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High Court of Australia Bulletin [2009] HCAB 3 (7 May 2009)

Last Updated: 12 May 2009

HIGH COURT BULLETIN

Produced by the High Court of Australia Library

[2009] HCAB 3 (7 May 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 April–May 2009 sittings.

Australian Competition and Consumer Commission v Channel Seven Brisbane Pty Ltd

High Court of Australia: [2009] HCA 19.

Judgment delivered: 30 April 2009.

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

Catchwords:

Trade Practices — Consumer protection — Misleading or deceptive conduct — Where Trade Practices Act 1974 (Cth), s 65A provides exemption from liability in respect of prescribed publication of matter by prescribed information provider — Exception to exemption in respect of publication in connection with supply, possible supply or promotion of supply or use of goods or services — Application of exception where publication made pursuant to contract, arrangement or understanding with person who supplies goods or services “of that kind” — Meaning of phrase “of that kind” in context of provision — Whether exception applies only where contract, arrangement or understanding relates to specific representations made in publication of matter.

Statutory Interpretation — Use of demonstrative adjective “that” — Determining referent of phrase “of that kind” — Relevance of textual proximity or sequential order — Whether alternative paragraphs in sub-section to be read distributively or as single sentence — Relevance of statutory intention — Extent of assistance from extrinsic materials.

Words and phrases — “advertisement”, “contract, arrangement or understanding”, “goods or services of that kind”.

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

Carroll v The Queen

High Court of Australia: [2009] HCA 13.

Judgment delivered: 21 April 2009.

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

Catchwords:

Criminal law — Sentencing — Prosecution appeal against sentence — Where sentence said to be “manifestly inadequate” — Where no specific error of principle or law alleged and case said to fall within last category of error identified in House v The King [1936] HCA 40; (1936) 55 CLR 499, namely sentence “unreasonable and plainly unjust” — Whether Court of Criminal Appeal erred in concluding sentence manifestly inadequate — Distinction between fresh consideration of how appellant's conduct to be characterised, and evaluation of adequacy of sentence by reference to matters of fact different from those found by primary judge.

Words and phrases — “manifestly inadequate”.

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

IceTV Pty Ltd v Nine Network Australia Pty Ltd

High Court of Australia: [2009] HCA 14.

Judgment delivered: 22 April 2009.

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

Catchwords:

Intellectual property — Copyright — Literary work — Compilation — Infringement — Production by employees of Nine Network Australia Pty Limited (“Nine”) of weekly schedules of television programmes to be broadcast on television stations within Nine Network (“Weekly Schedules”) — Information from Weekly Schedules used by third parties, with licence from Nine, to produce “Aggregated Guides” containing programme schedules for various television stations — Production by employees of IceTV Pty Limited of electronic programme guide for television using information from Aggregated Guides — Subsistence of copyright in each Weekly Schedule admitted — Alleged infringement of copyright by reproduction of substantial part of Weekly Schedules — Whether reproduction of “substantial part” — Quality of part reproduced — Originality — Information/expression dichotomy — Appropriation of “skill and labour” — Relevance of skill and labour devoted to programming decisions — Relevance of competing interests and policy considerations — Animus furandi.

Intellectual property — Copyright — Literary work — Compilation — Subsistence — Need to identify author, and time of making or first publication, of work — Originality — Kind of skill and labour required — “Sweat of the brow” and “industrious collection” compared with “creativity”.

Intellectual property — Copyright — Literary work — Compilation — Subsistence — Weekly Schedules produced using computer database — Whether database also work in suit — Whether Weekly Schedules same work.

Words and phrases — “animus furandi”, “author”, “compilation”, “information/expression dichotomy”, “originality”, “skill and labour”, “substantial part”.

Appealed from FCA FC: [2008] FCAFC 71; (2008) 168 FCR 14; (2008) 76 IPR 31; (2008) AIPC ¶92-285.

Jones v The Queen

High Court of Australia: [2009] HCA 17.

Judgment delivered: 29 April 2009.

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

Catchwords:

Criminal law — Evidence — Joint murder trial — Admissibility of evidence adduced by accused of bad character or propensity of co-accused — Whether appellant prevented by trial judge from fully adducing relevant admissible evidence — Whether jury misdirected as to use of evidence of appellant's bad character.

Criminal law — Appeals — Application of proviso.

Words and phrases — “substantial miscarriage of justice”.

Appealed from Qld CA: [2007] QCA 443; (2007) 179 A Crim R 389.

Keramianakis v Regional Publishers Pty Ltd

High Court of Australia: [2009] HCA 18.

Judgment delivered: 29 April 2009.

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

Catchwords:

Practice and procedure — Appeals — Availability of appeal where trial in District Court of New South Wales conducted with jury — Where trial judge entered “verdict” for defendant following jury’s answers to questions — Whether appellant a party “dissatisfied with a Judge’s ... judgment or order in an action” within meaning of District Court Act 1973 (NSW), s 127(1) — Relevance of absence in Supreme Court Act 1970 (NSW) of express provision conferring power on Court of Appeal in relation to appeals from District Court trial with jury.

Practice and procedure — Appeals — Where right of appeal exists in respect of “a Judge’s ... judgment or order in an action” — Relevance of cases dealing with phrase “all judgments, decrees, orders, and sentences” in Constitution, s 73.

Words and phrases — “all judgments, decrees, orders, and sentences”, “Judge’s ... judgment or order in an action”.

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

Radio 2UE Sydney Pty Ltd v Chesterton

High Court of Australia: [2009] HCA 16.

Judgment delivered: 22 April 2009.

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

Catchwords:

Defamation — Statements amounting to defamation — Test to be applied in determining what is defamatory — Whether general test has application to imputations concerning business or professional reputation — Whether general test limited to imputations concerning character or conduct — Distinction between defamation and injurious falsehood — Gacic v John Fairfax Publications Pty Ltd [2006] NSWCA 175[2006] NSWCA 175; ; (2006) 66 NSWLR 675 considered.

Defamation — Statements amounting to defamation — Standards by which allegedly defamatory imputations to be judged — Distinction between general test for defamation and standards to be applied — Standards imported by describing hypothetical referees of whether person defamed as “right-thinking” — Relevance and applicability of general community standards.

Defamation — Statements amounting to defamation — Standards by which allegedly defamatory imputations to be judged — Whether in cases concerning business or professional reputation hypothetical referees assumed to have special knowledge of business or profession — When plea of true innuendo appropriate.

Defamation — Statements amounting to defamation — Test to be applied in determining what is defamatory — Whether jury misdirected — Whether substantial wrong or miscarriage occurred.

Words and phrases — “business defamation”, “general community standards”, “hypothetical referee”, “ordinary decent person”, “ordinary reasonable person”, “reputation”, “right-thinking”, “true innuendo”.

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

Stuart v Kirkland-Veenstra

High Court of Australia: [2009] HCA 15.

Judgment delivered: 22 April 2009.

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

Catchwords:

Torts — Negligence — Duty of care — Where Mental Health Act 1986 (Vic), s 10 empowered police to apprehend person who “appears to be mentally ill” if reasonable grounds for believing that person had recently attempted suicide or likely to do so — Where police came upon man who appeared to have been contemplating suicide but showed no sign of mental illness — Interaction of common law and relationship established by s 10 — Whether duty of care to prevent foreseeable harm to man at own hand — Relevance of conditions engaging exercise of statutory power — Relevance of fact that duty alleged is duty to protect person from self-harm — Relevance of general rule against duty to rescue — Relevance of vulnerability of particular class of persons — Relevance of control over source of risk to persons.

Torts — Negligence — Duty of care — Where duty alleged to arise in context of power conferred by Mental Health Act 1986, s 10 — Whether preconditions to existence of power established on facts — Whether common law duty could exist in absence of relevant power.

Torts — Breach of statutory duty — Relevance as alternative to action alleging breach of common law duty of care — Principles relevant to determining legislative intention that cause of action be available — Relevance of legislative provision for special measures to protect identifiable class of persons or property — Whether existence of discretion to exercise power inconsistent with existence of statutory duty.

Statutes — Interpretation — Whether person who has attempted suicide to be equated with person “mentally ill” — Relationship between attempted suicide and mental illness — Understanding at common law of relationship between suicide and mental illness.
Words and phrases — “mentally ill”.

Appealed from Vic CA: [2008] VSCA 32; (2008) Aust Torts Reports ¶81–936; [2008] ALMD 4105.

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 2 [2009] HCAB 2.

Administrative Law

****Minister for Immigration and Citizenship v SZIZO & Ors

S568/2008: [2009] HCATrans 71.

Date heard: 23 April 2009 — Judgment reserved.

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

Catchwords:

Administrative law — Jurisdictional error — Procedural fairness — Invitation to attend hearing addressed and sent to Applicant but not authorised recipient — Applicant and authorised recipient living at same address — Applicant subsequently attending hearing and calling witnesses — Whether breach of statutory procedural requirement to notify authorised recipient constitutes jurisdictional error — Migration Act 1958 (Cth), s 441G.

Administrative law — Discretionary relief — Procedural fairness — Whether no practical unfairness followed from breach of statutory procedural requirement — 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.

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.

****Lane v Morrison & Anor

C3/2008: [2009] HCATrans 69; [2009] HCATrans 70.

Date heard: 22–23 April 2009 — Judgment reserved.

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

Catchwords:

Constitutional law — Military courts — Command of naval and military forces — Independence from — Plaintiff, a member of the Australian Defence Force (“the ADF”), was charged under ss 25 and 61(3) of the Defence Force Discipline Act 1982 (Cth) (“the Act”) for assaulting a superior officer and for an indecent act — Charges were listed for hearing before the Australian Military Court (“the AMC”) established by s 114 of the Act — Whether the AMC’s independence from the command structures within the ADF is inconsistent with s 68 of the Constitution.

Constitutional law — Military courts — Chapter III — Whether the AMC is a “federal court” impermissibly created contrary to s 71 of the Constitution — Whether a general criminal jurisdiction is conferred by the Act on the AMC which is not subordinate and supplementary to the general criminal law — Whether a general criminal jurisdiction can only be validly conferred on a Ch III court.

Constitutional law — Military courts — Defence power — Whether the conferral of a general criminal jurisdiction on the AMC is beyond the scope of s 51(vi) of the Constitution.

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

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

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

Criminal Law

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.

Equity

Friend v Brooker & Anor

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

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

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

Catchwords:

Equity — Equitable contribution — “Co-ordinate liability” — Appellant 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 Appellant.

Practice and 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.

Practice and Procedure

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

C1/2009: [2009] HCATrans 72; [2009] HCATrans 74.

Date heard: 28–29 April 2009 — Judgment reserved.

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

Catchwords:

Practice and procedure — Pleadings — Application for leave to amend — Prejudice — Leave to amend sought after commencement of trial — Whether opponent must demonstrate specific prejudice caused by the amendments that cannot be met by a costs order — Application of Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146 (“J L Holdings”) — Whether J L Holdings has been properly interpreted — Court Procedure Rules 2006 (ACT), r 21.

Practice and procedure — Pleadings — Application for leave to amend — Prejudice — Respondent made deliberate tactical decision to exclude an issue from proceedings — Whether right to amendment to reverse deliberate forensic decision.

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 seeks to maintain claims directly inconsistent with the consent judgment obtained against insurer defendant — Whether amendment to include inconsistent claim would amount to an abuse of process.

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

See also Equity: Friend v Brooker & Anor

Taxation

****Spriggs v Commissioner of Taxation; Riddell v Commissioner of Taxation

M92/2008; M93/2008: [2009] HCATrans 68.

Date heard: 21 April 2009 — Judgment reserved.

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

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.

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 2 [2009] HCAB 2.

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 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.

See also Statutes: ****Kirk & Anor v Industrial Relations Commission of New South Wales & Anor; Kirk Group Holdings Ltd & Anor v Workcover Authority of New South Wales (Inspector Childs); Kirk Group Holdings Ltd & Anor v Workcover Authority of New South Wales (Inspector Childs).

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

****Arnold & Ors v Minister Administering the Water Management Act 2000 & Ors

S6/2009: [2009] HCATrans 91.

Date heard: 1 May 2009 — Special leave granted.

Catchwords:

Constitutional law — Grants power — Limits of — State acquisition of property — Whether Commonwealth legislative power under s 96 of the Constitution extends to grants authorised pursuant to an agreement requiring a State to acquire property on unjust terms — Constitution, ss 51(xxxi), 96.

Constitutional law — Abridgment of rights to use of water — Commonwealth “shall not, by any law or regulation of trade or commerce, abridge the right of a State or of the residents therein to the reasonable use of the waters of rivers for conservation or irrigation”: Constitution, s 100 — Whether prohibition in s 100 is limited to laws made under s 51(i) (“interstate trade and commerce”) — Whether Morgan v Commonwealth (1947) 74 CLR 421 should be reconsidered — Constitution, ss 51(i), 100.

Appealed from NSW SC (CA): [2008] NSWCA 338; (2008) 163 LGERA 429; (2008) 253 ALR 173.

****Bakewell v The Queen

D4/2009: [2009] HCATrans 75.

Date heard: 1 May 2009 — Special leave granted.

Catchwords:

Constitutional law — Chapter III — Kable doctrine — Section 19(3) of the Sentencing (Crime of Murder) and Parole Reform Act 2003 (NT) (“the Act”) permits the NT Director of Public Prosecutions (“the DPP”) to apply to the Supreme Court of NT (“the Court”) to extend the non-parole period of a prisoner — The Court must fix a non-parole period of 25 years if in relation to the crime of murder any of the listed aggravating circumstances were applicable — The DPP’s application under s 19(3) of the Act in relation to the Applicant was dismissed — Sections 19(6)–19(10) inserted by the Sentencing (Crime of Murder) and Parole Reform Amendment Act 2008 (NT) as a result of application’s dismissal — The Court’s power to dismiss the DPP’s application if an aggravating circumstance established is “excluded”: s 19(7) — DPP permitted to make a further application if, “before the commencement of this subsection, an application under this section had been dismissed”: s 19(9) — Applicant was only prisoner to which s 19(9) could apply — Whether ss 19(7) and 19(9) are 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 (NSW) (1996) 189 CLR 51 — Baker v The Queen (2004) 223 CLR 513.

Appealed from NT SC: [2008] NTSC 51.

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 (NSW) (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.

Contracts

****Integral Home Loans Pty Ltd & Anor v Interstar Wholesale Financial Pty Ltd & Anor

S572/2008: [2009] HCATrans 87.

Date heard: 1 May 2009 — Special leave granted.

Catchwords:

Contracts — Law of penalties — Termination clause — Contract between Appellants (loan originators) and Respondents (finance companies) — Appellants provided loan origination and management services to Respondent in return for upfront commission and ongoing trail commissions — Respondents could terminate contract where Respondents considered in its reasonable opinion that Appellants had engaged in deceptive or fraudulent conduct in relation to a loan — Contract contained specific obligation on Applicant to act honestly and not engage in misleading, deceptive or unethical conduct — Whether termination clause void as a penalty — Whether law of penalties applicable where divestment or forfeiture of rights or property occurs when contract terminated pursuant to a right to do so.

Appealed from NSW SC (CA): [2008] NSWCA 310.

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 Statutes: ****Kirk & Anor v Industrial Relations Commission of New South Wales & Anor; Kirk Group Holdings Ltd & Anor v Workcover Authority of New South Wales (Inspector Childs); Kirk Group Holdings Ltd & Anor v Workcover Authority of New South Wales (Inspector Childs).

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.

Real Property

****Mandurah Enterprises Pty Ltd & Ors v Western Australian Planning Commission

P37/2008: [2009] HCATrans 83.

Date heard: 1 May 2009 — Special leave granted.

Catchwords:

Real property — Compulsory acquisition — Parts of various lots of land reserved under a town planning scheme called the Peel Regional Scheme (“the PRS”) for “Primary Regional Road” — Land subsequently acquired by a single taking order under s 13 of the Town Planning and Development Act 1928 (WA) for the purposes of railways as well as primary regional roads — Acquisition included lands not reserved under the PRS — Whether acquisition valid — Whether invalid takings of unreserved land and railway land can be severed from valid takings.

Real property — Compulsory acquisition — Whether acquisition of property for railway construction nonetheless valid under s 161 of the Land Administration Act 1997 (WA) permitting compulsory acquisition for public works — Whether acquiring body (a local authority) can acquire land under s 161 or whether it can only acquire land for town planning purposes.

Real property — Compulsory acquisition — Access to land — Whether acquiring body required to install a level crossing to provide access to land under s 102 of the Public Works Act 1902 (WA).

Appealed from WA SC (CA): [2008] WASCA 211.

Statutes

****Kirk & Anor v Industrial Relations Commission of New South Wales & Anor; Kirk Group Holdings Ltd & Anor v Workcover Authority of New South Wales (Inspector Childs); Kirk Group Holdings Ltd & Anor v Workcover Authority of New South Wales (Inspector Childs)

S346/2008; S347/2008; S348/2008: [2009] HCATrans 93.

Date heard: 1 May 2009 — Special leave granted in S346/2008; Special leave referred to Full Court in S347/2008 and S348/2008.

Catchwords:

Statutes — Interpretation — Employer charged under s 15 of the Occupational Health and Safety Act 1983 (NSW), which requires that “[e]very employer shall ensure the health, safety and welfare at work of all the employer’s employees” — Industrial Court of NSW discounted any suggestion that the duty is restricted to conduct that is “reasonably foreseeable” — Whether Industrial Court’s construction of s 15 renders provision incapable of compliance due to impossibility of creating risk free environment.

Administrative law — Jurisdictional error — Full Court of Industrial Court failed to consider one submission that underlay the basis upon which leave to appeal was granted — Whether failure to consider this submission constituted jurisdictional error — Craig v South Australia (1995) 184 CLR 163.

Courts and judicial system — Jurisdiction — Whether an appeal lies to the High Court from a judgment of the Industrial Court of NSW.

Courts and judicial system — Jurisdiction — Applicants sought to appeal the decision of the trial judge in the NSW Court of Criminal Appeal and sought prerogative relief in the NSW Court of Appeal — The Court of Criminal Appeal found no appeal was available under s 5 of the Criminal Appeal Act 1912 (NSW) — The Court of Appeal refused prerogative relief — Full Court of Industrial Court denied leave to file an appeal out of time — Whether it is appropriate for an appellate court dealing with a criminal matter to decline to exercise its discretion to hear an appeal out of time on the basis that the appellant sought an alternative right of appeal.

S346/2008 appealed from NSW SC (CA): [2008] NSWCA 156; (2008) 173 IR 465.
S347/2008 appealed from NSW IR Comm: [2006] NSWIRComm 355; (2006) 158 IR 281.
S348/2008 appealed from NSW IR Comm: [2007] NSWIRComm 86; (2006) 164 IR 146.

Taxes and Duties

****Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue; Commissioner of Territory Revenue v Alcan (NT) Alumina Pty Ltd

D2/2009; D3/2009: [2009] HCATrans 76.

Date heard: 1 May 2009 — Special leave granted.

Catchwords:

Taxes and duties — Stamp duty — Definition of “land” — Applicant acquired a corporation holding mining leases over land made under an enactment — All but two leases included a right of renewal — Stamp duty payable if “the value of all land to which the corporation is entitled ... is 60% or more of the value of all property to which it is entitled”: Taxation (Administration) Act 1978 (NT) (“the Act”), s 56N(2)(b) — Section 4 of the Act, labelled “Interpretation”, defines “land” to include a “lease” of land and defines “lease” to include a “lease granted under an Act” but not “an option to renew a lease” — Whether the definitions of “land” and “lease” in s 4 of the Act do not apply to s 56N(2)(b) due to a contrary intention.

Taxes and duties — Income taxation — Goodwill — Nature and sources — Attraction of custom — Mining corporation — Whether attraction of custom essential element of goodwill — Whether profitable business necessarily has goodwill for legal purposes — Federal Commissioner of Taxation v Murry (1998) 193 CLR 605.

Appealed from NT SC (CA): [2008] NTCA 14; (2008) 156 NTR 1.

Torts

****ACQ Pty Ltd v Cook & Anor; Aircair Moree Pty Ltd v Cook & Anor

S499/2008; S500/2008: [2009] HCATrans 86.

Date heard: 1 May 2009 — Special leave granted.

Catchwords:

Torts — Negligence — Causation — Scope of — Crop dusting aircraft collided with a conductor causing it to drop to head height — Conductor lay over a field with rows of cotton plants and muddy irrigator ditches between them — Two electrical linesmen were dispatched to fix the conductor — Before isolating the conductor, one linesman approached the conductor, tripped or fell over due to the mud or cotton plants, falling within 60mm of the conductor, causing flashover (an unintended electric arc between conductor and another object) — Whether injury was “caused by ... something that is a result of an impact” with an aircraft that is in flight: Damage by Aircraft Act 1999 (Cth), s 10.

Appealed from NSW SC (CA): [2008] NSWCA 161.

****Amaca Pty Ltd v Ellis & Ors; State of South Australia v Ellis & Ors; Millennium Inorganic Chemicals Ltd v Ellis & Ors

P33/2008; P34/2008; P35/2008: [2009] HCATrans 77.

Date heard: 1 May 2009 — Special leave granted.

Catchwords:

Torts — Negligence — Causation — Risk of injury — “Cumulative injury” — Regular smoker who was exposed to asbestos during two periods of his working life died of lung cancer — Whether exposure to asbestos caused lung cancer — Whether increase in risk of injury can be sufficient to prove causation — Whether test for causation can be modified depending on the nature of the injury — Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32; Barker v Corus UK Ltd [2006] 2 AC 572.

Appealed from WA SC (CA): [2008] WASCA 200.

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.

****Sydney Water Corporation v Turano & Anor

S496/2008: [2009] HCATrans 85.

Date heard: 1 May 2009 — Special leave granted.

Catchwords:

Torts — Negligence — Duty of care — Applicant (a utility company) laid a water main in 1981 which had the effect of altering sub-surface water flows — In 2001 a tree blown over in a storm falling onto a car killing the Respondent’s husband — Tree was in weakened condition because water had carried a pathogen to its roots — Respondent sued Applicant claiming damages — Whether Applicant owed a duty of care to Respondent’s husband — Whether injury was reasonably foreseeable — Whether Applicant caused injury of Respondent’s husband.

Appealed from NSW SC (CA): [2008] NSWCA 270; (2008) 164 LGERA 16; (2008) 51 MVR 262.

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: 29 April 2009

(Publication of reasons)

Civil

Jordan v Baronglow Pty Ltd (now known as ACN 081 472 102 Pty Ltd) & Ors

A24/2008: [2009] HCASL 88.

Special leave dismissed.
Appealed from SA SC FC: [2008] SASC 184.

Rana v Chief of Army (No 2)

A32/2008: [2009] HCASL 89.

Special leave dismissed.
Appealed from FCA: [2008] FCA 1555.

Vink v Tuckwell

M82/2008: [2009] HCASL 90.

Special leave dismissed.
Appealed from Vic SC (CA): [2008] VSCA 204.

MZYAB v Minister for Immigration and Citizenship & Anor

M8/2009: [2009] HCASL 91.

Special leave dismissed.
Appealed from FCA: [2008] FCA 1744.

Smolarek v McMaster as Administrator of Eznut Pty Ltd (ACN 102 508 789) & Ors (No 2)

P38/2008: [2009] HCASL 92.

Special leave dismissed.
Appealed from WA SC (CA): [2008] WASCA 234.

TAF v MEF

S456/2008: [2009] HCASL 93.

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

Assali v Gerard Malouf trading as Gerard Malouf and Partners

S458/2008: [2009] HCASL 94.

Special leave dismissed.
Appealed from NSW SC (CA): [2008] NSWCA 272.

SZLZQ & Anor v Minister for Immigration and Citizenship & Anor

S520/2008: [2009] HCASL 95.

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

SZLWF v Minister for Immigration and Citizenship & Anor

S525/2008: [2009] HCASL 96.

Special leave dismissed.
Appealed from FCA: [2008] FCA 1734.

SZLYF & Anor v Minister for Immigration and Citizenship & Anor

S526/2008: [2009] HCASL 97.

Special leave dismissed.
Appealed from FCA: [2008] FCA 1707.

SZGQK v Minister for Immigration and Citizenship & Anor

S530/2008: [2009] HCASL 98.

Special leave dismissed.
Appealed from FCA: [2008] FCA 1658.

SZLTS & Anor v Minister for Immigration and Citizenship & Anor

S532/2008: [2009] HCASL 99.

Special leave dismissed.
Appealed from FCA: [2008] FCA 1828.

SZJHA v Minister for Immigration and Citizenship & Anor

S533/2008: [2009] HCASL 100.

Special leave dismissed.
Appealed from FCA: [2008] FCA 1691.

SZLPF v Minister for Immigration and Citizenship & Anor

S535/2008: [2009] HCASL 101.

Special leave dismissed.
Appealed from FCA: [2008] FCA 1692.

Applicant S303/2003 v Minister for Immigration and Citizenship & Anor

S536/2008: [2009] HCASL 102.

Special leave dismissed.
Appealed from FCA: [2008] FCA 1811.

SZMEY v Minister for Immigration and Citizenship & Anor

S537/2008: [2009] HCASL 103.

Special leave dismissed.
Appealed from FCA: [2008] FCA 1810.

SZLQS & Anor v Minister for Immigration and Citizenship & Anor

S538/2008: [2009] HCASL 104.

Special leave dismissed.
Appealed from FCA: [2008] FCA 1823.

SZLXV & Ors v Minister for Immigration and Citizenship & Anor

S540/2008: [2009] HCASL 105.

Special leave dismissed.
Appealed from FCA: [2008] FCA 1821.

SZLOC v Minister for Immigration and Citizenship & Anor

S542/2008: [2009] HCASL 106.

Special leave dismissed.
Appealed from FCA: [2008] FCA 1662.

SZLRF & Ors v Minister for Immigration and Citizenship & Anor

S548/2008: [2009] HCASL 107.

Special leave dismissed.
Appealed from FCA: [2008] FCA 1682.

SZLKY v Minister for Immigration and Citizenship & Anor

S551/2008: [2009] HCASL 108.

Special leave dismissed.
Appealed from FCA: [2008] FCA 1755.

SZLPV v Minister for Immigration and Citizenship & Anor

S571/2008: [2009] HCASL 109.

Special leave dismissed.
Appealed from FCA: [2008] FCA 1778.

SZLOJ & Anor v Minister for Immigration and Citizenship & Anor

S531/2008: [2009] HCASL 110.

Special leave dismissed.
Appealed from FCA: [2008] FCA 1693.

SZLOL & Anor v Minister for Immigration and Citizenship & Anor

S539/2008: [2009] HCASL 111.

Special leave dismissed.
Appealed from FCA: [2008] FCA 1829.

Canberra: 1 May 2009

(Publication of reasons)

Civil

Catto & Ors v Hampton Australia Ltd (in Liquidation) & Ors

A25/2008: [2009] HCASL 112.

Special leave dismissed with costs.
Appealed from SA SC FC: [2008] SASC 231.

Mendrecki v Doan & Ors

A26/2008; A27/2008: [2009] HCASL 113.

Special leave dismissed with costs.
Appealed from SA SC FC: [2008] SASC 236.

Canberra: 1 May 2009

Civil

W & R Pty Ltd v Birdseye

A37/2008.

Special leave dismissed with costs.
Appealed from SA SC FC: [2008] SASC 321.

Zuccala v State of Western Australia

P31/2008.

Special leave dismissed.
Appealed from WA SC (CA): [2008] WASCA 129.

State of South Australia v Flavel

A1/2009.

Special leave dismissed with costs.
Appealed from SA SC FC: [2008] SASC 333.

Criminal

Draoui v The Queen

A17/2008.

Special leave dismissed.
Appealed from SA SC (CCA): [2008] SASC 188.

McGee v The Queen

A38/2008; A39/2008.

Special leave dismissed.
Appealed from SA SC (CCA): [2008] SASC 328.

Sydney: 1 May 2009

Civil

Tyszyk v State of New South Wales

S369/2008.

Special leave dismissed with costs.
Appealed from NSW SC (CA): [2008] NSWCA 107; [2008] NSWCA 180.

SZLHP v Minister for Immigration and Citizenship & Anor

S437/2008.

Special leave dismissed with costs.
Appealed from FCA FC: [2008] FCAFC 152.

Turano v Council of the City of Liverpool & Anor

S507/2008.

Special leave dismissed with costs.
Appealed from NSW SC (CA): [2008] NSWCA 270.

Carantinos & Anor v Magafas & Ors

S546/2008.

Special leave dismissed with costs.
Appealed from NSW SC (CA): [2008] NSWCA 304.

Zipser & Anor v Kaled Elayoubi bhnf Taman Kolled & Anor; Northern Health v Kaled Elayoubi bhnf Taman Kolled & Ors

S575/2008; S3/2009.

Special leave dismissed with costs.
Appealed from NSW SC (CA): [2008] NSWCA 335.

Criminal

Bow v The Queen

S495/2008.

Special leave dismissed.
Appealed from NSW SC (CCA): [2008] NSWCCA 193.