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High Court Bulletin

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

[2013] HCAB 03 (18 April 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
SZOQQ v Minister for Immigration and Citizenship and Anor	Citizenship and Migration
Castle Constructions Pty Limited v Sahab Holdings Pty Ltd & Anor	Property
Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd & Ors	Proportionate liability

2: Cases Reserved

Case	Title
Keating v Director of Public Prosecutions (Cth)	Constitutional Law
State of NSW v Kable	Constitutional Law
Kakavas v Crown Melbourne Limited & Ors	Equity

3: Original Jurisdiction

Case	Title
There are no new matters ready for hearing in the original jurisdiction of the High Court.

4: Special Leave Granted

Case	Title
Construction Forestry Mining & energy Union v Mammoet Australia Pty Ltd ACN 075 483 644	Industrial Law

1: Cases Handed Down

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

Citizenship and Migration

SZOQQ v Minister for Immigration and Citizenship and Anor

S97/2012: [2013] HCA 12.

Judgment delivered: 10 April 2013.

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

Catchwords:

Immigration – Refugees – Judicial review – Minister's delegate found appellant had well-founded fear of political persecution if returned to Indonesia – Minister's delegate concluded Australia owed no "protection obligations" to appellant because appellant convicted of "particularly serious crime" – Whether "protection obligations" in s 36(2)(a) of Migration Act 1958 (Cth) ("Act") limited to non-refoulement obligation in Art 33(1) of Convention relating to the Status of Refugees as amended by Protocol relating to the Status of Refugees – Whether s 91U of Act confines scope of Australia's "protection obligations" in s 36(2)(a) of Act – Whether Minister bound to consider if grant of visa not prevented by s 501 of Act.
Words and phrases – "non-refoulement", "particularly serious crime", "protection obligations".

Appealed from FCA (FC): [2011] FCA 1237; (2011) 124 ALD 18; [2012] FCAFC 40; (2012) 200 FCR 174.

Return to Top

Property

Castle Constructions Pty Limited v Sahab Holdings Pty Ltd & Anor

S263/2012: [2013] HCA 11.

Judgment delivered: 10 April 2013.

Coram: Hayne, Crennan, Kiefel, Bell and Gageler JJ.

Catchwords:

Real property – Torrens system land – Easements – Registered proprietor of servient tenement requested Registrar-General remove easement from Register – Easement removed from Register without objection from registered proprietors of dominant tenement – Subsequent purchaser of dominant tenement requested that Registrar-General restore easement to Register – Registrar-General refused – Whether deliberate removal of easement from Register "omission" within meaning of s 42(1)(a1) of Real Property Act 1900…

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 3
Decision Date

CaseChat Overview and Summary

SZOQQ v Minister for Immigration and Citizenship and Anor involved the appeal of a decision of the Federal Court of Australia to refuse the grant of a visa to the applicant. The central issue was whether the Minister for Immigration was bound to consider granting a visa to the applicant notwithstanding that he had been convicted of a particularly serious crime. The High Court held that the Minister was not bound to consider granting a visa to the applicant. The Court held that the obligation in s 36(2)(a) of the Migration Act 1958 (Cth) to not remove a person to a country where they would be subject to torture or "protection obligations" was limited to the non-refoulement obligation in Art 33(1) of the Convention relating to the Status of Refugees. Further, the Court held that s 91U of the Migration Act 1958 confined the scope of Australia's "protection obligations" in s 36(2)(a) of the Act. Castle Constructions Pty Limited v Sahab Holdings Pty Ltd and Anor involved the appeal of a decision of the Supreme Court of New South Wales refusing to order the Registrar-General to restore an easement to the Register of Titles. The central issue was whether the deliberate removal of an easement from the Register was an "omission" within the meaning of s 42(1)(a1) of the Real Property Act 1900 (NSW). The High Court held that the removal of an easement from the Register was an "omission" within the meaning of s 42(1)(a1) of the Real Property Act 1900. The Court held that the subsequent purchaser of the dominant tenement was a "person who is dissatisfied" with the Registrar-General's decision under s 122 of the Act. Therefore, the subsequent purchaser was not barred from bringing an action against the Registrar-General under s 12A(3) of the Act for the removal of the easement from the Register. Hunt and Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd and Ors involved the appeal of a decision of the Supreme Court of New South Wales granting the plaintiff's claim against the defendant for damages. The central issue was whether the defendant's negligence in the drafting of a mortgage contributed to the loss suffered by the plaintiff. The High Court held that the defendant was not liable for damages to the plaintiff. The Court held that the damage or loss suffered by the plaintiff was caused or materially contributed to by the conduct of the fraudsters and not by the defendant's negligence in drafting the mortgage. Therefore, the defendant was not a concurrent wrongdoer with the fraudsters.

Orders