High Court of Australia Bulletin [2020] HCAB 2 (20 March 2020)

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 2020 sittings.

Aboriginals

State of Western Australia v Manado on behalf of the Bindunbur Native Title Claim Group & Ors; State of Western Australia v Augustine on behalf of the Jabirr Jabirr/Ngumbarl Native Title Claim Group & Ors; Commonwealth of Australia v Augustine on behalf of the Jabirr Jabirr/Ngumbarl Native Title Claim Group & Ors; Commonwealth of Australia v Manado on behalf of the Bindunbur Native Title Claim Group & Ors

Aboriginals – Native title to land and waters – Determinations of – Native title rights and interests – Where s 212(2) of Native Title Act 1993 (Cth) provided that Commonwealth, State or Territory may by legislation confirm existing public access to and enjoyment of beaches and other categories of lands or waters – Where Parliament of Western Australia enacted legislation confirming public access and enjoyment pursuant to s 212(2) – Where s 225(c) of Native Title Act required that determination of native title rights and interests include nature and extent of "any other interests" in relation to determination area – Where s 253 of Native Title Act defined "interest" as including any other right or privilege over or in connection with land or waters – Whether s 225(c) required determination of native title to include reference to confirmation – Whether access and enjoyment capable of confirmation limited to legally enforceable rights and privileges – Whether act of confirmation through legislation enacted in reliance on s 212(2) gave rise to "right" or "privilege" amounting to "other interest" in relation to determination area.

Words and phrases – "confirmation", "confirmed access and enjoyment", "determination area", "determination of native title", "general expectation of public access", "interest", "lack of legal prohibition", "land or waters", "liberty", "native title", "nature and extent of any other interests", "ordinary meaning", "other interest", "principle of public access", "privilege", "public access and enjoyment", "right", "unallocated Crown land".

Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) – s 14.

Corporations

Australian Securities and Investments Commission v King & Anor

Corporations – Officers – Meaning of "officer" of corporation – Where para (b)(ii) of definition in s 9 of Corporations Act 2001 (Cth) defined "officer" of corporation as person who had capacity to affect significantly corporation's financial standing – Where MFS Investment Management Pty Ltd ("MFSIM") responsible entity of registered managed investment scheme, Premium Income Fund ("PIF") – Where MFSIM entered into loan facility to be used solely for purposes of PIF – Where MFSIM drew down on loan facility to pay debts of other related companies in MFS Group – Where MFSIM secured no promise of repayment of funds to PIF – Where first respondent was Chief Executive Officer of parent company of MFS Group – Where first respondent acted as "overall boss" of MFS Group and assumed "overall responsibility" for MFSIM – Where first respondent approved and authorised disbursement of funds from loan facility knowing no benefit or consideration would pass to PIF – Where first respondent not director of MFSIM at relevant time – Where Australian Securities and Investments Commission alleged first respondent breached duties as officer of MFSIM in contravention of Corporations Act – Whether para (b)(ii) of definition of "officer" in Corporations Act requires person to have acted in recognised position within corporation with rights and duties attached to it – Whether first respondent "officer" of MFSIM.

Words and phrases – "capacity to affect significantly the corporation's financial standing", "chief executive officer", "corporate group", "de facto director", "financial standing", "managed investment scheme", "management of corporation", "misuse of funds", "named office", "office", "officer", "officer of a corporation", "recognised position".

Criminal Law

KMC v Director of Public Prosecutions (SA)

Criminal law – Sentence – Offence of persistent sexual exploitation of child – Where applicant convicted of persistent sexual exploitation of child contrary to s 50(1) of Criminal Law Consolidation Act 1935 (SA) ("CLCA") – Where Chiro v The Queen (2017) 260 CLR 425 handed down after sentencing – Where Chiro required sentencing judge to ask jury to identify underlying acts of sexual exploitation found proved or otherwise sentence on basis most favourable to offender – Where not known which alleged acts of sexual exploitation jury found had been proved beyond reasonable doubt – Where applicant not sentenced on basis of facts most favourable to applicant – Where s 9 of Statutes Amendment (Attorney-General's Portfolio) (No 2) Act 2017 (SA) ("Amending Act") provided that sentence imposed for offence against s 50 of CLCA not affected by error or otherwise manifestly excessive merely because, relevantly, sentencing court sentenced person having regard to acts of sexual exploitation it determined proved beyond reasonable doubt – Whether s 9(1) of Amending Act engaged – Whether sentencing remarks identified acts of sexual exploitation determined by sentencing court to have been proved beyond reasonable doubt.

Words and phrases – "acts of sexual exploitation", "extension of time", "facts most favourable", "persistent sexual exploitation of a child", "proved beyond a reasonable doubt", "sentence", "sentencing judge", "sentencing remarks", "underlying acts".

Statutes Amendment (Attorney –General's Portfolio) (No 2) Act 2017 (SA) – s 9.

Removed from Full Court of the Supreme Court of South Australia (Court of Criminal Appeal).

Strbak v The Queen

Criminal law – Sentence – Manslaughter – Where appellant pleaded guilty to manslaughter – Where hearing held to determine factual basis upon which appellant to be sentenced – Where acts comprising offence disputed – Where appellant failed to give evidence at sentencing hearing – Whether sentencing judge applied R v Miller [2004] 1 Qd R 548 – Whether sentencing judge drew adverse inferences from appellant's silence in making factual findings – Whether R v Miller [2004] 1 Qd R 548 wrongly decided – Whether sentencing judge permitted to more readily draw inferences adverse to appellant.

Words and phrases – "absence of contradictory evidence", "accusatorial proceeding", "adverse inference", "balance of probabilities", "beyond reasonable doubt", "burden of proof", "civil standard", "contested facts", "contradictory out of court statements", "criminal standard", "fact-finding", "failure to give evidence", "Jones v Dunkel inference", "plea of guilty", "presumption of innocence", "rare and exceptional circumstances", "right to silence", "sentencing hearing", "standard of proof".

Swan v The Queen

Criminal law – Murder – Causation – Where appellant's assault caused serious injury to victim – Where victim suffered severe deterioration in quality of life as a consequence of assault – Where victim later suffered fractured femur requiring surgery – Where decision made not to undergo possible life-saving surgery – Whether sufficient evidence for it to be open to jury to convict on basis that low quality of life resulting from assault caused decision not to undergo surgery – Whether appellant's conduct a "substantial or significant cause of death" – Whether appellant legally responsible for death.

Words and phrases – "but for", "causation", "legal responsibility", "murder", "substantial or significant", "sufficiently substantial".

The Queen v Guode

Criminal law – Sentence – Irrelevant consideration – Where respondent pleaded guilty to murder contrary to common law and to infanticide and attempted murder contrary to ss 6(1) and 321M of Crimes Act 1958 (Vic) respectively – Where primary judge sentenced respondent to 26 years and six months' imprisonment with non-parole period of 20 years – Where Court of Appeal allowed appeal against sentence and re-sentenced respondent to 18 years' imprisonment with non-parole period of 14 years – Where respondent's mental condition at time of offending called for application of principles stated in R v Verdins (2007) 16 VR 269 – Where element of offence of infanticide included disturbance of balance of mind – Where infanticide carried significantly shorter maximum penalty than offences of murder and attempted murder – Whether Court of Appeal erred by evaluating appropriateness of sentences imposed for murder and attempted murder in light of lesser maximum penalty for offence of infanticide.

Words and phrases – "acceptance of a plea", "attempted murder", "disturbance of mind", "impaired mental functioning", "infanticide", "irrelevant consideration", "manifestly excessive", "mental condition", "mitigating factors", "moral culpability", "murder", "sentencing", "sentencing considerations", "specific error", "Verdins considerations".

Income Tax

BHP Billiton Limited v Commissioner of Taxation

Income tax (Cth) – Assessable income – Controlled foreign companies – Where Pt X of Income Tax Assessment Act 1936 (Cth) ("Act") attributes income of controlled foreign company ("CFC") to Australian resident taxpayer who has sufficiently substantial interest in it – Where BHP Billiton Marketing AG ("BMAG") CFC of BHP Billiton Ltd ("Ltd") – Where income of BMAG derived from sale of commodities purchased by BMAG from BHP Billiton Plc's ("Plc") Australian entities – Where that income included in assessable income of Ltd if Plc's Australian entities "associates" of BMAG – Where company "associate" of entity under s 318(2) of Act if "sufficiently influenced" by entity – Where s 318(6)(b) provides that company "sufficiently influenced" by entity if accustomed or under obligation or might reasonably be expected to act in accordance with directions, instructions or wishes of entity – Where Ltd and Plc part of dual-listed company arrangement and operated as if "single unified economic entity" – Whether Plc's Australian entities "associates" of BMAG – Whether Ltd "sufficiently influenced" by Plc – Whether Plc "sufficiently influenced" by Ltd – Whether BMAG "sufficiently influenced" by Plc and Ltd.

Words and phrases – "assessable income", "associate", "attribute", "combined businesses", "controlled foreign company", "dual-listed", "effective control", "in accordance with the directions, instructions or wishes", "single unified economic entity", "sufficiently influenced", "tainted sales income".

Appealed from FCA (FC): [2019] FCAFC 4; (2019) 263 FCR 334; (2019) 366 ALR 206; (2019) 134 ACSR 550

Stamp Duties

Commissioner of State Revenue v Rojoda Pty Ltd

Stamp duties – Declaration of trust – Partnership – Dissolution – Partnership assets – Nature of partners' rights in relation to partnership assets – Where freehold titles to land held by two partners as joint tenants – Where other partners not registered title holders – Where partnerships dissolved but not wound up upon death of one partner holding titles – Where surviving partner declared trusts over freehold titles for benefit of other partners in proportion to partnership interests – Where Commissioner assessed declaration of trust as "dutiable transaction" within meaning of Duties Act 2008 (WA), s 11(1) – Whether partner holding freehold titles trustee for other partners – Whether declaration of trust by surviving partner holding freehold titles created new interests in land – Whether declaration of trust dutiable transaction.

Words and phrases – "beneficial interest", "conveyance", "declaration of trust", "dissolution", "dutiable transaction", "equitable interest", "non-specific interest", "partners' interest", "partnership property", "right to account and distribution", "transfer", "trust for partnership", "winding up".

3: CASES RESERVED

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

Administrative Law

Hocking v Director-General of the National Archives of Australia

Administrative law – Where access sought under Archives Act 1983 (Cth) to records, being correspondence (original or copies) received and sent by former Governor-General or Official Secretary to and from Queen – Whether correspondence is “Commonwealth record” within meaning of Act, or is excluded as personal or private – Whether records created or received in corresponding with Monarch in performance of office of Governor-General are property of Commonwealth or personal property of Governor-General.

Constitutional Law

Smethurst & Anor v Commissioner of Police & Anor

Constitutional law – Warrant – Validity of warrant – Form of relief – Implied freedom of political communication – Where members of Australian Federal Police executed search warrant issued under s 3E of Crimes Act 1914 (Cth) at residential premises of journalist – Where warrant specified contravention of s 79(3) of Act by journalist – Where order made under s 3LA of Act directed to journalist requiring information and assistance to be provided – Where plaintiffs seek to have warrant and s 3LA order quashed – Whether s 79(3), as it stood on 29 April 2018, invalid on ground that it infringed implied freedom of political communication in Constitution (Cth) – Whether warrant invalid because misstates substance of s 79(3), does not state offence with sufficient precision, and/or s 79(3) was invalid – Whether s 3LA order invalid.

Consumer Protection

Moore v Scenic Tours Pty Ltd

Consumer protection – Disappointment and distress damages – Where representative proceedings brought on behalf of passengers who paid for and travelled on European river cruises supplied by respondent – Where number of cruises seriously disrupted by high water levels on rivers – Where seeking compensation for loss of value and damages for disappointment and distress – Whether s 275 of Australian Consumer Law (“ACL”) operates to apply s 16 of Civil Liability Act 2002 (NSW) as Commonwealth law to direct court exercising federal jurisdiction in how to fix damages under s 267(4) of ACL for breach of statutory guarantees in ss 60 and 61 of ACL – Whether s 16 limited to cases where tort claim governed by NSW law or death or injury suffered in NSW – Whether claim under s 267(4) for damages for disappointment and distress constituted claim governed by s 16 – Whether Court of Appeal erred in finding that claim for damages under s 267(4) of ACL unrelated to bodily injury or psychiatric illness constituted claim for “personal injury” and “personal injury damages” and claim for “pain and suffering” or “loss of amenities of life” so as to be governed by s 16 of Civil Liability Act.

Appealed from NSWSC (CA): [2018] NSWCA 238; (2018) 339 FLR 244; (2018) 361 ALR 456

Criminal Law

Coughlan v The Queen

Criminal law – Unsafe and unsatisfactory verdict – Arson and attempted fraud – Circumstantial evidence –Where house exploded as applicant was walking from back yard – Whether Court of Appeal misapplied M v The Queen (1994) 181 CLR 487 by merely identifying pathway to jury’s guilty verdict rather than weighing matters militating against guilty verdict to determine whether jury should have had reasonable doubt as to applicant’s guilt.

Orders made on 12 February 2020 allowing the appeal and entering a verdict of acquittal. Written reasons of the Court to be published at a future date.

Pell v The Queen

Criminal law – Unreasonable verdicts – Where applicant convicted of sexual offences against two child complainants – Where Crown case relied on evidence of one complainant and the other complainant deceased – Whether Court of Appeal majority erred by finding that their belief in complainant required applicant to establish that offending was impossible to raise and leave reasonable doubt – Whether majority erred in concluding that verdicts not unreasonable as, in light of findings made by them, there remained reasonable doubt as to existence of any opportunity for offending to have occurred.

Pickett v The State of Western Australia; Mead v The State of Western Australia; Mead v The State of Western Australia; Anthony v The State of Western Australia; TSM (A Child) v The State of Western Australia

Criminal law – Derivative criminal liability – Where victim killed by stab wound to chest inflicted in course of attack by group of eight males – Where eight males ranged in age from 11 years to 29 years – Where State unable to prove beyond reasonable doubt which of them inflicted fatal stab wound – Where State did not prove that 11 year old had capacity under s 29 of Criminal Code (WA) – Whether appellants could be guilty by operation of ss 7(b), 7(c), or 8 of Criminal Code (WA) of offence founded upon act of 11 year old alleged co-offender when act of that child did not constitute offence because prosecution had not proved that child was criminally responsible for act.

Nguyen v The Queen; Singh v The Queen

Criminal law – Prosecutor’s duties regarding “mixed statement” records of interview containing both inculpatory and exculpatory material – Where Crown chose not to adduce applicant’s record of interview of 8 June 2017 – Whether Crown’s decision not to adduce record of interview deprived applicant of reasonable chance of acquittal – Whether prosecution ordinarily required by duty of fairness to tender “mixed statement” record of interview at trial of accused when it is admissible – Whether prosecution permitted to decline to tender “mixed statement” records of interview for purely tactical reasons.

D15/2019 appealed from NTSC (FC): [2019] NTSC 37; (2019) 345 FLR 40
D16/2019 appealed from NTSC (CCA): [2019] NTCCA 8; (2019) 344 FLR 137

Evidence

Commonwealth of Australia v Helicopter Resources Pty Ltd & Ors

Evidence – Admissions made with authority – Where coronial inquest commenced and summary criminal proceedings brought against company and Commonwealth of Australia – Where subpoena issued to company’s employee to give evidence at hearing in inquest, with proposed topics relating to matters required to be proved in criminal prosecution – Whether s 87(1)(b) of Evidence Act 2011 (ACT) has effect that, by reason of any answers given by employee, company is itself being compelled to provide that information – Whether s 87(1)(b) dictates that employee answers will be admitted into evidence in prosecution if adduced by prosecutor or co-accused – Whether s 87(1)(b) has effect that exercise of compulsory power with respect to employee will compromise protections afforded to accused company by accusatorial process – Whether accusatorial principle require accused company to be protected by precluding employees from being subject to such compulsory power or preventing prosecution or co-accused from learning how accused company may defend charge – Whether compulsory attendance of employee for questioning is inconsistent with accusatorial process.

Statutory Interpretation

Binsaris v Northern Territory of Australia; Webster v Northern Territory of Australia; O’Shea v Northern Territory of Australia; Austral v Northern Territory of Australia

Statutory interpretation – Power of superintendent of youth detention centre – Use of CS gas (form of tear gas) in youth detention centre – Where prison officers called upon to assist at youth detention centre – Where CS gas was deployed – Whether exemption in s 12(2) of Weapons Control Act (NT) applied to deployment of CS gas by prison officer at youth detention centre – Whether superintendent’s general power under s 152(1) of Youth Justice Act (NT) limited by s 153(3).

4: ORIGINAL JURISDICTION

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

Constitutional Law

Private R v Cowen & Anor

Constitutional law – Where member of defence forces charged with assault occasioning bodily harm pursuant to s 24 of Crimes Act 1900 (ACT) as purportedly applied to defence members and defence civilians by s 61(3) of Defence Force Discipline Act 1982 (Cth) – Where person charged objected to jurisdiction of Defence Force Magistrate to hear and determine charge on basis that prosecution could not reasonably be regarded as substantially serving purpose of maintaining or enforcing service discipline – Where objection to jurisdiction dismissed – Whether writ of prohibition should issue to prohibit Defence Force Magistrate from hearing and determining charge – Whether certain provisions of Defence Force Discipline Act 1982 (Cth), insofar as they purport to confer jurisdiction on “service tribunal” to hear and determine charge against “defence member” for offence against Crimes Act 1900 (ACT) solely on basis of person’s status as “defence member”, are beyond Commonwealth legislative power in circumstances where alleged offence committed in Australia but not on “service land” or “service property”, where persons involved were off duty, in time of peace and civil order, and where civil courts said to be reasonably available.

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.

Administrative Law

CXXXVIII v Commonwealth of Australia & Ors

Administrative law – Criminal investigation – Where summonses and notices to produce issued pursuant to determinations made by Board of Australian Criminal Intelligence Commission under Australian Crime Commission Act 2002 (Cth) (“Act”) – Whether first and second determinations validly made within scope of power in s 7C of Act – Whether second summons to appear before Examiner and second notice to produce validly issued pursuant to determinations – Whether second notice to attend and produce valid and not in excess of power in s 21A of Act – Whether Board of Commission can validly make determination which creates as a “special investigation” an “investigation” yet to be identified or undertaken.

Appealed from FCA (FC): [2019] FCAFC 54; (2019) 266 FCR 339; (2019) 366 ALR 436; (2019) 164 ALD 33

Northern Land Council & Anor v Quall & Anor

Administrative law – Delegation of statutory functions and powers –Administrative necessity – Statutory interpretation – Where proceedings at first instance challenged certification of application to register Kenbi Indigenous Land Use Agreement on ground that it had been done without “delegated authority” – Where Full Court held Pt 11 of Native Title Act 1993 (Cth) evinced intention that certification functions could not be delegated – Whether Northern Land Council had power to delegate its certification functions under s 203BE(1)(b) of Native Title Act 1993 (Cth) to its Chief Executive Officer.

Criminal Law

Cumberland v The Queen

Criminal law – Crown appeal – Re-sentencing – Where appellant pled guilty to six counts relating to selling cannabis and MDMA – Whether Court of Criminal Appeal (“CCA”) erred when re-sentencing in failing to take into account delay and its effect on appellant, submissions of prosecution at sentencing, appellant’s age and prospects of rehabilitation, and relevant developments since sentencing – Whether CCA erred in separately determining that appeal should be allowed when principles to be applied and circumstances applicable at time of any re-sentencing unknown – Whether CCA failed to accord appellant procedural fairness.

The Queen v Abdirahman-Khalif

Criminal law – Terrorism – Where respondent charged with offence of membership of terrorist organisation contrary to s 102.3(1) of Criminal Code (Cth) – Where respondent convicted at trial – Where respondent successfully appealed against conviction – Whether prosecution must adduce evidence of terrorist organisation’s admission practices in order to prove that accused person has taken steps to become member of that organisation – Whether majority of CCA erred in construing “organisation” for purposes of Div 102 of Criminal Code (Cth).

Employment Law

Mondelez Australia Pty Ltd v AMWU & Ors; Minister for Jobs and Industrial Relations v AMWU & Ors

Employment law – Where Mondelez operates food manufacturing plants – Where certain employees work in 12-hour shifts – Where entitlement to paid personal/carer’s leave under Enterprise Agreement – Where Mondelez deducts 12 hours from accrued paid personal/carer’s leave balance when such leave taken for single 12-hour shift – Whether majority of Full Court erred by holding that "day" in s 96(1) of Fair Work Act 2009 (Cth) means "the portion of a 24 hour period that would otherwise be allotted to work" rather than an average working day calculated as employee’s average daily ordinary hours of work based on standard five-day working week – Whether Full Court erred in construing s 96(1) as entitling national system employees (other than casuals) to paid personal/carer's leave equivalent to 10 ‘working’ days (of whatever duration would have been worked on day in question) per year of service.

Evidence

Roy v O’Neill

Evidence – Admissibility of evidence obtained in course of “pro-active” policing of compliance with Domestic Violence Order – Whether common law recognises implied license permitting all people, including police, to attend upon unobstructed private property as far as front door and to knock on front door for purpose of lawful communication, such licence only being excluded where attendee otherwise has unlawful purpose – How to ascertain existence and scope of any implied licence at common law in favour of person who attends on unobstructed private property only so far as front door – Nature of relationship between common law doctrines of implied licence and police powers to prevent breach of peace.

Family Law

Hsiao v Fazarri

Family law – Property proceedings – Order under s 79 of Family Law Act 1975 (Cth) – Where agreement between parties intended to apply to property settlement proceedings but does not fall within Pt VIIIA or Div 4 of Pt VIIIAB of Act – Whether circumstances in which additional 40% legal interest in property obtained and Deed of Gift were distractions in disposition of Full Court appeal – Whether admission of further evidence would have produced different result in Full Court and would not be against interests of justice – Whether trial judge failed to take Deed of Gift into account in making property settlement order – Whether finding of contributions failed to take into account legal interest in property prior to marriage.

Intellectual Property

Calidad Pty Ltd & Ors v Seiko Epson Corporation & Anor

Intellectual property – Patents – Implied licence – Where Calidad imports and sells printer cartridges modified by third party – Where Seiko Epson claims its two patents infringed by Calidad’s conduct – Whether Full Court erred in finding infringement – Whether modifications made to printer cartridges resulted in making of "new" printer cartridges embodying invention as claimed in claim 1 of each patent – Whether Full Court erred in failing to have regard to substance of invention claimed in claim 1 of each patent or to direct attention to whether modifications constituted material changes to claimed features of invention – Whether conduct was within scope of any implied licence arising upon unrestricted first sale by patentee of printer cartridges or otherwise involved permissible repair or modification of those printer cartridges – Whether patentee’s rights under s 13 of Patents Act 1990 (Cth) exhausted in respect of printer cartridges at time of first sale.

Appealed from FCA (FC): [2019] FCAFC 115; (2019) 370 ALR 563; (2019) 142 IPR 381

Migration Law

ABT17 v Minister for Immigration and Border Protection & Anor

Migration law – Protection visa – Where delegate accepted as plausible that applicant had been sexually tortured – Where such claim not accepted by Immigration Assessment Authority (“IAA”) –Whether IAA decision tainted by jurisdictional error due to failure to exercise discretion under s 473DC of Migration Act 1958 (Cth) to invite applicant to give new information in form of interview – Whether failure of IAA to exercise its s 473DC discretion was material to decision and constituted jurisdictional error.

Applicant S270/2019 v Minister for Immigration and Border Protection

Migration law – Non-refoulement – Where appellant’s visa was cancelled on character grounds pursuant to s 501(3A) of Migration Act 1958 (Cth) – Where appellant sought to have cancellation decision revoked pursuant to s 501CA(4) of Act – Whether Minister for Immigration and Border Protection, when determining whether to exercise power under s 501CA(4) to revoke decision to cancel visa made pursuant to s 501(3A), must consider whether person seeking revocation is owed non-refoulement obligations by Australia.

Minister for Home Affairs & Anor v FRX17 as Litigation Representative for FRM17; Minister for Home Affairs & Anor v Marie Theresa Arthur as Litigation Representative for BXD18; Minister for Home Affairs & Anor v DJA18 as Litigation Representative for DIZ18; Minister for Home Affairs & Ors v DLZ18 & Anor

Migration law – Regional processing – Jurisdiction of Federal Court of Australia – Where respondents commenced proceedings against Commonwealth – Where s 494AB of Migration Act 1958 (Cth) barred certain proceedings relating to “transitory persons” from being instituted or continued in any court other than High Court – Whether proceedings were, for purposes of s 494AB(1)(ca), proceedings “relating to the performance or exercise of a function” under s 198AHA(2) in relation to a transitory person – Whether proceedings were, for purposes of s 494AB(1)(a), proceedings relating to exercise of powers under s 198B of Act – Whether proceedings were, for purposes of s 494AB(1)(d), proceedings relating to removal of a transitory person from Australia under the Act.

Minister for Immigration and Border Protection v CED16 & Anor

Migration law – Protection visa – Where first respondent’s application for Safe Haven Enterprise Visa (Class XE Subclass 790) refused and Minister for Immigration and Border Protection (“Minister”) purported to certify that disclosure of information in Identity Assessment Form could form basis for claim of Public Interest Immunity by Crown – Whether certificate issued by Minister purportedly pursuant to s 473GB(5) of Migration Act 1958 (Cth) comprised ‘new information’ as defined in s 473DC(1) of Act – Whether Immigration Assessment Authority (“IAA”) was required to turn its mind, or show that it had turned its mind, to whether it was required to give particulars of information in certificate itself to first respondent pursuant to s 473DE(1) of Act.

Private International Law

Mackellar Mining Equipment Pty Ltd and Dramatic Investments Pty Ltd t/as Partnership 818 & Anor v Thornton & Ors

Private international law – Restraint of foreign proceedings – Where plane crash in Queensland killed two pilots and 13 passengers – Where respondents, relatives of deceased, commenced proceedings against appellants in Missouri in May 2008 – Where appellants brought application in March 2017 in Queensland Supreme Court for permanent anti-suit injunction in respect of Missouri proceedings – Whether complete relief was available in Queensland proceedings and nothing additional could be gained in Missouri proceedings – Whether continuation of Missouri proceeding, after all foreign parties removed, was vexatious or oppressive or otherwise unconscionable within CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345.

Real Property

Deguisa & Anor v Lynn & Ors

Real property – Torrens title – Restrictive covenants – Where appellants registered proprietors of Lot 3 and have planning development approval to demolish house on Lot 3, subdivide lot, and build two single story dwellings – Where respondents executors of estate of Mrs Fielder who was party to original Memorandum of Encumbrance containing restrictive covenants subject of proceedings – Where third respondent owns two properties near Lot 3 – Where respondents contended that Lot 3 and 53 other lots were created from earlier subdivision and sold in accordance with building scheme such that restrictive covenants are enforceable to prevent appellants from developing Lot 3 as they wish to – Whether there exists “governing principle” to effect that what is “notified” to prospective purchaser by vendor’s certificate of title is everything that would have come to their knowledge if prudent conveyancer had made such searches as ought reasonably to have been made based on what appears on certificate of title – Whether approach taken by majority of Full Court of Supreme Court of South Australia in decision under appeal to ascertaining whether subsequent purchaser of Torrens system land is bound by restrictive covenant conflicts with approach taken in Burke v Yurilla (1991) 56 SASR 382 – Whether purchaser of land under Torrens system obliged to search other titles for evidence of land being subject of building scheme if note is made on encumbrance form that the “encumbrance forms portion of a common building scheme” but where land or lots involved in building scheme not indicated.

Torts

Lewis v The Australian Capital Territory

Torts – False imprisonment – Compensatory damages – Vindicatory damages – Principle of inevitability – Where offender sentenced to 12 months’ imprisonment to be served by periodic detention – Where Sentence Administration Board (“Board”) cancelled periodic detention without giving offender opportunity to decide whether to attend before Board – Where offender arrested and imprisoned for 82 days – Where Board’s decision a nullity and imprisonment held to be unlawful – Where offender awarded nominal damages of $1 – Whether offender would have been lawfully imprisoned if had not been unlawfully imprisoned and therefore not entitled to substantial compensatory damages – Whether entitled to vindicatory damages.

State of Queensland v The Estate of the Late Jennifer Leanne Masson

Torts – Negligence – Where appellant suffered severe asthma attack – Where ambulance officer treated appellant initially with salbutamol and later with adrenaline – Where appellant suffered hypoxic brain damage and died without regaining consciousness 13 years later – Where ambulance officer’s manual instructed officer to “consider adrenaline”, not salbutamol – Whether Court of Appeal erred in overturning trial judge’s conclusions that ambulance officer had considered administration of adrenaline in accordance with manual, and that responsible body of opinion in medical profession supported administration of salbutamol – Whether Court of Appeal erred in holding that ambulance officer immediately rejected use of adrenaline because he misunderstood guideline, and that following responsible body of medical opinion would nonetheless involve failure to take reasonable care because manual referred to adrenaline.

Trade Practices

Berry & Anor v CCL Secure Pty Ltd

Trade practices – Misleading and deceptive conduct and fraud – Measuring damages – Where misleading, deceptive and fraudulent conduct used to obtain signature terminating Agency Agreement – Whether damages to be assessed pursuant to s 82 of Trade Practices Act 1974 (Cth) – Whether person guilty of misleading and deceptive conduct and fraud cannot be heard to say that lawful means were available for inflicting same harm – Whether, for purposes of reducing damages, respondent failed to discharge onus of proving possibility or probability of lawful means being used to end Agency Agreement.

7: CASES NOT PROCEEDING OR VACATED

8: SPECIAL LEAVE REFUSED

Applicant	Respondent	Court appealed from	Result
Ferdinands	Police (A36/2019)	Supreme Court of South Australia	Application dismissed [2020] HCASL 40
Pivovarova	Peter B. Michelsen trading as Peter Michelsen Building Service (B69/2019)	Supreme Court of Queensland (Court of Appeal) [2019] QCA 256	Application dismissed [2020] HCASL 41
EGA17	Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor (D20/2019)	Federal Court of Australia [2019] FCA 1298	Application dismissed [2020] HCASL 42
Ross	Commonwealth of Australia (M156/2019)	Supreme Court of Victoria [2018] VSC 766	Application dismissed [2020] HCASL 43
Tomcsanyi & Anor	National Australia Bank Limited (P61/2019)	Supreme Court of Western Australia (Court of Appeal) [2019] WASCA 192	Application dismissed [2020] HCASL 44
Mao	AMP Superannuation Limited & Anor (S242/2019)	Removal	Applications dismissed with costs [2020] HCASL 45
Mao	BT Funds Management Limited & Anor (S243/2019)	Removal
French	Provident Capital Limited (Receivers and Managers Appointed) (in Liquidation) & Anor (S303/2019)	Removal	Application dismissed with costs [2020] HCASL 46
CMF16	Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor (S331/2019)	Federal Court of Australia [2019] FCA 1860	Application dismissed [2020] HCASL 47
BGX16	Minister for Home Affairs & Anor (S336/2019)	Federal Court of Australia [2019] FCA 1896	Application dismissed [2020] HCASL 48
CPV18	Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor (S340/2019)	Federal Court of Australia [2019] FCA 1957	Application dismissed [2020] HCASL 49
South Australian Employers' Chamber of Commerce and Industry Incorporated	Commissioner of State Taxation (A32/2019)	Full Court of the Supreme Court of South Australia [2019] SASCFC 125	Application dismissed with costs [2020] HCASL 50
The State of South Australia	Holder (A35/2019)	Full Court of the Supreme Court of South Australia [2019] SASCFC 135	Application dismissed with costs [2020] HCASL 51
Buzadzic	Deputy Commissioner of Taxation (M144/2019)	Supreme Court of Victoria (Court of Appeal) [2019] VSCA 221	Applications dismissed with costs [2020] HCASL 52
Buzadzic	Deputy Commissioner of Taxation (M145/2019)	Supreme Court of Victoria (Court of Appeal) [2019] VSCA 221
Manage	Minister for Immigration and Border Protection & Anor (M154/2019)	Federal Court of Australia [2019] FCA 1891	Application dismissed with costs [2020] HCASL 53
Ammon	Colonial Leisure Group Pty Ltd (P56/2019)	Supreme Court of Western Australia (Court of Appeal) [2019] WASCA158	Application dismissed with costs [2020] HCASL 54
Hana	Mekhail (S312/2019)	Supreme Court of New South Wales (Court of Appeal) [2019] NSWCA 197	Applications dismissed with costs [2020] HCASL 55
Hana	Mekail (S313/2019)	Supreme Court of New South Wales (Court of Appeal) [2019] NSWCA 197
Karout	The Queen (S324/2019)	Supreme Court of New South Wales (Court of Criminal Appeal) [2019] NSWCCA 253	Application dismissed [2020] HCASL 56

Applicant	Respondent	Court appealed from	Result
Craven	Commercial & Process Services Australia Pty Ltd & Anor (B62/2019)	Supreme Court of Queensland (Court of Appeal) [2019] QCA 235	Application dismissed [2020] HCASL 57
AAY17	Minister for Immigration and Border Protection & Anor (B71/2019)	Federal Court of Australia [2019] FCA 2017	Application dismissed [2020] HCASL 58
DZZ18	Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor (B72/2019)	Federal Court of Australia [2019] FCA 2016	Application dismissed [2020] HCASL 59
Davis	Terry Ryan (State Coroner) (B75/2019)	Supreme Court of Queensland (Court of Appeal) [2019] QCA 282	Application dismissed [2020] HCASL 60
In the matter of an application by John Mulholland for leave to appeal (M158/2019)		High Court of Australia [2019] HCATrans 221	Application dismissed [2020] HCASL 61
Vok	Director of Public Prosecutions (NSW) - Sydney & Anor (S327/2019)	Supreme Court of New South Wales (Court of Appeal) [2019] NSWCA 242	Application dismissed [2020] HCASL 62
BAQ17 & Ors	Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor (S333/2019)	Federal Court of Australia [2019] FCA 1847	Application dismissed [2020] HCASL 63
DHQ17	Minister for Immigration and Border Protection & Anor (S338/2019)	Federal Court of Australia [2019] FCA 1975	Application dismissed [2020] HCASL 64
ASO18	Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor (S342/2019)	Federal Court of Australia [2019] FCA 1909	Application dismissed [2020] HCASL 65
Sanjel	Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor (S345/2019)	Federal Court of Australia [2019] FCA 1966	Application dismissed [2020] HCASL 66
Hassan	Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor (S346/2019)	Federal Court of Australia [2019] FCA 2014	Application dismissed [2020] HCASL 67
Barua & Ors	Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor (B73/2019)	Federal Court of Australia [2019] FCA 1946	Application dismissed [2020] HCASL 68
COK18	Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor (D22/2019)	Federal Court of Australia [2019] FCA 2142	Application dismissed [2020] HCASL 69
BMG17	Minister for Immigration and Border Protection & Anor (M106/2019)	Federal Court of Australia [2019] FCA 1281	Application dismissed [2020] HCASL 70
BXH16	Minister for Home Affairs & Anor (M117/2019)	Federal Court of Australia [2019] FCA 1388	Application dismissed [2020] HCASL 71
Gomez	Carrafa (M153/2019)	Federal Court of Australia [2019] FCA 1793	Application dismissed [2020] HCASL 72
Frugtniet	Tax Practitioners Board & Anor (M155/2019)	Federal Court of Australia (Full Court) [2019] FCAFC 193	Application dismissed [2020] HCASL 73
ABX17	Minister for Immigration, Citizenship and Multicultural Affairs & Anor (P60/2019)	Federal Court of Australia [2019] FCA 1941	Application dismissed [2020] HCASL 74
CLN15 & Anor	Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor (S332/2019)	Federal Court of Australia [2019] FCA 1854	Application dismissed [2020] HCASL 75
ATT17 & Ors	Minister for Immigration and Border Protection & Anor (S335/2019)	Federal Court of Australia [2019] FCA 1821	Application dismissed [2020] HCASL 76
Prescott	Finley & Anor (S337/2019)	Family Court of Australia	Application dismissed [2020] HCASL 77
CJS17	Minister for Immigration and Border Protection & Anor (S339/2019)	Federal Court of Australia [2019] FCA 1870	Application dismissed [2020] HCASL 78
DKF17	Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor (S343/2019)	Federal Court of Australia [2019] FCA 1963	Application dismissed [2020] HCASL 79
Anderson	Commissioner of Highways (A29/2019)	Supreme Court of South Australia (Full Court) [2019] SASCFC 119	Application dismissed with costs [2020] HCASL 80
New Standard Energy Pel 570 Pty Ltd & Anor	Outback Energy Hunter Pty Ltd & Anor (A34/2019)	Supreme Court of South Australia (Full Court) [2019] SASCF 132	Application dismissed with costs [2020] HCASL 81
Savage	The Queen (B58/2019)	Supreme Court of Queensland (Court of Appeal) [2017] QCA 139	Application dismissed [2020] HCASL 82
GGD18 & Ors	Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor (M129/2019)	Federal Court of Australia [2019] FCA 1463	Application dismissed with costs [2020] HCASL 83
JH	The Queen (S314/2019)	Supreme Court of New South Wales (Court of Criminal Appeal) [2017] NSWCCA 22	Application dismissed [2020] HCASL 84
Bant	Clayton (S330/2019)	Family Court of Australia (Full Court)	Application dismissed with costs [2020] HCASL 85
Commonwealth of Australia	Saadat & Ors (A31/2019)	Supreme Court of South Australia (Full Court) [2019] SASCFC 124	Application dismissed with costs [2020] HCASL 86
TPSC Pty Ltd	Kingston City Council & Ors (M136/2019)	Supreme Court of Victoria (Court of Appeal) [2019] VSCA 204	Application dismissed with costs [2020] HCASL 87
Kheir	Neil Robertson (As Delegate to the Secretary to the Department of Justice and Regulation) & Ors (M147/2019)	Supreme Court of Victoria (Court of Appeal) [2019] VSCA 229	Application dismissed with costs [2020] HCASL 88
Roach	The Queen (S308/2019)	Supreme Court of New South Wales (Court of Criminal Appeal) [2019] NSWCCA 160	Application dismissed [2020] HCASL 89
AAI Limited trading as GIO	Kabic & Anor (S320/2019)	Supreme Court of New South Wales (Court of Appeal) [2019] NSWCA 247	Application dismissed with costs [2020] HCASL 90

No.	Applicant	Respondent	Court appealed from	Results
	UQ	The Queen (C13/2019)	Supreme Court of the Australian Capital Territory (Court of Appeal) [2019] ACTCA 23	Application dismissed [2020] HCATrans 42
	Globaltech Corporation Pty Ltd & Anor	Australian Mud Company Pty Ltd & Anor (S302/2019)	Federal Court of Australia (Full Court) [2019] FCAFC 162	Application refused with costs [2020] HCATrans 45

No.	Applicant	Respondent	Court appealed from	Results
	DCP16	Minister for Immigration and Border Protection & Anor (M80/2019)	Federal Court of Australia (Full Court) [2019] FCAFC 91	Application dismissed [2020] HCATrans 41
	AIU16	Minister for Immigration and Border Protection & Anor (M133/2019)	Federal Court of Australia [2019] FCA 1493	Application dismissed with costs [2020] HCATrans 40

Case	Title
State of Western Australia v Manado on behalf of the Bindunbur Native Title Claim Group & Ors; State of Western Australia v Augustine on behalf of the Jabirr Jabirr/Ngumbarl Native Title Claim Group & Ors; Commonwealth of Australia v Augustine on behalf of the Jabirr Jabirr/Ngumbarl Native Title Claim Group & Ors; Commonwealth of Australia v Manado on behalf of the Bindunbur Native Title Claim Group & Ors	Aboriginals
Australian Securities and Investments Commission v King & Anor	Corporations
KMC v Director of Public Prosecutions (SA)	Criminal Law
Strbak v The Queen	Criminal Law
Swan v The Queen	Criminal Law
The Queen v Guode	Criminal Law
BHP Billiton Limited v Commissioner of Taxation	Income Tax
Commissioner of State Revenue v Rojoda Pty Ltd	Stamp Duties

High Court of Australia Bulletins