High Court Bulletin
[2018] HCAB 10
High Court Bulletin
Produced by the Legal Research Officer,
High Court of Australia Library
[2018] HCAB 10 (18 December 2018)
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 |
| Australian Securities & Investments Commission v Lewski & Anor; Australian Securities & Investments Commission v Wooldridge & Anor; Australian Securities & Investments Commission v Butler & Anor; Australian Securities & Investments Commission v Jaques & Anor; Australian Securities & Investments Commission v Clarke & Anor | Corporations Law |
| Commissioner of Taxation for the Commonwealth of Australia v Tomaras & Ors | Family Law |
| The Republic of Nauru v WET040 [No 2] | Migration |
| TTY167 v Republic of Nauru | Migration |
| Commissioner of State Revenue v Placer Dome Inc | Stamp Duty |
3: Cases Reserved
| Case | Title |
| Unions NSW & Ors v State of New South Wales | Constitutional Law |
| Australian Securities and Investments Commission v Kobelt | Consumer Law |
| McKell v The Queen | Criminal Law |
4: Original Jurisdiction
| Case | Title |
| Plaintiff M47/2018 v Minister for Home Affairs & Anor | Constitutional Law |
5: Section 40 Removal
6: Special Leave Granted
| Case | Title |
| Mann & Anor v Paterson Constructions Pty Ltd | Contracts |
| Connective Services Pty Ltd & Anor v Slea Pty Ltd & Ors | Corporations |
| Bell Lawyers Pty Ltd v Pentelow & Anor | Costs |
| The Northern Territory of Australia v Sangare | Costs |
| Masson v Parsons & Ors | Family Law |
7: Cases Not Proceeding or Vacated
| Case | Title |
| AB (a pseudonym) v CD (a pseudonym); EF (a pseudonym) v CD (a pseudonym) | Criminal Law |
2: Cases Handed Down
The following cases were handed down by the High Court of Australia during the December 2018 sittings.
Corporations Law
Australian Securities & Investments Commission v Lewski & Anor; Australian Securities & Investments Commission v Wooldridge & Anor; Australian Securities & Investments Commission v Butler & Anor; Australian Securities & Investments Commission v Jaques & Anor; Australian Securities & Investments Commission v Clarke & Anor
M79/2018; M80/2018; M81/2018; M82/2018; M83/2018: [2018] HCA 63
Judgment delivered: 13 December 2018
Coram: Kiefel CJ, Bell, Gageler, Keane and Edelman JJ
Catchwords:
Companies – Managed investment schemes – Officers – Duties – Where each first respondent director of second respondent responsible entity of managed investment scheme – Where four directors resolved to amend scheme's constitution to introduce new fees payable to responsible entity out of scheme's assets – Where all five directors resolved to lodge and lodged amended constitution with Australian Securities & Investments Commission ("ASIC") – Where all five directors resolved to pay fees and caused payments to be made – Where ASIC alleged contraventions of Corporations Act 2001 (Cth) by responsible entity and directors – Where proceedings alleging contraventions in relation to amendment resolution time-barred – Whether amendments to constitution adversely affected members' rights – Whether Full Court erred in holding amendments valid from lodgement until set aside – Whether Full Court erred in holding no breaches of duty occurred because of honest belief that constitution validly amended – Whether Full Court erred in holding directors not involved in contravention of s 208 of Corporations Act by responsible entity.
Words and phrases – "adversely affect", "breach of duty", "essential element of the contravention", "financial benefit", "honest belief", "improper use of a position", "interests", "interim validity", "invalid", "involved in a contravention", "listing fee payments", "lodgement", "loyalty", "member approval", "members' rights".
Corporations Act 2001 (Cth) – Pt 5C. 3, ss 9, 79, 136, 208, 209(2), 229, 601FC, 601FD, 601GA(2), 601GC, 601LC, 1317K, 1318, 1322.
Appealed from FCA (FC): [2017] FCAFC 171; (2017) 352 ALR 64; (2017) 126 ACSR 1
Held: Appeals allowed in part
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Family Law
Commissioner of Taxation for the Commonwealth of Australia v Tomaras & Ors
B9/2018: [2018] HCA 62
Judgment delivered: 13 December 2018
Coram: Kiefel CJ, Gageler, Keane, Gordon and Edelman JJ
Catchwords:
Family law – Matrimonial cause – Proceedings to alter property interests – Where wife was indebted to Commissioner for certain taxation related liabilities plus general interest charge – Where wife applied for order that husband be substituted for wife as debtor and husband be solely liable to Commissioner for debt – Where s 90AE(1)(b) of Family Law Act 1975 (Cth) permitted court to make order directed to creditor of one party to marriage to substitute other party to marriage in relation to debt owed to creditor – Whether s 90AE bound Commissioner in relation to debt owed to Commonwealth – Whether s 90AE(1)-(2) of Family Law Act granted court power to make order sought by wife.
Practice and procedure – Question stated – Where question of law stated by Federal Circuit Court of Australia under s 94A(3) of Family Law Act for opinion of Full Court of Family Court of Australia – Where question concerned jurisdiction to make order – Where preconditions to making of order in s 90AE(3) of Family Law Act unlikely to be satisfied – Whether stated case procedure was appropriate.
Words and phrases – "bind the Crown", "case stated", "common probability of fact", "creditor", "Crown immunity", "debt of a party to a marriage", "party to a marriage", "person", "presumption", "property of the parties to a marriage", "property settlement proceedings", "question of law", "rights, liabilities or property interests of a third party", "tax debt", "third party".
Family Law Act 1975 (Cth) – ss 79, 80, 90AA, 90AC, 90ACA, 90AD, 90AE, 94A, Pts VIII, VIIIAA.
Appealed from Fam CA (FC): [2017] FamCAFC 216; (2017) 327 FLR 228; (2017) 106 ATR 878
Held: Appeal dismissed
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Migration
The Republic of Nauru v WET040 [No 2]
M154/2017: [2018] HCA 60
Judgment delivered: 5 December 2018
Coram: Gageler, Nettle and Edelman JJ
Catchwords:
Immigration – Refugees – Nauru – Appeal as of right from Supreme Court of Nauru – Where Secretary of Department of Justice and Border Control determined respondent not refugee and not owed complementary protection – Where Refugee Status Review Tribunal affirmed Secretary's determination – Where Supreme Court of Nauru allowed appeal because Tribunal found respondent's claims implausible without rational basis – Whether Tribunal's reasons adequate.
Words and phrases – "adequate reasons", "basic inconsistencies", "implausible", "independent country information", "probative material", "rational inference", "speculation or conjecture".
Migration Act 1958 (Cth) – s 430(1).
Refugees Convention Act 2012 (Nr) – s 34(4).
Appealed from Supreme Court of Nauru: [2017] NRSC 79
Held: Appeal allowed
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TTY167 v Republic of Nauru
S46/2018: [2018] HCA 61
Judgment delivered: 5 December 2018
Coram: Gageler, Nettle and Edelman JJ
Catchwords:
Immigration – Refugees – Nauru – Appeal as of right from Supreme Court of Nauru – Where Secretary of Department of Justice and Border Control determined appellant not refugee and not owed complementary protection – Where appellant applied to Refugee Status Review Tribunal for merits review of Secretary's determination – Where Tribunal sent letter to "Team Leader" of claims assistance provider inviting appellant to attend hearing – Where appellant and his representatives failed to attend Tribunal hearing – Where Tribunal affirmed Secretary's determination in appellant's absence – Where Supreme Court affirmed Tribunal's decision – Whether invitation to attend Tribunal hearing given to appellant – Whether legally unreasonable for Tribunal to decide matter without taking further action to allow or enable appellant to appear.
Words and phrases – "authorised representative", "given", "invitation to appear", "jurisdictional requirement", "legally unreasonable".
Interpretation Act 2011 (Nr) – ss 100, 101.
Refugees Convention Act 2012 (Nr) – ss 40(3), 41(1).
Held: Appeal allowed
Appealed from Supreme Court of Nauru: [2018] NRSC 4
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Stamp Duty
Commissioner of State Revenue v Placer Dome Inc
P6/2018: [2018] HCA 59
Judgement delivered: 5 December 2018
Coram: Kiefel CJ, Bell, Gageler, Nettle and Gordon JJ
Catchwords:
Stamp duties – Land-holding corporations – Acquisition of controlling interest – Whether corporation a "listed land-holder corporation" within meaning of Pt IIIBA of Stamp Act 1921 (WA) – Whether value of land to which corporation entitled 60 per cent or more of value of property to which it was entitled – Valuation methodologies – Whether corporation had legal goodwill – Meaning of legal goodwill – "Added value" approach to goodwill considered – Going concern value and goodwill distinguished.
Words and phrases – "acquisition", "assessment", "controlling interest", "custom", "discounted cash flow methodology", "going concern value", "goodwill", "listed land-holder corporation", "net asset value multiple", "property", "sources of goodwill", "stamp duty", "synergies", "top down".
Stamp Act 1921 (WA) – Pt IIIBA.
Taxation Administration Act 2003 (WA) – ss 34, 37, 40.
State Administrative Tribunal Act 2004 (WA) – s 29.
Appealed from WASC (CA): [2017] WASCA 165; (2017) 106 ATR 511
Held: Appeal allowed
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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 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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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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Unions NSW & Ors v State of New South Wales
S204/2018: [2018] HCATrans 255; [2018] HCATrans 256
Date heard: 5 and 6 December 2018
Coram: Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ
Catchwords:
Constitutional law – Implied freedom of political communication – Where plaintiffs assert intention to incur electoral expenditure during capped State expenditure period within meaning of Electoral Funding Act 2018 (NSW) – Where ss 29(1) and 35 of Act cap electoral expenditure by third-party campaigners – Whether s 29(10) and/or s 35 invalid because impermissibly burden implied freedom of political communication.
Special Case
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Work Health Authority v Outback Ballooning Pty Ltd & Anor
D4/2018: [2018] HCATrans 144; [2018] HCATrans 146
Date heard: 14 and 15 August 2018
Coram: Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ
Catchwords:
Constitutional law – Inconsistency – Work Health and Safety (National Uniform Legislation) Act 2011 (NT) – Where hot air balloon passenger died from injuries suffered as result of scarf being sucked into inflation fan – Where appellant alleged first respondent breached s 32 of Act – Where magistrate dismissed complaint on basis Air Navigation Act 1920 (Cth), Civil Aviation Act 1988 (Cth) and other Commonwealth regulation covered field of safety of air navigation – Where Supreme Court quashed magistrate’s decision – Where Court of Appeal allowed appeal – Whether Court of Appeal erred in concluding federal civil aviation legislation excluded operation of Work Health and Safety (National Uniform Legislation) Act 2011 (NT).
Appealed from NTSC (CA): [2017] NTCA 7; (2017) 326 FLR 1
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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
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Criminal Law
Director of Public Prosecutions Reference No 1 of 2017
M129/2018: [2018] HCATrans 227
Date heard: 6 November 2018
Coram: Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ
Catchwords:
Criminal law – Trial by jury – Prasad direction – Where accused charged with murder – Where counsel for accused sought Prasad direction on basis prosecution case not strong insofar as prosecution required to prove beyond reasonable doubt accused not acting in self-defence – Where trial judge gave Prasad direction – Where jury returned verdicts of not guilty of murder or manslaughter – Where Director of Public Prosecutions referred point of law to Court of Appeal under s 308 of Criminal Procedure Act 2009 (Vic) – Where Court of Appeal determined giving of Prasad direction not contrary to law – Where majority of Court of Appeal determined direction may continue to be administered to jury in criminal trial – Whether Court of Appeal erred in determining giving of Prasad direction not contrary to law – Whether majority of Court of Appeal erred in determining Prasad direction may continue to be administered to jury in criminal trial.
Appealed from VSC (CA): [2018] VSCA 69
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Grajewski v Director of Public Prosecutions (NSW)
S141/2018: [2018] HCATrans 211
Date heard: 12 October 2018
Coram: Kiefel CJ, Bell, Keane, Nettle and Gordon JJ
Catchwords:
Criminal law – Destroy or damage property – Crimes Act 1900 (NSW) s 195(1) – Meaning of “damage” – Where appellant climbed machine causing operator to shut down machine – Where appellant convicted of intentionally or recklessly damaging property contrary to s 195(1)(a) – Where District Court dismissed appeal and referred question whether facts can support finding of guilt to Court of Criminal Appeal – Where Court of Criminal Appeal answered “yes” – Whether Court of Criminal Appeal erred in concluding “damage” can be established where no physical derangement of property – Whether Court of Criminal Appeal erred in concluding temporary physical interference with functionality of property may constitute “damage” for purpose of s 195.
Appealed from NSWSC (CA): [2017] NSWCCA 251
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McKell v The Queen
S223/2018: [2018] HCATrans 257
Date heard: 7 December 2018
Coram: Bell, Gageler, Keane, Gordon and Edelman JJ
Catchwords:
Criminal law – Trial by jury – Summing up – Where appellant intercepted two consignments between arrival in Sydney and transfer to freight forwarding agency – Where second consignment contained prohibited drug – Where appellant charged with importing commercial quantity of prohibited drug, conspiring to import commercial quantity of prohibited drug and dealing with proceeds of crime – Where appellant tried before jury – Where trial judge commented on evidence in summing up – Where appellant convicted of charges – Where majority of Court of Appeal dismissed appeal against convictions – Whether majority of Court of Appeal erred in failing to find trial judge’s summing up unbalanced and caused miscarriage of justice.
Appealed from NSWSC (CA): [2017] NSWCCA 291
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Interpretation
Williams v Wreck Bay Aboriginal Community Council & Anor
C5/2018: [2018] HCATrans 183
Date heard: 12 September 2018
Coram: Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ
Catchwords:
Interpretation – Concurrent operation – Where Council leased property to appellant under residential tenancy agreement – Where appellant commenced proceedings in ACT Civil and Administrative Tribunal seeking orders for repairs and compensation – Where Tribunal referred questions of law to Supreme Court for determination – Where Court of Appeal allowed appeal – Whether Court of Appeal erred in concluding ACT laws retain subordinate status when applied to Jervis Bay Territory by force of s 4A of Jervis Bay Territory Acceptance Act 1915 (Cth) – Whether Court of Appeal erred in concluding ss 8 and 9 of Residential Tenancies Act 1997 (ACT) not capable of operating concurrently with Aboriginal Land Grant (Jervis Bay Territory) Act 1986 (Cth) such that ss 8 and 9 do not apply to “Aboriginal Land” for purposes of s 46 of Aboriginal Land Grant (Jervis Bay Territory) Act.
Appealed from ACT (CA): [2017] ACTCA 46; (2017) 12 ACTLR 207; (2017) 326 FLR 58; (2017) 230 LGERA 1
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Migration
BEG15 v Minister for Immigration and Border Protection & Anor
S135/2018: [2018] HCATrans 177
Date heard: 10 September 2018
Coram: Bell, Gageler, Keane, Nettle and Gordon JJ
Catchwords:
Migration – Jurisdictional error – Migration Act 1958 (Cth) s 438 – Where appellant applied for protection visa – Where application refused by delegate – Where appellant applied to Refugee Review Tribunal for review of decision – Where delegate issued certificate under s 438(1)(a) that disclosure of certain information would be contrary to public interest – Where certificate invalid – Where Tribunal did not inform appellant of certificate or disclose information to appellant – Where Tribunal affirmed delegate’s decision – Where Federal Circuit Court dismissed application for judicial review – Where Full Federal Court dismissed appeal – Whether Full Court erred in failing to find Tribunal fell into jurisdictional error in acting on invalid certificate – Whether Full Court erred in failing to find not open to primary judge to withhold relief where decision affected by jurisdictional error – Whether necessary for applicant to show denial of procedural fairness in addition to invalidity of certificate.
Appealed from FCA (FC): [2017] FCAFC 198; (2017) 253 FCR 36
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CQZ15 v Minister for Immigration and Border Protection & Anor
M75/2018: [2018] HCATrans 177
Date heard: 10 September 2018
Coram: Bell, Gageler, Keane, Nettle and Gordon JJ
Catchwords:
Migration – Jurisdictional error – Migration Act 1958 (Cth) s 438 – Where appellant applied for protection visa – Where application refused by delegate – Where appellant applied to Administrative Appeals Tribunal for review of decision – Where delegate issued certificate under s 438(1)(a) that disclosure of certain information would be contrary to public interest – Where certificate invalid – Where delegate issued further certificate – Where Tribunal did not inform appellant of certificates or disclose information to appellant – Where Tribunal affirmed delegate’s decision – Where Federal Circuit Court concluded Tribunal fell into jurisdictional error in acting upon invalid certificate and failing to disclose existence of certificates to appellant – Where Full Federal Court allowed appeal – Whether Full Court erred in departing from Minister for Immigration and Border Protection v Singh (2016) 244 FCR 305 by failing to find Tribunal fell into jurisdictional error in not disclosing certificates – Whether Full Court erred in failing to find not open to primary judge to withhold relief where decision affected by jurisdictional error.
Appealed from FCA (FC): [2017] FCAFC 194; (2017) 253 FCR 1
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Minister for Immigration and Border Protection v SZMTA & Anor
S36/2018: [2018] HCATrans 177
Date heard: 10 September 2018
Coram: Bell, Gageler, Keane, Nettle and Gordon JJ
Catchwords:
Migration – Procedural fairness – Migration Act1958 (Cth) s 438(2) – Where first respondent applied for Protection (Class XA) visa – Where application refused by delegate – Where first respondent applied to Administrative Appeals Tribunal for review of decision – Where delegate notified Tribunal s 438(2)(a) applied to certain documents because given in confidence to Minister or Department – Where Tribunal did not inform first respondent of notification – Where copies of documents previously provided to first respondent – Where Federal Circuit Court dismissed application for judicial review – Where Federal Court allowed appeal on basis Tribunal denied first respondent procedural fairness – Whether Federal Court erred in relying on possibility Tribunal may not have had regard to certain information because of notification under s 438(2) in finding Tribunal denied first respondent procedural fairness – Whether Federal Court erred in holding Tribunal denied first respondent procedural fairness in circumstances where documents in possession of first respondent prior to Tribunal hearing.
Appealed from FCA: [2017] FCA 1055; (2017) 255 FCR 215
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Native Title
KN (deceased) and Others on behalf of the Tjiwarl and Tjiwarl#2 Native Title Claim Groups 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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Northern Territory of Australia v Mr A Griffiths (deceased) and Lorraine Jones on behalf of the Ngaliwurru and Nungali Peoples & Anor; Commonwealth of Australia v Mr A Griffiths (deceased) and Lorraine Jones on behalf of the Ngaliwurru and Nungali Peoples & Anor; Mr A Griffiths (deceased) and Lorraine Jones on behalf of the Ngaliwurru and Nungali Peoples v Northern Territory of Australia & Anor
D1/2018; D2/2018; D3/2018: [2018] HCATrans 174; [2018] HCATrans 175; [2018] HCATrans 176
Date heard: 4, 5 and 6 September 2018
Coram: Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ
Catchwords:
Native title – Extinguishment – Compensation for extinguishment – Native Title Act 1993 (Cth) – Where claim brought against Commonwealth and Northern Territory for extinguishment of non-exclusive native title rights and interests in Timber Creek – Where primary judge awarded claim group compensation for economic value of extinguished rights, interest, and solatium for loss or impairment of rights and interests – Where Full Court held primary judge erred in assessing value of extinguished rights and concluded value of rights was 65% of value of freehold title – Whether Full Court’s assessment of economic value of rights erroneous or manifestly excessive in light of restrictions and limitations on rights – Whether Full Court erred in failing to find primary judge erred in awarding interest as part of compensation under s 51(1) of Act and not as interest on compensation – Whether Full Court erred in assessing interest by reference to 65% of value of freehold title – Whether Full Court erred in failing to find primary judge erred in assessing compensation for non-economic loss – Whether Full Court erred in failing to find primary judge’s assessment of compensation for non-economic loss manifestly excessive – Whether Full Court erred in finding commercial agreements entered into by claimants containing solatium-type payments irrelevant to assessment of compensation.
Appealed from FCA (FC): [2017] FCAFC 106; (2017) 256 FCR 478; (2017) 346 ALR 247
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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) 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.
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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Plaintiff M47/2018 v Minister for Home Affairs & Anor
M47/2018: Special Case
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.
Referred to Full Court on 21 November 2018
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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.
Constitutional Law
Comcare v Banerji
C12/2018: Removed into High Court under s 40 of Judiciary Act 1903 (Cth) on 12 September 2018
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
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6: Special Leave Granted
The following cases have been granted special leave to appeal to the High Court of Australia.
Consumer Law
Frugtniet v Australian Securities & Investments Commission
M136/2018: [2018] HCATrans 155
Date heard: 17 August 2018 – Special leave granted.
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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Contracts
Mann & Anor v Paterson Constructions Pty Ltd
M151/2018: [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
Carter Holt Harvey Woodproducts Australia Pty Ltd v Commonwealth of Australia & Ors
M137/2018: [2018] HCATrans 156
Date heard: 17 August 2018 – Special leave granted.
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) 330 FLR 149; (2018) 354 ALR 789; (2018) 124 ACSR 246
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Connective Services Pty Ltd & Anor v Slea Pty Ltd & Ors
M131/2018: [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
S205/2018: [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
D10/2018: [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
OKS v The State of Western Australia
P62/2018: [2018] HCATrans 242
Date heard: 16 November 2018 – Special leave granted.
Catchwords:
Criminal law – Jury directions – Application of proviso – Criminal Appeals Act 2004 (WA) s 30(4) – Where appellant charged with four counts of indecently dealing with child – Where appellant acquitted of all but one count – Where trial judge directed jury not to reason all complainant’s evidence dishonest and cannot be relied upon on basis complainant told or admitted she told lie – Where Court of Appeal found direction erroneous but dismissed appeal on basis no substantial miscarriage of justice occurred – Whether the Court of Appeal erred in applying proviso and failing to quash the appellant’s conviction.
Appealed from WASC (CA): [2018] WASCA 48; (2018) 52 WAR 482
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Family Law
Masson v Parsons & Ors
S197/2018: [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
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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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Interpretation
Victorian Building Authority v Andriotis
M134/2018: [2018] HCATrans 154
Date heard: 17 August 2018 – Special leave granted.
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
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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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7: Cases Not Proceeding or Vacated
Criminal Law
AB (a pseudonym) v CD (a pseudonym); EF (a pseudonym) v CD (a pseudonym)
M73/2018; M74/2018: [2018] HCA 58
Reasons published: 3 December 2018
Coram: Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon, Edelman JJ
Catchwords:
Criminal law – Prosecution's duty of disclosure – Public interest immunity – Where legal counsel for several accused ("EF") was enlisted as police informer – Where EF provided information to police that had potential to undermine each accused's defences to criminal charges – Where each accused convicted of criminal offences – Where first respondent proposed to disclose to each convicted person information about EF's conduct – Whether information subject to public interest immunity – Whether first respondent permitted to make proposed disclosures.
Practice and procedure – High Court – Special leave to appeal – Whether special leave to appeal ought to be revoked.
Words and phrases – "adequately protect", "disclosure", "police informer", "integrity of the criminal justice system", "public interest immunity", "witness protection".
Witness Protection Act 1991 (Vic) – s 3B(2)(b).
Appealed from VSC (CA): [2017] VSCA 338
Special leave revoked on 5 November 2018
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8: Special Leave Refused
Publication of Reasons: 5 December 2018
| No. | Applicant | Respondent | Court appealed from | Result |
| 1. | Singh | Minister for Immigration and Border Protection & Anor | Federal Court of Australia | Application dismissed |
| 2. | Anderson | Westpac Banking Corporation | Supreme Court of Victoria (Court of Appeal) | Application dismissed [2018] HCASL 366 |
| 3. | DOQ17 | Australian Financial Security Authority (AFSA) & Ors | Application for Removal | Application dismissed [2018] HCASL 367 |
| 4. | DOD16 | Minister for Immigration and Border Protection & Anor | Federal Court of Australia | Application dismissed [2018] HCASL 368 |
| 5. | SZWAQ | Minister for Home Affairs | Federal Court of Australia | Application dismissed [2018] HCASL 369 |
| 6. | Macatangay | State of New South Wales | Supreme Court of | Application dismissed [2018] HCASL 370 |
| 7. | Singh | Minister for Immigration and Border Protection & Anor | Full Court of the | Application dismissed |
| 8. | Harkness | Roberts & Anor | Supreme Court of Victoria (Court of Appeal) | Application dismissed [2018] HCASL 372 |
| 9. | ARA17 | Minister for Home Affairs | Federal Court of Australia | Application dismissed [2018] HCASL 373 |
| 10. | SZNBX & Ors | Minister for Immigration and Border Protection & Anor | Federal Court of Australia | Application dismissed [2018] HCASL 374 |
| 11. | CMY17 | Minister for Immigration and Border Protection & Anor | Federal Court of Australia | Application dismissed [2018] HCASL 375 |
| 12. | DUV17 | Minister for Immigration and Border Protection & Anor | Federal Court of Australia | Application dismissed [2018] HCASL 376 |
| 13. | Buadromo | Minister for Immigration and Border Protection | Full Court of the | Application dismissed [2018] HCASL 377 |
| 14. | Plaintiff S73/2018 | Honourable Justice Rares | High Court of Australia | Application dismissed [2018] HCASL 378 |
| 15. | Dickens | State of New South Wales | Supreme Court of | Application dismissed [2018] HCASL 379 |
| 16. | Construction, Forestry, Maritime, Mining and Energy Union | Australian Building and Construction Commissioner & Anor | Full Court of the | Application dismissed with costs [2018] HCASL 380 |
| 17. | Defteros | Google LLC | Supreme Court of Victoria (Court of Appeal) | Application dismissed with costs [2018] HCASL 381 |
| 18. | SZTYV & Anor | Minister for Immigration and Border Protection & Anor | Federal Court of Australia | Application dismissed with costs [2018] HCASL 382 |
| 19. | Liem | Republic of Indonesia & Ors | Full Court of the | Application dismissed |
| 20. | Joondalup Hospital Pty Ltd | Waldron | Supreme Court of | Application dismissed with costs [2018] HCASL 384 |
| 21. | Mineralogy Pty Ltd | BGP Geoexplorer Pte Ltd | Supreme Court of Queensland | Application dismissed with costs [2018] HCASL 385 |
| 22. | Sangare | The Northern Territory | Supreme Court of | Application dismissed with costs [2018] HCASL 386 |
| 23. | Cottrell | Ross | Application for Removal | Application dismissed |
| 24. | Mondous & Anor | Commissioner of State Revenue | Supreme Court of Victoria (Court of Appeal) | Application dismissed with costs [2018] HCASL 388 |
| 25. | Larussa | Carr & Ors | Supreme Court of | Application dismissed with costs [2018] HCASL 389 |
| 26. | Muriniti | King & Ors | Supreme Court of | Applications dismissed with costs [2018] HCASL 390 |
| Muriniti | King & Anor (S154/2018) | Supreme Court of | ||
| Muriniti | King & Ors | Supreme Court of | ||
| Muriniti | King & Ors | Supreme Court of | ||
| 27. | Muriniti & Anor | Hughes Trueman Pty Ltd & Ors | Federal Court of Australia | Application dismissed with costs [2018] HCASL 391 |
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Publication of Reasons: 14 December 2018
| No. | Applicant | Respondent | Court appealed from | Result |
| 1. | Tutos | State of Victoria & Anor | Supreme Court of Victoria | Application dismissed |
| 2. | AYT15 | Minister for Immigration and Border Protection & Anor | Federal Court of Australia | Application dismissed [2018] HCASL 393 |
| 3. | BHI16 | Minister for Immigration and Border Protection & Anor | Federal Court of Australia | Application dismissed [2018] HCASL 394 |
| 4. | In the matter of an application by | High Court of Australia | Applications dismissed [2018] HCASL 395 | |
| In the matter of an application by | High Court of Australia | |||
| 5. | Priddle | Director, Child Protection Litigation | Application for Removal | Application dismissed with costs [2018] HCASL 396 |
| 6. | EKW17 | Minister for Immigration and Border Protection & Anor | Federal Court of Australia | Application dismissed [2018] HCASL 397 |
| 7. | Franklin | Commissioner of Police, | Supreme Court of | Application dismissed [2018] HCASL 398 |
| 8. | AIF15 | Minister for Home Affairs & Anor | Federal Court of Australia | Application dismissed |
| 9. | Gray | Darwin Food Pty Ltd | Full Court of the | Application dismissed with costs [2018] HCASL 400 |
| 10. | Zonneveld | The Queen | Supreme Court of the | Application dismissed [2018] HCASL 401 |
| 11. | Bodycorp Repairers Pty Ltd & Anor | Australian Associated Motor Insurers Ltd Trading as AAMI & Ors | Supreme Court of Victoria | Application dismissed with costs [2018] HCASL 402 |
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14 December 2018: Sydney
|
| Applicant | Respondent | Court appealed from | Results |
| 1. | Bucca | The Queen (A28/2018) | Supreme Court of South Australia (Court of Criminal Appeal) [2018] SASCFC 42 | Application refused [2018] HCATrans 262 |
| 2. | CLV16 | Minister for Immigration and Border Protection & Anor | Full Court of the | Application refused with costs |
| 3. | Perkins | The Queen | Supreme Court of New South Wales (Court of Criminal Appeal) | Application refused |
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