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High Court of Australia Bulletin [2009] HCAB 5 (26 June 2009)

Last Updated: 29 June 2009

HIGH COURT BULLETIN

Produced by the High Court of Australia Library

[2009] HCAB 5 (26 June 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 May–June 2009 sittings.

Spriggs v Commissioner of Taxation; Riddell v Commissioner of Taxation

High Court of Australia: [2009] HCA 22.

Judgment delivered: 18 June 2009.

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

Catchwords:

Taxes and duties — Income tax — Deductions — Appellant taxpayers professional Australian Rules football player and professional rugby league player — Each paid fee to manager for negotiating contract to play with new club — Whether management fee deductible under Income Tax Assessment Act 1997 (Cth), s 8-1(1) as outgoing “incurred in gaining or producing” or “necessarily incurred in carrying on a business for the purpose of gaining or producing” assessable income — Whether each appellant carrying on business exploiting sporting prowess and associated celebrity — Relevance of exclusion from definition of “business” in s 995-1 of “occupation as an employee” — Relevance of Federal Commissioner of Taxation v Maddalena (1971) 45 ALJR 426; 2 ATR 541.

Taxes and duties — Income tax — Deductions — Whether management fee not deductible pursuant to s 8-1(2)(a) as an “outgoing of capital, or of a capital nature”.

Words and phrases — “business”, “incurred in gaining or producing”, “necessarily incurred in carrying on a business”, “occupation as an employee”, “ordinary income”, “outgoing of capital”.

Appealed from FCA FC: [2008] FCAFC 150; (2008) 170 FCR 135.

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 4 [2009] HCAB 4.

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 Appellant but not authorised recipient — Appellant and authorised recipient living at same address — Appellant 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.

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

S503/2008; S515/2008: [2009] HCATrans 102.

Date heard: 19 May 2009 — Judgment reserved.

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

Catchwords:

Administrative law — Jurisdictional error — Refugee Review Tribunal (“the Tribunal”) sought information from a person by telephone — Section 424(1) of the Migration Act 1958 (Cth) (“the Act”) authorises the Tribunal to get any information it considers relevant, and s 424(2) authorises the Tribunal to invite a person to give “additional information” — Sections 424(3) and 424B of the Act set out formal requirements for invitation — Whether all requests by the Tribunal for information on a voluntary basis fall within s 424(2) of the Act — 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(1), 424(2), 424(3), 424B.

Appealed from FCA FC: [2008] FCAFC 125.

Bankruptcy

Vale v Sutherland

S38/2009: [2009] HCATrans 104; [2009] HCATrans 105.

Date heard: 20–21 May 2009 — Parties to file further submissions before Court makes a determination on the course this matter will take.

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

Catchwords:

Bankruptcy — Notice — Notice issued 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 — Failure to comply with notice may result in criminal sanctions under s 139ZT of the Act — Whether notice should be set aside under ss 30 and/or 139ZS if value stated incorrect.

Bankruptcy — Notice — Whether value in s 139ZQ of the Act is value at the time of transfer or at the time of issue of notice.

Practice and Procedure — Pleadings — Whether correctness of value traversed in defence or cross-claim — Effect of failure to traverse where trial conducted on the basis that the correctness of value was in issue.

Appealed from FCA FC: [2008] FCAFC 148; (2008) 170 FCR 112.

Constitutional Law

****Bakewell v The Queen

D5/2009: [2009] HCATrans 133.

Date heard: 16 June 2009 — Court to consider the matter and re-list at a future date either for judgment or for further argument.

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

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 Appellant was dismissed — Sections 19(6)–19(10) were 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) — Appellant 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.

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.

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

S72/2009: [2009] HCATrans 107; [2009] HCATrans 108.

Date heard: 26–27 May 2009 — Judgment reserved.

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

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”) ex parte 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” — Section 22 requires the Court, upon application by the NSW Crime Commission, to make an assets forfeiture order if the Court finds it to be more probable than not that the person has engaged in a “serious crime related activity” — Ex parte restraining orders were made with respect to numerous bank accounts — Whether s 10(3) directs the Court as to the manner and outcome of the exercise of its jurisdiction — Whether s 10(3) is invalid as being an ancillary component to a statutory scheme involving the forfeiture of property in circumstances where there has not been a criminal finding of guilt — Whether s 10(3) 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.

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

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.

Employment Law

Visscher v The Honourable President Justice Giudice, The Honourable Senior Deputy President Drake, Commissioner Roberts, Commissioner Redmond, Australian Industrial Relations Commission & Anor

S30/2008: [2009] HCATrans 106.

Date heard: 22 May 2009 — Judgment reserved.

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

Catchwords:

Employment law — Wrongful termination — Employer repudiated employment contract — Ongoing employment relationship after repudiation — Whether “unaccepted” repudiation was effective to terminate the contract — Whether a new contract of employment was brought into existence.

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

S577/2008; S578/2008: [2009] HCATrans 103.

Date heard: 5 December2008 — Judgment reserved.

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

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 in before arriving in Australia.

Appealed from FCA FC: [2008] FCAFC 105; (2008) 170 FCR 515; (2008) 247 ALR 451; (2008) 102 ALD 226.

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 Bankruptcy: Vale v Sutherland.

Taxes and Duties

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

D7/2009; D6/2009: [2009] HCATrans 150.

Date heard: 23 June 2009 — Judgment reserved on the first appeal (the option to renew issue) with hearing of the second appeal (the goodwill issue) to be heard at a future date.

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

Catchwords:

Taxes and duties — Stamp duty — Definition of “land” — Appellant 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

S107/2009; S108/2009: [2009] HCATrans 134.

Date heard: 17 June 2009 — Judgment reserved.

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

Catchwords:

Torts — Negligence — Causation — Statutory modification — Crop dusting aircraft struck an electrical power pole, causing an electrical wire conductor to sag to 1.5m above the ground — Conductor lay over a muddy field planted with rows of cotton plants between irrigation ditches — Two electrical linesmen were dispatched to fix the conductor — While the conductor was still live, one linesman approached the conductor, and tripped or fell to within 60mm of the conductor, causing “flashover” (an unintended electric arc between a 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(1)(d).

Torts — Negligence — Duty of care — Scope of — Whether pilot of crop-dusting aircraft owed a duty of care to electrical linesman — Whether linesman was a “rescuer” for the purposes of assessing duty of care.

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

Calliden Insurance Ltd v Fox & Ors; Leighton Contractors Pty Ltd v Fox & Ors

(This matter was previously listed as Downview Pty Ltd v Fox & Ors; Leighton Contractors Pty Ltd v Fox & Ors)
S534/2008; S528/2008: [2009] HCATrans 110.

Date heard: 28 May 2009 — Judgment reserved.

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

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 or verify 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

S104/2009: [2009] HCATrans 135.

Date heard: 18 June 2009 — Judgment reserved.

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

Catchwords:

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

B8/2009: [2009] HCATrans 148; [2009] HCATrans 149.

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

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

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 degree of permanent impairment resulting from injury — Consideration of Canute v Comcare (2006) 226 CLR 535.

Appealed from FCA FC: [2008] FCAFC 140; (2008) 170 FCR 531; (2008) 103 ALD 552.

3: ORIGINAL JURISDICTION

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

**** Indicates cases made ready for hearing since High Court Bulletin 4 [2009] HCAB 4.

****ICM Agriculture Pty Ltd & Ors v The Commonwealth of Australia & Ors

S24/2009.

Catchwords:

Constitutional law — Acquisition of property — Intergovernmental agreements — Pursuant to s 5 of the Natural Resources Management (Financial Assistance) Act 1992 (Cth) (“the Act”) Commonwealth entered a funding agreement with New South Wales whereby Commonwealth provided financial assistance for New South Wales water management projects — Under the funding agreement, New South Wales substituted or converted plaintiffs’ water licences in order to achieve long-term sustainable water use, resulting in reduced water entitlements — Whether substitution and conversion by New South Wales pursuant to the funding agreement involves an acquisition of property to which s 51(xxxi) of the Constitution applies — Whether s 5 of the Act invalid as it authorises Commonwealth to enter into an intergovernmental agreement in breach of s 51(xxxi).

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

4: SPECIAL LEAVE GRANTED

The following cases have been granted special leave to appeal to the High Court of Australia.

**** Indicates cases granted special leave to appeal since High Court Bulletin 4 [2009] HCAB 4.

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.

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).

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.

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).

Criminal Law

****The Queen v LK; The Queen v RK

S17/2009; S18/2009: [2009] HCATrans 146.

Date heard: 19 June 2009 — Special leave granted.

Catchwords:

Criminal law — Conspiracy — Fault element — Respondents charged with conspiring to deal with money reckless as to the fact that the money was the proceeds of crime — Section 11.5(2)(b) of the Criminal Code (Cth) provides that for a person to be guilty of the offence of conspiracy, inter alia, ‘the person and at least one other party to the agreement must have intended that an offence would be committed pursuant to the agreement’ — The offence the subject of the conspiracy (dealing with proceeds of crime) provides that a person is guilty of an offence if, inter alia, ‘the person is reckless as to the fact that the money or property is proceeds of crime’: s 400.3(2)(c) — Whether the fault element for the offence of conspiracy for each physical element of the substantive offence is intent or recklessness — Whether s 11.5(2)(b) elevates the fault element to intention despite the fault element in s 400.3(2)(c).

Appealed from NSW SC CCA: [2008] NSWCCA 338.

****Taiapa v The Queen

B6/2009: [2009] HCATrans 155.

Date heard: 25 June 2009 — Referred to Full Court.

Catchwords:

Criminal law — Defences — Duress — Police intercepted a car carrying Applicant that contained a dangerous drug — Applicant charged with, inter alia, trafficking in and possession of a dangerous drug — Applicant claimed he was transporting the drug for two persons to whom he owed money — Lenders had threatened Applicant and his family on several occasions with a gun — Applicant claimed he could not go to police because he knew few personal details about the lenders and feared for his family’s safety — Whether defence of duress available — Whether Applicant “reasonably believe[d] he or she or the other person [was] unable otherwise to escape the carrying out of the threat”: Criminal Code Act 1899 (Qld), s 31(1)(d)(ii) — Whether s 31(1)(d)(ii) contains objective limitations on the availability of the defence — Whether the existence of such limitations is a matter solely for consideration of the jury.

Appealed from Qld SC CA: [2008] QCA 204.

Equity

****Bofinger & Anor v Kingsway Group Ltd formerly Willis & Bowring Mortgage Investments Ltd & Ors

S5/2009: [2009] HCATrans 144.

Date heard: 19 June 2009 — Special leave granted.

Catchwords:

Equity — Subrogation — Unconscionability — Applicants were guarantors of three separate loans made to a developer — Guarantees were secured by mortgages over the Applicants’ personal properties to the three mortgagees — Applicants voluntarily sold personal properties and used proceeds to reduce first mortgage — Second and third mortgagees discharged mortgages, allowing sale to be completed even though they received no part of the proceeds — First mortgagee exercised power of sale over developer’s land — Surplus remained after first mortgagee paid out in full — Whether equitable doctrine of unconscionability prevents guarantors from being subrogated to the rights of the first mortgagee where subsequent mortgagees remain unpaid and guarantors have given guarantees to subsequent mortgagees.

Equity — Subrogation — Whether a guarantor’s equitable right of subrogation to a first mortgagee is released or surrendered by guarantors’ conduct of providing a guarantee to subsequent mortgagees.

Mortgages — Rule in Otter v Lord Vaux (1856) 1 K&J 650; 69 ER 943 prevents a mortgagor who has paid off the first mortgage from keeping it alive against a later mortgage that he/she has created — Whether rule can be extended to prevent a guarantor who pays off a mortgage he/she has guaranteed from being subrogated to the rights of that mortgagee in priority to a later mortgagee he/she has also guaranteed.

Appealed from NSW SC CA: [2008] NSWCA 332.

Mortgages

See Equity: ****Bofinger & Anor v Kingsway Group Ltd formerly Willis & Bowring Mortgage Investments Ltd & Ors.

Practice and Procedure

****Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd & Ors; Jeffery & Katauskas Pty Ltd v Rickard Constructions Pty Ltd (Subject to Deed of Company Arrangement) & Ors

S14/2009; S16/2009: [2009] HCATrans 140.

Date heard: 19 June 2009 — Special leave granted.

Catchwords:

Practice and procedure — Costs — Abuse of process — Insolvent plaintiff commenced proceedings — A non-party (with a commercial interest in the plaintiff succeeding) provided security for costs at first instance and the appeal — Security proved to be significantly insufficient compared with costs incurred — Shortfall could not be met by insolvent plaintiff — Whether non-party committed an abuse of process so as to be subject to a non-party costs order: r 42.3(2)(c) of the Uniform Civil Procedure Rules 2005 (NSW) — Whether r 42.3(2)(c) requires an abuse in the actual conduct of proceedings — Proper test for abuse of process — Knight v F P Special Assets Ltd (1992) 174 CLR 178.

Appealed from NSW SC CA: [2008] NSWCA 283.

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

****Bruton Holdings Pty Ltd (In Liquidation) v Commissioner of Taxation & Anor

S68/2009: [2009] HCATrans 138.

Date heard: 19 June 2009 — Special leave granted.

Catchwords:

Taxes and duties — Funds of a trustee held by a third party — Commenced winding up of the trustee — Commissioner of Taxation (“the Commissioner”) issued notices under s 260-5 of sch 1 to the Taxation Administration Act 1953 (Cth) requiring the monies held by the third party be paid to the Commissioner — Whether notices void and unenforceable for being an “attachment” within the meaning of s 500(1) of the Corporations Act 2001 (Cth).

Appealed from FCA FC: [2008] FCAFC 184.

Torts

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.

CAL No 14 Pty Ltd t/as Tandara Motor Inn & Anor v Motor Accidents Insurance Board; CAL No 14 Pty Ltd t/as Tandara Motor Inn & Anor v Scott

H4/2009; H5/2009: [2009] HCATrans 113.

Date heard: 29 May 2009 — Special leave granted.

Catchwords:

Torts — Negligence — Duty of care — Respondent began drinking in a hotel owned by the Applicant — Applicant served Respondent a number of alcoholic drinks — Respondent put his motorcycle in hotel’s storeroom, saying that his wife would pick him up later that night — At end of the evening Respondent asked Applicant for motorcycle back — Applicant asked Respondent if he was “right to ride” and Respondent said he was fine — Respondent ran off road and died on way home — Whether Applicant owed Respondent duty of care to prevent Respondent from riding motorcycle whilst intoxicated.

Appealed from Tas SC FC: [2009] TASSC 2.

Workers’ Compensation

Toyota Motor Corporation Australia Ltd v Jayatilake

M73/2008: [2009] HCATrans 118.

Date heard: 29 May 2009 — Special leave granted.

Catchwords:

Workers’ compensation — “Serious injury” — Assessment of — Section 134AB(37) of the Accident Compensation Act 1985 (Vic) (“the Act”) defines “serious injury” to mean, inter alia, “permanent severe mental or permanent severe behavioural disturbance or disorder” — Term “severe” is to be satisfied by reference to consequences to worker of the injury with respect to pain and suffering or loss of earning capacity: s 134AB(38) — Psychological or psychiatric consequences of a physical injury and physical consequences of a mental disturbance or disorder are to be taken into account only where worker contends for a permanent serious mental disturbance or disorder: ss 134AB(38)(h), 134AB(38)(i) — Worker’s injury due partly to physical and partly to psychological or psychiatric conditions — Whether plaintiff must prove on the balance of probabilities that any pain and suffering consequences have an organic or physical basis, excluding pain and suffering resulting from injured person’s psychological response to physical injury — Whether finding of serious injury can be made on basis of injury suffered and likelihood that initial consequences of the injury will continue — Mutual Cleaning and Maintenance Pty Ltd v Stamboulakis [2007] VSCA 46.

Appealed from Vic SC (CA): [2008] VSCA 167.

5: SPECIAL LEAVE DISMISSED

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

Canberra: 17 June 2009

(Publication of reasons)

Civil

Irwin & Anor v Meander Valley Council

H2/2009: [2009] HCASL 134.

Special leave dismissed.
Appealed from Tas SC FC: [2008] TASSC 82.

Kang v Commonwealth of Australia

M12/2009: [2009] HCASL 135.

Special leave dismissed.
Appealed from FCA: [2008] FCA 1863.

SZLSA v Minister for Immigration and Citizenship & Anor

S27/2009: [2009] HCASL 136.

Special leave dismissed.
Appealed from FCA: [2009] FCA 23.

SZLZK v Minister for Immigration and Citizenship & Anor

S28/2009: [2009] HCASL 137.

Special leave dismissed.
Appealed from FCA: [2009] FCA 102.

SZMFH v Minister for Immigration and Citizenship & Anor

S29/2009: [2009] HCASL 138.

Special leave dismissed.
Appealed from FCA: [2009] FCA 105.

SZLYT v Minister for Immigration and Citizenship & Anor

S39/2009: [2009] HCASL 139.

Special leave dismissed.
Appealed from FCA: [2009] FCA 76.

SZLFS & Anor v Minister for Immigration and Citizenship & Anor

S40/2009: [2009] HCASL 140.

Special leave dismissed.
Appealed from FCA: [2009] FCA 75.

SZMGJ v Minister for Immigration and Citizenship & Anor

S45/2009: [2009] HCASL 141.

Special leave dismissed.
Appealed from FCA: [2009] FCA 91.

SZMRR v Minister for Immigration and Citizenship & Anor

S56/2009: [2009] HCASL 142.

Special leave dismissed.
Appealed from FCA: [2009] FCA 159.

SZMOG v Minister for Immigration and Citizenship & Anor

S63/2009: [2009] HCASL 143.

Special leave dismissed.
Appealed from FCA: [2009] FCA 156.

SZMNV & Anor v Minister for Immigration and Citizenship & Anor

S65/2009: [2009] HCASL 144.

Special leave dismissed.
Appealed from FCA: [2009] FCA 172.

In the matter of an application by Gregory Eric White for leave to appeal

M19/2009: [2009] HCASL 145.

Special leave dismissed.
Appealed from HCA: [2009] HCATrans 11.

Smith v Hobart City Council

H1/2009: [2009] HCASL 146.

Special leave dismissed.
Application for removal.

Preston v Harbour Pacific Underwriting Management Pty Ltd & Ors

S491/2008: [2009] HCASL 147.

Special leave dismissed with costs.
Appealed from NSW SC (CA): [2008] NSWCA 216.

MZXQH & Ors v Minister for Immigration and Citizenship & Anor

M76/2008: [2009] HCASL 148.

Special leave dismissed with costs.
Appealed from FCA: [2008] FCA 1402.

Weinstein v Medical Practitioners Board of Victoria

M81/2008: [2009] HCASL 149.

Special leave dismissed with costs.
Appealed from Vic SC (CA): [2008] VSCA 193.

Daniels v Daniels

P1/2009: [2009] HCASL 150.

Special leave dismissed with costs.
Appealed from WA SC (CA): [2008] WASCA 230.

Criminal

Lumley v The Queen

B44/2008: [2009] HCASL 133.

Special leave dismissed.
Appealed from Qld SC (CA): [2008] QCA 155.

Sydney: 19 June 2009

Civil

Tervonen v Minister for Home Affairs

S91/2008.

Special leave dismissed with costs.
Appealed from FCA FC: [2008] FCAFC 24.

Tervonen v The Republic of Finland & Anor

S92/2008.

Special leave dismissed with costs.
Appealed from FCA FC: [2008] FCAFC 25.

Arnold v Hancock & Anor

S490/2008.

Special leave dismissed with costs.
Appealed from NSW SC (CA): [2008] NSWCA 254.

Ellis & Ors v Foley

S522/2008.

Special leave dismissed with costs.
Appealed from NSW SC (CA): [2008] NSWCA 288.

Thomas v HP Mercantile Pty Ltd; Thomas & Anor v HP Mercantile Pty Ltd; Thomas & Anor v HP Mercantile Pty Ltd

S560/2008; S565/2008; S566/2008.

Special leave dismissed with costs.
Appealed from NSW SC (CA): [2008] NSWCA 308.

SZIGH v Minister for Immigration and Citizenship & Anor

S10/2009.

Special leave dismissed with costs.
Appealed from FCA: [2008] FCA 1885.

Tervonen v Finland & Anor

S26/2009.

Special leave dismissed with costs.
Appealed from FCA FC: [2009] FCAFC 4.

Criminal

Keir v The Queen

S31/2008.

Special leave dismissed.
Appealed from NSW SC (CCA): [2007] NSWCCA 149.

Brisbane: 25 June 2009

Civil

Elliott v West Australian Newspapers Ltd

P32/2008.

Special leave dismissed with costs.
Appealed from WA SC (CA): [2008] WASCA 172.

Criminal

East v The Queen

B42/2008.

Special leave dismissed.
Appealed from Qld SC (CA): [2008] QCA 325.

Kemp v The Queen

B47/2008.

Special leave dismissed.
Appealed from Qld SC (CA): [2008] QCA 355.

Hayes v The Queen

B7/2009.

Special leave dismissed.
Appealed from Qld SC (CA): [2008] QCA 371.

Pretorius v The Queen

B11/2009.

Special leave dismissed.
Appealed from Qld SC (CA): [2009] QCA 58.