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High Court of Australia Bulletin [2009] HCAB 2 (6 April 2009)

Last Updated: 7 April 2009

HIGH COURT BULLETIN

Produced by the High Court of Australia Library

[2009] HCAB 2 (6 April 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 March–April 2009 sittings.

Hickson v Goodman Fielder Ltd

High Court of Australia: [2009] HCA 11.

Judgment delivered: 12 March 2009.

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

Catchwords:

Workers’ compensation — Contributory negligence — Worker recovers workers' compensation as a result of injury — Worker brings damages claim against third party tortfeasor — Damages claim settled — Employer seeks recovery of workers' compensation pursuant to Workers Compensation Act 1987 (NSW), s 151Z(1)(b) — Whether Law Reform (Miscellaneous Provisions) Act 1965 (NSW), s 10(2) operates to reduce amount of repayment on account of worker's contributory negligence where damages claim settled.

Statutes — Interpretation — Whether Law Reform (Miscellaneous Provisions) Act 1965 (NSW), s 10(2) operates on damages recovered by way of settlement — Whether reduction of repayment proportionate or by specific amount.

Words and phrases — “damages recoverable”, “to the same extent”.

Appealed from NSW CA: [2008] NSWCA 69.

LK v Director-General, Department of Community Services

High Court of Australia: [2009] HCA 9.

Judgment delivered: 11 March 2009.

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

Catchwords:

Family Law — Children — Family Law (Child Abduction Convention) Regulations — Whether children habitually resident in convention country immediately before retention in Australia — Relevance of past and present intentions of each parent — Relevance of habitual residence of each parent — Weighting of relevant criteria — Appropriate time for determining habitual residence.

Family Law — Children — Family Law (Child Abduction Convention) Regulations — Meaning of “habitually resident” — “habitual residence” distinct from connecting factors of domicile or nationality — Whether intention decisive of habitual residence or whether consideration of wide variety of circumstances permitted — Relevance of a finding of “settled purpose” — Meaning of “settled purpose” — Whether parent ceased habitual residence in Israel without making a final decision not to return there.

International law — Treaties — Interpretation — Convention on the Civil Aspects of International Child Abduction — Consistent construction of terms by courts of contracting states.

Words and phrases — “habitual residence”, “habitually resident”, “settled intention”, “settled purpose”, “wrongful retention”.

Appealed from Fam FC: [2008] FamCAFC 81; (2008) 39 Fam LR 431.

Minister for Immigration and Citizenship v Kumar

High Court of Australia: [2009] HCA 10.

Judgment delivered: 11 March 2009.

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

Catchwords:

Administrative law — Procedural fairness — Migration Review Tribunal (“Tribunal”) — Application for spousal visas — Migration Act 1958 (Cth) ss 5, 357A, 359A — Definition of “non-disclosable information” — “Non-disclosable information” whose disclosure would found an action for breach of confidence — Relevance of “iniquity defence” — Whether Tribunal obliged to disclose to applicant information given to Tribunal in confidence by informant — Whether obligation to disclose extends to identity of informant.

Equity — Breach of confidence — Interaction of public and private law.

Words and phrases — “Non-disclosable information”.

Appealed from FCA FC: [No media neutral citation].

R & R Fazzolari Pty Limited v Parramatta City Council; Mac's Pty Limited v Parramatta City Council

High Court of Australia: [2009] HCA 12.

Judgment delivered: 2 April 2009.

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

Catchwords:

Real property — Compulsory acquisition — Where Local Government Act 1993 (NSW) (“LG Act”), s 186(1), provided that council may acquire land “for the purpose of exercising any of its functions” — Where LG Act, s 188(1) provided that council may not acquire land by compulsory process if land being “acquired for the purpose of re-sale” — Relationship between purpose of exercising any council functions and purpose of re-sale — Meaning of “purpose of re-sale” — Whether acquisition of land by council pursuant to development agreement requiring council to hold land acquired on trust for private developer, in exchange for money and money's worth, as part of larger public-private partnership, is acquisition for purpose of re-sale.

Real property — Compulsory acquisition — Where LG Act, s 188(2)(a) provided that land may be acquired by compulsory process even if acquisition for purpose of re-sale if land in question adjoins or lies in vicinity of other land acquired at same time under LG Act, Pt 1 of Ch 8, for purpose other than purpose of re-sale — Where adjoining land comprised public roads already vested in fee simple in council — Where Land Acquisition (Just Terms Compensation) Act 1991 (NSW), s 7B provided that State authority authorised to acquire land by compulsory process may do so even where land already vested in authority — Whether adjoining land nevertheless acquired under LG Act, Pt 1 of Ch 8.

Statutes — Interpretation — Presumption that legislature does not intend to interfere with property rights unless contrary intention manifest — Consequences for identification of purpose of acquisition.

Words and phrases — “function”, “public-private partnership”, “purpose of re-sale”, “re-sale”.

Appealed from NSW CA: [2008] NSWCA 132.

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 1 [2009] HCAB 1.

Constitutional Law

****Clarke v Commissioner of Taxation & Anor

A35/2008: [2009] HCATrans 41; [2009] HCATrans 42; [2009] HCATrans 43.

Date heard: 10–12 March 2009 — Judgment reserved.

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

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.

****Pape v Commissioner of Taxation of the Commonwealth of Australia

S35/2009:  [2009] HCATrans 59 ; [2009] HCATrans 60; [2009] HCATrans 61.

Date heard: 30–31 March, 1 April 2009 — Orders made 3 April 2009 dismissing the application. Written reasons of the Court to be published at a future date.

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

Catchwords:

Constitutional law — Taxation power — Gifts — Section 7 of the Tax Bonus for Working Australians Act (No 2) 2009 (Cth) (“the Act”) provides that the Commissioner of Taxation must pay a tax bonus to entitled persons — Persons are entitled under s 5 of the Act if, inter alia, they: are an individual; are an Australian resident; have an adjusted tax liability greater than nil in the 2007–08 income tax year; and have a taxable income not exceeding $100 000 for the 2007–08 income tax year — Whether the tax bonus is a gift — Whether the Act is not a law with respect to taxation — Constitution, s 51(ii).

Constitutional law — Appropriations — Whether ss 81 and 83 of the Constitution vest a legislative power in the Commonwealth to make appropriations.

Constitutional law — Appropriations — Whether the tax bonus is an appropriation “for the purposes of the Commonwealth” — Constitution, ss 81, 83.

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

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.

Courts and Judicial System

****Keramianakis & Anor v Regional Publishers Pty Ltd

S311/2008: [2009] HCATrans 36.

Date heard: 3 March 2009 — Judgment reserved.

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

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 with a jury in the District Court.

Appealed from NSW CA: [2007] NSWCA 375; (2007) 70 NSWLR 395.

Criminal Law

****Carroll v The Queen

S30/2009: [2009] HCATrans 64.

Date heard: 2 April 2009 — Judgment reserved.

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

Catchwords:

Criminal law — Sentencing — Discretion — Exercise of — Whether appellate court erred in stating a “type” of case and applying it to the Appellant — Whether appellate court failed to consider all relevant factors in reaching a conclusion as to the penalty imposed.

Criminal law — Sentencing — Objective seriousness of offence — Where concession by Crown as to evidence of provocation — Whether appellate court substituted its own findings as to objective seriousness of offence — Whether such substitution led to error by appellate court.

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

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

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.

****The Queen v Edwards & Anor

H4/2008: [2009] HCATrans 62.

Date heard: 1 April 2009 — Judgment reserved.

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

Catchwords:

Criminal law — Permanent stay of prosecution — Application of principles governing grant of stay — Delay — Loss of primary evidence — Effect of delay combined with loss of primary evidence — Whether loss of evidence could be ameliorated by jury directions.

Appealed from Tas SC: [2008] TASSC 17.

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.

Equity

****Friend v Brooker & Anor

S475/2008: [2009] HCATrans 37; [2009] HCATrans 38; [2009] HCATrans 39.

Date heard: 4–6 March 2009 — Judgment reserved.

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.

Procedure — Pleadings — Conduct of — Matters not pleaded — Whether appellate court erred in making findings not pleaded at trial.

Appealed from NSW CA: [2008] NSWCA 118.

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.

Procedure

See Equity: ****Friend v Brooker & Anor

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.

Trade Practices

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

S506/2008: [2009] HCATrans 40.

Date heard: 10 March 2009 — Judgment reserved.

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

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 being goods or services of a kind supplied by the prescribed information provider — Trade Practices Act 1974 (Cth), ss 52, 65A.

Appealed from FCA FC: [2008] FCAFC 114; (2008) 249 ALR 97; (2008) 77 IPR 150.

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 1 [2009] HCAB 1.

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; (2008) 104 ALD 22.

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; (2008) 172 FCR 152; (2008) 102 ALD 541.

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; (2008) 170 FCR 112.

Constitutional Law

****International Finance Trust Company Ltd & Anor v New South Wales Crime Commission & Ors

S487/2008: [2009] HCATrans 47.

Date heard: 13 March 2009 — Special leave granted.

Catchwords:

Constitutional law — Chapter III — Kable doctrine — Section 10(2) of the Criminal Assets Recovery Act 1990 (NSW) (“the Act”) permits the NSW Crime Commission to apply to the NSW Supreme Court (“the Court”) for a restraining order in respect of “property of a person suspected of having engaged in a serious crime related activity” — Under s 10(3), the Court “must make the order applied for” if supported by an affidavit of an authorised officer stating that the officer “suspects that the person has engaged in a serious crime related activity” and “the Court considers that having regard to the matters contained in any such affidavit there are reasonable grounds for any such suspicion” — Ex parte orders were made with respect to numerous bank accounts — No transcript was taken and no reasons for the orders were given — Whether s 10(3) directs the Court as to the manner and outcome of the exercise of its jurisdiction — Whether s 10(3) of the Act is incompatible with or repugnant to the exercise by the Court of the judicial power of the Commonwealth invested by Ch III of the Constitution — Kable v Director of Public Prosecutions (1996) 189 CLR 51 — Gypsy Jokers Motorcycle Club Incorporated v Commissioner of Police [2008] HCA 4.

Appealed from NSW SC (CA): [2008] NSWCA 291; (2008) 251 ALR 479.

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

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

Employment Law

****Visscher v The Honourable President Justice Giudice & Anor

S30/2008: [2009] HCATrans 53.

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

Catchwords:

Employment law — Wrongful termination — Employer repudiated employment contract — Ongoing employment relationship after repudiation — Whether repudiation was effective to terminate the contract .

Appealed from FCA FC: [2007] FCAFC 206; (2007) 170 IR 419.

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; (2008) 170 FCR 515; (2008) 247 ALR 451; (2008) 102 ALD 226.

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; (2008) 250 ALR 682.

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; (2008) 170 FCR 135.

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.

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; (2008) 170 FCR 531; (2008) 103 ALD 552.

5: SPECIAL LEAVE DISMISSED

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

Canberra: 3 March 2009

(Publication of reasons)

Civil

Kronen v Commercial Motor Industries Pty Ltd (CMI Toyota)

A30/2008: [2009] HCASL 25.

Special leave dismissed.
Appealed from FCA FC: [2008] FCAFC 171.

Hassan v The Minister for Health

P29/2008: [2009] HCASL 26.

Special leave dismissed.
Appealed from WA SC (CA): [2008] WASCA 149.

SZLRA & Anor v Minister for Immigration and Citizenship & Anor

S429/2008: [2009] HCASL 27.

Special leave dismissed.
Appealed from FCA: [2008] FCA 1327.

SZLTA & Anor v Minister for Immigration and Citizenship & Anor

S430/2008: [2009] HCASL 28.

Special leave dismissed.
Appealed from FCA: [2008] FCA 1356.

SZLSX v Minister for Immigration and Citizenship & Anor

S431/2008: [2009] HCASL 29.

Special leave dismissed.
Appealed from FCA: [2008] FCA 1357.

SZLUC v Minister for Immigration and Citizenship & Anor

S436/2008: [2009] HCASL 30.

Special leave dismissed.
Appealed from FCA: [2008] FCA 1319.

SZHCK & Anor v Minister for Immigration and Citizenship & Anor

S438/2008: [2009] HCASL 31.

Special leave dismissed.
Appealed from FCA: [2008] FCA 1306.

SZLTN & Anor v Minister for Immigration and Citizenship & Anor

S439/2008: [2009] HCASL 32.

Special leave dismissed.
Appealed from FCA: [No media neutral citation].

SZHBP v Minister for Immigration and Citizenship & Anor

S442/2008: [2009] HCASL 33.

Special leave dismissed.
Appealed from FCA: [2008] FCA 1299.

SZLXE & Anor v Minister for Immigration and Citizenship & Anor

S446/2008: [2009] HCASL 34.

Special leave dismissed.
Appealed from FCA: [2008] FCA 1312.

SZJDJ & Anor v Minister for Immigration and Citizenship & Anor

S448/2008: [2009] HCASL 35.

Special leave dismissed.
Appealed from FCA: [2008] FCA 1308.

SZLSH v Minister for Immigration and Citizenship & Anor

S449/2008: [2009] HCASL 36.

Special leave dismissed.
Appealed from FCA: [2008] FCA 1278.

SZEUI & Ors v Minister for Immigration and Citizenship & Anor

S451/2008: [2009] HCASL 37.

Special leave dismissed.
Appealed from FCA: [2008] FCA 1338.

SZLVF v Minister for Immigration and Citizenship & Anor

S459/2008: [2009] HCASL 38.

Special leave dismissed.
Appealed from FCA: [2008] FCA 1481.

SZLPL v Minister for Immigration and Citizenship & Anor

S463/2008: [2009] HCASL 39.

Special leave dismissed.
Appealed from FCA: [2008] FCA 1398.

SZLOA v Minister for Immigration and Citizenship & Anor

S464/2008: [2009] HCASL 40.

Special leave dismissed.
Appealed from FCA: [2008] FCA 1397.

SZLUE v Minister for Immigration and Citizenship & Anor

S469/2008: [2009] HCASL 41.

Special leave dismissed.
Appealed from FCA: [2008] FCA 1433.

SZLVU & Anor v Minister for Immigration and Citizenship & Anor

S471/2008: [2009] HCASL 42.

Special leave dismissed.
Appealed from FCA: [2008] FCA 1437.

SZLNN v Minister for Immigration and Citizenship & Anor

S476/2008: [2009] HCASL 43.

Special leave dismissed.
Appealed from FCA: [2008] FCA 1462.

SZLDN v Minister for Immigration and Citizenship & Anor

S478/2008: [2009] HCASL 44.

Special leave dismissed.
Appealed from FCA: [2008] FCA 1459.

Canberra: 12 March 2009

(Publication of reasons)

Civil

Kowalski v Mitsubishi Motors Australia Ltd

A33/2008: [2009] HCASL 45.

Special leave dismissed.
Appealed from SA SC: [2005] SASC 433.

Remely v O’Shea & Ors

B18/2008; B19/2008; B22/2008: [2009] HCASL 46.

Special leave dismissed.
Appealed from Qld SC (CA): [2008] QCA 78; [2008] QCA 111.

Maguire v Cruickshank & Anor

B36/2008: [2009] HCASL 47.

Special leave dismissed.
Appealed from Qld SC (CA): [2008] QCA 273.

Maguire v Leather

B37/2008: [2009] HCASL 48.

Special leave dismissed.
Appealed from Qld SC (CA): [2008] QCA 297.

McKinnon & Anor v Commonwealth Bank of Australia

M78/2008: [2009] HCASL 50.

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

SZLKW & Anor v Minister for Immigration and Citizenship & Anor

S382/2008: [2009] HCASL 51.

Special leave dismissed.
Appealed from FCA: [2008] FCA 1272.

FS Architects Pty Ltd & Ors v Rockcote Enterprises Pty Ltd; FS Architects Pty Ltd & Ors v Carelli & Anor

S454/2008; S455/2008: [2009] HCASL 52.

Special leave dismissed.
Appealed from NSW SC (CA): [2008] NSWCA 205.

SZMDH v Minister for Immigration and Citizenship & Anor

S553/2008: [2009] HCASL 54.

Special leave dismissed.
Appealed from FCA: [2008] FCA 1852.

SZMDG v Minister for Immigration and Citizenship & Anor

S555/2008: [2009] HCASL 55.

Special leave dismissed.
Appealed from FCA: [2008] FCA 1959.

MZYBW v Minister for Immigration and Citizenship & Anor

M86/2008: [2009] HCASL 56.

Special leave dismissed.
Appealed from FCA: [2008] FCA 1745.

APM v MTL

B26/2008: [2009] HCASL 57.

Special leave dismissed with costs.
Appealed from FamC FC: [No media neutral citation].

Power Serve Pty Ltd & Anor v Bourk

B33/2008: [2009] HCASL 58.

Special leave dismissed with costs.
Appealed from Qld SC (CA): [2008] QCA 225.

McIntosh & Anor as Trustees of the estate of Gary Stirling Camm v Linke Nominees Pty Ltd CAN 005 860 944 & Anor

B34/2008; B35/2008: [2009] HCASL 59.

Special leave dismissed with costs.
Appealed from Qld SC (CA): [2008] QCA 275.

George & Ors v Holloway Nominees (QLD) Pty Ltd

B38/2008: [2009] HCASL 60.

Special leave dismissed with costs.
Appealed from Qld SC (CA): [2008] QCA 281.

Pascoe v Boensch & Anor

S434/2008: [2009] HCASL 61.

Special leave dismissed with costs.
Appealed from FCA FC: [2008] FCAFC 147.

Criminal

MAU v The Queen

B41/2008: [2009] HCASL 49.

Special leave dismissed.
Appealed from Qld SC (CA): [2007] QCA 115.

Huynh v The Queen

S486/2008: [2009] HCASL 53.

Special leave dismissed.
Appealed from NSW SC (CCA): [2008] NSWCCA 216.

PGM v The Queen

S414/2008: [2009] HCASL 62.

Special leave dismissed.
Appealed from NSW SC (CCA): [2008] NSWCCA 172.

Sydney: 13 March 2009

Civil

Knight v Beyond Properties Pty Ltd & Ors

S625/2007.

Special leave dismissed with costs.
Appealed from FCA FC: [2007] FCAFC 170.

McGovern & Anor v Ku-Ring-Gai Council & Anor

S453/2007.

Special leave dismissed with costs.
Appealed from NSW SC (CA): [2008] NSWCA 209.

Walker v Minister for Planning & Ors

S477/2008.

Special leave dismissed.
Appealed from NSW SC (CA): [2008] NSWCA 224.

Criminal

The Queen v Campbell

S465/2008.

Special leave dismissed with costs.
Appealed from NSW SC (CCA): [2008] NSWCCA 214.

Canberra: 31 March 2009

(Publication of reasons)

Criminal

Tilley v The Queen

M84/2008: [2009] HCASL 63.

Special leave dismissed.
Appealed from Vic SC (CA): [2008] VSCA 97.

Canberra: 1 April 2009

(Publication of reasons)

Civil

Kirkham v Kirkham

B45/2008: [2009] HCASL 64.

Special leave dismissed.
Appealed from FamC: [No media neutral citation].

Lei v Minister for Immigration and Citizenship & Anor

M88/2008: [2009] HCASL 65.

Special leave dismissed.
Appealed from FCA: [2008] FCA 1768.

Sood (trading as Kangaroo Creations) v Minister for Immigration and Citizenship & Anor

M91/2008: [2009] HCASL 66.

Special leave dismissed.
Appealed from FCA: [2008] FCA 1797.

SZEDA v Minister for Immigration and Citizenship & Anor

S482/2008: [2009] HCASL 67.

Special leave dismissed.
Appealed from FCA: [2008] FCA 1496.

Wang v Botany View Hotel

S483/2008: [2009] HCASL 68.

Special leave dismissed.
Appealed from NSW SC (CA): [2008] NSWCA 229.

SZMDU v Minister for Immigration and Citizenship & Anor

S489/2008: [2009] HCASL 69.

Special leave dismissed.
Appealed from FCA: [2008] FCA 1861.

SZLYM v Minister for Immigration and Citizenship & Anor

S493/2008: [2009] HCASL 70.

Special leave dismissed.
Appealed from FCA: [2008] FCA 1647.

SZMEZ v Minister for Immigration and Citizenship & Anor

S497/2008: [2009] HCASL 71.

Special leave dismissed.
Appealed from FCA: [2008] FCA 1743.

SZLYK v Minister for Immigration and Citizenship & Anor

S529/2008: [2009] HCASL 72.

Special leave dismissed.
Appealed from FCA: [2008] FCA 1708.

SZMHQ v Minister for Immigration and Citizenship & Anor

S544/2008: [2009] HCASL 73.

Special leave dismissed.
Appealed from FCA: [2008] FCA 1840.

SZJEZ v Minister for Immigration and Citizenship & Anor

S545/2008: [2009] HCASL 74.

Special leave dismissed.
Appealed from FCA: [2008] FCA 1741.

SZJTK v Minister for Immigration and Citizenship & Anor

S549/2008: [2009] HCASL 75.

Special leave dismissed.
Appealed from FCA: [2008] FCA 1712.

SZLYI v Minister for Immigration and Citizenship & Anor

S550/2008: [2009] HCASL 76.

Special leave dismissed.
Appealed from FCA: [2008] FCA 1809.

SZLYV v Minister for Immigration and Citizenship & Anor

S552/2008: [2009] HCASL 77.

Special leave dismissed.
Appealed from FCA: [2008] FCA 1847.

SZLXN & Anor v Minister for Immigration and Citizenship & Anor

S554/2008: [2009] HCASL 78.

Special leave dismissed.
Appealed from FCA: [No media neutral citation].

SZHHF v Minister for Immigration and Citizenship & Anor

S557/2008: [2009] HCASL 79.

Special leave dismissed.
Appealed from FCA: [2008] FCA 1818.

SZMIX v Minister for Immigration and Citizenship & Anor

S558/2008: [2009] HCASL 80.

Special leave dismissed.
Appealed from FCA: [2008] FCA 1749.

SZMCE v Minister for Immigration and Citizenship & Anor

S559/2008: [2009] HCASL 81.

Special leave dismissed.
Appealed from FCA: [2008] FCA 1803.

SZJHE v Minister for Immigration and Citizenship & Anor

S563/2008: [2009] HCASL 82.

Special leave dismissed.
Appealed from FCA: [2008] FCA 1771.

SZLNG & Anor v Minister for Immigration and Citizenship & Anor

S564/2008: [2009] HCASL 83.

Special leave dismissed.
Appealed from FCA: [2008] FCA 1830.

SZLYB & Anor v Minister for Immigration and Citizenship & Anor

S576/2008: [2009] HCASL 84.

Special leave dismissed.
Appealed from FCA: [2008] FCA 1802.

Civil

Leddin v The Queen

S498/2008: [2009] HCASL 85.

Special leave dismissed.
Appealed from NSW SC (CCA): [2008] NSWCCA 242.

Jamal v The Queen

S523/2008: [2009] HCASL 86.

Special leave dismissed.
Appealed from NSW SC (CCA): [2008] NSWCCA 177.

Lindstrom v The Queen

S562/2008: [2009] HCASL 87.

Special leave dismissed.
Appealed from NSW SC (CCA): [2008] NSWCCA 160.