High Court of Australia Bulletins
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Last Updated: 17 December 2008
Produced by the High Court of Australia Library
[2008] HCAB 12 (12 December 2008)
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, and refused special leave to appeal.
The following cases were handed down by the High Court of Australia during the December 2008 sittings.
High Court of Australia: [2008] HCA 57.
Coram: Gummow, Kirby, Hayne, Heydon and Kiefel JJ.
Judgment delivered: 11 December 2008.
Catchwords:
Contracts — Interpretation — Where indemnity agreement provided that indemnity effective and enforceable if borrower “punctually paid” amounts under related loan agreement — Meaning of “punctually” — Whether context of agreement required departure from dictionary meaning — Whether conduct of lender in accepting late payment could render such payment “punctual”.
Contracts — “Waiver” of contractual right — Meaning of “waiver” — Waiver distinguished from contractual variation and promissory estoppel — Whether doctrine referred to as “waiver” exists in form of election between inconsistent rights, common law doctrine of forbearance, or abandonment or renunciation of right — Whether any other residual form of “waiver” exists — Whether acceptance of late payments under loan agreement and other conduct constituted “waiver” by lender and indemnifier of condition for indemnity taking effect, that the borrower have “punctually paid” amounts under loan agreement.
Contracts — Election between inconsistent rights — Point at which choice between inconsistent rights arises — Whether indemnifier faced with choice between inconsistent rights.
Contracts — Forbearance from exercising contractual right — Relationship with estoppel — Influence of Statute of Frauds.
Contracts — Abandonment or renunciation of contractual right — Point at which time comes for abandoning or renouncing right — Whether time had come for lender or indemnifier to abandon or renounce right to insist on punctual payment under loan agreement.
Equity — Equitable doctrines — Election — Distinct character and application.
Words and phrases — “abandonment”, “approbate and reprobate”, “election”, “forbearance”, “punctually”, “renunciation”, “waiver”.
Appealed from NSW CA: [2007] NSWCA 235; (2008) Aust Contract R 90–274.
High Court of Australia: [2008] HCA 55.
Coram: Gummow, Kirby, Hayne, Heydon and Crennan JJ.
Judgment delivered: 3 December 2008.
Catchwords:
Taxation — Income tax — Charities — Entity engaged in investment business and funeral business — Profits distributed to religious organisations — Whether entity exempt from income tax as “charitable institution” — Income Tax Assessment Act 1997 (Cth), ss 50-1, 50-5, 50-50, 50-52.
Taxation — Income tax — “Charitable institution” — Whether sufficient for entity to have solely charitable purposes — Whether necessary for entity to engage in charitable activities directly — Whether necessary that distributed profits applied for charitable purposes.
Taxation — Income tax — “Charitable institution” — Whether entity's objects in fact confined to charitable purposes.
Taxation — Income Tax — Special condition for “charitable institution” income tax exemption — Income Tax Assessment Act 1997 (Cth), s 50-50(a) — Whether entity has physical presence in Australia — Whether entity “incurs its expenditure and pursues its objectives principally in Australia”.
Words and phrases — “charitable institution”, “incurs its expenditure and pursues its objectives principally in Australia”, “institution”.
Appealed from FCA FC: [2007] FCAFC 171; (2007) 164 FCR 194; (2007) 243 ALR 44; (2007) ATC 5164.
High Court of Australia: [2008] HCA 56.
Coram: French CJ, Gummow, Hayne, Heydon and Kiefel JJ.
Judgment delivered: 3 December 2008.
Catchwords:
Family law — Courts having jurisdiction in matrimonial causes — Powers — Jurisdiction under s 79(1) of Family Law Act 1975 (Cth) to make orders — “Proceedings with respect to the property of the parties to the marriage or either of them” — Definition of “property” of parties to marriage — Whether right of wife with respect to due administration of trust and discretionary power of husband to appoint whole of trust assets to wife constituted part of the property of the parties to the marriage.
Family law — Courts having jurisdiction in matrimonial causes — Powers — s 85A of Family Law Act 1975 (Cth) — Court's power to make orders respecting property the subject of “ante-nuptial or post-nuptial settlements made in relation to the marriage” — Whether contributions by parties to existing trust are post-nuptial settlements — Whether just and equitable — Interests of third parties.
Family law — Courts having jurisdiction in matrimonial causes — Powers — s 79(1) of Family Law Act 1975 (Cth) — Whether “parties to the marriage or either of them” includes reference to persons who were parties to marriage since dissolved before court makes an order — Power of court to proceed in property settlement “as if” changes to property rights otherwise brought about by anterior divorce had not yet occurred.
Family law — Divorce and other matrimonial causes — Division of assets — Trusts and trustees — Wife one of the class of objects of discretionary trust — Right in equity to due administration of trust — Whether existence of such a right depends on entitlement to any fixed and transmissible beneficial interest in trust fund.
Statutory construction — Family Law Act 1975 (Cth) — Policy regarding contributions to property — Relevance to provisions relating to orders with respect to settlement of property.
Statutory construction — Family Law Act 1975 (Cth) — s 85A — Purposes with respect to settlement — Degree of association (“made in relation to”) between settlement of property and marriage.
Words and phrases — “ante-nuptial or post-nuptial settlements”; “made in relation to”; “parties to the marriage or either of them”; “property”; “with respect to the property of the parties to the marriage”.
Appealed from Fam CA: [No media neutral citation].
The following cases have been reserved for judgment by the High Court of Australia.
**** Indicates cases reserved for judgment since High Court Bulletin 11 [2008] HCAB 11.
A12/2008: [2008] HCATrans 365; [2008] HCATrans 366.
Date heard: 4–5 November 2008 — Judgment reserved.
Coram: French CJ, Gummow, Kirby, Hayne, Heydon, Crennan and Kiefel JJ.
Catchwords:
Constitutional law — Judicial power — Chapter III court — Liquor Licensing Court of South Australia — Licensing Court required to hear and determine licensing proceedings without disclosing to the applicant information classified as “criminal intelligence” by the Commissioner of Police — Validity — Natural justice — Whether legislation requiring a court capable of exercising federal jurisdiction to make a determination on the basis of evidence not to be disclosed to the affected party is constitutionally invalid — Constitution, Ch III — Liquor Licensing Act 1997 (SA), s28A.
Appealed from SA SC: [2007] SASC 319; (2007) 99 SASR 58; (2007) 213 FLR 394; (2007) 250 LSJS 375.
S362/2008; S363/2008: [2008] HCATrans 352.
Date heard: 14 October 2008 — Judgment reserved.
Coram: French CJ, Gummow, Kirby, Hayne, Heydon, Crennan and Kiefel JJ.
Catchwords:
Constitutional law — Power to make laws with respect to the provision of medical and dental services (but not so as to authorise any form of civil conscription) — Health Insurance Act 1973 (Cth) (“the Act”) — Professional Services Review Scheme — Medical practitioners required not to engage in “inappropriate practice” — Meaning of “civil conscription” — Whether ss 10, 20, 20A and Part VAA (or any provision of Part VAA) of the Act amount to “civil conscription” within the meaning of s 51(xxiiiA) of the Constitution, and are outside the legislative powers of the Commonwealth and invalid.
Appealed from FCA FC: [2008] FCAFC 13; (2008) 167 FCR 61; (2008) 246 ALR 61.
M122/2007: [2008] HCATrans 348; [2008] HCATrans 349.
Date heard: 2–3 October 2008 — Judgment reserved.
Coram: French CJ, Gummow, Kirby, Hayne, Heydon, Crennan and Kiefel JJ.
Catchwords:
Constitutional law — Acquisition of property other than on just terms — Aboriginal land — Five year lease to Commonwealth —Whether ss 31, 32, 34, 35, 36, 37, 50, 51, 52, 60, 61, 62, 68(2) and 134 of Northern Territory National Emergency Response Act 2007 (Cth) (“the Emergency Response Act”) and items 12, 15 and 18 to Sch 4 of Families, Community Services and Indigenous Affairs and Other Legislation Amendment (Northern Territory National Emergency Response and Other Measures) Act 2007 (Cth) (“impugned provisions”) effect acquisition of property subject to Constitution, s 51(xxxi) — Whether s 51(xxxi) applies to impugned provisions — Whether s 51(xxxi) abstracts power to acquire property from Constitution, s 122 — Whether impugned provisions enacted for purposes in ss 51(xxvi) and 51(xxix) — Whether acquisition of property other than on just terms and therefore invalid — Whether payment of reasonable compensation is just terms — Constitution, ss 51(xxxi), 51(xxvi), 51(xxix), 122.
This matter was brought in the original jurisdiction of the High Court.
A8/2008: [2008] HCATrans 370.
Date heard: 12 November 2008 — Judgment reserved.
Coram: French CJ, Gummow, Hayne, Crennan and Kiefel JJ.
Catchwords:
Criminal law — Double jeopardy — Abuse of process — Applicant stabbed victim — Found not guilty of attempted murder but guilty of wounding with intent to cause grievous bodily harm — Victim died as result of stabbing after verdicts delivered — An Information subsequently laid against applicant for offence of murder — Applicant has served majority of head-sentence — Whether it is an abuse of process by reason of double punishment, for the applicant to be tried again for murder in respect of the same stabbing where, if convicted, a sentence will consist of (1) a second conviction; (2) a second head sentence — the usual mandatory sentence of life imprisonment; and (3) a second non-parole period — of a mandatory minimum 20 years.
Criminal law — Sentencing — Non-parole period — Backdating — Whether it is possible to avoid an abuse of process, by the sentencing court “backdating” a non-parole period punishment pursuant to s 30 of the Criminal Law (Sentencing) Act 1988 (SA) (“the Act”) so that the two sentences for the stabbing operate concurrently from the time when the first sentence began — Whether it is correct for the court hearing the stay to assume that a future sentencing court will backdate a sentence in this way.
Criminal law — Sentencing — Non-parole period — Power to backdate — Whether s 30(1) of the Act empowers a sentencing court to backdate the commencement of the non-parole period, and thereby render nugatory the new 20 year minimum mandatory non-parole period — If so, whether it is within the exercise of such a power to impose a sentence that precedes the commission of the crime.
Appealed from SA SC: [2008] SASC 97; (2008) 254 LSJS 302.
B23/2008: [2008] HCATrans 347.
Date heard: 1 October 2008 — Judgment reserved.
Coram: Kirby, Hayne, Heydon, Crennan and Kiefel JJ.
Catchwords:
Criminal law — Interpretation — Criminal Code (Qld) (“the Code”), s 8 — Offences committed in prosecution of common purpose — “[O]ffence....of such a nature” — Conviction for grievous bodily harm with intent — Complainant was shot — Court of Appeal held that it was not sufficient for the prosecution to demonstrate that a probable consequence of the plan was the generic offence of doing grievous bodily harm with intent, but that it had to establish that a probable consequence of the plan was doing grievous bodily harm with intent by intentionally shooting — Whether the meaning of the term “offence....of such a nature” in s 8 of the Code, requires the Crown, in order to satisfy the requirements of s 8, to prove beyond a reasonable doubt that the mechanism by which the offence said to have been committed in the prosecution of the unlawful purpose was a probable consequence of the prosecution of the unlawful purpose.
Appealed from Qld CA: [2007] QCA 440.
S415/2008: [2008] HCATrans 356; [2008] HCATrans 357.
Date heard: 16–17 October 2008 — Judgment reserved.
Coram: French CJ, Gummow, Hayne, Heydon, Crennan and Kiefel JJ.
Catchwords:
Intellectual property — Copyright — Infringement — Television program schedules — Appellants created electronic program guide using, in part, information reproduced from Respondent's weekly television schedules — Whether Appellants infringed copyright of Respondent as “original literary works”, being “compilations” — Whether “substantial part” of copyright work reproduced — Relevance of originality of part reproduced — Relevance of skill and labour expended by Respondent creating part reproduced — Relevance of “preparatory” or “antecedent” skill and labour in determining programs to be broadcast — Copyright Act 1968 (Cth), ss 10, 14.
Intellectual property — Copyright — Original literary works — Compilations — Extent of copyright in compilations — Meaning of “original” — Whether degree of creativity essential to subsistence of copyright — Whether copyright extends only to matters of form, arrangement and expression — Correctness of Desktop Marketing Systems Pty Ltd v Telstra Corporation Ltd (2002) 119 FCR 491.
Appealed from FCA FC: [2008] FCAFC 71; (2008) 168 FCR 14; (2008) 76 IPR 31; (2008) AIPC ¶92-285.
M63/2008: [2008] HCATrans 395; [2008] HCATrans 396.
Date heard: 2–3 December 2008 — Judgment reserved.
Coram: French CJ, Gummow, Heydon, Crennan and Kiefel JJ.
Catchwords:
Landlord and tenant — Breach of covenant in lease — Damages — Rule in Joyner v Weeks [1891] 2 QB 31 (“Joyner”) — Where, in breach of a covenant in a lease, the lessee failed to get consent for removing the existing foyer and replacing it with a new foyer in a different style — Where the lessee’s breach caused no damage to the value of the building and only nominal diminution in the lessor’s reversion — Whether damages for the breach to be assessed by reference to Joyner, or whether that assessment should be governed by the principles that generally determine damages for breach of contract — Scope of rule in Joyner — Whether the Full Court should not have relied on Joyner to conclude that the appropriate measure of damage was reinstatement cost rather than the diminution in value of the premises or the reversionary interest.
Practice and procedure — Procedural fairness — Where the Full Court considered the repair covenant in the lease, and a particular construction of an agreement between the parties that was accepted into evidence on appeal as decisive in assessing damages — Where neither ground formed part of the respondent’s case at first instance or on appeal — Whether the Full Court exceeded its proper role and denied the applicant procedural fairness by deciding the appeal on these grounds.
Appealed from FCA FC: [2008] FCAFC 38; (2008) 166 FCR 494; (2008) 247 ALR 208; (2008) ANZ ConvR ¶8–018; [2008] ALMD 5540.
S323/2008; S324/2008: [2008] HCATrans 367; [2008] HCATrans 368.
Date heard: 5–6 November 2008 — Judgment reserved.
Coram: French CJ, Gummow, Hayne, Heydon and Kiefel JJ.
Catchwords:
Local government — Compulsory land acquisition — Statutory interpretation — Section 188(1) of the Local Government Act 1993 (NSW) (“the Act”) provides that “[a] Council may not acquire land ... by compulsory process ... if it is being acquired for the purpose of re-sale” — Meaning of “purpose” and “re-sale” — Whether land acquired to be transferred to private developers as part of a redevelopment project is “for the purpose of re-sale” — Section 188(2)(a) of the Act provides that owner's approval is not required if “the land forms part of, or adjoins or lies in the vicinity of” other land acquired “for a purpose other than ... re-sale” — Whether land acquired “for a purpose other than ... re-sale”.
Appealed from NSW CA: [2008] NSWCA 132.
S317/2008: [2008] HCATrans 332.
Date heard: 24 September 2008 — Judgment reserved.
Coram: French CJ, Gummow, Hayne, Heydon and Kiefel JJ.
Catchwords:
Practice and procedure — Procedural fairness — Illegality of conduct of Customs officers regarding the issue and execution of a Customs Warrant — Where the Court of Appeal overturned finding made by the trial judge in favour of the Applicant as to illegal conduct by Customs, based on the correctness of the judgment in O’Neill’s Case (unreported; NSW District Court, 18 August 1988), without the respondent seeking such an outcome or the Court of Appeal giving notice that it would consider it.
Evidence — Exclusion of evidence obtained improperly or in contravention of an Australian law.
Appealed from NSW CA: [2007] NSWCA 348; (2007) 243 ALR 574.
M39/2008: [2008] HCATrans 397; [2008] HCATrans 398.
Date heard: 3–4 December 2008 — Judgment reserved.
Coram: French CJ, Gummow, Hayne, Heydon, Crennan and Kiefel JJ.
Catchwords:
Torts — Negligence — Duty of care — Police — Police officers found the first respondent's husband sitting in his car with a tube running from the exhaust through to the rear window at 5:40am — Officers did not exercise the power of apprehension under s 10 of the Mental Health Act 1986 (Vic) — First respondent's husband was allowed to leave the car park, and committed suicide later on that day — Whether a duty of care should be imposed on police officers to take reasonable care to protect a member of the public from the risk of suicide, by reason of the existence of a discretionary statutory power of apprehension — Framing of duty of care.
Torts — Negligence — Duty of Care — Police — Construction of s 10 of the Mental Health Act 1986 (Vic) — Powers of apprehension — Police officer may apprehend a person if two conditions satisfied — Person must appear to be mentally ill — There must be reasonable grounds for the officer to believe that the person had recently attempted or was likely to attempt suicide or to cause grievous bodily harm — Whether s 10 of the Mental Health Act 1986 (Vic) requires a police officer to regard a person who attempts suicide as a person who is mentally ill and therefore liable to apprehension by the police officer — Whether imposition of duty of care inconsistent with Mental Health Act 1986 (Vic).
Appealed from Vic CA: [2008] VSCA 32; (2008) Aust Torts Reports ¶81–936; [2008] ALMD 4105.
There are currently no cases ready for hearing in the original jurisdiction of the High Court of Australia.
The following cases have been granted special leave to appeal to the High Court of Australia.
**** Indicates cases granted special leave to appeal since High Court Bulletin 11 [2008] HCAB 11.
S343/2008: [2008] HCATrans 401.
Date heard: 5 December 2008 — Special leave granted.
Catchwords:
Administrative law — Jurisdictional error — Procedural fairness — Whether a breach of a statutory procedural requirement resulting in no practical unfairness constitutes jurisdictional error — Migration Act 1958 (Cth), s 441G.
Administrative law — Discretionary relief — Procedural fairness — Whether absence of practical unfairness is a matter that should be considered when determining whether or not to refuse relief on discretionary grounds.
Appealed from FCA FC: [2008] FCAFC 122.
S341/2008; S309/2008: [2008] HCATrans 389.
Date heard: 14 November 2008 — Special leave granted.
Catchwords:
Administrative law — Jurisdictional error — Refugee Review Tribunal (“the Tribunal”) sought information from a person by telephone — Sections 424 and 424B of the Migration Act 1958 (Cth) (“the Act”) set out requirements for the invitation — Whether failure to comply with ss 424(2), 424(3) and 424B of the Act amounts to jurisdictional error — Migration Act 1958 (Cth), ss 424(2), 424(3), 424B.
Immigration — Whether all requests by the Tribunal for information on a voluntarily basis falls within s 424(2) of the Act (“the Tribunal may invite a person to give additional information”) — Migration Act 1958 (Cth), s 424(2).
Appealed from FCA FC: [2008] FCAFC 125.
A16/2008: [2008] HCATrans 375.
Date heard: 13 November 2008 — Special leave granted.
Catchwords:
Constitutional law — Intergovernmental immunities — Melbourne Corporation doctrine — Superannuation scheme — State of South Australia amended legislation concerning commutation of superannuation for State parliamentarians to address financial implications brought about by Commonwealth taxation legislation — Whether Commonwealth legislation amounts to an impermissible interference with the capacity of States to function as governments — Whether State required to show it was “compelled” to change legislation — Application of Austin v Commonwealth (2003) 215 CLR 185 — Melbourne Corporation v Commonwealth (1947) 74 CLR 31.
Appealed from FCA FC: [2008] FCAFC 106; (2008) 170 FCR 473; (2008) 69 ATR 724.
S261/2008: [2008] HCATrans 310.
Date heard: 26 August 2008 — Special leave granted.
Catchwords:
Contracts — Misleading and deceptive conduct — Reliance — Pre-contractual representations — Share purchase agreement — Contract provided that purchaser “has not relied on any warranty made by ... the Vendor” — Vendor made incorrect representations regarding the company’s finances — Whether purchaser relied on representations — Whether conduct amounted to misleading and deceptive conduct under Fair Trading Act 1987 (NSW), s 42 — Whether remedy amounting to setting aside sale agreement appropriate.
Appealed from NSW CA: [2008] NSWCA 95; (2008) 66 ACSR 359; (2008) 26 ACLC 537.
A19/2008: 
[2008] HCATrans
373 
.
Date heard: 13 November 2008 — Special leave granted.
Catchwords:
Corporations — Winding up — Voidable transactions — Liquidator’s application for extension of time to pursue creditors — Where extension sought against unidentified creditors — Whether application validly made — Corporations Act 2001 (Cth), s 588FF(3).
Appealed from SA SC: [2008] SASC 203; (2008) 219 FLR 329; (2008) 67 ACSR 356.
S311/2008: [2008] HCATrans 230; [2008] HCATrans 331.
Date heard: 13 June 2008 — Special leave granted; 23 September 2008 — Case adjourned to allow supplementary written submissions and filing of notices under Judiciary Act 1903 (Cth), s 78B.
Catchwords:
Courts and judicial system — Jurisdiction — Appeal — Interpretation — District Court Act 1973 (NSW), s 127 — Whether there is any right to appeal to the New South Wales Court of Appeal from a civil trial with a jury in the District Court under s 127 of the District Court Act 1973 (NSW) — Whether the New South Wales Court of Appeal has power to order a verdict for the appellant or a retrial in an appeal to it from a civil trial in the District Court.
Defamation — Jury verdicts — Imputations — Applicants brought defamation action against the respondent regarding an article published by them and against a general practitioner (“the GP”), who was quoted in the article — Jury was asked to find an imputation that the first or second applicant, as a medical practitioner, was more concerned with making money than the well–being of his patients — Jury found that such an imputation to be conveyed by quotes of the GP, however, that such an imputation was not made out against the respondents in relation to the article — Whether there was any reasonable basis for the jury to conclude that this imputation was not conveyed by the publication.
Appealed from NSW CA: [2007] NSWCA 375.
B24/2008: [2008] HCATrans 337.
Date heard: 30 September 2008 — Special leave granted.
Catchwords:
Criminal law — Propensity evidence — Admissibility of — Applicant and another conjointly charged with murder — Trial Judge refused to let Applicant develop that co-accused had attempted to murder a friend on another occasion and had been previously charged with occasioning grievous bodily harm — Whether miscarriage of justice occurred.
Appealed from Qld CA: [2007] QCA 443; (2007) 179 A Crim R 389.
H3/2008: [2008] HCATrans 407.
Date heard: 5 December2008 — Special leave granted.
Catchwords:
Criminal law — Permanent stay of trial — Delay attributable in large part to the defence — Delay did not cause unavailability of evidence — Whether permanent stay of trial should be granted where delay between alleged commission of the offence and commencement of the trial is over six and a half years — Whether delay amounted to an abuse of process — Test applied for permanent stay of trial.
Criminal law — Permanent stay of trial — Loss of evidence — Evidence of speculative value to either party — Whether permanent stay of trial should be granted where loss of primary evidence supporting defence argument — Whether loss of evidence could be ameliorated by jury directions.
Appealed from Tas SC: [2008] TASSC 17.
S190/2008: [2008] HCATrans 346.
Date heard: 30 September 2008 — Special leave granted.
Catchwords:
Defamation — Whether a class of “business defamation”, as opposed to “general defamation”, exists at common law — Whether Gacic v John Fairfax Publications Pty Ltd (2006) 66 NSWLR 675 should be overruled.
Appealed from NSW CA: [2008] NSWCA 66; (2008) Aust Torts Reports ¶81-946; [2008] ALMD 5338.
S306/2008: [2008] HCATrans 344.
Date heard: 30 September 2008 — Special leave granted.
Catchwords:
Equity — Equitable contribution — “Co-ordinate liability” — Applicant and Respondent company directors — Respondent personally borrowed money which was on-lent to the company — Company ceased trade and Respondent sought funds to repay personal loan — Whether fiduciary duty existed between the two — Whether co-ordinate liability existed so as to require equitable contribution from Applicant.
Appealed from NSW CA: [2008] NSWCA 118.
S337/2008: [2008] HCATrans 382.
Date heard: 14 November 2008 — Special leave granted.
Catchwords:
Family law and child welfare — Habitual residence — Factors taken into account when determining — Whether settled intention of parents is essential and decisive factor in determining habitual residence of children (Mozes v Mozes (2001) 239 F.3d 1067) — Whether wider range of factors considered (Punter v Secretary for Justice [2007] 1 NZLR 40) — Whether undisputed evidence of further factors should be admitted — Family Law (Child Abduction Convention) Regulations 1986 (Cth).
International law — Family Law (Child Abduction Convention) Regulations 1986 (Cth) import Hague Convention on Civil Aspects of International Child Abduction 1980 (“the Convention”) — Interpretation of the Convention.
Appealed from Fam FC: [No media neutral citation].
S204/2008: [2008] HCATrans 341.
Date heard: 30 September 2008 — Special leave granted.
Catchwords:
Immigration — “Non-disclosable information” — Breach of confidence — Scope of inquiry into — Informant provided information to Migration Review Tribunal regarding Respondent’s visa application — Whether information is “non-disclosable information”, defined under s 5(1) of the Migration Act 1958 (Cth) as information which, if disclosed, would found an action for breach of confidence — Whether consideration of “iniquity defence” (a true defence to breach of confidence) lies beyond scope of inquiry mandated by definition of “non-disclosable information” — Migration Act 1958 (Cth), s 359A(1).
Appealed from FCA FC: [No media neutral citation].
S330/2008; S331/2008: [2008] HCATrans 404.
Date heard: 5 December2008 — Special leave granted.
Catchwords:
Immigration — Section 91R(3) of the Migration Act 1958 (Cth) provides that a decision-maker shall “disregard any conduct engaged in by the person in Australia” in determining whether that person has a well-founded fear of persecution — Whether conduct must be completely disregarded — Whether conduct can be used to assess credibility of conduct engaged before arriving in Australia.
Appealed from FCA FC: [2008] FCAFC 105.
M68/2008; M69/2008: [2008] HCATrans 405.
Date heard: 5 December 2008 — Special leave granted.
Catchwords:
Taxation — Income tax — Deductions — Whether a sports player’s management fee was deductible as a loss or outgoing “incurred in gaining or producing [the player’s] assessable income”: Income Tax Assessment Act 1997 (Cth), s 8-1 — Federal Commissioner of Taxation v Maddalena (1971) 45 ALJR 426 (“Maddalena”) held that a loss or outgoing incurred in getting, not in doing, work as an employee did not constitute a deduction — Whether Maddalena should be overruled.
Appealed from FCA FC: [2008] FCAFC 150.
S335/2008: [2008] HCATrans 381.
Date heard: 14 November 2008 — Special leave granted.
Catchwords:
Trade practices — Misleading and deceptive conduct — Construction of exemption provision — Section 52 of the Trade Practices Act 1974 (Cth) (“the Act”) does not apply to a prescribed publication of matter by a prescribed information provider except where the publication was made pursuant to a contract with “a person who supplies goods or services of that kind” (s 65A(1)(a)(vi)(A)) — Whether “of that kind” refers to: goods or services in connection with which the publication was made; or relevant goods or services in connection with which the publication was made — Trade Practices Act 1974 (Cth), ss 52, 65A.
Appealed from FCA FC: [2008] FCAFC 114; (2008) 249 ALR 97; (2008) 77 IPR 150.
S160/2008; S183/2008: [2008] HCATrans 386.
Date heard: 17 November 2008 — Special leave granted.
Catchwords:
Torts — Negligence — Duty of care — Duty of principal contractor to maintain safe workplace — Duty to ensure safety of subcontractors — Whether duty of care owed to independent contractor by a party who is neither his principal nor in any contractual relationship with him — Extent of duty of care to ensure proper training before entering construction site — Whether duty of care defined by contractual obligations.
Appealed from NSW CA: [2008] NSWCA 23; (2008) Aust Torts Reports ¶81-937; (2008) 170 IR 433; [2008] ALMD 5154, [2008] ALMD 5153.
S202/2008: [2008] HCATrans 345.
Date heard: 30 September 2008 — Special leave granted.
Catchwords:
Workers’ compensation — Statutory construction — Worker injured by third party and paid workers’ compensation — Worker sued third party for damages and claim settled — No judicial determination of level of worker’s contributory negligence — Whether workers’ compensation payment reduced under s 151Z(1)(b) of Workers Compensation Act 1987 (NSW) by total sum recovered from third party or whether sum adjusted for contributory negligence — Effect of Law Reform (Miscellaneous Provisions) Act 1965 (NSW), s 10(2).
Appealed from NSW CA: [2008] NSWCA 69.
The following cases were refused special leave to appeal to the High Court of Australia.
S334/2008: [2008] HCASL 554.
Special leave
dismissed.
Appealed from NSW
SC: [No media neutral citation].
S345/2008: [2008] HCASL 555.
Special leave
dismissed.
Appealed from FCA:
[2008] FCA 1017.
S350/2008: [2008] HCASL 556.
Special leave
dismissed.
Appealed from FCA:
[2008] FCA 1063.
S355/2008: [2008] HCASL 557.
Special leave
dismissed.
Appealed from FCA:
[2008] FCA 1129.
S359/2008: [2008] HCASL 558.
Special leave
dismissed.
Appealed from FCA:
[2008] FCA 1094.
S366/2008: [2008] HCASL 559.
Special leave
dismissed.
Appealed from FCA:
[2008] FCA 1124.
S367/2008: [2008] HCASL 560.
Special leave
dismissed.
Appealed from FCA:
[2008] FCA 1186.
S371/2008: [2008] HCASL 561.
Special leave
dismissed.
Appealed from FCA:
[2008] FCA 1137.
S372/2008: [2008] HCASL 562.
Special leave
dismissed.
Appealed from FCA:
[2008] FCA 1178.
S376/2008: [2008] HCASL 563.
Special leave
dismissed.
Appealed from FCA:
[2008] FCA 1208.
S378/2008: [2008] HCASL 564.
Special leave
dismissed.
Appealed from FCA:
[2008] FCA 1203.
S380/2008: [2008] HCASL 565.
Special leave
dismissed.
Appealed from FCA:
[2008] FCA 1210.
S383/2008: [2008] HCASL 566.
Special leave
dismissed.
Appealed from FCA:
[2008] FCA 1212.
S391/2008: [2008] HCASL 567.
Special leave
dismissed.
Appealed from FCA:
[2008] FCA 1192.
S393/2008: [2008] HCASL 568.
Special leave
dismissed.
Appealed from FCA:
[2008] FCA 1255.
S395/2008: [2008] HCASL 569.
Special leave
dismissed.
Appealed from FCA:
[2008] FCA 1246.
S403/2008: [2008] HCASL 570.
Special leave
dismissed.
Appealed from FCA:
[2008] FCA 1275.
S409/2008: [2008] HCASL 571.
Special leave
dismissed.
Appealed from FCA:
[2008] FCA 1301.
S365/2008: [2008] HCASL 572.
Special leave
dismissed.
Appealed from FCA:
[2008] FCA 1230.
S370/2008: [2008] HCASL 573.
Special leave
dismissed.
Appealed from FCA:
[2008] FCA 1159.
S433/2008: [2008] HCASL 574.
Special leave
dismissed.
Appealed from FCA:
[2008] FCA 1279.
P19/2008: [2008] HCASL 576.
Special leave
dismissed.
Appealed from WA SC
(CA): [2008] WASCA 106.
B25/2008: [2008] HCASL 577.
Special leave dismissed
with costs.
Appealed from Qld
SC (CA): [2008] QCA 159.
S340/2008: [2008] HCASL 575.
Special leave
dismissed.
Appealed from NSW
SC (CCA): [2007] NSWCCA 322.
S342/2008.
Special leave dismissed
with costs.
Appealed from NSW
SC (CA): [2008] NSWCA 151.
S344/2008.
Special leave dismissed
with costs.
Appealed from FCA
FC: [2008] FCAFC 121.
S354/2008.
Special leave dismissed
with costs.
Appealed from FCA
FC: [2008] FCAFC 133.
S452/2008.
Special leave
dismissed.
Appealed from NSW
SC (CCA): [2008] NSWCCA 174.
M56/2008.
Special leave dismissed
with costs.
Appealed from FCA
FC: [2008] FCAFC 120.
M58/2008.
Special leave dismissed
with costs.
Appealed from FCA
FC: [2008] FCAFC 123.
M65/2008.
Special leave dismissed
with costs.
Appealed from FCA
FC: [2008] FCAFC 142.
H3/2007.
Special leave
dismissed.
Appealed from Tas
SC (CCA): [2007] TASSC 56.
M51/2008.
Special leave
dismissed.
Appealed from Vic
SC (CA): [2008] VSCA 109.
M77/2008.
Special leave
dismissed.
Appealed from Vic
SC (CA): [2008] VSCA 190.
M67/2008: [2008] HCASL 578.
Special leave
dismissed.
Appealed from FCA:
[2008] FCA 1314.
S351/2008: [2008] HCASL 579.
Special leave
dismissed.
Appealed from FCA:
[2008] FCA 1130.
S357/2008: [2008] HCASL 580.
Special leave
dismissed.
Appealed from FCA:
[2008] FCA 1092.
S358/2008: [2008] HCASL 581.
Special leave
dismissed.
Appealed from FCA:
[2008] FCA 1174.
S373/2008: [2008] HCASL 582.
Special leave
dismissed.
Appealed from FCA:
[2008] FCA 1202.
S374/2008: [2008] HCASL 583.
Special leave
dismissed.
Appealed from FCA:
[2008] FCA 1185.
S375/2008: [2008] HCASL 584.
Special leave
dismissed.
Appealed from FCA:
[2008] FCA 1161.
S377/2008: [2008] HCASL 585.
Special leave
dismissed.
Appealed from FCA:
[2008] FCA 1158.
S379/2008: [2008] HCASL 586.
Special leave
dismissed.
Appealed from NSW
SC (CA): [No media neutral citation].
S381/2008: [2008] HCASL 587.
Special leave
dismissed.
Appealed from FCA:
[2008] FCA 1253.
S386/2008: [2008] HCASL 588.
Special leave
dismissed.
Appealed from FCA:
[2008] FCA 1231.
S388/2008: [2008] HCASL 589.
Special leave
dismissed.
Appealed from FCA:
[2008] FCA 1326.
S392/2008: [2008] HCASL 590.
Special leave
dismissed.
Appealed from FCA:
[2008] FCA 1155.
S394/2008: [2008] HCASL 591.
Special leave
dismissed.
Appealed from FCA:
[2008] FCA 1254.
S397/2008: [2008] HCASL 592.
Special leave
dismissed.
Appealed from FCA:
[2008] FCA 1197.
S398/2008: [2008] HCASL 593.
Special leave
dismissed.
Appealed from FCA:
[2008] FCA 1250.
S404/2008: [2008] HCASL 594.
Special leave
dismissed.
Appealed from FCA:
[2008] FCA 1215.
S410/2008: [2008] HCASL 595.
Special leave
dismissed.
Appealed from FCA:
[No media neutral citation].
S424/2008: [2008] HCASL 596.
Special leave
dismissed.
Appealed from FCA:
[2008] FCA 1354.
S447/2008: [2008] HCASL 597.
Special leave
dismissed.
Appealed from FCA:
[2008] FCA 1331.
M70/2008: [2008] HCASL 598.
Special leave
dismissed.
Appealed from FCA:
[2008] FCA 1323.
S445/2008: [2008] HCASL 599.
Special leave
dismissed.
Appealed from FCA:
[2008] FCA 1176.
S423/2008: [2008] HCASL 600.
Special leave
dismissed.
Appealed from FCA:
[2008] FCA 1271.
S441/2008: [2008] HCASL 601.
Special leave
dismissed.
Appealed from FCA:
[2008] FCA 1385.
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URL: http://www.austlii.edu.au/au/other/hca/HCAB/2008/12.html