.
Words and phrases – "destroys or damages", "impairment of value", "physical derangement", "temporary functional derangement".
Crimes Act 1900 (NSW) – s 195(1).
Appealed from NSWSC (CA): [2017] NSWCCA 251
Held: Appeal allowed; questions answered; conviction quashed
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OKS v Western Australia
P62/2018: [2019] HCA 10
Judgment delivered: 20 March 2019
Coram: Bell, Keane, Nettle, Gordon and Edelman JJ
Catchwords:
Criminal practice – Appeal against conviction – Application of proviso that no substantial miscarriage of justice actually occurred – Criminal Appeals Act 2004 (WA), s 30(4) – Where jury found appellant guilty of indecently dealing with child under 13 years of age – Where credibility and reliability of complainant's evidence central issue at trial – Where complainant admitted and was alleged to having lied – Where trial judge directed jury not to reason that complainant's lies meant that all her evidence dishonest and could not be relied upon – Where Court of Appeal found direction by trial judge was wrong decision on question of law – Where Court of Appeal found no substantial miscarriage of justice occurred – Whether error in application of proviso.
Words and phrases – "misdirection", "natural limitations of proceeding on the record", "no effect upon the jury's verdict", "proviso", "substantial miscarriage of justice", "sufficiency of evidence to prove guilt", "very significant weight", "weight to the verdict of guilty", "wrong decision on a question of law".
Criminal Appeals Act 2004 (WA) – s 30(4).
Appealed from WASC (CA): [2018] WASCA 48; (2018) 52 WAR 482
Held: Appeal allowed; conviction quashed; new trial ordered
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Native Title
Northern Territory v Mr A Griffiths (deceased) and Lorraine Jones on behalf of the Ngaliwurru and Nungali Peoples; Commonwealth of Australia v Mr A Griffiths (deceased) and Lorraine Jones on behalf of the Ngaliwurru and Nungali Peoples; Mr A Griffiths (deceased) and Lorraine Jones on behalf of the Ngaliwurru and Nungali Peoples v Northern Territory
D1/2018; D2/2018; D3/2018: [2019] HCA 7
Judgment delivered: 13 March 2019
Coram: Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ
Catchwords:
Aboriginals – Native title rights – Assessment of compensation – Where "previous exclusive possession act[s]" within meaning of s 23B in Div 2B of Pt 2 of Native Title Act 1993 (Cth) ("NTA") extinguished non-exclusive native title rights and interests held by Ngaliwurru and Nungali Peoples ("Claim Group") – Where Claim Group entitled to compensation under Div 5 of Pt 2 of NTA – Whether economic loss and cultural loss assessed separately – Principles of assessment for compensation for economic loss – Whether economic value of Claim Group's native title rights and interests equivalent to freehold value of affected land – Whether reduction from freehold value appropriate and how calculated – Whether inalienability of native title rights and interests a relevant discounting factor – Principles of assessment for compensation for cultural loss – Whether trial judge erred in assessment of cultural loss – Whether award manifestly excessive – Whether award met community standards.
Interest – Whether simple or compound interest payable on award for economic loss – Upon what basis simple interest payable.
Words and phrases – "compensable acts", "compensation", "compound interest", "compulsory acquisition", "cultural loss", "discount", "easement", "economic loss", "exclusive native title rights and interests", "extinguishing act", "inalienability", "just terms", "manifestly excessive", "native title", "non-economic loss", "non-exclusive native title rights and interests", "objective economic value", "percentage reduction from full exclusive native title", "previous exclusive possession act", "simple interest", "solatium".
Constitution – 51(xxxi).
Lands Acquisition Act (NT) – Sch 2.
Native Title Act 1993 (Cth) – Pts 1, 2, 15.
Racial Discrimination Act 1975 (Cth) – s 10.
Appealed from FCA (FC): [2017] FCAFC 106; (2017) 256 FCR 478; (2017) 346 ALR 247
Held: Appeal allowed in part (D1/2018 and D2/2018); appeal dismissed (D3/2018)
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3: Cases Reserved
The following cases have been reserved or part heard by the High Court of Australia.
Arbitration
Rinehart & Anor v Hancock Prospecting Pty Ltd & Ors; Rinehart & Anor v Georgina Hope Rinehart (in her personal capacity and as trustee of the Hope Margaret Hancock Trust and as trustee of the HFMF Trust) & Ors
S143/2018; S144/2018: [2018] HCATrans 234; [2018] HCATrans 236
Date heard: 13 and 14 November 2018
Coram: Kiefel CJ, Gageler, Nettle, Gordon and Edelman JJ
Catchwords:
Arbitration – Arbitration agreements – Interpretation – Where parties entered into series of deeds containing arbitration agreements – Where primary judge ordered trial of question whether arbitration agreements in deeds null and void, inoperative or incapable of being performed – Where Full Court stayed proceeding and referred parties to arbitration – Whether Full Court erred in concluding arbitration clauses expressed to cover disputes “under” agreement extended to disputes concerning the validity of the deeds or provisions thereof.
Appealed from FCA (FC): [2017] FCAFC 170; (2017) 257 FCR 442; (2017) 350 ALR 658; [2017] FCAFC 208
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Constitutional Law
Clubb v Edwards & Anor
M46/2018: [2018] HCATrans 206; [2018] HCATrans 208; [2018] HCATrans 210
Date heard: 9, 10 and 11 October 2018
Coram: Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ
Catchwords:
Constitutional law – Implied freedom of political communication – Public Health and Wellbeing Act 2008 (Vic) s 185D – Where s 185D prohibits engaging in “prohibited behaviour” within “safe access zone” – Where “prohibited behaviour” defined to include “communicating by any means in relation to abortions in a manner that is able to be seen or heard by a person accessing, or attempting to access, or leaving premises at which abortions are provided and is reasonably likely to cause distress or anxiety” – Where appellant convicted of charge under s 185D in Magistrates’ Court – Whether s 185D impermissibly burdens implied freedom of political communication.
Removed from Supreme Court of Victoria into High Court under s 40 of Judiciary Act 1903 (Cth) on 23 March 2018
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Comcare v Banerji
C12/2018: [2019] HCATrans 50; [2019] HCATrans 51
Date heard: 20 and 21 March 2019
Coram: Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ
Catchwords:
Constitutional law – Implied freedom of political communication – Where employee of Department of Immigration and Citizenship used Twitter account to post anonymous “tweets” critical of Department – Where Department terminated employment under s 15 of Public Service Act 1999 (Cth) on basis employee used social media in breach of ss 13(1), 13(7) and 13(11) of Australian Public Service Code of Conduct – Where employee submitted claim for compensation under s 14 of Safety, Compensation and Rehabilitation Act 1988 (Cth) on basis termination led to psychological condition – Where Comcare rejected claim – Where Administrative Appeals Tribunal set aside decision on basis termination infringed implied freedom of political communication so termination not “reasonable administrative action taken in a reasonable manner” within meaning of s 5A of Safety, Compensation and Rehabilitation Act – Whether ss 13(11) and 15 of Public Service Act incompatible with implied freedom of political communication – Whether Tribunal erred in failing to find decision to terminate employment constituted “reasonable administrative action taken in a reasonable manner”.
Removed from Federal Court of Australia into High Court under s 40 of Judiciary Act 1903 (Cth) on 12 September 2018
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Plaintiff M47/2018 v Minister for Home Affairs & Anor
M47/2018: [2019] HCATrans 9
Orders made: 13 February 2019, reasons to be published at later date
Coram: Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ
Catchwords:
Constitutional law – Constitution Ch III – Detention – Immigration detention – Where plaintiff arrived in Australia in 2010 – Where plaintiff detained under ss 189 and 196 of Migration Act 1958 (Cth) – Where plaintiff claims he has no right, or entitlement to obtain right, to enter or reside in any country – Whether ss 189 and 196 of Act authorise detention of plaintiff – If yes, whether ss 189 and 196 of Act beyond legislative power of Commonwealth insofar as they apply to plaintiff.
Questions answered
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Preston v Avery & Anor
H2/2018: [2018] HCATrans 206; [2018] HCATrans 208; [2018] HCATrans 210
Date heard: 9, 10 and 11 October 2018
Coram: Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ
Catchwords:
Constitutional law – Implied freedom of political communication – Reproductive Health (Access to Termination) Act 2013 (Tas) s 9(2) – Where s 9(2) prohibits protest in relation to terminations that is able to be seen or heard by person accessing or attempting to access premises at which terminations provided – Where appellant convicted in Hobart Court of Petty Sessions of contraventions of s 9(2) – Whether s 9(2) impermissibly burdens implied freedom of political communication.
Removed from Supreme Court of Tasmania into High Court under s 40 of Judiciary Act 1903 (Cth) on 23 March 2018
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Spence v State of Queensland
B35/2018: [2019] HCATrans 44; [2019] HCATrans 45; [2019] HCATrans 46; [2019] HCATrans 47
Date heard: 12, 13, 14 and 15 March 2019
Coram: Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ
Catchwords:
Constitutional law (Cth) – Implied freedom of political communication – Federal legislative power with respect to federal elections – Implied doctrine of intergovernmental immunities – State immunity from Commonwealth laws – Operation of s 109 of Constitution (Cth) – Where Local Government Electoral (Implementing Stage 1 of Belcarra) and Other Legislation Amendment Act 2018 (Qld) purports to prohibit making of political donations by property developers – Whether s 275 of the Electoral Act 1992 (Qld) and s 113B of the Local Government Electoral Act 2011 (Qld) invalid to the extent they touch or concern federal elections – Whether inconsistent with s 302CA of Commonwealth Electoral Act 1918 (Cth) – Whether s 302CA beyond the Commonwealth’s legislative power – Whether s 302CA infringes the implied intergovernmental immunity of States from Commonwealth laws – Whether s 302CA invalid because it seeks to retrospectively override operation of s 109 of the Constitution – Whether Subdiv 4 of Div 8 of Pt 11 of the Electoral Act 1992 (Qld) infringes implied freedom of political communication.
Special Case
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Consumer Law
Australian Securities and Investments Commission v Kobelt
A32/2018: [2018] HCATrans 252
Date heard: 4 December 2018
Coram: Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ
Catchwords:
Consumer law – Australian Securities and Investments Act 2001 (Cth) s 12CB, 12CC – Unconscionable conduct – Where respondent operated general store in remote town – Where respondent provided credit to indigenous customers – Where primary judge held respondent contravened s 12CB(1) by engaging in system of unconscionable conduct in connection with supply of financial services to customers – Where Full Federal Court allowed appeal – Whether Full Federal Court erred in construction and application of ss 12CB and 12CC – Whether Full Court gave due weight to special disadvantage or vulnerability of customers and gave undue weight to voluntary entry into agreements.
Appealed from FCA (FC): [2018] FCAFC 18; (2018) 352 ALR 689
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Frugtniet v Australian Securities & Investments Commission
M136/2018: [2019] HCATrans 7
Date heard: 7 February 2019
Coram: Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ
Catchwords:
Consumer law – Banning orders – National Consumer Credit Protection Act 2009 (Cth) s 80 – Crimes Act 1914 (Cth) s 85ZZH – Where Commission made banning order under s 80 on basis appellant not “fit and proper person to engage in credit activities” – Where Administrative Appeals Tribunal affirmed Commission’s order – Where primary judge and Full Federal Court dismissed appeals – Whether Full Federal Court erred in holding Tribunal not prevented by Crimes Act from considering “spent convictions”.
Appealed from FCA (FC): [2017] FCAFC 162; (2017) 255 FCR 96
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Corporations Law
Carter Holt Harvey Woodproducts Australia Pty Ltd v The Commonwealth of Australia & Ors
M137/2018: [2019] HCATrans 6
Date heard: 5 February 2019
Coram: Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ
Catchwords:
Corporations – Trustee corporations – Corporations Act 2001 (Cth) s 433(2) – Where creditors resolved to wind up corporate trustee – Where receivers sought directions – Where primary judge held receivers justified in proceeding on basis receivership surplus properly characterised as trust property and s 433 did not apply to surplus – Where Court of Appeal allowed appeal – Whether Court of Appeal erred in concluding “property of the company” in s 433(2) included not only trustee’s right of indemnity but also underlying trust assets to which trustee company could have recourse – Whether Court of Appeal erred in concluding corporate trustee’s right of indemnity from trust assets was “property comprised in or subject to a circulating security interest” for purposes of s 433(2).
Appealed from VSC (CA): [2018] VSCA 41; (2018) 54 VR 230; (2018) 354 ALR 789; (2018) 124 ACSR 246; (2018) 330 FLR 149
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Interpretation
Victorian Building Authority v Andriotis
M134/2018: [2019] HCATrans 8
Date heard: 12 February 2019
Coram: Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ
Catchwords:
Interpretation – Mutual Recognition Act 1999 (Cth) s 17, 20 – Where respondent registered in New South Wales as waterproofing technician – Where respondent applied to appellant for registration under Building Act 1993 (Vic) – Where appellant refused to grant registration because respondent not of “good character” as required by s 170(1)(c) of Building Act – Where Administrative Appeals Tribunal affirmed decision – Where Full Federal Court allowed appeal – Whether Full Federal Court erred in holding appellant required by s 20(2) to register respondent for equivalent occupation under Building Act notwithstanding appellant found respondent not of good character – Whether Full Federal Court erred in holding exception to mutual recognition principle in s 17(2) of Mutual Recognition Act does not quality “entitlement” to be registered under s 20(1) – Whether Full Court erred in holding “good character” requirement in Building Act not law regulating “manner” of carrying out occupation within meaning of s 17(2) of Mutual Recognition Act.
Appealed from FCA (FC): [2018] FCAFC 24; (2018) 359 ALR 427; (2018) 161 ALD 258
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Native Title
KN (deceased) and Others on behalf of the Tjiwarl and Tjiwarl #2 v State of Western Australia & Ors
P38/2018: [2018] HCATrans 233
Date heard: 8 November 2018
Coram: Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ
Catchwords:
Native title – Extinguishment – Exploration licence – Native Title Act 1993 (Cth) s 47B – Where unallocated Crown land subject to exploration licence granted under Mining Act 1978 (WA) – Where native title determination application filed in respect of land – Where primary judge concluded s 47B applied because exploration licence not “lease” within meaning of s 47B(1)(b)(i) – Where Federal Court allowed appeal – Whether Federal Court erred in concluding exploration licence is “lease” within meaning of s 47B(1)(b)(i).
Appealed from FCA (FC): [2018] FCAFC 8; (2018) 351 ALR 491
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Tjungarrayi & Ors v State of Western Australia & Ors
P37/2018: [2018] HCATrans 233
Date heard: 8 November 2018
Coram: Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ
Catchwords:
Native title – Extinguishment – Petroleum exploration permits – Native Title Act 1993 (Cth) s 47B – Where land subject to petroleum exploration permits granted under Petroleum and Geothermal Energy Resources Act 1967 (WA) – Where native title determination application filed in respect of land – Where primary judge concluded s 47B applied because petroleum exploration permits not “leases” within meaning of s 47B(1)(b)(i) – Where Federal Court allowed appeal – Whether Federal Court erred in concluding petroleum exploration permits “leases” within meaning of s 47B(1)(b)(i).
Appealed from FCA (FC): [2018] FCAFC 35; (2018) 359 ALR 256
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Tort
Parkes Shire Council v South West Helicopters Pty Limited
S140/2018: [2018] HCATrans 237
Date heard: 14 November 2018
Coram: Kiefel CJ, Bell, Keane, Gordon and Edelman JJ
Catchwords:
Tort – Negligence – Psychiatric injury – Where Council engaged South West Helicopters to provide helicopter and pilot for aerial survey – Where Council employees died in helicopter crash – Where relatives brought proceedings in negligence for nervous shock against Council and South West Helicopters under Compensation to Relatives Act 1897 (NSW) – Where primary judge upheld claim – Where majority of Court of Appeal allowed appeal on basis any liability South West Helicopters might have had under Compensation to Relatives Act or general law excluded by Civil Aviation (Carriers’ Liability) Act 1959 (Cth) – Whether majority of Court of Appeal erred in construction of s 35 of Civil Aviation (Carriers’ Liability) Act – Whether majority of Court of Appeal erred in failing to conclude claims against carriers brought by non-passengers following death of passenger not regulated by s 35.
Appealed from NSW (CA): [2017] NSWCA 312; (2017) 356 ALR 63; (2017) 327 FLR 110
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4: Original Jurisdiction
The following cases are ready for hearing in the original jurisdiction of the High Court of Australia.
Administrative Law
Taylor v Attorney-General of the Commonwealth
M36/2018: Special Case
Catchwords:
Administrative law – Judicial review – Where plaintiff lodged charge-sheet and summons at Magistrates’ Court against Aung Sun Suu Kyi (serving Foreign Minister of Myanmar) for a crime against humanity (deportation or forcible transfer of population) contrary to ss 268.11 and 268.115 of the Criminal Code Act 1995 (Cth) – Where plaintiff sought defendant’s consent under s 268.121 of the Criminal Code Act to commence proceedings – Where consent refused – Whether the decision to refuse consent reviewable – Whether defendant misunderstood the law and committed jurisdictional error in refusing consent – Whether Aung Sun Suu Kyi immune from prosecution in Australia under customary international law – Whether defendant failed to afford plaintiff procedural fairness.
Referred to Full Court on 8 March 2019
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Constitutional Law
Glencore International AG & Ors v Commissioner of Taxation of the Commonwealth of Australia & Ors
S256/2018: Demurrer
Catchwords:
Constitutional law – Constitution s 75(iii) – Where defendants obtained documents held by overseas law practice – Where plaintiffs claim documents created by law practice for sole or dominant purpose of providing legal advice to plaintiffs – Whether documents subject to legal professional privilege – Whether plaintiffs entitled to injunction under Judiciary Act 1903 (Cth) s 31 or s 32 restraining defendants and any other officer of Australian Taxation Office from relying upon, referring to or making use of documents – Whether common law of Australia confers on privilege holder actionable right to restrain use by third party of privileged communication – Whether defendants entitled and/or obliged to retain and use communications under Income Tax Assessment Act 1936 (Cth) s 166.
Referred to Full Court on 5 November 2018
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Migration Law
Love v Commonwealth of Australia; Thoms v Commonwealth of Australia
B43/2018; B64/2018: Special Case
Catchwords:
Migration law – Where Love born in Papua New Guinea to Australian father – Where Love identifies as descendant of the Kamilaroi tribe – Where Love has five Australian children – Where Love was sentenced for an offence of assault occasioning bodily harm against s 339 of the Criminal Code 1899 (Qld) and sentenced to imprisonment of 12 months – Where Love’s Class BF Transitional (permanent) Visa cancelled under s 501(3A) of the Migration Act 1958 (Cth) – Where Love detained under s 189 of Migration Act 1958 (Cth) on suspicion of being an “unlawful non-citizen” – Where cancellation of Love’s visa revoked under s 501CA(4) of the Migration Act and Love released from immigration detention – Where Thoms born in New Zealand to Australian mother – Where Thoms identifies as member of Gunggari People – Where Thoms has one Australian child – Where Thoms sentenced to imprisonment of 18 months for assault occasioning bodily harm contrary to ss 339(1) and 47(9) of the Criminal Code– Where Thoms’ Subclass 444 Special Category (temporary) Visa cancelled under s 501(3A) of the Migration Act – Where Thom was and remains detained purportedly under s 189 of the Migration Act on suspicion of being an “unlawful non-citizen” – Whether each of Love and/or Thom an “alien” within the meaning of s 51(xix) of the Constitution (Cth).
Referred to Full Court on 5 March 2019
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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.
Contract Law
Mann & Anor v Paterson Constructions Pty Ltd
M197/2018: [2018] HCATrans 261
Date heard: 14 December 2018 – Special leave granted.
Catchwords:
Contracts – Termination – Repudiation – Where appellants and respondent entered into building contract – Where appellants purported to terminate on basis respondent repudiated – Where respondent then purported to terminate on basis appellants’ conduct constituted repudiation – Where Victorian Civil and Administrative Tribunal upheld claim by respondent for quantum meruit in amount exceeding contract price – Where Supreme Court and Court of Appeal dismissed appeals – Whether Court of Appeal erred in holding respondent entitled to sue on quantum meruit for works carried out – Whether Court of Appeal erred in holding contract price did not operate as ceiling on amount claimable – Whether Court of Appeal erred in concluding respondent able to recover for variations to works because s 38 of Domestic Building Contracts Act 1995 (Vic) did not apply to quantum meruit claim.
Appealed from VSC (CA): [2018] VSCA 231
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Corporations Law
Connective Services Pty Ltd & Anor v Slea Pty Ltd & Ors
M203/2018: [2018] HCATrans 263
Date heard: 14 December 2018 – Special leave granted.
Catchwords:
Corporations – Financial assistance to acquire shares – Corporations Act 2001 (Cth) s 260A – Where appellants’ constitutions require member who wishes to transfer shares of particular class to first offer shares to existing holders of that class (“pre-emptive rights provisions”) – Where appellants commenced proceeding alleging first and second respondents entered into agreement to avoid pre-emptive rights provisions – Where primary judge held proceeding not instituted in breach of s 260A – Where Court of Appeal allowed appeal – Whether Court of Appeal erred in holding appellants’ conduct capable of amounting to financial assistance to acquire shares within meaning of s 260A – Whether Court of Appeal erred in concluding open to primary judge to characterise appellants’ conduct as net transfer of value to appellants’ shareholders – Whether Court of Appeal erred in concluding open to primary judge to characterise conduct as capable of materially prejudicing interests of appellants and/or shareholders or creditors – Whether Court of Appeal erred in concluding financial assistance directed to enabling appellants’ shareholders to acquire shares.
Appealed from VSC (CA): [2018] VSCA 180; (2018) 359 ALR 159
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Costs
Bell Lawyers Pty Ltd v Pentelow & Anor
S352/2018: [2018] HCATrans 264
Date heard: 14 December 2018 – Special leave granted.
Catchwords:
Costs – Chorley exception – London Scottish Benefit Society v Chorley (1884) 13 QBD 872 – Where first respondent is barrister – Where first respondent commenced proceedings against appellant –Where Supreme Court entered judgment for first respondent and ordered appellant to pay first respondent’s costs – Where first respondent sought to recover costs for work performed by her in addition to costs and disbursements of solicitors and counsel – Where costs assessor and review panel disallowed costs for work performed by first respondent – Where Court of Appeal allowed appeal – Whether Court of Appeal erred in concluding first respondent entitled to recover costs for time spent in conduct of proceedings – Whether Court of Appeal erred in concluding Chorley exception applied in circumstances where first respondent had retained solicitors and counsel – Whether Court of Appeal erred in determining s 98 of Civil Procedure Act 2005 (NSW) permitted application of Chorley exception.
Appealed from NSWSC (CA): [2018] NSWCA 150
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The Northern Territory of Australia v Sangare
D11/2018: [2018] HCATrans 254
Date determined: 5 December 2018 – Special leave granted.
Catchwords:
Costs – Discretion to award costs – Impecuniosity – Where Department of Infrastructure offered employment to respondent – Where respondent sought support for skilled migration visa application from Minister for Infrastructure – Where Departmental officers provided briefing to Minister – Where respondent alleged briefing contained defamatory material fabricated by Department – Where respondent commenced proceedings seeking damages for publication of defamatory statements in briefing – Where Supreme Court dismissed claim – Where Court of Appeal dismissed respondent’s appeal – Where Court of Appeal declined to award appellant costs because respondent impecunious – Whether Court of Appeal erred in refusing to award costs because respondent unlikely to be able to pay any costs awarded against him.
Appealed from NTSC (CA): [2018] NTCA 10
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Criminal Law
Fennell v The Queen
B48/2018: [2019] HCATrans 58
Date heard: 22 March 2019 – Special leave granted on limited grounds.
Catchwords:
Criminal law – Where appellant convicted by jury of murder and sentenced to life imprisonment – Where appellant contended on appeal that there was reasonable hypothesis consistent with innocence open on evidence – Whether Court of Appeal erred in failing to find that the verdict was unreasonable or could not be supported having regard to evidence, in part because it made significant errors of fact.
Appealed from QSC (CA): [2017] QCA 154
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Lordianto & Anor v Commissioner of the Australian Federal Police; Kalimuthu & Anor v Commissioner of the Australian Federal Police
S266/2018; P58/2018: [2019] HCATrans 54
Date heard: 22 March 2019 – Special leave granted.
Catchwords:
Criminal law – Proceeds of crime – Where large number of deposits were made into bank accounts in amounts of less than $10,000 – Whether each Court of Appeal misconstrued “third party” in s 330(4)(a) of the Proceeds of Crime Act 2002 (Cth) to exclude person who acquires property at time it becomes proceeds or an instrument of an offence – Whether each Court of Appeal wrongly interpreted term “sufficient consideration” in ss 330(4)(a) and 338 as requiring connection between third party acquirer of property and person from whom property passed – Whether each Court of Appeal erred in interpreting and applying “circumstances that would not arouse a reasonable suspicion, that the property was proceeds of an offence or an instrument of an offence” in s 330(4)(a).
S266/2018 Appealed from NSWSC (CA): [2018] NSWCA 199
P58/2018 Appealed from WASC (CA): [2018] WASCA 192Return to Top
The Queen v A2; The Queen v Magennis; The Queen v Vaziri
S43/2019; S44/2019; S45/2019: [2019] HCATrans 16
Date heard: 15 February 2019 – Special leave granted.
Catchwords:
Criminal law – Female genital mutilation – Where A2 and Magennis had been convicted of offences of female genital mutilation contrary to s 45(1)(a), Crimes Act 1990 (NSW) – Where Vaziri had been convicted of being an accessory to those offences – Where, on appeal, the Court of Criminal Appeal of New South Wales (CCA) entered verdicts of acquittal for A2, Magennis and Vaziri – Whether the CCA erred in construing the words “otherwise mutilates” and “clitoris” in s 45(1)(a) of the Crimes Act – Whether “otherwise mutilates” extends to include any injury and/or damage to another person’s clitoris in s 45(1)(a) of the Crimes Act – Whether “clitoris” includes the clitoral hood or prepuce in s 45(1)(a) of the Crimes Act.
Appealed from NSWSC (CCA): [2018] NSWCCA 174
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Family Law
Masson v Parsons & Ors
S6/2019: [2018] HCATrans 265
Date heard: 14 December 2018 – Special leave granted.
Catchwords:
Family law – Parentage – Artificial insemination – Where appellant and first respondent conceived child using artificial insemination – Where appellant listed on child’s birth certificate as father – Where primary judge found appellant was “parent” for purpose of Family Law Act 1975 (Cth) because provided genetic material for purpose of fathering child he expected to parent – Where Full Court allowed appeal on basis s 79 of Judiciary Act 1903 (Cth) picked up s 14(2) of Status of Children Act 1996 (NSW) which operated to determine appellant not “parent” – Whether Full Court erred in concluding s 14(2) of Status of Children Act operated to determine appellant not “parent” for purpose of Family Law Act – Whether Full Court erred in concluding s 60H of Family Law Act exhaustively defines parents of child for purpose of Family Law Act.
Appealed from FamCA (FC): [2018] FamCAFC 115; (2018) 334 FLR 381
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Insurance Law
Lee v Lee & Ors; Hsu v RACQ Insurance Limited; Lee v RACQ Insurance Limited
B61/2018; B62/2018; B63/2018: [2018] HCATrans 241
Date heard: 16 November 2018 – Special leave granted.
Catchwords:
Insurance law – Motor vehicles – Personal injury – Where appellant injured in motor vehicle collision – Where appellant alleged injuries caused by negligence of father – Where appellant gave evidence father driving vehicle at time of collision – Where appellant’s blood located on driver airbag – Where pathologist gave evidence relating to possible source of blood – Where mechanical engineer gave evidence relating to seatbelts and airbag design – Where trial judge concluded appellant driving vehicle – Where Court of Appeal dismissed appeal – Whether Court of Appeal failed to give adequate reasons by failing to address aspects of mechanical engineer’s evidence and inferences arising from evidence – Whether Court of Appeal erred by failing to conclude trial judge misused advantage as trial judge – Whether finding appellant was driver contrary to compelling inferences from uncontroverted evidence.
Appealed from QSC (CA): [2018] QCA 104; (2018) 84 MVR 316
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Migration Law
BVD17 v Minister for Immigration and Border Protection & Anor
S46/2019: [2019] HCATrans 13
Date heard: 15 February 2019 – Special leave granted.
Catchwords:
Migration law – Procedural fairness – Where certificate issued under s 473GB of Migration Act 1958 (Cth) – Where failure to disclose the fact of certification and appellant unaware of certificate – Whether Immigration Assessment Authority denied procedural fairness by not disclosing that part of the review material included material subject of certificate – Whether Immigration Assessment Authority failed to consider exercising discretion to disclose information – Whether Immigration Assessment Authority acted legally unreasonable in circumstances.
Appealed from FCA (FC): [2018] FCAFC 114
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Procedure
Brisbane City Council v Amos
B47/2018: [2018] HCATrans 186
Date heard: 14 September 2018 – Special leave granted.
Catchwords:
Procedure – Limitation periods – Limitation of Actions Act 1974 (Qld) – Where Council commenced proceeding against respondent for overdue rates and charges – Where primary judge gave judgment for Council – Where majority of Court of Appeal allowed appeal on basis part of claim beyond 6 year limitation period in s 10(1)(d) of Act – Whether majority erred in holding proceeding falls within both ss 10(1)(d) and 26(1) of Act and inconsistency should be resolved by applying shorter limitation period in s 10(1)(d).
Appealed from QSC (CA): [2018] QCA 11; (2018) 230 LGERA 51
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Taxation
Commissioner of Taxation of the Commonwealth of Australia v Sharpcan Pty Ltd
M163/2018: [2019] HCATrans 48
Date heard: 20 March 2019 – Special leave granted.
Catchwords:
Taxation – Where Administrative Appeals Tribunal held that outgoing of $600,300 incurred by the trustee of the Daylesford Royal Hotel Trust in the year ended 30 June 2010 for acquisition of 18 gaming machine entitlements under Gambling Regulation Act 2003 (Vic) was on revenue account and therefore deductible under s 8-1 of the Income Tax Assessment Act 1997 (Cth) – Whether Full Court (by majority) erred in upholding the decision of Tribunal instead of finding that outgoing was “of capital, or of a capital nature” – Whether Full Court erred in holding that if it was outgoing of capital or of a capital nature, it was expenditure to which s 40-880(6) of Income Tax Assessment Act applied and accordingly a deduction was allowable to trustee in respect of expenditure under s 40-880(2).
Appealed from FCA (FC): [2018] FCAFC 163; (2018) 362 ALR 123
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7: Cases Not Proceeding or Vacated
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8: Special Leave Refused
Publication of Reasons: 13 March 2019
No.
Applicant
Respondent
Court appealed from
Result1.
DAY16
Minister for Immigration and Border Protection & Anor
(A37/2018)
Federal Court of Australia
[2018] FCA 1750Application Dismissed
[2019] HCASL 262. Coleman
The Director of Public Prosecutions
(M175/2018)Supreme Court of Victoria (Court of Appeal)
[2018] VSCA 264Application Dismissed
[2019] HCASL 273. BEU16
Minister for Immigration and Border Protection & Anor
(M189/2018)Federal Court of Australia
[2018] FCA 1416Application Dismissed
[2019] HCASL 284. CJR17
Minister for Immigration and Border Protection & Anor
(P59/2018)Federal Court of Australia
[2018] FCA 1627Application Dismissed
[2019] HCASL 295. Zaghloul
Woodside Energy Ltd & Ors
(P65/2018)Supreme Court of
Western Australia
(Court of Appeal)
[2018] WASCA 191Application Dismissed
[2019] HCASL 306. CFX17
Minister for Immigration and Border Protection & Anor
(S302/2018)Federal Court of Australia
[2018] FCA 1845Application Dismissed
[2019] HCASL 317. BML16
Minister for Home Affairs & Anor
(S306/2018)Federal Court of Australia
[2018] FCA 1791Application Dismissed
[2019] HCASL 328. DVB16
Minister for Immigration and Border Protection & Anor
(S314/2018)Federal Court of Australia
[2018] FCA 1682Application Dismissed
[2019] HCASL 339.
SZVIP
Minister for Immigration and Border Protection & Anor
(S318/2018)
Federal Court of Australia
[2018] FCA 1730
Application Dismissed
[2019] HCASL 3410. SZWBS
Minister for Immigration and Border Protection & Anor
(S320/2018)Federal Court of Australia
[2018] FCA 1779Application Dismissed
[2019] HCASL 3511. FQH17
Minister for Immigration and Border Protection & Anor
(S328/2018)Federal Court of Australia
[2018] FCA 1771Application Dismissed
[2019] HCASL 3612. BDY16
Minister for Immigration, Citizenship and Multicultural Affairs & Anor
(S332/2018)Federal Court of Australia
[2018] FCA 1881Application Dismissed
[2019] HCASL 3713. DSD16
Minister for Immigration and Border Protection & Anor
(S340/2018)Federal Court of Australia
[2018] FCA 1782Application Dismissed
[2019] HCASL 3814. Foong
Ghaly
(S341/2018)Supreme Court of
New South Wales
(Court of Appeal)
[2018] NSWCA 280Applications Dismissed
[2019] HCASL 39Foong
Ghaly
(S342/2018)Supreme Court of
New South Wales
(Court of Appeal)
[2018] NSWCA 280Foong
Ghaly
(S343/2018)Supreme Court of
New South Wales
(Court of Appeal)
[2018] NSWCA 280Foong
McLellan
(S344/2018)Supreme Court of
New South Wales
(Court of Appeal)
[2018] NSWCA 280Foong
McLellan
(S345/2018)Supreme Court of
New South Wales
(Court of Appeal)
[2018] NSWCA 280Foong
McLellan
(S346/2018)Supreme Court of
New South Wales
(Court of Appeal)
[2018] NSWCA 28015. ANC18
Minister for Home Affairs & Anor
(S356/2018)Federal Court of Australia
[2018] FCA 1878Application Dismissed
[2019] HCASL 4016. AAY18
Minister for Home Affairs & Anor
(S358/2018)Federal Court of Australia
[2018] FCA 1844Application Dismissed
[2019] HCASL 4117.
Suppiah
The Queen
(A34/2018)Supreme Court of
South Australia
(Court of Criminal Appeal)
[2018] SASCFC 11
Application Dismissed
[2019] HCASL 4218. Mineralogy Pty Ltd BGP Geoexplorer Pte Ltd
(B53/2018)Supreme Court of Queensland (Court of Appeal)
[2018] QCA 256Application Dismissed
with costs
[2019] HCASL 4319. MSD Securities Pty Ltd & Ors MFB Properties (NQ) Pty Ltd & Ors
(B55/2018)Supreme Court of Queensland (Court of Appeal)
[2018] QCA 259Application Dismissed
with costs
[2019] HCASL 4420. Paul
Southern Cross Care (Tasmania) Incorporated
(H5/2018)Full Court of the
Supreme Court of Tasmania
[2018] TASFC 9Applications Dismissed
with costs
[2019] HCASL 45Gill
Southern Cross Care (Tasmania) Incorporated
(H6/2018)Full Court of the
Supreme Court of Tasmania
[2018] TASFC 9Arnold
Southern Cross Care (Tasmania) Incorporated
(H7/2018)Full Court of the
Supreme Court of Tasmania
[2018] TASFC 9Arnold
Southern Cross Care (Tasmania) Incorporated
(H8/2018)Full Court of the
Supreme Court of Tasmania
[2018] TASFC 9Heath
Southern Cross Care (Tasmania) Incorporated
(H9/2018)Full Court of the
Supreme Court of Tasmania
[2018] TASFC 921. Singh
Minister for Immigration and Border Protection & Anor
(M153/2018)Federal Court of Australia
[2018] FCA 1392Application Dismissed
with costs
[2019] HCASL 4622. Ram
Minister for Immigration and Border Protection
(S206/2018)Federal Court of Australia
[2018] FCA 1068Application Dismissed
with costs
[2019] HCASL 4723. EDF17
Minister for Immigration and Border Protection & Anor
(S277/2018)Federal Court of Australia
[2018] FCA 1528Application Dismissed
with costs
[2019] HCASL 4824. Asbestos Injuries Compensation Fund Limited as Trustee for the Asbestos Injuries Compensation Fund
Talifero
(S282/2018)Supreme Court of
New South Wales
(Court of Appeal)
[2018] NSWCA 227Application Dismissed
with costs
[2019] HCASL 4925. In the matter of an application by Land Enviro Corp Pty Ltd for leave to appeal
(S324/2018)High Court of Australia
Application Dismissed
[2019] HCASL 50
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Publication of Reasons: 20 March 2019
| No. | Applicant | Respondent | Court appealed from | Result | |
| 1. | Towle | Secretary, Department of Social Services | Full Court of the | Application Dismissed | |
| 2. | Ashraf | Minister for Immigration and Border Protection & Anor | Federal Court of Australia | Application Dismissed [2019] HCASL 52 | |
| 3. | In the matter of an application by Cindy Anne Taylor for leave to appeal | High Court of Australia | Application Dismissed [2019] HCASL 53 | ||
| 4. | BXY16 | Minister for Immigration and Border Protection & Anor | Federal Court of Australia | Application Dismissed [2019] HCASL 54 | |
| 5. | DDG16 | Minister for Immigration and Border Protection & Anor | Federal Court of Australia | Application Dismissed [2019] HCASL 55 | |
| 6. | CNU16 | Minister for Home Affairs & Anor | Federal Court of Australia | Application Dismissed [2019] HCASL 56 | |
| 7. | DBY16 | Minister for Immigration and Border Protection & Anor | Federal Court of Australia | Application Dismissed [2019] HCASL 57 | |
| 8. | BGV15 & Ors | Minister for Home Affairs & Anor | Federal Court of Australia | Application Dismissed [2019] HCASL 58 | |
| 9. | ARY16 | Minister for Immigration and Border Protection & Anor | Federal Court of Australia | Application Dismissed [2019] HCASL 59 | |
| 10. | BAQ16 | Minister for Home Affairs & Anor | Federal Court of Australia | Application Dismissed | |
| 11. | CZT17 | Minister for Home Affairs & Anor | Federal Court of Australia | Application Dismissed [2019] HCASL 61 | |
| 12. | DTS16 | Minister for Immigration and Border Protection & Anor | Federal Court of Australia | Application Dismissed [2019] HCASL 62 | |
| 13. | Singh | Minister for Home Affairs & Anor | Federal Court of Australia | Application Dismissed [2019] HCASL 63 | |
| 14. | Conomy | Maden | Supreme Court of | Application Dismissed | |
| 15. | Conomy | Maden | Supreme Court of | Application Dismissed | |
| 16. | AKT16 | Minister for Home Affairs & Anor | Federal Court of Australia | Application Dismissed [2019] HCASL 64 | |
| 17. | Singh | Minister for Immigration and Border Protection & Anor | Federal Court of Australia | Application Dismissed [2019] HCASL 65 | |
| 18. | Santos | State of Western Australia | Supreme Court of | Application Dismissed [2019] HCASL 66 | |
| 19. | Kilkenny | Kilkenny & Ors | Supreme Court of | Application Dismissed [2019] HCASL 67 | |
| 20. | AKR17 | Minister for Immigration and Border Protection & Anor | Federal Court of Australia | Application Dismissed [2019] HCASL 68 | |
| 21. | Plaintiff S277/2017 | Minister for Immigration and Border Protection & Ors | High Court of Australia | Application Dismissed [2019] HCASL 69 | |
| 22. | DYT16 | Minister for Immigration and Border Protection & Anor | Federal Court of Australia | Application Dismissed [2019] HCASL 70 | |
| 23. | AZO16 | Minister for Home Affairs & Anor | Federal Court of Australia | Application Dismissed [2019] HCASL 71 | |
| 24. | Griffiths | Minister for Immigration and Border Protection | Federal Court of Australia | Application Dismissed [2019] HCASL 72 | |
| 25. | EBC17 | Minister for Immigration and Border Protection & Anor | Federal Court of Australia | Application Dismissed | |
| 26. | ANC16 | Minister for Immigration and Border Protection & Anor | Federal Court of Australia | Application Dismissed [2019] HCASL 74 | |
| 27. | EQS17 | Minister for Home Affairs & Anor | Federal Court of Australia | Application Dismissed [2019] HCASL 75 | |
| 28. | CPW15 & Anor | Minister for Immigration and Border Protection & Anor | Federal Court of Australia | Application Dismissed [2019] HCASL 76 | |
| 29. | AOJ18 | Minister for Home Affairs & Anor | Full Court of the | Application Dismissed [2019] HCASL 77 | |
| 30. | AQP16 | Minister for Immigration and Border Protection & Anor | Federal Court of Australia | Application Dismissed [2019] HCASL 78 | |
| 31. | EYU17 | Minister for Home Affairs & Anor | Federal Court of Australia | Application Dismissed [2019] HCASL 79 | |
| 32. | He | Minister for Immigration and Border Protection & Anor | Federal Court of Australia | Application Dismissed [2019] HCASL 80 | |
| 33. | Bilawal | Minister for Immigration, Citizenship and Multicultural Affairs & Anor | Federal Court of Australia | Application Dismissed [2019] HCASL 81 | |
| 34. | The Mount Isa Irish Assoc Friendly Society Ltd | Mount Isa City Council | Supreme Court of Queensland | Application Dismissed with costs [2019] HCASL 82 | |
| 35. | Linfox Australia Pty Ltd | O'Loughlin | Full Court of the | Application Dismissed with costs [2019] HCASL 83 | |
| 36. | Egan | Minister for Immigration and Border Protection | Full Court of the | Application Dismissed with costs [2019] HCASL 84 | |
| 37. | Whooten | Frost (Deceased) | Full Court of the | Application Dismissed with costs [2019] HCASL 85 | |
| 38. | Snowy Monaro Regional Council | Tropic Asphalts Pty Ltd | Supreme Court of | Application Dismissed with costs [2019] HCASL 86 | |
| 39. | Satyam Computer Services Limited (Now an Amalgamated Entity named Tech Mahindra Limited) | Commissioner of Taxation | Full Court of the | Applications Dismissed with costs | |
| Satyam Computer Services Limited (Now an Amalgamated Entity named Tech Mahindra Limited) | Commissioner of Taxation | Full Court of the | |||
| Satyam Computer Services Limited (Now an Amalgamated Entity named Tech Mahindra Limited) | Commissioner of Taxation | Full Court of the | |||
| 40. | Crickitt | The Queen | Supreme Court of | Application Dismissed [2019] HCASL 88 | |
| 41. | Gresham Property Investments Limited | Global Consulting Services Pty Limited & Ors | Supreme Court of | Application Dismissed with costs [2019] HCASL 89 | |
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22 March 2019: Sydney
No.
Applicant
Respondent
Court appealed from
Results1. Hills Central Pty Ltd
Anthony Gerard Hagerty as Executor of the Estate of the late Gladys Delores Hagerty & Anor
(S267/2018)Supreme Court of New South Wales (Court of Appeal)
[2018] NSWCA 200Application dismissed with costs
[2019] HCATrans 532. Attorney General for New South Wales
XX
(S268/2018)Supreme Court of New South Wales (Court of Criminal Appeal)
[2018] NSWCCA 198Application dismissed
[2019] HCATrans 52Return to Top
22 March 2019: Melbourne
No.
Applicant
Respondent
Court appealed fromResults
1. Bodycorp Repairers Pty Ltd
Oakley Thompson & Co Pty Ltd
(M144/2018)Supreme Court of Victoria
(Court of Appeal)
[2018] VSCA 203Application dismissed with costs
[2019] HCATrans 552. Living and Leisure Australia Ltd
Commissioner of State Revenue
(M157/2018)Supreme Court of Victoria
(Court of Appeal)
[2018] VSCA 237Application dismissed with costs
[2019] HCATrans 563. Broadspectrum (Australia) Pty Ltd
United Voice & Ors
(P49/2018)Full Court of the
Federal Court of Australia
[2018] FCAFC 139Application dismissed with costs
[2019] HCATrans 57Return to Top
0
195
0