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High Court Bulletin

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

[2018] HCAB 3 (27 April 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: Court of Disputed Returns
6: Section 40 Removal
7: Special Leave Granted
8: Cases Not Proceeding or Vacated
9: Special Leave Refused

1: Summary of New Entries

2: Cases Handed Down

Case	Title
Burns v Corbett & Ors; Burns v Gaynor & Ors; Attorney General for New South Wales v Burns & Ors; Attorney General for New South Wales v Burns & Ors; State of New South Wales v Burns & Ors	Constitutional Law
Plaintiff M174/2016 v Minister for Immigration and Border Protection & Anor	Migration
WET044 v The Republic of Nauru	Migration

3: Cases Reserved

Case	Title
The Queen v Falzon	Criminal Law
Ancient Order of Foresters in Victoria Friendly Society Limited v Lifeplan Australia Friendly Society Limited & Anor	Equity
UBS AG v Scott Francis Tyne as Trustee of the Argot Trust	Procedure
The Commissioner of Taxation of the Commonwealth of Australia v Thomas; The Commissioner of Taxation of the Commonwealth of Australia v Martin Andrew Pty Ltd; The Commissioner of Taxation of the Commonwealth of Australia v Thomas Nominees Pty Ltd; The Commissioner of Taxation of the Commonwealth of Australia v Thomas	Taxation
Amaca Pty Limited v Latz; Latz v Amaca Pty Limited	Torts

4: Original Jurisdiction

5: Court of Disputed Returns

6: Section 40 Removal

7: Special Leave Granted

Case	Title
Work Health Authority v Outback Ballooning Pty Ltd & Anor	Constitutional Law
Rodi v State of Western Australia	Criminal Law
McPhillamy v The Queen	Evidence

8: Cases Not Proceeding or Vacated

Case	Title
Govier v Uniting Church in Australia Property Trust (Q)	Negligence

2: Cases Handed Down

The following cases were handed down by the High Court of Australia during the April 2018 sittings.

Constitutional Law

Burns v Corbett & Ors; Burns v Gaynor & Ors; Attorney General for New South Wales v Burns & Ors; Attorney General for New South Wales v Burns & Ors; State of New South Wales v Burns & Ors

S183/2017; S185/2017; S186/2017; S187/2017; S188/2017: [2018] HCA 15

Judgment delivered: 18 April 2018

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

Catchwords:

Constitutional law (Cth) – Chapter III – Where complaints made under Anti-Discrimination Act 1977 (NSW) came before Civil and Administrative Tribunal of New South Wales ("NCAT") – Where parties to disputes residents of different States – Where common ground that NCAT exercised State judicial power in hearing and determining disputes – Where common ground that NCAT not a "court of a State" – Whether Ch III of Constitution contains implication preventing any party to federal compact from conferring adjudicative authority in respect of matters…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] HCAB 3
Decision Date

CaseChat Overview and Summary

The Burns cases involved complaints made under the Anti-Discrimination Act 1977 (NSW) that came before the Civil and Administrative Tribunal of New South Wales (NCAT). The parties to the disputes were residents of different States. The common ground was that the NCAT exercised State judicial power in hearing and determining the disputes and that the NCAT was not a "court of a State". The question was whether Chapter III of the Constitution contains an implication preventing any party to the federal compact from conferring adjudicative authority in respect of matters listed in sections 75 and 76 of the Constitution on an organ of government, federal or State, other than a court referred to in Chapter III. The High Court held that there is no such implication. The Court also held that there was no inconsistency between the Commonwealth and State laws because the State law did not alter, impair or detract from the operation of the Judiciary Act 1903 (Cth), section 39(2). The appeals were dismissed.

In Plaintiff M174/2016 v Minister for Immigration and Border Protection & Anor, the plaintiff applied for a protection visa and claimed a real chance of harm due to being Christian. The delegate of the Minister for Immigration and Border Protection refused to grant the visa. The question was whether the delegate failed to comply with section 57(2) of the Migration Act 1958 (Cth). The High Court held that the decision was not affected by jurisdictional error because of failure to comply with section 57(2) and was not a "fast track reviewable decision" within the meaning of Part 7AA of the Migration Act. The Authority's decision not to interview the plaintiff and certain other persons or to have regard to certain information provided by the plaintiff was not legally unreasonable. The questions were answered in the negative.

In WET044 v The Republic of Nauru, the appellant applied for refugee status determination under the Refugees Convention Act 2012 (Nr). The Secretary of the Nauru Department of Justice and Border Control determined that the appellant was not a refugee and was not entitled to complementary protection. The Refugee Status Review Tribunal affirmed the Secretary's determination. The question was whether the Tribunal failed to consider country information before it and whether the Tribunal acted in a way that was procedurally unfair by failing to put to the appellant the nature and content of the country information it relied upon. The High Court held that the appeal should be dismissed.

Orders