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High Court of Australia Bulletin [2009] HCAB 6 (19 August 2009)

Last Updated: 27 August 2009

HIGH COURT BULLETIN

Produced by the High Court of Australia Library

[2009] HCAB 6 (19 August 2009)

A record of recent High Court of Australia cases: decided, reserved for judgment, awaiting hearing in the Court’s original jurisdiction, granted special leave to appeal, and refused special leave to appeal.

1: CASES HANDED DOWN

The following cases were handed down by the High Court of Australia during the July–August 2009 sittings.

ACQ Pty Ltd v Cook & Anor; Aircair Moree Pty Ltd v Cook & Anor

High Court of Australia: [2009] HCA 28.

Judgment delivered: 5 August 2009.

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

Catchwords:

Torts — Negligence — Causation — Statutory modification — Crop dusting aircraft struck an electrical power pole, causing an electrical wire conductor to sag to 1.5m above the ground — Conductor lay over a muddy field planted with rows of cotton plants between irrigation ditches — Two electrical linesmen were dispatched to fix the conductor — While the conductor was still live, one linesman approached the conductor, and tripped or fell to within 60mm of the conductor, causing “flashover” (an unintended electric arc between a conductor and another object) — Whether injury was “caused by ... something that is a result of an impact” with an aircraft that is in flight: Damage by Aircraft Act 1999 (Cth), s 10(1)(d).

Torts — Negligence — Duty of care — Scope of — Whether pilot of crop-dusting aircraft owed a duty of care to electrical linesman — Whether linesman was a “rescuer” for the purposes of assessing duty of care.

Appealed from NSW SC (CA): [2008] NSWCA 161.

AON Risk Services Australia Ltd v Australian National University

High Court of Australia: [2009] HCA 27.

Judgment delivered: 5 August 2009.

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

Catchwords:

Practice and procedure — Pleadings — Application for leave to amend — Prejudice — Leave to amend sought after commencement of trial — Whether opponent must demonstrate specific prejudice caused by the amendments that cannot be met by a costs order — Application of Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146 (“J L Holdings”) — Whether J L Holdings has been properly interpreted — Court Procedure Rules 2006 (ACT), r 21.

Practice and procedure — Pleadings — Application for leave to amend — Prejudice — Respondent made deliberate tactical decision to exclude an issue from proceedings — Whether right to amendment to reverse deliberate forensic decision.

Practice and procedure — Pleadings — Application for leave to amend — Discretion to grant — Whether party is required to offer explanation when seeking to amend pleadings — Application of J L Holdings.

Courts and judicial system — Abuse of process — Respondent seeks to maintain claims directly inconsistent with the consent judgment obtained against insurer defendant — Whether amendment to include inconsistent claim would amount to an abuse of process.

Appealed from ACT SC (CA): [2008] ACTCA 13.

Bakewell v The Queen

High Court of Australia: [2009] HCA 24.

Judgment delivered: 7 July 2009.

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

Catchwords:

Criminal law — Punishment — Appellant sentenced in 1989 to mandatory life imprisonment for murder — Sentencing (Crime of Murder) and Parole Reform Act 2003 (NT), s 18(a) deemed sentence to include 20 year non-parole period — Section 19 provided Supreme Court of the Northern Territory may or, in certain circumstances, must revoke deemed non-parole period and fix longer period or no period on application of Director of Public Prosecutions — Appellant transferred to South Australia before Director made application for longer non-parole period — Upon transfer, Northern Territory sentence ceased to have effect but same sentence deemed to have been imposed by South Australian court — Whether Supreme Court of Northern Territory may determine application — Whether appellant “prisoner” within meaning of Act.

Criminal law — Transfer of prisoners — Interaction of Prisoners (Interstate Transfer) Act 1982 (SA) and Prisoners (Interstate Transfer) Act (NT) — Whether application to Supreme Court of the Northern Territory was for “review” of sentence or minimum term.

Words and phrases — “prisoner”, “review”.

Appealed from NT SC: [2008] NTSC 51.

Campbell & Anor v Backoffice Investments Pty Ltd & Anor

High Court of Australia: [2009] HCA 25.

Judgment delivered: 29 July 2009.

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

Catchwords:

Trade Practices — Misleading or deceptive conduct — Where vendor of share in company provided documents prior to making of share sale agreement that did not accurately state company's past financial performance, failed to correct some estimates of company's expected performance when vendor knew or ought reasonably to have known, prior to making of agreement, that estimated performance not achieved, and incorporated some statements of financial performance in share sale agreement with various warranties as to their accuracy — Whether conduct misleading or deceptive — Whether representations pleaded actually made — Relevance of whole course of conduct between parties — Relevance of character of some statements as estimates.

Trade Practices — Misleading or deceptive conduct — Whether purchaser suffered loss or damage “by conduct of” vendor — Causation and reliance — General principles — Relevance of contractual warranty by purchaser that purchaser had not relied on warranties other than those given in agreement.

Corporations — Oppression — Where Corporations Act 2001 (Cth), s 233(1) empowered court, if one or more grounds set out in s 232 satisfied, to make any order it considered appropriate in relation to company, including order for purchase of any shares by any member — Where grounds in s 232 included circumstance that conduct of company's affairs “oppressive to, unfairly prejudicial to, or unfairly discriminatory against, a member or members whether in that capacity of in any other capacity” — Whether vendor's conduct “oppressive to, unfairly prejudicial to, or unfairly discriminatory against”, purchaser — Relevance of circumstance that conduct not continuing at time order made — Whether order for repurchase of share in company could or should be made in circumstances where, at time of making order, provisional liquidator had sold business and assets of company, proceeds had been disbursed and shares in company were worthless.

Contracts — Breach of warranties — Whether vendor breached warranties in share sale agreement.

Contracts — Implied terms — Implied duty to co-operate — Scope of duty contended for.

Words and phrases — “by conduct of another person”, “oppressive to, unfairly prejudicial to, or unfairly discriminatory against, a member”.

Appealed from NSW CA: [2008] NSWCA 95; (2008) 66 ACSR 359; (2008) 26 ACLC 537.

Pape v Commissioner of Taxation

High Court of Australia: [2009] HCA 23.

Reasons handed down: 7 July 2009.

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

Catchwords:

Constitutional law — Standing — Section 7 of the Tax Bonus for Working Australians Act (No 2) 2009 (Cth) (“the Act”) provides that the Commissioner of Taxation must pay a tax bonus to entitled persons — Persons entitled under s 5 of Act if, inter alia, an individual, Australian resident with an adjusted tax liability greater than nil and not exceeding $100,000 for 2007-08 income tax year — Whether person entitled under s 5 of Act has standing to bring action for declarations and injunction.

Constitutional law — Appropriations of moneys from the Consolidated Revenue Fund — Whether payment of tax bonus supported by valid appropriation under ss 81 and 83 of Constitution — Whether appropriation “for the purposes of the Commonwealth” under s 81 — Whether phrase “for the purposes of the Commonwealth” limits legislative power — Whether source of legislative “power to spend” is ss 81 and 51(xxxix).

Constitutional law — Powers of the Commonwealth Parliament — Whether Act law with respect to trade and commerce under s 51(i) — Whether Act law with respect to taxation under s 51(ii) — Whether Act law with respect to external affairs under s 51(xxix) — Whether Act supported by implied nationhood power — Whether Act supported by power conferred by ss 81 and 51(xxxix) — Whether Act supported by power conferred by ss 61 and 51(xxxix) — If Act beyond power, whether Act can be read down so as to be within power.

Constitutional law — Executive power of the Commonwealth — Global financial and economic crisis — Whether Act supported by ss 61 and 51(xxxix).

Constitutional law — Taxation power — Persons entitled under s 5 of Act included persons entitled to tax bonus greater than their adjusted tax liability for the 2007-08 financial year — Whether Act law with respect to taxation.

Words and phrases — “appropriation”, “for the purposes of the Commonwealth”, “made by law” and “maintenance of this Constitution”.

This matter was brought in the original jurisdiction of the High Court.

Vale v Sutherland

High Court of Australia: [2009] HCA 26.

Judgment delivered: 29 July 2009.

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

Catchwords:

Bankruptcy — Notice — Official Receiver issued notice under s 139ZQ of the Bankruptcy Act 1966 (Cth) (“the Act”) asserting certain property transactions void under s 120 of the Act — Notice asserted market value of properties at time of transfer — Failure to comply with notice may result in criminal sanctions under s 139ZT of the Act — Whether notice should be set aside under s 30 or s 139ZS if value stated incorrect.

Bankruptcy — Notice — Whether value in s 139ZQ of the Act value at time of transfer or when notice given.

Practice and procedure — Pleadings — Whether correctness of value traversed in defence or cross-claim — Effect of failure to make specific denial or specific non-admission in pleadings where trial conducted on basis that correctness of value was in issue.

Words and phrases — “valuation”, “value “.

Appealed from FCA FC: [2008] FCAFC 148; (2008) 170 FCR 112.

2: CASES RESERVED

The following cases have been reserved for judgment by the High Court of Australia.

**** Indicates cases reserved for judgment since High Court Bulletin 5 [2009] HCAB 5.

Administrative Law

****Minister for Immigration and Citizenship v SZIAI & Anor

S37/2009: [2009] HCATrans 165.

Date heard: 28 July 2009 — Judgment reserved.

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

Catchwords:

Administrative law — Jurisdictional error — Wednesbury unreasonableness — Duty to inquire — Extent of — Certificates submitted by person applying for a protection visa alleged by a third party to be “fake & forged” — Refugee Review Tribunal (“the Tribunal”) invited person to respond to allegation but failed to make any further inquiries as to veracity of allegation — Whether the Tribunal is under a duty to inquire — Whether the Tribunal failed to meet its duty to inquire — Whether the Tribunal’s error is a jurisdictional error.

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

Minister for Immigration and Citizenship v SZIZO & Ors

S568/2008: [2009] HCATrans 71.

Date heard: 23 April 2009 — Judgment reserved.

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

Catchwords:

Administrative law — Jurisdictional error — Procedural fairness — Invitation to attend hearing addressed and sent to Appellant but not authorised recipient — Appellant and authorised recipient living at same address — Appellant subsequently attending hearing and calling witnesses — Whether breach of statutory procedural requirement to notify authorised recipient constitutes jurisdictional error — Migration Act 1958 (Cth), s 441G.

Administrative law — Discretionary relief — Procedural fairness — Whether no practical unfairness followed from breach of statutory procedural requirement — Whether absence of practical unfairness is a matter that should be considered when determining whether or not to refuse relief on discretionary grounds.

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

Minister for Immigration and Citizenship v SZLFX & Anor; Minister for Immigration and Citizenship v SZKTI & Anor

S503/2008; S515/2008: [2009] HCATrans 102.

Date heard: 19 May 2009 — Judgment reserved.

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

Catchwords:

Administrative law — Jurisdictional error — Refugee Review Tribunal (“the Tribunal”) sought information from a person by telephone — Section 424(1) of the Migration Act 1958 (Cth) (“the Act”) authorises the Tribunal to get any information it considers relevant, and s 424(2) authorises the Tribunal to invite a person to give “additional information” — Sections 424(3) and 424B of the Act set out formal requirements for invitation — Whether all requests by the Tribunal for information on a voluntary basis fall within s 424(2) of the Act — Whether failure to comply with ss 424(2), 424(3) and 424B of the Act amounts to jurisdictional error — Migration Act 1958 (Cth), ss 424(1), 424(2), 424(3), 424B.

Appealed from FCA FC: [2008] FCAFC 125.

Constitutional Law

Clarke v Commissioner of Taxation & Anor

A35/2008: [2009] HCATrans 41; [2009] HCATrans 42; [2009] HCATrans 43.

Date heard: 10–12 March 2009 — Judgment reserved.

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

Catchwords:

Constitutional law — Intergovernmental immunities — Melbourne Corporation doctrine — Superannuation scheme — State of South Australia amended legislation concerning commutation of superannuation for State parliamentarians to address financial implications brought about by Commonwealth taxation legislation — Whether Commonwealth legislation amounts to an impermissible interference with the capacity of States to function as governments — Whether State required to show it was “compelled” to change legislation — Application of Austin v Commonwealth (2003) 215 CLR 185 — Melbourne Corporation v Commonwealth (1947) 74 CLR 31.

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

International Finance Trust Company Ltd & Anor v New South Wales Crime Commission & Ors

S72/2009: [2009] HCATrans 107; [2009] HCATrans 108.

Date heard: 26–27 May 2009 — Judgment reserved.

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

Catchwords:

Constitutional law — Chapter III — Kable doctrine — Section 10(2) of the Criminal Assets Recovery Act 1990 (NSW) (“the Act”) permits the NSW Crime Commission to apply to the NSW Supreme Court (“the Court”) ex parte for a restraining order in respect of “property of a person suspected of having engaged in a serious crime related activity” — Under s 10(3), the Court “must make the order applied for” if supported by an affidavit of an authorised officer stating that the officer “suspects that the person has engaged in a serious crime related activity” and “the Court considers that having regard to the matters contained in any such affidavit there are reasonable grounds for any such suspicion” — Section 22 requires the Court, upon application by the NSW Crime Commission, to make an assets forfeiture order if the Court finds it to be more probable than not that the person has engaged in a “serious crime related activity” — Ex parte restraining orders were made with respect to numerous bank accounts — Whether s 10(3) directs the Court as to the manner and outcome of the exercise of its jurisdiction — Whether s 10(3) is invalid as being an ancillary component to a statutory scheme involving the forfeiture of property in circumstances where there has not been a criminal finding of guilt — Whether s 10(3) is incompatible with or repugnant to the exercise by the Court of the judicial power of the Commonwealth invested by Ch III of the Constitution — Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51.

Appealed from NSW SC (CA): [2008] NSWCA 291; (2008) 251 ALR 479.

Lane v Morrison & Anor

C3/2008: [2009] HCATrans 69; [2009] HCATrans 70.

Date heard: 22–23 April 2009 — Judgment reserved.

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

Catchwords:

Constitutional law — Military courts — Command of naval and military forces — Independence from — Plaintiff, a member of the Australian Defence Force (“the ADF”), was charged under ss 25 and 61(3) of the Defence Force Discipline Act 1982 (Cth) (“the Act”) for assaulting a superior officer and for an indecent act — Charges were listed for hearing before the Australian Military Court (“the AMC”) established by s 114 of the Act — Whether the AMC’s independence from the command structures within the ADF is inconsistent with s 68 of the Constitution.

Constitutional law — Military courts — Chapter III — Whether the AMC is a “federal court” impermissibly created contrary to s 71 of the Constitution — Whether a general criminal jurisdiction is conferred by the Act on the AMC which is not subordinate and supplementary to the general criminal law — Whether a general criminal jurisdiction can only be validly conferred on a Ch III court.

Constitutional law — Military courts — Defence power — Whether the conferral of a general criminal jurisdiction on the AMC is beyond the scope of s 51(vi) of the Constitution.

This matter was brought in the original jurisdiction of the High Court.

Employment Law

Visscher v The Honourable President Justice Giudice, The Honourable Senior Deputy President Drake, Commissioner Roberts, Commissioner Redmond, Australian Industrial Relations Commission & Anor

S30/2008: [2009] HCATrans 106.

Date heard: 22 May 2009 — Judgment reserved.

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

Catchwords:

Employment law — Wrongful termination — Employer repudiated employment contract — Ongoing employment relationship after repudiation — Whether “unaccepted” repudiation was effective to terminate the contract — Whether a new contract of employment was brought into existence.

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

Immigration

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

S577/2008; S578/2008: [2009] HCATrans 103.

Date heard: 20 May 2009 — Judgment reserved.

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

Catchwords:

Immigration — Section 91R(3) of the Migration Act 1958 (Cth) provides that a decision-maker shall “disregard any conduct engaged in by the person in Australia” in determining whether that person has a well-founded fear of persecution — Whether conduct must be completely disregarded — Whether conduct can be used to assess credibility of conduct engaged in before arriving in Australia.

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

Practice and Procedure

****Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd & Ors; Jeffery & Katauskas Pty Ltd v Rickard Constructions Pty Ltd (Subject to Deed of Company Arrangement) & Ors

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

Date heard: 5 August 2009 — Judgment reserved.

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

Catchwords:

Practice and procedure — Costs — Litigation funding by non- party– Abuse of process —Insolvent plaintiff commenced proceedings — Non-party (with a commercial interest in the plaintiff succeeding) funded litigation at first instance and on appeal — Proceedings failed – Costs awarded against insolvent plaintiff – Security provided by non-party proved to be significantly insufficient compared with costs incurred — Shortfall could not be met by insolvent plaintiff — Costs order sought against non-party – Whether non-party committed an abuse of process so as to be liable to a non-party costs order: r 42.3(2)(c) of the Uniform Civil Procedure Rules 2005 (NSW) — Whether r 42.3(2)(c) requires an abuse in the actual conduct of proceedings — Proper test for abuse of process — Knight v F P Special Assets Ltd (1992) 174 CLR 178.

Appealed from NSW SC CA: [2008] NSWCA 283.

Taxes and Duties

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

D7/2009; D6/2009: [2009] HCATrans 150.

Date heard: 23 June 2009 — Judgment reserved on the first appeal (the option to renew issue) with hearing of the second appeal (the goodwill issue) to be heard at a future date.

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

Catchwords:

Taxes and duties — Stamp duty — Definition of “land” — Appellant acquired a corporation holding mining leases over land made under an enactment — All but two leases included a right of renewal — Stamp duty payable if “the value of all land to which the corporation is entitled ... is 60% or more of the value of all property to which it is entitled”: Taxation (Administration) Act 1978 (NT) (“the Act”), s 56N(2)(b) — Section 4 of the Act, labelled “Interpretation”, defines “land” to include a “lease” of land and defines “lease” to include a “lease granted under an Act” but not “an option to renew a lease” — Whether the definitions of “land” and “lease” in s 4 of the Act do not apply to s 56N(2)(b) due to a contrary intention.

Taxes and duties — Income taxation — Goodwill — Nature and sources — Attraction of custom — Mining corporation — Whether attraction of custom essential element of goodwill — Whether profitable business necessarily has goodwill for legal purposes — Federal Commissioner of Taxation v Murry (1998) 193 CLR 605.

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

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

S158/2009: [2009] HCATrans 185.

Date heard: 4 August 2009 — Judgment reserved.

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

Catchwords:

Taxes and duties — Funds of a trustee held by a third party — Commenced winding up of the trustee — Commissioner of Taxation (“the Commissioner”) issued notices under s 260-5 of sch 1 to the Taxation Administration Act 1953 (Cth) requiring the monies held by the third party be paid to the Commissioner — Whether notices void and unenforceable for being an “attachment” within the meaning of s 500(1) of the Corporations Act 2001 (Cth).

Appealed from FCA FC: [2008] FCAFC 184.

Torts

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

(This matter was previously listed as Downview Pty Ltd v Fox & Ors; Leighton Contractors Pty Ltd v Fox & Ors)
S534/2008; S528/2008: [2009] HCATrans 110.

Date heard: 28 May 2009 — Judgment reserved.

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

Catchwords:

Torts — Negligence — Duty of care — Duty of principal contractor to maintain safe workplace — Duty to ensure safety of subcontractors — Whether duty of care owed to independent contractor by a party who is neither his principal nor in any contractual relationship with him — Extent of duty of care to ensure or verify proper training before entering construction site — Whether duty of care defined by contractual obligations.

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

Sydney Water Corporation v Turano & Anor

S104/2009: [2009] HCATrans 135.

Date heard: 18 June 2009 — Judgment reserved.

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

Catchwords:

Torts — Negligence — Duty of care — Appellant (a utility company) laid a water main in 1981 which had the alleged effect of altering sub-surface water flows — In 2001 a tree blown over in a storm fell onto a car killing the Respondent’s husband — Tree was in weakened condition because water had carried a pathogen to its roots — Respondent sued Appellant claiming damages — Whether Appellant owed a duty of care to Respondent’s husband — Whether injury was reasonably foreseeable — Whether Appellant caused injury of Respondent’s husband.

Appealed from NSW SC (CA): [2008] NSWCA 270; (2008) 164 LGERA 16; (2008) 51 MVR 262.

Workers’ Compensation

Fellowes v Military Rehabilitation and Compensation Commission

B8/2009: [2009] HCATrans 148; [2009] HCATrans 149.

Date heard: 22–23 June 2009 — Judgment reserved.

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

Catchwords:

Workers’ compensation — Construction of provisions of Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”) — Interpretation of “Guide to the Assessment of the Degree of Permanent Impairment” (“the Guide”) made under s 28 of the Act — Employee suffered work-related injury to left knee and separately on a later occasion to right knee — Whether employee entitled to compensation in respect of impairment resulting from second injury — Effect of the Guide when determining degree of permanent impairment resulting from injury — Consideration of Canute v Comcare (2006) 226 CLR 535.

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

3: ORIGINAL JURISDICTION

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

**** Indicates cases made ready for hearing since High Court Bulletin 5 [2009] HCAB 5.

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

S24/2009.

Catchwords:

Constitutional law — Acquisition of property — Intergovernmental agreements — Pursuant to s 5 of the Natural Resources Management (Financial Assistance) Act 1992 (Cth) (“the Act”) Commonwealth entered a funding agreement with New South Wales whereby Commonwealth provided financial assistance for New South Wales water management projects — Under the funding agreement, New South Wales substituted or converted plaintiffs’ water licences in order to achieve long-term sustainable water use, resulting in reduced water entitlements — Whether substitution and conversion by New South Wales pursuant to the funding agreement involves an acquisition of property to which s 51(xxxi) of the Constitution applies — Whether s 5 of the Act invalid as it authorises Commonwealth to enter into an intergovernmental agreement in breach of s 51(xxxi).

This matter was brought in the original jurisdiction of the High Court.

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

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

Catchwords:

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

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

4: SPECIAL LEAVE GRANTED

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

**** Indicates cases granted special leave to appeal since High Court Bulletin 5 [2009] HCAB 5.

Administrative Law

See Statutes: Kirk & Anor v Industrial Relations Commission of New South Wales & Anor; Kirk Group Holdings Ltd & Anor v Workcover Authority of New South Wales (Inspector Childs); Kirk Group Holdings Ltd & Anor v Workcover Authority of New South Wales (Inspector Childs).

Constitutional Law

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

S6/2009: [2009] HCATrans 91.

Date heard: 1 May 2009 — Special leave granted.

Catchwords:

Constitutional law — Grants power — Limits of — State acquisition of property — Whether Commonwealth legislative power under s 96 of the Constitution extends to grants authorised pursuant to an agreement requiring a State to acquire property on unjust terms — Constitution, ss 51(xxxi), 96.

Constitutional law — Abridgment of rights to use of water — Commonwealth “shall not, by any law or regulation of trade or commerce, abridge the right of a State or of the residents therein to the reasonable use of the waters of rivers for conservation or irrigation”: Constitution, s 100 — Whether prohibition in s 100 is limited to laws made under s 51(i) (“interstate trade and commerce”) — Whether Morgan v Commonwealth (1947) 74 CLR 421 should be reconsidered — Constitution, ss 51(i), 100.

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

Corporations Law

Ansell Ltd & Ors v Davies & Ors

A19/2008: [2008] HCATrans 373.

Date heard: 13 November 2008 — Special leave granted.

Catchwords:

Corporations — Winding up — Voidable transactions — Liquidator’s application for extension of time to pursue creditors — Where extension sought against unidentified creditors — Whether application validly made — Corporations Act 2001 (Cth), s 588FF(3).

Appealed from SA SC: [2008] SASC 203; (2008) 219 FLR 329; (2008) 67 ACSR 356.

Courts and Judicial System

See Statutes: Kirk & Anor v Industrial Relations Commission of New South Wales & Anor; Kirk Group Holdings Ltd & Anor v Workcover Authority of New South Wales (Inspector Childs); Kirk Group Holdings Ltd & Anor v Workcover Authority of New South Wales (Inspector Childs).

Criminal Law

The Queen v LK; The Queen v RK

S17/2009; S18/2009:  [2009] HCATrans 146 .

Date heard: 19 June 2009 — Special leave granted.

Catchwords:

Criminal law — Conspiracy — Fault element — Respondents charged with conspiring to deal with money reckless as to the fact that the money was the proceeds of crime — Section 11.5(2)(b) of the Criminal Code (Cth) provides that for a person to be guilty of the offence of conspiracy, inter alia, ‘the person and at least one other party to the agreement must have intended that an offence would be committed pursuant to the agreement’ — The offence the subject of the conspiracy (dealing with proceeds of crime) provides that a person is guilty of an offence if, inter alia, ‘the person is reckless as to the fact that the money or property is proceeds of crime’: s 400.3(2)(c) — Whether the fault element for the offence of conspiracy for each physical element of the substantive offence is intent or recklessness — Whether s 11.5(2)(b) elevates the fault element to intention despite the fault element in s 400.3(2)(c).

Appealed from NSW SC CCA: [2008] NSWCCA 338.

Taiapa v The Queen

B6/2009: [2009] HCATrans 155.

Date heard: 25 June 2009 — Referred to Full Court.

Catchwords:

Criminal law — Defences — Duress — Police intercepted a car carrying Applicant that contained a dangerous drug — Applicant charged with, inter alia, trafficking in and possession of a dangerous drug — Applicant claimed he was transporting the drug for two persons to whom he owed money — Lenders had threatened Applicant and his family on several occasions with a gun — Applicant claimed he could not go to police because he knew few personal details about the lenders and feared for his family’s safety — Whether defence of duress available — Whether Applicant “reasonably believe[d] he or she or the other person [was] unable otherwise to escape the carrying out of the threat”: Criminal Code Act 1899 (Qld), s 31(1)(d)(ii) — Whether s 31(1)(d)(ii) contains objective limitations on the availability of the defence — Whether the existence of such limitations is a matter solely for consideration of the jury.

Appealed from Qld SC CA: [2008] QCA 204.

Equity

Bofinger & Anor v Kingsway Group Ltd formerly Willis & Bowring Mortgage Investments Ltd & Ors

S5/2009: [2009] HCATrans 144.

Date heard: 19 June 2009 — Special leave granted.

Catchwords:

Equity — Subrogation — Unconscionability — Applicants were guarantors of three separate loans made to a developer — Guarantees were secured by mortgages over the Applicants’ personal properties to the three mortgagees — Applicants voluntarily sold personal properties and used proceeds to reduce first mortgage — Second and third mortgagees discharged mortgages, allowing sale to be completed even though they received no part of the proceeds — First mortgagee exercised power of sale over developer’s land — Surplus remained after first mortgagee paid out in full — Whether equitable doctrine of unconscionability prevents guarantors from being subrogated to the rights of the first mortgagee where subsequent mortgagees remain unpaid and guarantors have given guarantees to subsequent mortgagees.

Equity — Subrogation — Whether a guarantor’s equitable right of subrogation to a first mortgagee is released or surrendered by guarantors’ conduct of providing a guarantee to subsequent mortgagees.

Mortgages — Rule in Otter v Lord Vaux (1856) 1 K&J 650; 69 ER 943 prevents a mortgagor who has paid off the first mortgage from keeping it alive against a later mortgage that he/she has created — Whether rule can be extended to prevent a guarantor who pays off a mortgage he/she has guaranteed from being subrogated to the rights of that mortgagee in priority to a later mortgagee he/she has also guaranteed.

Appealed from NSW SC CA: [2008] NSWCA 332.

Immigration

****Minister for immigration & Citizenship v SZMDS & Anor

S79/2009: [2009] HCATrans 183.

Date heard: 31 July 2009 — Special leave granted.

Catchwords:

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

Appealed from FCA: [2009] FCA 210.

Insurance

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

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

Date heard: 31 July 2009 — Special leave granted.

Catchwords:

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

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

Intellectual Property

****E & J Gallo Winery v Lion Nathan Australia Pty Ltd

S89/2009: [2009] HCATrans 180.

Date heard: 31 July 2009 — Special leave granted.

Catchwords:

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

Appealed from FCA FC: [2009] FCAFC 27.

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

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

Date heard: 31 July 2009 — Special leave granted.

Catchwords:

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

Appealed from FCA FC: [2009] FCAFC 14.

Mortgages

See Equity: Bofinger & Anor v Kingsway Group Ltd formerly Willis & Bowring Mortgage Investments Ltd & Ors.

Real Property

Mandurah Enterprises Pty Ltd & Ors v Western Australian Planning Commission

P37/2008: [2009] HCATrans 83.

Date heard: 1 May 2009 — Special leave granted.

Catchwords:

Real property — Compulsory acquisition — Parts of various lots of land reserved under a town planning scheme called the Peel Regional Scheme (“the PRS”) for “Primary Regional Road” — Land subsequently acquired by a single taking order under s 13 of the Town Planning and Development Act 1928 (WA) for the purposes of railways as well as primary regional roads — Acquisition included lands not reserved under the PRS — Whether acquisition valid — Whether invalid takings of unreserved land and railway land can be severed from valid takings.

Real property — Compulsory acquisition — Whether acquisition of property for railway construction nonetheless valid under s 161 of the Land Administration Act 1997 (WA) permitting compulsory acquisition for public works — Whether acquiring body (a local authority) can acquire land under s 161 or whether it can only acquire land for town planning purposes.

Real property — Compulsory acquisition — Access to land — Whether acquiring body required to install a level crossing to provide access to land under s 102 of the Public Works Act 1902 (WA).

Appealed from WA SC (CA): [2008] WASCA 211.

Statutes

Kirk & Anor v Industrial Relations Commission of New South Wales & Anor; Kirk Group Holdings Ltd & Anor v Workcover Authority of New South Wales (Inspector Childs); Kirk Group Holdings Ltd & Anor v Workcover Authority of New South Wales (Inspector Childs)

S346/2008; S347/2008; S348/2008: [2009] HCATrans 93.

Date heard: 1 May 2009 — Special leave granted in S346/2008; Special leave referred to Full Court in S347/2008 and S348/2008.

Catchwords:

Statutes — Interpretation — Employer charged under s 15 of the Occupational Health and Safety Act 1983 (NSW), which requires that “[e]very employer shall ensure the health, safety and welfare at work of all the employer’s employees” — Industrial Court of NSW discounted any suggestion that the duty is restricted to conduct that is “reasonably foreseeable” — Whether Industrial Court’s construction of s 15 renders provision incapable of compliance due to impossibility of creating risk free environment.

Administrative law — Jurisdictional error — Full Court of Industrial Court failed to consider one submission that underlay the basis upon which leave to appeal was granted — Whether failure to consider this submission constituted jurisdictional error — Craig v South Australia (1995) 184 CLR 163.

Courts and judicial system — Jurisdiction — Whether an appeal lies to the High Court from a judgment of the Industrial Court of NSW.

Courts and judicial system — Jurisdiction — Applicants sought to appeal the decision of the trial judge in the NSW Court of Criminal Appeal and sought prerogative relief in the NSW Court of Appeal — The Court of Criminal Appeal found no appeal was available under s 5 of the Criminal Appeal Act 1912 (NSW) — The Court of Appeal refused prerogative relief — Full Court of Industrial Court denied leave to file an appeal out of time — Whether it is appropriate for an appellate court dealing with a criminal matter to decline to exercise its discretion to hear an appeal out of time on the basis that the appellant sought an alternative right of appeal.

S346/2008 appealed from NSW SC (CA): [2008] NSWCA 156; (2008) 173 IR 465.
S347/2008 appealed from NSW IR Comm: [2006] NSWIRComm 355; (2006) 158 IR 281.
S348/2008 appealed from NSW IR Comm: [2007] NSWIRComm 86; (2006) 164 IR 146.

Torts

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

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

Date heard: 31 July 2009 — Special leave granted.

Catchwords:

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

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

Amaca Pty Ltd v Ellis & Ors; State of South Australia v Ellis & Ors; Millennium Inorganic Chemicals Ltd v Ellis & Ors

P33/2008; P34/2008; P35/2008: [2009] HCATrans 77.

Date heard: 1 May 2009 — Special leave granted.

Catchwords:

Torts — Negligence — Causation — Risk of injury — “Cumulative injury” — Regular smoker who was exposed to asbestos during two periods of his working life died of lung cancer — Whether exposure to asbestos caused lung cancer — Whether increase in risk of injury can be sufficient to prove causation — Whether test for causation can be modified depending on the nature of the injury — Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32; Barker v Corus UK Ltd [2006] 2 AC 572.

Appealed from WA SC (CA): [2008] WASCA 200.

CAL No 14 Pty Ltd t/as Tandara Motor Inn & Anor v Motor Accidents Insurance Board; CAL No 14 Pty Ltd t/as Tandara Motor Inn & Anor v Scott

H4/2009; H5/2009: [2009] HCATrans 113.

Date heard: 29 May 2009 — Special leave granted.

Catchwords:

Torts — Negligence — Duty of care — Respondent began drinking in a hotel owned by the Applicant — Applicant served Respondent a number of alcoholic drinks — Respondent put his motorcycle in hotel’s storeroom, saying that his wife would pick him up later that night — At end of the evening Respondent asked Applicant for motorcycle back — Applicant asked Respondent if he was “right to ride” and Respondent said he was fine — Respondent ran off road and died on way home — Whether Applicant owed Respondent duty of care to prevent Respondent from riding motorcycle whilst intoxicated.

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

5: CASES NOT PROCEEDING OR VACATED

The following cases in the High Court of Australia are not proceeding or have been vacated since High Court Bulletin 5 [2009] HCAB 5.

Integral Home Loans Pty Ltd & Anor v Interstar Wholesale Financial Pty Ltd & Anor

S109/2009: [2009] HCATrans 166.

Date: 29 July 2009 — Order made 29 July 2009 dismissing the appeal with the consent of the parties.

Catchwords:

Contracts — Law of penalties — Termination clause — Contract between Appellants (loan originators) and Respondents (finance companies) — Appellants provided loan origination and management services to Respondent in return for upfront commission and ongoing trail commissions — Respondents could terminate contract where Respondents considered in its reasonable opinion that Appellants had engaged in deceptive or fraudulent conduct in relation to a loan — Contract contained specific obligation on Applicant to act honestly and not engage in misleading, deceptive or unethical conduct — Whether termination clause void as a penalty — Whether law of penalties applicable where divestment or forfeiture of rights or property occurs when contract terminated pursuant to a right to do so.

Appealed from NSW SC (CA): [2008] NSWCA 310.

Toyota Motor Corporation Australia Ltd v Jayatilake

M59/2009: [2009] HCATrans 118.

Date: 23 July 2009 — Matter discontinued by the parties.

Catchwords:

Workers’ compensation — “Serious injury” — Assessment of — Section 134AB(37) of the Accident Compensation Act 1985 (Vic) (“the Act”) defines “serious injury” to mean, inter alia, “permanent severe mental or permanent severe behavioural disturbance or disorder” — Term “severe” is to be satisfied by reference to consequences to worker of the injury with respect to pain and suffering or loss of earning capacity: s 134AB(38) — Psychological or psychiatric consequences of a physical injury and physical consequences of a mental disturbance or disorder are to be taken into account only where worker contends for a permanent serious mental disturbance or disorder: ss 134AB(38)(h), 134AB(38)(i) — Worker’s injury due partly to physical and partly to psychological or psychiatric conditions — Whether plaintiff must prove on the balance of probabilities that any pain and suffering consequences have an organic or physical basis, excluding pain and suffering resulting from injured person’s psychological response to physical injury — Whether finding of serious injury can be made on basis of injury suffered and likelihood that initial consequences of the injury will continue — Mutual Cleaning and Maintenance Pty Ltd v Stamboulakis [2007] VSCA 46.

Appealed from Vic SC (CA): [2008] VSCA 167.

6: SPECIAL LEAVE DISMISSED

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

Sydney: 31 July 2009

Civil

Brock v Minister for Home Affairs

S461/2008.

Special leave dismissed with costs.
Appealed from FCA FC: [2008] FCAFC 165.

Harvey & Anor v Minister Administering the Water Management Act 2000

S13/2009.

Special leave dismissed with costs.
Appealed from NSW SC (CA): [2008] NSWCA 356.

ST v Kelly

S15/2009.

Special leave dismissed.
Appealed from NSW SC (CA): [2008] NSWCA 213.

Kessing v R

S20/2009.

Discontinued.
Appealed from NSW SC (CCA): [2008] NSWCCA 310.

Miles v Genesys Wealth Advisers Ltd

S69/2009.

Special leave dismissed with costs.
Appealed from NSW SC (CA): [2009] NSWCA 25.

Esco Corporation & Anor v PAC Mining Pty Ltd & Anor

S77/2009.

Special leave dismissed with costs.
Appealed from FCA FC: [2009] FCAFC 18.

Canberra: 31 July 2009

Civil

Ejueyitsi v Maloney

P48/2007.

Special leave dismissed with costs.
Appealed from WA SC (CA): [2007] WASCA 227.

Bropho v State of Western Australia & Ors

P28/2008.

Special leave dismissed with costs.
Appealed from FCA FC: [2008] FCAFC 100.

State of Western Australia v Sebastian & Ors

P30/2008.

Discontinued.
Appealed from FCA FC: [2008] FCAFC 65.

Camp v Legal Practitioners Complaints Committee

P36/2008.

Special leave dismissed with costs.
Appealed from WA SC (CA): [2008] WASCA 198.

Soc v Lyle

P2/2009.

Special leave dismissed with costs.
Appealed from WA SC (CA): [2009] WASCA 3.

Reilly v Tobiassen

P3/2009.

Special leave dismissed with costs.
Appealed from WA SC (CA): [2009] WASCA 26.

Wallam v State of Western Australia

P5/2009.

Special leave dismissed.
Appealed from WA SC (CA): [2008] WASCA 117.

Riley v Jubilee Mines NL

P7/2009.

Special leave dismissed with costs.
Appealed from WA SC (CA): [2009] WASCA 62.

Canberra: 5 August 2009

(Publication of reasons)

Civil

Step v Atkins & Anor

D4/2008: [2009] HCASL 151.

Special leave dismissed.
Appealed from NT SC (CA): [2008] NTSC 05.

Chen & Anor v Chan & Ors

M7/2009: [2009] HCASL 152.

Special leave dismissed.
Appealed from Vic SC (CA): [2008] VSCA 280.

MZYBD v Minister for Immigration and Citizenship & Anor

M24/2009: [2009] HCASL 153.

Special leave dismissed.
Appealed from FCA: [2009] FCA 425.

MZYAV v Minister for Immigration and Citizenship & Anor

M25/2009: [2009] HCASL 154.

Special leave dismissed.
Appealed from FCA: [2009] FCA 414.

Al-Shennag v Statewide Roads Ltd & Anor

S543/2008: [2009] HCASL 155.

Special leave dismissed.
Appealed from NSW SC (CA): [2008] NSWCA 300.

Klewer & Anor v Official Trustee in Bankruptcy

S1/2009: [2009] HCASL 156.

Special leave dismissed.
Appealed from FCA: [2008] FCA 1788.

Bodenstein & Ors v Minister for Immigration and Citizenship & Anor

S41/2009: [2009] HCASL 157.

Special leave dismissed.
Appealed from FCA: [2009] FCA 50.

SZLKP & Anor v Minister for Immigration and Citizenship & Anor

S42/2009: [2009] HCASL 158.

Special leave dismissed.
Appealed from FCA: [2009] FCA 145.

SZDBF v Minister for Immigration and Citizenship & Anor

S43/2009: [2009] HCASL 159.

Special leave dismissed.
Appealed from FCA: [2009] FCA 85.

SZMAN v Minister for Immigration and Citizenship & Anor

S44/2009: [2009] HCASL 160.

Special leave dismissed.
Appealed from FCA: [2009] FCA 78.

SZLML v Minister for Immigration and Citizenship & Anor

S47/2009: [2009] HCASL 161.

Special leave dismissed.
Appealed from FCA: [2009] FCA 83.

SZLMK v Minister for Immigration and Citizenship & Anor

S50/2009: [2009] HCASL 162.

Special leave dismissed.
Appealed from FCA: [2009] FCA 89.

SZMIS v Minister for Immigration and Citizenship & Anor

S52/2009: [2009] HCASL 163.

Special leave dismissed.
Appealed from FCA: [2009] FCA 167.

SZMFY v Minister for Immigration and Citizenship & Anor

S53/2009: [2009] HCASL 164.

Special leave dismissed.
Appealed from FCA: [2009] FCA 139.

SZKPB & Anor v Minister for Immigration and Citizenship & Anor

S55/2009: [2009] HCASL 165.

Special leave dismissed.
Appealed from FCA: [2009] FCA 147.

SZLVK v Minister for Immigration and Citizenship & Anor

S57/2009: [2009] HCASL 166.

Special leave dismissed.
Appealed from FCA: [2009] FCA 100.

Horst Wilhelm Kronen v Commercial Motor Industries Pty Ltd (CMI Toyota)

A7/2009: [2009] HCASL 168.

Special leave dismissed.
Appealed from FCA FC: [2009] FCAFC 171.

Re Mackintosh

M18/2009: [2009] HCASL 169.

Special leave dismissed.
Appealed from HCA: [2008] HCA Trans 354.

SZGXK v Minister for Immigration and Citizenship & Anor

S580/2008: [2009] HCASL 170.

Special leave dismissed with costs.
Appealed from FCA: [2009] FCA 1891.

Sydney: 17 August 2009

Civil

Matthews v Australian Securities and Investments Commission

S183/2009.

Special leave dismissed with costs.
Appealed from NSW SC (CA): [2009] NSWCA 155.