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High Court Bulletin

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

[2013] HCAB 09 (20 November 2013)

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
Diehm & Anor v Director of Public Prosecutions Nauru	Criminal Law
Comcare v PVYW	Industrial Law
Karpany & Anor v Dietman	Native Title
Castle Constructions Pty Limited v Sahab Holdings Pty Ltd & Anor	Practice and Procedure
Expense Reduction Analysts Group Pty Ltd & Ors v Armstrong Strategic Management and Marketing Pty Limited & Ors	Practice and Procedure
Wingfoot Australia Partners Pty Ltd & Anor v Kocak & Ors	Statutes
Daly v Thiering & Ors	Statutes

2: Cases Reserved

Case	Title
Kline v Official Secretary to the Governor General & Anor	Administrative Law
Australian Competition and Consumer Commission v TPG Internet Pty Ltd	Competition Law
Unions NSW and Ors v State of New South Wales	Constitutional Law
Reeves v The Queen	Criminal Law
Li v Chief of Army	Criminal Law
James v The Queen	Criminal Law

3: Original Jurisdiction

Case	Title
Commonwealth v The Australian Capital Territory	Constitutional Law

4: Special Leave Granted

Case	Title
FTZK v Minister for Immigration and Citizenship & Anor	Administrative Law
Stewart & Anor v Atco Controls Pty Ltd (In Liquidation)	Corporations Law
Wellington Capital Limited v Australian Securities & Investments Commission & Anor	Corporations Law
Achurch v The Queen	Criminal Law
Gillard v The Queen	Criminal Law
Milne v The Queen	Criminal Law
Howard v Commissioner of Taxation	Equity
NSW Registrar of Births, Deaths and Marriages v Norrie	Statutes

1: Cases Handed Down

The following cases were handed down by the High Court of Australia during the October-November 2013 sittings.

Criminal Law

Diehm & Anor v Director of Public Prosecutions Nauru

B15/2013: [2013] HCA 42.

Judgment delivered: 30 October 2013.

Coram: French CJ, Kiefel and Bell JJ.

Catchwords:

Criminal law – Practice and procedure – Duties of prosecutor – Duty of prosecutor to call all material witnesses – Appellants convicted of rape – Only one of two police officers who attended scene called to give evidence – Whether failure of prosecutor to call second officer occasioned miscarriage of justice.
Criminal law – Practice and procedure – Statutory power and duty of trial judge to call witness of own motion – Scope of duty – Whether evidence of uncalled witness "essential to the just decision of the case".
Criminal law – Evidence – Depositions – Statement of uncalled witness not in evidence – Trial judge referred to statement to determine effect of failure to call witness – Whether reference to statement occasioned breach of natural justice.
Words and phrases – "essential…

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: [2013] HCAB 9
Decision Date

CaseChat Overview and Summary

Diehm & Anor v Director of Public Prosecutions Nauru concerned the appeal of two individuals convicted of the rape of a girl under 12 years of age. The trial judge had called one of the two police officers present at the scene of the crime to testify, but had not called the second officer, who had been present but had not attended the trial. The appellants submitted that the trial judge had erred in not calling the second officer to testify, and that the failure to call that officer had caused a miscarriage of justice. The High Court held that the failure to call the second officer had not caused a miscarriage of justice, and dismissed the appeal. Comcare v PVYW concerned the question of whether an employee who was injured during an overnight stay at a motel booked by the employer was entitled to workers' compensation. The employee had been injured while engaging in an activity during the stay. The High Court held that the injuries arose in the course of employment, and that the employee was therefore entitled to workers' compensation. Karpany & Anor v Dietman concerned the question of whether the Fisheries Act 1971 (SA) extinguished the native title right to take fish. The appellants argued that the Fisheries Act did not extinguish the native title right. The High Court held that the Fisheries Act was not inconsistent with the continued existence of the native title right, and that the native title right had not been extinguished. The High Court also held that a ministerial exemption provided for in the Fisheries Management Act 2007 (SA) was not a "licence, permit or other instrument" for the purposes of s 211 of the Native Title Act 1993 (Cth).

Orders