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High Court of Australia Bulletin [2009] HCAB 7 (14 September 2009)

Last Updated: 16 September 2009

HIGH COURT BULLETIN

Produced by the High Court of Australia Library

[2009] HCAB 7 (14 September 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 August–September 2009 sittings.

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

High Court of Australia: [2009] HCA 32.

Judgment delivered: 26 August 2009.

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

Catchwords:

Taxation — Recovery of tax debts — Company deposited moneys with third party — Passage of creditors' resolution for winding up of company — Commissioner of Taxation (“Commissioner”) issued notice under s 260-5 in Sched 1 to the Taxation Administration Act 1953 (Cth) (“Administration Act”) requiring moneys held by third party be paid to Commissioner — Whether s 260-5 notice may be issued after commencement of winding up — Whether steps taken by Commissioner void and unenforceable as an “attachment” within meaning of s 500(1) of Corporations Act 2001 (Cth) — Relationship between s 260-5 and s 500(1).

Companies — Winding up — Creditors' voluntary winding up — Whether s 260-5 in Sched 1 to Administration Act applicable — Relationship between s 260-5 and s 260-45.

Words and phrases — “attachment”, “property”.

Appealed from FCA FC: [2008] FCAFC 184.

Clarke v Commissioner of Taxation

High Court of Australia: [2009] HCA 33.

Judgment delivered: 2 September 2009.

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

Catchwords:

Constitutional law (Cth) — Powers of Commonwealth Parliament — Taxation — Superannuation contributions surcharge — State parliamentary pensions — Implied limitation on Commonwealth legislative power – Melbourne Corporation doctrine — Where appellant former member of South Australian Parliament — Where appellant eligible for parliamentary pension — Whether Acts assessing and imposing superannuation contributions surcharge invalid in application to appellant — Relevance of fact that State Acts passed in response to surcharge.

Words and phrases — “curtailment of capacity of the States to function as governments”, “discrimination”, “special burden”.

Appealed from FCA FC: [2008] FCAFC 106; (2008) 170 FCR 473; (2008) 69 ATR 724.

Lane v Morrison

High Court of Australia: [2009] HCA 29.

Judgment delivered: 26 August 2009.

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

Catchwords:

Constitutional law (Cth) — Judicial power of the Commonwealth — Military courts — Member of Australian Defence Force charged under Defence Force Discipline Act 1982 (Cth) (“Act”) — Where hearing before Australian Military Court (“AMC”), established by s 114 of Act — Where AMC a court of record and decision subject to appeal to tribunal — Relevance of fact that AMC has criminal jurisdiction — Whether AMC exercising judicial power of the Commonwealth — Whether AMC created in accordance with Ch III of Constitution.

Constitutional law (Cth) — Defence power — Military courts — AMC independent from command structure — Whether creation of AMC beyond the scope of s 51(vi) of Constitution — Whether creation of AMC inconsistent with power vested in Governor-General by s 68 of Constitution.

Words and phrases — “command structure”, “court”, “court of record”, “courts-martial”, “judicial power”, “judicial power of the Commonwealth”, “service tribunal”.

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

High Court of Australia: [2009] HCA 35.

Judgment delivered: 2 September 2009.

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

Catchwords:

Torts — Negligence — Duty of care — Independent subcontractor suffered injury resulting from negligent conduct of co-subcontractor — Whether induction training in industry approved code of practice would have avoided cause of injury — Whether principal contractor for construction work owes duty to provide, or be satisfied of the prior provision of, training in safe work methods to independent contractors working on construction site — Whether contractor retained to carry out concreting owes duty to provide training in safe work methods to independent subcontractor engaged by it to carry out concrete pumping — Whether obligations imposed on principal contractor and contractor under the Occupational Health and Safety Act 2000 (NSW) and the Occupational Health and Safety Regulation 2001 (NSW) give rise to a common law duty requiring for its discharge the provision of occupational health and safety induction training in respect of safe work methods of carrying out specialised tasks.

Appealed from NSW CA: [2008] NSWCA 23; (2008) Aust Torts Reports ¶81-937; (2008) 170 IR 433; [2008] ALMD 5154, [2008] ALMD 5153.

Minister for Immigration and Citizenship v SZKTI

High Court of Australia: [2009] HCA 30.

Judgment delivered: 26 August 2009.

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

Catchwords:

Immigration — Refugees — Review by Refugee Review Tribunal (“RRT”) — Person telephoned, for purpose of obtaining information from that person, without procedures set out in ss 424(3) and 424B of Migration Act 1958 (Cth) (“Act”) being followed — Whether RRT breached ss 424(3) and 424B of Act.

Immigration — Refugees — After hearing, RRT obtained further information — Whether information raised new and additional issues — Whether RRT was obliged by s 425(1) of Act to invite first respondent to further hearing.

Words and phrases — “get any information”, “invite”, “issues arising in relation to the decision under review”.

Appealed from FCA FC: [2008] FCAFC 83.

Minister for Immigration and Citizenship v SZLFX

High Court of Australia: [2009] HCA 31.

Judgment delivered: 26 August 2009.

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

Catchwords:

Immigration — Refugees — Review by Refugee Review Tribunal (“RRT”) — Person telephoned, for purpose of obtaining information from that person, without procedures set out in ss 424(3) and 424B of Migration Act 1958 (Cth) (“Act”) being followed — Whether RRT breached ss 424(3) and 424B of Act.

Immigration — Refugees — RRT did not give notice to first respondent of file note of conversation between RRT employee and third person — Whether RRT was required by s 424A of Act to give notice — Whether file note was “the reason, or a part of the reason, for affirming the decision that is under review”.

Words and phrases – “get any information”, “invite”, “reason, or a part of the reason”.

Appealed from FCA FC: [2008] FCAFC 125.

Visscher v The Honourable President Justice Giudice

High Court of Australia: [2009] HCA 34.

Judgment delivered: 2 September 2009.

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

Catchwords:

Industrial law — Contract of employment — Where employee promoted to Chief Officer but promotion later sought to be rescinded by employer — Where employee continued to perform duties and receive salary equivalent to that of Chief Officer — Whether rescission of promotion effective to terminate contract of employment.

Contract — Contract of employment — Repudiation — Where employer repudiated contract of employment — Whether acceptance of repudiation by employee necessary to terminate contract of employment — Relevance of distinction between contract of employment and employment relationship — Whether employee estopped from denying that repudiation effective to terminate contract of employment.

Industrial law — Certified Agreement — Where annexure to Certified Agreement listed gradings of employees — Whether grading listed in Certified Agreement conclusive as to employee's position.

Words and phrases — “at the initiative of the employer”, “contract of employment”, “employment relationship”, “repudiation”, “termination”.

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

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 6 [2009] HCAB 6.

Administrative Law

****See Constitutional Law: Arnold & Ors v Minister Administering the Water Management Act 2000 & Ors.

Minister for Immigration and Citizenship v SZIAI & Anor

S37/2009: [2009] HCATrans 165.

Date heard: 28 July 2009 — Judgment reserved.

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

Catchwords:

Administrative law — Jurisdictional error — Wednesbury unreasonableness — Duty to inquire — Extent of — Certificates submitted by person applying for a protection visa alleged by a third party 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

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.

Constitutional Law

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

S110/2009: [2009] HCATrans 203; [2009] HCATrans 204.

Date heard: 27-28 August 2009 — Judgment reserved.

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

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.

Administrative law — Irrelevant considerations — Whether Minister acted on belief that intergovernmental agreement with Commonwealth was legally binding — Whether that belief mistaken.

Words and phrases — Meaning of the phrase “waters of rivers for conservation or irrigation” — Constitution, s 100.

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

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

S24/2009: [2009] HCATrans 199;  [2009] HCATrans 200 ; [2009] HCATrans 201; [2009] HCATrans 202.

Date heard: 24–27 August 2009 — Judgment reserved.

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

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 — 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.

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.

Equity

****Bofinger & Anor v Kingsway Group Ltd & Ors

S161/2009: [2009] HCATrans 206; [2009] HCATrans 207.

Date heard: 2-3 September 2009 — Judgment reserved.

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

Catchwords:

Equity — Subrogation — Unconscionability — Appellants were guarantors of three separate loans made to a developer — Guarantees were secured by mortgages over the Appellants’ personal properties to the three mortgagees — Appellants 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.

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: 20 May 2009 — 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.

Mortgages

****See Equity: Bofinger & Anor v Kingsway Group 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

S167/2009; S168/2009: [2009] HCATrans 186.

Date heard: 5 August 2009 — Judgment reserved.

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

Catchwords:

Practice and procedure — Costs — Litigation funding by non- party– Abuse of process —Insolvent plaintiff commenced proceedings — Non-party (with a commercial interest in the plaintiff succeeding) funded litigation at first instance and on appeal — Proceedings failed – Costs awarded against insolvent plaintiff – Security provided by non-party proved to be significantly insufficient compared with costs incurred — Shortfall could not be met by insolvent plaintiff — Costs order sought against non-party – Whether non-party committed an abuse of process so as to be liable 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.

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

****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

H7/2009; H8/2009: [2009] HCATrans 205.

Date heard: 1 September 2009 — Judgment reserved.

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

Catchwords:

Torts — Negligence — Duty of care — Mr Scott was served a number of alcoholic drinks in a hotel owned by the First Appellant — Second Appellant, the licensee and publican, assisted Mr Scott in putting his motorcycle in hotel’s storeroom, on the understanding that Mr Scott's wife would pick him up later that night — Second Appellant told Mr Scott he had had enough to drink and offered to telephone Mr Scott’s wife so that she could come and collect Mr Scott — Mr Scott refused offer and asked for motorcycle back — Second Appellant opened storeroom and Mr Scott retrieved motorcycle — Mr Scott ran off road and died on way home — Whether Appellants owed Mr Scott duty of care to protect Mr Scott from risk of injury arising from riding motorcycle whilst intoxicated — Whether, if there was a duty, the duty was discharged by Second Appellant's offer to telephone Mr Scott’s wife — Whether, if duty existed and was breached, there was a causal link between the breach and Mr Scott’s death.

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

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 6 [2009] HCAB 6.

Constitutional Law

John Holland Pty Ltd v Victorian Workcover Authority; John Holland Pty Ltd v Inspector Nathan Hamilton & Anor; John Holland Pty Ltd v Inspector Nathan Hamilton & Anor

M16/2009; S121/2009; S122/2009.

Catchwords:

Constitutional law — Inconsistency of Commonwealth and State laws — Workers’ compensation — Applicant holds a licence pursuant to Part VIII of the Safety Rehabilitation and Compensation Act 1988 (Cth) and is subject to the Occupational Health and Safety Act 1991 (Cth) — Applicant prosecuted under the Occupational Health and Safety Act 2000 (NSW) (the “NSW Act”) — Applicant prosecuted under the Occupational Health and Safety Act 2004 (Vic) (the “Vic Act”) — Whether the NSW Act and Vic Act are invalid to the extent they purport to apply to Applicants — Constitution, s 109.

Matter M16/2009 was brought in the original jurisdiction of the High Court.
Matters S121/2009 and S122/2009 are applications for removal of part of a cause pending in the Industrial Court of New South Wales.

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 6 [2009] HCAB 6.

Administrative Law

****Habib v Minister for Foreign Affairs and Trade; Habib v Director-General of Security

S111/2009; S112/2009: [2009] HCATrans 215.

Date heard: 4 September 2009 — Special leave granted.

Catchwords:

Administrative law — Procedural fairness — Natural justice — Australian citizen detained in Pakistan as a suspected terrorist and transferred to Guantanamo Bay was subsequently released without charge — Minister for Foreign Affairs and Trade refused to issue a fresh Australian passport and Administrative Appeals Tribunal (“AAT”) affirmed the decision — Refusal to issue passport made on an adverse security assessment — Whether in exercising the jurisdiction conferred by s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) there is an entitlement to refuse relief in circumstances where it is found that the decisions of the AAT were affected by a breach of procedural fairness concerning a matter of fact on the basis of its assessment that, had the breach not occurred, the same outcome would have resulted.

Appealed from FCA FC: [2009] FCAFC 48.

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).

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.

Damages

****Henley Arch Pty Ltd v Kovacic

M37/2009: [2009] HCATrans 227.

Date heard: 4 September 2009 — Special leave granted.

Catchwords:

Damages — Accident compensation — Contract of service — Respondent bricklayer working with a team of bricklayers for Applicant alleged he was injured whilst lifting a heavy steel lintel and there was no written contract between parties — To recover damages for the injury Respondent had to establish he was a “worker” under s 8 of the Accident Compensation Act 1985 (Vic) (“the Act”) — Whether the Respondent was deemed under s 8 of the Act to be working under a contract of service — Whether there has to be a provision in the contract to perform the work alleged to have caused the injury.

Appealed from Vic SC (CA): [2009] VSCA 56.

Immigration

Minister for immigration & Citizenship v SZMDS & Anor

S79/2009: [2009] HCATrans 183.

Date heard: 31 July 2009 — Special leave granted.

Catchwords:

Immigration — Refugees — Jurisdictional error — First respondent is a citizen of Pakistan and applied for a protection visa on the basis that he feared persecution in Pakistan by reason of being homosexual — Whether faulty or illogical findings of fact amount to an error in law — Whether there is any jurisdictional error because of some standard of “articulation” not being reached.

Appealed from FCA: [2009] FCA 210.

Insurance

Hamersley Iron Pty Ltd v Speno Rail Maintenance Australia Pty Ltd & Ors; Metals & Minerals Insurance Pte Ltd v Speno Rail Maintenance Australia Pty Ltd & Ors; Zurich Australian Insurance Ltd v Metals & Minerals Insurance Pte Ltd & Ors

P9/2009; P10/2009; P11/2009: [2009] HCATrans 167.

Date heard: 31 July 2009 — Special leave granted.

Catchwords:

Insurance law — Double insurance — Subrogation — Two insurers under co-ordinate liability to make the same loss — First insurer indemnifies the insured— First insurer contractually renounces its right to equitable subrogation — Whether the second insurer is entitled to be subrogated to the insured’s rights against a third party where second insurer has paid a contribution to the first insurer — Operation of s 45(1) of the Insurance Contracts Act 1984 (Cth) which makes void a provision of a contract of general insurance that limits or excludes liability of insurer by reason that insured has entered into some other contact of insurance.

Appealed from WA SC CA: [2009] WASCA 31.

Intellectual Property

E & J Gallo Winery v Lion Nathan Australia Pty Ltd

S89/2009: [2009] HCATrans 180.

Date heard: 31 July 2009 — Special leave granted.

Catchwords:

Intellectual Property — Trade marks — Register of trade marks — Non use claim — Applicant registered a trade mark in respect of wines — Registered owner applied for trade mark overseas and may not have known goods were sold in Australia — Sold the goods to a foreign distributor for resale in Australia — Whether that use of the registered trade mark constitutes use by the registered owner — Whether only use of the registered trade mark in Australia is use by the wholesaler or retailer — Whether the term “use” in s 92(4) of the Trade Marks Act 1995 (Cth) refers to more than physical use of the trade mark.

Appealed from FCA FC: [2009] FCAFC 27.

Health World Ltd v Shin-Sun Australia Pty Ltd; Health World Ltd v Shin-Sun Australia Pty Ltd

S58/2009; S59/2009: [2009] HCATrans 181.

Date heard: 31 July 2009 — Special leave granted.

Catchwords:

Intellectual Property — Trade marks — Standing requirement — Registration of vitamins and dietary supplements — Whether standing in s 92 of the Trade Marks Act 1995 (Cth) (“the Act”) is met where trademark on register is misleading and deceptive — Whether standing requirement in s 92 of the Act the subject of cancellation must be deceptively similar to trade mark owned by Applicant under s 92 — Whether to have regard to prior reputation under s 88(1) of the Act which requires “a prescribed court may, on the application of an aggrieved person or the Registrar, order that the Register be rectified” — Meaning of “person aggrieved” under s 88(1) — Re Powell’s Trade Mark [1894] AC 8.

Appealed from FCA FC: [2009] FCAFC 14.

Procedure

****See Torts: Zheng v Cai

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.

Torts

Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem

S69/2009; S70/2009: [2009] HCATrans 179.

Date heard: 31 July 2009 — Special leave granted.

Catchwords:

Torts — Negligence — Duty of care — Duty of care owed by occupier of licensed premises — Liability of occupiers of premises for the consequences of criminal behaviour — Distinction between matters relevant to breach of duty and duty of care regarding the duty of care of an occupier — Whether occupier owed a duty of care when it was foreseeable that there would be a possibility of criminal behaviour — Consideration of rule in Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254.

Appealed from NSW SC CA: [2009] NSWCA 29.

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.

****Tabet v Gett

S98/2009: [2009] HCATrans 209.

Date heard: 4 September 2009 — Special leave granted.

Catchwords:

Torts — Negligence — Medical negligence — Loss of chance — A six year old girl initially admitted to hospital complaining of headaches and vomiting — Girl re-admitted two weeks later and diagnosed with meningitis — Immediate surgery and subsequent chemotherapy was successful but left girl severely disabled — Whether the causal effects of clinical negligence should be assessed on balance of probabilities alone and not on the basis of loss of chance of a better outcome — Whether in holding that a loss of chance is available then in assessing such a loss of chance, one must exclude those matters which gave the chance or an increased chance of a better outcome but were not proven on the balance of probabilities as the likely treatment.

Appealed from NSW SC (CA): [2009] NSWCA 76.

****Zheng v Cai

S67/2009: [2009] HCATrans 218.

Date heard: 4 September 2009 — Referred to Full Court.

Catchwords:

Torts — Assessment of damages — Benevolent payments — Motor vehicle accident – Respondent was driver and Applicant passenger in a motor vehicle accident — Applicant awarded damages under Motor Accidents Compensation Act 1999 (NSW) — Applicant received assistance with housework, financial assistance for accommodation and weekly payments to support living expenses — Whether benevolent payments made by a charity should be taken into account when assessing damages for personal injuries caused by a third party.

Procedure — Argument on appeal — Whether new argument can be raised on appeal which was outside the focus of the evidence at trial and therefore required the Court of Appeal to make initial findings of fact.

Appealed from NSW SC (CA): [2009] NSWCA 13.

5: CASES NOT PROCEEDING OR VACATED

The following cases in the High Court of Australia are not proceeding or have been vacated since High Court Bulletin 6 [2009] HCAB 6.

There are no cases in the High Court of Australia that are not proceeding or have been vacated since High Court Bulletin 6 [2009] HCAB 6.

6: SPECIAL LEAVE DISMISSED

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

Sydney: 4 September 2009

Civil

SZLJK & Anor v Minister for Immigration and Citizenship & Anor

S368/2008.

Special leave dismissed with costs.
Appealed from FCA: [2008] FCA 1204.

Daya v Ingot Capital Investments Pty Ltd & Ors

S2/2009.

Special leave dismissed with costs.
Appealed from NSW SC (CA): [2008] NSWCA 206.

Ingot Capital Investments Pty Ltd & Ors v Beach & Ors

S4/2009.

Special leave dismissed with costs.
Appealed from NSW SC (CA): [2008] NSWCA 206.

Karimi v Allied Security Group Pty Ltd & Anor

S32/2009.

Special leave dismissed with costs.
Appealed from NSW SC (CA): [2009] NSWCA 2.

Karimi v Rooty Hill RSL Club Ltd & Ors

S33/2009.

Special leave dismissed with costs.
Appealed from NSW SC (CA): [2009] NSWCA 2.

Hillier Hewitt Elsley Pty Ltd & Ors v Laidlaw

S81/2009.

Special leave dismissed with costs.
Appealed from NSW SC (CA): [2009] NSWCA 44.

Malouf v Commissioner of Taxation

S93/2009.

Special leave dismissed with costs.
Appealed from FCA FC: [2009] FCAFC 44.

Malouf v Commissioner of Taxation

S94/2009.

Special leave dismissed with costs.
Appealed from FCA FC: [2009] FCAFC 44.

SZMCD v Minister for Immigration and Citizenship & Anor

S100/2009.

Special leave dismissed with costs.
Appealed from FCA FC: [2009] FCAFC 46.

Gough and Gilmour Holdings Pty Ltd & Ors v Caterpillar Australia Ltd & Ors

S103/2009.

Special leave dismissed with costs.
Appealed from NSW SC (CA): [2009] NSWCA 83.

Criminal

Rosenfeld v The Queen

S88/2008.

Special leave dismissed.
Appealed from NSW SC (CCA): [2009] NSWCCA 74.

Melbourne: 4 September 2009

Civil

MZXBQ v Minister for Immigration and Citizenship & Anor

M28/2008.

Special leave dismissed with costs.
Appealed from FCA: [2008] FCA 319.

Dunn & Anor v Australian Crime Commission & Ors

M21/2009.

Discontinued.
Appealed from FCA FC: [2009] FCAFC 16.

W.P.S. Enterprises Pty Ltd v Radford

M23/2009.

Special leave dismissed with costs.
Appealed from SC Vic (CA): [2009] VSCA 22.

ConnectEast Management Ltd v Commissioner of Taxation

M26/2009.

Special leave dismissed with costs.
Appealed from FCA FC: [2009] FCAFC 22.

Lawrence v Federal Commissioner of Taxation

M33/2009.

Special leave dismissed with costs.
Appealed from FCA FC: [2009] FCAFC 29.

Hookey v Paterno

M35/2009.

Special leave dismissed with costs.
Appealed from SC Vic (CA): [2009] VSCA 48.

Bulzomi v Commissioner of State Revenue

M53/2009.

Special leave dismissed with costs.
Appealed from SC Vic (CA): [2009] VSCA 99.

Criminal

McCulloch v The Queen

M30/2009.

Special leave dismissed.
Appealed from Vic SC (CA): [2009] VSCA 34.

The Queen v Franklin

M43/2009.

Special leave dismissed with costs.
Appealed from Vic SC (CA): [2009] VSCA 77.

Canberra: 1 September 2009

(Publication of reasons)

Civil

Murdaca v Magistrates’ Court of Victoria

M39/2009: [2009] HCASL 171.

Special leave dismissed with costs.
Appealed from Vic SC (CA): (no media neutral citation).