High Court Bulletin
[2016] HCAB 7
High Court Bulletin
Produced by the Legal Research Officer,
High Court of Australia Library
[2016] HCAB 7 (7 September 2016)
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: Cases Handed Down
2: Cases Reserved
3: Original Jurisdiction
4: Special Leave Granted
5: Cases Not Proceeding or Vacated
6: Special Leave Refused
Summary of New Entries
1: Cases Handed Down
| Case | Title |
| Murphy & Anor v Electoral Commissioner & Anor | Constitutional Law |
| Miller v The Queen; Smith v The Queen; Presley v The Director of Public Prosecutions for the State of South Australia | Criminal Law |
| Sio v The Queen | Criminal Law |
| NH v The Director of Public Prosecutions; Jakaj v The Director of Public Prosecutions; Zefi v The Director of Public Prosecutions; Stakaj v The Director of Public Prosecutions | Criminal Law |
| The Queen v Baden-Clay | Criminal Law |
| Deal v Father Pius Kodakkathanath | Occupational Health and Safety |
| The Maritime Union of Australia & Anor v Minister for Immigration and Border Protection & Anor | Statutes |
2: Cases Reserved
| Case | Title |
| Bucca v The Queen | Criminal Law |
| Castle v The Queen | Criminal Law |
| Ainsworth & Ors v Albrecht & Anor | Procedure |
| Timbercorp Finance Pty Ltd (In Liquidation) v Collins & Anor | Procedure |
| Timbercorp Finance Pty Ltd (In Liquidation) v Tomes | Procedure |
| Blank v Commissioner of Taxation | Taxation |
| Bywater Investments Limited & Ors v Commissioner of Taxation | Taxation |
| Hua Wang Bank Berhad v Commissioner of Taxation | Taxation |
| Comcare v Martin | Workers Compensation |
3: Original Jurisdiction
| Case | Title |
| ResourceCo Material Solutions Pty Ltd & Anor v State of Victoria & Anor | Constitutional Law |
4: Special Leave Granted
| Case | Title |
| AAR15 v Minister for Immigration and Border Protection | Administrative Law |
| Perara-Cathcart v The Queen | Criminal Law |
| Prior v Mole | Criminal Law |
| Hughes v The Queen | Criminal Law |
| Minister for Immigration and Border Protection v Kumar & Ors | Migration |
| Stillman v Rusbourne & Ors | Negligence |
| Western Australian Planning Commission v Leith; Western Australian Planning Commission v Southregal Pty Ltd & Anor | Planning |
1: Cases Handed Down
The following cases were handed down by the High Court of Australia during the August 2016 sittings.
Constitutional Law
Murphy & Anor v Electoral Commissioner & Anor
M247/2015: [2016] HCA 36
Orders pronounced: 12 May 2016
Reasons published: 5 September 2016
Coram: French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ
Catchwords:
Constitutional law (Cth) – Legislative power – Franchise – Power of Parliament to regulate exercise of entitlement to enrol to vote – Provisions of Commonwealth Electoral Act 1918 (Cth) precluding consideration of claims for enrolment or transfer of enrolment and amendment of Electoral Rolls during "suspension period" from 8pm on day of closing of Electoral Rolls until close of polling for election – Whether burden on constitutional mandate that Parliament be "directly chosen by the people" – Whether burden justified by substantial reason – Relevance of Roach v Electoral Commissioner (2007) 233 CLR 162; [2007] HCA 43 and Rowe v Electoral Commissioner (2010) 243 CLR 1; [2010] HCA 46.
Words and phrases– "adequacy in its balance", "burden", "constitutional mandate of popular choice", "directly chosen by the people", "franchise", "necessity", "obvious and compelling alternative", "reasonably appropriate and adapted", "structured proportionality", "substantial reason", "suitability".
Constitution– ss 7, 10, 24, 30, 51(xxxvi).
Commonwealth Electoral Act 1918 (Cth)– ss 94A(4), 95(4), 96(4), 101, 102(4), 103A(5), 103B(5), 118(5).
Held: Questions answered.
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Criminal Law
Miller v The Queen; Smith v The Queen; Presley v The Director of Public Prosecutions for the State of South Australia
A28/2015; A22/2015; A17/2015: [2016] HCA 30
Judgment delivered: 24 August 2016
Coram: French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ
Catchwords:
Criminal law – Criminal liability – Complicity – Extended joint criminal enterprise liability – Where appellants and fourth man involved in violent altercation, during which fourth man fatally stabbed victim – Where appellants tried with fourth man for murder – Where bases on which murder left to jury included extended joint criminal enterprise – Whether liability for murder on basis of extended joint criminal enterprise should have been left to jury – Whether extended joint criminal enterprise proper basis for conviction of murder.
Criminal law– Appeal – Where appeal against conviction on ground jury verdict unreasonable or cannot be supported having regard to evidence – Where evidence appellants intoxicated – Whether Court of Criminal Appeal of Supreme Court of South Australia reviewed sufficiency of evidence.
Criminal law– Criminal liability – Complicity – Extended joint criminal enterprise – Consideration of McAuliffe v The Queen (1995) 183 CLR 108; [1995] HCA 37 in light of R v Jogee [2016] 2 WLR 681; [2016] 2 All ER 1 – Whether doctrine of extended joint criminal enterprise liability should be confined or abandoned.
High Court– Stare decisis – Whether McAuliffe v The Queen (1995) 183 CLR 108 should be reopened and overruled.
Words and phrases– "accessorial liability", "common purpose", "complicity", "extended common purpose", "extended joint criminal enterprise", "joint criminal enterprise", "review of sufficiency of evidence", "unreasonable verdict", "verdict not supported by the evidence".
Appealed from SASC (FC): [2015] SASCFC 53.
Held: Appeals allowed.
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Sio v The Queen
S241/2015; S83/2016: [2016] HCA 32
Judgment delivered: 24 August 2016
Coram: French CJ, Bell, Gageler, Keane and Gordon JJ
Catchwords:
Criminal law – Criminal liability – Inconsistent verdicts – Where appellant drove person to brothel – Where person intended to commit robbery – Where person fatally stabbed victim and took money – Where appellant charged with murder and armed robbery with wounding – Where jury directions on armed robbery with wounding charge omitted element of foresight of use of knife to wound – Where appellant acquitted of murder and convicted of armed robbery with wounding – Whether conviction and acquittal inconsistent – Whether substituted verdict should be ordered – Whether new trial should be ordered.
Evidence– Hearsay evidence – Evidence Act 1995 (NSW), s 65(2)(d) – Where person made representation that appellant gave him knife – Whether representation made in circumstances that made it likely that the representation was reliable.
Words and phrases– "circumstances that make it likely that the representation is reliable", "hearsay evidence", "inconsistent verdicts", "merciful verdict", "misdirection", "new trial", "substituted verdict".
Criminal Appeal Act 1912 (NSW)– ss 7, 8.
Evidence Act 1995 (NSW)– s 65.
Appealed from NSWSC (CCA): [2015] NSWCCA 42.
Held: Special leave granted; appeal allowed.
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NH v The Director of Public Prosecutions; Jakaj v The Director of Public Prosecutions; Zefi v The Director of Public Prosecutions; Stakaj v The Director of Public Prosecutions
A14/2016; A15/2016; A16/2016; A19/2016: [2016] HCA 33
Judgment delivered: 31 August 2016
Coram: French CJ, Kiefel, Bell, Nettle and Gordon JJ
Catchwords:
Criminal law – Appeal – Verdict – Not guilty of murder but guilty of manslaughter – Alleged mistake by foreperson – Requisite majority for verdict of not guilty of murder allegedly not reached – Report of foreperson to court officer disclosing alleged error – Statements as affidavits from jurors – Full Court quashed jury verdicts and ordered new trials on count of murder – Whether presumption of correctness of jury verdicts rebuttable in circumstances – Whether Full Court could reconsider perfected orders in original jurisdiction – Whether alleged mistake was material irregularity leading to unlawful verdicts – Whether alleged mistake by foreperson and acquiescence of jury an abuse of process – Whether inherent power to correct perfected orders in circumstances – Admissibility of jury statements to impeach verdicts – Consideration of distinction between verdict and judgment.
Appealed from SASC (CCA): [2015] SASCFC 139.
Held: Appeals allowed with costs.
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The Queen v Baden-Clay
B33/2016: [2016] HCA 35
Judgment delivered: 31 August 2016
Coram: French CJ, Kiefel, Bell, Keane & Gordon JJ
Catchwords:
Criminal law – Criminal liability – Where respondent's wife disappeared and body later found – Where respondent involved in sexual affair with another woman – Where some injuries to respondent's cheek likely caused by fingernails – Where respondent gave evidence at trial denying involvement in killing wife and disposing of body – Where jury convicted respondent of murder – Where Court of Appeal held hypothesis of unintentional killing not excluded by prosecution and substituted verdict of manslaughter – Where common ground on appeal that respondent killed his wife – Whether hypothesis consistent with innocence of murder open – Whether jury's verdict unreasonable – Whether jury entitled to be satisfied beyond reasonable doubt that respondent acted with intent to kill or cause grievous bodily harm when he killed his wife.
Words and phrases– "circumstantial evidence", "hypothesis consistent with innocence", "intention", "intractably neutral", "lies", "motive", "post-offence conduct", "role of the jury", "unreasonable verdict", "whole of the evidence".
Criminal Code (Q)– s 668E(1).
Appealed from QSC (CA): [2015] QCA 265
Held: Appeal allowed.
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Occupational Health and Safety
Deal v Father Pius Kodakkathanath
M252/2015: [2016] HCA 31
Judgment delivered: 24 August 2016
Coram: French CJ, Kiefel, Bell, Gageler and Nettle JJ
Catchwords:
Occupational health and safety – Statutory duty – Occupational Health and Safety Regulations 2007 (Vic), regs 3. 1. 1, 3. 1. 2, 3. 1. 3 – Duties of employers in relation to hazardous manual handling tasks – Where primary school teacher tasked to use step ladder to remove papier mâché displays from pin-board on classroom wall – Where displays unstable or unbalanced, or difficult to grasp and hold – Where task constituted hazardous manual handling task – Where in course of task teacher fell from step ladder and injured knee – Whether evidence capable of supporting cause of action for breach of statutory duty – Whether risk of injury amounted to risk of musculoskeletal disorder "associated with a hazardous manual handling task" – Whether sufficient evidence for jury to infer it was reasonably practicable for employer to identify task as involving hazardous manual handling.
Statutes– Interpretation – Remedial legislation – Occupational Health and Safety Act 2004 (Vic) – Where Act and Regulations intended to protect employees against risk of injury in course of work – Where legislation imposes civil penalties on employers for breach of statutory duty – Whether fact of civil penalty requires narrow interpretation of provision.
Words and phrases– "associated with", "close connection", "combined in terms of circumstances", "combined in terms of classification", "hazardous manual handling task", "musculoskeletal disorder", "real risk", "reasonably practicable", "Shirt calculus".
Occupational Health and Safety Act 2004 (Vic)– ss 2(1), 4, 20, 21, 158.
– regs 1. 1. 1, 1. 1. 5, 1. 1. 7, 3. 1. 1, 3. 1. 2, 3. 1. 3.
Occupational Health and Safety Regulations 2007 (Vic)
Appealed from VSC (CA): [2015] VSCA 191
Held: Appeal allowed with costs.
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Statutes
The Maritime Union of Australia & Anor v Minister for Immigration and Border Protection & Anor
S136/2015: [2016] HCA 34
Judgment delivered: 31 August 2016
Coram: French CJ, Bell, Gageler, Keane & Nettle JJ
Catchwords:
Statutes – Delegated legislation – Validity – Migration Act 1958 (Cth) – Offshore resources industry – Where amendments to Migration Act had effect of extending migration zone to non-citizens participating in or supporting offshore resources activity – Where amendments created specified visa requirements for such persons – Where amendments conferred power on Minister to make determination excepting operations and activities from extended migration zone – Where Minister's determination purported to except from migration zone, and specified visa requirements, all operations and activities to extent certain vessels or structures were used – Whether determination entirely negated operation of general rule in extending migration zone to non-citizens participating in or supporting offshore resources activity – Whether determination beyond power and invalid.
Words and phrases– "Australian resources installation", "exception", "migration zone", "offshore resources activity".
Legislation Act 2003 (Cth)– s 42.
Migration Act 1958 (Cth)– ss 5, 8, 9A, 13(1), 41.
Migration Amendment (Offshore Resources Activity) Act 2013 (Cth).
Offshore Minerals Act 1994 (Cth)– s 4, Ch 2.
Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth)– s 7, Chs 2, 3.
Held: Questions answered.
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2: Cases Reserved
The following cases have been reserved or part heard by the High Court of Australia.
Competition
Australian Competition & Consumer Commission v Flight Centre Travel Group Limited
B15/2016: [2016] HCATrans 167
Date heard: 27 July 2016
Coram: French CJ, Kiefel, Gageler, Nettle & Gordon JJ
Catchwords:
Competition – Whether appellant travel agent attempted to induce specific airlines to make a contract, arrangement or arrive at an understanding which had the purpose or effect of substantially lessening competition in a market – Consideration of relevant market – Characterisation of relevant services supplied by airlines and travel agents – Whether airlines and travel agents competed in a market for booking and distribution services, or whether the only relevant market was the market for international passenger air travel services – Whether travel agents competed with airlines in that market given they were the agent of the airlines when supplying such services – Application of ss 45 and 45A of the Trade Practices Act 1974 (Cth).
Appealed from FCA (FC): [2015] FCAFC 104.
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Constitutional Law
Cunningham & Ors v Commonwealth of Australia & Anor
S140/2015: [2016] HCATrans 140
Date heard: 16 June 2016
Coram: French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ
Catchwords:
Constitution – s 51(xxxi) – Remuneration and Other Legislation Amendment Act 2011 (Cth) – Members of Parliament (Life Gold Pass) and Other Legislation Amendment Act 2012 (Cth) – Acquisition of property on just terms – Where applicants are former members of the House of Representatives – Where applicants occupied positions as Ministers of State or where officeholders of the Parliament or of a House of Parliament – Where Parliament reduced the ‘retiring allowance’ of past members – Where Parliament restricted the number of return trips per year using the ‘Gold Pass’.
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Contract Law
Simic & Ors v NSW Land and Housing Corporation & Ors
S136/2016: [2016] HCATrans 160
Date heard: 20 July 2016
Coram: French CJ, Kiefel, Gageler, Nettle and Gordon JJ
Catchwords:
Contract – Letters of credit – Whether a misdescription of the beneficiary of a bank guarantee entitled the bank to refuse to pay out the credit – Whether regard could be had to the underlying contract to confirm the correct description of the beneficiary – Autonomy principle – Principle of strict compliance
Appealed from NSWSC (CA): [2015] NSWCA 413
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Criminal Law
Bucca v The Queen
A26/2016: 2016 HCATrans 189
Date heard: 31 August 2016
Coram: Kiefel, Bell, Gageler, Keane & Nettle JJ
Catchwords:
Criminal law – Evidence – Confessions and admissions – Application of proviso – Where statement was incorrectly admitted – Misdirection and non-direction
Criminal law – Evidence – Propensity evidence – Possession of firearms – Whether court of appeal erred in holding that evidence regarding the possession of firearms was correctly admitted.
Appealed from SASC (CCA): [2015] SASCFC 180
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Castle v The Queen
A24/2016: 2016 HCATrans 189
Date heard: 31 August 2016
Coram: Kiefel, Bell, Gageler, Keane & Nettle JJ
Catchwords:
Criminal law – Evidence – Confession and admissions – Application of proviso – Whether possibility jury relied on inadmissible statement made by the co-accused to reject oral evidence could be excluded.
Criminal law – Extended joint enterprise – Application of McAuliffe v The Queen (1995) 183 CLR 108.
Appealed from SASC (CCA): [2015] SASCFC 180
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Discrimination
Lyons v State of Queensland
B16/2016: [2016] HCATrans 165
Date heard: 25 July 2016
Coram: French CJ, Bell, Gageler, Keane and Nettle JJ
Catchwords:
Discrimination – direct discrimination – where the appellant, who was deaf, was excluded from jury service by a Deputy Registrar – where the appellant made a complaint of direct discrimination – construction of s 11 of the Anti-Discrimination Act 1991 (Qld) – where the appellant argues that her impairment was inextricably linked to her requirement of an Auslan interpreter – construction of Jury Act 1995 (Qld).
Appealed from QSC (CA): [2015] QCA 159.
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Procedure
Ainsworth & Ors v Albrecht & Anor
B37/2016: [2016] HCATrans 187
Date heard: 29 August 2016
Coram: French CJ, Bell, Keane, Nettle & Gordon JJ
Catchwords:
Procedure – Body Corporate and Community Management Act 1997 (QLD) – Where applicants opposed the first respondent’s application to extend balcony – Whether Court of Appeal erred in holding that adjudicator was required to reach conclusion on whether the motion should have passed – Whether QCAT was correct in upholding that adjudicator should have determined whether the ‘motion was objectively unreasonable’.
Appealed from QSC (CA): [2015] QCA 220
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Timbercorp Finance Pty Ltd (In Liquidation) v Collins & Anor
M98/2016: [2016] HCATrans 193
Date heard: 1 September 2016
Coram: French CJ, Kiefel, Keane, Nettle & Gordon JJ
Catchwords:
Procedure – Group proceedings - Part 4A of the Supreme Court Act 1986 (Vic) – Managed investment schemes – Collapse of schemes – Group proceeding on behalf of investors in schemes – Defendants include lender to investors – Dismissal of group proceeding – opt out provisions – Subsequent recovery proceedings by lender against group members – Group members had not opted out of group proceeding – Group members raised individual claims and defences in recovery proceedings – Whether failure to opt out of group proceeding precluded group members from raising individual claims and defences in recovery proceedings.
Procedure – Group proceedings – Anshun estoppel – Test – Whether unreasonable of group members not to have raised individual claims and defences during group proceeding – Whether group members estopped from raising individual claims and defenced in subsequent proceedings by a reason of failure to raise individual claims and defences in the group proceedings – Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589.
Procedure – Group proceedings – Abuse of process – Failure of plaintiff of group members to raise individual claims in group proceedings – Whether raising individual claims and defences by group members in subsequent proceedings is oppressive or brings administration of justice into disrepute.
Appealed from VSC (CA): [2016] VSCA 128
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Timbercorp Finance Pty Ltd (In Liquidation) v Tomes
M101/2016: [2016] HCATrans 193
Date heard: 1 September 2016
Coram: French CJ, Kiefel, Keane, Nettle & Gordon JJ
Catchwords:
Procedure – Group proceedings - Part 4A of the Supreme Court Act 1986 (Vic) – Managed investment schemes – Collapse of schemes – Group proceeding on behalf of investors in schemes – Defendants include lender to investors – Dismissal of group proceeding – opt out provisions – Subsequent recovery proceedings by lender against group members – Group members had not opted out of group proceeding – Group members raised individual claims and defences in recovery proceedings – Whether failure to opt out of group proceeding precluded group members from raising individual claims and defences in recovery proceedings.
Procedure – Group proceedings – Anshun estoppel – Test – Whether unreasonable of group members not to have raised individual claims and defences during group proceeding – Whether group members estopped from raising individual claims and defenced in subsequent proceedings by a reason of failure to raise individual claims and defences in the group proceedings – Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589.
Procedure – Group proceedings – Abuse of process – Failure of plaintiff of group members to raise individual claims in group proceedings – Whether raising individual claims and defences by group members in subsequent proceedings is oppressive or brings administration of justice into disrepute.
Appealed from VSC (CA): [2016] VSCA 128
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Taxation
Blank v Commissioner of Taxation
S144/2016: [2016] HCATrans 181; [2016] HCATrans 182
Date heard: 23 August 2016; 24 August 2016
Coram: French CJ, Kiefel, Gageler, Keane, & Gordon JJ
Catchwords:
Income tax – Where appellant participated in profit participation schemes as an employee of company group in foreign countries and in Australia – Where employee allocated ‘profit participation units’ and equal number of shares in holding company – Whether amount assessable as ordinary income or as a capital gain.
Appeal from FCA (FC): [2015] FCAFC 154
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Bywater Investments Limited & Ors v Commissioner of Taxation
S134/2016: [2016] HCATrans 183; [2016] HCATrans 184
Date heard: 24 August 2016; 25 August 2016
Coram: French CJ, Kiefel, Bell, Nettle & Gordon JJ
Catchwords:
Income Tax – Whether company is resident of Australia – Place of central management and control – Real business – Relevant principles in determining place of central management and control –Construction of s 70-40(2) of the Income Tax Assessment Act 1997 (Cth).
Appealed from FCA (FC): [2015] FCAFC 176
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Hua Wang Bank Berhad v Commissioner of Taxation
S135/2016: [2016] HCATrans 183; [2016] HCATrans 184
Date heard: 24 August 2016; 25 August 2016
Coram: French CJ, Kiefel, Bell, Nettle & Gordon JJ
Catchwords:
Income Tax – Whether company is resident of Australia – Place of central management and control – Real business – Relevant principles in determining place of central management and control –Profits from sale of shares – Trading stock – Construction of s 70-40(2) of the Income Tax Assessment Act 1997 (Cth).
Appealed from FCA (FC): [2015] FCAFC 176
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Torts
Prince Alfred College Incorporated v ADC
A20/2016: [2016] HCATrans 163
Date heard: 21 July 2016
Coram: French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ
Catchwords:
Torts – Negligence – Negligence of school authorities or teachers – Liability of employer – Limitation of actions – Extension of time in personal injuries matters – Knowledge of material facts of decisive character – Principles upon which discretion to grant extension of time – Whether Full Court erred in granting extension of time.
Appeal from SASC (FC): [2015] SASCFC 161
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Workers Compensation
Comcare v Martin
S142/2016: [2016] HCATrans 186
Date heard: 26 August 2016
Coram: French CJ, Bell, Gageler, Keane & Nettle JJ
Catchwords:
Workers compensation – The operation and exclusion in s 5A of the Safety, Rehabilitation and Compensation Act 1988 (Cth) – Causation of injury, disease or aggravation under the Act – Whether injury, disease or aggravation suffered ‘as a result of’ administrative action – Whether administrative action taken ‘in a reasonable manner’.
Appealed from FCA (FC): [2015] FCAFC 169
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3: Original Jurisdiction
The following cases are ready for hearing in the original jurisdiction of the High Court of Australia.
Constitutional Law
ResourceCo Material Solutions Pty Ltd & Anor v State of Victoria & Anor
M32/2016: Demurrer
Catchwords:
Constitutional law – Section 92 – Trade within the Commonwealth to be free – Environment Protection Act 1970 (Vic) – Environment Protection (Industrial Waste Resource) Regulations 2009 (Vic) – Where plaintiffs operate in national waste collection, recycling and disposal industry - Contract to dispose of contaminated soil in Victoria by transporting to and disposing of in South Australia - 2nd plaintiff obtained approval from Environment Protection Authority South Australia for treatment of soil in South Australia - 1st plaintiff sought approval from Environment Protection Victoria for transport of waste from Victoria to South Australia – Where approval refused - EPA Vic not satisfied waste would be deposited at facility in SA with better environmental performance standards than in Vic - Whether reg 26 or 26(3) Environment Protection (Industrial Waste Resource) Regulations 2009 (Vic) contrary to s92 Commonwealth Constitution and therefore invalid - Whether refusal decision contrary to s92 Commonwealth Constitution and therefore invalid or ultra vires the Regulations.
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Migration
Plaintiff S61/2016 v Minister for Immigration and Border Protection
S61/2016: Special case
Catchwords:
Migration – Family Stream – Direction by Minister – Where Minister gave written Direction 62 – order for considering and disposing of Family Stream visa applications, under s 499 of the Migration Act 1958 (Cth) – Where direction provides an order of priority for the processing of Family Stream visa applications – Whether the Direction is a legislative instrument per Legislation Act 2003 (Cth) – Whether Direction obliged delegates of the Minister to follow the order of priority set out in s 8 of the Direction in every case – Whether Direction is inconsistent with the Minister’s obligation under the Migration Act to consider and determine each Family Stream visa application within a reasonable time - Whether Direction is inconsistent with s 51(1) of the Migration Act.
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4: Special Leave Granted
The following cases have been granted special leave to appeal to the High Court of Australia.
Administrative Law
Southern Han Breakfast Point Pty Ltd (In Liquidation) v Lewence Construction Pty Ltd & Ors
S199/2016: [2016] HCATrans 173
Date heard: 28 July 2016 – Special leave granted on limited grounds.
Catchwords:
Administrative law – Jurisdictional error – Reference date – Whether the existence of a reference date in s 8 of the Building and Construction Industry Security of Payment Act 1999 (NSW) to support a payment claim is a jurisdictional fact.
Appealed from NSWSC (CA): [2015] NSWCA 288
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AAR15 v Minister for Immigration and Border Protection
P7/2016: [2016] HCATrans 196
Date heard: 2 September 2016 – Special leave granted.
Catchwords:
Administrative law – Jurisdictional error – Provision of reasons – Where Refugee Review Tribunal preferred one piece of evidence over another piece of contrary evidence closer in time to the decision being made – Where no reasons were provided for preference of one piece of evidence contrary to another – Where appellant court speculated as to why Tribunal made preference of one piece of evidence contrary to another.
Appealed from FCA: [2016] FCA 150.
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Criminal Law
RP v The Queen
S193/2016: [2016] HCATrans 162
Date heard: 21 July 2016 – Special leave granted.
Catchwords
Criminal law – Sexual intercourse with a child under 10 years – Where accused was aged between 11 and 13 years – Doli incapax – Whether presumption rebutted – Test for establishing whether doli incapax presumption rebutted.
Appealed from NSWSC (CCA): [2015] NSWCCA 215
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The Queen v Kilic
M105/2016: [2016] HCATrans 169
Date heard: 28 July 2016 – Special leave granted.
Catchwords:
Criminal law – Sentencing – Where respondent doused victim with petrol and set her alight – Where respondent pleaded guilty to intentionally causing serious injury – Where offence carries a maximum of 20 years imprisonment – Where respondent was sentenced to 14 years for primary offence – Where Court of Appeal found that the sentence was manifestly excessive – Where Court of Appeal reduced sentence – Principles regarding the review of sentencing.
Appealed from VSC(CA): [2015] VSCA 331
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Perara-Cathcart v The Queen
A6/2016: [2016] HCATrans 191
Date heard: 1 September 2016 – Special leave granted.
Catchwords:
Criminal law – Directions to jury – Proviso – Application of proviso – Where evidence was led at trial about the appellants drug possession – Where Court of Criminal Appeal held that evidence of the appellant’s drug possession was relevant and correctly admitted – Where a majority of the Court of Criminal Appeal held that the trial Judge failed to provide satisfactory directions regarding the permissible use of the evidence of the appellant’s drug possession – Whether the Court of Criminal Appeal correctly applied the proviso.
Appealed from SASC (CCA): [2015] SASCFC 103.
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Prior v Mole
D3/2016: [2016] HCATrans 192
Date heard: 1 September 2016 – Special leave granted.
Catchwords:
Criminal law – Where appellant was taken into ‘protective custody’ under the Police Administration Act (NT) s 128 – Where appellant spat on police officer – Where appellant was convicted of assault – Construction of s 128(1) of the Police Administration Act (NT) – Exercise of power under s 128(1) – Whether the Police Officer had reasonable grounds to establish that the appellant was likely to commit another offence – Whether the appellants apprehension was lawful.
Appealed from NTCA: [2016] NTCA 2.
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Hughes v The Queen
S23/2016: [2016] HCATrans 201
Date heard: 2 September 2016 – Special leave granted on limited grounds.
Catchwords:
Criminal law – Tendency evidence – Significant probative value – Whether trial judge erred in admitting tendency evidence – Whether trial judge properly accounted for risk of contamination and concoction in assessing significant probative value – Evidence Act 1995 (NSW) s 97 – Prejudicial effect of tendency evidence – Evidence Act 1995 (NSW) s 101 – Whether directions to jury sufficient.
Appealed from NSWSC (CCA): [2015] NSWCCA 330.
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Land
New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act
S168/2016: [2016] HCATrans 144
Date heard: 17 June 2016 – Special leave granted on limited grounds.
Catchwords:
Land – Aboriginal land rights – Aboriginal Land Rights Act 1983 (NSW) – Claim to Crown Land – Where land had been dedicated to gaol – Where gaol decommissioned but dedications not revoked – Whether land was lawfully occupied within the meaning of s 36(1)(b) of Act.
Appealed from NSWSC (CA): [2015] NSWCA 349
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Migration
Minister for Immigration and Border Protection v Kumar & Ors
P8/2016: [2016] HCATrans 197
Date heard: 2 September 2016
Catchwords:
Migration – Requirement that visa applicant holds a certain visa at the time of application – Where visa application lodged on the Monday immediately following expiry on Sunday of the previously held visa – Application of s 36(2) of the Acts Interpretation Act 1901 (Cth).
Appealed from FCA: [2016] FCA 177.
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Negligence
Kendirjian v Lepore & Anor
S170/2016: [2016] HCATrans 141; [2016] HCASL 140
Date heard: 17 June 2016 – Special leave granted.
Catchwords:
Negligence – Professional negligence – Lawyers – Advocates immunity – Duties and liabilities – Settlement of proceedings – Whether alleged failure in advice in relation to settlement offer was a decision affecting the conduct of the case in Court – Application of test in D’Orta-Ekenaike v Victorian Legal Aid (2005) 223 CLR 1.
Appealed from NSWSC (CA): [2015] NSWCA 132
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Stillman v Rusbourne & Ors
S34/2016: [2016] HCATrans 194
Date heard: 2 September 2016 – Special leave granted. Appeal instituted, heard instanter and allowed.
Catchwords:
Negligence – Scope of advocates’ immunity – Applicant advised to settle following court ordered mediation – Whether advice led to a decision affecting conduct of a case in court – Judgment entered pursuant to settlement – Sufficient connection between advice and conduct of case in court.
Appeal from NSWSC (CA): [2015] NSWCA 410.
Planning
Western Australian Planning Commission v Leith; Western Australian Planning Commission v Southregal Pty Ltd & Anor
P13/2016; P14/2016: [2016] HCATrans 190
Date heard: 1 September 2016 – Special leave granted.
Catchwords:
Planning – Statutory construction – Planning and Development Act 2005 (WA), s 173, s 177 – Planning Scheme – Amendment to planning scheme – Injurious affection – Compensation – Whether compensation available to person who subsequently purchased property from owner at the time scheme came into effect.
Appealed from WASC (CA): [2016] WASCA 53.
Taxation
Commissioner of State Revenue v ACN 005 057 349 Pty Ltd
M88/2016; M89/2016: [2016] HCATrans 146.
Date heard: 17 June 2016 – Special leave granted.
Catchwords:
Taxation – Land tax – Where Commissioner of State Revenue raised a land tax liability under the Land Tax Act 1958 (Vic) – Duplication error – Discretionary power of the Commissioner to amend assessments – Where the Commissioner refuses to amend assessments – Whether the issue of a tax assessment creates a tax debt.
Appealed from the VSC (CA): [2015] VSCA 332
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Elecnet (Aust) Pty Ltd (as Trustee for the Electrical Industry Severance Scheme) v Commissioner of Taxation of the Commonwealth of Australia
M104/2016: [2016] HCATrans 170
Date heard: 28 July 2016 – Special leave granted.
Catchwords:
Taxation – Statutory construction – “Unit trust” – Meaning of a “unit trust” within Division 6C of Income Tax Assessment Act 1936 (Cth) – Whether definition of “unit for the purposes of a “prescribed trust estate” can inform the meaning of a “unit trust” – Whether Electrical Industry Severance Scheme is a unit trust.
Appealed from FCA (FC): [2015] FCAFC 178
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5: Cases Not Proceeding or Vacated
6: Special Leave Refused
Publication of Reasons: 24 August 2016
| No. | Applicant | Respondent | Court appealed from | Result |
| 1. | Walter Elliott Holdings | Fraser Coast Regional Council (B11/2016) | Supreme Court of Queensland [2016] QCA 19 | Application dismissed with costs |
| 2. | Lynx Engineering Consultants Pty Ltd | Pilbara Infrastructure Pty Ltd | Full Court of the Federal Court of Australia | Application dismissed with costs [2016] HCASL 174 |
| Lynx Engineering Consultants Pty Ltd | Bradken Resources Pty Ltd | Full Court of the Federal Court of Australia | Application dismissed with costs [2016] HCASL 174 | |
| 3. | Waters | The Federal Court of Australia and the Judges Thereof & Anor | High Court of Australia | Application dismissed with costs [2016] HCASL 175 |
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Publication of Reasons: 25 August 2016
| No. |
| Respondent | Court appealed from | Result |
| 1. | Vargas | Clarke (B19/2016) | Full Court of the Family Court of Australia | Application dismissed |
| 2. | Rose & Anor | Queensland Police Service | Supreme Court of Queensland (Court of Appeal) | Applications dismissed [2016] HCASL 177 |
| 3. | WZAVX | Minister for Immigration and Border Protection & Anor | Federal Court of Australia | Application dismissed [2016] HCASL 178 |
| 4. | S | D | Supreme Court of Western Australia (Court of Appeal) | Application dismissed [2016] HCASL 179 |
| 5. | Sadiq | NSW Trustee and Guardian | Supreme Court of New South Wales (Court of Appeal) | Application dismissed [2016] HCASL 180 |
| 6. | CPD15 as Litigation Guardian for CGE15 | Minister for Immigration and Border Protection & Anor | Federal Court of Australia | Application dismissed [2016] HCASL 181 |
| 7. | Viavattene | The Queen | Supreme Court of New South Wales (Court of Criminal Appeal) | Application dismissed [2016] HCASL 182 |
| 8. | AQN15 | Minister for Immigration and Border Protection & Anor | Federal Court of Australia | Application dismissed [2016] HCASL 183 |
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Publication of Reasons: 30 August 2016
| No. |
| Respondent | Court appealed from | Result |
| 1. | Pallett | Director of Public Prosecutions (Victoria) (M57/2016) | Application for removal | Application dismissed [2016] HCASL 184 |
| 2. | Pallett | Director of Public Prosecutions (Victoria) | Application for removal | Application dismissed |
| 3. | AHI15 | Minister for Immigration and Border Protection & Anor | Federal Court of Australia | Application dismissed [2016] HCASL 185 |
| 4. | MZYRZ | Minister for Immigration and Border Protection & Anor | Federal Court of Australia | Application dismissed [2016] HCASL 186 |
| 5. | Hanna | Minister for Immigration and Border Protection & Anor | Federal Court of Australia | Application dismissed [2016] HCASL 187 |
| 6. | Tanious | South Eastern Sydney Local Health District & Anor | Supreme Court of New South Wales (Court of Appeal) | Application dismissed [2016] HCASL 188 |
| 7. | Valdez | Frazier | Full Court of the Family Court | Applications dismissed [2016] HCASL 189 |
| 8. | BAX15 | Minister for Immigration and Border Protection & Anor | Federal Court of Australia | Application dismissed [2016] HCASL 190 |
| 9. | Meade | The Queen | Supreme Court of Victoria (Court of Appeal) | Application dismissed [2016] HCASL 191 |
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Publication of Reasons: 31 August 2016
|
| Applicant | Respondent | Court appealed from | Result |
| 1. | Vecchio | The Queen (B22/2016) | Supreme Court of Queensland (Court of Appeal) [2016] QCA 71 | Application dismissed |
| 2. | MZAIV | Minister for Immigration and Border Protection & Anor | Federal Court of Australia | Application dismissed with costs [2016] HCASL 193 |
| 3. | Harkins | The Queen | Supreme Court of New South Wales (Court of Criminal Appeal) | Application dismissed [2016] HCASL 194 |
| 4. | Barrak Corporation | Jaswil Properties Pty Ltd | Supreme Court of New South Wales (Court of Appeal) | Application dismissed with costs [2016] HCASL 195 |
| 5. | Buckworth | Gladio Pty Ltd & Anor | Supreme Court of New South Wales (Court of Appeal) | Application dismissed with costs [2016] HCASL 196 |
| 6. | El-Ali | The Queen | Supreme Court of New South Wales (Court of Criminal Appeal) | Application dismissed [2016] HCASL 197 |
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Publication of Reasons: 1 September 2016
|
| Applicant | Respondent | Court appealed from | Result |
| 1. | Sandhu & Ors | Minister for Immigration and Border Protection & Anor (A21/2016) | Federal Court of Australia [2016] FCA 285 | Application dismissed |
| 2. | RF & Anor | Director-General, Community Services Directorate | Supreme Court of the Australian Capital Territory (Court of Appeal) | Application dismissed [2016] HCASL 199 |
| 3. | MZAGS | Minister for Immigration and Border Protection & Anor | Federal Court of Australia | Application dismissed [2016] HCASL 200 |
| 4. | Laurent | Fates & Anor | Supreme Court of Western Australia (Court of Appeal) | Application dismissed [2016] HCASL 201 |
| 5. | Oxenham | The State of Western Australia | Supreme Court of Western Australia (Court of Appeal) | Application dismissed [2016] HCASL 202 |
| 6. | Mao | AMP Superannuation Fund | Supreme Court of New South Wales (Court of Appeal) | Application dismissed [2016] HCASL 203 |
| 7. | ADA15 | Minister for Immigration and Border Protection & Anor | Federal Court of Australia | Application dismissed [2016] HCASL 204 |
| 8. | AZAFF | Minister for Immigration and Border Protection & Anor | Federal Court of Australia | Application dismissed with costs [2016] HCASL 205 |
| 9. | AZAFG by her litigation guardian AZAFF | Minister for Immigration and Border Protection & Anor | Federal Court of Australia | Application dismissed with costs [2016] HCASL 205 |
| 10. | Hammercall Pty Ltd | The Hon Scott Emerson as Minister for Transport & Main Roads & Ors | Supreme Court of Queensland (Court of Appeal) | Application dismissed with costs [2016] HCASL 206 |
| 11. | Swindells | State of Victoria & Anor (M33/2016) | Supreme Court of Victoria (Court of Appeal) [2016] VSCA 9 | Application dismissed with costs |
| 12. | Clark-Ugle | Clark & Ors | Supreme Court of Victoria (Court of Appeal) | Application dismissed with costs [2016] HCASL 208 |
| 13. | Bignill | Director of Public Prosecutions | Supreme Court of New South Wales (Court of Appeal) | Application dismissed with costs [2016] HCASL 209 |
| 14. | James | Royal Bank of Scotland Group PLC & Ors | Supreme Court of New South Wales (Court of Appeal) | Application dismissed with costs [2016] HCASL 210 |
| 15. | McKeith | Royal Bank of Scotland Group PLC & Ors | Supreme Court of New South Wales (Court of Appeal) | Application dismissed with costs [2016] HCASL 210 |
| 16. | Maio & Ors | City of Stirling & Ors | Supreme Court of Western Australia (Court of Appeal) | Application dismissed with costs [2016] HCASL 211 |
| 17. | Global Gaming Supplies Pty Ltd & Ors | Aristocrat Technologies Australia Pty Ltd & Ors | Full Court of the Federal Court of Australia | Application dismissed with costs [2016] HCASL 212 |
| 18. | Allam | Aristocrat Technologies Australia Pty Ltd & Ors | Full Court of the Federal Court of Australia | Application dismissed with costs [2016] HCASL 213 |
| 19. | ATP15 & Anor | Minister for Immigration and Border Protection & Anor | Full Court of the Federal Court of Australia | Application dismissed with costs [2016] HCASL 214 |
| 20. | Tanioria | Minister for Immigration and Border Protection | Full Court of the Federal Court of Australia | Application dismissed with costs [2016] HCASL 215 |
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2 September 2016: Canberra
| No. |
| Respondent | Court appealed from | Results | ||
| 1. | Multigate Medical Devices | B. Braun Melsungen AG & Anor (M42/2016) | Full Court of the Federal Court of Australia [2016] FCAFC 21 | Application dismissed with costs [2016] HCATrans 195 | ||
| 2. | Pilbara Infrastructure Pty Ltd | Brockman Iron Pty Ltd & Anor | Supreme Court of Western Australia (Court of Appeal) | Application dismissed with costs [2016] HCATrans 198 | ||
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2 September 2016: Sydney
| No. |
| Respondent | Court appealed from | Results |
| 1. | Stretton | Minister for Immigration and Border Protection (B13/2016) | Full Court of the Federal Court of Australia [2016] FCAFC 11 | Application dismissed with costs [2016] HCATrans 200 |
| 2. | JR Consulting & Drafting | Cummings & Ors | Full Court of the Federal Court of Australia | Application dismissed with costs [2016] HCATrans 202 |
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