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Last Updated: 29 November 2016
HIGH COURT BULLETIN
Produced by the High Court of Australia Library
[2016] HCAB 9 (28 November 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.
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Case
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Title
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Estoppel
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Criminal
Law
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Taxation
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Taxation
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Workers
Compensation
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Case
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Title
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Constitutional
Law
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Constitutional
Law
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Criminal
Law
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Criminal
Law
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Planning
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Case
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Title
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Constitutional
Law
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Migration
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Migration
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Migration
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Migration
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Case
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Title
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Senate
Referral
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Senate
Referral
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Case
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Title
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Compensation
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Criminal
Law
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Criminal
Law
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Criminal
Law
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Criminal
Law
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Criminal
Law
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Migration
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Procedure
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Statutory
Construction
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Taxation
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5: Cases Not Proceeding or Vacated
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Case
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Title
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Administrative
Law
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Criminal
Law
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The following cases were handed down by the High Court of Australia during the November 2016 sittings.
M98/2016; M101/2016: [2016] HCA 44
Judgment delivered: 9 November 2016
Coram: French CJ, Kiefel, Keane, Nettle & Gordon JJ
Catchwords:
Estoppel – Anshun estoppel – Where appellant provided loans to investors to fund investments in managed investment schemes – Where appellant placed in liquidation – Where group proceeding against appellant under Pt 4A of Supreme Court Act 1986 (Vic) by lead plaintiff on behalf of himself and group members alleging misrepresentations and failure to disclose information about risks – Where respondents group members in group proceeding – Where group proceeding unsuccessful – Where subsequent proceedings by appellant against respondents seeking recovery of outstanding principal and interest – Where respondents pleaded number of defences in recovery proceedings – Whether lead plaintiff in group proceeding respondents' privy – Whether defences precluded by reason of estoppel which arises by reference to principle in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589.
Practice and procedure – Whether defences sought to be raised in recovery proceedings an abuse of process.
Words and phrases – "abuse of process", "Anshun estoppel", "control", "estoppel", "group member", "group proceeding", "lead plaintiff", "opt out notice", "privy", "unreasonable".
Supreme Court Act 1986 (Vic) – Pt 4A.
Appealed from VSC (CA): [2016] VSCA 128
Held: Appeals dismissed with costs.
A24/2016; A26/2016: [2016] HCA 46
Judgment delivered: 16 November 2016
Coram: Kiefel, Bell, Gageler, Keane & Nettle JJ
Catchwords:
Criminal law – Appeal against conviction – Application of proviso – Where appellants convicted of murder arising out of joint criminal enterprise – Where evidence of exculpatory statement by one appellant wrongly left to jury as evidence of admission – Where remaining evidence circumstantial – Whether no substantial miscarriage of justice occurred.
Criminal law – Summing-up – Where one appellant gave evidence – Where trial judge referred jury to aspects of appellant's evidence but did not summarise it – Whether appellant's case fairly left to jury.
Criminal law – Admissibility of evidence – Where evidence that one appellant possessed handguns months prior to shooting – Whether evidence "discreditable conduct evidence" within meaning of s 34P(1) of Evidence Act 1929 (SA) – Whether open to conclude probative value of evidence substantially outweighed prejudicial effect.
Words and phrases – "admissibility", "discreditable conduct evidence", "exculpatory assertion", "proviso", "substantial miscarriage of justice", "summing-up".
Criminal Law Consolidation Act 1935 (SA) – s 353(1).
Evidence Act 1929 (SA) – s 34P.
Appealed from SASC (CCA): [2015] SASCFC 180
Held: Appeals allowed.
Judgment delivered: 9 November 2016
Coram: French CJ, Kiefel, Gageler, Keane, & Gordon JJ
Catchwords:
Income tax – Assessable income – Where taxpayer participated in employee incentive profit participation agreement – Taxpayer granted claim to deferred compensation calculated on basis of company profit – Amount payable under agreement to taxpayer on termination of employment and execution of declaration of assignment and release – Whether amount income according to ordinary concepts or capital gain.
Words and phrases – "deferred compensation", "Genussscheine", "incentive profit participation agreement", "ordinary income", "pecuniary account".
Income Tax Assessment Act 1936 (Cth) – s 26(e).
Income Tax Assessment Act 1997 (Cth) – s 6-5(1), (4).
Swiss Code of Obligations – Art 657.
Appeal from FCA (FC): [2015] FCAFC 154
Held: Appeal dismissed with costs.
S134/2016; S135/2016: [2016] HCA 45
Judgment delivered: 16 November 2016
Coram: French CJ, Kiefel, Bell, Nettle & Gordon JJ
Catchwords:
Taxation – Income tax – Residence of company – Income Tax Assessment Act 1936 (Cth), s 6(1) – Where directors of appellant companies resident abroad – Where meetings of directors of appellants ostensibly held abroad – Where directors acted at direction of Australian resident who controlled appellants and made decisions then implemented by directors – Whether appellants residents of Australia for income tax purposes – Whether "central management and control" of appellants located abroad in place where boards of directors met – Whether, as question of fact and degree, real business and operations of appellants controlled and directed from Australia – Whether functions of appellants' boards of directors usurped – Effect of Esquire Nominees Ltd v Federal Commissioner of Taxation (1972) 129 CLR 177.
Taxation – Income tax – Residence of company – Double taxation agreements – Tie-breaker provisions – Whether appellants entitled to protection from Australian income tax under relevant double taxation agreements – Whether "place of effective management" of appellant companies other than in Australia.
Words and phrases – "Australian resident", "central management and control", "company's constitutional organs", "corporate residence", "formal organs", "place of effective management", "real business", "residency", "rubber-stamp", "superior or directing authority", "usurp".
Income Tax Assessment Act 1936 (Cth) – ss 6(1), 25A, Pt X.
Income Tax Assessment Act 1997 (Cth) – ss 6-5, 995-1.
International Tax Agreements Act 1953 (Cth) – Scheds 1, 15.
Appealed from FCA (FC): [2015] FCAFC 176
Held: Appeals dismissed with costs.
Judgment delivered: 9 November 2016
Coram: French CJ, Bell, Gageler, Keane & Nettle JJ
Catchwords:
Workers compensation – Safety, Rehabilitation and Compensation Act 1988 (Cth), s 5A(1) – Meaning of injury – Where employee suffered aggravation of mental condition in reaction to perceived consequence of failure to obtain promotion – Whether aggravation suffered "as a result of" reasonable administrative action.
Words and phrases – "as a result of", "'common sense' approach to causation", "disease", "injury".
Safety – Rehabilitation and Compensation Act 1988 (Cth), ss 5A, 5B.
Appealed from FCA (FC): [2015] FCAFC 169
Held: Appeal allowed with costs.
The following cases have been reserved or part heard by the High Court of Australia.
S199/2016: [2016] HCATrans 239
Date heard: 12 October 2016
Coram: Kiefel, Bell, Gageler, Keane and Gordon JJ
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
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
Date heard: 10 November 2016
Coram: Kiefel, Gageler, Keane, Nettle and Gordon JJ
Catchwords:
Constitutional law – Validity of the Corporations Act 2001 (Cth) – Where plaintiff had been a director of a company on a number of occasions – Where company was subsequently placed into administration – Where Federal Court issued summons, pursuant to s 596A of the Corporations Act 2001 (Cth), to plaintiff requiring plaintiff’s attendance to be examined and to produce documents – Whether s 596A is an exercise of judicial power.
Orders made on 10 November 2016 dismissing writ of summons. Written reasons of the Court to be published at a future date.
Date heard: 10 November 2016
Coram: Kiefel, Gageler, Keane, Nettle and Gordon JJ
Catchwords:
Constitutional law – Validity of the Corporations Act 2001 (Cth) – Where plaintiff had been a director of a company – Where company was subsequently placed into administration – Where Federal Court issued summons, pursuant to s 596A of the Corporations Act 2001 (Cth), to plaintiff requiring plaintiff’s attendance to be examined and to produce documents – Whether s 596A is an exercise of judicial power.
Orders made on 10 November 2016 dismissing writ of summons. Written reasons of the Court to be published at a future date.
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
M105/2016: [2016] HCATrans 240
Date heard: 13 October 2016
Coram: Bell, Gageler, Keane, Nettle and Gordon JJ
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
S193/2016: [2016] HCATrans 261
Date heard: 8 November 2016
Coram: Kiefel, Bell, Gageler, Keane and Gordon JJ
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
Date heard: 11 November 2016
Coram: Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ
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
S168/2016: [2016] HCATrans 228; [2016] HCATrans 229
Date heard: 4 October 2016; 5 October 2016
Coram: French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ
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
P47/2016; P48/2016: [2016] HCATrans 262
Date heard: 9 November 2016
Coram: Kiefel, Bell, Gageler, Keane and Nettle JJ
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
M88/2016; M89/2016: [2016] HCATrans 230
Date heard: 6 October 2016
Coram: Kiefel, Bell, Gageler, Keane and Gordon JJ.
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
M104/2016: [2016] HCATrans 237
Date heard: 11 October 2016
Coram: Kiefel, Gageler, Keane, Nettle and Gordon JJ
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
The following cases are ready for hearing in the original jurisdiction of the High Court of Australia.
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.
M251/2015: Special Case
Catchwords:
Constitutional law – Chapter III of the Constitution – Where plaintiff pleaded guilty to seven counts of murder and 46 counts of attempted murder in Supreme Court of Victoria – Where plaintiff was sentenced to life imprisonment in respect of each of the seven counts of murder – Where plaintiff was sentenced to be imprisoned for 10 years for each of the 46 counts of attempted murder, to be served concurrently – Where sentencing judge set a minimum term of 27 years, pursuant to s 17 of the Penalties and Sentences Act 1985 (Vic) – Where minimum term expired on or about 8 May 2014 – Where in 2014 the Victorian Parliament passed the Corrections Amendment (Parole) Act 2014 which inserted section 74AA into the Corrections Act 1986 – Where section 74AA requires Adult Parole Board to not release plaintiff unless plaintiff is in imminent danger of dying or seriously incapacitated which as result of, denies plaintiff of the capacity to cause physical harm – Whether s 74AA is contrary to Chapter III of the Constitution.
A33/2016: Application to Show Cause
Catchwords:
Migration – Procedural fairness – Where plaintiff is citizen of Pakistan – Where delegate of defendant refused to grant plaintiff a Protection (Class XA) visa – Where officer of defendant’s department interviewed plaintiff – Where plaintiff was informed that the officer that interviewed plaintiff would make decision about plaintiff’s Protection visa – Where officer who did not interview plaintiff made decision to refuse to grant plaintiff - Where plaintiff declared in a statutory declaration the Taliban had killed his father – Where plaintiff subsequently provided death certificate of father – Whether delegate of defendant appropriately considered death of father.
P58/2016; M97/2016: Special Case
Catchwords:
Where plaintiffs are citizens of New Zealand – Where plaintiffs were granted a class TY subclass 444 Special Category (Temporary) visa when they each respectively last entered Australia - Where defendant cancelled plaintiffs visas under s 501(3) of the Migration Act 1958 (Cth) – Where defendant received information in accordance with s 503A(1) of the Migration Act 1958 (Cth) – Where s 503A(2) prevents defendant from disclosing confidential information to the Court – Whether s 503A(2) is invalid because it requires a Federal court to exercise judicial power in a manner which is inconsistent with the essential character of a court.
M92/2016: Application to show cause
Catchwords:
Migration – Procedural fairness – Where plaintiff is a citizen of Tonga – Where plaintiff applied for a New Zealand Citizen (Family Relationship) (Temporary) (class UP) subclass 461 visa – Where at time of application plaintiff’s spouse had returned to New Zealand – Where delegate of the Minister refused visa – Whether delegate to the Minister observed procedural fairness.
M96/2016: Demurrer
Catchwords:
Migration – Where plaintiffs arrived in Australia at Christmas Island as “unauthorised maritime arrivals” – Where plaintiffs were detained under s 189(3) of the Migration Act 1958 (Cth) – Where plaintiffs were taken to the Republic of Nauru – Where plaintiffs were then subsequently brought to Australia for medical treatment – Where plaintiffs are detained in a detention centre in Australia – Whether plaintiffs detention is beyond power.
The Senate has referred the following questions to the High Court of Australia sitting as the Court of Disputed Returns pursuant to section 376 of the Commonwealth Electoral Act 1918 (Cth).
C14/2016: Questions referred to the Court of Disputed Returns pursuant to section 376 of the Commonwealth Electoral Act 1918 (Cth)
Questions:
C15/2016: Questions referred to the Court of Disputed Returns pursuant to section 376 of the Commonwealth Electoral Act 1918 (Cth)
Questions:
The following cases have been granted special leave to appeal to the High Court of Australia.
M95/2016: [2016] HCATrans 286
Date heard: 18 November 2016 – Special leave granted.
Catchwords:
Compensation – Transport accident – Transport Accident Act 1986 (Vic) – Meaning of “serious injury” – Test for establishing whether an injury is a “serious injury” within the meaning of s 93 of the Transport Accident Act 1986 (Vic) – Application of Humphries v Poljak [1992] 2 VR 129 – Whether Court of Appeal applied correct test.
Appealed from VSC (CA): [2016] VSCA 140
S245/2016: [2016] HCATrans 245
Date heard: 14 October 2016 – Special leave granted.
Catchwords:
Competition – Trade Practices Act 1974 (Cth) – Price fixing – s 4E of the Trade Practices Act 1974 (Cth) – Meaning of a market ‘in Australia’ – Whether markets for airborne cargo out of Hong Kong, Singapore and Indonesia to ports in Australia were markets ‘in Australia’.
Appealed from FCA (FC): [2016] FCAFC 42
S248/2016: [2016] HCATrans 245
Date heard: 14 October 2016 – Special leave granted.
Catchwords:
Competition – Trade Practices Act 1974 (Cth) – Price fixing – s 4E of the Trade Practices Act 1974 (Cth) – Meaning of a market ‘in Australia’ – Whether markets for airborne cargo out of Hong Kong, Singapore and Indonesia to ports in Australia were markets ‘in Australia’.
Appealed from FCA (FC): [2016] FCAFC 42
Date heard: 7 October 2016 – Special leave granted on limited grounds.
Catchwords:
Constitutional law – s 80 of the Constitution – Judiciary Act 1903 (Cth) – Where appellant was a resident of NSW – Where appellant was charged and convicted for drug offences in Western Australia under the Misuse of Drugs Act 1981 (WA) – Where appellant was convicted by majority - Whether sections of the Misuse of Drugs Act 1981 (WA) were picked up and applied as Commonwealth Law under s 79(1) of the Judiciary Act 1903 (Cth) – Whether s 80 of the Constitution applied to the appellants trial.
Appealed from WASC (CA): [2015] WASCA 164
M143/2016: [2016] HCATrans 231
Date heard: 7 October 2016 – Special leave granted.
Catchwords:
Contract law – Construction of contract – Long term farm lease – Where planning scheme restrictions prevented freehold sale – Where parties entered into 99 year lease for total rental of $70,000 paid in full at commencement of lease – Where clause 13 referred to intention of lessor to sell and lessee to purchase freehold for consideration of $70,000 – Where clause 4 provided that lessee to pay ‘all rates taxes assessments and outgoings whatsoever excepting land tax ... payable by the Landholder or tenant’ – Whether the Court should consider parties mutual subjective intention when constructing a contract.
Appealed from VSC (CA): [2016] VSCA 23
Date determined: 1 September 2016 – Special leave granted on limited grounds.
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 NTSC (CA): [2016] NTCA 2
S226/2016: [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
M144/2016: [2016] HCATrans 248
Date determined: 14 October 2016 – Special leave granted.
Catchwords:
Criminal law – Criminal Code (Cth) s 307.1 – Intention – Factual inferential reasoning – Application of Kural v The Queen (1987) 162 CLR 502 – Whether ‘awareness of the likelihood’ can be used to establish intention under the Criminal Code (Cth).
Appealed from VSC (CA): [2016] VSCA 56
S249/2016: [2016] HCATrans 247
Date determined: 14 October 2016 – Special leave granted.
Catchwords:
Criminal law – Criminal Code (Cth) s 307.1 – Intention – Factual inferential reasoning – Application of Kural v The Queen (1987) 162 CLR 502 – Whether ‘awareness of the likelihood’ can be used to establish intention under the Criminal Code (Cth).
Appealed from NSWSC (CCA): [2016] NSWCCA 93
S85/2016: [2016] HCATrans 277
Date heard: 16 November 2016 – Special leave granted.
Catchwords:
Criminal law – Statutory construction – Crimes Act 1900 (NSW) – Where it was alleged by prosecution that appellant transmitted HIV to complainant by consensual intercourse – Where appellant was convicted of maliciously inflicted grievous bodily harm, contrary to s 35(1)(b) of Crimes Act 1990 (NSW) – Where jury acquitted appellant on principle count of maliciously causing the complainant to contract a grievous bodily disease with intent to cause that result, contrary to s 36 of Crimes Act 1900 – Whether “intent” requires the application of force.
Appealed from NSWSC (CCA): [2015] NSWCCA 323
S124/2016: [2016] HCATrans 279
Date heard: 16 November 2016 – Special leave granted on limited grounds.
Catchwords:
Criminal law – Joint criminal enterprise – Where death caused by ignition of ring burner by deceased – Where evidence showed deceased and appellant had been involved in the production of prohibited drugs – Whether ignition of ring burner within criminal enterprise – Whether act “malicious” as required for constructive or felony murder under Crimes Act 1990 (NSW).
Appealed from NSWSC (CCA): [2016] NSWCCA 51
B34/2016: [2016] HCATrans 280
Date heard: 16 November 2016 – Special leave granted on limited grounds.
Catchwords:
Criminal law – Criminal Code (QLD) – Where jury found appellant guilty of manslaughter – Where appellant killed deceased whilst allegedly trying to avoid him – Whether application of s 31(1)(c) of the Criminal Code (QLD) was excluded by s 31(2).
Appealed from QSC (CA): [2016] QCA 124
M249/2015: [2016] HCATrans 283
Date heard: 18 November 2016 – Special leave granted.
Catchwords:
Criminal law – Evidence – Identification Evidence – Where respondent was identified using a photoboard – Evidence Act 2008 (Vic) – Where respondent was convicted of intentionally causing serious injury and making a threat to kill – Where Court of Appeal by majority quashed conviction and ordered a new trial – Whether Court of Appeal erred in in holding that the trial judge erred in failing to exercise discretion to exclude identification evidence.
Appealed from VSC (CA):
[2015] VSCA
311
Return to Top
M61/2016: [2016] HCATrans 284
Date heard: 18 November 2016 – Special leave granted.
Catchwords:
Criminal law – Jury directions – Where respondent was convicted of murder – Where respondent admitted to the unlawful killing of the victim – Where issue at trial was whether respondent had requisite intention – Where trial judge explained to jury ‘beyond reasonable doubt’ – Where Court of Appeal allowed appeal and ordered re-trial – Whether Court of Appeal erred in allowing appeal
Appealed from VSC (CA): [2016] VSCA 67
S247/2016: [2016] HCATrans 243
Date heard: 14 October 2016 – Special leave granted.
Catchwords:
Family law – Children – Parenting orders – Family Law Act 1975 (Cth) – Where children retained in United States after travelling there for a holiday – Where retention in breach of order for equal shared parental responsibility – Where the father appeals against interim orders which require him to return the children to Sydney pending determination of whether the children are permitted to relocate to the United States – Where children, aged almost 15 and almost 17, express desire to stay in the United States – Whether the trial judge failed to consider and evaluate the relevant statutory considerations – Whether the trial judge gave adequate weight to the views expressed by the children – Consideration of living arrangements on the children’s return – Whether the orders made by the primary judge were in the best interests of the children – Whether trial judge was required to make further findings before issuing parenting order.
Appealed from FamFC (FC): [2016] FamCAFC 48
Date heard: 2 September 2016 – Special leave granted.
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
S154/2016; S155/2016: [2016] HCATrans 276
Date heard: 16 November 2016 – Special leave granted.
Catchwords:
Migration – Statutory interpretation – Migration Act 1958 (Cth) – s 36(2)(aa), complementary protection criteria – Where appellants are nationals of Sri Lanka – Where appellants left Sri Lanka illegally – Where Tribunal accepted that it was likely that the appellants would be jailed upon return to Sri Lanka – Whether the Full Court of the Federal Court erred in holding that the requirement of international infliction of “cruel and inhuman treatment of punishment” or “degrading treatment or punishment” requires proof of a subjective intention.
Appealed from FCA (FC): [2016] FCAFC 69
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
M154/2016: [2016] HCATrans 263
Date determined: 10 November 2016 – Special leave granted.
Catchwords:
Procedure – Where money judgment in Australian Court – Where judgment creditor’s wish to enforce judgment in foreign country – Where two applications for certificate under s15(1) Foreign Judgments Act 1991 (Cth) – Where certificates issued – Where judgment debtor bankrupt at time applications made – Where judgment amounted a ‘probable debt’ – Whether applications precluded by s 15(2) Foreign Judgments Act 1991 (Cth) on basis of s 58(3) of Bankruptcy Act 1966 (Cth).
Appealed from VSC (CA): [2016] VSCA 179
Date determined: 10 November 2016 – Special leave granted.
Catchwords:
Statutory Construction – Mining Act 1978 (WA) – Meaning of ‘accompanied by’ in s 74(1) – Whether lodgement of documents specified in s 74(1)(ca)(ii) a jurisdictional fact or a condition of validity.
Appealed from WASC (CA): [2016] WASCA 116
S177/2016: [2016] HCATrans 275
Date heard: 16 November 2016 – Special leave granted.
Catchwords:
Taxation – International Organisations (Privileges and Immunities) Act 1963 (Cth) – Where respondent is civil engineer engaged by the United Nations – Where under the Act and Regulations made under the Act a person who “holds an office in an international organisation” engages taxation exemptions - Whether respondent is a person who “holds and office in an international organisation” under the Act and Regulations made under the Act.
Appealed from FCA(FC): [2016] FCAFC 79
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
Consent orders were made on 11 November 2016.
S250/2016: [2016] HCATrans 268
Date heard: 14 October 2016 – Special leave granted on limited grounds.
Catchwords:
Criminal law – Sentencing – Where appellant pleaded guilty to multiple child sexual assault offences against nine victims – Where Court of Appeal erred in determining an aggregate sentence on the basis that Count 9 of the first indictment was an offence contrary to s 61M(2) of the Crimes Act 1900 (NSW) – Where Count 9 was an offence under s 61M(1) – Where s 61M(1) and s 61M(2) have different maximum sentences.
Appealed from NSWSC (CCA): [2016] NSWCCA 1
Consent orders were made on 11 November 2016.
Publication of Reasons: 10 November 2016
|
No. |
Applicant |
Respondent |
Court appealed from |
Result
|
|---|---|---|---|---|
|
|
Patsuris
|
Gippsland
and Southern Rural Water
Corporation
(M75/2016) |
Supreme
Court of Victoria (Court of
Appeal)
[2016] VSCA 109 |
|
|
|
MZAGE
|
Minister
for Immigration and Border Protection &
Anor
(M84/2016) |
Federal
Court of
Australia
[2016] FCA 630 |
|
|
|
Ulster
|
Viney
(M109/2016) |
Full
Court of the Family Court of Australia
|
|
|
|
Mammoth
Investments Pty Ltd
|
Granite
Hill Pty Ltd &
Ors
(P31/2016) |
Supreme
Court of Western Australia (Court of
Appeal)
[2016] WASCA 84 |
|
|
|
Esperance
Cattle Company Pty Ltd
|
Granite
Hill Pty Ltd &
Ors
(P32/2016) |
Supreme
Court of Western Australia (Court of
Appeal)
[2016] WASCA 84 |
|
|
|
Lobban
|
Minister
for
Justice
(P42/2016) |
Full
Court of the Federal Court of
Australia
[2016] FCAFC 109 |
|
|
|
Great
Investments Ltd
& Ors |
Anthony
John Warner & Steven Kugel in their Capacities as Joint & Several
Liquidators of Bellpac Pty Ltd (Receivers & Managers Appointed) (in
Liquidation) &
Anor
(S179/2016) |
Full
Court of the Federal Court of
Australia
[2016] FCAFC 85 |
|
|
|
DB
|
Secretary,
Department of Family and Community Services &
Ors
(S131/2016) |
Supreme
Court of New South Wales (Court of
Appeal)
[2016] NSWCA 63 |
|
|
|
Chidiac
|
The
Queen
(S190/2016) |
Supreme
Court of New South Wales (Court of Criminal
Appeal)
[2016] NSWCCA 120 |
|
|
|
Kowalski
|
Stanley
and Partners &
Anor
(A34/2016) |
Full
Court of the Supreme Court of South
Australia
[2016] SASCFC 74 |
|
|
|
Dupois
|
Queensland
Television Ltd
& Ors (B43/2016)
|
Supreme
Court of Queensland (Court of Appeal)
[2016]
QCA 182
|
|
|
|
Dunkerley
|
Comcare
(C6/2016) |
Federal
Court of
Australia
[2015] FCA 1519 |
|
|
|
SZUZK
& Anor
|
Minister
for Immigration and Border Protection &
Anor
(S156/2016) |
Federal
Court of
Australia
[2016] FCA 498 |
|
|
|
SZVED
|
Minister
for Immigration and Border Protection &
Anor
(S201/2016) |
Federal
Court of
Australia
[2016] FCA 907 |
|
|
|
Khan
|
Minister
for Immigration and Border Protection &
Anor
(S203/2016) |
Federal
Court of
Australia
[2016] FCA 877 |
|
|
|
SZVRM
|
Minister
for Immigration and Border Protection &
Anor
(S206/2016) |
Federal
Court of
Australia
[2016] FCA 919 |
|
|
|
SZVLY
|
Minister
for Immigration and Border Protection &
Anor
(S212/2016) |
Federal
Court of
Australia
[2016] FCA 940 |
|
|
|
Gibson
|
Drumm
(S221/2016) |
Supreme
Court of New South Wales (Court of
Appeal)
[2016] NSWCA 206 |
|
|
|
BMU15
|
Minister
for Immigration and Border Protection &
Anor
(S222/2016) |
Federal
Court of
Australia
[2016] FCA 964 |
|
|
|
CER15
|
Minister
for Immigration and Border Protection &
Anor
(S224/2016) |
Federal
Court of
Australia
[2016] FCA 1057 |
Publication of Reasons: 11 November 2016
|
No. |
Applicant |
Respondent |
Court appealed from |
Result
|
|---|---|---|---|---|
|
|
Mowen
|
Australian
Electoral Commission
(B47/2016)
|
Supreme
Court of Queensland (Court of Appeal)
[2016]
QCA 152
|
Application
dismissed
|
|
|
Luck
|
Chief
Executive Officer of Centrelink (Freedom of Information Principal
Officer)
(M216/2015) |
Full
Court of the Federal Court of
Australia
[2015] FCAFC 75 |
|
|
|
Luck
|
Chief
Executive Officer of Centrelink (Freedom of Information Principal
Officer)
(M217/2015) |
Full
Court of the Federal Court of
Australia
[2015] FCAFC 112 |
|
|
|
In the
matter of an application for leave to appeal by Michael Van Thanh Quach
(C8/2016) |
High
Court of
Australia
[2016] HCATrans 104 |
||
|
|
In the
matter of an application for leave to appeal by Michael Van Thanh Quach
(C9/2016) |
High
Court of
Australia
[2016] HCATrans 104 |
||
|
|
Luck
|
University
of Southern Queensland &
Anor
(M49/2015) |
Application
for removal
|
|
|
|
Luck
|
University
of Southern Queensland &
Anor
(M53/2015) |
Application
for removal
|
|
|
|
Luck
|
Chief
Executive Officer of Centrelink &
Anor
(M7/2016) |
Application
for removal
|
|
|
|
Luck
|
Secretary
of Department of Human Services &
Ors
(M123/2016) |
Application
for removal
|
|
|
|
Spilios
|
The
Queen
(A10/2016) |
Supreme
Court of South Australia (Court of Criminal
Appeal)
[2016] SASCF 6 |
|
|
|
Warnakulasooriya
& Anor
|
Minister
for Immigration and Border Protection &
Anor
(M59/2016) |
Federal
Court of
Australia
[2016] FCA 341 |
|
|
|
Gall
|
The
Queen
(S145/2016) |
Supreme
Court of New South Wales (Court of Criminal
Appeal)
[2016] NSWCCA 82 |
|
|
|
Millar
& Anor
|
Commissioner
of Taxation
(S191/2016)
|
Full
Court of the Federal Court of Australia
[2016]
FCAFC 94
|
Application
dismissed with costs
|
|
|
Taluja
|
Shree
Shirdi Sai Sansthan Sydney
Limited
(S196/2016) |
Supreme
Court of New South Wales (Court of
Appeal)
[2016] NSWCA 158 |
|
Publication of Reasons: 16 November 2016
|
No. |
Applicant |
Respondents |
Court appealed from |
Result
|
|---|---|---|---|---|
|
|
AYJ15
|
Minister
for Immigration and Border Protection
& Anor (B45/2016)
|
Federal
Court of Australia
[2016 ]
FCA 863
|
Application
dismissed
|
|
|
Lindsey
|
Christie
&
Anor
(C7/2016) |
Full
Court of the Family Court of Australia
|
|
|
|
CZBO
|
Minister
for Immigration and Border Protection
& Ors (C11/2016) |
High
Court of
Australia
[2016] HCATrans 112 |
|
|
|
MZAEU
|
Minister
for Immigration and Border Protection &
Anor
(M118/2016) |
Full
Court of the Federal Court of
Australia
[2016] FCAFC 100 |
|
|
|
Quickley
|
Pelissier
(P39/2016) |
Full
Court of the Family Court of Australia
|
|
|
|
Malone
|
The State
of Western
Australia
(P40/2016) |
Supreme
Court of Western Australia (Court of
Appeal)
[2015] WASCA 188 |
|
|
|
Saunders
|
Public
Trustee &
Ors
(P41/2016) |
Supreme
Court of Western Australia (Court of
Appeal)
[2015] WASCA 203 |
|
|
|
SZTAN
|
Minister
for Immigration and Border Protection
& Anor (S186/2016) |
Federal
Court of
Australia
[2016] FCA 705 |
|
|
|
SZUUO
|
Minister
for Immigration and Border Protection
& Anor (S210/2016) |
Federal
Court of
Australia
[2016] FCA 913 |
|
|
|
ACF16
|
Minister
for Immigration and Border Protection
& Anor (S217/2016) |
Federal
Court of
Australia
[2016] FCA 982 |
|
|
|
Kitoko
|
Mirvac
Real Estate Pty Limited &
Anor
(S218/2016) |
Supreme
Court of New South Wales (Court of
Appeal)
[2016] NSWCA 201 |
|
|
|
BAF15
|
Minister
for Immigration and Border Protection
& Anor (S219/2016) |
Federal
Court of
Australia
[2016] FCA 958 |
|
|
|
Prasad
|
Ingham's
Enterprises
Pty Ltd (B44/2016)
|
Supreme
Court of Queensland (Court of Appeal)
[2016]
QCA 147
|
Application
dismissed
with costs |
|
|
Dunstan
|
Higham
&
Ors
(C5/2016) |
Supreme
Court of the Australian Capital Territory (Court of
Appeal)
[2016] ACTCA 20 |
|
|
|
MZAMH
|
Minister
for Immigration and Border Protection
& Anor (M72/2016) |
Federal
Court of
Australia
[2016] FCA 447 |
|
|
|
Jones
(a Pseudonym) |
Smith
(a Pseudonym) (M113/2016) |
Supreme
Court of Victoria (Court of
Appeal)
[2016] VSCA 178 |
|
|
|
Martinaj
|
Minister
for Immigration and Border Protection
& Anor (M115/2016) |
Federal
Court of
Australia
[2016] FCA 868 |
|
|
|
Campari
America LLC
|
Lodestar
Anstalt
(S189/2016) |
Full
Court of the Federal Court of
Australia
[2016] FCAFC 92 |
16 November: Sydney
|
No. |
Applicant |
Respondent |
Court appealed from |
Results
|
|---|---|---|---|---|
|
|
Dean
|
The
Queen
(S118/2016) |
Supreme
Court of New South Wales (Court of Criminal
Appeal)
[2015] NSWCCA 307 |
Publication of Reasons: 18 November 2016
|
No. |
Applicant |
Respondent |
Court appealed from |
Result
|
|---|---|---|---|---|
|
|
Duncan
& Anor
|
Big
Country Developments
Pty Limited (S200/2016)
|
Supreme
Court of New South Wales (Court of Appeal)
[2016]
NSWCA 163
|
18 November 2016: Melbourne
|
No. |
Applicant |
Respondent |
Court appealed from |
Results
|
|---|---|---|---|---|
|
|
Spence
|
The
Queen
(M78/2016) |
Supreme
Court of Victoria
(Court of Appeal) [2016] VSCA 113 |
|
|
|
Lang
|
Hawker
Pacific Pty
Limited
(P3/2016) |
Supreme
Court of Western Australia (Court of
Appeal)
[2015] WASCA 256 |
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