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High Court of Australia Bulletin [2009] HCAB 1 (17 February 2009)

Last Updated: 19 February 2009

HIGH COURT BULLETIN

Produced by the High Court of Australia Library

[2009] HCAB 1 (17 February 2009)

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

The following cases were handed down by the High Court of Australia during the February 2009 sittings.

K-Generation Pty Limited v Liquor Licensing Court

High Court of Australia: [2009] HCA 4.

Judgment delivered: 2 February 2009.

Coram: French CJ, Gummow, Kirby, Hayne, Heydon, Crennan and Kiefel JJ.

Catchwords:

Constitutional law (Cth) — Chapter III — Judicial power — Vesting of federal jurisdiction in State courts — Licensing Court of South Australia established under Liquor Licensing Act 1997 (SA) (“Licensing Act”) — Licensing Court constituted by District Court judge — Whether Licensing Court “court of a State” within meaning of s 77(iii) of Constitution — Whether Licensing Court invested with federal jurisdiction by s 39(2) of Judiciary Act 1903 (Cth) (“Judiciary Act”) — Significance of absence of express power of punishment for contempt.

Constitutional law (Cth) — Chapter III — Judicial power — Vesting of federal jurisdiction in State courts — Integrity of State courts — Requirement of impartiality and independence for repository of federal jurisdiction — Licensing Act, s 28A required Licensing Court to take steps to maintain confidentiality of information classified by Commissioner of Police as “criminal intelligence” in proceedings under Licensing Act — Steps included receipt of evidence and argument in absence of parties — Whether s 28A invalid for denying Licensing Court character of independent and impartial tribunal.

Statutes — Interpretation — Licensing Act, s 28A — “Criminal intelligence” defined to include information which “could reasonably be expected” to prejudice criminal investigations — Whether classification by Commissioner of Police of information as “criminal intelligence” amenable to review by Licensing Court — Whether mandatory for Licensing Court to hear evidence and argument in absence of parties.

Constitutional law (Cth) — Chapter III — Judicial power — Vesting of federal jurisdiction in State courts — Integrity of State courts — Whether consequence of impairment of integrity is that Licensing Court no longer “court of a State” to which s 77(iii) of Constitution applies — Whether s 39(2) of Judiciary Act ambulatory and would cease to apply — Whether States may establish “court of a State” then subsequently deprive court of independence and impartiality.

Constitutional law (Cth) — Chapter III — Judicial power — Nature of judicial power — Whether exercise by Licensing Court of judicial or administrative power.

Practice and procedure — Interveners — Procedure where interveners seek remedy and assert arguments opposed by immediate parties.

Words and phrases — “could reasonably be expected”, “court of a State”, “criminal intelligence”.

Appealed from SA SC: [2007] SASC 319; (2007) 99 SASR 58; (2007) 213 FLR 394; (2007) 250 LSJS 375.

Parker v Comptroller–General of Customs

High Court of Australia: [2009] HCA 7.

Judgment delivered: 12 February 2009.

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

Catchwords:

Practice and procedure — Appeals — Procedural fairness — Respondent issued a warrant under s 214 of Customs Act 1901 (Cth) authorising seizure of documents relating to single bottle of brandy — Officers of respondent seized documents relating to “other goods” imported within previous five years — District Court decided in In the matter of the appeal of Lawrence Charles O'Neill (unreported, District Court of New South Wales, 18 August 1988) that warrants issued under s 214 did not permit seizure of five year documents — Court of Appeal decided O'Neill “mistaken” without affording appellant opportunity to make submissions — Whether appellant denied procedural fairness in Court of Appeal — Scope of principles respecting procedural fairness in curial proceedings — Whether appellate court required to afford parties opportunity to be heard on non-binding decision.

Practice and procedure — Appeals — Procedural fairness — Court of Appeal went on to decide appeal on footing O'Neill correct — Whether lack of opportunity to make submissions with respect to O'Neill caused prejudice to appellant and affected outcome in Court of Appeal.

Evidence — Illegally or improperly obtained evidence — Evidence Act 1995 (NSW) (“Evidence Act”), s 138 — Respondent admitted condition precedent to execution of warrant not satisfied — Whether wilful disregard of Act in execution of warrant — Whether additional fact of seizure of five year documents relevant to exercise of discretion under s 138.

Practice and procedure — Appeals — Procedural fairness — Function of appellate court upon review of exercise by trial judge of discretion under s 138 of Evidence Act.

Words and phrases — “procedural fairness”, “relating to the goods”, “the goods”.

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

PNJ v The Queen

High Court of Australia: [2009] HCA 6.

Judgment delivered: 10 February 2009.

Coram: French CJ, Gummow, Hayne, Crennan and Kiefel JJ.

Catchwords:

Criminal law — Jurisdiction, practice and procedure — Stay of proceedings — Abuse of process — Applicant convicted of wounding with intent to cause grievous bodily harm and sentenced to 7 years' imprisonment with 4 years' non-parole period — Sentence and non-parole period to commence on date applicant first taken into custody — Victim since deceased — Applicant now charged with murder after serving most of sentence for wounding with intent to cause grievous bodily harm — Generally court must impose mandatory minimum non-parole period of 20 years if convicted — Whether proceedings on information alleging murder should be permanently stayed as abuse of process — Whether administration of justice brought into disrepute — Whether prosecution for murder unjustifiably oppressive — Whether conviction for murder would constitute double punishment for conduct — Whether double punishment to be determined by reference only to non-parole period — Fixing of non-parole period.

Criminal law — Jurisdiction, practice and procedure — Stay of proceedings — Abuse of process — Backdating sentence and non-parole period — Whether any double punishment alleviated or eliminated by exercise of any power to backdate — Whether non-parole period could be backdated to commence at date applicant first taken into custody — Whether “time in custody in respect of an offence” included time spent in custody for wounding with intent to cause grievous bodily harm — Whether backdating commencement of sentence for murder equivalent to ordering service of that sentence concurrently with sentence for wounding — Relevance of legislative intention.

Criminal law — Jurisdiction, practice and procedure — Stay of proceedings — Abuse of process — Court must impose mandatory minimum non-parole period of 20 years unless satisfied that “special reasons” exist for fixing shorter period — Court may have regard to a plea of guilty in deciding whether “special reasons” exist — Whether applicant denied free choice about plea in answer to murder charge, because if convicted on plea of not guilty, applicant subject to mandatory minimum non-parole period, whereas if convicted on guilty plea, applicant can argue “special reasons” exist for fixing shorter non-parole period.

Words and phrases — “special reasons”, “time in custody in respect of an offence”.

Appealed from SA SC: [2008] SASC 97; (2008) 254 LSJS 302.

Tabcorp Holdings Ltd v Bowen Investments Pty Ltd

High Court of Australia: [2009] HCA 8.

Judgment delivered: 12 February 2009.

Coram: French CJ, Gummow, Heydon, Crennan and Kiefel JJ.

Catchwords:

Contract — Damages — Lease — Tenant's covenant — Covenant not to make any substantial alteration to premises without consent — Appropriate measure of damages for tenant's breach.

Contract — Damages — Lease — Principle in Robinson v Harman [1848] EngR 135; (1848) 1 Ex 850 [154 ER 363] — Whether costs of rectification available — Whether rectification must be reasonable — Relevance of commercial character of premises — Whether landlord entitled only to damages for diminution in value of reversion.

Words and phrases — “costs of repair”, “rectification costs”.

Appealed from FCA FC: [2008] FCAFC 38; (2008) 166 FCR 494; (2008) 247 ALR 208; (2008) ANZ ConvR ¶8–018; [2008] ALMD 5540.

The Queen v Keenan

High Court of Australia: [2009] HCA 1.

Judgment delivered: 2 February 2009.

Coram: Kirby, Hayne, Heydon, Crennan and Kiefel JJ.

Catchwords:

Criminal law — Criminal responsibility — Criminal Code (Q), s 8 provided that, where common intention to prosecute unlawful purpose, and in prosecution of such purpose offence committed of such a nature that commission was a probable consequence of prosecution of unlawful purpose, each person deemed to have committed offence — Meaning of “offence ... of such a nature” — Whether “offence ... of such a nature” limited to precise acts committed.

Criminal law — Criminal responsibility — Nature of connection between unlawful purpose and offence ultimately committed — Determination of unlawful purpose — Relevance of means by which offence committed — Whether purpose may be infliction of level of harm — “Probable consequence” as objective test — Distinction between offence of such a nature that commission was probable consequence of prosecution of unlawful purpose, and precise acts that parties to common intention foresaw might be committed.

Criminal law — Practice and procedure — Directions to jury — Directions required in connection with charge under s 8 — Identification of real question for jury — Relevance of R v Barlow [1997] HCA 19; (1997) 188 CLR 1 — Whether directions given gave rise to miscarriage of justice.

Criminal law — Practice and procedure — Directions to jury — Whether circumstances required direction that jury can only find, by inference, element of offence charged if no other inference favourable to accused reasonably open on facts — Standard of proof.

Criminal law — Practice and procedure — Directions to jury — Whether circumstances required that alternative charge of grievous bodily harm simpliciter be put to jury — Whether failure to put alternative charge to jury constituted miscarriage of justice.

Criminal law — Practice and procedure — Where alleged miscarriage arising from jury direction — Appropriate course on appeal — Whether Court of Appeal should have ordered new trial rather than entering verdict of acquittal.

Words and phrases — “common intention”, “common purpose”, “offence of such a nature”, “probable consequence”, “unlawful purpose”.

Appealed from Qld CA: [2007] QCA 440.

Wong v Commonwealth of Australia; Selim v Lele, Tan and Rivett constituting the Professional Services Review Committee No 309

High Court of Australia: [2009] HCA 3.

Judgment delivered: 2 February 2009.

Coram: French CJ, Gummow, Kirby, Hayne, Heydon, Crennan and Kiefel JJ.

Catchwords:

Constitutional law (Cth) — Legislative power — Constitution, s 51(xxiiiA) — Provision of medical and dental services (but not so as to authorize any form of civil conscription) — Meaning of “civil conscription”.

Constitutional law (Cth) — Legislative power — Constitution, s 51(xxiiiA) — Provision of medical and dental services (but not so as to authorize any form of civil conscription) — Health Insurance Act 1973 (Cth) — Whether ss 10, 20, 20A or Pt VAA or any provision thereof amount to “civil conscription” — Meaning of “inappropriate practice” as defined in s 82(1).

Constitutional law (Cth) — Legislative power — Constitution, s 51(xxiiiA) — Provision of medical and dental services (but not so as to authorize any form of civil conscription) — Health Insurance Act 1973 (Cth) — Pt VAA — Professional Services Review Scheme — Whether Pt VAA invalid as imposing a form of “civil conscription” — Whether provisions imposing obligation on medical practitioners to avoid “inappropriate practice” to remain in Medicare scheme invalid.

Constitutional law (Cth) — Legislative power — Constitution, s 51(xxiiiA) — Relevance of extrinsic materials and legislative history in construction of Constitution — Manner of construction where provision inserted by referendum under Constitution, s 128.

Words and phrases — “civil conscription”, “(but not so as to authorize any form of civil conscription)”.

Appealed from FCA FC: [2008] FCAFC 13; (2008) 167 FCR 61; (2008) 246 ALR 61.

Wurridjal v The Commonwealth of Australia

High Court of Australia: [2009] HCA 2.

Judgment delivered: 2 February 2009.

Coram: French CJ, Gummow, Kirby, Hayne, Heydon, Crennan and Kiefel JJ.

Catchwords:

Constitutional law (Cth) — Legislative power — Acquisition of property on just terms — Whether power to make laws for government of Territory under s 122 of Constitution limited by s 51(xxxi) — Scope of application of s 51(xxxi) where law of dual character — Relevance of notion of “abstraction” of power of acquisition of property from other powers — Whether Teori Tau v The Commonwealth [1969] HCA 62; (1969) 119 CLR 564 should be overruled or departed from — Circumstances in which previous constitutional decision should be overruled.

Constitutional law (Cth) — Legislative power — Acquisition of property on just terms — Northern Territory National Emergency Response Act 2007 (Cth) (“Emergency Response Act”), Pt 4 provided for grant of leases of land in Northern Territory to Commonwealth, including land at Maningrida (“Land”) — Second defendant (“Land Trust”) held estate in fee simple in Land for benefit of Aboriginals pursuant to Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (“Land Rights Act”) — Whether grant of Commonwealth lease an acquisition of Land Trust property for purposes of s 51(xxxi) of Constitution — Nature of estate in fee simple under Land Rights Act — Circumstances where acquisition of property rights of statutory origin — Whether no acquisition of property because rights of Land Trust inherently susceptible to statutory modification.

Constitutional law (Cth) — Legislative power — Acquisition of property on just terms — Land Rights Act, s 71 conferred entitlement on first and second plaintiffs to enter upon, use or occupy Land in accordance with Aboriginal tradition — Whether s 71 entitlements diminished by grant of Commonwealth lease or preserved by s 34 of Emergency Response Act so that no acquisition of any property constituted by those entitlements — Whether Commonwealth empowered by s 37 of Emergency Response Act to terminate s 71 entitlements — Relationship between Pt 4 of Emergency Response Act and offence of entry onto sacred sites in s 69 of Land Rights Act — Whether “property” includes traditional rights required by the general law — Use of international legal materials.

Constitutional law (Cth) — Legislative power — Acquisition of property on just terms — Saving provision — Emergency Response Act, s 60 made Commonwealth liable to pay reasonable compensation for acquisitions of property to which s 51(xxxi) applied — Reasonable compensation determined, absent agreement, by court — Meaning of “just terms” — Whether Emergency Response Act, s 60 afforded “just terms” or mere “contingent rights” — Whether acquisition of non-compensable interests — Whether no just terms absent express provision for interest — Whether “just terms” extend to consultation requirement — Relevance of requirement for court to consider Commonwealth-funded improvements.

Constitutional law (Cth) — Legislative power — Acquisition of property on just terms — Families, Community Services and Indigenous Affairs and Other Legislation Amendment (Northern Territory National Emergency Response and Other Measures) Act 2007 (Cth) (“FCSIA Act”), Sched 4, Items 12 and 15 amended Land Rights Act by inserting provisions conferring certain rights of access to Land — Whether FCSIA Act resulted in acquisition of Land Trust property for purposes of s 51(xxxi) of Constitution.

Constitutional law (Cth) — Legislative power — Acquisition of property on just terms — Saving provision — FCSIA Act, Sched 4, Item 18 made Commonwealth liable to pay reasonable compensation for acquisitions of property to which s 51(xxxi) applied — Reasonable compensation determined, absent agreement, by court — Whether FCSIA Act, Sched 4, Item 18 afforded “just terms”.

Practice and procedure — Demurrer — Function and purpose of demurrer — Extent to which facts expressly or impliedly averred in statement of claim might be taken as admitted for purposes of demurrer.

Practice and procedure — High Court — Amicus curiae — Criteria for acceptance of submissions.

Words and phrases — “acquisition of property”, “fee simple”, “for the benefit of”, “just terms”, “property”.

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

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 12 [2008] HCAB 12.

Contracts

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

S435/2008: [2009] HCATrans 5; [2009] HCATrans 6.

Date heard: 3–4 February 2009 — Judgment reserved.

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

Catchwords:

Contracts — Misleading and deceptive conduct — Reliance — Pre-contractual representations — Share purchase agreement containing narrowly drafted warranties and entire agreement clause — Vendor made incorrect pre-contractual representations regarding the company’s finances — Representations overlapped with information subject to contractual warranties — 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.

Criminal Law

****Jones v The Queen

B40/2008: [2009] HCATrans 10.

Date heard: 11 February 2009 — Judgment reserved.

Coram: French CJ, Hayne, Heydon, Kiefel and Bell JJ.

Catchwords:

Criminal law — Propensity evidence — Hearsay 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.

Defamation

****Radio 2UE Sydney Pty Ltd v Chesterton

S474/2008: [2009] HCATrans 9.

Date heard: 10 February 2009 — Judgment reserved.

Coram: French CJ, Gummow, Heydon, Kiefel and Bell JJ.

Catchwords:

Defamation — Whether separate class of “business defamation” exists at common law — Whether different test for determining defamatory nature of imputation applies to “business defamation” as opposed to “general defamation” — Whether general community standards are to be applied — Whether Gacic v John Fairfax Publications Pty Ltd (2006) 66 NSWLR 675 correctly decided.

Appealed from NSW CA: [2008] NSWCA 66; (2008) Aust Torts Reports ¶81-946; [2008] ALMD 5338.

Family Law and Child Welfare

****LK v Director-General Department of Community Services

S524/2008: [2009] HCATrans 7.

Date heard: 5 February 2009 — Judgment reserved.

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

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].

Immigration

****Minister for Immigration and Citizenship v Kumar & Anor

S473/2008: [2009] HCATrans 13.

Date heard: 12 February 2009 — Judgment reserved.

Coram: French CJ, Gummow, Hayne, Kiefel and Bell JJ.

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 identity of informant 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].

Intellectual Property

IceTV Pty Ltd v Nine Network Australia Pty Ltd

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.

International Law

See Family Law and Child Welfare: ****LK v Director-General Department of Community Services.

Local Government

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

S384/2008; S385/2008: [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.

Torts

Stuart & Anor v Kirkland–Veenstra & Anor

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.

Workers’ Compensation

****Hickson v Goodman Fielder Ltd

S470/2008: [2009] HCATrans 8.

Date heard: 6 February 2009 — Judgment reserved.

Coram: Gummow, Hayne, Heydon, Kiefel and Bell JJ.

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.

3: ORIGINAL JURISDICTION

There are currently no cases ready for hearing in the original jurisdiction of the High Court of Australia.

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 12 [2008] HCAB 12.

Administrative Law

****Minister for Immigration and Citizenship v SZIAI & Anor

S458/2008: [2009] HCATrans 28.

Date heard: 13 February 2009 — Special leave granted.

Catchwords:

Administrative law — Jurisdictional error — Wednesbury unreasonableness — Duty to inquire — Extent of — Certificates submitted by person applying for a protection visa alleged to be “fake & forged” — Refugee Review Tribunal (“the Tribunal”) invited person to respond to allegation but failed to make any further inquiries as to veracity of allegation — Whether the Tribunal is under a duty to inquire — Whether the Tribunal failed to meet its duty to inquire — Whether the Tribunal’s error is a jurisdictional error.

Appealed from FCA: [2008] FCA 1372.

Minister for Immigration and Citizenship v SZIZO & Ors

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.

Minister for Immigration and Citizenship v SZLFX & Anor; Minister for Immigration and Citizenship v SZKTI & Anor

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.

****SZIBW & Anor v Minister for Immigration and Citizenship & Anor

S58/2008: [2009] HCATrans 30.

Date heard: 13 February 2009 — Special leave granted.

Catchwords:

Administrative law — Procedural fairness — Oral hearing — Applicants sought review of delegate’s decision refusing their application for protection visas — First Refugee Review Tribunal (“the Tribunal”) affirmed decision of delegate — Decision quashed with consent of parties and second Tribunal ordered to review delegate’s decision — Second Tribunal made its decision after listening to tape of earlier proceedings and without holding an oral hearing — Applicants requested further hearing, claiming interpretation difficulties in earlier proceeding — Whether Tribunal erred in not holding further hearing.

Immigration — Procedural fairness — Oral hearing — Section 425(1) of the Migration Act 1958 (Cth) requires the Tribunal to “invite the applicant to appear before the Tribunal to give evidence and present arguments” — First Tribunal held oral hearing — Decision quashed with consent of parties and second Tribunal ordered — Second Tribunal made its decision without holding an oral hearing — Whether second Tribunal failed to meet requirements of s 425(1).

Appealed from FCA: [2008] FCA 160.

Bankruptcy

****Vale v Sutherland

S440/2008: [2009] HCATrans 27.

Date heard: 13 February 2009 — Special leave granted.

Catchwords:

Bankruptcy — Notice — Construction of — Trustee of bankrupt’s property procured a notice (“Notice”) under s 139ZQ of the Bankruptcy Act 1966 (Cth) (“the Act”) asserting certain property transactions were void under s 120 of the Act — Notice asserted market value of properties at time of transfer and imposed a pecuniary liability upon the Applicant — Notice provided that failure to comply may result in criminal sanctions under s 139ZT of the Act — Whether Notice, issued on an administrative basis, must be construed strictly considering penalties for non-compliance — Whether Halse v Norton (1997) 76 FCR 389 correctly decided.

Bankruptcy — Notice — Construction of — Evidence that market value nominated in Notice was incorrect and, consequently, pecuniary liability was overstated — Whether Notice ought to be construed strictly in the circumstances.

Appealed from FCA FC: [2008] FCAFC 148.

Constitutional Law

Clarke v Commissioner of Taxation & Anor

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.

Corporations Law

Ansell Ltd & Ors v Davies & Ors

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.

Courts and Judicial System

Keramianakis & Anor v Regional Publishers Pty Ltd

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.

See also Practice and Procedure: ****AON Risk Services Australia Ltd v Australian National University.

Criminal Law

****Carroll v The Queen

S472/2008: [2009] HCATrans 22.

Date heard: 13 February 2009 — Special leave granted.

Catchwords:

Criminal law — Sentencing — Discretion — Constraint of — Appellate judge observed that “this Court should in future accept that more significant penalties may be required when sentencing offenders for this type of offence” — Whether judge erred in stating a “type” of case and applying it to the Applicant — Whether judge failed to consider all relevant factors in reaching a conclusion as to the penalty imposed — Whether judge erroneously constrained their exercise of judicial discretion.

Criminal law — Sentencing — Mitigating factors — Provocation — Personal circumstances — Undisputed evidence of provocation — Whether appellate court failed to give sufficient weight to provocation evidence and other evidence of personal circumstances.

Criminal law — Appeal — Error — Demonstration of — Appellate court held sentence imposed by trial judge was manifestly inadequate — Whether appellate court failed to demonstrate error on the part of the trial judge.

Appealed from NSW SC (CCA): [2008] NSWCCA 218.

The Queen v Edwards & Anor

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.

Defamation

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

Equity

Friend v Brooker & Anor

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.

Immigration

Minister for Immigration and Citizenship v SZJGV & Anor; Minister for Immigration and Citizenship v SZJXO & Anor

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.

See also Administrative Law: Minister for Immigration and Citizenship v SZLFX & Anor.

See also Administrative Law: ****SZIBW & Anor v Minister for Immigration and Citizenship & Anor.

Practice and Procedure

****AON Risk Services Australia Ltd v Australian National University

C9/2008: [2009] HCATrans 26.

Date heard: 13 February 2009 — Special leave granted.

Catchwords:

Practice and procedure — Pleadings — Application for leave to amend — Prejudice — Leave to amend sought 23 months after proceedings commenced, 17 months after Applicant joined and 2 days after trial due to start — Whether opponent must demonstrate specific prejudice that cannot be met by a costs order before leave to amend pleadings will be refused — Application of Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146 (“J L Holdings”) — Whether J L Holdings should be reconsidered.

Practice and procedure — Pleadings — Application for leave to amend — Prejudice — Whether amendment causing a hearing to be vacated amounts to prejudice that cannot be met by a costs order.

Practice and procedure — Pleadings — Application for leave to amend — Prejudice — Respondent made deliberate tactical decision not to bring the claims it seeks to advance by way of amendment to pleadings — Whether amendment to reverse deliberate forensic decision amounts to prejudice that cannot be met by a costs order.

Practice and procedure — Pleadings — Application for leave to amend — Discretion to grant — Whether party is required to offer explanation when seeking to amend pleadings — Application of J L Holdings.

Courts and judicial system — Abuse of process — Respondent obtained consent judgment against one of the insurer defendants — Respondent sought to amend pleadings to maintain case against Applicant that buildings and contents were not insured — Whether Respondent seeks to maintain directly inconsistent claims — Whether amendment would amount to an abuse of process.

Appealed from ACT SC (CA): [2008] ACTCA 13.

Private International Law

****Garsec Pty Ltd v His Majesty Sultan Haji Hassanal Bolkiah Mu’izzaddin Waddaulah the Sultan and Yang Di-Pertuan of Brunei Darussalam & Anor

S457/2008: [2009] HCATrans 21.

Date heard: 13 February 2009 — Referred to Full Court.

Catchwords:

Private international law — Choice of law — Forum non conveniens — Contract — Respondent sought stay of proceedings upon immunities from suit conferred by the Constitution of Brunei — Whether immunities conferred were substantive or procedural — Applicability of principles laid down in John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503.

Appealed from NSW SC (CA): [2008] NSWCA 211.

Taxation

Spriggs v Commissioner of Taxation; Riddell v Commissioner of Taxation

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.

Torts

Downview Pty Ltd v Fox & Ors; Leighton Contractors Pty Ltd v Fox & Ors

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.

Trade Practices

Australian Competition and Consumer Commission v Channel Seven Brisbane Pty Ltd & Ors

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.

Workers’ Compensation

****Fellowes v Military Rehabilitation and Compensation Commission

B30/2008: [2009] HCATrans 19.

Date heard: 13 February 2009 — Special leave granted.

Catchwords:

Workers’ compensation — Construction of provisions of Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”) — Interpretation of “Guide to the Assessment of the Degree of Permanent Impairment” (“the Guide”) made under s 28 of the Act — Employee suffered work-related injury to left knee and separately on a later occasion to right knee — Whether employee entitled to compensation in respect of impairment resulting from second injury — Effect of the Guide when determining whether injury results in permanent impairment — Consideration of Canute v Comcare (2006) 226 CLR 535.

Appealed from FCA FC: [2008] FCAFC 140.

5: SPECIAL LEAVE DISMISSED

The following cases were refused special leave to appeal to the High Court of Australia.

Canberra: 11 February 2009

(Publication of reasons)

Civil

Ralph v Police

A29/2007: [2009] HCASL 1.

Special leave dismissed.
Appealed from SA SC: [2007] SASC 141.

Cockrell v Minister for Immigration and Citizenship & Anor

A28/2008: [2009] HCASL 2.

Special leave dismissed.
Appealed from FCA FC: [2008] FCAFC 160.

SZLOP v Minister for Immigration and Citizenship & Anor

S360/2008: [2009] HCASL 3.

Special leave dismissed.
Appealed from FCA: [2008] FCA 1074.

SZJXM & Anor v Minister for Immigration and Citizenship & Anor

S389/2008: [2009] HCASL 4.

Special leave dismissed.
Appealed from FCA: [2008] FCA 1252.

SZJMG v Minister for Immigration and Citizenship & Anor

S390/2008: [2009] HCASL 5.

Special leave dismissed.
Appealed from FCA: [2008] FCA 1145.

SZLYN v Minister for Immigration and Citizenship & Anor

S396/2008: [2009] HCASL 6.

Special leave dismissed.
Appealed from FCA: [2008] FCA 1325.

SZBWY v Minister for Immigration and Citizenship & Anor

S400/2008: [2009] HCASL 7.

Special leave dismissed.
Appealed from FCA: [2008] FCA 1188.

SZJWU v Minister for Immigration and Citizenship & Anor

S402/2008: [2009] HCASL 8.

Special leave dismissed.
Appealed from FCA: [2008] FCA 1371.

SZLMI v Minister for Immigration and Citizenship & Anor

S406/2008: [2009] HCASL 9.

Special leave dismissed.
Appealed from FCA: [2008] FCA 1232.

SZLMB v Minister for Immigration and Citizenship & Anor

S408/2008: [2009] HCASL 10.

Special leave dismissed.
Appealed from FCA: [2008] FCA 1187.

SZHEV v Minister for Immigration and Citizenship & Anor

S411/2008: [2009] HCASL 11.

Special leave dismissed.
Appealed from FCA: [2008] FCA 1234.

SZLUI & Anor v Minister for Immigration and Citizenship & Anor

S412/2008: [2009] HCASL 12.

Special leave dismissed.
Appealed from FCA: [2008] FCA 1318.

SZLJJ v Minister for Immigration and Citizenship & Anor

S413/2008: [2009] HCASL 13.

Special leave dismissed.
Appealed from FCA: [2008] FCA 1244.

SZLGF & Anor v Minister for Immigration and Citizenship & Anor

S416/2008: [2009] HCASL 14.

Special leave dismissed.
Appealed from FCA: [2008] FCA 1369.

S1815/2003 v Minister for Immigration and Citizenship & Anor

S417/2008: [2009] HCASL 15.

Special leave dismissed.
Appealed from FCA: [2008] FCA 1363.

SZLUY v Minister for Immigration and Citizenship & Anor

S418/2008: [2009] HCASL 16.

Special leave dismissed.
Appealed from FCA: [2008] FCA 1273.

SZLJV & Anor v Minister for Immigration and Citizenship & Anor

S420/2008: [2009] HCASL 17.

Special leave dismissed.
Appealed from FCA: [2008] FCA 1307.

BMG Poseidon Corp Pty Ltd & Ors v Adelaide Bank Ltd

S421/2008: [2009] HCASL 18.

Special leave dismissed.
Appealed from NSW SC (CA): [No media neutral citation].

SZLRI v Minister for Immigration and Citizenship & Anor

S422/2008: [2009] HCASL 19.

Special leave dismissed.
Appealed from FCA: [2008] FCA 1288.

SZLTG v Minister for Immigration and Citizenship & Anor

S426/2008: [2009] HCASL 20.

Special leave dismissed.
Appealed from FCA: [2008] FCA 1317.

SZLZM v Minister for Immigration and Citizenship & Anor

S432/2008: [2009] HCASL 21.

Special leave dismissed.
Appealed from FCA: [2008] FCA 1263.

Miller v Nationwide News

S450/2008: [2009] HCASL 22.

Special leave dismissed.
Appealed from NSW SC (CA): [2008] NSWCA 222.

Mier v Stipanov

M50/2008: [2009] HCASL 23.

Special leave dismissed with costs.
Appealed from Vic SC (CA): [2008] VSCA 116.

Newtronics Pty Ltd (Receivers & Managers Appointed) (in liq) v Gjergja & Anor

M53/2008: [2009] HCASL 24.

Special leave dismissed with costs.
Appealed from Vic SC (CA): [2008] VSCA 117.

Canberra: 13 February 2009

Civil

Holdway v Arcuri Lawyers (A Firm)

B28/2008.

Special leave dismissed with costs.
Appealed from Qld SC (CA): [2008] QCA 218.

Wallace & Anor v K D Kanopy Australasia Pty Ltd & Ors

B31/2008.

Special leave dismissed with costs.
Appealed from FCA FC: [2008] FCAFC 139.

State of New South Wales v West & Anor

C10/2008.

Special leave dismissed with costs.
Appealed from ACT SC (CA): [2008] ACTCA 14.

Criminal

Finlay v The Queen

B66/2007.

Special leave dismissed.
Appealed from Qld SC (CA): [2007] QCA 400.

Ferguson v The Queen & Anor

B27/2008.

Special leave dismissed.
Appealed from Qld SC (CA): [2008] QCA 227.

Sydney: 13 February 2009

Civil

SZLAN & Anor v Minister for Immigration and Citizenship & Anor

S318/2008.

Special leave dismissed with costs.
Appealed from FCA: [2008] FCA 904.

Nationwide News Pty Ltd v Ali

S401/2008.

Special leave dismissed with costs.
Appealed from NSW SC (CA): [2008] NSWCA 183.

Sagacious Procurement Pty Ltd (Subject to Deed of Company Agreement) v Symbion Health Ltd (Formerly Mayne Group Ltd)

S407/2008.

Special leave dismissed with costs.
Appealed from NSW SC (CA): [2008] NSWCA 149.

Baxter Healthcare Pty Ltd v Australian Competition and Consumer Commission & Ors

S419/2008.

Special leave dismissed with costs.
Appealed from FCA FC: [2008] FCAFC 141.

Chan v Minister for Immigration and Citizenship & Anor

S444/2008.

Special leave dismissed with costs.
Appealed from FCA FC: [2008] FCAFC 155.