High Court of Australia Bulletin [2019] HCAB 2 (2 April 2019)

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: SUMMARY OF NEW ENTRIES

2: CASES HANDED DOWN

The following cases were handed down by the High Court of Australia during the March 2019 sittings.

Criminal Law

Director of Public Prosecutions Reference No 1 of 2017

Criminal practice – Trial – Jury directions – Prasad direction – Where accused charged with murder – Where Prasad direction given over objection at close of Crown case – Where another Prasad direction given at close of defence case – Whether Prasad direction contrary to law and should not be administered to jury determining criminal trial.

Criminal practice – Jury – Reserve jurors – Where one of 13 jurors balloted off to consider response to Prasad direction – Where jury wished to hear more – Where juror balloted off re-joined jury – Where second ballot conducted to reduce jury to 12 jurors again – Where jury delivered verdicts of not guilty of murder and not guilty of manslaughter after second ballot – Whether ballot conducted at time at which "jury required to retire to consider its verdict".

Words and phrases – "fair trial", "fairness to the prosecution", "jury's suggested right to stop the case", "no case submission", "power of the trial judge", "practice of inviting the jury to stop the case", "Prasad direction", "retire to consider its verdict".

Grajewski v Director of Public Prosecutions (NSW)

Criminal law – Appeal against conviction – Question of law referred to Court of Criminal Appeal – Case stated – Destroying or damaging property – Physical element of offence – Where appellant harnessed himself to ship loader – Where ship loader shut down due to safety concerns – Where ship loader inoperable until appellant removed – Where no alteration to physical integrity of ship loader – Whether property damaged.

Words and phrases – "destroys or damages", "impairment of value", "physical derangement", "temporary functional derangement".

OKS v Western Australia

Criminal practice – Appeal against conviction – Application of proviso that no substantial miscarriage of justice actually occurred – Criminal Appeals Act 2004 (WA), s 30(4) – Where jury found appellant guilty of indecently dealing with child under 13 years of age – Where credibility and reliability of complainant's evidence central issue at trial – Where complainant admitted and was alleged to having lied – Where trial judge directed jury not to reason that complainant's lies meant that all her evidence dishonest and could not be relied upon – Where Court of Appeal found direction by trial judge was wrong decision on question of law – Where Court of Appeal found no substantial miscarriage of justice occurred – Whether error in application of proviso.

Words and phrases – "misdirection", "natural limitations of proceeding on the record", "no effect upon the jury's verdict", "proviso", "substantial miscarriage of justice", "sufficiency of evidence to prove guilt", "very significant weight", "weight to the verdict of guilty", "wrong decision on a question of law".

Native Title

Northern Territory v Mr A Griffiths (deceased) and Lorraine Jones on behalf of the Ngaliwurru and Nungali Peoples; Commonwealth of Australia v Mr A Griffiths (deceased) and Lorraine Jones on behalf of the Ngaliwurru and Nungali Peoples; Mr A Griffiths (deceased) and Lorraine Jones on behalf of the Ngaliwurru and Nungali Peoples v Northern Territory

Aboriginals – Native title rights – Assessment of compensation – Where "previous exclusive possession act[s]" within meaning of s 23B in Div 2B of Pt 2 of Native Title Act 1993 (Cth) ("NTA") extinguished non-exclusive native title rights and interests held by Ngaliwurru and Nungali Peoples ("Claim Group") – Where Claim Group entitled to compensation under Div 5 of Pt 2 of NTA – Whether economic loss and cultural loss assessed separately – Principles of assessment for compensation for economic loss – Whether economic value of Claim Group's native title rights and interests equivalent to freehold value of affected land – Whether reduction from freehold value appropriate and how calculated – Whether inalienability of native title rights and interests a relevant discounting factor – Principles of assessment for compensation for cultural loss – Whether trial judge erred in assessment of cultural loss – Whether award manifestly excessive – Whether award met community standards.

Interest – Whether simple or compound interest payable on award for economic loss – Upon what basis simple interest payable.

Words and phrases – "compensable acts", "compensation", "compound interest", "compulsory acquisition", "cultural loss", "discount", "easement", "economic loss", "exclusive native title rights and interests", "extinguishing act", "inalienability", "just terms", "manifestly excessive", "native title", "non-economic loss", "non-exclusive native title rights and interests", "objective economic value", "percentage reduction from full exclusive native title", "previous exclusive possession act", "simple interest", "solatium".

Appealed from FCA (FC): [2017] FCAFC 106; (2017) 256 FCR 478; (2017) 346 ALR 247

3: CASES RESERVED

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

Arbitration

Rinehart & Anor v Hancock Prospecting Pty Ltd & Ors; Rinehart & Anor v Georgina Hope Rinehart (in her personal capacity and as trustee of the Hope Margaret Hancock Trust and as trustee of the HFMF Trust) & Ors

Arbitration – Arbitration agreements – Interpretation – Where parties entered into series of deeds containing arbitration agreements – Where primary judge ordered trial of question whether arbitration agreements in deeds null and void, inoperative or incapable of being performed – Where Full Court stayed proceeding and referred parties to arbitration – Whether Full Court erred in concluding arbitration clauses expressed to cover disputes “under” agreement extended to disputes concerning the validity of the deeds or provisions thereof.

Constitutional Law

Clubb v Edwards & Anor

Constitutional law – Implied freedom of political communication – Public Health and Wellbeing Act 2008 (Vic) s 185D – Where s 185D prohibits engaging in “prohibited behaviour” within “safe access zone” – Where “prohibited behaviour” defined to include “communicating by any means in relation to abortions in a manner that is able to be seen or heard by a person accessing, or attempting to access, or leaving premises at which abortions are provided and is reasonably likely to cause distress or anxiety” – Where appellant convicted of charge under s 185D in Magistrates’ Court – Whether s 185D impermissibly burdens implied freedom of political communication.

Removed from Supreme Court of Victoria into High Court under s 40 of Judiciary Act 1903 (Cth) on 23 March 2018

Comcare v Banerji

Constitutional law – Implied freedom of political communication – Where employee of Department of Immigration and Citizenship used Twitter account to post anonymous “tweets” critical of Department – Where Department terminated employment under s 15 of Public Service Act 1999 (Cth) on basis employee used social media in breach of ss 13(1), 13(7) and 13(11) of Australian Public Service Code of Conduct – Where employee submitted claim for compensation under s 14 of Safety, Compensation and Rehabilitation Act 1988 (Cth) on basis termination led to psychological condition – Where Comcare rejected claim – Where Administrative Appeals Tribunal set aside decision on basis termination infringed implied freedom of political communication so termination not “reasonable administrative action taken in a reasonable manner” within meaning of s 5A of Safety, Compensation and Rehabilitation Act – Whether ss 13(11) and 15 of Public Service Act incompatible with implied freedom of political communication – Whether Tribunal erred in failing to find decision to terminate employment constituted “reasonable administrative action taken in a reasonable manner”.

Removed from Federal Court of Australia into High Court under s 40 of Judiciary Act 1903 (Cth) on 12 September 2018

Plaintiff M47/2018 v Minister for Home Affairs & Anor

Constitutional law – Constitution Ch III – Detention – Immigration detention – Where plaintiff arrived in Australia in 2010 – Where plaintiff detained under ss 189 and 196 of Migration Act 1958 (Cth) – Where plaintiff claims he has no right, or entitlement to obtain right, to enter or reside in any country – Whether ss 189 and 196 of Act authorise detention of plaintiff – If yes, whether ss 189 and 196 of Act beyond legislative power of Commonwealth insofar as they apply to plaintiff.

Preston v Avery & Anor

Constitutional law – Implied freedom of political communication – Reproductive Health (Access to Termination) Act 2013 (Tas) s 9(2) – Where s 9(2) prohibits protest in relation to terminations that is able to be seen or heard by person accessing or attempting to access premises at which terminations provided – Where appellant convicted in Hobart Court of Petty Sessions of contraventions of s 9(2) – Whether s 9(2) impermissibly burdens implied freedom of political communication.

Removed from Supreme Court of Tasmania into High Court under s 40 of Judiciary Act 1903 (Cth) on 23 March 2018

Spence v State of Queensland

Constitutional law (Cth) – Implied freedom of political communication – Federal legislative power with respect to federal elections – Implied doctrine of intergovernmental immunities – State immunity from Commonwealth laws – Operation of s 109 of Constitution (Cth) – Where Local Government Electoral (Implementing Stage 1 of Belcarra) and Other Legislation Amendment Act 2018 (Qld) purports to prohibit making of political donations by property developers – Whether s 275 of the Electoral Act 1992 (Qld) and s 113B of the Local Government Electoral Act 2011 (Qld) invalid to the extent they touch or concern federal elections – Whether inconsistent with s 302CA of Commonwealth Electoral Act 1918 (Cth) – Whether s 302CA beyond the Commonwealth’s legislative power – Whether s 302CA infringes the implied intergovernmental immunity of States from Commonwealth laws – Whether s 302CA invalid because it seeks to retrospectively override operation of s 109 of the Constitution – Whether Subdiv 4 of Div 8 of Pt 11 of the Electoral Act 1992 (Qld) infringes implied freedom of political communication.

Consumer Law

Australian Securities and Investments Commission v Kobelt

Consumer law – Australian Securities and Investments Act 2001 (Cth) s 12CB, 12CC – Unconscionable conduct – Where respondent operated general store in remote town – Where respondent provided credit to indigenous customers – Where primary judge held respondent contravened s 12CB(1) by engaging in system of unconscionable conduct in connection with supply of financial services to customers – Where Full Federal Court allowed appeal – Whether Full Federal Court erred in construction and application of ss 12CB and 12CC – Whether Full Court gave due weight to special disadvantage or vulnerability of customers and gave undue weight to voluntary entry into agreements.

Frugtniet v Australian Securities & Investments Commission

Consumer law – Banning orders – National Consumer Credit Protection Act 2009 (Cth) s 80 – Crimes Act 1914 (Cth) s 85ZZH – Where Commission made banning order under s 80 on basis appellant not “fit and proper person to engage in credit activities” – Where Administrative Appeals Tribunal affirmed Commission’s order – Where primary judge and Full Federal Court dismissed appeals – Whether Full Federal Court erred in holding Tribunal not prevented by Crimes Act from considering “spent convictions”.

Corporations Law

Carter Holt Harvey Woodproducts Australia Pty Ltd v The Commonwealth of Australia & Ors

Corporations – Trustee corporations – Corporations Act 2001 (Cth) s 433(2) – Where creditors resolved to wind up corporate trustee – Where receivers sought directions – Where primary judge held receivers justified in proceeding on basis receivership surplus properly characterised as trust property and s 433 did not apply to surplus – Where Court of Appeal allowed appeal – Whether Court of Appeal erred in concluding “property of the company” in s 433(2) included not only trustee’s right of indemnity but also underlying trust assets to which trustee company could have recourse – Whether Court of Appeal erred in concluding corporate trustee’s right of indemnity from trust assets was “property comprised in or subject to a circulating security interest” for purposes of s 433(2).

Appealed from VSC (CA): [2018] VSCA 41; (2018) 54 VR 230; (2018) 354 ALR 789; (2018) 124 ACSR 246; (2018) 330 FLR 149

Interpretation

Victorian Building Authority v Andriotis

Interpretation – Mutual Recognition Act 1999 (Cth) s 17, 20 – Where respondent registered in New South Wales as waterproofing technician – Where respondent applied to appellant for registration under Building Act 1993 (Vic) – Where appellant refused to grant registration because respondent not of “good character” as required by s 170(1)(c) of Building Act – Where Administrative Appeals Tribunal affirmed decision – Where Full Federal Court allowed appeal – Whether Full Federal Court erred in holding appellant required by s 20(2) to register respondent for equivalent occupation under Building Act notwithstanding appellant found respondent not of good character – Whether Full Federal Court erred in holding exception to mutual recognition principle in s 17(2) of Mutual Recognition Act does not quality “entitlement” to be registered under s 20(1) – Whether Full Court erred in holding “good character” requirement in Building Act not law regulating “manner” of carrying out occupation within meaning of s 17(2) of Mutual Recognition Act.

Native Title

KN (deceased) and Others on behalf of the Tjiwarl and Tjiwarl #2 v State of Western Australia & Ors

Native title – Extinguishment – Exploration licence – Native Title Act 1993 (Cth) s 47B – Where unallocated Crown land subject to exploration licence granted under Mining Act 1978 (WA) – Where native title determination application filed in respect of land – Where primary judge concluded s 47B applied because exploration licence not “lease” within meaning of s 47B(1)(b)(i) – Where Federal Court allowed appeal – Whether Federal Court erred in concluding exploration licence is “lease” within meaning of s 47B(1)(b)(i).

Tjungarrayi & Ors v State of Western Australia & Ors

Native title – Extinguishment – Petroleum exploration permits – Native Title Act 1993 (Cth) s 47B – Where land subject to petroleum exploration permits granted under Petroleum and Geothermal Energy Resources Act 1967 (WA) – Where native title determination application filed in respect of land – Where primary judge concluded s 47B applied because petroleum exploration permits not “leases” within meaning of s 47B(1)(b)(i) – Where Federal Court allowed appeal – Whether Federal Court erred in concluding petroleum exploration permits “leases” within meaning of s 47B(1)(b)(i).

Tort

Parkes Shire Council v South West Helicopters Pty Limited

Tort – Negligence – Psychiatric injury – Where Council engaged South West Helicopters to provide helicopter and pilot for aerial survey – Where Council employees died in helicopter crash – Where relatives brought proceedings in negligence for nervous shock against Council and South West Helicopters under Compensation to Relatives Act 1897 (NSW) – Where primary judge upheld claim – Where majority of Court of Appeal allowed appeal on basis any liability South West Helicopters might have had under Compensation to Relatives Act or general law excluded by Civil Aviation (Carriers’ Liability) Act 1959 (Cth) – Whether majority of Court of Appeal erred in construction of s 35 of Civil Aviation (Carriers’ Liability) Act – Whether majority of Court of Appeal erred in failing to conclude claims against carriers brought by non-passengers following death of passenger not regulated by s 35.

4: ORIGINAL JURISDICTION

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

Administrative Law

Taylor v Attorney-General of the Commonwealth

Administrative law – Judicial review – Where plaintiff lodged charge-sheet and summons at Magistrates’ Court against Aung Sun Suu Kyi (serving Foreign Minister of Myanmar) for a crime against humanity (deportation or forcible transfer of population) contrary to ss 268.11 and 268.115 of the Criminal Code Act 1995 (Cth) – Where plaintiff sought defendant’s consent under s 268.121 of the Criminal Code Act to commence proceedings – Where consent refused – Whether the decision to refuse consent reviewable – Whether defendant misunderstood the law and committed jurisdictional error in refusing consent – Whether Aung Sun Suu Kyi immune from prosecution in Australia under customary international law – Whether defendant failed to afford plaintiff procedural fairness.

Constitutional Law

Glencore International AG & Ors v Commissioner of Taxation of the Commonwealth of Australia & Ors

Constitutional law – Constitution s 75(iii) – Where defendants obtained documents held by overseas law practice – Where plaintiffs claim documents created by law practice for sole or dominant purpose of providing legal advice to plaintiffs – Whether documents subject to legal professional privilege – Whether plaintiffs entitled to injunction under Judiciary Act 1903 (Cth) s 31 or s 32 restraining defendants and any other officer of Australian Taxation Office from relying upon, referring to or making use of documents – Whether common law of Australia confers on privilege holder actionable right to restrain use by third party of privileged communication – Whether defendants entitled and/or obliged to retain and use communications under Income Tax Assessment Act 1936 (Cth) s 166.

Migration Law

Love v Commonwealth of Australia; Thoms v Commonwealth of Australia

Migration law – Where Love born in Papua New Guinea to Australian father – Where Love identifies as descendant of the Kamilaroi tribe – Where Love has five Australian children – Where Love was sentenced for an offence of assault occasioning bodily harm against s 339 of the Criminal Code 1899 (Qld) and sentenced to imprisonment of 12 months – Where Love’s Class BF Transitional (permanent) Visa cancelled under s 501(3A) of the Migration Act 1958 (Cth) – Where Love detained under s 189 of Migration Act 1958 (Cth) on suspicion of being an “unlawful non-citizen” – Where cancellation of Love’s visa revoked under s 501CA(4) of the Migration Act and Love released from immigration detention – Where Thoms born in New Zealand to Australian mother – Where Thoms identifies as member of Gunggari People – Where Thoms has one Australian child – Where Thoms sentenced to imprisonment of 18 months for assault occasioning bodily harm contrary to ss 339(1) and 47(9) of the Criminal Code– Where Thoms’ Subclass 444 Special Category (temporary) Visa cancelled under s 501(3A) of the Migration Act – Where Thom was and remains detained purportedly under s 189 of the Migration Act on suspicion of being an “unlawful non-citizen” – Whether each of Love and/or Thom an “alien” within the meaning of s 51(xix) of the Constitution (Cth).

5: SECTION 40 REMOVAL

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

6: SPECIAL LEAVE GRANTED

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

Contract Law

Mann & Anor v Paterson Constructions Pty Ltd

Contracts – Termination – Repudiation – Where appellants and respondent entered into building contract – Where appellants purported to terminate on basis respondent repudiated – Where respondent then purported to terminate on basis appellants’ conduct constituted repudiation – Where Victorian Civil and Administrative Tribunal upheld claim by respondent for quantum meruit in amount exceeding contract price – Where Supreme Court and Court of Appeal dismissed appeals – Whether Court of Appeal erred in holding respondent entitled to sue on quantum meruit for works carried out – Whether Court of Appeal erred in holding contract price did not operate as ceiling on amount claimable – Whether Court of Appeal erred in concluding respondent able to recover for variations to works because s 38 of Domestic Building Contracts Act 1995 (Vic) did not apply to quantum meruit claim.

Corporations Law

Connective Services Pty Ltd & Anor v Slea Pty Ltd & Ors

Corporations – Financial assistance to acquire shares – Corporations Act 2001 (Cth) s 260A – Where appellants’ constitutions require member who wishes to transfer shares of particular class to first offer shares to existing holders of that class (“pre-emptive rights provisions”) – Where appellants commenced proceeding alleging first and second respondents entered into agreement to avoid pre-emptive rights provisions – Where primary judge held proceeding not instituted in breach of s 260A – Where Court of Appeal allowed appeal – Whether Court of Appeal erred in holding appellants’ conduct capable of amounting to financial assistance to acquire shares within meaning of s 260A – Whether Court of Appeal erred in concluding open to primary judge to characterise appellants’ conduct as net transfer of value to appellants’ shareholders – Whether Court of Appeal erred in concluding open to primary judge to characterise conduct as capable of materially prejudicing interests of appellants and/or shareholders or creditors – Whether Court of Appeal erred in concluding financial assistance directed to enabling appellants’ shareholders to acquire shares.

Costs

Bell Lawyers Pty Ltd v Pentelow & Anor

Costs – Chorley exception – London Scottish Benefit Society v Chorley (1884) 13 QBD 872 – Where first respondent is barrister – Where first respondent commenced proceedings against appellant –Where Supreme Court entered judgment for first respondent and ordered appellant to pay first respondent’s costs – Where first respondent sought to recover costs for work performed by her in addition to costs and disbursements of solicitors and counsel – Where costs assessor and review panel disallowed costs for work performed by first respondent – Where Court of Appeal allowed appeal – Whether Court of Appeal erred in concluding first respondent entitled to recover costs for time spent in conduct of proceedings – Whether Court of Appeal erred in concluding Chorley exception applied in circumstances where first respondent had retained solicitors and counsel – Whether Court of Appeal erred in determining s 98 of Civil Procedure Act 2005 (NSW) permitted application of Chorley exception.

The Northern Territory of Australia v Sangare

Costs – Discretion to award costs – Impecuniosity – Where Department of Infrastructure offered employment to respondent – Where respondent sought support for skilled migration visa application from Minister for Infrastructure – Where Departmental officers provided briefing to Minister – Where respondent alleged briefing contained defamatory material fabricated by Department – Where respondent commenced proceedings seeking damages for publication of defamatory statements in briefing – Where Supreme Court dismissed claim – Where Court of Appeal dismissed respondent’s appeal – Where Court of Appeal declined to award appellant costs because respondent impecunious – Whether Court of Appeal erred in refusing to award costs because respondent unlikely to be able to pay any costs awarded against him.

Criminal Law

Fennell v The Queen

Criminal law – Where appellant convicted by jury of murder and sentenced to life imprisonment – Where appellant contended on appeal that there was reasonable hypothesis consistent with innocence open on evidence – Whether Court of Appeal erred in failing to find that the verdict was unreasonable or could not be supported having regard to evidence, in part because it made significant errors of fact.

Lordianto & Anor v Commissioner of the Australian Federal Police; Kalimuthu & Anor v Commissioner of the Australian Federal Police

Criminal law – Proceeds of crime – Where large number of deposits were made into bank accounts in amounts of less than $10,000 – Whether each Court of Appeal misconstrued “third party” in s 330(4)(a) of the Proceeds of Crime Act 2002 (Cth) to exclude person who acquires property at time it becomes proceeds or an instrument of an offence – Whether each Court of Appeal wrongly interpreted term “sufficient consideration” in ss 330(4)(a) and 338 as requiring connection between third party acquirer of property and person from whom property passed – Whether each Court of Appeal erred in interpreting and applying “circumstances that would not arouse a reasonable suspicion, that the property was proceeds of an offence or an instrument of an offence” in s 330(4)(a).

The Queen v A2; The Queen v Magennis; The Queen v Vaziri

Criminal law – Female genital mutilation – Where A2 and Magennis had been convicted of offences of female genital mutilation contrary to s 45(1)(a), Crimes Act 1990 (NSW) – Where Vaziri had been convicted of being an accessory to those offences – Where, on appeal, the Court of Criminal Appeal of New South Wales (CCA) entered verdicts of acquittal for A2, Magennis and Vaziri – Whether the CCA erred in construing the words “otherwise mutilates” and “clitoris” in s 45(1)(a) of the Crimes Act – Whether “otherwise mutilates” extends to include any injury and/or damage to another person’s clitoris in s 45(1)(a) of the Crimes Act – Whether “clitoris” includes the clitoral hood or prepuce in s 45(1)(a) of the Crimes Act.

Family Law

Masson v Parsons & Ors

Family law – Parentage – Artificial insemination – Where appellant and first respondent conceived child using artificial insemination – Where appellant listed on child’s birth certificate as father – Where primary judge found appellant was “parent” for purpose of Family Law Act 1975 (Cth) because provided genetic material for purpose of fathering child he expected to parent – Where Full Court allowed appeal on basis s 79 of Judiciary Act 1903 (Cth) picked up s 14(2) of Status of Children Act 1996 (NSW) which operated to determine appellant not “parent” – Whether Full Court erred in concluding s 14(2) of Status of Children Act operated to determine appellant not “parent” for purpose of Family Law Act – Whether Full Court erred in concluding s 60H of Family Law Act exhaustively defines parents of child for purpose of Family Law Act.

Insurance Law

Lee v Lee & Ors; Hsu v RACQ Insurance Limited; Lee v RACQ Insurance Limited

Insurance law – Motor vehicles – Personal injury – Where appellant injured in motor vehicle collision – Where appellant alleged injuries caused by negligence of father – Where appellant gave evidence father driving vehicle at time of collision – Where appellant’s blood located on driver airbag – Where pathologist gave evidence relating to possible source of blood – Where mechanical engineer gave evidence relating to seatbelts and airbag design – Where trial judge concluded appellant driving vehicle – Where Court of Appeal dismissed appeal – Whether Court of Appeal failed to give adequate reasons by failing to address aspects of mechanical engineer’s evidence and inferences arising from evidence – Whether Court of Appeal erred by failing to conclude trial judge misused advantage as trial judge – Whether finding appellant was driver contrary to compelling inferences from uncontroverted evidence.

Migration Law

BVD17 v Minister for Immigration and Border Protection & Anor

Migration law – Procedural fairness – Where certificate issued under s 473GB of Migration Act 1958 (Cth) – Where failure to disclose the fact of certification and appellant unaware of certificate – Whether Immigration Assessment Authority denied procedural fairness by not disclosing that part of the review material included material subject of certificate – Whether Immigration Assessment Authority failed to consider exercising discretion to disclose information – Whether Immigration Assessment Authority acted legally unreasonable in circumstances.

Procedure

Brisbane City Council v Amos

Procedure – Limitation periods – Limitation of Actions Act 1974 (Qld) – Where Council commenced proceeding against respondent for overdue rates and charges – Where primary judge gave judgment for Council – Where majority of Court of Appeal allowed appeal on basis part of claim beyond 6 year limitation period in s 10(1)(d) of Act – Whether majority erred in holding proceeding falls within both ss 10(1)(d) and 26(1) of Act and inconsistency should be resolved by applying shorter limitation period in s 10(1)(d).

Taxation

Commissioner of Taxation of the Commonwealth of Australia v Sharpcan Pty Ltd

Taxation – Where Administrative Appeals Tribunal held that outgoing of $600,300 incurred by the trustee of the Daylesford Royal Hotel Trust in the year ended 30 June 2010 for acquisition of 18 gaming machine entitlements under Gambling Regulation Act 2003 (Vic) was on revenue account and therefore deductible under s 8-1 of the Income Tax Assessment Act 1997 (Cth) – Whether Full Court (by majority) erred in upholding the decision of Tribunal instead of finding that outgoing was “of capital, or of a capital nature” – Whether Full Court erred in holding that if it was outgoing of capital or of a capital nature, it was expenditure to which s 40-880(6) of Income Tax Assessment Act applied and accordingly a deduction was allowable to trustee in respect of expenditure under s 40-880(2).

7: CASES NOT PROCEEDING OR VACATED

8: SPECIAL LEAVE REFUSED

Applicant	Respondent	Court appealed from	Result
DAY16	Minister for Immigration and Border Protection & Anor (A37/2018)	Federal Court of Australia [2018] FCA 1750	Application Dismissed [2019] HCASL 26
Coleman	The Director of Public Prosecutions (M175/2018)	Supreme Court of Victoria (Court of Appeal) [2018] VSCA 264	Application Dismissed [2019] HCASL 27
BEU16	Minister for Immigration and Border Protection & Anor (M189/2018)	Federal Court of Australia [2018] FCA 1416	Application Dismissed [2019] HCASL 28
CJR17	Minister for Immigration and Border Protection & Anor (P59/2018)	Federal Court of Australia [2018] FCA 1627	Application Dismissed [2019] HCASL 29
Zaghloul	Woodside Energy Ltd & Ors (P65/2018)	Supreme Court of Western Australia (Court of Appeal) [2018] WASCA 191	Application Dismissed [2019] HCASL 30
CFX17	Minister for Immigration and Border Protection & Anor (S302/2018)	Federal Court of Australia [2018] FCA 1845	Application Dismissed [2019] HCASL 31
BML16	Minister for Home Affairs & Anor (S306/2018)	Federal Court of Australia [2018] FCA 1791	Application Dismissed [2019] HCASL 32
DVB16	Minister for Immigration and Border Protection & Anor (S314/2018)	Federal Court of Australia [2018] FCA 1682	Application Dismissed [2019] HCASL 33
SZVIP	Minister for Immigration and Border Protection & Anor (S318/2018)	Federal Court of Australia [2018] FCA 1730	Application Dismissed [2019] HCASL 34
SZWBS	Minister for Immigration and Border Protection & Anor (S320/2018)	Federal Court of Australia [2018] FCA 1779	Application Dismissed [2019] HCASL 35
FQH17	Minister for Immigration and Border Protection & Anor (S328/2018)	Federal Court of Australia [2018] FCA 1771	Application Dismissed [2019] HCASL 36
BDY16	Minister for Immigration, Citizenship and Multicultural Affairs & Anor (S332/2018)	Federal Court of Australia [2018] FCA 1881	Application Dismissed [2019] HCASL 37
DSD16	Minister for Immigration and Border Protection & Anor (S340/2018)	Federal Court of Australia [2018] FCA 1782	Application Dismissed [2019] HCASL 38
Foong	Ghaly (S341/2018)	Supreme Court of New South Wales (Court of Appeal) [2018] NSWCA 280	Applications Dismissed [2019] HCASL 39
Foong	Ghaly (S342/2018)	Supreme Court of New South Wales (Court of Appeal) [2018] NSWCA 280
Foong	Ghaly (S343/2018)	Supreme Court of New South Wales (Court of Appeal) [2018] NSWCA 280
Foong	McLellan (S344/2018)	Supreme Court of New South Wales (Court of Appeal) [2018] NSWCA 280
Foong	McLellan (S345/2018)	Supreme Court of New South Wales (Court of Appeal) [2018] NSWCA 280
Foong	McLellan (S346/2018)	Supreme Court of New South Wales (Court of Appeal) [2018] NSWCA 280
ANC18	Minister for Home Affairs & Anor (S356/2018)	Federal Court of Australia [2018] FCA 1878	Application Dismissed [2019] HCASL 40
AAY18	Minister for Home Affairs & Anor (S358/2018)	Federal Court of Australia [2018] FCA 1844	Application Dismissed [2019] HCASL 41
Suppiah	The Queen (A34/2018)	Supreme Court of South Australia (Court of Criminal Appeal) [2018] SASCFC 11	Application Dismissed [2019] HCASL 42
Mineralogy Pty Ltd	BGP Geoexplorer Pte Ltd (B53/2018)	Supreme Court of Queensland (Court of Appeal) [2018] QCA 256	Application Dismissed with costs [2019] HCASL 43
MSD Securities Pty Ltd & Ors	MFB Properties (NQ) Pty Ltd & Ors (B55/2018)	Supreme Court of Queensland (Court of Appeal) [2018] QCA 259	Application Dismissed with costs [2019] HCASL 44
Paul	Southern Cross Care (Tasmania) Incorporated (H5/2018)	Full Court of the Supreme Court of Tasmania [2018] TASFC 9	Applications Dismissed with costs [2019] HCASL 45
Gill	Southern Cross Care (Tasmania) Incorporated (H6/2018)	Full Court of the Supreme Court of Tasmania [2018] TASFC 9
Arnold	Southern Cross Care (Tasmania) Incorporated (H7/2018)	Full Court of the Supreme Court of Tasmania [2018] TASFC 9
Arnold	Southern Cross Care (Tasmania) Incorporated (H8/2018)	Full Court of the Supreme Court of Tasmania [2018] TASFC 9
Heath	Southern Cross Care (Tasmania) Incorporated (H9/2018)	Full Court of the Supreme Court of Tasmania [2018] TASFC 9
Singh	Minister for Immigration and Border Protection & Anor (M153/2018)	Federal Court of Australia [2018] FCA 1392	Application Dismissed with costs [2019] HCASL 46
Ram	Minister for Immigration and Border Protection (S206/2018)	Federal Court of Australia [2018] FCA 1068	Application Dismissed with costs [2019] HCASL 47
EDF17	Minister for Immigration and Border Protection & Anor (S277/2018)	Federal Court of Australia [2018] FCA 1528	Application Dismissed with costs [2019] HCASL 48
Asbestos Injuries Compensation Fund Limited as Trustee for the Asbestos Injuries Compensation Fund	Talifero (S282/2018)	Supreme Court of New South Wales (Court of Appeal) [2018] NSWCA 227	Application Dismissed with costs [2019] HCASL 49
In the matter of an application by Land Enviro Corp Pty Ltd for leave to appeal (S324/2018)		High Court of Australia	Application Dismissed [2019] HCASL 50

Applicant	Respondent		Court appealed from	Result
Towle	Secretary, Department of Social Services (A35/2018)		Full Court of the Federal Court of Australia [2018] FCAFC 171	Application Dismissed [2019] HCASL 51
Ashraf	Minister for Immigration and Border Protection & Anor (M180/2018)		Federal Court of Australia [2018] FCA 1825	Application Dismissed [2019] HCASL 52
In the matter of an application by Cindy Anne Taylor for leave to appeal (M181/2018)			High Court of Australia [2018] HCATrans 235	Application Dismissed [2019] HCASL 53
BXY16		Minister for Immigration and Border Protection & Anor (M182/2018)	Federal Court of Australia [2018] FCA 1778	Application Dismissed [2019] HCASL 54
DDG16		Minister for Immigration and Border Protection & Anor (M193/2018)	Federal Court of Australia [2018] FCA 1874	Application Dismissed [2019] HCASL 55
CNU16		Minister for Home Affairs & Anor (S305/2018)	Federal Court of Australia [2018] FCA 1662	Application Dismissed [2019] HCASL 56
DBY16		Minister for Immigration and Border Protection & Anor (S308/2018)	Federal Court of Australia [2018] FCA 1183	Application Dismissed [2019] HCASL 57
BGV15 & Ors		Minister for Home Affairs & Anor (S317/2018)	Federal Court of Australia [2018] FCA 1753	Application Dismissed [2019] HCASL 58
ARY16		Minister for Immigration and Border Protection & Anor (S319/2018)	Federal Court of Australia [2018] FCA 1768	Application Dismissed [2019] HCASL 59
BAQ16		Minister for Home Affairs & Anor (S325/2018)	Federal Court of Australia [2018] FCA 1772	Application Dismissed [2019] HCASL 60
CZT17		Minister for Home Affairs & Anor (S335/2018)	Federal Court of Australia [2018] FCA 1817	Application Dismissed [2019] HCASL 61
DTS16		Minister for Immigration and Border Protection & Anor (S337/2018)	Federal Court of Australia [2018] FCA 1845	Application Dismissed [2019] HCASL 62
Singh		Minister for Home Affairs & Anor (S338/2018)	Federal Court of Australia [2018] FCA 1835	Application Dismissed [2019] HCASL 63
Conomy		Maden (P3/2019)	Supreme Court of Western Australia (Court of Appeal) [2016] WASCA 30	Application Dismissed [2019] HCATrans 49 [2019] HCATrans 41
Conomy		Maden (P11/2019)	Supreme Court of Western Australia (Court of Appeal) [2016] WASCA 30	Application Dismissed [2019] HCATrans 49 [2019] HCATrans 41
AKT16		Minister for Home Affairs & Anor (M178/2018)	Federal Court of Australia [2018] FCA 1565	Application Dismissed [2019] HCASL 64
Singh		Minister for Immigration and Border Protection & Anor (M191/2018)	Federal Court of Australia [2018] FCA 1927	Application Dismissed [2019] HCASL 65
Santos		State of Western Australia (P55/2018)	Supreme Court of Western Australia (Court of Appeal) [2018] WASCA 164	Application Dismissed [2019] HCASL 66
Kilkenny		Kilkenny & Ors (P66/2018)	Supreme Court of Western Australia (Court of Appeal) [2018] WASCA 197	Application Dismissed [2019] HCASL 67
AKR17		Minister for Immigration and Border Protection & Anor (S303/2018)	Federal Court of Australia [2018] FCA 1684	Application Dismissed [2019] HCASL 68
Plaintiff S277/2017		Minister for Immigration and Border Protection & Ors (S309/2018)	High Court of Australia [2018] HCATrans 163	Application Dismissed [2019] HCASL 69
DYT16		Minister for Immigration and Border Protection & Anor (S312/2018)	Federal Court of Australia [2018] FCA 1808	Application Dismissed [2019] HCASL 70
AZO16		Minister for Home Affairs & Anor (S315/2018)	Federal Court of Australia [2018] FCA 1676	Application Dismissed [2019] HCASL 71
Griffiths		Minister for Immigration and Border Protection (S316/2018)	Federal Court of Australia [2018] FCA 629	Application Dismissed [2019] HCASL 72
EBC17		Minister for Immigration and Border Protection & Anor (S326/2018)	Federal Court of Australia [2018] FCA 1836	Application Dismissed [2019] HCASL 73
ANC16		Minister for Immigration and Border Protection & Anor (S329/2018)	Federal Court of Australia [2018] FCA 1831	Application Dismissed [2019] HCASL 74
EQS17		Minister for Home Affairs & Anor (S333/2018)	Federal Court of Australia [2018] FCA 1833	Application Dismissed [2019] HCASL 75
CPW15 & Anor		Minister for Immigration and Border Protection & Anor (S339/2018)	Federal Court of Australia [2018] FCA 1919	Application Dismissed [2019] HCASL 76
AOJ18		Minister for Home Affairs & Anor (S347/2018)	Full Court of the Federal Court of Australia [2018] FCAFC 220	Application Dismissed [2019] HCASL 77
AQP16		Minister for Immigration and Border Protection & Anor (S348/2018)	Federal Court of Australia [2018] FCA 1880	Application Dismissed [2019] HCASL 78
EYU17		Minister for Home Affairs & Anor (S349/2018)	Federal Court of Australia [2018] FCA 1837	Application Dismissed [2019] HCASL 79
He		Minister for Immigration and Border Protection & Anor (S353/2018)	Federal Court of Australia [2018] FCA 1846	Application Dismissed [2019] HCASL 80
Bilawal		Minister for Immigration, Citizenship and Multicultural Affairs & Anor (S357/2018)	Federal Court of Australia [2018] FCA 1920	Application Dismissed [2019] HCASL 81
The Mount Isa Irish Assoc Friendly Society Ltd		Mount Isa City Council (B51/2018)	Supreme Court of Queensland (Court of Appeal) [2018] QCA 222	Application Dismissed with costs [2019] HCASL 82
Linfox Australia Pty Ltd		O'Loughlin (M169/2018)	Full Court of the Federal Court of Australia [2018] FCAFC 173	Application Dismissed with costs [2019] HCASL 83
Egan		Minister for Immigration and Border Protection (S279/2018)	Full Court of the Federal Court of Australia [2018] FCAFC 169	Application Dismissed with costs [2019] HCASL 84
Whooten		Frost (Deceased) (M158/2018)	Full Court of the Family Court of Australia	Application Dismissed with costs [2019] HCASL 85
Snowy Monaro Regional Council		Tropic Asphalts Pty Ltd (S272/2018)	Supreme Court of New South Wales (Court of Criminal Appeal) [2018] NSWCCA 202	Application Dismissed with costs [2019] HCASL 86
Satyam Computer Services Limited (Now an Amalgamated Entity named Tech Mahindra Limited)		Commissioner of Taxation (S285/2018)	Full Court of the Federal Court of Australia [2018] FCAFC 172	Applications Dismissed with costs [2019] HCASL 87
Satyam Computer Services Limited (Now an Amalgamated Entity named Tech Mahindra Limited)		Commissioner of Taxation (S286/2018)	Full Court of the Federal Court of Australia [2018] FCAFC 172
Satyam Computer Services Limited (Now an Amalgamated Entity named Tech Mahindra Limited)		Commissioner of Taxation (S287/2018)	Full Court of the Federal Court of Australia [2018] FCAFC 172
Crickitt		The Queen (S292/2018)	Supreme Court of New South Wales (Court of Criminal Appeal) [2018] NSWCCA 240	Application Dismissed [2019] HCASL 88
Gresham Property Investments Limited		Global Consulting Services Pty Limited & Ors (S311/2018)	Supreme Court of New South Wales (Court of Appeal) [2018] NSWCA 255	Application Dismissed with costs [2019] HCASL 89

No.	Applicant	Respondent	Court appealed from	Results
	Hills Central Pty Ltd	Anthony Gerard Hagerty as Executor of the Estate of the late Gladys Delores Hagerty & Anor (S267/2018)	Supreme Court of New South Wales (Court of Appeal) [2018] NSWCA 200	Application dismissed with costs [2019] HCATrans 53
	Attorney General for New South Wales	XX (S268/2018)	Supreme Court of New South Wales (Court of Criminal Appeal) [2018] NSWCCA 198	Application dismissed [2019] HCATrans 52

Applicant	Respondent	Court appealed from	Results
Bodycorp Repairers Pty Ltd	Oakley Thompson & Co Pty Ltd (M144/2018)	Supreme Court of Victoria (Court of Appeal) [2018] VSCA 203	Application dismissed with costs [2019] HCATrans 55
Living and Leisure Australia Ltd	Commissioner of State Revenue (M157/2018)	Supreme Court of Victoria (Court of Appeal) [2018] VSCA 237	Application dismissed with costs [2019] HCATrans 56
Broadspectrum (Australia) Pty Ltd	United Voice & Ors (P49/2018)	Full Court of the Federal Court of Australia [2018] FCAFC 139	Application dismissed with costs [2019] HCATrans 57

Case	Title
Director of Public Prosecutions Reference No 1 of 2017	Criminal Law
Grajewski v Director of Public Prosecutions (NSW)	Criminal Law
OKS v Western Australia	Criminal Law
Northern Territory v Mr A Griffiths (deceased) and Lorraine Jones on behalf of the Ngaliwurru and Nungali Peoples; Commonwealth of Australia v Mr A Griffiths (deceased) and Lorraine Jones on behalf of the Ngaliwurru and Nungali Peoples; Mr A Griffiths (deceased) and Lorraine Jones on behalf of the Ngaliwurru and Nungali Peoples v Northern Territory	Native Title

High Court of Australia Bulletins