[Home] [Databases] [WorldLII] [Search] [Feedback]

High Court of Australia Bulletins

You are here: AustLII >> Databases >> High Court of Australia Bulletins >> 2008 >> [2008] HCAB 8

[Database Search] [Name Search] [Recent Bulletins] [Noteup] [Download] [Context] [No Context] [Help]

High Court of Australia Bulletin [2008] HCAB 8 (17 September 2008)

Last Updated: 24 September 2008

HIGH COURT BULLETIN

Produced by the High Court of Australia Library

[2008] HCAB 8: 17 September 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.

1: CASES HANDED DOWN

2: CASES RESERVED

3: ORIGINAL JURISDICTION

4: SPECIAL LEAVE GRANTED

5: SPECIAL LEAVE DISMISSED

1: CASES HANDED DOWN

The following cases were handed down by the High Court of Australia during the August–September 2008 sittings.

Capital Finance Australia Limited & Anor v Tolcher & Anor

S220/2008: [2008] HCATrans 316 .

Gummow, Kirby, Heydon, Crennan and Kiefel JJ.

Consent order allowing appeal: 28 August 2008.

Appealed from FCA FC: [2007] FCAFC 185; (2007) 165 FCR 83; (2007) 245 ALR 528; (2007) 64 ACSR 705; (2007) 25 ACLC 1,804.

Deputy Commissioner of Taxation v Broadbeach Properties Pty Ltd

High Court of Australia: [2008] HCA 41.

Gummow ACJ, Kirby, Heydon, Crennan and Kiefel JJ.

Judgment delivered: 3 September 2008.

Catchwords:

Corporations law — Winding up in insolvency — Statutory demand — Corporations Act 2001 (Cth) (“Corporations Act”), s 459H(1) provided for setting aside of statutory demand where genuine dispute about existence or amount of debt — Deputy Commissioner of Taxation served statutory demands on respondent taxpayers in respect of debts — Debts were due and payable for assessments and declarations of goods and services tax, income tax, interest and penalties — Taxpayers instituted review proceedings under Taxation Administration Act 1953 (Cth) (“Administration Act”), Pt IVC and applied to Supreme Court under Corporations Act, s 459G to set aside statutory demands — Whether pending Pt IVC proceedings constituted “genuine dispute ... about the existence or amount of a debt” within meaning of s 459H(1)(a) — Whether primary judge erred in setting aside statutory demands.

Corporations law — Winding up in insolvency — Statutory demand — Discretion to set aside statutory demand for “some other reason” in Corporations Act, s 459J(1)(b) — Scope of discretion — Whether pendency of Pt IVC proceedings proper basis for exercise of discretion — Whether disruption to taxpayers, creditors and contributories proper basis for exercise of discretion — Relevance of provision in Administration Act for recovery of tax while Pt IVC proceedings pending.

Taxation — Recovery of tax — Scope of application of Corporations Act, Pt 5.4 to recovery of tax “debt” — Special character of tax “debts” as creatures of statute — Effect of conclusive evidence provisions in Administration Act, Sched 1, ss 105–100 and 298–30 and Income Tax Assessment Act 1936 (Cth), s 177(1) — Whether position different for “full self-assessment taxpayer” — Concession of Deputy Commissioner that pendency of Pt IVC proceedings relevant to hearing of winding up application.

Words and phrases — “assessment”, “debt”, “full self-assessment taxpayer”, “genuine dispute ... about the existence or amount of a debt”, “some other reason”, “tax debt”, “tax-related liability”.

Appealed from Qld CA: [2007] QCA 312; (2007) 68 ATR 886; (2007) 25 ACLC 1341; 2008 ATC 20–006.

Gedeon v Commissioner of the New South Wales Crime Commission

High Court of Australia: [2008] HCA 43.

Gummow, Kirby, Hayne, Heydon, Crennan and Kiefel JJ.

Judgment delivered: 4 September 2008.

Catchwords:

Criminal law — Evidence — Unlawfully obtained — Part IAB of Crimes Act 1914 (Cth) (“Crimes Act”) provided that person not liable for offences under Commonwealth, State or Territory law committed for purpose of controlled operation — Section 15M of Crimes Act provided for issue of certificate authorising controlled operation if authorising officer reasonably satisfied that, inter alia, unlawful activity in course of controlled operation would not seriously endanger health or safety of person — Section 16 of Law Enforcement (Controlled Operations) Act 1997 (NSW) (“LECO Act”) provided that activity for purpose of controlled operation not unlawful despite other Act or law — Section 3(1) of LECO Act defined “controlled activity” as activity that would be unlawful but for operation of s 16 — Section 7 of LECO Act provided that authority to conduct controlled operation must not be granted if, inter alia, participant in proposed operation would engage in conduct likely to seriously endanger health or safety of person — Section 138 of Evidence Act 1995 (NSW) conferred upon trial judges discretion to exclude evidence obtained illegally.

Criminal law — Evidence — Unlawfully obtained — Commissioner issued authorities (“Authorities”) under LECO Act authorising controlled operations — No authorities issued under Pt IAB of Crimes Act — Authorities authorised informer to sell cocaine to appellants — Cocaine not recovered by law enforcement officers — Appellants charged with taking part in supply of prohibited drug contrary to Drug Misuse and Trafficking Act 1985 (NSW).

Criminal law — Evidence — Unlawfully obtained — Whether Commissioner had power to issue Authorities where sale of cocaine without recovery strategy was decided at trial or upon judicial review to seriously endanger health or safety of person — Whether reference to “any other person” in s 7 of LECO Act confined to person in physical vicinity of authorised conduct or extended to person subject to foreseen and expected consequence of proposed controlled operation — Whether “controlled activity” within meaning of LECO Act extended to conduct unlawful by reason of contravention of Commonwealth law.

Judgments and orders — Judicial review — Declarations — Whether jurisdiction to entertain application to declare Authorities invalid — Whether discretion to do so should be exercised — Matters bearing on appropriateness of making declaration touching conduct of criminal proceedings.

Words and phrases — “controlled operation”, “declarations”, “seriously endanger health or safety”.

S536/2007 appealed from NSW CA: [2007] NSWCA 296; (2007) 64 ACSR 91; (2007) 177 A Crim R 44.
S544/2007 appealed from NSW CA: [2007] NSWCA 235; (2008) Aust Contract R ¶90–274.

Imbree v McNeilly; McNeilly v Imbree

High Court of Australia: [2008] HCA 40.

Gleeson CJ, Gummow, Kirby, Hayne, Heydon, Crennan and Kiefel JJ.

Judgment delivered: 28 August 2008.

Catchwords:

Negligence — Standard of care — Definition of standard — Where unskilled and inexperienced driver with passenger who, aware of driver's lack of skill and experience, has undertaken to supervise driving — Whether “special relationship” between driver and supervising passenger such that standard of care required of driver in respect of supervising passenger is merely care reasonably to be expected of unqualified and inexperienced driver in the circumstances, rather than care to be expected of a reasonable driver — Whether Cook v Cook [1986] HCA 73; (1986) 162 CLR 376 should still be followed.

Negligence — Standard of care — Relevance of compulsory third party insurance to definition of standard of care in negligence in motor vehicle context.

Insurance — Motor vehicles — Compulsory third party insurance — Compulsory provisions applicable throughout Australia — Relevance of such insurance to definition of standard of care in negligence in motor vehicle context — Whether such insurance immaterial to standard of care to be expected of learner driver — Whether common law of negligence affected in relevant way by existence of compulsory third party insurance.

Words and phrases — “compulsory third party insurance”, “duty of care”, “proximity”, “special relationship”, “standard of care”.

Appealed from NSW CA: [2007] NSWCA 156; (2007) 47 MVR 536; (2007) Aust Torts Reports 81–895.

Macedonian Orthodox Community Church St Petka Incorporated v His Eminence Petar The Diocesan Bishop of The Macedonian Orthodox Diocese of Australia and New Zealand

High Court of Australia: [2008] HCA 42.

Gummow ACJ, Kirby, Hayne, Heydon and Kiefel JJ.

Reasons for judgment published: 4 September 2008.

Catchwords:

Trusts — Trustees — Judicial advice — Charitable trust — Entitlement of trustee to advice that it would be entitled to defend itself against allegations of breach of trust — Entitlement of trustee to advice that it could fund its defence from trust property.

Trusts — Trustees — Judicial advice — Power of Supreme Court — Trustee Act 1925 (NSW), s 63(1) — Limitations on power to give advice — Nature of advice — Power to revoke order providing advice — Effect of revocation.

Trusts — Trustees — Judicial advice — Factors relevant to discretion of Supreme Court to give advice under s 63 of Trustee Act 1925 (NSW) — Whether advice in best interests of trust — Whether trustee's financial position irrelevant — Whether Court required expressly to undertake exercise balancing advantages to trust in giving advice against disadvantages — Relevance of adversarial character of proceedings.

Charities — Trustees — Judicial advice — Relevance of public benefit in giving advice.

Practice and Procedure — Appeal from discretionary decision — Necessity of intermediate appellate court identifying particular House v The King [1936] HCA 40; (1936) 55 CLR 499 error — Whether error shown where trial judge said not to “expressly” consider particular matters not put at trial.

Words and phrases —”all expenses incurred”, “question respecting the management or administration of the trust property”.

Appealed from NSW CA: [2007] NSWCA 150.

Master Education Services Pty Ltd v Ketchell

High Court of Australia: [2008] HCA 38.

Gummow ACJ, Kirby, Hayne, Crennan and Kiefel JJ.

Judgment delivered: 27 August 2008.

Catchwords:

Contract — Illegality — Statute not complied with — Appellant franchisor contravened cl 11(1) of Franchising Code of Conduct (“Code”) in entering into franchise agreement with respondent franchisee — Section 51AD of Trade Practices Act 1974 (Cth) (“TPA”) provided that applicable industry codes must not be contravened by corporations in trade or commerce — Court of Appeal of New South Wales held franchise agreement to be unenforceable due to illegality at common law arising from contravention of Code and s 51AD — Whether contravention of Code and s 51AD resulted in illegality and unenforceability of franchise agreement — Whether legislative purpose of Pt IVB of TPA could be fulfilled without franchise agreement being unenforceable in light of remedies available in Pt VI for contravention of s 51AD.

Words and phrases — “code of conduct”, “franchise agreement”, “illegality”.

Appealed from NSW CA: [2007] NSWCA 161; (2008) Aust Contract R ¶90–268.

The Queen v Tang

High Court of Australia: [2008] HCA 39.

Gleeson CJ, Gummow, Kirby, Hayne, Heydon, Crennan and Kiefel JJ.

Judgment delivered: 28 August 2008.

Catchwords:

Criminal law — Slavery — Licensed brothel — Foreign sex workers — Whether respondent “intentionally possesses a slave or exercises over a slave any of the other powers attaching to the right of ownership” contrary to Criminal Code (Cth) ("the Code"), s 270.3(1)(a) — Elements of offence.

Criminal procedure — Directions to jury — Fault element of offence — Relevance of respondent's state of mind — “Intention” — Whether court required to direct on all aspects of definition of “intention” in Code, s 5.2 or only on aspect of definition attaching to physical element or elements of offence.

Criminal law — Conviction — Whether verdicts unreasonable or not supported by evidence – “Proviso” in Crimes Act 1958 (Vic), s 568(1) — Whether verdict of acquittal or re-trial appropriate.
Constitutional law — External affairs power — International Convention to Suppress the Slave Trade and Slavery (1926) — Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices similar to Slavery (1956) — Implementation of treaty by legislation regulating conduct in Australia — Whether Code, ss 270.1 and 270.3(1)(a) within legislative power — Constitution, s 51(xxix).

Words and phrases – “possess”, “powers attaching to the right of ownership”, “slave”, “slavery”.

Appealed from Vic CA: [2007] VSCA 144.

2: CASES RESERVED

The following cases have been reserved for judgment by the High Court of Australia.

**** Indicates cases reserved for judgment since
High Court Bulletin 7 [2008] HCAB 7.

Aborigines

Minister Administering the Crown Lands Act v NSW Aboriginal Land Council

S217/2008: [2008] HCATrans 289.

Date heard: 7 August 2008 — Judgment reserved.

Kirby, Hayne, Heydon, Crennan and Kiefel JJ.

Catchwords:

Aborigines — Statute — Interpretation — Real property — Crown land — Aboriginal land councils can make claims to Crown land which is “not lawfully used or occupied” — Whether the decision to sell Crown land, and the taking of steps to implement that decision, amount to the land being “lawfully used” — Aboriginal Land Rights Act 1983 (NSW), s 36 — Crown Lands Act 1989 (NSW).

Appealed from NSW CA: [2007] NSWCA 281; (2007) 157 LGERA 18.

Contract

Agricultural & Rural Finance Pty Ltd v Gardiner & Anor

S180/2008: [2008] HCATrans 264.

Date heard: 31 July 2008 — Judgment reserved.

Gummow, Kirby, Hayne, Heydon and Kiefel JJ.

Catchwords:

Contract — Loan Agreements — Indemnity Agreements — Common form — Construction — Punctual payment — Clauses 2(a) and 2(b) of Indemnity Agreements provide that indemnity shall be effective and enforceable if Borrower has “punctually paid” interest and reductions of Principal Sum payable under Loan Agreement — Whether the requirements for “punctual payment” in cll 2(a) and 2(b) of the Indemnity Agreement bore their original meaning, namely, that the payments had to be made on or before the day fixed for payment by the Loan Agreements in question.

Contract — Loan Agreements — Indemnity Agreements — Common form — Construction — Waiver — Variation — Punctuality — Appellant sent letter (dated 2 June 1999) to first respondent indicating that as the appellant had failed to send reminder notices, payment would be accepted as “on time” until a later date — Whether the appellant’s letter to the first respondent constituted a variation or waiver of the first respondent’s obligations under the first and second Loan Agreements to make instalments of principal and interest by the due dates — If so, whether such variation or waiver, if made without the consent of the second respondent as surety, constituted a variation or waiver of the requirements of cll 2(a) and 2(b) of the Indemnity Agreements.

Appealed from NSW CA: [2007] NSWCA 235; (2008) Aust Contract R 90–274.

Criminal Law

****Cesan v The Queen; Mas Rivadavia v The Queen

S233/2008; S236/2008: [2008] HCATrans 320.

Date heard: 3 September 2008 — Orders made on 3 September 2008 allowing the appeals. Written reasons of the Court to be published at a future date.

French CJ, Gummow, Hayne, Heydon, Crennan and Kiefel JJ.

Catchwords:

Criminal law — Appeal and new trial — Miscarriage of justice — Judge asleep during trial — Where appellant is not able to point to any particular error on part of trial judge in the conduct of the trial — Whether the fact that a trial judge, sitting with a jury, was asleep during the course of a trial, constitutes a substantial miscarriage of justice — Criminal Appeal Act 1912 (NSW), s 6.

Criminal law — Appeal and new trial — Miscarriage of justice — Where a court of criminal appeal has no particular experience in assessing impact on a jury of conduct complained of — What must defendant show to establish “miscarriage of justice” in such circumstances — Criminal Appeal Act 1912 (NSW), s 6.

Criminal law — Appeal and new trial — Judge asleep during trial — Fundamental defect — Proviso — Whether the fact that a judge is asleep for parts of a trial is a fundamental defect to which proviso cannot be applied — Criminal Appeal Act 1912 (NSW), s 6 — Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300.

Appealed from NSW CCA: [2007] NSWCCA 273; (2007) 174 A Crim R 385.

Equity

****Spry v Kennon & Ors; Kennon & Anor v Spry & Ors

M26/2008; M25/2008: [2008] HCATrans 319.

Date heard: 2 September 2008 — Judgment reserved.

French CJ, Gummow, Hayne, Heydon and Kiefel JJ.

Catchwords:

Equity — Trusts — Where a beneficiary of a trust has, by deed, formally and absolutely released all beneficial rights and interest in the trust — Whether the beneficiary can subsequently cancel the release so as to acquire again beneficial rights or an interest in the trust — Whether a cancellation of a deed operates retrospectively so as to nullify releases or dispositions of property that have already occurred.

Equity — Trusts — Family law — Divorce — Family trust — Husband is sole trustee — Whether the trustee of a trust, in which neither party to the relevant marriage has beneficial rights or a beneficial interest, can be compelled by order of the Family Court of Australia to admit one of those parties as a beneficiary or to confer beneficial rights in the trust upon the party — Rights of other beneficiaries.

Family law — Divorce — Property settlement — Family trust — Husband originally a beneficiary — Husband always sole trustee — Where a beneficiary of a trust has, by deed, formally and absolutely released all beneficial rights and interest in the trust — Whether the Family Court of Australia can subsequently treat the trust property as the releasor’s and include all or any of that property in the releasor’s property for the purpose of ss 4, 75, 79 or 85A of the Family Law Act 1975 (Cth) — Rights of other beneficiaries.

Appealed from Fam CA: [No media neutral citation].

Family Law

See Equity: *****Spry v Kennon & Ors; Kennon & Anor v Spry & Ors*.

Intellectual Property

Northern Territory of Australia v Collins & Anor

D2/2008: [2008] HCATrans 245.

Date heard: 17 June 2008 — Judgment reserved.

Gummow, Kirby, Hayne, Heydon and Crennan JJ.

Catchwords:

Intellectual property — Patents — Infringement by supply of products — Whether the grant of licences by the appellant to the Australian Cypress Oil Company Pty Ltd (“ACOC”) to go upon Crown lands and take timber is capable, as a matter of law, of constituting a contributory infringement of a method or process patent owned by the respondents — Whether, where a patent is for a method or process, the supply of an input into the method or process is capable of attracting the operation of s 117(1) of the Patents Act 1990 (Cth) — Whether the grant of the licences amounted to a “supply” of the timber to ACOC — Whether the timber, the subject of the licences, was a “staple commercial product” — Patents Act 1990 (Cth), s 117.

Appealed from FCA FC: [2007] FCAFC 152; (2007) 161 FCR 549; (2007) 243 ALR 483; (2007) 74 IPR 296.

Private International Law

****Puttick v Fletcher Challenge Forests Limited

M40/2008: [2008] HCATrans 322.

Date heard: 4 September 2008 — Judgment reserved.

French CJ, Gummow, Hayne, Heydon, Crennan and Kiefel JJ.

Catchwords:

Private international law — Torts — Negligence — Place of occurrence of the tort — Respondent a New Zealand company — Appellant employed by New Zealand subsidiary of Respondent — Appellant sent by employer from New Zealand to visit asbestos manufacturing plants in Belgium and Malaysia — Appellant later died of mesothelioma in Australia — Claim for damages for personal injury caused by an alleged negligent omission to act on the part of the Respondent — Whether the place of occurrence of a tort is the place where the act or omission of the defendant gives the plaintiff a cause of complaint in law — Whether that test requires locating a consequential event involving the plaintiff that gives the omission factual, causal and legal significance.

Private international law — Torts — Overseas inhalation of asbestos — Applicable law — Victorian Court of Appeal held that the applicable law was not the place where the toxic substance was inhaled — Whether that decision involves a departure from the common law of Australia as stated in other cases concerning overseas inhalation of asbestos.

Private international law — Forum non conveniens — Torts — Application by Respondent for permanent stay — Where governing law is said to be the law of New Zealand — Where New Zealand law a no fault statutory scheme — Where Appellant resident in Victoria and some factors connected to Victoria — Where other factors connected to New Zealand — Whether Victoria a clearly inappropriate forum.

Appealed from Vic CA: [2007] VSCA 264.

Taxation

Asciano Services Pty Ltd v Chief Commissioner of State Revenue

S211/2008: [2008] HCATrans 288.

Note: This case was previously known as Pacific National (ACT) Limited v Chief Commissioner of State Revenue.

Date heard: 6 August 2008 — Judgment reserved.

Gummow, Kirby, Hayne, Crennan and Kiefel JJ.

Catchwords:

Taxation — Stamp duty — “Right to use land” — Rail access regime — “Access agreement” with Rail Access Corporation to operate rail services on “NSW rail network”, defined to include railway lines and associated “railway infrastructures facilities” — Where railway infrastructure facilities are owned separately from the land on which they are situated — Where a statutory right to access the rail infrastructure facilities to which an access agreement relates (even if facilities situated on land owned by State Rail Authority) is conferred upon a person who is party to an access agreement — Whether access agreement an “agreement ... by which a right to use land ... is conferred on or acquired by a person” — Duties Act 1997 (NSW), s 164A(b); Transport Administration Amendment (Rail Corporatisation and Restructuring) Act 1996, Sched 6A.

Appealed from NSW CA: [2007] NSWCA 325; (2007) ATC 5200; [2008] NSW ConvR 56–202.

****Commissioner of Taxation v Day

S315/2008: [2008] HCATrans 315.

Date heard: 28 August 2008 — Judgment reserved.

Gummow, Kirby, Hayne, Heydon and Kiefel JJ.

Catchwords:

Taxation — Deductions — Legal expenses — Taxpayer involved in legal proceedings concerning alleged failure to fulfil duties as public officer — Whether legal expenses incurred by taxpayer in defending disciplinary and other action deductible pursuant to s 8-1 of the Income Tax Assessment Act 1997 (Cth) (“the Act”) — Whether legal expenses were incurred in gaining or producing assessable income of taxpayer within s 8-1(1)(a) of the Act and/or are of a capital, private or domestic nature within s 8-1(2) of the Act.

Appealed from FCA FC: [2007] FCAFC 193; (2007) 164 FCR 250; (2007) 243 ALR 448; (2007) 67 ATR 936; (2007) ATC 5426.

****Commissioner of Taxation v Word Investments Limited

M41/2008: [2008] HCATrans 314.

Date heard: 27 August 2008 — Judgment reserved.

Gummow, Kirby, Hayne, Heydon and Crennan JJ.

Catchwords:

Taxation — Income tax — Exemptions — Charitable institution — Respondent established by persons associated with Wycliffe Bible Translators Australia — Respondent’s Memorandum of Association sets out commercial objects and also objects relating to the advancement of religion and things conducive to the good of religion — Distributes part of profits to charities — Whether a company whose sole activity is the conduct of a commercial and investment enterprise for profit is a charitable institution because it exercises the discretion conferred under its Memorandum of Association to distribute its profits from time to time to one or more charitable institutions — Income Tax Assessment Act 1997 (Cth), s 50-5.

Taxation — Income tax — Exemptions — Charitable institution — Whether a company whose sole activity is the conduct of a commercial and investment enterprise for profit is a charitable institution because it distributes such part of the profits as it does not retain for its own business purposes for purposes that are, and are permitted by the Memorandum to be, both charitable and non—charitable Income Tax Assessment Act 1997 (Cth), s 50-5.

Taxation — Income tax — “Principally in Australia” — Whether a company that derives its profits in Australia, principally for the purpose of applying the profits by donating them in Australia to another entity which pursues its objectives outside Australia, is pursuing its objectives principally in Australia when it so applies its profits — Income Tax Assessment Act 1997 (Cth), s 50-50.

Appealed from FCA FC: [2007] FCAFC 171; (2007) 164 FCR 194; (2007) 243 ALR 44; (2007) ATC 5164.

Trade Practices

BHP Billiton Iron Ore Pty Ltd v National Competition Council & Anor; BHP Billiton Iron Ore Pty Ltd & Anor v National Competition Council & Anor

M17/2008; P6/2008: [2008] HCATrans 260; [2008] HCATrans 261.

Date heard: 29–30 July 2008 — Judgment reserved.

Gummow, Kirby, Hayne, Heydon, Crennan and Kiefel JJ.

Catchwords:

Trade practices — Statute — Interpretation — Definition of “service” — Access application — Application to the National Competition Council pursuant to s 44F(1) of the Trade Practices Act 1974 (Cth) (“the TPA”) seeking a recommendation that the service provided by parts of particular railway lines be declared a service under Part IIIA of the TPA — Whether the use of a rail facility constructed for the sole purpose of use in an integrated mining operation is a “service” — “Use of a production process” — Proper construction of the phrase “use of a production process” in the definition of service — Whether this includes the use of part of the production process — Whether the conclusion of the majority of the Full Court of the Federal Court that the use of the particular rail facilities subject to the proceedings is the use of a service within the meaning of the definition of service is correct — Trade Practices Act 1974 (Cth), s 44B.

Appealed from FCA FC: [2007] FCAFC 157; (2007) 162 FCR 234; (2007) ATPR 42–190.

3: ORIGINAL JURISDICTION

The following cases are ready for hearing in the original jurisdiction of the High Court of Australia.

**** Indicates cases ready for hearing since
High Court Bulletin 7 [2008] HCAB 7.

Constitutional Law

Wurridjal & Ors v The Commonwealth of Australia & Anor

M122/2007.

Date last heard: 11 March 2008 — Writ of summons.

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 the Commonwealth — Terms of lease — Abolition of permit system — Terms of payment of compensation — Whether ss 31, 32, 34, 35, 36, 37, 50, 51, 52, 60, 61 and 62 of the 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) have resulted in an acquisition of property other than on just terms and are therefore invalid — Constitution, s 51(xxxi).

Constitutional law — Acquisition of property other than on just terms — Acquisition of tangible assets — Where the Commonwealth is empowered to acquire management, control, possession and ownership of tangible assets — Terms of payment of compensation — Whether ss 68(2) and 134 of the Emergency Response Act provide for the acquisition of property other than on just terms and are therefore invalid — Constitution, s 51(xxxi).

This matter was brought in the original jurisdiction of the High Court.

4: SPECIAL LEAVE GRANTED

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 7 [2008] HCAB 7.

Constitutional Law

K–Generation Pty Ltd & Anor v Liquor Licencing Court & Anor

A12/2008: [2008] HCATrans 197.

Date heard: 23 May 2008 — Special leave granted.

Catchwords:

Constitutional law — Judicial power — Chapter III court — Liquor Licensing Court of South Australia — Required to hear and determine a review without disclosing to the applicant information classified as “criminal intelligence” relied on by the Liquor Licensing Commissioner in refusing an application for a licence — Validity — Natural justice — Whether legislation requiring a court capable of exercising federal jurisdiction to make a determination at trial level 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.

Wong v Commonwealth of Australia & Anor; Selim v Lele & Ors

S136/2008; S137/2008: [2008] HCATrans 265.

Date heard: 1 August 2008 — Special leave granted.

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 — Practical compulsion for general practitioners to participate in the Medicare 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.

Contracts

****Campbell & Anor v Backoffice Investments Pty Ltd & Anor

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.

Courts and Judicial System

Keramianakis & Anor v Regional Publishers Pty Ltd

S311/2008: [2008] HCATrans 230.

Date heard: 13 June 2008 — Special leave granted.

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.

Lujans v Yarrabee Coal Company Pty Ltd & Anor

S3/2008: [2008] HCATrans 239.

Date heard: 13 June 2008 — Referred to Full Court.

Catchwords:

Courts and judicial system — Intermediate appellate court — Discharge of functions — Rehearing — Fact finding process — Error of process — Error of principle — Motor vehicle accident on mine road — Vehicle entered shoulder of road and eventually rolled — 29 day trial — Case turned on the two essential fact findings of whether the road was deceptive by reason of its uniformity of colour and, if so, whether the deceptiveness contributed to the accident — Consideration by trial judge of extensive oral evidence, photographs, documents and a view of the scene of accident — Court of Appeal found that whether or not the road was deceptive the applicant must fail because she had inadvertently entered the soft shoulder of the road — Whether the Court of Appeal did not fully appreciate and understand all the details that the primary judge had taken into account in his reasons and thus did not discharge its functions properly.

Appealed from NSW CA: [2007] NSWCA 342; (2007) 49 MVR 178.

Criminal Law

PNJ v The Queen

A8/2008: [2008] HCATrans 291.

Date heard: 8 August 2008 — Referred to Full Court.

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.

The Queen v Keenan

B23/2008: [2008] HCATrans 247.

Date heard: 13 June 2008 — Special leave granted.

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.

Defamation

See Courts and Judicial System: Keramianakis & Anor v Regional Publishers Pty Ltd.

Immigration

Sok v Minister for Immigration and Citizenship & Anor

M60/2008.

Date granted: 21 July 2008 — Special leave granted on the papers.

Catchwords:

Immigration — Permanent spouse visa — Must be spouse of sponsor at time of application and at time of decision — Exception — Domestic violence — Whether the domestic violence provisions only apply to a claim of domestic violence in fact made in the visa application before the Minister or delegate, or whether the domestic violence provisions can apply where the claim is raised for the first time on review before the Migration Review Tribunal — Whether the Migration Review Tribunal must invite the visa applicant to a hearing under s 360 of the Migration Act 1958 (Cth) before it reaches a state of satisfaction about whether the applicant is a victim of domestic violence — Migration Act 1958 (Cth), ss 349, 360 — Migration Regulations 1994 (Cth), Pt 100 of Schedule 1 and Div 1.5.

Appealed from FCA FC: [2008] FCAFC 18; (2008) 165 FCR 586; (2008) 245 ALR 488; (2008) 100 ALD 260.

Intellectual Property

****IceTV Pty Ltd v Nine Network Australia Pty Ltd

S231/2008: [2008] HCATrans 308.

Date heard: 26 August 2008 — Special leave granted.

Catchwords:

Intellectual property — Copyright — Originality — Television program schedules — Skill and labour — Respondent supplied third party with weekly television schedules — Applicant compiled electronic program guide (“EPG”) using, in part, information contained in aggregated guides produced by third party — Whether EPG infringed copyright of Respondent — Whether “substantial” part of copyright work taken — Whether aggregated guide a “compilation”, breaking chain of causation between Applicant and Respondent’s work — Copyright Act 1968 (Cth), ss 10, 14.

Appealed from FCA FC: [2008] FCAFC 71.

Landlord and Tenant

Tabcorp Holdings Ltd v Bowen Investments Pty Ltd

M63/2008: [2008] HCATrans 266.

Date heard: 1 August 2008 — Special leave granted.

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, and any foyer in place at the end of the lessee’s tenancy would need extensive renovation — Whether, in such circumstances, 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: [2007] FCAFC 38.

Local Government

****R & R Fazzolari Pty Ltd v Parramatta City Council; Mac’s Pty Ltd v Parramatta City Council & Anor

S323/2008; S324/2008: [2008] HCATrans 305.

Date heard: 26 August 2008 — Special leave granted.

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 ... if it is being acquired for the purpose of re-sale” — Definition of “purpose” — Whether land acquired for part of a redevelopment project by private developers falls within prohibition contained in the Act.

Appealed from NSW CA: [2008] NSWCA 132.

Police

Stuart & Anor v Kirkland–Veenstra & Anor

M39/2008: [2008] HCATrans 217.

Date heard: 23 May 2008 — Special leave granted.

Catchwords:

Police — Torts — Duty of care — Respondents found the applicant’s husband sitting in his car with a tube running from the exhaust through to the rear window at 5:40am — Spoke to applicant’s husband and allowed him to leave the car park — Applicant’s husband committed suicide later on that day — Whether a duty of care should be imposed on police officers, which requires them 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 — Mental Health Act 1986 (Vic), s 10.

Police — Torts — Duty of care — Whether, in considering the existence or otherwise of such a duty of care, police officers should be equated with a statutory authority and thus the criteria formulated for the imposition of a duty of care on statutory authorities should be applied.

Police — Powers of apprehension — Apprehension of mentally ill persons in certain circumstances — Interpretation — 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.

Appealed from Vic CA: [2008] VSCA 32; (2008) Aust Torts Reports ¶81–936.

Practice and Procedure

Parker v Comptroller–General of Customs

S317/2008: [2008] HCATrans 236.

Date heard: 13 June 2008 — Special leave granted.

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 an important finding made by the trial judge in favour of the Applicant as to illegal conduct within 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 it was considering it — Court of Appeal failed to give the applicant adequate opportunity to argue the correctness of O’Neill’s Case — Whether, given this denial of procedural fairness, the decision of the Court of Appeal should be allowed to stand.

Appealed from NSW CA: [2007] NSWCA 348; (2007) 243 ALR 574.

SZHDC v Minister for Immigration and Multicultural Affairs & Anor

S361/2008: [2008] HCATrans 267.

Date heard: 1 August 2008 — Special leave granted.

Catchwords:

Practice and procedure — Refugee Review Tribunal — Hearing — Notification — Formal requirements set out in s 425A of the Migration Act 1958 (Cth) — Hearing rescheduled — Whether the formal requirements of s 425A apply to notification of rescheduling of hearing.

Practice and procedure — Refugee Review Tribunal — Hearing — Notification —Tribunal invited applicant to attend a hearing — Applicant sent facsimile to the Tribunal advising that he was not well and would not appear — Enclosed medical certificate indicated an inability to attend up to and including 18 July 2005 — By letter dated 15 July 2005, Tribunal sent, by express post, to a post office box nominated by the applicant notification that the hearing had been rescheduled to 20 July 2005 — Only two full business days between date of notice and date of hearing — Applicant did not check post office box until after the hearing — Reasonable notice required — Whether there was a failure to give reasonable notice of the new hearing date.

Appealed from FCA: [2006] FCA 600.