High Court of Australia Bulletin [2015] HCAB 7 (22 September 2015)

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, refused special leave to appeal and not proceeding or vacated.

1: CASES HANDED DOWN

The following cases were handed down by the High Court of Australia during the September 2015 sittings.

Constitutional Law

Patents

AstraZeneca AB & Anor v Apotex Pty Ltd; AstraZeneca AB & Anor v Watson Pharma Pty Ltd; AstraZeneca AB & Anor v Ascent Pharma Pty Ltd

Intellectual property – Patents – Patents Act 1990 (Cth) – Inventive step – Obviousness – Patent disclosing method of treatment for hypercholesterolemia – Administration of rosuvastatin and its pharmaceutically acceptable salts at low dosage range in claims – Whether invention obvious in light of common general knowledge together with two prior art documents considered separately where another prior art document disclosed alternative compound – Whether prior art documents were ascertained, understood and regarded by person skilled in relevant art as relevant – Whether permissible to use information from other documents to determine relevance of information in prior art document – Use of prior art not within common general knowledge.

Words and phrases – "ascertained, understood and regarded as relevant", "considered separately", "inventive step", "obviousness", "person skilled in the relevant art".

Statutes

Duncan v Independent Commission Against Corruption

Procedure in the High Court: Orders made on 25 May 2015 removing matter into the High Court under section 40 of the Judiciary Act 1903 (Cth).

Statutes – Interpretation – Amending Acts – Independent Commission Against Corruption Act 1988 (NSW) – Meaning of corrupt conduct – Where High Court decision in Independent Commission Against Corruption v Cunneen [2015] HCA 14 declared meaning of "corrupt conduct" in ICAC Act – Where effect of Cunneen was to make invalid some past acts of respondent – Where Pt 13 of Sched 4 to ICAC Act inserted to validate otherwise invalid acts done by respondent before decision in Cunneen – Whether Pt 13 invalid.

Constitutional law – Validity of legislation – Retrospective amendments – Relevance of Kable principle – Relevance of Kirk principle.

Words and phrases – "corrupt conduct", "deem", "Kable principle", "legal consequences", "retrospective validity".

Torts

Fuller-Lyons v State of New South Wales

Torts – Negligence – Personal injury – Liability – Inferential fact-finding – Where appellant suffered severe injuries when he fell from train operated by respondent – Where primary judge found appellant fell from train as consequence of respondent's negligence – Whether New South Wales Court of Appeal erred in rejecting primary judge's finding on basis of alternative hypotheses about appellant's fall, not entailing negligence by respondent, being equally open – Whether Court of Appeal erred in rejecting primary judge's finding on basis appellant failed to exclude other possible explanations for known facts – Whether Court of Appeal erred in rejecting primary judge's finding on basis appellant failed to exclude hypothesis not explored in evidence.

2: CASES RESERVED

The following cases have been reserved or part heard by the High Court of Australia.

Constitutional Law

McCloy & Ors v State of New South Wales & Anor

Constitutional Law – Operation and effect of Commonwealth Constitution – Restrictions on Commonwealth and State legislation – Rights and freedoms implied in Commonwealth Constitution – Freedom of political communication – Whether Divs 2A and 4A of Pt 6, and s 96E in Div 4 of Pt 6 of the Funding Expenditure and Disclosure Act 1981 (NSW) infringe the implied freedom of communication regarding political or governmental matters.

Statutes – Acts of Parliament – Validity of legislation – Election Funding Expenditure and Disclosure Act 1981 (NSW) – Where the first plaintiff was subjected to compulsory examination pursuant to s 30 of the Independent Commission Against Corruption Act 1988 (NSW) by the second defendant concerning the circumstances of a donation made for the benefit of persons including a candidate in connection with the 2011 New South Wales election in breach of the Funding Expenditure and Disclosure Act 1981 (NSW) - Where the plaintiffs claim the provisions that they purportedly breached, Divs 2A and 4A of Pt 6, and s 96E in Div 4 of Pt 6 of the Act infringe the implied freedom of communication regarding political or governmental matters.

See also Criminal Law: North Australian Aboriginal Justice Agency Limited & Anor v Northern Territory of Australia.

Contracts

Wright Prospecting Pty Limited v Mount Bruce Mining Pty Limited & Anor; Mount Bruce Mining Pty Limited v Wright Prospecting Pty Limited & Anor

Contracts – General contractual principles – Construction and interpretation of contracts – Where appellant and respondents entered into written agreements which allowed for rights to particular reserves to be divided – Whether Mount Bruce Mining Pty Limited was required to pay royalties that were payable on mining activities undertaken in the Channar region - Whether a strict and narrow construction of language in a commercial agreement can account for the purposes or objects of the agreement.

Criminal Law

North Australian Aboriginal Justice Agency Limited v Northern Territory of Australia

Criminal procedure – Arrest and detention – Effecting arrest – Police Administration Act (NT) (“Act”) Div 4AA of Pt VII– Where Div 4AA of the Act allows for a member of the Police Force to take a person into custody for a period of up to four hours for an infringement notice offence – Where the offence in respect of which a person can be taken into custody can be an offence for which the maximum penalty is not imprisonment - Where the Act does not require a person to be brought before a justice of the peace or a Court – Whether Div 4AA is beyond the powers of the Northern Territory Assembly pursuant to s 122 of the Constitution and the Northern Territory (Self-Government) Act – Whether Div 4AA confers on the executive a power of detention which is penal or punitive in character.

The Queen v Beckett

Criminal law – Particular offences – Offences relating to the administration of justice – Perverting the course of justice – Crimes Act 1900 (NSW) s 319 - Where respondent was questioned about a property transfer she had stamped without receiving the duty – Where respondent obtained two bank cheques for the property and altered photocopies so that the cheques appeared to pre-date the transfer – Where respondent gave false evidence under oath – Where respondent was charged with perverting the course of justice – Whether offence only applies to conduct committed after judicial proceedings have commenced – Whether “course of justice” within the meaning of s 319 requires that the jurisdiction of a court or competent judicial tribunal has been invoked.

The Queen v Pham

Criminal law – Sentence - Sentencing procedure – Sentencing statistics, schedules, tariffs, comparisons, etc. – Consistency for federal offences – Where respondent brought 577 grams of heroin into Australia and pleaded guilty to one charge of importing a marketable quantity of a border controlled drug – Where respondent was originally sentenced to eight years and six months imprisonment with a non-parole period of six years – Where sentence was reduced on appeal to six years imprisonment with a non-parole period of four years – Whether federal offenders should be sentenced in accordance with “current sentencing practices” of a particular State or Territory to the exclusion of sentencing practices in other jurisdictions – Whether it is permissible to determine objective seriousness of the offending by reference to a statistical analysis of comparable cases which grades those cases by the weight of the drugs expressed as a percentage of the statutory threshold for a more serious offence.

Foreign Judgments

Firebird Global Master Fund II Ltd v Republic of Nauru & Anor

Foreign judgments - Recognition, effect and enforcement of foreign judgments – Enforcement of foreign judgments – Foreign States immunity – Where appellant is the holder of bonds issued by an entity which was guaranteed by the government of Nauru – Where the bond issuer and guarantor defaulted – Where appellant recovered a judgment in Japan equivalent to 31 million Australian dollars – Whether s 9 of the Foreign States Immunities Act 1985 (Cth) renders first respondent immune to an application to the Court for an order for the registration of the foreign judgment under s 6 of the Foreign Judgments Act 1991 (Cth).

Appealed from NSWSC (CA): (2014) 316 ALR 497; (2014) 289 FLR 398; [2014] NSWCA 360.

Migration

Minister for Immigration and Border Protection v WZARH & Anor

Migration – Refugee and humanitarian visas – Procedural fairness – Where a department officer determined that respondent was not a refugee – Where respondent sought a review of this decision – Where respondent was interviewed by merits reviewer – Where merits reviewer told respondent that they would be the person to determine the application – Where merits reviewer was unable to conclude the review and the review was concluded by another reviewer – Whether there is a breach of procedural fairness where alternate reviewer makes a decision based on the documentary materials, submissions and an audio recording of the interview but does not inform applicant of the change in decision-making, ask for submissions on how to proceed, or allow for an additional face-to-face interview.

Appealed from FCA (FC): (2014) 142 ALD 490; (2014) 316 ALR 389; [2014] FCAFC 137.

Patents

D’Arcy v Myriad Genetics & Anor

Intellectual property – Patents – Requirements for a valid patent – Human beings and their biological processes – s 18(1)(a) of the Patents Act 1990 (Cth) – Where appellant submitted that the Full Court of the Federal Court erred in holding that each of claims 1 - 3 of Australian Patent No 686004 claimed a patentable invention being a manner of manufacture – Australian Patent No 686004 is described as the identification of “a human breast and ovarian cancer disposing gene (BRCA1)” – Whether claims 1 – 3, which relate to isolated nucleic acid, are claims for a manner of manufacture for the purposes of s 18(1)(a) of the Patents Act 1990 (Cth).

Appealed from FCA (FC): (2014) 224 FCR 479; (2014) 313 ALR 627; (2014) 107 IPR 478; [2014] FCAFC 115.

Procedure

PT Bayan Resources TBK v BCBC Singapore Pte Ltd & Ors

Procedure – Judgments and orders – Freezing orders – Jurisdiction of the Supreme Court to make freezing orders – Order 52A Rules of the Supreme Court of Western Australia 1971 (WA) (“Rules”) – Where first respondent commenced proceedings against appellant in the High Court of Singapore – Where no decision has been handed down by the High Court of Singapore in respect of the matter – Where first respondent commenced proceedings in Western Australia against appellant for an order to freeze the appellant’s assets in Western Australia – Where no other proceedings aside from the application for freezing orders have been commenced or will be commenced unless first respondent is successful in its action in the High Court of Singapore – Whether order 52A of the Rules is inconsistent with Pt 2 of the Foreign Judgments Act 1991 (Cth) (“Act”) for the purpose of s 109 of the Constitution in circumstances where no substantive proceedings apart from the application for the freezing order have been or are to be commenced – Whether order 52A is ultra vires pursuant to s 17 of the Act – Whether freezing orders with respect to a prospective foreign judgment are within the inherent or implied jurisdiction of Australian superior courts.

Taxation

Commissioner of Taxation v Australian Building Systems Pty Ltd (In Liq); Commissioner of Taxation v Muller & Anor as Liquidators of Australian Building Systems Pty Ltd (In Liq)

Taxes and duties – Income tax and related legislation – Income Tax Assessment Act 1936 (Cth) ss 6 and 254 – Where administrators were appointed to Australia Building Systems under Pt 5.3A of the Corporations Act 2001 (Cth) – Where it was resolved that Australian Building Systems would be wound up and the respondents in B49/2014 were appointed liquidators – Where the liquidators caused Australian Building Systems to enter into a contract for sale of a property which gave rise to a capital gains tax event pursuant to s 104-10 of the Income Tax Assessment Act 1997 (Cth) – Whether under the 1936 Act a trustee is subject to the requirements and authorisations in s 254 only in relation to income, profits or gains for which they are assessable to tax under Part III Div 6 of the 1936 Act – Whether a trustee is subject to authorisations and requirements in s 254 of the 1936 Act only in relation to income, profits or gains for which they have liability to tax under some other provision of the Act or whether ancillary liabilities are created by s 254 – Whether, following the receipt of money in a representative capacity by a trustee but prior to an assessment for tax, the retention authorisation and requirement in s 254(1)(d) of the 1936 Act requires the trustee to retain out of moneys then in or coming to them in their representative capacity so much as is significant to pay the tax of the income, profits or gains or whether it only authorises and requires a trustee to retain such moneys after an assessment is made for tax on the income, profits or gains.

Torts

Alcan Gove Pty Ltd v Zabic

Torts – Negligence – Essentials of action for negligence – Damage –Return to Work Act 1986 (NT) (“Act”) ss 52, 189(1)- Where respondent was employed by appellant between 1974 – 1977 and regularly removed and replaced insulation products which contained asbestos – Where between November 2013 and January 2014 respondent began to experience chest pains and breathlessness which were found to be symptoms of malignant mesothelioma – Where respondent brought an action for common law damages arising out of appellant’s negligence – Where s 52 of the Act abolished common law damages claims against employers for injuries or diseases arising after 1 January 1987 – When dealing with an injury or a disease of insidious onset, when has sufficient damage been suffered to give rise to a cause of action – Whether liability for negligently-inflicted mesothelioma arise at the time the asbestos was inhaled or does it arise when the symptoms become apparent.

3: ORIGINAL JURISDICTION

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

Constitutional Law

Plaintiff M68/2015 v Minister for Immigration and Border Protection & Ors

Constitutional law – Where plaintiff was an “unauthorised maritime arrival” pursuant to s 5AA of the Migration Act 1958 (Cth) (“Act”) – Where plaintiff was taken to Nauru Regional Processing Centre (“RPC”) pursuant to s 198AD(2) of the Act – Where plaintiff was granted an RPC visa by the Nauru government which had certain restrictions and specifications - Whether plaintiff has standing to challenge whether the Commonwealth or the Minister was authorised in the past to engage in the activities relating to the creation and operation of the RPC – Whether Commonwealth or Minister were authorised to engage in acts relating to the creation and operation of the RPC pursuant to s 61 of the Constitution, s 198AHA of the Act, and s 32B of the Financial Framework (Supplementary Powers) Act 1997 (Cth) read together with reg 16 and items 417.021, 417.027, 417.029 and 417.042 of Sch 1AA Financial Framework (Supplementary Powers) Regulations 1997 (Cth) – Whether the restrictions imposed on the plaintiff and the specifications of her RPC visa are contrary to Article 5(1) of the Constitution of Nauru – Whether the statutory provisions relied upon by the Commonwealth are invalid because they are not supported by any head of Commonwealth legislative power or are contrary to Ch III of the Constitution.

See also Native Title: Quandamooka Yoolooburrabee Aboriginal Corporation RNTBC v State of Queensland

Migration

Wei v Minister for Immigration and Border Protection

Migration – Visa cancellation – Where plaintiff is a Chinese national who arrived on a student visa in September 2008 – Where plaintiff commenced and completed a “Foundation Program” at Macquarie University (“University”) – Where university failed to issue a Confirmation of Enrolment – Where the failure to issue the confirmation lead to the appearance that plaintiff breached the terms of visa – Where defendant’s delegate cancelled plaintiff’s visa on 20 March 2014 on this basis - Whether plaintiff should have been granted an extension of time for making application – Whether decision of defendant’s delegate to cancel plaintiff’s visa was vitiated by jurisdictional error or breach of requirements of procedural fairness.

Kaur v Minister for Immigration and Border Protection & Ors

Migration – Grant or refusal of visas – Where plaintiff applied for a visa on the basis of a de facto relationship - Where plaintiff’s visa application was refused – Where plaintiff contends that defendant’s delegate failed to exercise jurisdiction by making an incorrect finding on a critical fact in finding that in the 12 months prior to the application the parties to the relationship did not have a mutual commitment to a shared life together – Whether defendant’s delegate failed to provide procedural fairness to plaintiff by failing to identify to plaintiff the specific issues of fact which delegate regarded as critical to the decision and provide an opportunity to plaintiff provide relevant evidence – Whether defendant’s delegate made a jurisdictional error by failing to comply with s 57(2) of Migration Act 1958 (Cth).

Plaintiff M64/2015 v Minister for Immigration and Border Protection

Migration – Grant or refusal of visas – Migration Act 1958 (Cth) - Migration Regulations 1994 (Cth) - Where plaintiff is an Australian permanent resident – Where plaintiff applied for a subclass 866 (Protection) visa for his immediate family – Where delegate of defendant refused the Visa Application for plaintiff’s mother because plaintiff’s mother did not satisfy cl 202.222(2) (“clause”) – Whether defendant’s delegate erred by construing the clause to require him to consider Australia’s capacity to take all refugee applicants without considering whether or not there were compelling reasons for giving special consideration to the visa applicants – Whether the delegate erred by having regard to irrelevant considerations – Whether delegate applied policy inconsistent with the Act and the Regulations.

See also Constitutional Law: M68/15 v Minister for Immigration and Border Protection & Ors

Native Title

Quandamooka Yoolooburrabee Aboriginal Corporation RNTBC v State of Queensland

Native title – Indigenous Land Use Agreement (“ILUA”) – North Stradbroke Island Protection and Sustainability Act 2011 (Qld) (“Principal Act”) – North Stradbroke Island Protection and Sustainability and Another Act Amendment Act 2013 (Qld) (“Amendment Act”) – Amendment Act allowed for renewal of four mining leases for periods longer than those provided in Principal Act – Amendment Act replaced environmental authority provisions in Principal Act with new s 17 which no longer applied conditions to two mining leases – ILUA registered as area agreement under ss 24CA to 24CL of Native Title Act 1993 (Cth) (“NTA”) – Whether ILUA binds defendant not to enact ss 9 and 12 of Amendment Act.

Constitutional law – Inconsistency – Commonwealth Constitution, s 109 – Whether Amendment Act is invalid under s 109 of Constitution by reason of inconsistency between Amendment Act and ss 24EA and 87 of NTA.

4: SPECIAL LEAVE GRANTED

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

Banking

Paciocco v Australia and New Zealand Banking Group Limited

Banking and financial institutions – Consumer protection – Australian Securities and Investments Commission Act 2001 (Cth) s 12CB – National Consumer Credit Protection Act 2009 (Cth) s 76 and Fair Trading Act 1999 (Vic) s 8 – Where first appellant was charged 26 late payment fees on two credit card accounts held with respondent – Where there was a disparity between the fee charged and the loss accrued as a consequence of late payment - Whether the terms “unconscionable”, “unfair” and “unjust”, as used in the statutory causes of action available, are intended to extend the common law in respect of standard form consumer contracts – Whether disproportion between the quantum of late payment fees and cost to the respondent associated with late payment gives rise to statutory unconscionability, unjustness or unfairness if the fees were not exorbitant from respondent’s perspective.

Contracts

See also Statutes: State of Victoria v Tatts Group Limited and Tabcorp Holdings Ltd v State of Victoria.

Employment Law

Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd & Ors

Employment law – Employment relationship – Nature of – Fair Work Act 2009 (Cth) s 357 - Where first respondent operated a business providing serviced apartments – Where first respondent employed two housekeepers purportedly through a contract hire company – Whether relationship was an employment relationship – Whether an employer can avoid the sham contracting provision of the Fair Work Act by interposing a third party into its contractual arrangements between employer and the other person.

Migration

Procedure

Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate & Ors

Procedure – Civil penalty provisions – Where, in proceedings between respondent and the Construction, Forestry, Mining and Energy Union (“CFMEU”) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (“CEPU”), respondent alleged that the CFMEU and CEPU contravened the Building and Construction Industry Improvement Act 2005 (Cth) – Where respondent sought pecuniary penalties and associated declaratory relief against the CFMEU and CEPU – Whether the High Court of Australia’s decision in Barbaro v The Queen affects submissions made regarding civil penalties.

This matter is to be heard with Construction, Forestry, Mining and Energy Union & Anor v Director, Fair Work Building Industry Inspectorate & Anor.

Construction, Forestry, Mining and Energy Union & Anor v Director, Fair Work Building Industry Inspectorate & Anor

Procedure – Civil penalty provisions – Where respondent alleged that appellants contravened the Building and Construction Industry Improvement Act 2005 (Cth) – Where respondent sought pecuniary penalties and associated declaratory relief against the appellants– Whether the High Court of Australia’s decision in Barbaro v The Queen affects submissions made regarding civil penalties.

This matter is to be heard with Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate & Anor.

CGU Insurance Limited v Blakely & Ors

Procedure – Joinder of third parties – Where declaratory relief was sought by first respondent against appellant – Where first respondent was stranger to insurance contract between appellant and second to fifth respondents – Whether Court has jurisdiction to declare the rights and obligations of parties under a contract of insurance where declaration is sought by a third party and the parties to the contract do not intend to pursue any claim relating to their rights or obligations under the contract – Whether such a declaration would bind parties to the contract as a matter of res judicata or finally determine their rights and obligations pursuant to the contract – Whether Court has jurisdiction to make a declaration about the meaning of a contract at the suit of a third party on the grounds of “practical utility”.

Property

Coverdale v West Coast Council

Real Property – Rates and charges – Where the Valuer-General is required by the Valuation of Land Act 2001 (Tas) (“VLA”) to make valuations of all lands within a valuation district including any Crown lands that are liable to be rated – Where Macquarie Harbour is Crown land within the respondent’s municipality – Whether the sea or seabed is land which the Valuer-General is required to value.

Statutes

State of Victoria v Tatts Group Limited

Statutory interpretation – Gambling Regulation Act 2003 (Vic) ss 1.3, 3.4.33 and Pt 4 of Ch 3– Gaming operator licences – Where the regime changed and the ability to issue gaming operator’s licences was abolished – Where respondent’s licence expired – Whether respondent entitled to a terminal payment on the grant of gaming operator’s licence to person other than former licensee or a related entity – Whether when construing a contractual promise in an agreement between a government and private party which expressly requires the subsequent enactment of that promise in legislation can this agreement to afford the promise statutory force be relevant to ascertaining the intentions of the parties with respect to the meaning of the promise – Whether the contractual promise survives the agreed enactment of legislation embodying the same – Whether the contractual promise continues to have operation after the enactment of the statutory right if that statutory right is legislatively nullified – Whether a prior contractual promise can survive the enactment of legislation which has the purpose and effect of nullifying the parallel statutory right.

Tabcorp Holdings Limited v State of Victoria

Statutory interpretation – Gambling Regulation Act 2003 (Vic) s 4.3.21 – Gaming operator licences – Where the regime changed and the ability to issue gaming operator’s licences was abolished – Where appellant’s licence expired – Whether appellant is entitled to a terminal payment on the grant of gaming operator’s licence to person other than former licensee or a related entity – Whether words “new licences” in s 4.3.12(1) of the Gambling Regulation Act 2003 should be construed to have their ordinary meaning.

Contracts – General contractual principles – Whether respondent’s failure to seek to secure appellant’s right to repayment of a breach of the duty of good faith and reasonable dealing.

Taxation

Macoun v Commissioner of Taxation

Income Tax – Appeal from the Administrative Appeals Tribunal – Specialised Agencies (Privileges and Immunities) Regulations 1986 (Cth) cl 8 - International Organisations (Privileges and Immunities) Act 1963 (Cth) Sch 4 Pt 1 – Income Tax Assessment Act 1997 (Cth) s 6-20 - Where the appellant received pension payments from a foreign retirement plan – Where appellant was no longer employed by a Specialised Agency exempt from income tax pursuant to cl 8 of the Specialised Agencies (Privileges and Immunities) Regulations 1986 (Cth) – Whether appellant’s pension payments are exempt from income tax.

Torts

Allen v Chadwick

Torts – Negligence – Contributory negligence – Civil Liability Act 1936 (SA) ss 47 and 49 – Where respondent was injured in a car accident after appellant lost control of the vehicle – Where appellant was intoxicated – Where respondent was not wearing a seatbelt – Whether a reasonable person in the position of respondent would or ought to have known that appellant was intoxicated and would have relied on appellant to drive – Whether respondent had an opportunity to fasten the seatbelt – Whether damages should include or exclude GST.

Attwells & Anor v Jackson Lalic Lawyers Pty Limited

Torts – Negligence – Defences – Advocates’ immunity – Scope – Where respondent gave advice to appellants to agree to a terms of settlement – Where the terms of settlement caused the appellants to accept liability significant higher than they would have otherwise been liable for if they had not defended the proceedings– Whether advocates’ immunity applies – Whether the advice falls with the boundaries of advocates’ immunity – Whether immunity is attracted in respect of final outcomes not the subject of a judicial determination on the merits.

Fernando by his tutor Ley v Commonwealth of Australian & Anor

Torts – False imprisonment – Where appellant’s visa was cancelled by Acting Minister – Where appellant was held in immigration detention for 1203 days – Where consent orders were made to quash decision of Acting Minister to cancel the visa – Whether a tortfeasor is permitted to escape liability to pay more than nominal damages if a lawful means could have been chosen by the tortfeasor to inflict the same loss and damage on the victim – Whether, after a determination of liability, an intermediate court of appeal remits a matter for assessment of damages whether the remittee court is bound in reaching its determination by the reasons as well as the orders of the remitting court.

Stewart & Ors v Ackland

Torts – Negligence – Personal injury – Civil Liability Act 2002 (NSW) (‘Act’) ss 5L and 5F - Where respondent was injured while attempting to perform a backward somersault on a jumping pillow at an amusement park operated by appellant – Where there was no signs prohibiting backward somersaults or other inverted manoeuvres – Whether s 5L of the Act requires that the extent of the harm suffered by the plaintiff to be objectively obvious to a reasonable person in the position of the plaintiff – Whether and to what extent the principle of personal autonomy applies so as to limit the scope of an occupier’s duty of care in respect of recreation activities.

5: CASES NOT PROCEEDING OR VACATED

6: SPECIAL LEAVE REFUSED

No.	Applicant	Respondent	Court appealed from	Result
	BZAEZ	Minister for Immigration and Border Protection & Anor (S13/2015)	Federal Court of Australia [2015] FCA 625	Application dismissed [2015] HCASL 135
	Luck	University of Southern Queensland & Anor (M116/2014)	Full Court of the Federal Court of Australia [2014] FCAFC 135	Application dismissed [2015] HCASL 136
	Werden	The Queen (M58/2015)	Supreme Court of Victoria (Court of Appeal) [2015] VSCA 72	Application dismissed [2015] HCASL 137
	Phillips	Southage Pty Ltd (M60/2015)	Federal Court of Australia [2015] FCA 332	Application dismissed [2015] HCASL 138
	MZAAM	Minister for Immigration and Border Protection & Anor (M66/2015)	Federal Court of Australia [2015] FCA 437	Application dismissed [2015] HCASL 139
	Cremona	Administrative Appeals Tribunal & Anor (M89/2015)	Full Court of Federal Court of Australia [2015] FCAFC 72	Application dismissed [2015] HCASL 140
	SZTSI	Minister for Immigration and Border Protection & Anor	Federal Court of Australia [2014] FCA 1225	Application dismissed [2015] HCASL 141
	Dickens	Dickens (S83/2015 & S84/2015)	Family Court of Australia	Applications dismissed [2015] HCASL 142
	Mulder	Commonwealth Director of Public Prosecutions (S87/2015)	Supreme Court of New South Wales (Court of Appeal) [2015] NSWCA 92	Application dismissed [2015] HCASL 143
	Mulder	Commonwealth Director of Public Prosecutions (S88/2015)	Supreme Court of New South Wales (Court of Appeal) [2015] NSWCA 92	Application dismissed [2015] HCASL 143
	SZRSJ	Minister for Immigration and Border Protection & Anor (S104/2015)	Federal Court of Australia [2015] FCA 457	Application dismissed [2015] HCASL 144
	SZTPF	Minister for Immigration and Border Protection & Anor (S106/2015)	Federal Court of Australia [2015] FCA 445	Application dismissed [2015] HCASL 145
	SZTNL	Minister for Immigration and Border Protection & Anor (S111/2015)	Federal Court of Australia [2015] FCA 463	Application dismissed [2015] HCASL 146
	SZUFG & Ors	Minister for Immigration and Border Protection & Anor (S112/2015)	Federal Court of Australia [2015] FCA 448	Application dismissed [2015] HCASL 147
	Battison	Battison & Anor (S49/2015)	Full Court of the Family Court of Australia	Application dismissed with costs [2015] HCASL 148
	Steer	The Queen (S35/2015)	Supreme Court of New South Wales (Court of Criminal Appeal) [2014] NSWCA 338	Application dismissed [2015] HCASL 149
	Guild Insurance Limited	Hepburn (S322/2014)	Supreme Court of New South Wales (Court of Appeal) [2014] NSWCA 400	Application dismissed with costs [2015] HCASL 150
	Prodduturi	Minister for Immigration and Border Protection & Anor (S24/2015)	Full Court of the Federal Court of Australia [2015] FCAFC 5	Application dismissed with costs [2015] HCASL 151
	Southern Cross Autoglass Pty Ltd & Ors	Protector Glass Industries Pty Ltd (S44/2015)	Supreme Court of New South Wales (Court of Appeal) [2015] NSWCA 16	Application dismissed with costs [2015] HCASL 152
	Ngurampaa Limited	Brewarrina Shire Council (S77/2015)	Supreme Court of New South Wales	Application dismissed with costs [2015] HCASL 153
	MZZUO	Minister for Immigration and Border Protection & Anor (M137/2014)	Federal Court of Australia [2014] FCA 1267	Application dismissed [2015] HCASL 154

No.	Applicant	Respondent	Court appealed from	Result
	Sarks	Cassegrain & Ors (S64/2015)	Full Court of the Federal Court of Australia [2015] FCAFC 38	Application dismissed with costs [2015] HCATrans 223
	Cassegrain	Cassegrain & Ors (S65/2015)	Full Court of the Federal Court of Australia [2015] FCAFC 38	Application dismissed with costs [2015] HCATrans 223
	CGU Insurance Limited	June Davies as Legal Personal Representative of the estate of the late Eric James Davies & Anor (S32/2015)	Supreme Court of New South Wales (Court of Appeal) [2015] NSWCA 5	Application dismissed with costs [2015] HCATrans 225
	Allianz Australia Insurance Limtied	Wade Alfred Pomfret & Anor (S34/2015)	Supreme Court of New South Wales (Court of Appeal) [2015] NSWCA 4	Application dismissed with costs [2015] HCATrans 225
	Smith	The Queen (S61/2015)	Supreme Court of New South Wales (Court of Criminal Appeal) [2014] NSWCCA 316	Application dismissed [2015] HCATrans 222
	McGrouther & Anor	Commissioner of Taxation (S68/2015)	Full Court of the Federal Court of Australia [2015] FCAFC 34	Application dismissed with costs [2015] HCATrans 221
	Jea Holdings (Aust) Pty Ltd	Registrar General of NSW & Anor (S76/2015)	Supreme Court of New South Wales (Court of Appeal) [2015] NSWCA 74	Application dismissed with costs [2015] HCATrans 224
	Pernice	Jingalong Pty Limited & Anor (S40/2015)	Supreme Court of New South Wales (Court of Appeal) [2015] NSWCA 7	Application dismissed with costs [2015] HCATrans 227
	Generic Health Pty Ltd	Otsuka Pharmaceutical Co., Ltd & Ors (S157/2015)	Federal Court of Australia [2015] FCA 848	Application dismissed with costs [2015] HCATrans 220

No.	Applicant		Respondent	Court appealed from	Result
		Di Cioccio	Official Trustee in Bankruptcy (as Trustee of the Bankrupt Estate of Marc Edward Di Cioccio) (M46/2015)	Full Court of the Federal Court of Australia [2015] FCAFC 30	Application dismissed with costs [2015] HCATrans 230
		Falkingham	Peninsula Kingswood Country Golf Club Ltd (CAN 004 208 075) (M31/2015) (M44/2015)	Supreme Court of Victoria (Court of Appeal) [2015] VSCA 16 [2015] VSCA 30	Application dismissed with costs [2015] HCATrans 231
		Quail	The Queen (M24/2015)	Supreme Court of Victoria (Court of Appeal) [2014] VSCA 336	Application dismissed [2015] HCATrans 233
		Little (a Pseudonym)	The Queen (M67/2015)	Supreme Court of Victoria (Court of Appeal) [2015] VSCA 62	Application dismissed [2015] HCATrans 234
		Ausnet Transmission Group Pty Ltd	Commissioner of Taxation ((M84/2015)	Full Court of the Federal Court of Australia [2015] FCAFC 60	Discontinued
		Rowley Super Fund Pty Ltd	Australasian Annuities Pty Ltd (in liquidation) (M29/2015)	Supreme Court of Victoria (Court of Appeal) [2015] VSCA 9	Application dismissed with costs [2015] HCATrans 235
		Kheir	The Queen (M65/2015)	Supreme Court of Victoria (Court of Appeal) [2104] VSCA 200	Application dismissed [2015] HCATrans 236

Case	Title
AstraZeneca AB & Anor v Apotex Pty Ltd; AstraZeneca AB & Anor v Watson Pharma Pty Ltd; AstraZeneca AB & Anor v Ascent Pharma Pty Ltd	Patents
Duncan v Independent Commission Against Corruption	Statutes
Fuller-Lyons v State of New South Wales	Torts

Case	Title
Paciocco & Anor v Australia and New Zealand Banking Group Limited	Banking
CGU Insurance Limited v Blakely & Ors	Procedure
Coverdale v West Coast Council	Property
Stewart & Ors v Ackland	Torts

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