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High Court of Australia Bulletin [2009] HCAB 8 (12 October 2009)

Last Updated: 13 October 2009

HIGH COURT BULLETIN

Produced by the High Court of Australia Library

[2009] HCAB 8 (12 October 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 September–October 2009 sittings.

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

High Court of Australia: [2009] HCA 41.

Judgment delivered: 30 September 2009.

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

Catchwords:

Taxes and duties — Stamp duty — Transactions resulted in acquisition of all shares in corporation which held Crown leases containing options to renew — Section 56N(2)(b) of Taxation (Administration) Act (NT) (“Act”) requires valuation for assessment of duty of “all land” to which corporation is entitled at time of acquisition — Section 4(1) of Act provides “land” includes “a lease of land” but that “‘lease’ ... does not include ... an option to renew a lease” — Whether “land” in s 56N(2)(b) includes option to renew lease.

Leases — Definition — Whether lease includes option to renew.

Statutes — Interpretation — Definitions — Whether definition contained in general definition provision displaced by contrary intention.

Words and phrases — “land”, “lease”.

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

Campbell & Anor v Backoffice Investments Pty Ltd & Anor [No 2]

High Court of Australia: [2009] HCA 36.

Judgment delivered: 23 September 2009.

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

Catchwords:

Procedure — Costs.

Appealed from NSW SC (CA): [2008] NSWCA 95.

Fellowes v Military Rehabilitation and Compensation Commission

High Court of Australia: [2009] HCA 38.

Judgment delivered: 23 September 2009.

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

Catchwords:

Workers' compensation – Injury resulting in permanent impairment — Under s 24 of Safety, Rehabilitation and Compensation Act 1988 (Cth), where “an injury to an employee results in a permanent impairment”, respondent liable to pay compensation “in respect of the injury” — Amount of compensation fixed by degree of permanent impairment resulting from injury as assessed under Guide to the Assessment of the Degree of Permanent Impairment (“Guide”) — Guide provides that “[w]here two or more injuries give rise to the same impairment a single rating only should be given” — Appellant previously compensated for injury to left knee resulting in permanent impairment — Whether appellant entitled to compensation for separate injury to right knee resulting in permanent impairment to same degree — Whether “degree of permanent impairment” refers to impairment of whole person or impairment to particular part of person's body.

Words and phrases — “degree of permanent impairment”, “impairment”, “injury”, “permanent impairment”, “resulting from”.

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

Minister for Immigration and Citizenship v SZIAI

High Court of Australia: [2009] HCA 39.

Judgment delivered: 23 September 2009.

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

Catchwords:

Immigration — Refugees — Review by Refugee Review Tribunal (“RRT”) — Whether failure to make certain inquiries was unreasonable or constituted failure to conduct review within meaning of Migration Act 1958 (Cth), s 414 — Whether failure to inquire constituted jurisdictional error.

Immigration — Refugees — Review by RRT — Where RRT received allegation that documents provided by visa applicant were “fake & forged”, invited applicant to comment in writing, but failed to invite him to further hearing — Whether such failure amounted to denial of procedural fairness, breach of Migration Act 1958, s 425, or failure to conduct review within meaning of Migration Act 1958, s 414 — Whether allegation of forgery raised new “issue” within meaning of Migration Act 1958 s 425.

Words and phrases — “failure to inquire”, “inquisitorial”, “issues”, “procedural fairness”, “review”.

Appealed from FCA: [2008] FCA 1372; (2008) 104 ALD 22.

Minister for Immigration and Citizenship v SZIZO

High Court of Australia: [2009] HCA 37.

Judgment delivered: 23 September 2009.

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

Catchwords:

Immigration — Refugees — Review of visa application before Refugee Review Tribunal (“RRT”) — First respondent appointed third respondent as his “authorised recipient” to receive documents in connection with his review — Section 441G(1) of Migration Act 1958 (Cth) (“Act”) required RRT to give review documents to authorised recipient instead of first respondent — RRT gave a notice inviting the respondents to attend a hearing to first respondent but not to authorised recipient — All respondents attended the hearing and no unfairness or prejudice arose from non-compliance with s 441G(1) of Act — Whether non-compliance with procedural steps in s 441G of Act compels conclusion that decision is invalid — Whether circumstances amount to denial of natural justice.

Words and phrases — “authorised recipient”, “natural justice”.

Appealed from FCA FC: [2008] FCAFC 122; (2008) 172 FCR 152; (2008) 102 ALD 541.

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

High Court of Australia: [2009] HCA 40.

Judgment delivered: 30 September 2009.

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

Catchwords:

Immigration — Refugees — Review by Refugee Review Tribunal (“RRT”) — Where RRT not satisfied that visa applicants engaged in Falun Gong-related activities in Australia otherwise than for the purpose of strengthening claims to be refugees — Where RRT drew adverse inferences about visa applicants' credibility from visa applicants' participation in Falun Gong-related activities in Australia — Whether Migration Act 1958 (Cth), s 91R(3) permitted RRT to use evidence of conduct in Australia to make findings adverse to visa applicants' claims to be refugees.

Words and phrases — “any conduct”, “disregard”, “in determining whether”, “purpose”, “strengthening”.

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

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 7 [2009] HCAB 7.

Administrative Law

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

****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).

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.

****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: [2009] HCATrans 236.

Date heard: 24 September 2009 — Judgment reserved.

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

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 Appellants — 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.

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

****Taiapa v The Queen

B6/2009: [2009] HCATrans 235.

Date heard: 23 September 2009 — Judgment reserved.

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

Catchwords:

Criminal law — Defences — Duress — Police intercepted a car carrying Appellant that contained a dangerous drug — Appellant charged with, inter alia, trafficking in and possession of a dangerous drug — Appellant claimed he was transporting the drug for two persons to whom he owed money — Lenders had threatened Appellant and his family on several occasions with a gun — Appellant 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 Appellant “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 & 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.

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.

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)

S106/2009; S347/2008; S348/2008: [2009] HCATrans 237; [2009] HCATrans 238; [2009] HCATrans 239.

Date heard: 29-30 September, 1 October 2009 — Judgment reserved.

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

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 had been 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 — Appellants 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 — 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

S191/2009; S192/2009: [2009] HCATrans 233; [2009] HCATrans 234.

Date heard: 22-23 September 2009 — Judgment reserved.

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

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.

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.

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 7 [2009] HCAB 7.

There are no cases in the High Court of Australia that are ready for hearing in the original jurisdiction since High Court Bulletin 7 [2009] HCAB 7.

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 7 [2009] HCAB 7.

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.

Criminal Law

****Hajamaideen Ansari v The Queen; Abdul Ansari v The Queen

S479/2007; S481/2007: [2009] HCATrans 258.

Date heard: 2 October 2009 — Special leave granted.

Catchwords:

Criminal law — Conspiracy — Fault element — Recklessness — Applicants charged with conspiring to deal with money where there was a risk that money would become an instrument of crime and were reckless as to that risk: Criminal Code (Cth) ss 11.5, 400.3(2) (“the Code”) — Whether it is not bad law for the Crown under the Code to charge a conspiracy to commit an offence, the fault element of which is recklessness — Whether the physical and fault elements of the offence of conspiracy have been properly characterised.

Appealed from NSW SC (CCA): [2007] NSWCCA 204.

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.

Damages

****European Bank Ltd v Robb Evans of Robb Evans & Associates

S91/2009: [2009] HCATrans 251.

Date heard: 2 October 2009 — Special leave granted.

Catchwords:

Damages — Undertakings as to damages — Remoteness of loss —
Compensation pursuant to undertaking to court for loss of use of money — Tracing moneys — Respondent gave undertaking as to damages which was part of an arrangement ancillary to orders that led to the Applicant being owed money — Pursuant to an order, money was held by the Prothonotary and deposited with an Australian bank in a US dollar account earning interest — Applicant claimed that had it held money, it would have invested it more advantageously than the Prothonotary — Whether the rule in Hadley v Baxendale (1854) 9 Ex 341; 156 ER 145 as to remoteness is applied in the assessment of compensation — Whether the Court retains a discretion to treat as too remote compensation which otherwise satisfies the applicable rule — Whether losses of income which would otherwise be realised by a bank on currency fluctuations are too remote to be recoverable as compensation pursuant to an undertaking as to damages.

Appealed from NSW SC (CA): [2009] NSWCA 67.

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.

Family Law

****MRR v GR

B20/2009: [2009] HCATrans 248.

Date heard: 2 October 2009 — Special leave granted.

Catchwords:

Family law — Children — Relocation, Living and visiting arrangements of children — Both parents of child sought orders that they have equal shared parental responsibility — Applicant mother sought orders that this be achieved inter alia by her and child living in Sydney, but Respondent father not prepared to move due to employment — Whether there was a failure to have regard to, and give specific reasons on, the matters referred to in s 65DAA(5) of the Family Law Act 1975 (Cth) (“the Act”) concerning whether it is reasonably practicable for a child to spend equal time with each parent — Whether failure to have regard to s 65DAA(5) of the Act is ameliorated by consideration of matters specified in s 60CC of the Act: “How a court determines what is in a child’s best interests” — Whether, when considering relocation, the focus should be on whether one parent is permitted to remove the child instead of properly considering and assessing the proposals of both parents.

Appealed from FamCA FC: [2009] FamCAFC.

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

****Wallaby Grip Ltd v QBE Insurance (Australia) Ltd & Anor; Stewart v QBE Insurance (Australia) Ltd & Anor

S95/2009; S96/2009: [2009] HCATrans 249.

Date heard: 2 October 2009 — Special leave granted.

Catchwords:

Insurance law — Employer’s indemnity insurance — Workers’ compensation insurance — Scope of insurer’s liability — Employee, who died from mesothelioma, claimed during course of employment he was exposed negligently to asbestos dust and fibre which caused his mesothelioma — Proceedings continued by employee’s wife, and legal personal representative — Whether insurer is liable for more than the minimum limit of an employer’s indemnity policy under the Workers Compensation Act 1926 (NSW) — Whether onus is on insurer to prove cover is limited — Whether the issue of a monetary limitation on the policy of workers compensation insurance is an issue concerning the proof of an essential term of the policy or, rather an issue concerning the proof of the existence of the limitation of liability under the policy.

Appealed from NSW SC (CA): [2009] NSWCA 66.

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.

Practice and Procedure

****Hogan v Australian Crime Commission & Ors

S170/2009: [2009] HCATrans 252.

Date heard: 2 October 2009 — Special leave granted.

Catchwords:

Practice and procedure — Confidentiality orders — Confidentiality of documents — Principles of open justice — Scope of confidentiality orders under s 50 of the Federal Court of Australia Act 1976 (Cth) which provides that the Court may make such an order forbidding or restricting publication of particular evidence as appears to the Court necessary in order to prevent the administration of justice — Australian Crime Commission (“the Commission”) issued a notice (“the Notice”) pursuant to s 29 of the Australian Crime Commission Act 2002 (Cth) (“the Commission Act”) to the Applicant’s accountants requiring them to produce documents pertaining to individuals and entities including the Applicant — Notice contained a notation that prohibited the accountants from disclosing the existence of the Notice to the Applicant: Commission Act, s 29A — Notation was subsequently varied to allow accountants to disclose the existence of the Notice to the Applicant — Whether, in light of the events, it would convert the process and procedure of the Court into an instrument of injustice and bring the administration of justice into disrepute if the confidentiality of the documents were not preserved — Whether the subject documents are inherently confidential, such that there is a competing public interest in preserving their confidentiality which must be weighed against the principle of open justice.

Appealed from FCA FC: [2009] FCAFC 71.

See also 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

****Muslimin v The Queen

D9/2009: [2009] HCATrans 240.

Date heard: 2 October 2009 — Special leave granted.

Catchwords:

Statutes — Interpretation — Construction of statute — Applicant convicted by jury pursuant to s 101 of the of the Fisheries Management Act 1991 (Cth) (“the Act”), which renders it a strict liability offence to be in possession or charge of a foreign vessel in the Australian Fishing Zone (“AFZ”) — Section 12(2) of the Act extends provisions in the Act relating to fishing in the AFZ “to the extent that it is capable of doing so” to fishing for sedimentary organism in or on any part of the Australian continental shelf not within the AFZ — Applicant convicted as he had in his possession a foreign boat equipped with nets, traps and other equipment for fishing above the Australian continental shelf not within the AFZ — Whether ss 12, 101 of the Act should be constructed narrowly so as to be consistent with Australia’s limited sovereignty in the area — Whether a construction of the Act extends the offence of strict liability in s 101 of the Act to the mere possession of equipment for fishing of sedimentary species in waters over the Australian continental shelf — Whether s 101 of the Act extends the offence of strict liability to mere possession of fishing equipment into waters over the Australian continental shelf which are also in the Indonesian Exclusive Economic Zone.

Appealed from NT SC (CCA): [2009] NTCCA 3.

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.

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 7 [2009] HCAB 7.

There are no cases in the High Court of Australia that are not proceeding or have been vacated since High Court Bulletin 7 [2009] HCAB 7.

6: SPECIAL LEAVE DISMISSED

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

Canberra: 2 October 2009

Civil

Reid v Director of Public Prosecutions (Queensland) & Anor

B32/2008.

Special leave dismissed.
Appealed from Qld SC (CA): [2008] QCA 123.

Lawrence v Attorney-General for the State of Queensland

B21/2009.

Special leave dismissed.
Appealed from Qld SC (CA): [2009] QCA 136.

Criminal

Rae v The Queen

B46/2008.

Special leave dismissed.
Appealed from Qld SC (CA): [2006] QCA 207.

O’Brien v The Queen

B14/2009.

Special leave dismissed.
Appealed from Qld SC (CA): [2009] QCA 82.

Willoughby v The Queen

B15/2009.

Special leave dismissed.
Appealed from Qld SC (CA): [2009] QCA 105.

Metius v The Queen

B16/2009.

Special leave dismissed.
Appealed from Qld SC (CA): [2009] QCA 3.

Crump v The Queen

B23/2009.

Special leave dismissed.
Appealed from Qld SC (CA): [2004] QCA 176.

Sydney: 2 October 2009

Civil

Star City Pty Ltd v Commissioner of Taxation

M22/2009.

Special leave dismissed with costs.
Appealed from FCA FC: [2009] FCAFC 19.

Heperu Pty Ltd & Ors v Perpetual Trustees Australia Ltd

S105/2009.

Stood over for directions hearing.
Appealed from NSW SC (CA): [2009] NSWCA 84.

Guo v Minister for Immigration and Citizenship & Anor

S114/2009.

Special leave dismissed with costs.
Appealed from FCA: [2009] FCA 356.

Bailey & Anor v Director-General Department of Land and Water Conservation now known as Director-General Department of Natural Resources New South Wales & Ors

S118/2009.

Special leave dismissed with costs.
Appealed from NSW SC (CA): [2009] NSWCA 100.

Bluescope Steel (AIS) Pty Ltd (formerly known as BHP Steel (AIS) Pty Ltd) v Dr Angus MacKinnon by his Tutor Nanita MacKinnon & Ors

S123/2009.

Special leave dismissed with costs.
Appealed from NSW SC (CA): [2009] NSWCA 94.

Criminal

Dowe v The Queen

S126/2009.

Special leave dismissed.
Appealed from NSW SC (CCA): [2009] NSWCCA 23.

Canberra: 23 September 2009

(Publication of reasons)

Civil

Danielsen v Onesteel Ltd

A3/2009: [2009] HCASL 172.

Special leave dismissed.
Appealed from SA SC (FC): [2009] SASC 55.

Danielsen v Onesteel Manufacturing Pty Ltd & Anor

A4/2009: [2009] HCASL 173.

Special leave dismissed.
Appealed from SA SC (FC): [2009] SASC 56.

MZXTK v Minister for Immigration and Citizenship & Anor

M2/2009: [2009] HCASL 174.

Special leave dismissed.
Appealed from FCA: [2008] FCA 1812.

MZXTN v Minister for Immigration and Citizenship & Anor

M3/2009: [2009] HCASL 175.

Special leave dismissed.
Appealed from FCA: [2008] FCA 1813.

SZLJF v Minister for Immigration and Citizenship & Anor

S46/2009: [2009] HCASL 176.

Special leave dismissed.
Appealed from FCA: [2009] FCA 158.

SZJLN & Anor v Minister for Immigration and Citizenship & Anor

S49/2009: [2009] HCASL 177.

Special leave dismissed.
Appealed from FCA: [2009] FCA 144.

SZMUF v Minister for Immigration and Citizenship & Anor

S62/2009: [2009] HCASL 178.

Special leave dismissed.
Appealed from FCA: [2009] FCA 182.

SZMGU v Minister for Immigration and Citizenship & Anor

S64/2009: [2009] HCASL 179.

Special leave dismissed.
Appealed from FCA: [2009] FCA 148.

SZMPN & Anor v Minister for Immigration and Citizenship & Anor

S71/2009: [2009] HCASL 180.

Special leave dismissed.
Appealed from FCA: [2009] FCA 203.

Satchithanantham v National Australia Bank Ltd

S73/2009: [2009] HCASL 181.

Special leave dismissed.
Appealed from FCA: [2009] FCA 198.

SZMMJ v Minister for Immigration and Citizenship & Anor

S75/2009: [2009] HCASL 182.

Special leave dismissed.
Appealed from FCA: [2009] FCA 193.

SZMRZ v Minister for Immigration and Citizenship & Anor

S76/2009: [2009] HCASL 183.

Special leave dismissed.
Appealed from FCA: [2009] FCA 201.

SZLZX v Minister for Immigration and Citizenship & Anor

S78/2009: [2009] HCASL 184.

Special leave dismissed.
Appealed from FCA: [2009] FCA 221.

SZMIP & Ors v Minister for Immigration and Citizenship & Anor

S80/2009: [2009] HCASL 185.

Special leave dismissed.
Appealed from FCA: [2009] FCA 217.

SZKAK v Minister for Immigration and Citizenship & Anor

M29/2009: [2009] HCASL 186.

Special leave dismissed.
Appealed from FCA: [2009] FCA 277.

Procopets v Giller

M32/2009: [2009] HCASL 187.

Special leave dismissed.
Appealed from Vic SC (CA): [2009] VSCA 72.

Rooke v Minister for Health & Anor

P4/2009: [2009] HCASL 189.

Special leave dismissed with costs.
Appealed from WA SC (CA): [2009] WASCA 27.

Jalagam v Minister for Immigration and Citizenship & Anor

S74/2009: [2009] HCASL 190.

Special leave dismissed with costs.
Appealed from FCA: [2009] FCA 197.

APIR Systems Ltd & Ors v Donald Financial Enterprises Pty Ltd

S97/2009: [2009] HCASL 191.

Special leave dismissed with costs.
Appealed from FCA FC: [2009] FCAFC 45.

Criminal

Pallett & Anor v The Queen

M28/2009: [2009] HCASL 188.

Special leave dismissed.
Application for removal.

Canberra: 1 October 2009

(Publication of reasons)

Civil

Politarhis & Anor v Westpac Banking Corporation

A8/2009: [2009] HCASL 192.

Special leave dismissed.
Appealed from SA SC (FC): [2009] SASC 96.

Singh v Secretary, Department of Employment and Workplace Relations

M49/2009: [2009] HCASL 194.

Special leave dismissed.
Appealed from FCA FC: [2009] FCAFC 59.

Jorgensen v Slater & Gordon Pty Ltd

M36/2009: [2009] HCASL 195.

Special leave dismissed.
Appealed from Vic SC (CA): [2009] VSCA 39.

Louis v Galbally & O’Bryan

M40/2009: [2009] HCASL 196.

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

Palmer v Permanent Custodians Ltd

M45/2009: [2009] HCASL 197.

Special leave dismissed.
Appealed from Vic SC (CA): [2009] VSCA 80.

Gomes v Gomes

M48/2009: [2009] HCASL 198.

Special leave dismissed.
Appealed from FamCA FC: No media neutral citation.

MZYCC & Anor v Minister for Immigration and Citizenship & Anor

M60/2009: [2009] HCASL 199.

Special leave dismissed.
Appealed from FCA: [2009] FCA 524.

SZMQV v Minister for Immigration and Citizenship & Anor

S117/2009: [2009] HCASL 200.

Special leave dismissed.
Appealed from FCA: [2009] FCA 455.

Satchithanantham v National Australia Bank

S124/2009: [2009] HCASL 201.

Special leave dismissed.
Appealed from FCA: [2009] FCA 501.

SZLTR v Minister for Immigration and Citizenship & Anor

S9/2009: [2009] HCASL 202.

Special leave dismissed.
Appealed from FCA: [2008] FCA 1889.

SZMRD v Minister for Immigration and Citizenship & Anor

S125/2009: [2009] HCASL 203.

Special leave dismissed.
Appealed from FCA: [2009] FCA 598.

SZMSM v Minister for Immigration and Citizenship & Anor

S130/2009: [2009] HCASL 204.

Special leave dismissed.
Appealed from FCA: [2009] FCA 587.

SZMQX v Minister for Immigration and Citizenship & Anor

S133/2009: [2009] HCASL 205.

Special leave dismissed.
Appealed from FCA: [2009] FCA 621.

SZMXI v Minister for Immigration and Citizenship & Anor

S136/2009: [2009] HCASL 206.

Special leave dismissed.
Appealed from FCA: [2009] FCA 550.

Bagwe & Ors v Minister for Immigration and Citizenship & Anor

S137/2009: [2009] HCASL 207.

Special leave dismissed.
Appealed from FCA: [2009] FCA 547.

SZMVT v Minister for Immigration and Citizenship & Anor

S138/2009: [2009] HCASL 208.

Special leave dismissed.
Appealed from FCA: [2009] FCA 588.

SZMBL v Minister for Immigration and Citizenship & Anor

S144/2009: [2009] HCASL 209.

Special leave dismissed.
Appealed from FCA: [2009] FCA 622.

SZMTA v Minister for Immigration and Citizenship & Anor

S145/2009: [2009] HCASL 210.

Special leave dismissed.
Appealed from FCA: [2009] FCA 623.

SZKCQ v Minister for Immigration and Citizenship & Anor

S146/2009: [2009] HCASL 211.

Special leave dismissed.
Appealed from FCA: [2009] FCA 578.

SZLWQ v Minister for Immigration and Citizenship & Anor

S460/2008: [2009] HCASL 212.

Special leave dismissed.
Appealed from FCA: [2008] FCA 1406.

K J Siely Pty Ltd v Hanson Construction Materials Pty Ltd

S82/2009: [2009] HCASL 213.

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

Criminal

Ellul v The Queen

M85/2008: [2009] HCASL 193.

Special leave dismissed.
Appealed from Vic SC (CA): [2008] VSCA 106.