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No. 10
Administrative Law
Date heard: 26 September 2006. Judgment reserved.
Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ.
CATCHWORDS
Administrative law – Section 25A of the Insurance Act 1973 (Cth) confers power upon the Australian Prudential Regulation Authority (“APRA”) to disqualify a person from being or acting in certain positions in the insurance industry – Section 6M(b) of the Royal Commissions Act 1902 (Cth) provides that “any person who uses, causes or inflicts, any violence, punishment, damage, loss, or disadvantage to any person for or on account of ... any evidence given by him or her before any Royal Commission ... is guilty of an indictable offence” – Whether s 6M(b) prevents APRA from relying on evidence given by a person to a Royal Commission when deciding whether to disqualify that person pursuant to s 25A.
Appealed from FCA FC. [2006] FCAFC 37; (2006) 150 FCR 469; (2006) 14 ANZ Ins Cas 61-692.
Date heard: 1-2 August 2006. Judgment reserved.
Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ.
CATCHWORDS
Constitutional law – Constitution, s 51(xiv) – Victorian legislative scheme creates an obligation for employers in Victoria to insure with the Victorian WorkCover Authority in respect of liabilities under the Accident Compensation Act 1985 (Vic) to compensate employees for injury and loss and for certain other liabilities – Div 2 of Pt VIII of the Safety, Rehabilitation and Compensation Act 1988 (Cth) creates a Commonwealth scheme under which corporations may be exempted from compulsory State workers’ compensation insurance – Whether the Commonwealth scheme is invalid as a law “touching or concerning” State insurance because it removes a requirement imposed by the State for compulsory insurance with the State – Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 104(1), 108(1) and 108A(7)(a).
This appeal from the Federal Court of Australia was removed into the High Court pursuant to s 40 of the Judiciary Act 1903 (Cth).
Date heard: 7-8 November 2006. Judgment reserved.
Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ.
CATCHWORDS
Constitutional law – Norfolk Island has been a territory of the Commonwealth of Australia (“Commonwealth”) since 1 July 1914 – The Commonwealth governs Norfolk Island under the provisions of the Norfolk Island Act 1979 (Cth) (“1979 Act”) – Part V of that Act provides for the constitution and membership of the Legislative Assembly of Norfolk Island – Section 3 of the Norfolk Island Amendment Act 2004 (Cth) (“2004 Act”) gives effect to Schedule 1 of that Act – Schedule 1 amends the 1979 Act so as to, among other things, provide that a person must be an Australian citizen to be entitled to enrol and to be qualified to be a candidate for election, and that a member vacates office if he or she ceases to be an Australian citizen – Whether the amendments dealing with Australian citizenship made to the 1979 Act by Schedule 1 of the 2004 Act are valid.
This matter was brought in the original jurisdiction of the High Court.
ING Investment Management LLC v Margaretic & Anor (S209/2006)
Date heard: 7-8 August 2006. Judgment reserved.
Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ.
CATCHWORDS
Corporations – Whether s 563A of the Corporations Act 2001 (Cth) applies only to claims by shareholders against a company arising from the acquisition of shares in the company by subscription – Whether s 563A applies equally to claim by shareholders against a company arising from the acquisition of shares by transfer – Whether leave should be granted to reargue Webb Distributors (Aust) Pty Ltd & Ors v State of Victoria & Anor (1993) 179 CLR 15.
Appealed from FCA FC. [2006] FCAFC 17; (2006) 149 FCR 227; (2006) 226 ALR 42; (2006) 56 ACSR 585; (2006) 24 ACLC 256.
Date heard: 14 November 2006. Judgment reserved.
Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ.
CATCHWORDS
Courts and judicial system – Inferior courts − District Court of New South Wales − Jurisdiction − Taxation matters − State law conferring jurisdiction on District Court to hear and determine matters which, if brought in Supreme Court, would be assigned to Common Law Division − Subsequent reassignment from Common Law Division to Equity Division of taxation matters brought in Supreme Court − Whether jurisdiction of District Court to hear and determine taxation matters affected − Whether jurisdiction of District Court determined as at date of enactment of State law or from time to time − Income Tax Assessment Act 1936 (Cth), s 222AOC − District Court Act 1973, s 41(1)(a) − Courts Legislation Further Amendment Act 1997, Sch 1.
Taxation – Penalty − Whether “a tax, fee, duty or other impost” − Income Tax Assessment Act 1936 (Cth), s 222AOC − Supreme Court Rules 1970 (NSW), Pt 12, r 5(B)(vi).
Appealed from NSW CA. [2004] NSWCA 474; (2004) 62 NSWLR 132; (2004) 58 ATR 179; 2005 ATC 4025.
See also Intellectual Property – Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd & Anor (S54/2006).
Hartwick v The Queen (M157/2005)
Hartwick v The Queen (M158/2005)
Date heard: 8-9 August 2006. Applications for special leave heard as on appeal and dismissed. Written reasons of the Court to be delivered at a future date.
Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ.
CATCHWORDS
Criminal law – Three accused alleged to have jointly assaulted man who later died from wounds inflicted during the assault – Each convicted of murder – One possible basis for conviction relied upon the doctrine of “extended common purpose” – Whether “extended common purpose” as a head of complicity at common law should be narrowed or abolished.
Appealed from Vic CA. [2005] VSCA 264; (2006) 159 A Crim R 1.
Date heard: 16 November 2006. Application for special leave heard as on appeal. Judgment reserved.
Gleeson CJ, Gummow, Hayne, Callinan and Crennan JJ.
CATCHWORDS
Criminal law – Respondent convicted of murder – Court of Appeal of the Australian Capital Territory, by majority, set aside conviction – Whether the Court of Appeal erred by holding that it was not open to the jury to find that respondent’s guilt had been proven beyond reasonable doubt – Whether the Court of Appeal erred by taking into account factual issues that were not the subject of evidence at trial – Whether correct test was that set out in M v The Queen (1994) 181 CLR 487.
Appealed from ACT CA. [2005] ACTCA 48.
Date heard: 21 June 2006. Judgment reserved.
Kirby, Hayne, Callinan, Heydon and Crennan JJ.
CATCHWORDS
Criminal law – Sexual offences – Directions to jury – Whether trial judge gave appropriate directions to the jury regarding consideration of the uncorroborated testimony of a youthful complainant – What standard of proof is required before a jury can accept that allegations of uncharged acts made during a witness’ testimony did occur – What use can a jury make of evidence of uncharged acts which it accepts to the relevant standard.
Appealed from Qld CA. [2005] QCA 160; (2005) 153 A Crim R 129.
Date heard: 31 August 2006. Judgment reserved.
Gleeson CJ, Gummow, Kirby, Heydon and Crennan JJ.
CATCHWORDS
Damages – Aggravated and exemplary damages – Police officer trespasses upon respondent occupier’s land and assaults respondent’s guest – Respondent successfully sues police officer for trespass to land and assault of respondent’s guest – Trial judge awarded general damages and exemplary damages for the assault and aggravated damages and exemplary damages for the trespass to land – New South Wales Court of Appeal increased quantum of exemplary damages for assault and also awarded aggravated damages in respect of the assault – Whether award of aggravated or exemplary damages or both is justified for trespass to land where the infringed interest of the occupier is that the occupier’s guests be undisturbed while on the premises – Whether an award of general damages for trespass to land involves an element of punishment, deterrence or rebuke so that the award of aggravated and exemplary damages in addition to general damages amounts to double punishment.
Damages – Aggravated and exemplary damages – Police officer trespasses upon respondent occupier’s land and assaults respondent’s guest – Respondent successfully sues police officer for trespass to land and assault of respondent’s guest – New South Wales Court of Appeal finding superior officers had provided inadequate re-education for police officer – Whether inadequate re-education supports award of exemplary damages.
Appealed from NSW CA. [2005] NSWCA 445; (2005) 65 NSWLR 168.
The Queen v Cornwell (S281/2006)
The Queen v Cornwell (S282/2006)
Date heard: 4 October 2006. Judgment reserved.
Gleeson CJ, Gummow, Kirby, Heydon and Crennan JJ.
CATCHWORDS
Evidence – Accused convicted following retrial of conspiracy to import into Australia a commercial quantity of cocaine contrary to s 233B(1)(k) of the Customs Act 1901 (Cth) – At accused’s first trial, accused gave evidence on the basis that he would be granted a certificate under s 128 of the Evidence Act 1995 (NSW) – At the retrial, the Crown sought to tender the transcript of accused’s evidence given in cross-examination in the first trial – The trial judge ruled that the cross-examination was admissible – Whether s 128(8) of the Evidence Act 1995 (NSW) confers on an accused giving evidence in a criminal trial privilege against self-incrimination when giving evidence about relevant facts even if that evidence tends to reveal that accused is guilty of an offence other than that with which he stands charged – Whether s 128(7) of the Evidence Act 1995 (NSW) applies to retrials of a criminal offence – Whether the s 128 certificate issued in the first trial applied to the evidence tendered by the Crown in the retrial.
Evidence – Where accused wishes to give evidence in examination in chief, but only if a certificate is issued in respect of it – Whether accused had objected to giving evidence pursuant to s 128(1) of the Evidence Act 1995 (NSW) – Whether s 128 applied at all in the proceedings – Whether possible to object to a question asked of accused by his own counsel in examination in chief.
Evidence – The s 128 certificate was not physically issued during the course of the first trial – Once the second trial had commenced, the parties approached the trial judge of the first trial regarding the issue of the certificate – The trial judge of the first trial granted the certificate – Whether the trial judge of the first trial was bound to issue the s 128 certificate.
Appealed from NSW CCA. [2006] NSWCCA 116; (2006) 160 A Crim R 243; (2006) 198 FLR 406.
Date heard: 9-10 August 2006. Judgment reserved.
Gleeson CJ, Gummow, Kirby, Callinan and Heydon JJ.
CATCHWORDS
Immigration – Refugees – Whether appellant is a refugee – Appellant claiming a well-founded fear of persecution, if returned to Albania, by reason of his fear of revenge killing in blood feud – Meaning of “particular social group” in Art 1A(2) of the Convention Relating to the Status of Refugees 1951 – Whether a family group may constitute a “particular social group” – Whether appellant’s fear of persecution is to be disregarded under s 91S of the Migration Act 1958 (Cth).
Appealed from FCA FC. [2004] FCAFC 266.
Date heard: 28 September 2006. Judgment reserved.
Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ.
CATCHWORDS
Immigration – Iranian national applied to Minister for Immigration and Multicultural and Indigenous Affairs for protection visa – Protection visa not granted – Refugee Review Tribunal (“RRT”) affirmed decision not to grant visa – RRT concluded that specific aspects of appellant’s claim were implausible – Whether RRT denied appellant procedural fairness by reaching those conclusions based upon material which went beyond general knowledge without advising appellant of those conclusions and giving the opportunity to be heard in respect of them – Whether RRT denied appellant procedural fairness by failing to reveal critical or unusual factors that formed the basis of its decision and give appellant the opportunity to be heard in respect of them – Whether RRT merely did not reveal its thought processes and reasoning to appellant prior to making its decision.
Appealed from FCA. [2006] FCA 59.
Date heard: 9 August 2006. Judgment reserved.
Gleeson CJ, Gummow, Kirby, Callinan and Heydon JJ.
CATCHWORDS
Immigration – Refugees – Whether appellant is a refugee – Appellant claiming a well-founded fear of persecution, if returned to Sri Lanka, by reason of his political opinion – Refugee Review Tribunal accepted that appellant may have received intimidating and threatening telephone calls and letters and been assaulted – Whether the threatening telephone calls and letters amounted to “a threat to the person’s life or liberty” within s 91R(2)(a) of the Migration Act 1958 (Cth) – Whether it is correct to treat the question of “serious harm” under s 91R in the same way as the concept of “persecution” is approached under the Convention Relating to the Status of Refugees 1951.
Appealed from FCA. [2004] FCA 1495; (2004) 139 FCR 405; (2004) 85 ALD 490.
Date heard: 24-25 October 2006. Judgment reserved.
Gleeson CJ, Gummow, Kirby, Heydon and Crennan JJ.
CATCHWORDS
Intellectual property – Copyright and designs – Overlap between copyright and designs protection – Meaning of “work of artistic craftsmanship” – Whether the plugs, moulds, mouldings and finally produced hull and accessories of a racing sail boat constituted works of artistic craftsmanship – Relationship between ss 77(1)(a) and 77(1)(c) –Whether a “work of artistic craftsmanship” within the exception in s 77(1)(a) should manifest an intention to create an artistic object to be evaluated aesthetically per se as a work of artistic craftsmanship – Whether such a work must be the product of a craftsman exercising craftsmanship in an artistic manner with an aim or intent of producing an object, whether functional or not, which is a work of applied art, to be valued chiefly and principally for its aesthetic qualities.
Intellectual property – Copyright – Whether it is sufficient for a work to be a “work of artistic craftsmanship” within the exception in s 77(1)(a) if the work fell within the definition of “artistic work” in s 10 of the Copyright Act 1968 (Cth) as it stood before amendment by the Designs (Consequential Amendments) Act 2003 (Cth).
Appealed from FCA FC. [2005] FCAFC 257; (2005) 149 FCR 193; (2005) 227 ALR 381; (2005) 68 IPR 114; (2006) AIPC 92-161.
Date heard: 15 June 2006. Judgment reserved.
Gummow ACJ, Kirby, Hayne, Callinan and Crennan JJ.
CATCHWORDS
Intellectual property – Copyright – Infringement – Architect drew up plans for development application – Planning approval received for development proposed by those plans – Site sold without express licence to use plans – Whether new owner of site can reproduce plans by constructing development on plans without infringing copyright.
Courts and judicial system – Apprehension of bias – Criticism by judge of parties and their case – Exchange between bench and counsel – Interference during witnesses’ evidence – Whether trial miscarried on the ground of apprehended bias.
Appealed from FCA FC. [2005] FCAFC 138; (2005) 144 FCR 264; (2005) 219 ALR 373; (2005) 66 IPR 69; (2005) AIPC 92-119.
Date heard: 6-7 September 2006. Judgment reserved.
Gummow, Hayne, Callinan, Heydon and Crennan JJ.
CATCHWORDS
Intellectual property – Patents – Lack of inventive step – Whether Full Court of Federal Court of Australia erred in finding that certain claims in patent lacked an inventive step.
Intellectual property – Patents – Lack of inventive step – Obviousness – Whether patent specification contains a corollary admission concerning the common general knowledge – Whether it is permissible to find a lack of inventive step where the only evidentiary basis for that finding is the corollary admission contained in the specification of the patent.
Appealed from FCA FC. [2005] FCAFC 255; (2005) 226 ALR 70; (2005) 68 IPR 459; (2006) AIPC 92-160.
Date heard: 8 November 2006. Judgment reserved.
Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ.
CATCHWORDS
Limitation of actions – Respondent was negligently advised in 1965 that he was not eligible to join the statutory superannuation fund for appellant’s employees that was established by the Superannuation Act 1922 (Cth) because he was a temporary employee – From 1 July 1976, the Superannuation Act 1976 (Cth) permanently prevented respondent from joining that fund – On 24 March 1987, respondent became a permanent employee and joined the superannuation scheme for appellant’s employees provided for in the Superannuation Act 1976 (Cth) – Whether appellant’s cause of action for negligent misstatement accrued on 1 July 1976 with the commencement of the Superannuation Act 1976 (Cth) – Whether appellant’s cause of action accrued on 24 March 1987 when he joined the superannuation scheme – Whether appellant’s cause of action did not accrue until his retirement – Whether there was deliberate concealment of a fact relevant to a cause of action such that s 33 of the Limitation Act 1985 (ACT) applies – Limitation Act 1985 (ACT), ss 11(1) and 33.
Appealed from ACT CA. [2006] ACTCA 7.
Date heard: 29 August 2006. Judgment reserved.
Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ.
CATCHWORDS
Practice and procedure – Exercise of federal jurisdiction by State courts – Where an application pursuant to s 588FF(1) of the Corporations Act 2001 (Cth) (“Act”) commenced in the District Court of New South Wales – Where the action taken to have been dismissed by operation of Pt 18 r 9 of the District Court Rules 1973 (NSW) (“Rules”) – Where application made pursuant to Pt 3 r 2 of the Rules to extend time for compliance with Pt 18 r 9 – Whether Pt 3 r 2 of the Rules is picked up by s 79 of the Judiciary Act 1903 (Cth) so as to be capable of exercise in circumstances where s 588FF(3) of the Act provides that an application under s 588FF(1) may only be made within a certain period, which has expired – Whether s 588FF(3) is a law of the Commonwealth which has “otherwise provided” to Pt 3 r 2 within the meaning of s 79 of the Judiciary Act 1903 (Cth).
Appealed from NSW CA. [2005] NSWCA 135; (2005) 53 ACSR 442; (2005) 23 ACLC 798.
Date heard: 15 November 2006. Judgment reserved.
Gleeson CJ, Kirby, Hayne, Callinan and Crennan JJ.
CATCHWORDS
Practice and procedure – Legal professional privilege – A person communicated information to his solicitor for communication to law enforcement authorities on condition that the solicitor would not reveal the person’s identity – New South Wales Crime Commission summonsed the solicitor and required the solicitor to provide name and address of former client – Solicitor refused on ground of legal professional privilege – Whether name and address of former client was or was part of a “privileged communication” within s 18B(4) of the New South Wales Crime Commission Act 1985 (NSW) – Whether the member of the New South Wales Crime Commission could require the solicitor to disclose the name and address of former client – Whether the lawyer had a “reasonable excuse” under s 18(2) of the New South Wales Crime Commission Act 1985 (NSW) for refusing to answer questions seeking the name and address of his former client.
Appealed from NSW CA. [2004] NSWCA 445.
Date heard: 25 October 2006. Judgment reserved.
Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ.
CATCHWORDS
Sentencing – Appellant was found guilty of two counts of murder and one of rape in 1984 – Section 18 of the Sentencing (Crime of Murder) and Parole Reform Act 2003 (NT) (“Act”) deemed that, where a prisoner was serving a life sentence for two or more convictions of murder, the prisoner’s sentence included a non-parole period of 25 years – Section 19 of the Act authorises the Director of Public Prosecutions to apply to the Supreme Court for an order that a non-parole period not be fixed in relation to a prisoner to whom section 18 applies – Whether Supreme Court required to give effect to ordinary sentencing principles after being satisfied pursuant to section 19(5) of the Act that the level of the offender’s culpability requires the offender to be imprisoned without the possibility of parole – Whether Supreme Court must be satisfied beyond reasonable doubt that the level of the offender’s culpability required the offender to be imprisoned without the possibility of release on parole.
Appealed from NT CCA. [2005] NTCCA 18; (2005) 16 NTLR 117; (2005) 159 A Crim R 183.
Date heard: 14 June 2006. Judgment reserved.
Gummow ACJ, Hayne, Callinan, Heydon and Crennan JJ.
CATCHWORDS
Taxation – Income tax – Income according to ordinary concepts – Capital gain – “CGT event H2” as defined in s 104-155(1) of the Income Tax Assessment Act 1997 (Cth) – Act, transaction or event occurring in relation to a CGT asset – “In relation to” – Nature of relationship – Requirement for asset existing at time of event – Taxpayer’s asset – Announcement by listed public company of 5% of issued share capital – Sell Back Rights issued on 1 for 20 basis – Taxpayer shareholder in company – Taxpayer giving no direction to acquire or exercise the Sell Back Rights to which she was entitled – Sell Back Rights traded on Australian Stock Exchange – Absent direction taxpayer entitled to proceeds of sale of Sell Back Rights at conclusion of limited period of trading according to pre-existing formula – Whether entitlement created in respect of Sell Back Rights and share of proceeds of sale thereof was income according to ordinary concepts – Whether stock market value of taxpayer’s unrealised Sell Back Rights subject to capital gains tax – Whether proceeds represented a capital gain.
Appealed from FCA FC. [2005] FCAFC 147; (2005) 144 FCR 514; (2005) 225 ALR 1; (2005) 60 ATR 275; 2005 ATC 4658.
See also Courts and Judicial System – Forsyth v Deputy Commissioner of Taxation (S8/2005).
Date heard: 5-6 September 2006. Judgment reserved.
Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ.
CATCHWORDS
Torts – Malicious prosecution – Reasonable and probable cause to lay charge – Whether reasonable prosecutor exercising “prudence and judgment” would have believed the charge was warranted – Meaning of “belief”– Malice – Commonwealth Life Assurance Society Ltd v Brain (1935) 53 CLR 343 – Mitchell v Heine & Son Ltd (1938) 38 SR (NSW) 466.
Appealed from NSW CA. [2005] NSWCA 292; (2005) 63 NSWLR 681.
Date heard: 30 August 2006. Judgment reserved.
Gleeson CJ, Kirby, Hayne, Callinan and Crennan JJ.
CATCHWORDS
Torts – Non-delegable duty of care – Whether the duty of care owed by a road authority to road users is non-delegable – Whether a road authority is liable for the negligent road maintenance work of a contractor engaged by the road authority.
Appealed from NSW CA. [2005] NSWCA 432.
Date heard: 9 November 2006. Judgment reserved.
Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ.
CATCHWORDS
Torts – Negligence – Respondent police officer involved in incident in which she was required to assist a medical doctor to treat a stabbing victim and also to obtain a description of the victim’s attacker – Other nearby police officers alleged to have had capacity to provide help with these tasks and emotional support to respondent but did not do so – Respondent suffered post traumatic stress disorder as a result of involvement in incident – Whether appellant breached duty of care to respondent by failing to provide a safe system of work – Whether appellant’s duty of care included a duty to ensure one employee would take positive action to prevent injury to another employee – Whether injury suffered by respondent was reasonably foreseeable – Whether Wyong Shire Council v Shirt (1980) 146 CLR 40 should be overruled.
Appealed from NSW CA. [2006] NSWCA 64; (2006) 155 IR 54; (2006) 3 DDCR 510.
Date heard: 5 October 2006. Judgment reserved.
Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ.
CATCHWORDS
Trade and commerce – Misleading or deceptive conduct – Respondent retained WSA Online Limited (“WSA”) to design and construct a website – Appellants were employed by WSA – Appellants made statements to respondent in the course of their employment by WSA – WSA found to have misled or deceived respondent in contravention of s 52 of the Trade Practices Act 1974 (Cth) – Whether appellants may be held personally liable for the statements pursuant to s 9 of the Fair Trading Act 1999 (Vic) – Whether appellants were “in trade or commerce” for the purposes of s 9 – Whether appellants’ statements were “conduct” for the purposes of s 9 or were solely conduct of WSA.
Appealed from FCA FC. [2006] FCAFC 46; (2006) 151 FCR 438.
Date heard: 25 October 2006. Judgment reserved.
Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ.
CATCHWORDS
Workers’ compensation – Appellant was injured in the course of his employment for a firm providing security services under contract to respondent – Whether respondent was deemed by s 175(3) of the Workers’ Compensation and Rehabilitation Act 1981 (WA) (now renamed the Workers’ Compensation and Injury Management Act 1981 (WA)) to be the employer of appellant at the time when the injury occurred – Whether s 6 requires a construction of the phrase “directly a part or process” in s 175(3) of that Act that includes any exercise and performance of the powers and duties of respondent.
Appealed from WA CA. [2005] WASCA 185.
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Administrative Law
See Constitutional Law – Bodruddaza v Minister for Immigration and Multicultural Affairs (S241/2006).
Procedure in High Court: Special case dated 21 September 2006 reserved for the opinion of the Full Court.
CATCHWORDS
Constitutional law – Plaintiff sought a Class DD subclass 880 (Skilled – Independent Overseas Student) Visa – Visa application refused by a delegate of the defendant on 5 January 2006 – Plaintiff instructed his migration agent to lodge an application for the review of the delegate’s decision – Application for review was not received until 7 February 2006 – On 9 May 2006, the Migration Review Tribunal determined that it did not have jurisdiction in the matter because the application for review was lodged out of time – By email dated 24 June 2006, plaintiff’s migration agent informed plaintiff that Tribunal had determined that it did not have jurisdiction to review the delegate’s decision – On 11 July 2006, plaintiff filed an application in the High Court for an order to show cause – Whether s 486(1) of the Migration Act 1958 (Cth) applies to plaintiff’s application to the High Court for remedies to be granted in the exercise of the Court’s original jurisdiction – If so, whether s 486(1) is invalid in respect of plaintiff’s application.
Administrative law – Whether the delegate made a jurisdictional error in the course of assessing the plaintiff’s visa application.
This matter was brought in the original jurisdiction of the High Court.
Procedure in High Court: Special case dated 2 November 2006 reserved for the opinion of the Full Court.
CATCHWORDS
Constitutional law – Judicial power of the Commonwealth – Whether Division 104 of the Criminal Code is invalid because it confers on a federal court non-judicial power contrary to Chapter III of the Commonwealth Constitution – Whether Division 104 of the Criminal Code is invalid because in so far as it confers judicial power on a federal court, it authorises the exercise of that power in a manner contrary to Chapter III of the Commonwealth Constitution.
Constitution law – Powers of federal Parliament – Whether Division 104 of the Criminal Code is invalid because it is not supported by one or more express or implied heads of federal legislative power under the Commonwealth Constitution.
This matter was brought in the original jurisdiction of the High Court.
Procedure in High Court: Application for order to show cause referred to the Full Court by order dated 11 October 2006.
CATCHWORDS
Constitutional law – Plaintiff, a member of the Defence Force, was charged with certain offences under the Defence Force Discipline Act 1982 (Cth) (“Act”) – The offences were alleged to have occurred in circumstances where neither the plaintiff nor any alleged victim or witness was on Commonwealth property, in uniform or on duty – Whether trial of the charges against plaintiff is an exercise of federal judicial power within the meaning of Chapter III of the Constitution – Whether the provisions of the Act purporting to vest jurisdiction in a Defence Force Magistrate or in a Court Martial to hear and determine the trial of the charges under s 61 of that Act are invalid because neither a Defence Force Magistrate nor a Court Martial is a court invested with federal jurisdiction within the meaning of s 71 of the Constitution.
This matter was brought in the original jurisdiction of the High Court.
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High Court Bulletin No. 9 of 2006.
Appeal and New Trial
See Criminal Law – The Queen v Taufahema (S142/2006).
See also Insurance – CGU Insurance Limited v AMP Financial Planning Pty Ltd (M127/2005) and (M89/2006).
Gould v Magarey & Ors (S195/2006)
Δ Visnic v Australian Securities and Investments Commission (S350/2006)
Date heard for S194/2006 and S195/2006: 29 September 2006. Special leave granted.
Date heard for S350/2006: 30 October 2006. Application for removal granted.
CATCHWORDS
Constitutional law – Whether s 206F of the Corporations Act 2001 (Cth) (“Act”) purports to confer the judicial power of the Commonwealth upon the Australian Securities and Investments Commission – Whether s 1292 of the Act purports to confer the judicial power of the Commonwealth upon the Companies Auditors and Liquidators Disciplinary Board – Whether ss 206F and 1292 of the Act are invalid for infringing Chapter III of the Constitution.
S194/2006 and S195/2006 appealed from FCA FC. [2006] FCAFC 69; (2006) 151 FCR 466; (2006) 24 ACLC 619.S350/2006 removed from FCA. [2006] FCA 1204; (2006) 58 ACSR 626.
Date heard: 29 September 2006. Application for special leave stood over for the decision of the Full Court without further hearing. If special leave is granted, the Full Court will dispose of the appeal instanter.
CATCHWORDS
Criminal law – Applicant found guilty of one count of incest by a jury following trial in the Victorian County Court – Victorian Court of Appeal found that there was insufficient evidence of penetration for a jury to have been satisfied of applicant’s guilt of incest – Victorian Court of Appeal quashed the conviction and ordered that there be a new trial – Whether Victorian Court of Appeal may decline to order an acquittal but instead order a retrial with respect to a charge if a conviction of the charge has been quashed because of an insufficiency of evidence.
Appealed from Vic CA. [2005] VSCA 288; (2005) 12 VR 563; (2005) 159 A Crim R 327.
Date heard: 29 September 2006. Application for special leave referred to the Full Court to be argued as on appeal.
CATCHWORDS
Criminal law – Joint criminal enterprise – On 27 March 2002, respondent and three others were travelling in a stolen car with four loaded firearms – Respondent was driving the car in an erratic manner – A highway patrol police officer commenced a pursuit of the car which then crashed and became immobilised – The police officer stopped his own car near the stolen car – One of the men with whom respondent was travelling in the stolen car got out of the car and fatally shot the police officer – Whether respondent was involved in a joint criminal enterprise with the man who killed the police officer.
Appeal and new trial – In closing at first instance and on appeal to the New South Wales Court of Criminal Appeal, the prosecution case was that there was a joint criminal enterprise from the time following the interception by the police officer – Whether the High Court should order a re-trial because the trial ought to have been conducted on the basis that a joint criminal offence was already in progress when the interception occurred.
Appealed from NSW CCA. [2006] NSWCCA 152; (2006) 162 A Crim R 152.
Date heard: 29 September 2006. Special leave granted.
CATCHWORDS
Damages – Assessment of damages – Section 45 of the Motor Accidents Act 1988 (NSW) provides for the payment by an insurer of medical and other expenses to a claimant once liability has been admitted for a claim for damages in respect of injuries suffered in a motor vehicle accident, it is the duty of an insurer to make payments – Section 45(4) provides that such payment is a defence to proceedings for damages made by the claimant – Where court awards damages to claimant but also makes a finding of contributory negligence against the claimant – Whether the court award of damages should first be discounted for contributory negligence and then reduced by amount of payments already made or whether payments already made should be deducted first and the balance discounted for contributory negligence.
Damages – Assessment of damages – Whether historical statistical tables or projections of life expectancy based on statistical data should be used to determine life expectancy for the purpose of assessing damages.
Appealed from NSW CA. [2006] NSWCA 25.
Date heard: 19 September 2006. Special leave granted.
CATCHWORDS
Equity – Recipient liability – First applicant and respondent entered joint venture to redevelop property owned by respondent – Second applicant, a natural person, controlled first applicant – Second applicant learnt that local council would only approve redevelopment if the property was amalgamated with adjoining properties – Second applicant caused applicant’s property and two adjoining properties to be purchased by another company that second applicant controlled, second applicant’s wife and second applicant’s two daughters – Whether second applicant’s wife and two daughters were liable for recipient liability under the first limb of Barnes v Addy (1874) LR 9 Ch App 244.
Equity – Recipient liability – Knowledge requirement – Second applicant acted as agent for his wife and two daughters in buying part of amalgamated site – Second applicant’s wife and two daughters were not actually aware of circumstances of acquisition which amounted to breach of duty of good faith – Whether second applicant’s wife and two daughters could be imputed with second applicant’s knowledge for the purpose of determining recipient liability because he acted as their agent – Whether principles of unjust enrichment render irrelevant consideration of the level of knowledge of second applicant’s wife and two daughters.
Real property – Second applicant’s wife and two daughters became registered proprietors for a fee simple estate in units on one of the adjoining properties – Whether their title is rendered unchallengeable by section 42 of the Real Property Act 1900 (NSW) – Whether second applicant’s wife and two daughters obtained title by fraud within the meaning of sections 42 and 43 of the Real Property Act 1900 (NSW).
Appealed from NSW CA. [2005] NSWCA 309.
Date heard: 26 October 2006. Special leave granted.
CATCHWORDS
Evidence – Following the conclusion of a video recorded interview with police, applicant was taken to the ‘lock-up’ section of the police station – At the ‘lock-up’, applicant made admissions to police about the offence in respect of which he had been earlier interviewed – Applicant was not aware that there was also an audio-visual recording device in the ‘lock-up’ that recorded these admissions – Whether these admissions are admissible under s 570(D) of the Criminal Code (WA).
Appealed from WA CA. [2006] WASCA 125.
Δ Tofilau v The Queen (M106/2006)
Δ Hill v The Queen (M109/2006)
Δ Marks v The Queen (M118/2006)
Date heard: 10 November 2006. Special leave granted.
CATCHWORDS
Evidence – Voluntariness – In each matter, covert police officers led applicant to believe that the police officers were members of a criminal gang – Applicants were told they could join the criminal gang and receive a sum of money, but only if there were no outstanding investigations into them – Applicants were told that the gang had influence over a corrupt police officer and could make criminal investigations end but that applicants had to tell the truth about their past criminal activities before the gang would take this action – Each applicant admitted to past criminal conduct – Whether the covert police officers were “persons in authority” – Whether applicants’ admissions were involuntary because preceded by an inducement made by persons in authority, which inducement had not been removed prior to the admissions being made.
M102/2006 appealed from Vic CA. [2006] VSCA 43.M106/2006 appealed from Vic CA. [2006] VSCA 40. (2006) 13 VR 28; (2006) 160 A Crim R 549.
M109/2006 appealed from Vic CA. [2006] VSCA 41.
M118/2006 appealed from Vic CA. [2006] VSCA 42.
Date heard: 29 September 2006. Special leave granted.
CATCHWORDS
Insurance – Assessing reasonableness of settlements – Two financial advisers retained by respondent made recommendations to investors that resulted in large losses – Respondent notified applicant, its insurer, and sought indemnity under its insurance policy – Respondent prepared a protocol for dealing with the claims that applicant agreed to in principle – Respondent settled claims and had been under pressure from Australian Securities and Investments Commission (“ASIC”) to do so – Applicant did not indemnify respondent in respect of the settled claims – Whether, in assessing the reasonableness of the settlements, reference may be had to adverse publicity that may arise from failure to settle claims and pressure to settle from ASIC – Whether, in assessing the reasonableness of the settlements, reference may be had to the position of the insurer in relation to its potential liability under the policy – Whether settlements were unreasonable because respondent did not consider the possibility of a defence under section 819(4) of the Corporations Act 2001 (Cth) to the claims brought against it.
Insurance – Insurer’s duty of utmost good faith – Whether applicant could be in breach of the obligation of utmost good faith by failing to comply with a protocol proposed by respondent where compliance with the protocol was not an express contractual obligation under the insurance policy – Whether any such breach of the duty of utmost good faith would constitute a breach of contract that would allow respondent to recover the amount of any reasonable settlement.
Appeal and new trial – Full Court of Federal Court held that the trial judge had erred by not considering whether applicant was estopped from requiring respondent to establish by admissible evidence that it had a liability to each claimant with whom its settled – Whether it was contrary to the interests of the administration of justice for the Full Court to reach this conclusion when it was not pleaded by respondent at trial.
Practice and procedure – Applicant brought a cross-appeal to Full Court of the Federal Court of Australia from the decision of the Federal Court at first instance – Full Court dismissed applicant’s cross-appeal without addressing the grounds of the cross-appeal – Full Court held that that the issues raised in the cross-appeal had not been raised in the appeal and that a notice of contention was therefore required – Whether Full Court should have addressed the grounds of the cross-appeal.
M127/2005 appealed from FCA FC. [2005] FCAFC 185; (2005) 146 FCR 447; (2005) 55 ACSR 305; (2005) 13 ANZ Insurance Cases 61-658.M89/2006 appealed from FCA FC. [2006] FCAFC 90.
See also Insurance – CGU Insurance Limited v AMP Financial Planning Pty Ltd (M127/2005) and (M89/2006).
Date heard: 10 November 2006. Special leave granted.
CATCHWORDS
Real property – Sixth respondent was registered proprietor of Torrens title land – Applicants were judgment creditors of sixth respondent – Sixth respondent sold land to first to fourth respondents (“Purchasers”) – Search of register conducted on morning of settlement – Several hours later, but prior to completion of sale, applicants registered a writ for levy on the land under the Real Property Act 1900 (NSW) – Whether Purchasers’ unregistered equitable interest in Torrens title land entitled the Purchasers to a final injunction restraining the exercise of applicants’ right of sale under the writ – Whether an unregistered interest in land amounts to “title” within s 112(2) of the Civil Procedure Act 2005 (NSW) – Real Property Act 1900 (NSW), ss 105-105D.
Appealed from NSW CA. [2006] NSWCA 140; (2006) NSW ConvR 56-158.
See also Equity – Farah Constructions Pty Ltd & Ors v Say-Dee Pty Ltd (S35/2006).
Date heard: 29 September 2006. Special leave granted.
CATCHWORDS
Trade and commerce – Effect of retention of title clause – Respondent, a motor vehicle wholesaler, sold ten vehicles to a motor vehicle retailer pursuant to contracts containing a retention of title clause – Motor vehicle retailer took possession of the vehicles, without having paid the purchase price, and then sold them to first applicant – Whether respondent’s interest in the vehicles was a “security interest” within the meaning of the Chattel Securities Act 1987 (Vic).
Appealed from Vic CA. [2006] VSCA 102; [2006] ASC 155-081.
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Special leave dismissed with costs. Vic CA.
Special leave dismissed. FCA.
Special leave dismissed. FCA.
Special leave dismissed. Vic CA.
Leave dismissed. HCA.
Special leave dismissed with costs. FCA.
Special leave dismissed. FCA.
Special leave dismissed. FCA.
Special leave dismissed. FCA.
Special leave dismissed. FCA.
Special leave dismissed. FCA.
Special leave dismissed. FCA.
Special leave dismissed. FCA.
Special leave dismissed. FCA.
Special leave dismissed. FCA.
Special leave dismissed. FCA.
Special leave dismissed. Fam.
CIVIL
Special leave refused with costs. FCA.
Special leave refused. Vic CA.
Special leave refused with costs. FCA FC.
Special leave refused with costs. FCA.
Special leave refused with costs. SA SC.
Special leave refused. Vic CA.
Special leave refused with costs. SA SC.
CRIMINAL
Special leave refused. SA CCA.
CIVIL
Special leave refused with costs. NSW CA.
Special leave refused with costs. FCA FC.
Special leave refused with costs. FCA FC.
Special leave refused with costs. NSW CA.
Special leave refused with costs. NSW CA.
Special leave refused with costs. FCA FC.
Special leave refused with costs. FCA FC.
Special leave refused with costs. FCA.
CIVIL
Special leave dismissed. FCA.
Special leave dismissed. FCA FC.
Special leave dismissed. WA CA.
Special leave dismissed. FCA.
Special leave dismissed. FCA.
Special leave dismissed. FCA.
Special leave dismissed. FCA.
Special leave dismissed. FCA.
Special leave dismissed. FCA.
Special leave dismissed. FCA.
Special leave dismissed. FCA FC.
Special leave dismissed. FCA.
Special leave dismissed. FCA.
Special leave dismissed. FCA.
Special leave dismissed. FCA.
Special leave dismissed. FCA.
Special leave dismissed. FCA.
Special leave dismissed. FCA.
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