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High Court Bulletin

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

[2014] HCAB 08 (29 October 2014)

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
Tajjour v State of New South Wales; Hawthorne v State of New South Wales; Forster v State of New South Wales	Constitutional Law
Kentwell v The Queen	Criminal Law
O’Grady v The Queen	Criminal Law
Gray v Richards	Damages
Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd	Industrial Law
Brookfield Multiplex Ltd v Owners Corporation Strata Plan 61288	Negligence

2: Cases Reserved

Case	Title
Argos Pty Ltd and Ors v Simon Corbell, Minister for the Environment and Sustainable Development & Ors	Administrative Law
Henderson v State of Queensland	Criminal Law
Minister for Immigration and Border Protection v SZSCA & Anor	Migration
CPCF v Minister for Immigration and Border Protection & Anor	Migration
Hunter and New England Local Health District v McKenna; Hunter and New England Local Health District v Simon & Anor	Tort Law

3: Original Jurisdiction

Case	Title
Duncan v The State of New South Wales; NuCoal Resources Ltd v State of New South Wales; Cascade Coal Pty Ltd & Ors v The State of New South Wales	Constitutional Law
Plaintiff S297/2013 v Minister for Immigration and Border Protection & Anor	Constitutional Law

4: Special Leave Granted

Case	Title
Fortress Credit Corporation (Australia) II & Anor v William John Fletcher and Katherine Elizabeth Barnet as Liquidators of Octaviar Limited (Receivers and Managers Appointed) (In Liquidation) and Octaviar Administration Pty Ltd & Ors	Corporations Law
Uelese v Minister for Immigration and Border Protection & Anor	Migration

1: Cases Handed Down

The following cases were handed down by the High Court of Australia during the October 2014 sittings.

Constitutional Law

Tajjour v State of New South Wales; Hawthorne v State of New South Wales; Forster v State of New South Wales

S36; S37; S38/2014: [2014] HCA 35.

Judgment delivered: 8 October 2014.

Coram: French CJ, Hayne, Crennan, Kiefel, Bell, Gageler and Keane JJ.

Catchwords:

Constitutional law – Implied freedom of political communication – Section 93X of Crimes Act 1900 (NSW) made it offence habitually to consort with convicted offenders after receiving official warning in relation to each convicted offender – Plaintiffs charged with offence against s 93X – Whether s 93X infringes implied freedom of political communication.
Constitutional law – Implied freedom of association – Whether Constitution contains an implied freedom of association independent of implied freedom of political communication.
Constitutional law – Powers of State Parliaments – Provisions of international convention ratified by Australia but not incorporated by statute in Australian domestic law – Whether capable of…

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: [2014] HCAB 8
Decision Date

CaseChat Overview and Summary

In Tajjour v State of New South Wales; Hawthorne v State of New South Wales; Forster v State of New South Wales, the plaintiffs challenged the constitutionality of s 93X of the Crimes Act 1900 (NSW), which criminalised the act of habitually consorting with convicted offenders after receiving an official warning in relation to each offender. The plaintiffs argued that s 93X infringed upon the implied freedom of political communication and association protected by the Constitution. The court held that s 93X did not infringe upon the implied freedom of political communication, but it did infringe upon the implied freedom of association. However, the infringement was not disproportionate to the objective pursued by the law, and thus, it was considered justified. The court also found that provisions of international conventions ratified by Australia, but not incorporated by statute in Australian domestic law, could limit the power of State Parliaments to enact inconsistent legislation.

In Kentwell v The Queen, the applicant sought an extension of time to apply for leave to appeal against his sentence. The court held that the applicant was required to demonstrate that the refusal of the application would occasion substantial injustice, and the prospect of success should the extension be granted was relevant to the application. The court allowed the appeal, granting the extension of time for the applicant to apply for leave to appeal against his sentence.

In Rhiannon Gray by her tutor Kathleen Anne Gray v Richards, the appellant suffered brain damage as a result of the respondent's negligence. The appellant was incapable of managing her own financial affairs, and an administrator was appointed to manage her estate. The administrator charged fees on all funds under management, and the appellant sought to recover the costs associated with managing the damages awarded for the purpose of managing the funds under management. The court held that the appellant was entitled to recover the costs associated with managing the damages awarded, but not the costs associated with managing the predicted future income of the managed fund.

In Brookfield Multiplex Ltd v Owners Corporation Strata Plan 61288, the owners corporation for a strata-titled apartment complex claimed damages from the builder for pure economic loss caused by latent defects in the common property. The builder argued that it did not owe a duty of care to the owners corporation because it did not have an anterior duty of care to the developer. The court held that the builder owed a duty of care to the owners corporation for pure economic loss, and the builder was liable for the damages claimed.

Orders