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HIGH COURT OF AUSTRALIA Manager, Public Information 21 April 2010 REEMA TABET (BY HER TUTOR GHASSAN SHEIBAN) v MAURICE GETT [2010] HCA 12 The law of negligence does not provide for compensation where negligence causes a plaintiff to lose only a less than 50 per cent chance of a better medical outcome, the High Court held today. At six years old the appellant was suffering from headaches, nausea and vomiting and was admitted to hospital under the care of the respondent. At trial, the respondent was found negligent in not ordering a CT scan after a particular incident. The day after the incident, the appellant suffered a seizure. A CT scan on that day revealed that the appellant had a brain tumour. The appellant suffered irreversible brain damage, 25 per cent of which was caused by the increased intracranial pressure between the time the scan should have been ordered and it being undertaken. Due to the appellant's age, she brought an action in negligence against the respondent through her tutor, her uncle, in the Supreme Court of New South Wales. The trial judge was not satisfied that the respondent's negligence caused, on the balance of probabilities, any part of the appellant's brain damage; rather, if a scan had been administered when it should have been, there was only a 40 per cent chance that she would have avoided some of the brain damage she suffered. Finding that such a loss of chance constituted "damage" for the purposes of the law of negligence, the trial judge awarded the appellant compensation proportional to that lost chance. The Court of Appeal of the Supreme Court of New South Wales upheld the respondent's appeal, finding that the loss of a 40 per cent chance of a better medical outcome did not constitute the required "damage" for a cause of action in negligence. Accordingly, the appellant had not proved on the balance of probabilities that the negligence of the respondent caused her damage and the respondent, therefore, was not liable. On appeal to the High Court, the appellant argued that a loss of a chance of a better medical outcome should be considered as "damage" giving rise to a cause of action in negligence. The High Court held that to allow a plaintiff to recover compensation in negligence actions for only the loss of a chance of a better medical outcome would diminish the requirement for a plaintiff to prove on the balance of probabilities that his or her damage was caused by the negligence of the defendant and extend liability too far in medical negligence cases. The appeal was dismissed with costs. |
HIGH COURT OF AUSTRALIA 12 October 2016 CUNNINGHAM & ORS v COMMONWEALTH OF AUSTRALIA & ANOR [2016] HCA 39 Today the High Court unanimously held that amendments to the Parliamentary Contributory Superannuation Act 1948 (Cth) ("the Superannuation Act") and the Remuneration Tribunal Act 1973 (Cth) ("the Remuneration Tribunal Act") and certain Determinations made by the Remuneration Tribunal did not constitute an acquisition of property otherwise than on just terms within the meaning of s 51(xxxi) of the Constitution. The Court further held, by majority, that the enactment of and subsequent amendment to the Members of Parliament (Life Gold Pass) Act 2002 (Cth) ("the Life Gold Pass Act") also did not constitute an acquisition of property otherwise than on just terms. The Superannuation Act provides for the payment of certain "retiring allowances" to retired members of Parliament. Prior to 2011, the method of calculating retiring allowances was by reference to a fixed percentage of the parliamentary allowance for the time being payable to members of Parliament. Another benefit historically provided to retired members of Parliament was the "Life Gold Pass", which provided for domestic travel at Commonwealth expense. In 1976, the relevant Minister requested the Remuneration Tribunal enquire into the matter of the Life Gold Pass. Since that time, the Remuneration Tribunal has altered the benefits conferred by the Life Gold Pass a number of times. Each of the four plaintiffs served as a member of the House of Representatives of the Commonwealth Parliament for not less than eight years between 1969 and 2001. Three of the plaintiffs also held parliamentary offices and two were Ministers of State. On ceasing to serve as a member of Parliament, each of the plaintiffs became entitled to various retiring allowances under the Superannuation Act. Two of the plaintiffs were also entitled to a Life Gold Pass. In 2011 and 2012, amendments were made to the Superannuation Act and the Remuneration Tribunal Act, which enabled the Remuneration Tribunal to determine that a proportion of the amount paid to current members of Parliament would be excluded from the amount of "parliamentary allowance" for the purposes of calculating the retiring allowances ("retiring allowance amendments"), and the Remuneration Tribunal subsequently did so ("the Determinations"). In 2002 the Life Gold Pass Act was enacted, which restricted a holder of a Life Gold Pass, other than a former Prime Minister, to 25 domestic return trips per annum, and an amendment in 2012 reduced the number of trips to 10 per annum. The parties stated a special case and questions of law arising for the opinion of the Full Court. The questions of law included whether the retiring allowance amendments, the Determinations, and the enactment of and amendment to the Life Gold Pass Act, constitute or authorise an acquisition of property otherwise than on just terms, within the meaning of s 51(xxxi) of the Constitution. The High Court unanimously held that the retiring allowance amendments were not laws with respect to the acquisition of property, nor did the Determinations constitute an acquisition of property. A majority of the Court held that the entitlements to retiring allowances were inherently liable to variation, because the rights stipulated in the Superannuation Act depended for their content upon the will of the Parliament as exercised from time to time. As such, the variation effected by the amendments and the Determinations could not properly be described as an acquisition of property. The High Court further held, by a majority, that the Life Gold Pass Act and its subsequent amendment were similarly not laws with respect to the acquisition of property. |
HIGH COURT OF AUSTRALIA 13 November, 2003 ATTORNEY-GENERAL FOR THE STATE OF WESTERN AUSTRALIA AND THE STATE OF WESTERN AUSTRALIA v LAURENCE BERNHARD MARQUET (CLERK OF THE PARLIAMENTS OF WESTERN AUSTRALIA) (two matters) Two pieces of legislation aimed at changing Western Australia’s electoral laws could not be presented to the WA Governor for assent as neither Bill was passed by an absolute majority of all Legislative Council members, the High Court of Australia held today, confirming a decision of the Supreme Court of WA. On 19 and 20 December, 2001, the Electoral Distribution Repeal Bill and Electoral Amendment Bill were passed by a majority of Legislative Council members present, but not by an absolute majority. The Bills had already been passed by an absolute majority of the Legislative Assembly. The first Bill would have repealed the Electoral Distribution Act 1947 which currently provides for the drawing of electoral boundaries for both houses of the WA Parliament. Section 13 of the Act, a “manner and form” provision, stated the Act could not be amended unless a Bill had concurrence of an absolute majority of both houses. The second Bill would have inserted a new electoral boundaries’ regime into the Electoral Act to reduce the disparity between voter numbers in various electorates and would have increased the number of Legislative Council members from 34 to 36. On 21 December, Mr Marquet began proceedings in the WA Supreme Court seeking declarations about the lawfulness of presenting each Bill to the Governor for assent. Each Bill was the subject of separate proceedings. The proceedings were referred to a specially constituted five-member Full Court of the Supreme Court, which decided by a 4-1 majority that the Bills could not be lawfully presented. The WA Attorney-General and the State of WA then sought special leave to appeal to the High Court. The special leave application was referred by a Full Court of three Justices to an enlarged Bench and argued as on appeal. In the High Court, those who had argued in the Full Court that the Bills were not validly passed (including political parties and rural groups) appeared to present arguments against the validity of the Bills. The Attorneys-General for the Commonwealth, Queensland and New South Wales also appeared. The High Court granted special to leave to appeal in each matter, but by a 5-1 majority dismissed each appeal. It held that “amend” in section 13 of the Electoral Distribution Act included “repeal” and held that compliance with section 13 was mandatory. Because each Bill was a law in respect of the constitution of a state parliament, section 6 of the Australia Act 1986 required compliance with manner and form provisions. It also held that section 2(3) of WA’s Acts Amendment Act 1978, stating that every Bill after its passage through both houses shall be presented to the Governor for assent, did not impliedly repeal section 13, as “passage” meant “due passage” or “passage in accordance with applicable requirements”. |
HIGH COURT OF AUSTRALIA 16 May 2014 ADCO CONSTRUCTIONS PTY LTD v GOUDAPPEL & ANOR [2014] HCA 18 Today the High Court unanimously allowed an appeal from a decision of the Court of Appeal of the Supreme Court of New South Wales. The High Court held that a regulation was validly made under a power to make savings and transitional regulations having the effect of amending the Workers Compensation Act 1987 (NSW) ("the WCA") and that the regulation extinguished Ronald Goudappel's entitlement to permanent impairment compensation under the WCA. On 17 April 2010, Mr Goudappel, an employee of ADCO Constructions Pty Ltd ("ADCO"), was injured at work and became entitled under the WCA to receive compensation from ADCO. He made a claim for compensation on 19 April 2010 ("the initial claim"). He was later assessed as having a six percent permanent impairment with respect to the injuries he sustained. On 20 June 2012, he made a specific claim for permanent impairment compensation. ADCO's workers compensation insurer declined liability for permanent impairment compensation, on the basis that amendments to the WCA, introduced by the Workers Compensation Legislation Amendment Act 2012 (NSW) ("the Amendment Act"), applied to Mr Goudappel's claim. The amendments limited the entitlement to permanent impairment compensation to workers who had suffered injury resulting in permanent impairment exceeding ten percent. If applicable to Mr Goudappel's claim, the amendments would have had the effect that he had no entitlement to permanent impairment compensation. However, the Amendment Act's savings and transitional provisions protected the entitlements of workers who had claimed permanent impairment compensation before 19 June 2012 from the disentitling effect of the amendments. It was accepted in the High Court that Mr Goudappel's initial claim covered any entitlement to permanent impairment compensation. Notwithstanding that, ADCO argued that the protection conferred by the Amendment Act's savings and transitional provisions was displaced by a transitional regulation made pursuant to those provisions. The transitional regulation was said to extend the disentitling operation of the amendments to claims for compensation made before 19 June 2012, except for claims which "specifically sought" permanent impairment compensation. The Court of Appeal held that the transitional regulation did not apply to extinguish Mr Goudappel's entitlement to permanent impairment compensation. By special leave, ADCO appealed to the High Court. Allowing the appeal, the High Court held that the transitional regulation was valid and applied to extinguish Mr Goudappel's entitlement to permanent impairment compensation. Mr Goudappel's initial claim was not a claim which "specifically sought" permanent impairment compensation. The regulation could not be interpreted so as to avoid its application to his entitlement. |
HIGH COURT OF AUSTRALIA 2 October 2012 JOHN ANDREW HENRY FORREST v AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION & ANOR FORTESCUE METALS GROUP LTD v AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION & ANOR [2012] HCA 39 Today the High Court unanimously held that Fortescue Metals Group Ltd and Andrew Forrest did not contravene the Corporations Act 2001 (Cth) in connection with public statements about agreements Fortescue made with three Chinese state-owned entities to build, finance and transfer the railway, port and mine components of Fortescue's proposed Pilbara Iron Ore and Infrastructure Project in Western Australia. Each of the agreements was headed "Framework Agreement" and was four pages long. Each agreement recorded that it was to become binding upon approval by the parties' respective boards, and that the parties were jointly to agree and develop further general conditions of contract at a later date. The parties' boards approved the agreements. Fortescue and Mr Forrest, as Fortescue's chairman and chief executive, made public statements that Fortescue had entered into a "binding contract" with each of the Chinese entities to build, finance and transfer the relevant construction works. In March 2006, ASIC commenced proceedings in the Federal Court of Australia alleging that because the agreements would not be enforceable under Australian law, Fortescue had therefore engaged in misleading or deceptive conduct when Fortescue and Mr Forrest represented that the agreements were "binding". ASIC further alleged that Fortescue and Mr Forrest had contravened the continuous disclosure requirements of the Corporations Act by not correcting the false or misleading information and that Mr Forrest had failed to discharge his duties as a director of Fortescue with the degree of care and diligence required by s 180(1). The trial judge dismissed ASIC's claims, but the Full Court of the Federal Court allowed ASIC's appeal and made declarations that Fortescue had engaged in misleading or deceptive conduct and contravened its continuous disclosure obligations and that Mr Forrest had contravened his continuous disclosure obligations and directors' duties. In particular, the Full Court concluded that, because the agreements would not be enforceable under Australian law, it was misleading or deceptive to describe them as "binding" contracts. By special leave, Fortescue and Mr Forrest appealed to the High Court. The High Court unanimously allowed the appeal. Four members of the Court held that the statements made by Fortescue and Mr Forrest represented to those hearing or reading them that Fortescue and the Chinese state-owned entities had entered into agreements that each intended to be binding. This representation was neither false nor misleading. There was no evidential basis for assuming that a person hearing or reading these statements would understand that the parties had entered into agreements that would be enforced by an Australian court according to Australian law should a dispute ever arise between them. Because the statements were neither misleading nor deceptive, the Court further found that Fortescue and Mr Forrest had not failed to meet their obligations under the Corporations Act. The Court therefore set aside the Full Court's decision and declarations and reinstated the primary judge's decision that Fortescue and Mr Forrest had not contravened the Corporations Act. |
HIGH COURT OF AUSTRALIA Public Information Officer 31 July 2008 W.R. CARPENTER HOLDINGS PTY LIMITED v COMMISSIONER OF TAXATION W.R. CARPENTER AUSTRALIA PTY LIMITED v COMMISSIONER OF TAXATION Two companies which allegedly owe income tax in relation to various international transactions could not compel the Commissioner to provide certain information which they sought in connection with their appeals against their tax bills, the High Court of Australia held today. The WR Carpenter companies are members of Perth businessman Ric Stowe’s Griffin Group of companies. The group disputed 44 income tax assessment notices issued by the Australian Tax Office (ATO) in 2004 to seven members of the group in respect of income between 1986 and 2002, following an audit of the group. Decisions on 42 assessments are pending in the Administrative Appeals Tribunal. With the other two, both involving international transactions, the Carpenter companies instituted proceedings in the Federal Court of Australia by way of appeal under the Taxation Administration Act (TAA). Those appeals are also still pending. Carpenter Holdings claimed that an assessment for 1986-87 was excessive while Carpenter Australia disputed the assessment for 1992-93. The 1987 assessment concerned a transaction in which Carpenter Holdings sold to the Cyprus-based Griffin company, Carpenter Holdings International Limited (CHIL), shares in other companies in the group. The cost was $129 million of which $79 million was to be paid after 15 years. CHIL was not charged any interest. The ATO deemed the interest that would have been due over that period was $167.3 million, including $17.9 million for 1986-87. The 1993 assessment involved loans by Carpenter Australia to a group company based in the United States. No interest was charged and the loans were written off in the 1993 and 1994 years. The ATO deemed total interest payable as $4.77 million, including $986,180 in 1992-93. It said tax was owed on both transactions as neither was carried out “at arm’s length”. Under the TAA, the companies had the burden of proving that assessments were excessive. By motions filed in the Federal Court on 19 May 2006, the Carpenter companies sought orders that the ATO provide certain particulars of matters taken into account in determinations that sections 136AD(1) or 136AD(2) of the Income Tax Assessment Act should apply to the international transactions so as to produce the interest deemed or imputed to have been paid to the companies. The motions were dismissed by Justice Kevin Lindgren on 20 September 2006. The ATO had already filed a statement outlining its contentions and the facts and issues in the case. Appeals to the Full Court against Justice Lindgren’s ruling were dismissed on 11 July 2007. The companies appealed to the High Court. The Court unanimously dismissed the appeals. It held that the requests for information made by the companies were not directed to any issue that arose in the appeals and that provision of the information as requested was neither necessary nor appropriate for the resolution of the issues in the appeals. |
HIGH COURT OF AUSTRALIA 17 August 2022 NATHANSON v MINISTER FOR HOME AFFAIRS & ANOR [2022] HCA 26 Today, the High Court unanimously allowed an appeal from the Full Court of the Federal Court of Australia. The appeal concerned the question of whether the Administrative Appeals Tribunal's denial of procedural fairness to the appellant was material, in that it deprived the appellant of a realistic possibility that the decision made by the Tribunal could have been different if a fair hearing had been provided, so as to give rise to jurisdictional error. In 2018, the appellant's visa was mandatorily cancelled by a delegate of the then Minister for Home Affairs pursuant to s 501(3A) of the Migration Act 1958 (Cth). Another delegate of the Minister made a decision, pursuant to s 501CA(4), not to revoke the cancellation of the visa. The appellant applied to the Tribunal for a review of the delegate's decision. The Tribunal affirmed the decision to refuse to revoke the visa cancellation. In making its decision, the Tribunal was required to comply with the Minister's direction known as "Ministerial Direction 79". That Direction prescribed as a factor for consideration (in assessing the "primary consideration" of the protection of the Australian community from criminal or other serious conduct) "[t]he principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed". It was not in dispute that the Tribunal denied the appellant procedural fairness in that the Tribunal misled the appellant in relation to the significance of certain changes brought about by Ministerial Direction 79 to the considerations applicable to the Tribunal's decision, and in that the appellant was not given an opportunity to give or adduce evidence or to make submissions on the way in which two domestic violence incidents should have affected the Tribunal's consideration of the primary consideration of the protection of the Australian community. In proceedings for judicial review of the Tribunal's decision, the Federal Court at first instance, and a majority of the Full Federal Court on appeal, found that the denial of procedural fairness affecting the Tribunal's decision was not material, and so did not constitute jurisdictional error. The High Court unanimously found that the denial of procedural fairness was material, and so did constitute jurisdictional error. In reaching that finding, a majority of the Court held that in many, if not most, cases where an applicant has been deprived of a chance to make submissions on a topic of relevance, reasonable conjecture from established facts about the decision-making process will readily show a reasonable possibility that the outcome would have been different. In the appellant's case, additional evidence and submissions directed to mitigating the significance of the evidence of domestic violence could realistically have affected the outcome of the Tribunal's review. There was no need for the appellant to establish the nature of any additional evidence or submissions that might have been presented at the Tribunal hearing, had that hearing been procedurally fair. |
HIGH COURT OF AUSTRALIA Public Information Officer 18 May 2006 NICHOLAS TERRENCE FISH AND NISHA NOMINEES PTY LIMITED v SOLUTION 6 HOLDINGS LIMITED, SOLUTION 6 PTY LIMITED, NEVILLE BUCH, NEIL GAMBLE AND INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES The jurisdiction of the Industrial Relations Commission of New South Wales did not extend to a review of the terms of a share acquisition agreement, the High Court of Australia held today. Mr Fish controlled Nisha Nominees which owned FishTech and Partners, an information technology company. In 2000, Nisha sold FishTech to Solution 6 Holdings for $19 million in shares in Solution 6 at an issue price of $9.75 per share. The share purchase agreement also provided that Mr Fish would work for Solution 6 Holdings’ subsidiary, Solution 6 Pty Ltd, as executive manager – enterprise integration services. When the share purchase agreement was executed, Solution 6 shares were trading at $13.30, but by the time of completion the share price had dropped to about $3. In November 2001, Mr Fish’s employment was terminated. He and Nisha applied to the IRC seeking orders under Part 9 of Chapter 2 of the Industrial Relations Act declaring the share purchase agreement to have operated in an unfair, harsh and unconscionable manner and contrary to the public interest, and seeking orders varying that agreement to provide Mr Fish with the difference between the current price of the Solution 6 shares and the issue price of $9.75. The Solution 6 companies and Mr Buch and Mr Gamble, two directors of those companies, successfully applied to the NSW Court of Appeal for an order prohibiting the IRC from taking steps to exercise its powers regarding the share purchase agreement. Mr Fish and Nisha appealed to the High Court. The principal question for the Court was whether the Court of Appeal was right to hold that the share purchase agreement was not a contract of a kind in respect of which the IRC could exercise its powers under the IR Act. The High Court, by a 5-2 majority, upheld the Court of Appeal’s decision and dismissed the appeal. Section 106(1) of the Act provides that the IRC may make an order declaring wholly or partly void, or varying, any contract whereby a person performs work in any industry if the IRC finds the contract is unfair. The agreement in question was not a contract whereby Mr Fish performed work in an industry. |
HIGH COURT OF AUSTRALIA 12 March 2009 Manager, Public Information GLEN ANDREW JOSEPH HICKSON v GOODMAN FIELDER PTY LTD Today the High Court decided that Glen Hickson may apportion the amount of workers’ compensation payments he must repay to Goodman Fielder to the same extent that damages he recovered through settling a negligence claim may have been reduced because he contributed to the cause of his injury. In 2003 Mr Hickson suffered serious injury after colliding with a car while riding his push bike from work. He settled a claim for damages against the driver of the car for an amount of $2.8 million on 6 June 2006. As the collision happened on Mr Hickson’s way from work he was also entitled to receive workers’ compensation payments from his employer, Goodman Fielder. Prior to settling his damages claim, Mr Hickson received $607,315.43 from Goodman Fielder in workers’ compensation. The law in New South Wales provides that a person who first receives workers’ compensation payments and then damages for the same injury must repay the workers’ compensation payments to his or her employer. It also provides that if the amount of damages received by the injured person has been reduced to take account of that person’s contributory negligence, then the amount repayable to the employer should be reduced to the same extent that the damages had been reduced. On 7 June 2006 Goodman Fielder filed a claim in the NSW District Court for repayment of the $607,315.43 it had paid to Mr Hickson in workers’ compensation. Mr Hickson responded that the amount he had received in settlement of his damages claim had been reduced because his actions had contributed to his injury. He argued that the amount he should repay to Goodman Fielder ought to be reduced to the same extent as his damages had been reduced. Goodman Fielder in turn argued that as Mr Hickson’s damages claim had been settled there was no court record to establish how the damages of $2.8 million had been calculated. The parties asked a District Court judge to decide whether the law concerning the reduction of workers’ compensation payments to be repaid to an employer applies when a damages claim is settled and there is no court determination about contributory negligence or the calculation of the damages. If the judge answered “yes” to that question the parties also wanted the judge to decide whether the District Court could hear evidence concerning the extent to which the amount recovered by Mr Hickson when his damages claim was settled had been reduced because of his contributory negligence, the degree of his contributory negligence and the calculation of the damages he would have been likely to recover if there had been no reduction for contributory negligence. The District Court judge answered “yes” to all of those questions. Goodman Fielder appealed to the NSW Court of Appeal which held, by majority, that the answer to the first question ought to have been “no”, in which case the following questions did not need to be answered. Mr Hickson appealed to the High Court and today the High Court unanimously held that the District Court judge’s answers to the questions raised by the parties should be reinstated and that Goodman Fielder’s appeal to the NSW Court of Appeal should be dismissed. The fact that there may have to be “a trial within a trial” - to determine what damages were recoverable by Mr Hickson, whether his actions had contributed to causing his injury and the extent of the reduction of any damages because of his contributory negligence - was not a reason to prevent Mr Hickson from being able to reduce the amount he must repay to Goodman Fielder to the same extent that the damages he recovered had been reduced because of his contributory negligence. |
HIGH COURT OF AUSTRALIA 6 September 2017 THE QUEEN v AARON JAMES HOLLIDAY [2017] HCA 35 Today the High Court unanimously dismissed an appeal from the Court of Appeal of the Supreme Court of the Australian Capital Territory. The High Court held that it was not possible to convict the respondent, Holliday, of inciting another person to procure a third person to commit a criminal offence under the Criminal Code 2002 (ACT). Holliday was in custody pending sentence for sexual offences. The prosecution alleged that, while in custody, Holliday offered another inmate, Powell, a reward for organising people outside prison to kidnap two witnesses, to force the witnesses to adopt a statement prepared by Holliday that was designed to exculpate him of the offences, and then to kill the witnesses. Powell did not go through with the plan and reported Holliday. Holliday was tried on indictment before a judge and jury in the Supreme Court of the Australian Capital Territory on five counts. Counts 4 and 5 charged that Holliday "committed the offence of incitement in that he urged [Powell] to kidnap" each witness contrary to s 47 of the Criminal Code and s 38 of the Crimes Act 1900 (ACT). However, at trial, the prosecution did not allege that Holliday urged Powell to commit the kidnappings personally. The prosecution case was that Holliday urged Powell to procure a third person to commit the kidnappings. Holliday was convicted on these counts. He appealed to the Court of Appeal, which set aside the verdicts and entered verdicts of not guilty on counts 4 and 5. By grant of special leave, the prosecution appealed to the High Court. The High Court unanimously dismissed the prosecution's appeal. The principal issue was whether Holliday could be convicted of an offence – specifically, an offence of inciting the commission of an offence – by urging Powell to procure a third person to commit the substantive offence of kidnapping. The Court held that, at least in circumstances where no offence of kidnapping was committed, Holliday could not be convicted of urging Powell to commit the offence of kidnapping contrary to s 47 of the Criminal Code. A majority of the High Court reached that conclusion on the basis that in order for a person to be convicted of an offence of incitement under s 47 of the Criminal Code, that person must have urged the commission of a discrete offence. The majority concluded that procuring the commission of an offence is not a discrete offence under the Criminal Code. |
HIGH COURT OF AUSTRALIA 9 March 2005 MINISTER FOR EMPLOYMENT AND WORKPLACE RELATIONS v GRIBBLES RADIOLOGY PTY LTD AND HEALTH SERVICES UNION OF AUSTRALIA GRIBBLES RADIOLOGY PTY LTD v HEALTH SERVICES UNION OF AUSTRALIA AND MINISTER FOR EMPLOYMENT AND WORKPLACE RELATIONS Gribbles Radiology was not the successor to a business so was not bound to pay severance pay to employees of that other business, the High Court of Australia held today. Region Dell Pty Ltd operated a number of medical clinics including the Moorabbin Heritage Clinic in Melbourne. At some of those clinics it licensed part of the premises to radiology practices. Region Dell provided radiology equipment and the practice provided radiographers and consumables. At Moorabbin it licensed Gribbles in 1999 after the Melbourne Diagnostic Imaging Group licence ended. Gribbles obtained MDIG’s permission to contact its Moorabbin staff and four radiographers accepted its offer of continued employment on the same award conditions, but in 2000 Gribbles closed its practice at Moorabbin and terminated the radiographers’ employment. The Health Services Union claimed Gribbles owed severance pay to the radiographers based on their years of service with MDIG and its predecessor Southern Radiology. Both MDIG and Southern Radiology were parties to the Health Services Union of Australia (Private Radiology – Victoria) Award 1993, but Gribbles was not. If Gribbles were a successor to MDIG then section 149(1)(d) of the Workplace Relations Act provided that it was bound by the award. The union brought proceedings against Gribbles in the Federal Court of Australia for its alleged failure to pay severance pay in accordance with the award and claimed penalties for breaching the award. The Court ordered Gribbles to pay the severance pay plus interest and a $50 penalty to the union. The Full Court of the Federal Court dismissed the appeal. Gribbles and the Minister, who had intervened in the Federal Court proceedings, each appealed to the High Court. The High Court, by a 4-1 majority, allowed the appeals. It held that Gribbles was not a successor to any part of the MDIG business so was not bound by the award. Apart from contacting MDIG about recruiting staff, there was no evidence of any dealing between MDIG and Gribbles about Gribbles taking over the Moorabbin practice. No assets, tangible or intangible, were sold or transferred from MDIG to Gribbles. Gribbles did not negotiate with MDIG to take over the practice at Moorabbin but negotiated with Region Dell about the licence agreement. Both Gribbles and MDIG used Region Dell’s equipment and premises and each had a separate licence from Region Dell. The fact that both conducted the same business activity – operating radiology practices – was not enough to satisfy section 149(1)(d). |
HIGH COURT OF AUSTRALIA 25 May 2005 PALGO HOLDINGS PTY LTD (trading as CASH COUNTERS BYRON) v KELVIN GOWANS, A PUBLIC OFFICER ON BEHALF OF DIRECTOR-GENERAL OF DEPARTMENT OF FAIR TRADING Lending money with goods provided as security was not necessarily pawnbroking, the High Court of Australia held today. Palgo was charged in the New South Wales Local Court at Lismore with carrying on business as a pawnbroker in Byron Bay without a licence in 2001 and was fined $6,000. It made short-term loans, usually for seven days, of small amounts. Loans were secured by the borrower transferring title in the goods to Palgo. The schedule of terms referred to in the bill of sale/goods mortgage document required the borrower to keep the mortgaged property in their possession and to have insurance. In eight cases in which evidence was given to the Lismore Local Court the goods were left with Palgo, except for one case where a car was provided as security. The documents recorded the location of the goods in seven cases as being in storage at the borrower’s request. Sometimes borrowers were told this was necessary and sometimes they assumed they had to leave their goods. Palgo said keeping the goods on its premises meant they were covered by its insurance policy. Its appeals to the Supreme Court and the Court of Appeal against the conviction and fine were dismissed. Both Courts held that mortgages of chattels could also be characterised as pawnbroking transactions. They held that if the meaning of pawned goods did not embrace all transactions in which a lender had possession of goods as security it would defeat the purposes of the Pawnbrokers and Second-had Dealers Act. Palgo appealed to the High Court. The Court held that pledges or pawns (the terms are interchangeable) could not include mortgages, and transactions cannot be a combined pledge and mortgage. Nothing in the Act allows scope for arguing that pawned goods include goods that are the subject of other forms of security transaction. Pawn and pledge refer to a bailment of personal property as security for a debt, distinct from a chattel mortgage, and one kind of transaction cannot be treated as being subsumed in the other. The Court held that because the transactions were mortgages of chattels they were bills of sale, regulated by the Bills of Sale Act rather than the Pawnbrokers Act. The Court held that there was no basis for reading the definition of pawnbroker as extending to a business embracing all kinds of transaction in which a lender of money takes possession or custody of goods. Palgo’s business fell outside the definition. The Pawnbrokers Act was one just one of several Acts regulating provision of credit. The presence of such other statutes reveals no reason to read the Pawnbrokers Act as designed to cover a field wider than its own words mark out. The Court, by a 4-1 majority, allowed the appeal. |
HIGH COURT OF AUSTRALIA Public Information Officer 2 February 2009 REGGIE WURRIDJAL, JOY GARLBIN AND BAWINANGA ABORIGINAL CORPORATION v THE COMMONWEALTH OF AUSTRALIA AND ARNHEM LAND ABORIGINAL LAND TRUST Proper provision had been made for compensation of Aboriginal organisations and people in the Northern Territory where property rights had been affected by the Commonwealth’s NT intervention laws, the High Court of Australia held today. In August 2007, the federal government introduced a package of legislation designed to support an emergency response to deal with sexual abuse of Aboriginal children in the NT, along with alcohol and drug abuse, pornography and gambling. The response included improving living conditions and reducing overcrowding by building houses and providing other facilities and infrastructure. To do this the government took control of certain townships for a limited period. Under the Northern Territory National Emergency Response Act (NER Act), five-year leases were created over Aboriginal land, communities and town camps. Any pre-existing right, title or interest in land was preserved and provision made for compensation to be paid where required by section 51(xxxi) of the Constitution. Section 51(xxxi) gives Parliament power to make laws for the acquisition of property on just terms from any State or person for any purpose in respect of which Parliament has power to make laws. The Families, Community Services and Indigenous Affairs and Other Legislation Amendment (Northern Territory National Emergency Response and Other Measures) Act (FaCSIA Act) amended the Commonwealth Aboriginal Land Rights (Northern Territory) Act (Land Rights Act) to provide that permits for entry onto Aboriginal land would no longer be required for townships and roads. The FaCSIA Act also provided for reasonable compensation if action under the amendments to the Land Rights Act would result in an acquisition of property to which section 51(xxxi) applied. Reggie Wurridjal and Joy Garlbin are senior members of the Dhukurrdji clan, the traditional Aboriginal owners of Maningrida land. The land, measuring 10.456 square kilometres, includes a township, four sacred sites, an outstation, a sand quarry, a billabong and a ceremonial site. It is part of a total land grant of almost 90,000 square kilometres held by the Arnhem Land Aboriginal Land Trust under the Land Rights Act as an estate in fee simple. A five-year lease on Maningrida land was granted to the Commonwealth under the NER Act. Mr Wurridjal and Ms Garlbin claimed that the grant of the lease constituted an acquisition of Land Trust property that was not on just terms within the meaning of section 51(xxxi) of the Constitution. They also alleged that their entitlement under section 71 of the Land Rights Act to enter, use or occupy Maningrida land in accordance with Aboriginal tradition constituted property that had been acquired by the Commonwealth other than on just terms. They argued that their property had been acquired because their section 71 entitlement could be terminated at any time by the Minister under the NER Act and/or was effectively suspended by the grant of the lease. No party submitted that the Commonwealth had acquired any native title rights held by the Dhukurrdji clan. Mr Wurridjal, Ms Garlbin and the Bawinanga Aboriginal Corporation began proceedings in the original jurisdiction of the High Court in October 2007 to challenge the validity of certain provisions of the NER and FaCSIA Acts. In March 2008, the Commonwealth demurred to their claim on the ground that it did not show any cause of action to which the Court could give effect. The Commonwealth alleged that the Acts were not subject to the just terms requirement in section 51(xxxi) of the Constitution because they were supported by section 122 of the Constitution, which gives Parliament the power to make laws for the governing of any territory; that if they were subject to it they provided for compensation amounting to just terms; and that any property affected was not property within the meaning of section 51(xxxi) or was not property capable of being acquired. The High Court, by a 6-1 majority, held that the demurrer should be allowed. A majority held that the creation of the statutory lease on the Maningrida land constituted an acquisition of property from the Land Trust but the acquisition was on just terms due to the compensation provisions in the NER Act. There was no acquisition of Mr Wurridjal and Ms Garlbin’s rights under section 71 of the Land Rights Act because those rights had been preserved throughout the intervention and could not be extinguished by the Commonwealth pursuant to the NER Act. Their interests in their sacred sites also remained protected under section 69 of the Land Rights Act, which makes intruding on a sacred site a criminal offence. To the extent that abolition of the permit system had resulted in an acquisition of property, just terms were afforded by the compensation provisions of the FaCSIA Act. A majority of the Justices overruled a 1969 decision of the High Court, Teori Tau v The Commonwealth, which held that the just terms requirement in section 51(xxxi) did not apply to laws made by the Commonwealth for the governing of the territories. Therefore, section 122 of the Constitution is subject to the just terms requirement in section 51(xxxi). |
HIGH COURT OF AUSTRALIA 15 November 2005 MICHAEL JOHN COVENTRY AND LYNETTE HELEN COVENTRY (AS TRUSTEES OF THE MIKE AND LYN COVENTRY FAMILY TRUST) AND ANDREW COVENTRY v CHARTER PACIFIC CORPORATION LIMITED AND BARRY TABE (AS TRUSTEE OF THE TABE FAMILY TRUST) A damages claim by Charter Pacific could be pursued against discharged bankrupts as the circumstances of the claim meant it was not a debt provable in bankruptcy, the High Court of Australia held today. The Coventrys were directors of Evtech Pty Ltd. Michael and Andrew Coventry made certain representations to Charter Pacific about the viability of a computer technology project. These induced Charter Pacific to enter into a deed in March 1993. Parties to the deed were Charter Pacific, Evtech, Barry Tabe as trustee of the Tabe Trust, Michael and Lynette Coventry as trustees of their family trust, and Belrida Enterprises Pty Ltd as trustee of the Quinn Family Trust. Andrew Coventry was not a party. Under the deed, Charter Pacific agreed to buy Evtech shares from the other parties and to lend money to Evtech. The Coventry brothers’ representations were found to have been misleading. The loan and some further money lent, totalling $604,634, were not repaid and the Evtech shares proved to be worthless. The brothers were made bankrupt in 1994 and were discharged from bankruptcy in 1997. In the Queensland Supreme Court, Charter Pacific brought proceedings for misleading and deceptive conduct contrary to the Corporations Law against the Coventrys and other parties. The Coventrys denied that any misrepresentation occurred or that Charter Pacific suffered loss but alleged that any claims were provable debts from which they had been discharged through bankruptcy. In August 2002, after a 157-day trial, the Court found that the Coventrys had contravened the Corporations Law and gave judgment in favour of Charter Pacific. It held that the claims were not invalidated by the Coventrys’ bankruptcy so could be pursued after their discharge. The Coventrys appealed unsuccessfully to the Queensland Court of Appeal, then appealed to the High Court. They contended that the Court of Appeal erred in its construction of the Bankruptcy Act, as section 82(2) provides that demands in the nature of unspecified damages arising other than by way of a contract, promise or breach of trust are not provable in bankruptcy. Just before the High Court appeal hearing in March 2005, Michael Coventry was again made bankrupt. Neither the Coventry trustees nor Michael Coventry’s trustee in bankruptcy appeared and neither provided written submissions. The Court ordered that the appeal of the Coventry trustees be dismissed for want of prosecution. Andrew Coventry was effectively the sole appellant. The High Court unanimously dismissed the appeal by Andrew Coventry with costs. It held that because the as yet unspecified damages claim arose through misleading conduct, rather than in breach of a promise in the deed, the damages are not provable debts in the Coventry brothers’ bankruptcies pursuant to section 82(2) and therefore remain recoverable after discharge from bankruptcy. |
HIGH COURT OF AUSTRALIA 1 March 2017 [2017] HCA 9 Today the High Court, by majority, dismissed an appeal from the Full Court of the Supreme Court of South Australia. Following a trial in the District Court of South Australia, the appellant was convicted of one count of rape and one count of threaten to kill. He appealed against the convictions to the Full Court, sitting as the Court of Criminal Appeal, on grounds including that the trial judge erred in directing the jury under s 34R of the Evidence Act 1929 (SA) ("the Evidence Act") as to the permissible and impermissible uses of discreditable conduct evidence admitted under s 34P. The discreditable conduct evidence was that the appellant was in possession of an amount of cannabis, less than an ounce, which the police had found at his home seven days after the alleged offending ("the cannabis evidence"). The Full Court (Kourakis CJ, Gray and Stanley JJ) unanimously held that the cannabis evidence was admissible pursuant to s 34P of the Evidence Act. As to the sufficiency of the trial judge's directions to the jury, Kourakis CJ concluded that the directions did not comply with s 34R as to the permissible and impermissible use of the cannabis evidence. Kourakis CJ would have allowed the appeal, holding that it was not open in the circumstances of the case to apply the proviso; Gray J considered that the directions complied with s 34R and, accordingly, would have dismissed the appeal; and Stanley J held that the directions given by the trial judge did not meet the requirements of s 34R but was satisfied that no substantial miscarriage of justice had actually occurred, and so would have dismissed the appeal. In the result, the appeal to the Full Court was dismissed. Special leave to appeal to the High Court was granted on the question whether the order of the Full Court dismissing the appeal could not be sustained by s 353(1) of the Criminal Law Consolidation Act 1935 (SA) ("the CLC Act"), given the conclusion of a majority of the Court that the verdict was attended by an error of law and the absence of a conclusion by a majority of the Court that no substantial miscarriage of justice had occurred. By way of notice of contention, the respondent argued that the trial judge's directions to the jury met the requirements of s 34R(1) of the Evidence Act. The High Court held, by majority, that the appeal should be dismissed on the basis of the respondent's notice of contention. The trial judge's directions to the jury were sufficient to identify the permissible and impermissible uses of the cannabis evidence for the purposes of s 34R(1) of the Evidence Act. The verdict at trial was therefore not attended by an error of law. A majority of the High Court also considered that, under s 353(1) of the CLC Act, two questions arose for determination before the Full Court: whether the Full Court thought that the verdict of the jury should be set aside on any one or more of the three grounds there stated; and whether the Full Court considered that no substantial miscarriage of justice had actually occurred. By virtue of s 349 of the CLC Act, each of these questions was to be determined according to the opinion of the majority of the members of the Court hearing the case. In the result, the appeal was dismissed. |
HIGH COURT OF AUSTRALIA Manager, Public Information 10 November 2009 ADEELS PALACE PTY LTD v ANTHONY MOUBARAK ADEELS PALACE PTY LTD v ANTOIN FAYEZ BOU NAJEM [2009] HCA 48 Adeels Palace should not be held liable for injuries arising from violent conduct, in the circumstances where the evidence did not establish there was action it could have taken which would, on the balance of probabilities, have prevented that conduct from occurring, the High Court held today. In the early hours of New Year’s Day 2003 a dispute arose on the dance floor of the Adeels Palace Restaurant, after a female patron accused another of brushing her hand with a lighted cigarette. Fighting erupted and became “more ferocious very quickly”. One of the patrons left the restaurant after he was struck in the face. He returned soon after with a gun. In an unprovoked act he shot Mr Bou Najem in the leg in the restaurant’s kitchen. He then went into the restaurant proper and found Mr Moubarak, the man who had struck him. He shot Mr Moubarak in the stomach. Mr Moubarak and Mr Bou Najem both sued Adeels Palace, alleging that they had suffered their injuries as a result of the negligence of Adeels Palace in failing to provide any or any sufficient security during the New Year’s Eve function. Both men were successful in the NSW District Court. The Court of Appeal for NSW dismissed appeals filed by Adeels Palace. The High Court granted Adeels Palace special leave to appeal. The High Court held that the issues in the case had to be determined in the light of the relevant provisions of the Liquor Act 1982 (NSW) and the Civil Liability Act 2002 (NSW). The High Court concluded that, concomitant with its responsibilities under the Liquor Act to not permit indecent, violent or quarrelsome behaviour on licensed premises and to eject persons who engaged in such behaviour, Adeels Palace owed a duty to all of its patrons (including Mr Moubarak and Mr Bou Najem) to take reasonable care to prevent injury arising from the violent, quarrelsome or disorderly conduct of other persons. However, the High Court held it was unnecessary to determine whether there had been a breach of the duty. That was because the evidence did not establish that the provision of greater security, to the level which Mr Moubarak and Mr Bou Najem argued should have been provided, would have either deterred or prevented the gunman from re-entering the restaurant. Section 5D of the Civil Liability Act required Mr Moubarak and Mr Bou Najem to establish that the restaurant’s negligence in failing to provide any or any sufficient security was a necessary cause of the damage they each suffered, but the evidence only went so far as to establish that if there had been more security in the restaurant on New Year’s Eve that might have prevented the damage caused by the gunman. It did not show that more security would, on the balance of probabilities, have prevented their injuries. The High Court allowed each appeal and ordered that the decisions of both the Court of Appeal and the District Court be set aside. |
HIGH COURT OF AUSTRALIA 8 September 2005 PHILIP RUDDOCK, KAY PATTERSON AND COMMONWEALTH OF AUSTRALIA v The High Court of Australia today overturned an award of damages of $116,000 paid to Mr Taylor after he was put into immigration detention when his visa was cancelled on character grounds. British-born Mr Taylor, 45, came to Australia with his family in 1966. He is not an Australian citizen but has held a permanent transitional visa. In 1996, Mr Taylor pleaded guilty to a number of sexual offences and served three-and-a-half years in jail. Twice after his release in 1999 his visa was cancelled on character grounds under section 501 of the Migration Act due to his criminal record and he was taken into immigration detention. Both decisions cancelling his visa were quashed by the High Court, the first by Justice Callinan and the second by the Full Court. Mr Taylor’s periods in detention in 1999-2000 totalled 316 days. Mr Taylor sued the then Immigration Minister Mr Ruddock, the then Parliamentary Secretary Senator Patterson and the Commonwealth for damages for false imprisonment. The New South Wales District Court awarded him $116,000. The Ministers and the Commonwealth appealed unsuccessfully to the NSW Court of Appeal. They then appealed to the High Court. In 2003, between the Court of Appeal decision and today’s appeal, the High Court held in Shaw v Minister for Immigration and Multicultural Affairs that anyone born outside Australia to non-Australian parents, including British subjects, was, unless naturalised, an alien. The effect of the Shaw judgment was to support the legal basis upon which the authorities had acted in Mr Taylor’s case. Today’s appeal turned on section 189 of the Act which provides that if an officer knows or reasonably suspects that a person is an unlawful non-citizen the officer must detain the person. That section was held to apply to the present case. The High Court, by a 5-2 majority, allowed the appeal. |
HIGH COURT OF AUSTRALIA Public Information Officer 30 July 2008 NELSON GUANG LAI SHI v MIGRATION AGENTS REGISTRATION AUTHORITY The Administrative Appeals Tribunal (AAT) was entitled to take account of fresh evidence when reviewing a decision by the Migration Agents Registration Authority (MARA) to cancel a migration agent’s registration, the High Court of Australia held today. The Court held that the AAT was entitled to lift a caution imposed on an agent in the light of the evidence of subsequent events. In July 2003, MARA cancelled Mr Shi’s registration. It refused to renew his registration in October 2003, suspended his registration in April 2004, and again refused to renew his registration in August 2004. Each decision was stayed, enabling Mr Shi to continue acting under supervision as a migration agent. The stay of the cancellation was conditional upon his undertaking not to handle protection visas and upon his being supervised by another agent. MARA had found 98 breaches of the Code of Conduct prescribed under the Migration Act. These related to Mr Shi’s dealings with clients; his knowledge of the Act and regulations; his control of his office, financial and other records; and his supervision of staff. Most of the breaches of the Code concerned applications for protection visas. MARA was satisfied Mr Shi was not a person of integrity or a fit or proper person to give immigration assistance. He applied to the AAT for review of the cancellation decision. On 6 April 2005, the AAT published its findings about the breaches of the Code of Conduct. It found 51 breaches, concluding that other breaches had not been established. On 2 September 2005, the AAT published its decision on the review of MARA’s decision about Mr Shi’s registration. It concluded that it was not satisfied that he was not a person of integrity or not otherwise a fit and proper person to give immigration assistance, and set aside the cancellation decision and the other decisions. The AAT decided Mr Shi should instead be cautioned and that the caution would be lifted on 1 September 2008 so long as he did not assist with protection visas and if he were supervised by another migration agent. In deciding whether or not Mr Shi was person of integrity or was a fit and proper person, the AAT took into account evidence of his conduct since July 2003 when MARA cancelled his registration. MARA appealed to the Federal Court of Australia, which accepted its submission that the AAT had made an error of law by asking whether, at the time the AAT made its decision in September 2005, Mr Shi was shown not to be a person of integrity or was not a fit and proper person to give immigration assistance. MARA argued that the appropriate time for consideration of the evidence was July 2003 and that the AAT should have considered whether at that date the proper action was to cancel Mr Shi’s registration. Justice Richard Edmonds held that neither MARA nor the AAT could set conditions for the lifting of a caution given to a migration agent if those conditions could not be imposed as conditions of registration. Mr Shi appealed to the Full Court of the Federal Court which, by majority, dismissed the appeal. He then appealed to the High Court. The Court, by a 4-1 majority, allowed the appeal and ordered that the AAT decision be restored. The Court unanimously held that the AAT was not restricted to considering evidence of the facts and circumstances as they existed at the time of MARA’s decision. The AAT was empowered under the AAT Act to exercise all the powers and discretions conferred on MARA by the Migration Act. The majority further held that the AAT was entitled to impose the conditions it did when cautioning Mr Shi and to lift the caution. The Migration Act provides for MARA to caution an agent and to set conditions for the lifting of a caution and the majority held that the AAT could also exercise these powers. |
HIGH COURT OF AUSTRALIA Manager, Public Information 29 July 2009 MALCOLM GEOFFREY VALE v RODERICK MACKAY SUTHERLAND [2009] HCA 26 Today the High Court handed down a decision about notices which the Official Receiver may issue under the Bankruptcy Act to recover money or property received by a third party through a void transaction with a bankrupt. Significantly, the Court held that in general any dispute between parties about the value of property that is the subject of such a notice should be determined in proceedings to recover the debt rather than in a proceeding to set the notice aside. On 23 April 1999 Mr Vale became the sole proprietor of seven parcels of land (“the property”) after his wife transferred her half share in the property to him for $2.00. Mr and Mrs Vale obtained two separate valuations of the property prior to the transfer. The first valuation dated 28 September 1998 valued the property in a range between $520,000 and $540,000 and contained a disclaimer that it was “an opinion of a reasonable asking price only and not to be taken as a sworn valuation”. The second valuation dated 31 March 1999 was undertaken by a registered valuer. It valued the property at $416,700 and contained no disclaimer. Mrs Vale committed an act of bankruptcy on 26 February 2001. A sequestration order was made against Mrs Vale in April 2001 and a Trustee was appointed to manage her estate on behalf of her creditors. In May 2002, relying on the fact that the transfer of the property to Mr Vale was void against the Trustee because it had occurred within 5 years of the commencement of Mrs Vale’s bankruptcy and Mr Vale had paid less than market value for the property, the Official Receiver, on application by the Trustee, issued a notice to Mr Vale, pursuant to section 139ZQ of the Bankruptcy Act. The notice required him to pay $270,000 to the Trustee, being one half of the highest assessed value of the property. Eventually the Trustee sought to recover judgment against Mr Vale for $270,000 in the Federal Magistrates Court. Mr Vale disputed the validity of the notice, arguing that it did not comply with section 139ZQ. The Federal Magistrate agreed, set aside the notice and refused the Trustee’s claim. By majority, the Full Court of the Federal Court allowed the Trustee’s appeal. The High Court granted special leave to appeal the Full Court’s decision. At hearing both parties agreed that the transfer of Mrs Vale’s share of the property to Mr Vale was void as against the Trustee. However the parties disagreed on the value of Mrs Vale’s share and thus the amount Mr Vale had to pay to the Trustee in respect of that share. All members of the High Court accepted the Trustee’s submissions that the section 139ZQ notice was not invalid for having arguably misstated the value of the property and the amount Mr Vale owed to the Trustee. Any disagreement between the parties about the value of the property referred to in the notice should be determined in proceedings to recover the debt, rather than in an argument about the validity of the notice. The Court referred the parties to the definition of “value” in section 139K of the Bankruptcy Act to establish that the relevant “value of the property received” in respect of a notice issued under section 139ZQ was the value of the property at the date the notice was given. The parties themselves eventually agreed before the High Court that the best evidence about the value of the property at the date the notice was given was the valuation of the registered valuer dated 31 March 1999, of $416,700. The High Court ordered that judgment be entered for the Trustee in the amount of $208,350 (one half of $416,700) and that all question concerning the award of interest on that sum be remitted to the Federal Magistrates Court for determination. The Trustee agreed to pay Mr Vale’s costs of the appeal to the High Court. |
HIGH COURT OF AUSTRALIA 12 November 2009 Manager, Public Information INTERNATIONAL FINANCE TRUST COMPANY LTD & ANOR v NEW SOUTH WALES CRIME COMMISSION & ORS [2009] HCA 49 Section 10 of the Criminal Assets Recovery Act 1990 (NSW) (the Act) is constitutionally invalid, a majority of the High Court held today. On 13 May 2008 the New South Wales Crime Commission commenced proceedings in the New South Wales Supreme Court which sought, amongst other things, restraining orders under section 10 of the Act in relation to various bank and share trading accounts over which the appellants in this case (International Finance Trust Company Ltd and International Finance Trust Company Broking Services Ltd) exercised effective control. Section 10(2)(b) of the Act effectively provides that the Commission may make an ex parte application (ie – an application made without notice to the affected party and determined in the absence of that party) to the Supreme Court for a restraining order preventing dealings with interests in property which is suspected to have been derived from serious crime related activity. Under section 10(3) of the Act the Supreme Court must make the order if the application for the order is supported by an affidavit of an authorised officer which deposes to the grounds upon which the officer suspects the property is serious crime derived property, and, having regard to the matters raised in the affidavit, the Supreme Court considers there are reasonable grounds for the suspicion. The party whose property interest is affected by the order may apply under section 25 of the Act for orders excluding those interests from the operation of the restraining order, but must prove that it is more probable than not that the property was not acquired fraudulently or illegally. A single judge of the Supreme Court made the order sought. On appeal the Court of Appeal of the Supreme Court of New South Wales set aside the restraining order – a majority of that court found there was no admissible evidence before the primary judge that provided reasonable grounds for the suspicion asserted by the authorised officer in the affidavit supporting the original application. However, the Court of Appeal unanimously rejected an argument that section 10 was constitutionally invalid. The High Court granted special leave to appeal against that decision. By majority the High Court determined that section 10 was invalid. The majority considered that section 10 did not require the Commission to make ex parte applications for restraining orders. However, if the Commission did make an ex parte application, then the Supreme Court was required to make the restraining order if it was satisfied that the authorised officer’s affidavit reasonably supported that officer’s suspicions about the derivation of the property the subject of the application. Once the order was made, it could only be discharged in two circumstances: if an application for assets forfeiture was no longer pending in the Supreme Court (however the legislation imposed no limit on the time within which an assets forfeiture application had to be determined); or upon an application by the affected party under section 25 of the Act, which could only succeed if the affected party was able to prove it was more probable than not that the relevant property was not fraudulently or illegally acquired – a negative proposition of broad import. The majority concluded that in these circumstances section 10 was “repugnant to the judicial process in a fundamental degree”. The Court allowed the appeal, ordered that the relevant proceedings in the Supreme Court should be dismissed with costs, and declared section 10 invalid. |
HIGH COURT OF AUSTRALIA 30 October 2013 [2013] HCA 41 Today the High Court, by majority, held that Comcare, the appellant, was not liable to pay compensation to a Commonwealth government employee who, whilst staying overnight on a work-related trip to a regional town, suffered injuries whilst engaging in sexual intercourse in the motel room her employer had booked for her. The respondent had been required by her employer to work for two consecutive days in a regional town away from her ordinary place of residence. She stayed overnight at a local motel which had been booked by her employer. Whilst at the motel, the respondent engaged in sexual intercourse with an acquaintance. In that process, a glass light fitting above the bed was pulled from its mount and struck the respondent on her nose and mouth, causing her physical injuries and a subsequent psychological injury. The respondent sought compensation from Comcare under the Safety, Rehabilitation and Compensation Act 1988 (Cth) ("the Act"). She argued that her injuries were suffered "in the course of" her employment and that she was, therefore, entitled to compensation. The Administrative Appeals Tribunal ("the Tribunal") held that the respondent's injuries were unrelated to her employment. On appeal, the Federal Court of Australia set aside the Tribunal's decision. The Federal Court's decision was then upheld by the Full Court of the Federal Court. The Full Court held that the respondent's injuries occurred in an "interval or interlude" during an overall period of work and, therefore, arose in the course of her employment. An interval or interlude existed because the respondent's employer had induced or encouraged her to spend the night at a particular place – the motel. It was not necessary to show that the respondent's employer had induced or encouraged her to engage in the particular activity in which she was engaged when her injuries were suffered. By special leave, Comcare appealed to the High Court. The High Court allowed Comcare's appeal. A majority of the High Court held that in order for an injury sustained in an interval or interlude during an overall period of work to be in the course of an employee's employment, the circumstances in which the employee was injured must be connected to an inducement or encouragement by the employer. If the employee is injured whilst engaged in an activity at a certain place, that connection does not exist merely because of an inducement or encouragement to be at that place. When the circumstances of an injury involve the employee engaging in an activity at the time of the injury, the relevant question is: did the employer induce or encourage the employee to engage in that activity? On the facts of the respondent's case, the majority held that the answer to that question was 'no'. |
HIGH COURT OF AUSTRALIA 13 June 2006 Public Information Officer The High Court of Australia today upheld a tree feller’s claim that he had suffered injury as a result of negligent instructions given to him by Forestry Tasmania. In September 1998, Mr Coote, who had 20 years’ experience as a tree feller, was working for AG & GR Padgett Pty Ltd in a logging coupe in a State forest in northern Tasmania. Two sawlog trees he felled brushed a third tree as they fell. Mr Coote later walked under that tree. A branch fell and hit him, leaving him a paraplegic. Mr Coote contended that he would have felled the brushed tree, a pulpwood tree, before felling the two sawlog trees but he had been directed not to fell pulp trees unless they posed a real danger. Ordinarily, felling operations permitted removal of both sawlogs and pulpwood, but the timber harvesting plan for the coupe required mainly sawlogs. Forestry Tasmania’s officer, Peter Johnstone, Padgett’s former logging foreman, allegedly told Mr Coote to cut sawlogs and only to remove pulpwood trees if they would be directly struck, rather than merely brushed, by another falling tree. Mr Coote brought an action in the Tasmanian Supreme Court for damages for breach of statutory duty and negligence against four defendants. Claims against Padgett and Wesley Vale Engineering Pty Ltd, which had engaged Padgett to harvest timber from the coupe, were settled and the action against the State of Tasmania was discontinued early. Justice Alan Blow found Mr Coote had been injured as a result of Forestry Tasmania’s negligence as it failed to instruct him to fell first any trees that “potentially posed a danger” when the risk of injury from falling trees was reasonably foreseeable. Instead, Mr Coote was only told to remove trees he considered “too much of a danger to leave standing”. Justice Blow reduced the recoverable damages by one-sixth for Mr Coote’s contributory negligence of walking under the pulp tree shortly after it was brushed. Damages and questions of contribution to those damages between the defendants have yet to be assessed. The Full Court of the Supreme Court allowed an appeal by Forestry Tasmania. It held that Mr Coote’s failure to fell the pulp tree first was an error of judgment by him and that he understood he had the right to fell any trees that potentially posed a danger. He appealed to the High Court, which unanimously allowed the appeal. It held that the Full Court fell into factual error by holding that Mr Coote was free to fell any tree that posed a potential danger, rather than any tree that posed too much of a danger, during the harvest of this particular coupe. The Full Court erred in failing to treat the unusual requirements of this harvest, with Mr Johnstone’s particular instructions about not felling pulp trees as Mr Coote normally would, as significant. The High Court held that there was no error in Justice Blow’s reasoning. It ordered that, because Forestry Tasmania’s Full Court appeal against Justice Blow’s findings about contributory negligence and contribution between defendants remains undetermined, the matter be remitted to the Full Court for consideration of the remainder of that appeal. |
HIGH COURT OF AUSTRALIA 4 September 2019 BRISBANE CITY COUNCIL v AMOS [2019] HCA 27 Today the High Court unanimously dismissed an appeal from a decision of the Court of Appeal of the Supreme Court of Queensland. The High Court unanimously upheld the conclusion of the majority of the Court of Appeal that s 26(1) of the Limitation of Actions Act 1974 (Qld) does not extend or exclude the operation of s 10(1) of that Act. This means that a defendant is entitled to plead the shorter limitation period under s 10(1) where those limitation periods overlap. The appellant, Brisbane City Council, sought to recover overdue and unpaid rates, with interest, which were levied upon the rateable land of the respondent, Mr Amos, by rates notices issued in the period from 30 April 1999 to 9 January 2012. Under the Local Government Act 1993 (Qld) and later the City of Brisbane Act 2010 (Qld), overdue and unpaid rates are a charge on the land. At issue was which of two potentially applicable limitation periods, a 12 year limitation period under s 26(1) of the Limitation of Actions Act or a six year limitation period under s 10(1)(d) of the Limitation of Actions Act, applied to the Council's claim. Relevantly to this appeal, s 26(1) applies a limitation period for debts created by statute and secured by charge, whilst s 10(1)(d) applies a limitation period to "an action to recover a sum recoverable by virtue of any enactment". Before the late nineteenth century, any overlap that would otherwise have occurred between these provisions was resolved by applying the limitation period in the predecessor provision to s 26(1) only to real or proprietary claims and confining the limitation period in the predecessor provision to s 10(1)(d) to personal claims. However, from the late nineteenth century, the limitation period for sums of money secured by charge was extended also to bar personal claims. In Barnes v Glenton [1899] 1 QB 885, the Court of Appeal of England and Wales held that while there may be overlapping limitation periods for a personal claim to recover a sum secured by a mortgage or other charge, any longer limitation period in the predecessor provision to s 26(1) would not extend the shorter limitation period applicable under the predecessor to s 10(1)(d). When Parliament re-enacts provisions with a well-understood meaning, it will generally be assumed that Parliament intended the words to have that meaning. Barnes v Glenton had been consistently followed by judicial authority and textbook writers when the Limitation of Actions Act was enacted in 1974 in light of this history. The more recent authorities, including ANZ Banking Group Limited v Douglas Morris Investments Pty Ltd [1992] 1 Qd R 478, do not gainsay the approach set out in Barnes v Glenton. On this basis, the High Court dismissed the appeal. |
HIGH COURT OF AUSTRALIA Public Information Officer 10 December, 2002 DOW JONES & COMPANY INC v JOSEPH GUTNICK The High Court of Australia has unanimously dismissed an appeal brought by Dow Jones in connection with a defamation action commenced against it in the Supreme Court of Victoria. The action was brought by Melbourne businessman Mr Joe Gutnick, who claims to have been defamed in an article made available on a subscription website on the Internet. The Court was asked to determine where that article was published. It has made no findings on the merits of the defamation action itself. Dow Jones publishes Barron’s Magazine, an American high-circulation weekly investment and finance magazine, available both in hard copy and on the Internet. Dow Jones’s website servers are located in New Jersey in the United States. An October 2000 edition of Barron’s Magazine carried an article making several references to Mr Gutnick. Mr Gutnick is a resident of Victoria and has his business headquarters there. He commenced proceedings in the Supreme Court of Victoria claiming damages for being defamed in Victoria. Dow Jones applied to have the proceedings stayed. It raised an issue as to whether the allegedly defamatory material was published in Victoria. Dow Jones claimed it was published only in New Jersey. The Supreme Court held that publication of the web article occurred in Victoria, where the article was available for viewing. The Supreme Court refused Dow Jones’s application. The Victorian Court of Appeal refused Dow Jones leave to appeal. Dow Jones then obtained special leave to appeal to the High Court, which heard and dismissed the appeal. Mr Gutnick’s action can now proceed in the Supreme Court. |
HIGH COURT OF AUSTRALIA 11 April 2018 WET044 v THE REPUBLIC OF NAURU [2018] HCA 14 Today the High Court unanimously dismissed an appeal from the Supreme Court of Nauru. The Court held that there was no merit to the appellant's contentions that the Refugee Status Review Tribunal ("the Tribunal") had failed to consider relevant country information or that he had been denied procedural fairness. The appellant is an Iranian citizen of Faili Kurdish ethnicity. He arrived by boat at Christmas Island in 2013 and was subsequently transferred to Nauru. There he applied under the Refugees Convention Act 2012 (Nr) to be recognised as a refugee or, alternatively, as a person to whom Nauru owed complementary protection under its other international obligations. The application was refused by the Secretary of the Department of Justice and Border Control ("the Secretary"). The appellant appealed to the Tribunal. The appellant's legal representative placed before the Tribunal additional evidence, submissions, and material in support of those submissions, including country information. The Tribunal accepted that failed asylum seekers may be at risk if returned to Iran, but did not accept that mere membership of that group gave rise to a well-founded fear of persecution. The Tribunal adopted the reasons and affirmed the decision of the Secretary. The appellant appealed this decision to the Supreme Court of Nauru. The Supreme Court dismissed the appeal. The appellant appealed as of right to the High Court. The appellant alleged error by the Tribunal, arguing that it failed to deal with the country information submitted by the appellant regarding the risk of returning to Iran as a failed asylum seeker. The appellant subsequently sought leave to amend his notice of appeal to expand the first ground and insert a new ground contending that the Tribunal acted in a way that was procedurally unfair by failing to put to him the nature and content of country information it relied upon concerning the risk of harm to Kurds who are Shia Muslim. Neither ground was raised before the Supreme Court of Nauru. The High Court considered there to be no merit in either ground of appeal. The country information regarding failed asylum seekers was read by the Tribunal. Further, most of the additional information was before the Secretary in one form or another and did not contradict the opinions stated by the Secretary. In relation to the second ground, the Court found that the country information relied upon by the Tribunal was in fact known to the appellant. The Court therefore refused leave to amend the notice of appeal and dismissed the appeal. |
HIGH COURT OF AUSTRALIA 29 March 2017 DAVID KENDIRJIAN v EUGENE LEPORE & ANOR [2017] HCA 13 Today the High Court unanimously allowed an appeal from the Court of Appeal of the Supreme Court of New South Wales in relation to the second respondent to the appeal. The High Court held that advocates' immunity from suit does not extend to negligent advice not to compromise a proceeding which then proceeds to a judicial decision. In November 1999, the appellant was injured in a car accident. In 2004, he commenced legal proceedings in the District Court of New South Wales against the other driver involved in the accident, who admitted liability. On the first day of the trial on quantum, the other driver's legal representatives made a settlement offer to the appellant's solicitor (the first respondent) and barrister (the second respondent) of $600,000 plus costs. The settlement offer was not accepted so the trial proceeded. Ultimately, the appellant obtained judgment for $308,432.75 plus costs. An appeal to the Court of Appeal in relation to quantum was dismissed. In 2012, the appellant brought a claim in the District Court against the respondents. The appellant alleged that the respondents were negligent in advising him in relation to the settlement offer. Central to his claim were allegations that the respondents did not advise him of the amount of the settlement offer, "but merely of the fact that an offer had been made". The appellant also pleaded that the respondents rejected the settlement offer, "absent any express instructions" from him, because the offer was "too low". The respondents successfully brought an application in the District Court for summary judgment. The District Court held that the respondents' conduct was covered by advocates' immunity. This conclusion was upheld by the Court of Appeal. By grant of special leave, the appellant appealed to the High Court. In November 2016, the Court made orders by consent allowing the appeal in relation to the first respondent. Today, the Court unanimously allowed the appeal in relation to the second respondent. The Court held that advocates' immunity did not extend to the advice given in relation to the settlement offer because the advice did not affect the judicial determination of the case. The Court declined to distinguish or reopen its most recent decision on advocates' immunity, Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 90 ALJR 572; 331 ALR 1; [2016] HCA 16. |
HIGH COURT OF AUSTRALIA Public Information Officer 30 August 2006 MOBIL OIL AUSTRALIA PTY LIMITED v TRENDLEN PTY LIMITED A single petrol retailer could not commence representative proceedings to recover invalid licensing fees from Mobil on the basis that other retailers may join in the proceedings later, the High Court of Australia held today. The appeal raised many of the same issues as those raised in the Campbells Cash and Carry v Fostif group of cases heard at the same time. Five States and the ACT had schemes for the licensing of petroleum sellers. The relevant legislation was similar to tobacco licensing legislation struck down by the High Court’s 1997 decision in Ha v New South Wales which held that tobacco licensing fees amounted to constitutionally invalid excise duties. (Only the Commonwealth can impose excise.) Mobil is a petrol wholesaler and Trendlen a retailer. Mobil had paid licence fees to the State of New South Wales based on the value of petrol sold and passed those fees on to retailers including Trendlen. Trendlen contends it was entitled to recover fees paid to Mobil but which Mobil no longer had to pay to NSW following the Ha decision. Trendlen brought proceedings in the NSW Supreme Court against Mobil and these proceedings were commenced as representative proceedings. Two other representative proceedings were commenced at the same time by other petroleum retailers against petrol wholesalers. All three were commenced on their behalf by litigation funder Firmstones Pty Ltd which was to receive one-third of any amounts recovered from wholesalers plus any costs awarded to the retailers. Firmstones would bear any costs made against the retailers. The Trendlen summons claimed the refund of fees on behalf of itself and a class of unnamed persons who could potentially opt in to be represented by it. Trendlen also sought discovery of the names of other petroleum retailers supplied by Mobil. Justice Robert McDougall, in light of what the NSW Court of Appeal had already decided in the Fostif group of cases, dismissed Mobil’s application for orders terminating proceedings or requiring that the proceedings not continue as representative proceedings. He ordered Mobil to provide Trendlen with a list of petrol retailers across five States and the ACT. Mobil appealed directly to the High Court, which allowed the appeal by a 5-2 majority. |
HIGH COURT OF AUSTRALIA 6 November 2019 FENNELL v THE QUEEN [2019] HCA 37 Today the High Court published its reasons for unanimously allowing an appeal from the Court of Appeal of the Supreme Court of Queensland. On 11 September 2019, the High Court quashed the appellant's ("Mr Fennell") conviction for murder and ordered that a verdict of acquittal be entered. In March 2016, Mr Fennell was convicted by a jury of the murder of Liselotte Watson in her home on Macleay Island and sentenced to life imprisonment. The Crown case at trial was entirely circumstantial: it relied on opportunity in the form of Mr Fennell's access to Mrs Watson's home where she was known to keep large amounts of cash; motive in the form of Mr Fennell's interest in concealing alleged thefts by him from Mrs Watson and his gambling habits; and a miscellany of other allegedly inculpatory matters, including evidence from a couple, Mr and Mrs Matheson, that a number of years before the murder, they lent Mr Fennell a hammer which they identified as the hammer alleged to be the murder weapon. The hammer alleged to be the murder weapon was found in mangroves off Macleay Island, a short distance from banking documents and a shaving bag belonging to Mrs Watson. The Court of Appeal dismissed Mr Fennell's appeal and held that the jury could have regarded Mr Matheson's evidence as convincing proof linking Mr Fennell to the alleged murder weapon. The Court of Appeal also found that there was sufficient evidence to support the Crown case on motive and opportunity. In the High Court, Mr Fennell appealed his conviction on the sole ground that the verdict was unreasonable or could not be supported having regard to the evidence. The High Court unanimously held that the Crown case on opportunity and motive was extremely weak and it did not put Mr Fennell in a relevantly different position from numerous other residents of Macleay Island who had the common knowledge that Mrs Watson kept large amounts of cash in her house. Police had searched Mr Fennell's home and examined his person and found nothing linking him to the murder. Neither his DNA nor fingerprints were found at the crime scene and he was excluded as a contributor of DNA taken from the shaving bag. In light of CCTV footage, his opportunity was, at best, a very small window of time, which required an assumption about the time of the murder that was contradicted by other evidence. Accounting evidence showed that his gambling habits had not changed, that he was not in debt, and that he was ahead on his mortgage repayments. The Crown conceded that if the Crown case on opportunity and motive was weak, Mr and Mrs Matheson's identification of the hammer found in the mangroves became essential evidence for a reasonable jury to convict Mr Fennell. The Court held that the evidence of Mr and Mrs Matheson identifying the hammer was glaringly improbable. Their evidence should have been given so little weight that, at best, it was barely admissible. The Court unanimously held that on the evidence it was not open for the jury to be satisfied of Mr Fennell's guilt beyond a reasonable doubt. |
HIGH COURT OF AUSTRALIA 22 September 2010 [2010] HCA 30 In 2008, Kevin Dickson was convicted in the Supreme Court of Victoria of conspiracy to steal under s 321 of the Crimes Act 1958 (Vic) ("the Victorian Crimes Act"). He was sentenced to imprisonment for five years and six months. The conspiracy involved an agreement to steal, contrary to s 74 of the Victorian Crimes Act, a large quantity of cigarettes. The cigarettes had been seized by the Australian Customs Service ("Customs") and transferred to a storage facility within a secured warehouse operated by Dominion Group (Vic) Pty Ltd ("Dominion"). Customs paid storage fees to Dominion for exclusive use of a padlocked area of the warehouse. A month after their transfer, the cigarettes were removed from the storage area by cutting the padlock that secured The charge against Mr Dickson and the conduct of his prosecution were based on there having been an offence committed against the law of Victoria alone. At trial, the judge directed the jury that they could assume that the cigarettes had been under the control of, and thus belonged to, Dominion. The Court of Appeal dismissed an application by Mr Dickson to appeal against his conviction and sentence. Mr Dickson then sought special leave to appeal to the High Court against the Court of Appeal's decision. On 23 April 2010, three Justices of the High Court referred some of the proposed grounds of appeal in his application for special leave for further consideration by an enlarged Bench of the Court. At the hearing, Mr Dickson sought and was granted special leave to appeal on a further ground based on the operation of s 109 of the Constitution. His submission was that the section of the Victorian Crimes Act under which he had been charged was inconsistent with provisions of the Criminal Code (Cth) ("the Commonwealth Criminal Code") concerning theft of Commonwealth property and conspiracy under federal law. He argued that, by operation of s 109 of the Constitution, the Victorian Crimes Act provision was therefore invalid to the extent of the inconsistency. The High Court today upheld Mr Dickson's appeal on this constitutional ground, quashing the presentment preferred against him and his conviction and setting aside his sentence of imprisonment. The Court held that the cigarettes that formed the basis of the offence with which he had been charged were property belonging to the Commonwealth because they were in the possession of Customs at the time they were stolen. That meant that the theft provision in s 131.1 of the Commonwealth Criminal Code applied and that the conspiracy provision in s 11.5 of the Commonwealth Criminal Code could attach to it. It also meant that, if the Victorian provisions had a relevant valid operation, the cigarettes were property belonging to the Commonwealth for the purposes of s 72 of the Victorian Crimes Act, which informs the meaning of the offence of theft found in s 74. The Court held that the Victorian conspiracy provision was directly inconsistent with the Commonwealth conspiracy provision because s 321 of the Victorian Crimes Act, if valid, effectively defined the offence of conspiracy more widely than conspiracy under s 11.5 of the Commonwealth Criminal Code. The Victorian provision would thereby alter, impair or detract from the operation of the Commonwealth law. The Victorian law was thus invalid to the extent of the inconsistency. By virtue of the Court's decision on the constitutional question, it was unnecessary for the Court to consider the remainder of Mr Dickson's application for special leave to appeal. The proposed grounds of appeal remaining in that application were thus dismissed. |
HIGH COURT OF AUSTRALIA 6 November 2013 OWEN JOHN KARPANY & ANOR v PETER JOHN DIETMAN [2013] HCA 47 Today the High Court unanimously allowed an appeal from a decision of the Full Court of the Supreme Court of South Australia, which had overturned a decision of the Magistrates Court of South Australia finding the applicants not guilty of possessing undersize abalone. The applicants are Aboriginal and members of the Narrunga People. They had taken undersize Greenlip abalone in accordance with their traditional laws and customs. They were charged with possessing undersize abalone contrary to s 72(2)(c) of the Fisheries Management Act 2007 (SA). In the Magistrates Court, the respondent conceded that the applicants' native title right to take fish from the relevant waters subsisted. The applicants argued that, by reason of s 211 of the Native Title Act 1993 (Cth), the prohibition in s 72(2)(c) of the Fisheries Management Act did not apply to their activities in taking abalone. Section 211 of the Native Title Act provides that, if a law prohibits a person from carrying on certain activities other than in accordance with a "licence, permit or other instrument" granted under that law, that law does not prohibit a native title holder from carrying on those activities for the purpose of satisfying their personal, domestic or non-commercial communal needs. Section 115 of the Fisheries Management Act allowed the Minister to exempt a person from provisions of that Act. The Magistrate found that that an exemption under s 115 amounted to a "licence, permit or other instrument" and therefore that s 72(2)(c) did not prohibit the applicants' conduct. On appeal to the Full Court, the respondent argued that the applicants' native title right had been extinguished by the Fisheries Act 1971 (SA) and that the magistrate had erred by characterising an exemption under s 115 of the Fisheries Management Act as a "licence, permit or other instrument". The Full Court, by majority, held that the applicants' native title right had been extinguished and, unanimously, held that in any event s 211 of the Native Title Act did not apply. It remitted the matter for re-sentencing. The applicants applied for special leave to appeal to the High Court and the application was referred to an enlarged bench. The High Court unanimously held that the applicants' native title right had not been extinguished because, for the reasons given in Akiba v The Commonwealth (2013) 87 ALJR 916; 300 ALR 1; [2013] HCA 33, the Fisheries Act regulated but was not inconsistent with the continued enjoyment of native title rights. It further held that an exemption under s 115 of the Fisheries Management Act was a "licence, permit or other instrument". The consequence, provided by s 211 of the Native Title Act, was that s 72(2)(c) of the Fisheries Management Act did not prohibit the applicants, as native title holders, from gathering or fishing for undersize abalone in the waters concerned, where they did so for the purpose of satisfying their personal, domestic or non-commercial communal needs and in exercise or enjoyment of their native title rights and interests. |
HIGH COURT OF AUSTRALIA 27 September 2005 PAUL JOSEPH FAVELL AND DIANA GRACE FAVELL v QUEENSLAND NEWSPAPERS A story in Brisbane’s Sunday Mail newspaper was capable of bearing the defamatory meanings complained of by Mr and Mrs Favell, the High Court of Australia held today. The story, written by Ms Lawrence and published on 19 January 2003, reported that a fire had destroyed a riverside Brisbane home on a site where the Favells hoped to build a five-storey block of units. The Favell family was holidaying overseas and house-sitting relatives were absent at the time of the fire. The story quoted neighbours opposed to the development while Mrs Favell was quoted as saying that neighbours had been given the plans and “were fine about it”. A detective from the arson squad was quoted as saying all fires were treated as suspicious until proven otherwise. The link between the house burning down and what the story said was the controversial plan to redevelop the New Farm site was at the centre of the Favells’ defamation action. The headline was “Development site destroyed – Fire guts riverside mansion”. In the Queensland Supreme Court Justice John Helman struck out a large number of imputations that could not easily be differentiated from each other. He also rejected the claim that the story was capable of conveying the imputations that the Favells committed the crime of arson, that they were reasonably suspected by the police of committing arson, and that Mrs Favell lied about neighbourhood reaction to the proposed development. The Court of Appeal dismissed an appeal by the Favells, although it held that the story was capable of conveying an imputation similar to the second imputation. They appealed to the High Court. The Court held that Justice Helman was incorrect to hold that the article reported the fire and the circumstances surrounding it without comment and went no further that recording that the fire was under investigation. It unanimously allowed the appeal and held that the story was capable of conveying all three meanings complained of. It is now for a jury to determine whether the story did in fact convey those meanings. The Court held that factors which a jury could find pointed to the Favells being responsible for the fire included: the headline; opposition to the plan to build the block of units; the prospect of getting approval for the plan improving if the site were vacant; the unexplained absence of the house-sitters; the fire starting at 4am; security gates preventing access to strangers; Mrs Favell creating the impression that the development was not controversial; and the Favells’ absence overseas. The Court ordered that Queensland Newspapers’ application be remitted to the Supreme Court for further consideration of other unresolved issues about the pleading. |
HIGH COURT OF AUSTRALIA 18 October 2017 CHRISTOPHER CHARLES KOANI v THE QUEEN [2017] HCA 42 Today the High Court published its reasons for allowing an appeal from the Court of Appeal of the Supreme Court of Queensland on 17 August 2017. The High Court held unanimously that the Court of Appeal erred in concluding that a criminally negligent act or omission could found a conviction for the offence of murder under s 302(1)(a) of the Criminal Code (Q) ("the Code"). The appellant was charged with the murder of his de facto partner. The deceased's death was caused by a single gunshot wound to the head. The appellant had loaded a shotgun, presented it to the deceased and pulled the hammer back to be at least almost fully cocked at the time of discharge. The expert evidence was that the gun, which had been modified, might discharge when not fully cocked as the result of the shooter's finger slipping off the shortened hammer spur. The trial judge considered that, under the Code, the "act" causing death in a firearms case is the pulling of the trigger or another deliberate act causing the weapon to discharge. In these circumstances, the trial judge left the prosecution's alternative case to the jury: if the jury was not satisfied that the discharge of the gun was caused by a willed act, but was satisfied that the deceased's death was the result of the appellant's failure to use reasonable care in his management of the gun at a time at which he intended to kill or inflict grievous bodily harm on the deceased, he would be guilty of murder. The jury returned a verdict of guilty of murder and the appellant was later sentenced to life imprisonment. By majority, the Court of Appeal dismissed the appellant's appeal against his conviction. By grant of special leave, the appellant appealed to the High Court. The High Court held that it was an error of law to leave the alternative case for the jury's consideration: the act causing death and the intention to kill or inflict grievous bodily harm must coincide for a person to be found guilty of murder under s 302(1)(a) of the Code. It is incongruous to attach a requirement of proof of intent to conduct that is made an offence because it falls short of an objectively determined standard of reasonableness. The High Court further held that the perceived need to leave the alternative case to the jury was based on a wrongly confined understanding of the "act" to which criminal responsibility attaches. Under the Code, as under the common law, it was open to the jury to find that the appellant's actions in loading the gun, presenting it to the deceased and pulling back the hammer were connected, willed, acts, which caused the death of the deceased. The appellant's conviction was quashed and a new trial was ordered. |
HIGH COURT OF AUSTRALIA 14 October 2020 [2020] HCA 36 Today the High Court, by majority, allowed an appeal against a judgment and orders of the Full Court of the Supreme Court of South Australia sitting as the Court of Criminal Appeal. The appeal concerned whether the majority of the Full Court erred in quashing the respondent's conviction of an offence of intentionally being a member of a terrorist organisation contrary to s 102.3(1) of the Criminal Code (Cth) ("the Code"). On 13 July 2016, the respondent purchased a one-way ticket for a flight from Adelaide to Istanbul, Turkey. The following day, she was detained at Adelaide Airport whilst attempting to board the flight and was interviewed by Australian Federal Police ("AFP") officers about her reasons for travelling. The respondent's mobile phone was seized and was found to contain propaganda and extremist material produced by and expressing support for Islamic State, a "terrorist organisation" within the meaning of s 102.1 of the Code. Upon her phone being returned to her, the respondent used the phone to communicate with women who later carried out a terrorist attack in Mombasa, Kenya, in the name of Islamic State. A laptop computer subsequently seized from the respondent's home revealed that the respondent had accessed numerous blog posts containing practical advice for women travelling to Islamic State-controlled territory, which at that time included regions of Syria and Iraq bordering Turkey. A covert listening device installed in the respondent's home captured the respondent swearing a bay'ah (pledge of allegiance) to the then leader of Islamic State. On 23 May 2017, the respondent was charged with intentionally being a member of a terrorist organisation, namely Islamic State, contrary to s 102.3(1) of the Code. Section 102.1 of the Code defined "member of an organisation" as including "a person who has taken steps to become a member of the organisation". The Crown case at trial was that the respondent had intentionally taken steps to become a member of Islamic State. In addition to evidence of the respondent's attempted travel to Istanbul, evidence extracted from the respondent's electronic devices, records of the respondent's interviews with AFP officers and transcripts of audio files captured by listening devices installed in the respondent's home, the Crown adduced expert evidence as to the nature and activities of Islamic State, its aims and ideology, and its methods of attracting recruits and communicating with those adhering to its ideology. The jury returned a unanimous verdict of guilty. The respondent appealed against her conviction to the Full Court. By majority, the Full Court allowed the appeal and ordered that the respondent's conviction be quashed, finding that the evidence adduced at trial was incapable of sustaining the conviction because it did not establish how members of the terrorist organisation were recruited or selected or the process by which members were inducted and accepted into the organisation. By grant of special leave, the Crown appealed to the High Court. By notice of contention, the respondent contended that the trial judge's summing up was unbalanced and that the trial judge failed to properly direct the jury as to the elements of the offence. By majority, the High Court allowed the appeal and dismissed each of the grounds raised in the respondent's notice of contention, holding that it was open to the jury to be satisfied beyond reasonable doubt on the evidence adduced that the respondent intentionally took steps to become a member of Islamic State. The nature and purpose of the offence-creating provisions in Pt 5.3 of the Code dictate that they must be taken to extend to groups devoid of structural hierarchy that function in secrecy, with little formality, without a written constitution or set of rules, and without a contractual relationship between members. The offence of taking steps to become a member of a terrorist organisation in s 102.3(1) of the Code allows for the practical difficulties associated with the penetration of the unstructured and opaque nature of terrorist organisations to be surmounted by proof falling short of evidence establishing the process by which a terrorist organisation recruits, inducts and accepts members. The majority further held that the trial judge neither conflated the physical and mental elements of the offence nor failed to give the jury sufficient guidance as to what constituted steps to become a member of a terrorist organisation. The trial judge's summing up, though imperfect, was not unbalanced. |
HIGH COURT OF AUSTRALIA 9 December, 2003 APPELLANT S395 OF 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS APPELLANT S396 OF 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS The High Court of Australia today allowed an appeal from two men who claimed to have a well- founded fear of persecution in their native Bangladesh because of their homosexuality. The men arrived in Australia in 1999 and applied for protection visas, claiming refugee status. Their application was rejected by the Immigration Department, the Refugee Review Tribunal, the Federal Court and the Full Court of the Federal Court. The RRT raised doubts about their credibility, rejecting claims they were forced to leave their Dhaka home, that they had lost their jobs and that a religious court had issued a fatwa sentencing them to death by stoning. It also rejected the claim by one that he could not get work between 1980 and 1991, was sentenced to 300 lashes in 1985, and was attacked in his home with a previous male partner. The RRT said the men had conducted themselves discreetly in the past and rejected their claims that they had suffered, and would suffer, serious harm. The RRT did accept that the men were shunned by their families and may have been the subject of neighbours’ gossip, but held that this did not constitute persecution. The men claimed the Federal Court erred in failing to hold that the RRT’s decision involved an error of law, involving incorrect interpretation of the Migration Act or an incorrect application of the Act to the facts. They said that, having determined that homosexuality was unacceptable in Bangladesh and could lead to potential harm such as being bashed by police, the RRT erred in then holding that the men did not have a well-founded fear of persecution. The High Court, by a 4-3 majority, allowed the men’s appeals. It held that the RRT should have considered what might happen if they had lived openly as a homosexual couple. The majority held that the RRT also fell into jurisdictional error by dividing Bangladeshi homosexuals into two groups – discreet and non-discreet – and failed to consider whether the men might suffer harm if police, employers or others became aware of their homosexuality. Although they were discreet, it did not necessarily follow that they would not be persecuted. The question was whether particular individuals had a well-founded fear of being persecuted even though other members of a particular social group had not suffered persecution. The Court ordered the RRT to redetermine its review of the Immigration Department’s decision. |
HIGH COURT OF AUSTRALIA 10 February 2004 BROADCAST AUSTRALIA PTY LTD v MINISTER ASSISTING THE MINISTER FOR NATURAL RESOURCES (LANDS) A piece of land that the New South Wales government allowed the Commonwealth to use to build a television transmitter could validly be handed over to a company after the Commonwealth privatised its transmission network, the High Court of Australia held today. In 1961 the Minister granted a permissive occupancy to the Commonwealth over land at Mt Sugarloaf, near Newcastle, to build a transmission station. In 1998 the Minister gave notice of a redetermination of the rent. The Commonwealth objected but rent was set at $74,000 a year and in April 1999 the Commonwealth appealed to the NSW Land and Environment Court. Later that month, pursuant to the National Transmission Network Sale Act 1998, the Commonwealth Minister for Finance and Administration made a declaration vesting the Commonwealth’s entitlement to certain sites, including Mt Sugarloaf, in the company now known as Broadcast Australia. The company was then substituted for the Commonwealth in the Land and Environment Court proceedings. The Minister claimed the 1961 permissive occupancy was revoked by the Commonwealth ministerial declaration. This claim was rejected by the Land and Environment Court but upheld by a majority of the NSW Court of Appeal which held that without the Minister consenting to the transfer, the permissive occupancy would be terminated. In the High Court the Minister argued that while the permissive occupancy was in a sense a Commonwealth asset, it was a creation under NSW law and not an asset capable of being vested by Commonwealth statute in another body. The High Court unanimously held that for the Minister’s argument to be correct there had to be some provision of State law preventing the Commonwealth Act from taking effect and insulating the permissive occupancy from Commonwealth law. If there was such a State law it would have altered, impaired or detracted from the operation of the Commonwealth Act and would thus be invalid under section 109 of the Constitution to the extent of the inconsistency. Therefore, both the Commonwealth Act and the Commonwealth ministerial declaration took effect. The Court also held that the ministerial declaration did not revoke the permissive occupancy. It allowed Broadcast Australia’s appeal. |
HIGH COURT OF AUSTRALIA Public Information Officer 21 March 2007 ATTORNEY-GENERAL FOR THE STATE OF VICTORIA v KEVIN JAMES ANDREWS, MINISTER FOR EMPLOYMENT AND WORKPLACE RELATIONS; MEMBERS OF THE SAFETY, REHABILITATION AND COMPENSATION COMMISSION; OPTUS ADMINISTRATION PTY LTD AND VICTORIAN WORKCOVER AUTHORITY The High Court of Australia today upheld workers’ compensation laws which allowed large companies to opt out of compulsory State schemes. Optus argued that to have a level playing field it should be subject to the same Commonwealth workers’ compensation scheme as its main competitor, Telstra. It applied to the Minister to be declared an eligible corporation and to be licensed under the federal Safety, Rehabilitation and Compensation (SRC) Act. The licence was granted by the SRC Commission and took effect on 30 June 2005. Under the licence it is left to a corporation to organise its own insurance cover in respect of its liabilities for death or injury of workers. Optus expects to save $186,000 a month, or $2,232,000 a year, by opting out of Victorian WorkCover. Victoria and the Victorian WorkCover Authority (VWA) argue that the relevant provisions of the SRC Act are beyond Commonwealth legislative power to the extent that they purport to authorise the grant to Optus of a licence, authorise Optus to accept liability for workers’ compensation, and remove Optus from the scheme of State insurance. They say the provisions infringe the constitutional insurance power, section 51(xiv), which provides that Parliament has the power to make laws with respect to insurance, other than State insurance. The Minister argues that the power to enact the provisions is conferred by section 51(xx) (the corporations power) and/or by section 51(v) (dealing with postal, telegraphic, telephonic and other like services). The VWA issued proceedings in the Federal Court of Australia, seeking declarations that the licence granted to Optus was invalid and that the relevant provisions of the SRC Act were beyond the legislative power of the Commonwealth. Justice Bradley Selway dismissed the application. He found there was no basis for treating “State insurance” in section 51(xiv) as extending to State laws requiring persons to insure with a State insurer or conferring an economic monopoly on a State insurer. The Victorian Attorney-General appealed to the Full Court of the Federal Court and successfully applied to have the matter removed into the High Court. The High Court, by a 5-2 majority, dismissed the appeal and held that the licensing provisions of the SRC Act are valid. They were not laws with respect to insurance, whether State insurance or otherwise, but were rather supported by other heads of Commonwealth legislative power, including the corporations power in section 51(xx) of the Constitution. It held that a State law requiring Optus to meet liabilities under a State compensation scheme would alter, impair or detract from a federal scheme, so the State law would be invalid to the extent of the inconsistency under section 109 of the Constitution. The result of the operation of section 109 upon Victoria’s Accident Compensation Act is that Optus is not subject to compulsory WorkCover insurance. The Court held that Victorian provisions which are rendered invalid to the extent of inconsistency with federal licensing provisions share the character of laws with respect to workers’ compensation. The federal law did not otherwise impair Victoria’s capacity to conduct insurance business. |
HIGH COURT OF AUSTRALIA 7 October 2020 NORTHERN LAND COUNCIL & ANOR V QUALL & ANOR [2020] HCA 33 Today the High Court unanimously allowed an appeal from a judgment of the Full Court of the Federal Court of Australia. The issue raised by the appeal was whether the Northern Land Council ("the NLC") has the power to delegate to its Chief Executive Officer ("the CEO") the function conferred on it by s 203BE(1)(b) of the Native Title Act 1993 (Cth) ("the NT Act") of certifying applications for registration of indigenous land use agreements ("ILUAs"). Under s 203BE(5) of the NT Act, a representative body must not certify an application for registration of an ILUA unless it is of the opinion that all reasonable efforts have been made to ensure that all persons who hold or may hold native title in relation to land or waters in the area covered by the agreement have been identified and that those persons have authorised the making of the agreement. Under s 203BE(6), a certification of an application for registration of an ILUA must include a statement to the effect that the representative body is of the opinion that the requirements of s 203BE(5) have been met and briefly set out its reasons for being of that opinion. Section 27(1) of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) ("ALR Act") relevantly provides that, subject to the ALR Act, a Land Council may do all things necessary or convenient to be done for or in connection with the performance of its functions. In 2016, the NLC made an ILUA in relation to land and waters at the Cox Peninsula near Darwin which was varied in February 2017 ("the Kenbi ILUA"). In March 2017, the CEO signed a certificate purporting to act as a delegate of the NLC stating that the NLC certified the application for registration of the Kenbi ILUA pursuant to s 203BE(1)(b) of the NT Act and that the NLC was of the opinion that the requirements of s 203BE(5) were met. Mr Quall and Mr Fejo commenced judicial review proceedings in the Federal Court challenging the efficacy of the certificate on the grounds that the NLC's certification function under s 203BE(1)(b) was not delegable or, if it was delegable, it was not validly delegated by the NLC to the CEO. The primary judge rejected the first ground but accepted the second, with the result that the certificate was declared not to amount to certification pursuant to s 203BE(1)(b) of the NT Act. The NLC and the CEO appealed to the Full Court of the Federal Court, and Mr Quall and Mr Fejo brought a cross-appeal in which they argued that the NLC's certification function was not delegable. The Full Court allowed the cross-appeal on the basis that the certification function conferred by s 203BE(1)(b) was incapable of delegation, and as a result the issues in the appeal were not determined. The NLC and the CEO appealed to the High Court, contending that the Full Court erred in holding that the NLC did not have the power to delegate the certification function conferred by s 203BE(1)(b) of the NT Act to the CEO. The High Court unanimously allowed the appeal. The majority of the Court held that the NLC has power under s 27(1) of the ALR Act to delegate the certification function conferred by s 203BE(1)(b) of the NT Act to the CEO if and to the extent that such delegation is objectively necessary or convenient to be done for or in connection with the performance of the certification function or other functions of the NLC. The minority held that, while the certification function under s 203BE(1)(b) of the NT Act is not delegable, the CEO can perform this function as an agent of the NLC. The appeal to the Full Court was remitted for determination of whether the certification function conferred by s 203BE(1)(b) of the NT Act was in fact duly delegated by the NLC to the CEO under s 27(1) of the ALR Act. |
HIGH COURT OF AUSTRALIA 8 May 2019 BIANCA HOPE RINEHART & ANOR v HANCOCK PROSPECTING PTY LTD & ORS; BIANCA HOPE RINEHART & ANOR v GEORGINA HOPE RINEHART (IN HER PERSONAL CAPACITY AND AS TRUSTEE OF THE HOPE MARGARET HANCOCK TRUST AND AS TRUSTEE OF THE HFMF TRUST) & ORS [2019] HCA 13 Today the High Court unanimously dismissed appeals from two decisions of the Full Court of the Federal Court of Australia. The High Court found that disputes as to the validity of certain deeds are subject to arbitral clauses in those deeds. By majority, the High Court also allowed a cross-appeal from one of the decisions, finding that three companies who were not parties to the deeds were "part[ies]" within the meaning of s 2(1) of the Commercial Arbitration Act 2010 (NSW) ("the NSW Act"). The appeals and cross-appeal arise out of proceedings brought in the Federal Court of Australia by the appellants, Ms Bianca Rinehart and Mr John Hancock, in which they make a number of claims concerning the conduct of Mrs Gina Rinehart, Hancock Prospecting Pty Ltd ("HPPL") and others, which is said to have diminished the assets of trusts of which the appellants are beneficiaries ("the substantive claims"). Mrs Rinehart sought an order pursuant to s 8(1) of the NSW Act that the matters the subject of the proceedings be referred to arbitration. That sub-section relevantly provides that a court before which an action is brought in a matter which is the subject of an arbitration agreement must in certain circumstances refer the parties to arbitration. Mrs Rinehart, HPPL and other related companies also sought orders including that the proceedings be dismissed or permanently stayed. All of these applications relied upon a number of deeds between one or both of the appellants and various of the respondents. The three deeds the subject of the appeals ("the Deeds") came into existence against the background of and were addressed to claims and threats of litigation made publicly by Mr Hancock in relation to the substantive claims. Each Deed contains an arbitral clause providing that in the event of a dispute "under this deed" (or, in one of the Deeds, "hereunder") there is to be a confidential arbitration. The appellants claimed that the Deeds are void as against them because their assent was procured by misconduct on the part of Mrs Rinehart, HPPL and others ("the validity claims"). The primary judge held that the validity claims are not subject to the arbitral clauses, based on a perceived limitation on the scope of the clause resulting from the words "under this [deed]". The Full Court disagreed, holding that the arbitral clauses should be given a liberal interpretation, such that the arbitrator could deal with all issues, including the validity claims. The High Court unanimously held that it is clear that the arbitral clauses, construed in context, include as their subjects the validity claims. It could not have been understood by the parties to the Deeds that any challenge to the efficacy of the Deeds was to be determined in the public spotlight. In relation to the cross-appeal, at first instance three companies who are not parties to the Deeds applied for orders that the claims against them be referred to arbitration pursuant to s 8(1) of the NSW Act on the basis that each was a person claiming "through or under" a party to one of the Deeds, and, therefore, a "party" within the extended definition in s 2(1) of the NSW Act. The primary judge rejected the application, and the Full Court upheld the rejection. By majority, the High Court found that, having regard to the subject matter in controversy, the third party companies, as assignees of mining tenements from parties to the relevant Deed, are persons claiming "through or under" a party to that Deed and, therefore, are parties for the purposes of s 8 of the NSW Act. |
HIGH COURT OF AUSTRALIA 8 December 2005 A home owner holding a garage sale had not been negligent in failing to take measures to stop a customer tripping on an uneven driveway surface, the High Court of Australia held today. Ms Junkovic, then 53, attended the garage sale Ms Neindorf held at her home on Saturday, 5 February 2000. As she walked up the driveway she tripped on an uneven join in the concrete. One slab of concrete was 10 to 12mm higher than the other. The difference in height was clearly visible. Ms Junkovic fractured a bone in her right foot. She successfully sued Ms Neindorf in the Magistrates Court of South Australia. The Magistrate held that Ms Neindorf had breached the duty of care she owed Ms Junkovic and awarded damages of $24,464. Ms Neindorf successfully appealed to a single judge of the Supreme Court but this decision was overturned by a majority of the Full Court. She then appealed to the High Court. The Court, by a 4-1 majority, allowed the appeal. It held that Ms Neindorf had a duty to take reasonable care but in the circumstances this did not extend to taking action such as painting lines, erecting warning signs, carpeting over the join or placing a table over it. The Court said that the danger was minor and obvious and such cracks and unevenness were to be found in footpaths and driveways throughout suburban Australia. Eliminating or warning against all potential hazards encountered at most homes was not practicable. The SA Wrongs Act listed factors to be taken into account in assessing the appropriate standard of care owed by an occupier such as a home owner. However, section 17(3) provided that the fact that an occupier had not taken measures to eliminate, reduce or warn against a danger arising from the condition of premises does not necessarily show that the occupier had failed to exercise a reasonable standard of care. The Court held that there was no failure to exercise reasonable care in this case. |
HIGH COURT OF AUSTRALIA 21 October 2005 ERNEST VAIRY v WYONG SHIRE COUNCIL; GARRY SEAN MULLIGAN v COFFS HARBOUR CITY COUNCIL, STATE OF NEW SOUTH WALES, COFFS HARBOUR JETTY FORESHORE RESERVE TRUST AND WAL HAMBLEY Two men seriously injured in separate water recreation activities were unable to recover damages for their injuries, the High Court of Australia held today. Mr Vairy, now 46, became a tetraplegic when he dived off a rock platform at Soldiers Beach on 24 January 1993 during an outing with his sister’s family. Other people were jumping and diving off the rocks and Mr Vairy decided to do the same. He frequently swam, snorkelled and fished at Soldiers Beach but had never dived off the rocks. Mr Vairy could not see the seabed and did nothing to assess the water’s depth before diving. He sued the Wyong Council in the NSW Supreme Court, claiming the council was negligent by failing to erect signs prohibiting diving. Mr Vairy said he had hit his head on the seabed but the council said a collision with another person was more likely. Justice Virginia Bell held that he had struck his head on the ocean floor and that such a risk was foreseeable while signs banning or warning against diving were inexpensive. In 1978, another diver had struck his head on the ocean floor in the same spot and become a tetraplegic. Lifesavers often warned people not to dive from the platform but were often rudely rebuffed. Justice Bell awarded damages for the council’s negligence, but reduced them by 25 per cent for Mr Vairy’s contributory negligence to $5,054,753.25. The Court of Appeal, by majority, allowed the council’s appeal. Mr Vairy appealed to the High Court. Mr Mulligan, now 36, from Ireland, was in Australia on holiday with his girlfriend when he was rendered a quadriplegic while diving in Coffs Creek at Park Beach near Coffs Harbour on 24 January 1999. The creek had been altered to create a pool of sheltered water for swimming. Rock retaining walls created a fast-flowing channel into the pool. People regularly jumped and dived into the channel to be carried along by the water to the beach. Several times Mr Mulligan waded out into the water until the level of the creek bed fell, made a shallow dive and rode the water to the beach. He then struck his head on an elevated part of the creek bed. Mr Mulligan unsuccessfully sued the respondents for negligence for a lack of warning signs. The Court of Appeal unanimously dismissed an appeal and he appealed to the High Court. The appeals by Mr Mulligan and Mr Vairy were heard together in both the Court of Appeal and the High Court. The High Court dismissed both appeals, the appeal by Mr Vairy by a 4-3 majority, and the appeal by Mr Mulligan unanimously. In respect of Mr Vairy’s appeal, it held that Wyong Council’s duty of care did not include erecting signs warning against or prohibiting diving at Soldiers Beach, just one beach on the council’s 27km of coastline. Seawaters carry inherent risks and an experienced adult could be assumed to appreciate the risks of diving into the sea from a rock platform. In respect of Mr Mulligan’s appeal, the Court also held that Coffs Harbour Council’s duty of care did not extend to posting warning signs at Coffs Creek when the danger of diving into water of variable depth exists at most beaches and most waterways. |
HIGH COURT OF AUSTRALIA 5 October 2011 MULDROCK v THE QUEEN [2011] HCA 39 Today the High Court allowed an appeal from the Court of Criminal Appeal of the Supreme Court of New South Wales which had increased the non-parole period imposed on a mentally retarded sex offender from 96 days to six years and eight months. Mr Muldrock pleaded guilty before the District Court of New South Wales to the offence of sexual intercourse with a child aged under 10 years. Mr Muldrock is mentally retarded. He was sentenced to nine years' imprisonment with a non-parole period of 96 days. The judge imposed a condition of parole that Mr Muldrock reside at a residential treatment facility with a program designed to assist intellectually handicapped individuals to moderate their sexually inappropriate behaviour until it was determined that he be discharged. Mr Muldrock's application for leave to appeal against the severity of sentence was refused by the Court of Criminal Appeal and the respondent's appeal against the inadequacy of the length of the non-parole period was allowed. It was common ground that the sentencing judge's discretion had miscarried because he did not have the power to impose conditions on a parole order for a sentence of nine years' imprisonment. The Court of Criminal Appeal held that the non-parole period imposed upon Mr Muldrock was inappropriate and was critical of the sentencing judge's failure to consider the "objective seriousness" of the offence and the part that the standard non-parole period should play in determining the appropriate sentence. In doing so, the Court applied its earlier decision in R v Way (2004) 60 NSWLR 168 ("Way") on the application of Division 1A of Part 4 of the Crimes (Sentencing Procedure) Act 1999 (NSW), which prescribed standard non-parole periods for specified offences. Mr Muldrock was re-sentenced to a non-parole period of six years and eight months. Mr Muldrock appealed to the High Court by special leave. The High Court held that the Court of Criminal Appeal erred in refusing Mr Muldrock leave to appeal his sentence and that Way was wrongly decided with respect to the operation of standard non-parole periods. The High Court held that in sentencing for an offence to which standard non- parole periods applied a court is not required or permitted to engage in a two-stage approach and that the standard non-parole period should not have been determinative in sentencing Mr Muldrock. The High Court also held that, in re-sentencing Mr Muldrock, the Court of Criminal Appeal made various errors. In particular, the Court of Criminal Appeal did not take sufficient account of Mr Muldrock's mental retardation and erred in finding that Mr Muldrock would receive treatment in the prison system. The High Court held that the desirability of Mr Muldrock undergoing suitable rehabilitative treatment was capable of being a special circumstance justifying departure from the statutory proportion between the non-parole period and the term of the sentence and that the sentencing principles of punishment and denunciation did not require significant emphasis in light of Mr Muldrock's limited moral culpability for his offence. The Court held that nine years' imprisonment was manifestly excessive. The Court further held that the availability of orders under the Crimes (Serious Sex Offenders) Act 2006 (NSW) was not relevant to sentencing Mr Muldrock. |
HIGH COURT OF AUSTRALIA 4 March 2015 KORDA & ORS v AUSTRALIAN EXECUTOR TRUSTEES (SA) LIMITED [2015] HCA 6 Today the High Court unanimously allowed an appeal from a decision of the Court of Appeal of the Supreme Court of Victoria. The Court held that the proceeds of the sale of timber and scheme land, which were payable to the operators of a timber plantation investment scheme, were not subject to an express trust in favour of the scheme investors. The third appellant, "the Forest Company", planted pine trees on land it owned or leased. When the trees were mature, they were felled and the logs were sold by the fourth appellant, "the Milling Company". After making certain allowances and deductions, the Milling Company was to pay the residue of the proceeds of sale of the timber to the Forest Company by instalments. Prospectuses were issued seeking investment in the scheme. The scheme investors, "Covenantholders", entered into "Covenants" with the Forest Company. Each Covenant recorded that it entitled the Covenantholder to "the net proceeds from the timber apportionable" to a specified portion of the area planted by the Forest Company in the year stated in the Covenantholder's application. As the relevant legislation required, the Forest Company also made a deed with the respondent, "the Trustee Company", as trustee for the Covenantholders. Upon receiving the proceeds of sale of the timber from the Milling Company, the Forest Company was to retain specified expenses and then pay the balance of the proceeds to the Trustee Company for distribution to Covenantholders. The Trust Deed imposed numerous obligations on the Forest Company, but contained no provision expressly declaring or providing that the Forest Company was, or was to act as, a trustee. In September 2012, the first and second appellants were appointed as the receivers and managers over the Forest Company and Milling Company. The Trustee Company claimed on behalf of the Covenantholders that the proceeds of a sale of timber which was payable to the Milling Company, and the proceeds of a sale of land on which timber was grown which was payable to the Forest Company, were subject to an express trust in the hands of the Forest Company or the Milling Company in favour of the Covenantholders, and thus not available to the receivers and managers. The Trustee Company succeeded in the Supreme Court of Victoria and declarations were made that it was beneficially entitled to the tree sale proceeds and a proportion of the land sale proceeds. An appeal to the Court of Appeal of the Supreme Court of Victoria was dismissed by majority. By special leave, the receivers and managers and others appealed to the High Court. The High Court held that the scheme documentation did not support the existence of a trust or trusts over the proceeds in the hands of the Forest Company and Milling Company. |
HIGH COURT OF AUSTRALIA 3 April 2013 HUNT & HUNT LAWYERS v MITCHELL MORGAN NOMINEES PTY LTD & ORS [2013] HCA 10 Today a majority of the High Court allowed an appeal from a decision of the Court of Appeal of the Supreme Court of New South Wales, which held that the loss caused to the first and second respondents (together "Mitchell Morgan") by the negligent drafting of a mortgage by the appellant ("Hunt & Hunt") was distinct from the loss caused by two fraudsters who induced Mitchell Morgan to advance money on the security of the mortgage. On the basis of a fraudulently obtained certificate of title and forged documentation presented by the fraudsters, Mitchell Morgan advanced a sum of money to a bank account. The money was advanced on the security of a mortgage over a property. One of the fraudsters withdrew the money using forged cheques and then closed the account. Hunt & Hunt, a firm of lawyers, acted for Mitchell Morgan on the transaction and drafted the mortgage. Mitchell Morgan sought compensation from Hunt & Hunt. In the Supreme Court of New South Wales, Hunt & Hunt was held to have drafted the mortgage negligently, causing the loss claimed by Mitchell Morgan. However, the primary judge held that the conduct of each of the fraudsters was also a cause of that loss. Hunt & Hunt, together with each of the fraudsters, was therefore a concurrent wrongdoer and, under s 35(1) of the Civil Liability Act 2002 (NSW), the loss was apportioned between them according to what the primary judge considered was just. The Court of Appeal allowed Mitchell Morgan's appeal from that decision and held that Hunt & Hunt was wholly responsible for Mitchell Morgan's loss. The Court held that the loss suffered by Mitchell Morgan due to Hunt & Hunt's negligence was different from the loss suffered due to the fraudsters' conduct. Therefore, the fraudsters did not cause the loss claimed by Mitchell Morgan against Hunt & Hunt and they were not liable as concurrent wrongdoers in respect of it. By special leave, Hunt & Hunt appealed to the High Court. A majority of the High Court held that the loss suffered by Mitchell Morgan was its inability to recover the money advanced. While Hunt & Hunt's negligent drafting of the mortgage was a cause of that loss, Mitchell Morgan would never have needed to take a mortgage had it not been induced by the fraudsters to enter into the transaction. The fraudsters' conduct was a material cause of the loss Mitchell Morgan suffered. The majority reinstated the primary judge's conclusion on apportioning loss between the concurrent wrongdoers. |
HIGH COURT OF AUSTRALIA 12 November 2008 COMMISSIONER OF TAXATION v SHANE DAY Public Information Officer A Customs officer charged with misconduct offences could claim a tax deduction for his legal expenses as the offences were connected with his work, the High Court of Australia held today. Shane Day was charged with failure of duty in 1998 and in 1999 and obtained legal advice and representation. The 1998 charge was of improper conduct by presenting his Customs identification to a clerk at the Downing Centre Local Court in Sydney to try to obtain information about a search warrant which had been executed on the Australian Customs Service. Mr Day was unsuccessful. The warrant had authorised the Australian Federal Police to search his workstation. An authorised Customs officer found that it was improper for Mr Day to have conveyed that his purpose was official. He was demoted and his salary reduced. The Disciplinary Appeal Committee found the charge proved but upgraded the position and salary from that directed by the inquiry officer. In judicial review proceedings in the Federal Court, Justice Roger Gyles held that the conduct was not improper and remitted the case to the Committee which set aside the direction of the inquiry officer and ordered the Commonwealth to pay Mr Day’s costs. A Full Court of the Federal Court dismissed the Commonwealth’s appeal from Justice Gyles’s decision. Mr Day was charged with a set of seven charges in 1999 and suspended without pay. Three charges related to his conduct in connection with a claim for a diesel fuel rebate by the partner of another Customs officer, including helping to create a false diary. The fourth charge was that he had acquired a work vehicle for a fellow officer to transport Mr Day’s daughter. Two charges involved his actions to conceal absences from work, by asking a colleague to cover for him and to switch his computer on, and by submitting a false attendance record. The seventh charge was that he failed to communicate information concerning an investigation into an individual. Mr Day commenced proceedings in the Federal Court to have the charges set aside, alleging that information obtained by the AFP through telephone intercepts as part of a criminal investigation was wrongly made available to Customs officials. That application, an appeal to a Full Court, and an application for special leave to appeal to the High Court were refused with costs. For the financial year 2001-02, Mr Day claimed that $37,077 of outstanding legal expenses should have been allowed as a tax deduction. The deduction was refused and the Tax Commissioner disallowed his objection to his income tax assessment. Mr Day appealed to the Federal Court. Justice Arthur Emmett held that the legal expenses were not deductible as they were not incurred in gaining or producing taxable income in accordance with section 8-1(1)(a) of the Income Tax Assessment Act, but also held that the Commissioner be estopped from contending that expenses from the 1999 charges were not deductible as it had earlier consented to a deduction for fees paid to one counsel for legal advice. The Full Court of the Federal Court, by majority, allowed the Commissioner’s appeal on the issue of estoppel, but allowed Mr Day’s cross-appeal, holding the expenses to have been properly deductible under section 8-1(1)(a). The Commissioner appealed to the High Court. The Court dismissed the appeal by a 4-1 majority. It held that Mr Day’s legal expenses were properly allowable as deductions. What was productive of his income was to be found in all the incidents of his position in Customs, including his obligation to observe standards of conduct which if breached might entail disciplinary charges. Mr Day’s outgoings by way of legal expenses followed upon the bringing of the charges with respect to his conduct, or misconduct. He was exposed to those charges and consequential expenses by reason of his office. The charges could not be viewed as remote from his office or of a private nature. Whether the charges were well-founded was not relevant to the question of deductibility. The Court held that the incurring of expenses by an employee to defend a charge that may result in their dismissal may not always establish a necessary connection to the employment which was productive of income. Much depended on what was entailed in the employment and duties it imposed upon an employee. In Mr Day’s case, the requisite connection was present. |
HIGH COURT OF AUSTRALIA 4 March 2015 AUSTRALIAN COMMUNICATIONS AND MEDIA AUTHORITY v TODAY FM (SYDNEY) PTY LTD [2015] HCA 7 Today the High Court unanimously held that the Australian Communications and Media Authority has power to make an administrative finding or express an opinion that a person has committed a criminal offence for the purpose of determining whether the holder of a commercial radio broadcasting licence ("a licensee") has breached the licence condition prescribed by cl 8(1)(g) of Sched 2 to the Broadcasting Services Act 1992 (Cth) ("the BSA"). That condition requires that a licensee not use its broadcasting service in the commission of an offence against a Commonwealth Act (other than the BSA) or a law of a State or Territory. In December 2012, Today FM (Sydney) Pty Ltd, a licensee, recorded a telephone call between two presenters of one of its radio programs and two members of the staff of the King Edward VII Hospital in London, at which the Duchess of Cambridge was an in-patient. Today FM did not obtain the consent of either of the hospital staff to the recording. The recording was broadcast during the program some hours later and re-broadcast the following day. The Authority initiated an investigation into the broadcast under the BSA and produced a preliminary investigation report, a copy of which was provided to Today FM. The report contained a preliminary finding that, in broadcasting the recording, Today FM had committed an offence under s 11 of the Surveillance Devices Act 2007 (NSW) ("the SDA") (which, relevantly, prohibits the communication of a private conversation obtained, without the consent of the principal parties to that conversation, through the use of a listening device) and, consequently, had breached the cl 8(1)(g) licence condition. The Authority later finalised its report and determined that Today FM had breached the cl 8(1)(g) licence condition. In June 2013, Today FM commenced proceedings in the Federal Court of Australia seeking declaratory and injunctive relief. It contended, first, that the Authority was not authorised to find that it had breached the cl 8(1)(g) licence condition unless and until a competent court adjudicated that it had committed the SDA offence. In the alternative, Today FM argued that, if the Authority was so authorised, the authorising legislative provisions are invalid because they are inconsistent with the separation of executive and judicial power under the Constitution. At first instance, the Federal Court rejected both of Today FM's arguments and dismissed the proceedings but, on appeal, the Full Court of the Federal Court accepted Today FM's first argument and set aside the Authority's determination. By grant of special leave, the Authority appealed to the High Court. In allowing the appeal, the Court held that the Authority does have power to make an administrative determination that a licensee has committed a criminal offence as a preliminary to taking enforcement action under the BSA, notwithstanding that there has been no finding by a court exercising criminal jurisdiction that the offence has been proven. This is because, in making such a determination, the Authority is not adjudging and punishing criminal guilt. The Court also held that, in making a determination, the Authority is not exercising judicial power. |
HIGH COURT OF AUSTRALIA 10 May 2013 ARISTOCRAT TECHNOLOGIES AUSTRALIA PTY LTD & ORS v GLOBAL GAMING SUPPLIES PTY LTD & ORS; ARISTOCRAT TECHNOLOGIES AUSTRALIA PTY LTD & ORS v ALLAM & ORS [2013] HCA 21 On 2 May 2013, the HIGH COURT OF AUSTRALIA refused special leave to appeal against two decisions of the Full Court of the Federal Court of Australia in which the Full Court characterised evidence as tendency evidence, but held that it could not be relied upon as tendency evidence because there had been no compliance with the tendency evidence rule in s 97(1) of the Evidence Act 1995 (Cth) ("the Act") at first instance. Today the High Court delivered its reasons for refusing special leave. The respondents were in the business of refurbishing and selling second-hand gaming machines in overseas markets. The applicants alleged that the respondents had infringed their copyright under the Copyright Act 1968 (Cth) by selling second-hand gaming machines assembled using pirated copies of material in which the applicants held the copyright. At first instance, a single judge of the Federal Court admitted email communications of the respondents which were used by the primary judge to satisfy the knowledge element of the alleged copyright infringements. The applicants succeeded at first instance. On appeal, the Full Court held that the primary judge had relied on those email communications to infer that the respondents had a tendency to engage in copyright infringing conduct, thereby satisfying the knowledge element of the alleged infringement. Section 97(1) of the Act provides that evidence of a person's tendency to act in a particular way is not admissible to prove that tendency unless reasonable notice is given and the court thinks that the evidence has significant probative value. As there had been no compliance with the tendency rule at first instance, the Full Court held that the email communications could not be used as tendency evidence. The applicants were unable to otherwise prove the knowledge element of the relevant infringements and the appeals were allowed. The applicants applied for special leave to appeal the decisions of the Full Court to the High Court. The High Court held that it was open to the Full Court to characterise the primary judge's reasoning as based upon the discernment of a tendency on the part of the respondents, that the applications did not raise any question of public importance and that the Full Court's decisions were not attended with sufficient doubt to warrant a grant of special leave. |
HIGH COURT OF AUSTRALIA 4 May 2016 GREGORY IAN ATTWELLS & ANOR v JACKSON LALIC LAWYERS PTY LTD [2016] HCA 16 Today the High Court, by majority, allowed an appeal against a decision of the Court of Appeal of the Supreme Court of New South Wales. A majority of the High Court held that the advocate's immunity from suit does not extend to negligent advice given by a lawyer which leads to the settlement of a case by agreement between the parties embodied in consent orders. The first appellant and another person guaranteed payment of the liabilities of a company to a bank. The company defaulted on its obligations to the bank and the bank commenced proceedings against the guarantors in the Supreme Court of New South Wales ("the guarantee proceedings"). The guarantors and the company retained the respondent firm of solicitors to act for them. The amount of the company's debt to the bank was $3.4 million. The guarantors' liability under the guarantee was limited to $1.5 million. The proceedings were settled on the opening day of the trial on terms that judgment would be entered against the guarantors and the company for almost $3.4 million, but the bank would not seek to enforce payment of that amount if the guarantors paid to the bank the sum of $1.75 million before a specified date. The terms of the settlement were reflected in a consent order for judgment in the amount of $3.4 million and the Court's noting of the non-enforcement agreement between the parties. The guarantors failed to meet their payment obligation under the settlement before the specified date. The appellants then brought proceedings in the Supreme Court against the respondent ("the negligence proceedings") alleging that it was negligent in advising them to consent to judgment being entered in the terms of the consent orders and in failing to advise them as to the effect of the consent orders. The respondent asserted that it was immune from suit by virtue of the advocate's immunity. The immunity question was ordered to be determined separately from the negligence proceedings. The primary judge declined to answer the separate question on the basis that, without further evidence in relation to the respondent's alleged negligence, his Honour could only form a view about the application of the advocate's immunity on a hypothetical basis. The Court of Appeal granted leave to appeal and held that the respondent was immune from suit because the negligence proceedings would necessarily involve a re-agitation of the issues raised in the guarantee proceedings. By grant of special leave, the appellants appealed to the High Court. The Court, by majority, allowed the appeal. The Court unanimously declined to reconsider its previous decisions on the advocate's immunity, which confirmed that the immunity extends to "work done out of court which leads to a decision affecting the conduct of the case in court". Nevertheless, the Court held, by majority, that the respondent was not immune from suit, because the advice to settle the proceedings was not intimately connected with the conduct of the case in court in that it did not contribute to a judicial determination of issues in the case. This conclusion was not affected by the circumstance that the parties' settlement agreement was embodied in consent orders. |
HIGH COURT OF AUSTRALIA 2 September 2004 ELECTROLUX HOME PRODUCTS PTY LIMITED v AUSTRALIAN WORKERS UNION, AUTOMOTIVE FOOD METAL ENGINEERING PRINTING AND KINDRED INDUSTRIES UNION, COMMUNICATIONS ELECTRICAL ELECTRONIC ENERGY INFORMATION POSTAL PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA, AND THE MINISTER FOR EMPLOYMENT AND WORKPLACE RELATIONS A certified agreement could not include a provision requiring employers to collect on behalf of unions a bargaining agent’s fee from non-union employees, the High Court of Australia held today. During negotiations with the AWU, AMWU and CEPU over a new certified agreement in 2001, whitegoods manufacturer Electrolux objected to the inclusion of a $500 bargaining agent’s fee to be deducted from non-union employees’ wages. No agreement was forthcoming and in September 2001 the unions gave Electrolux notice of intended industrial action, in the form of rolling stoppages. The union claimed the stoppages were a protected action, pursuant to section 170ML of the Workplace Relations Act. Electrolux claimed the industrial action was not protected because the issue of a bargaining agent’s fee was not a matter pertaining to the relationship between employer and employee, within the meaning of section 170LI of the Act. Electrolux commenced litigation in the Federal Court which made declarations that the industrial action was not protected action and breached the Act. The declarations made by Justice Ronald Merkel were set aside by the Full Court of the Federal Court. Electrolux then appealed to the High Court in each of three related matters. The unions argued even if the bargaining agent’s fee was not a matter pertaining to the employer- employee relationship referred to in section 170LI that did not necessarily mean an agreement containing such a term was not an agreement in accordance with section 170LI. The Court held that the principle was well-established that matters pertaining to the relationship between employers and employees are matters which affect them in their capacity as employers and employees. A particular application of the principle, as decided by a line of earlier cases, was that a proposal for an employer to deduct union fees from employees’ wages and remit them to a trade union was not one that affected employers and employees in their capacity as such. The introduction of certified agreements via the Workplace Relations Act did not change the meaning of matters pertaining to the employer-employee relationship. If any objectionable provisions were included in a proposed agreement then that agreement could not be certified by the Australian Industrial Relations Commission. The Court, by a 6-1 majority, allowed the three appeals and restored the orders of Justice Merkel. |
HIGH COURT OF AUSTRALIA 2 September 2015 ASTRAZENECA AB & ANOR v APOTEX PTY LTD; ASTRAZENECA AB & ANOR v WATSON PHARMA PTY LTD; ASTRAZENECA AB & ANOR v ASCENT PHARMA PTY LTD [2015] HCA 30 Today the High Court unanimously held that a patent which disclosed a method of treatment for hypercholesterolemia was invalid because it lacked an inventive step within the meaning of s 7(2) and 7(3) of the Patents Act 1990 (Cth) ("the Act"). Section 18(1)(b)(ii) of the Act provided as a requirement for a patentable invention that the invention must involve an inventive step. Sections 7(2) and 7(3) defined the condition on satisfaction of which an invention would not be taken to involve an inventive step. Relevantly, that condition was satisfied if the invention would have been obvious to a person skilled in the relevant art in light of the common general knowledge considered separately or together with prior art information publicly available in a single document before the priority date of the patent. The single document had to contain prior art information which could reasonably be expected to have been ascertained, understood and regarded by the skilled person, before the priority date, as relevant to work in the relevant art in the patent area. The first appellant in each appeal is the registered proprietor of Australian Patent Number AU200023051 ("the Patent"). The second appellant is the exclusive licensee of the Patent. The Patent disclosed as a method of treatment for hypercholesterolemia the administration of rosuvastatin and its pharmaceutically acceptable salts at a starting dosage of 5-10 milligrams per day. The respondents supplied generic compounds using rosuvastatin at like dosages. The appellants commenced proceedings in the Federal Court of Australia claiming infringement of the Patent by that supply and obtained interlocutory injunctions. The respondents sought revocation of the Patent. The primary judge found the Patent invalid on three grounds: that the appellants were not entitled to the Patent; that the invention disclosed in the Patent was not novel in light of two prior art publications; and that the invention disclosed in the Patent did not involve an inventive step and was obvious within the meaning of s 7(2) of the Act. The Full Court of the Federal Court of Australia overturned only the finding of lack of novelty and dismissed the appeals from the primary judge's decision. On its appeals to the High Court, the appellants sought to agitate all grounds of invalidity which had been upheld by the Full Court. The respondents raised other issues by notice of contention. The High Court unanimously dismissed the appeals on the basis that the invention claimed lacked an inventive step and was obvious in light of the common general knowledge together with either of the two prior art publications considered separately. It was unnecessary for the Court to consider the other ground of invalidity and issues raised in the notice of contention. This statement is not intended to be a substitute for the reasons of the High Court or to be used in any later consideration of the Court’s reasons. |
HIGH COURT OF AUSTRALIA 6 August 2008 COPYRIGHT AGENCY LIMITED v STATE OF NEW SOUTH WALES The State of New South Wales was not entitled to use surveyors’ plans without fairly remunerating copyright owners, the High Court of Australia held today. Members of the Copyright Agency Limited (CAL) include consulting surveyors. They own the copyright in their survey plans, which are “artistic works” protected by the Commonwealth Copyright Act. CAL is the relevant collecting society distributing remuneration to copyright owners. It applied to the Copyright Tribunal to determine the terms upon which the State could copy the survey plans and provide them to the public. Part VII, Division 2 of the Act provides for the use of copyright material by the Crown where “the Crown” includes the government of a State, and provides for an exception to infringement provisions which would otherwise apply. Because section 183(1) exempts the copying and distribution of plans from infringement if done for the services of a State, CAL did not contend that NSW was infringing the copyright in survey plans. The Act provides that a State, doing any acts within the copyright, must inform the copyright owner. Section 183A(2) provides that the government must pay the collecting society fair remuneration for the making of government copies using a method agreed on by the collecting society and the government or, if there were no agreement, determined by the Tribunal. The Copyright Tribunal referred 11 questions of law to a Full Court of the Federal Court of Australia. The appeal to the High Court related to questions 5 and 6. Question 5 asked whether the State, other than by operation of section 183 of the Act, was entitled to a licence to reproduce survey plans and to communicate them to the public. Question 6 asked if the answer to question 5 is “yes”, what were the terms of the licence. The Full Court answered “yes” to question 5 and answered question 6 by saying that the licence which they found was for the State to do everything it was obliged to do under the statutory and regulatory framework that governed registered plans. CAL appealed to the High Court on the issue of whether the Full Court erred in finding that the State had a licence to reproduce the plans and to communicate them to the public, independently of section 183 of the Act. CAL contended that section 183 was a statutory licence scheme leaving no room for the implication of a licence to copy the plans to communicate them to the public. The State relied upon a licence said to be implied by the conduct of a surveyor permitting survey plans to be registered in the knowledge of the uses to which they would be put. The High Court unanimously allowed the appeal. It answered “no” to question 5, making it unnecessary to answer question 6. The Court held that Part VII, Division 2 of the Copyright Act contained a comprehensive licence scheme for government use of copyright material. Copyright owners such as surveyors had a statutory right to seek terms upon which the State did any act within copyright and to receive remuneration for any government copying. The Court held that various factors militate against implying a licence in favour of the State in respect of its dealings with survey plans. First, nothing in the conduct of a surveyor in preparing plans for registration involved abandoning exclusive rights bestowed by the Act, particularly since the statutory licence scheme qualified those rights on condition that remuneration be paid for permitted uses. Secondly, surveyors could not practise their profession without consenting to the provision of survey plans for registration, knowing the subsequent uses to which plans would be put. Thirdly, an application by a surveyor for fair remuneration for government uses of survey plans involving copying and communication of the plans to the public after registration did not undermine clients’ use of the survey plans for lodgement for registration and issue of title. Fourthly, neither a surveyor nor their client could factor into fees under the contract between them, copying for public uses done by the State. Fifthly, the State charged for copies issued to the public. Sixthly, nothing in the express terms of section 183(1) could justify reading down the expression “for the services of the ... State” to exclude copying and communication of plans to the public. |
HIGH COURT OF AUSTRALIA 6 April 2022 TAPP v AUSTRALIAN BUSHMEN'S CAMPDRAFT & RODEO ASSOCIATION LIMITED [2022] HCA 11 Today, the High Court, by majority, allowed an appeal from a judgment of the Court of Appeal of the Supreme Court of New South Wales. The appeal concerned whether the respondent breached its duty of care, whether that breach caused the appellant's injuries, and whether the harm was the result of the materialisation of an obvious risk of a dangerous recreational activity. The appellant, Ms Tapp, was an experienced and very able horse rider and campdraft contestant. On 8 January 2011, during a multi-day campdrafting event organised by the respondent, in a time period of around 45 minutes, four other contestants had falls while competing. After the first three falls, an experienced campdrafter, Mr Stanton, approached one of the event organisers and said that the competition should be stopped because the ground was becoming slippery. After discussing the ground condition and speaking with two of the contestants who fell, the organisers continued the competition. After the fourth fall, Mr Stanton again approached an organiser and said that he thought the ground was "unsafe". The organisers delayed the competition to discuss the conditions, but decided to continue. Shortly thereafter, Ms Tapp competed and fell when her horse slipped on the ground of the arena. She suffered a serious spinal injury. The four falls prior to the appellant's fall were described in the Open Draft Draw as "bad falls". The Supreme Court of New South Wales held that the respondent had not breached its duty, that any breach had not caused Ms Tapp's injuries, and that Ms Tapp's injuries were the result of the materialisation of an obvious risk. A majority of the Court of Appeal dismissed Ms Tapp's appeal. The High Court, by majority, allowed Ms Tapp's appeal, holding that the respondent had breached its duty of care, that breach of duty caused Ms Tapp's injuries, and Ms Tapp's injuries were not the result of the materialisation of an obvious risk of a dangerous recreational activity. A reasonable person in the respondent's position would have foreseen a probability that harm would occur if the competition were not stopped until the arena could be inspected for safety. Given that the probability of physical injury could be catastrophic, the competition could be easily stopped, and there was minimal social disutility of disadvantage to contestants who had already competed, the respondent should have stopped the competition until the arena was inspected and found to be reasonably safe. The inference that the condition of the ground caused Ms Tapp's fall was drawn from the following: the evidence of four falls in a short period of time where falls in campdrafting were rare; Mr Stanton's warnings; the organiser's concessions (including that the ground was dangerous); and the time taken to subsequently remediate the ground. While campdrafting was a dangerous recreational activity, the harm was not the materialisation of an obvious risk of that activity. The risk was properly characterised as a substantially elevated risk of physical injury by falling from a horse that slipped due to the deterioration of the arena surface. That risk would not have been obvious to a reasonable person in Ms Tapp's position, so the respondent was liable in negligence. |
HIGH COURT OF AUSTRALIA 20 July 2006 Public Information Officer LEONARDUS GERARDUS SMITS AND JOHN ANTHONY LESLIE v WALTER EDWARD ROACH, WINNOTE PTY LIMITED (in liquidation) AND SYDTECH PTY LIMITED (in liquidation) A judge whose brother chaired a major law firm which Mr Roach and his companies were suing in separate proceedings did not have to disqualify himself from hearing a dispute between Mr Roach and the principals of a small law firm which he had engaged to conduct the litigation, the High Court of Australia held today. Mr Roach and companies formerly controlled by him sued Freehills, claiming damages for loss of profits of $1 billion after it allegedly gave him negligent advice in relation to a peat deposit in Victoria which he wished to exploit. To act in these proceedings they retained Mr Leslie, who went into partnership with Mr Smits in 1995. A retainer agreement was signed in 1998 on a contingency basis, under which Smits Leslie was entitled to receive 10 per cent of any amount recovered from Freehills under $10 million and five per cent of amounts recovered beyond that. The relationship between Smits Leslie and Mr Roach broke down, principally because of a lack of funding for preparing and prosecuting the case against Freehills. In April 1999, Smits Leslie ceased dealing with Mr Roach and soon after commenced proceedings against him and his companies for $675,000 in professional fees and expenses plus 10 per cent of proceeds in the Freehills litigation. Smits Leslie claimed Mr Roach had wrongfully repudiated the retainer agreement. He claimed the agreement was illegal and unenforceable. Proceedings came before the NSW Supreme Court in March 2002. Justice Peter McClellan asked the parties whether they objected to his sitting, apparently because he and Mr Leslie, a former Supreme Court registrar, had played golf together. Neither party objected and Justice McClellan heard the case. He found the retainer agreement was illegal but even if enforceable the right of Smits Leslie to be paid was contingent upon success in the Freehills action. Before publishing his judgment, Justice McClellan gave a draft to the parties and to Freehills for comment in case it inadvertently disclosed potentially privileged information in the Freehills litigation. At a hearing for this purpose, Justice McClellan revealed that his brother, Geoff McClellan, was chairman of partners at Freehills, and although he would not normally sit he did not believe he had a choice given the way in which the issue involving Freehills had arisen. Mr Smits and Mr Leslie sought to have Justice McClellan disqualify himself because they had not known of the relationship and that a finding against them in the litigation against the Roach interests would benefit Freehills by minimising the legal costs for which it would be liable if the Roach interests won the Freehills litigation. Justice McClellan dismissed the application after satisfying himself that senior counsel for Smits Leslie, Geoffrey Lindsay SC, had known of the relationship between him and Mr McClellan. The Court of Appeal reversed Justice McClellan’s finding that the retainer agreement was invalid but held that the parties had made no provision for Smits Leslie to be paid if it ceased acting for the Roach interests before a successful outcome in the Freehills litigation could be achieved. It held that Justice McClellan should have disclosed his brother was chairman of Freehills at the start of proceedings, but held that Smits Leslie had by Mr Lindsay’s conduct waived any objection. Smits Leslie appealed to the High Court on the issue of disqualification. The Court unanimously dismissed the appeal. All Justices held that the Court of Appeal’s decision on waiver was correct and four Justices dismissed the appeal on that basis. Five Justices also held that the Court of Appeal failed to articulate a logical connection between the relationship of Justice McClellan and Mr McClellan and any reasonable apprehension of bias and two Justices would have dismissed the appeal on that basis rather than on the issue of waiver. On waiver, the Court held that Smits Leslie was bound by Mr Lindsay’s conduct in not objecting to Justice McClellan sitting when he at least knew of the relationship of the judge to Mr McClellan. On the bias issue, a majority held that a court must both identify what might lead a judge to decide a case other than on its legal and factual merits, and also articulate the logical connection between the matter complained of and the feared deviation from impartial decision-making. |
HIGH COURT OF AUSTRALIA 9 October 2019 BVD17 v MINISTER FOR IMMIGRATION AND BORDER PROTECTION & ANOR [2019] HCA 34 Today the High Court unanimously dismissed an appeal from a decision of the Full Court of the Federal Court of Australia concerning the procedural fairness obligations of the Immigration Assessment Authority ("the Authority") in a review under Pt 7AA of the Migration Act 1958 (Cth) following a notification to the Authority under s 473GB(2)(a) of the Migration Act. Part 7AA of the Migration Act establishes a scheme for the ministerial referral of decisions refusing protection visas to certain applicants to the Authority for review. Within Pt 7AA, s 473GB relevantly applies to a document or information given to the Minister for Immigration and Border Protection ("the Minister") or an officer of the Department of Immigration and Border Protection ("the Department") in confidence. Where s 473GB applies to a document or information given by the Secretary of the Department to the Authority, s 473GB(2)(a) obliges the Secretary to notify the Authority in writing that s 473GB applies in relation to the document or information. The Authority may then, under s 473GB(3), have regard to any matter contained in the document or to the information and may, in certain circumstances, disclose any matter contained in the document, or the information, to the referred applicant. Section 473DA(1) provides that Div 3 of Pt 7AA, together with ss 473GA and 473GB, "is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the [Authority]". The appellant arrived in Australia as an unauthorised maritime arrival in October 2012 and applied for a protection visa. The Minister referred a decision by his delegate to refuse the application to the Authority for review. The Authority affirmed the delegate's decision. The Authority found that the appellant had fabricated his claim to have been of interest to authorities in Sri Lanka. In so finding, the Authority placed weight on the absence of corroboration of one of the appellant's claims in a departmental file relating to an application for a protection visa made by a member of the appellant's family. The file had been before the delegate at the time of making the decision to refuse the appellant's protection visa but had not been relied on adversely by the delegate. The file had then been included in the review material given to the Authority by the Secretary. It was accompanied by a notification under s 473GB(2)(a) that s 473GB applied to the documents and information in the file. The Authority did not disclose any of the documents or information in the file to the appellant and did not disclose to the appellant the fact of the notification. In Minister for Immigration and Border Protection v SZMTA (2019) 93 ALJR 252; 363 ALR 599; [2019] HCA 3, the High Court accepted that the giving of a notification under s 438(2)(a) of the Migration Act triggers an obligation of procedural fairness on the part of the Administrative Appeals Tribunal to disclose the fact of notification to an applicant for review under Pt 7. By majority, the High Court found today that s 473DA of the Migration Act precludes an equivalent procedural fairness obligation on the part of the Authority to disclose to a referred applicant in a review under Pt 7AA the fact of notification under s 473GB(2)(a). The High Court unanimously found there was insufficient evidence to infer that the Authority failed to consider exercising the discretion conferred by s 473GB(3)(b). |
HIGH COURT OF AUSTRALIA Manager, Public Information 26 August 2009 BRIAN GEORGE LANE v COLONEL PETER JOHN MORRISON [2009] HCA 29 The High Court today determined that Colonel Peter Morrison, a Military Judge, may not proceed with trying charges against Mr Brian Lane, a former member of the Royal Australian Navy (RAN), because the legislation creating the Australian Military Court, in which the charges were to be heard, is constitutionally invalid. Mr Lane was a member of the RAN before transferring to the Naval Reserve on 14 March 2007. On 8 August 2007 he was charged with offences alleged to have occurred in August 2005 when he was still a member of the RAN. He was discharged from the Naval Reserve with effect from 3 September 2007. On 26 November 2007 the Chief Military Judge of the Australian Military Court (AMC) nominated Colonel Morrison to try the charges against Mr Lane. When the matter first came before the AMC on 25 March 2008, Mr Lane objected to the jurisdiction of the AMC. In May 2008 he filed an application in the High Court seeking an order prohibiting Colonel Morrison from hearing the charges, and a declaration that the provisions of the legislation which created the AMC are invalid. The AMC was created by the insertion of new provisions into the Defence Force Discipline Act 1982 (Cth), to replace the system of courts-martial which had previously existed. The new provisions state that the AMC is a court of record, and that it consists of a Chief Military Judge and such other Military Judges as hold office from time to time in accordance with the Act. A Note to section 114 of the Act specifically states the AMC is not a court for the purpose of Chapter III of the Constitution. Having regard to the attributes of the AMC and the way in which it operates, the Court concluded that the legislation requires the AMC to exercise the judicial power of the Commonwealth, without being set up as a court established under Chapter III of the Constitution (in which the power to create the federal judiciary is contained). For that reason the legislation creating the AMC was invalid. The High Court ordered that a writ of prohibition should issue, prohibiting Colonel Morrison from proceeding with the charges against Mr Lane, and made a declaration that Division 3 of Part VII of the Defence Force Discipline Act 1982 (Cth), which created the AMC, was invalid. |
HIGH COURT OF AUSTRALIA Manager, Public Information 21 May 2009 THE QUEEN v PETER EDWARDS & ANOR The High Court today decided that a judge of the Supreme Court of Tasmania applied a wrong principle and took account of irrelevant issues when he granted a permanent stay of the trial of two pilots charged with reckless operation of an aircraft. The pilots’ trial will now proceed in the Supreme Court of Tasmania. Captain Peter Edwards and First Officer Stephen Sarunic were the pilots in charge of a Qantas aircraft which arrived at Launceston Airport on 23 October 2001 to collect 70 passengers who had been stranded. The aircraft arrived at about 10.30pm and took off just after 11pm. The control tower was not staffed between 10pm and 6am, and the pilots themselves were responsible for turning on the runway lighting when arriving at and departing from the airport. While there was no issue concerning the runway lights when the plane landed, witnesses provided inconsistent statements about whether the runway lights were on or off when the aircraft taxied along the runway and took off. Electronic records, which could have assisted in determining whether the runway lights had been activated or whether the pilots had attempted to activate the runway lights, were overwritten before attempts were made to retrieve them. CASA investigated the incident and in April 2002 referred the matter to the Commonwealth DPP. Complaints against the pilots were not sworn until March 2004. The pilots were committed for trial, but the trial had still not commenced by November 2006. In November 2007 their application for a permanent stay of the trial was heard by a judge of the Supreme Court of Tasmania. The High Court held that the primary judge had applied a test of whether, on the material before him, a continuation of the trial could constitute an unacceptable injustice or unfairness. The primary judge concluded that the factors of overall delay and lost evidence made it appropriate to grant the stay. The High Court granted the Commonwealth DPP special leave to appeal that decision. In a unanimous decision the High Court confirmed that in exercising the discretion to grant a permanent stay of proceedings, a court should consider whether, in all the circumstances, the continuation of the proceedings would involve unacceptable injustice or unfairness, or whether continuation would be so unfairly and unjustifiably oppressive as to constitute an abuse of process. The Court noted that it is not uncommon for trials to proceed despite the unavailability of relevant evidence and held that the loss of evidence did not prejudice the pilots. It concluded that no feature of the delay or loss of evidence justified the extreme step of permanently staying the proceedings. The Court set aside the order of the Supreme Court of Tasmania and dismissed the pilots’ application for a permanent stay. |
HIGH COURT OF AUSTRALIA 11 March 2015 GRANT SAMUEL CORPORATE FINANCE PTY LIMITED v FLETCHER & ORS JP MORGAN CHASE BANK, NATIONAL ASSOCIATION & ANOR v FLETCHER & ORS [2015] HCA 8 Today the High Court unanimously held that the rules of courts of the States and Territories cannot apply so as to vary the time dictated by s 588FF(3) of the Corporations Act 2001 (Cth) for the bringing of proceedings for orders with respect to voidable transactions. The first respondents in these appeals are the liquidators of the second and third respondents. Section 588FF(1) of the Corporations Act provides that a court, on the application of a company's liquidator, may make certain orders where the court is satisfied that a transaction of the company is voidable because of s 588FE. Section 588FF(3) provides that an application under s 588FF(1) "may only be made" during a period of limitation set out in par (a) ("the par (a) period") or "within such longer period as the Court orders" on an application made by the liquidator during the par (a) period. The effect of s 588FF(3) was to require an application under s 588FF(1) to be made by the liquidators of the second respondents by 4 June 2011, unless the court ordered that an application could be made within a longer period under s 588FF(3)(b). On 10 May 2011, the liquidators applied for an order extending the period within which they might bring proceedings under s 588FF(1). On 30 May 2011, the Supreme Court of New South Wales extended that period to 3 October 2011 ("the extension order"). A further application was made to the Supreme Court within the period of that extension, but after the par (a) period had expired. On 19 September 2011, the Supreme Court made an order on that application, under r 36.16(2)(b) of the Uniform Civil Procedure Rules 2005 (NSW) ("the UCPR"), varying the extension order by changing the date by which the liquidators could make an application under s 588FF(1) to 3 April 2012 ("the variation order"). Under s 79(1) of the Judiciary Act 1903 (Cth), the UCPR is binding on all courts exercising federal jurisdiction in New South Wales, "except as otherwise provided by the Constitution or the laws of the Commonwealth". The appellants' applications to set aside the variation order were dismissed by the Supreme Court and appeals from that decision were dismissed by a majority of the Court of Appeal. By grant of special leave, the appellants appealed to the High Court. The High Court unanimously allowed the appeals. The Court held that the bringing of an application within the time required by s 588FF(3) is a precondition to the court's jurisdiction under s 588FF(1), and that the only power given to a court to vary the par (a) period is that given by s 588FF(3)(b). The Court concluded that, once the par (a) period had elapsed, the UCPR could not be utilised to further extend the time within which proceedings under s 588FF(1) could be brought, because s 588FF(3) "otherwise provided". |
HIGH COURT OF AUSTRALIA 6 September 2017 SZTAL v MINISTER FOR IMMIGRATION AND BORDER PROTECTION & ANOR; SZTGM v MINISTER FOR IMMIGRATION AND BORDER PROTECTION & ANOR [2017] HCA 34 Today the High Court, by majority, dismissed two appeals from a decision of the Full Court of the Federal Court of Australia. The High Court held that "cruel or inhuman treatment or punishment" or "degrading treatment or punishment" within the complementary protection regime in s 36 of the Migration Act 1958 (Cth) require the existence of an actual subjective intention by a person to inflict pain or suffering or to cause extreme humiliation. SZTAL and SZTGM ("the appellants") came to Australia from Sri Lanka and applied for protection visas under the complementary protection regime. The appellants' applications for protection visas were refused by delegates of the Minister for Immigration and Border Protection. The appellants each applied for review of these decisions by the Refugee Review Tribunal ("the Tribunal"). The issue for the Tribunal was whether the appellants were eligible for protection visas under the complementary protection regime in the Migration Act. The complementary protection regime allows a protection visa to be granted to a non-citizen if there is a real risk that the non-citizen would suffer "significant harm" as a consequence of being removed from Australia. The definition of "significant harm" includes "cruel or inhuman treatment or punishment", relevantly defined as an act or omission by which pain or suffering is "intentionally inflicted", and "degrading treatment or punishment", relevantly defined as an act or omission which is "intended to cause" extreme humiliation. The Tribunal found that the appellants would likely be held in remand for a short period if they were returned to Sri Lanka and accepted that prison conditions in Sri Lanka were such that the appellants may be subjected to pain or suffering, or humiliation. However, the Tribunal concluded that there was no intention to inflict pain or suffering, or to cause extreme humiliation. Country information indicated that the conditions in prisons in Sri Lanka were the result of a lack of resources, which the Sri Lankan government acknowledged and was taking steps to improve. On applications for judicial review, the Federal Circuit Court of Australia considered that the Tribunal did not err in concluding that "intentionally inflicted" and "intended to cause" connote the existence of an actual subjective intention on the part of a person to bring about pain or suffering, or extreme humiliation. A majority of the Full Court of the Federal Court agreed. By grant of special leave, the appellants appealed to the High Court. The High Court dismissed the appeal. A majority of the Court held that the expressions "intentionally inflicted" and "intended to cause" require actual subjective intention to bring about pain or suffering or humiliation. The majority rejected the appellants' contention that the element of intention was satisfied where a person did an act knowing that the act would, in the ordinary course of events, inflict pain or suffering or cause extreme humiliation. |
HIGH COURT OF AUSTRALIA 7 August 2013 FORTESCUE METALS GROUP LIMITED AND ORS v THE COMMONWEALTH OF AUSTRALIA [2013] HCA 34 Today the High Court unanimously dismissed proceedings brought by Fortescue Metals Group Limited (and certain of its wholly-owned subsidiaries) ("Fortescue") claiming that some provisions of the Minerals Resource Rent Tax Act 2012 (Cth) ("MRRT Act") and the Minerals Resource Rent Tax (Imposition–Customs) Act 2012 (Cth), Minerals Resource Rent Tax (Imposition–Excise) Act 2012 (Cth) and Minerals Resource Rent Tax (Imposition–General) Act 2012 (Cth) ("the Imposition Acts") were not valid laws of the Commonwealth. The MRRT Act and the Imposition Acts created and imposed a minerals resource rent tax ("MRRT"), which commenced on 1 July 2012. Under the MRRT Act, liability to pay MRRT arises only when a miner derives an annual profit of $75 million or more after taking into account certain deductions for expenditure and allowances. Once MRRT is payable, it is calculated so that a reduction in the mining royalty payable to a State government would, all other things being equal, result in an equivalent increase in a taxpayer's liability and vice versa. The State legislative regimes for mining royalties are different and may be varied from time to time. Fortescue's wholly-owned subsidiaries held registered mining leases in Western Australia and were required to pay MRRT. Fortescue brought proceedings in the High Court in its original jurisdiction, contending that certain provisions of the MRRT Act and Imposition Acts were invalid on four bases: first, as laws with respect to taxation which discriminate between States contrary to s 51(ii) of the Constitution; second, as laws or regulations of trade, commerce or revenue, which, contrary to s 99 of the Constitution, give preference to one State over another State; third, as laws which contravene the Melbourne Corporation doctrine, on the basis that the legislative powers of the Commonwealth do not authorise legislation directed to the control or hindrance of the States in the execution of their governmental functions; and fourth, as laws that are inconsistent with s 91 of the Constitution, which preserves a State's power to grant an aid or bounty on the mining for other metals. The Attorneys-General for Western Australia and Queensland intervened in support of Fortescue's challenge to the validity of the MRRT Act and the Imposition Acts. Pursuant to s 18 of the Judiciary Act 1903 (Cth), questions were reserved for determination by the Full Court of the High Court on the basis of the parties' pleadings and documents referred to in the pleadings. The Full Court unanimously dismissed the challenge to the validity of the Acts. The Court held that the treatment of State mining royalties by the MRRT Act and the Imposition Acts did not discriminate between States and that the Acts did not give preference to one State over another. The Court also rejected the submissions that the Acts breached the Melbourne Corporation doctrine or contravened s 91 of the Constitution. |
HIGH COURT OF AUSTRALIA 15 March 2023 SELF CARE IP HOLDINGS PTY LTD & ANOR v ALLERGAN AUSTRALIA PTY LTD & ANOR [2023] HCA 8 Today, the High Court allowed two appeals from the Full Court of the Federal Court of Australia. The appeals concerned whether Self Care IP Holdings Pty Ltd and Self Care Corporation Pty Ltd (collectively, "Self Care") infringed one of Allergan Inc's BOTOX trade marks under the Trade Marks Act 1995 (Cth) ("the TM Act") and whether Self Care contravened the Australian Consumer Law in Sch 2 of the Competition and Consumer Act 2010 (Cth) ("the ACL"). Allergan Inc manufactures Botox, an injectable pharmaceutical product containing botulinum toxin, and is the registered owner of the BOTOX trade mark. Self Care supplied cosmetic products, including the anti-wrinkle skincare products Inhibox (which it described on its packaging and website as an "instant Botox® alternative") and Protox (which used the trade mark PROTOX on its packaging and website). Allergan Inc, and its subsidiary Allergan Australia Pty Ltd (collectively, "Allergan") brought proceedings in the Federal Court of Australia claiming, among other things, that Self Care had infringed the BOTOX trade mark under s 120(1) of the TM Act by using deceptively similar trade marks –"instant Botox® alternative" and PROTOX – and had contravened ss 18(1) and 29(1)(a) and (g) of the ACL by conveying misleading representations about the long term efficacy of Inhibox. The primary judge found that Self Care's use of "instant Botox® alternative" and PROTOX did not infringe the BOTOX trade mark and that Self Care's use of "instant Botox® alternative" in relation to Inhibox did not contravene the ACL. On appeal, the Full Court of the Federal Court held that both "instant Botox® alternative" and PROTOX infringed the BOTOX trade mark. The Full Court relied on the reputation of BOTOX, holding that PROTOX was deceptively similar because some potential customers would wonder whether Allergan had decided to expand into topical cosmetic anti-wrinkle products. The Full Court also held that Self Care's use of "instant Botox® alternative" contravened the ACL by representing that the wrinkle reducing effects of Inhibox would last, after treatment, for a period equivalent to that which would be achieved with treatment by a Botox injection ("the long term efficacy representation"). Self Care appealed to the High Court. The High Court unanimously held that Self Care did not use "instant Botox® alternative" as a trade mark and therefore the question of deceptive similarity under s 120(1) of the TM Act did not arise. As the parties did not dispute that Self Care used PROTOX as a trade mark, the determinative question was whether PROTOX was deceptively similar to BOTOX. The Court held that, when assessing deceptive similarity under s 120(1), reputation of the registered trade mark and that of its owner is not relevant. PROTOX was not deceptively similar to BOTOX because the similarities between the marks, considered in the circumstances, were not such that the notional buyer was likely to wonder whether the products came from the same trade source. Self Care did not contravene the ACL because the reasonable consumer would not have understood that the phrase "instant Botox® alternative", in context, conveyed the long term efficacy representation. |
HIGH COURT OF AUSTRALIA Public Information Officer May 7, 2003 ROBERT JAMES MACLEOD v THE QUEEN The High Court of Australia today unanimously dismissed an appeal from Mr Macleod against conviction of five offences of fraud. The charges related to an enterprise run by Mr Macleod between 1989 and 1994. He controlled three companies, including Trainex Pty Ltd, which were designed to obtain tax concessions for film production. Investors contributed more than $6 million but only $718,000 was used to make films or videos. Mr Macleod allegedly used more than $2.2 million for his own benefit, including buying a $1 million Gold Coast unit. The five charges with which the appeal to the High Court was concerned involved the fraudulent misuse during 1991 of $1.3 million of Trainex funds in contravention of section 173 of the New South Wales Crimes Act. The NSW Court of Criminal Appeal rejected Mr Macleod’s claim that as the sole shareholder and director of Trainex he, and therefore Trainex, consented to the particular applications of company property. It also rejected challenges to the District Court trial judge’s directions to the jury on the question of what constituted fraud. The High Court rejected Mr Macleod’s submission that the prosecution had failed to prove lack of consent by the victim of the fraud, as the self-interested consent of the controller could not be said to represent the consent of the company. The Court held that under section 173 criminal liability depended upon the application of company property by an accused for his own benefit and in a manner inconsistent with the purposes of the company. The Court also rejected claims that the jury was misdirected. It said the judge correctly directed the jury that it should decide whether Mr Macleod was acting honestly by the standards of ordinary decent people, and that it was open to the jury to conclude that he knew his actions were dishonest. There was ample evidence of a deliberate and sustained course of deception to indicate a lack of genuine belief in an entitlement to use Trainex’s property for his own benefit instead of fulfilling his obligations to investors. |
HIGH COURT OF AUSTRALIA 14 October 2020 AUS17 v MINISTER FOR IMMIGRATION AND BORDER PROTECTION & ANOR [2020] HCA 37 Today the High Court unanimously allowed an appeal from a judgment of the Federal Court of Australia ("the Federal Court") concerning a review by the Immigration Assessment Authority ("the Authority") under Pt 7AA of the Migration Act 1958 (Cth) ("the Act") of a decision by the Minister for Immigration and Border Protection ("the Minister") to refuse to grant the appellant a protection visa. Section 473DD of the Act relevantly provides that the Authority must not consider "new information" unless: the Authority is satisfied that there are exceptional circumstances to justify considering the new information (s 473DD(a)); and the applicant satisfies the Authority that the new information was not, and could not have been, provided to the Minister before the Minister made the decision (s 473DD(b)(i)) or that it is "credible personal information" which was not previously known and, had it been known, may have affected the consideration of the applicant's claims (s 473DD(b)(ii)). The issue on appeal was whether in finding that "new information" could not be considered, the Authority was required to assess the information against the criteria in both ss 473DD(b)(i) and 473DD(b)(ii) before assessing whether there were "exceptional circumstances" under s 473DD(a). The Minister's delegate refused to grant the appellant a protection visa. On review by the Authority, the appellant's representative provided the Authority with a letter that post-dated the decision of the delegate and was supportive of the appellant's claims. The Authority found that the letter was "new information" and did not take it into account in reaching its decision. In doing so, the Authority assessed the letter against the criterion in s 473DD(b)(i), finding that criterion not to be met. It went on to assess the letter against the criterion in s 473DD(a), finding that criterion to also not be met. It did not assess the letter against the criterion in s 473DD(b)(ii). The Federal Circuit Court relevantly held that the Authority fell into error by not considering both sub- paragraphs of s 473DD(b) so as to inform its consideration of s 473DD(a). The Federal Court allowed an appeal from the Federal Circuit Court's decision. The High Court unanimously overturned the Federal Court's decision, holding that the Authority erred by not considering both sub-paragraphs of s 473DD(b) and then taking those assessments into account in its consideration of s 473DD(a). The Court held that s 473DD requires the Authority to assess new information against the criteria in both ss 473DD(b)(i) and 473DD(b)(ii), and then, providing that at least one of those criteria are met, take that assessment into account in its consideration of whether there are exceptional circumstances under s 473DD(a), before concluding that it is prohibited from considering the new information. This statement is not intended to be a substitute for the reasons of the High Court or to be used in any later consideration of the Court’s reasons. |
HIGH COURT OF AUSTRALIA 11 November, 2003 ALEXANDER PURVIS on behalf of DANIEL HOGGAN v THE STATE OF NEW SOUTH WALES (DEPARTMENT OF EDUCATION AND TRAINING AND THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION The High Court of Australia today dismissed an appeal from the foster father of a boy expelled from South Grafton High School for violent behaviour towards teachers and fellow students. Daniel, now 18, attended the school from April to September 1997 and was suspended five times and finally expelled for repeated kicking, punching and swearing. Daniel, born on December 8, 1984, suffered encephalopathic illness at six months of age which left him with brain damage, intellectual disabilities, sight problems and epilepsy. He had difficulty communicating which led to frustration and behavioural problems, including offensive language, lack of self-control and violence. In 1996, his foster parents sought to have Daniel enrolled at South Grafton High School for the 1997 school year. A teacher’s aide and a casual teacher were engaged to assist Daniel. After the fifth suspension, the principal recommended that he be taught at home, apart from sport and school excursions, or be transferred to the Special Unit at Grafton High School. He cited his responsibility for the welfare and safety of other students and staff as his reason for his decision ultimately to expel Daniel. Mr Purvis complained to HREOC that Daniel had been discriminated against by the State of NSW, alleged that Daniel had been suspended, and later excluded, and been subjected to various detriments in his education, on the ground of his disability, in contravention of the federal Disability Discrimination Act. HREOC Commissioner Graeme Innes found that the State had discriminated against Daniel on the grounds of his disability and ordered the State to pay $49,000 in compensation. The State sought judicial review in the Federal Court of Australia, which set aside Mr Innes’s decision. The Full Court of the Federal Court unanimously dismissed Mr Purvis’s appeal and he appealed to the High Court. The Court, by a 5-2 majority, dismissed the appeal. It held that the principal had not discriminated against Daniel on the ground of his disability. |
HIGH COURT OF AUSTRALIA 13 April 2022 AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER v PATTINSON & ANOR [2022] HCA 13 Today, the High Court allowed an appeal from a judgment of the Full Court of the Federal Court of Australia. The appeal concerned the scope of the power conferred on the Federal Court of Australia by s 546 of the Fair Work Act 2009 (Cth) ("the Act") to impose civil pecuniary penalties in respect of contraventions of the civil remedy provisions of the Act. The contraventions occurred in September 2018 on a building site in Frankston, Victoria. The site was occupied by Multiplex Constructions Pty Ltd ("Multiplex"), the principal contractor. The first respondent ("Mr Pattinson") was an employee of Multiplex and the site delegate of the second respondent union ("the CFMMEU"). Mr Pattinson told two employees of a subcontractor engaged by Multiplex that, in order to perform work on the site, they were required to become a member of an industrial association ("the misrepresentations"). The CFMMEU had a longstanding "no ticket, no start" policy, pursuant to which all workers were required to hold union membership in order to work on construction sites where the CFMMEU had a presence. Since at least the advent of the Workplace Relations Act 1996 (Cth), the implementation of such a policy has been unlawful. The appellant instituted civil penalty proceedings in the Federal Court. The respondents accepted that, by the misrepresentations, Mr Pattinson twice contravened s 349(1) of the Act in that he knowingly or recklessly made a false or misleading representation about the supposed obligation of the two employees to become members of an industrial association, and his actions were attributable to the CFMMEU such that it also contravened s 349(1). The primary judge imposed civil pecuniary penalties on each respondent. The total penalties imposed on the CFMMEU reflected the maximum penalty for a single contravention, with the primary judge having regard to the CFMMEU's longstanding history of contraventions of the Act in furtherance of its "no ticket, no start" policy. The Full Court overturned that decision, holding that the penalties were disproportionate to the nature, gravity and seriousness of the contraventions, and imposed lower penalties on each respondent. The High Court unanimously held that the Full Court erred in concluding that it was not open to the primary judge to impose the maximum penalty on the CFMMEU. Under the civil penalty regime provided by the Act, the purpose of a civil penalty imposed under s 546 is primarily, if not solely, the promotion of the public interest in compliance with the provisions of the Act by the deterrence of further contraventions of the Act. The plurality reasoned that nothing in the text, context or purpose of s 546 of the Act requires that the maximum penalty be reserved for the most serious examples of misconduct within s 349(1) of the Act. What is required is that there be some reasonable relationship between the theoretical maximum and the final penalty imposed. The penalties imposed by the primary judge represented a reasonable assessment of what was necessary to make the continuation of the CFMMEU's non-compliance with the law, demonstrated by the history of its contraventions, too expensive to maintain. For the same reasons, the Court, by majority, held that the Full Court erred in reducing the penalty imposed on Mr Pattinson. |
HIGH COURT OF AUSTRALIA 16 February 2022 ARS WWALTON & ANOR v ACN 004 410 833 LTD (FORMERLY ARRIUM LIMITED) (IN LIQUIDATION) & ORS [2022] HCA 3 Today, the High Court allowed an appeal from a judgment of the Court of Appeal of the Supreme Court of New South Wales. The appeal concerned the purposes for which a court may, on the application of an eligible applicant, summon an officer or provisional liquidator of a corporation in external administration for examination about the corporation's examinable affairs pursuant to s 596A of the Corporations Act 2001 (Cth). The appellants were shareholders of the first respondent, formerly Arrium Limited ("Arrium"). In October 2014, Arrium completed a capital raising, having published its 2014 financial results and provided shareholders with an Information Memorandum for that purpose. In January 2015, Arrium announced the suspension or closure of one of its principal mining operations. In April 2016, Arrium was placed into administration and, in June 2019, liquidators were appointed. The appellants, having been authorised by the Australian Securities and Investments Commission to do so, applied to the Supreme Court of New South Wales for an order pursuant to s 596A of the Corporations Act 2001 (Cth) that a summons be issued for the examination of the third respondent, a former director of Arrium. A Registrar in Equity duly made that order. The appellants' purpose was to investigate and pursue potential personal claims arising from the 2014 capital raising in their capacity as shareholders against the former directors and auditors of Arrium. It was accepted that any future proceedings would be confined to a limited class of shareholders of Arrium. Arrium applied to the Supreme Court for that order to be stayed or set aside as an abuse of process. The Supreme Court declined to stay or set aside the order. The Court of Appeal allowed Arrium's appeal and decided that an examination sought predominantly for the purpose of pursuing private litigation against third parties, and not for the purposes of conferring a demonstrable or commercial benefit on the corporation or its creditors, was an abuse of process. By majority, the High Court allowed the appeal. In deciding if the use of a court process authorised by statute is an abuse of process, the question is whether the litigant's predominant purpose is inconsistent with the scope and purpose of the statutory process. The purpose and concern of s 596A is not confined to the interests of the corporation, its creditors, or its contributories, or to the bringing of criminal or regulatory proceedings in connection with the affairs of the corporation. Examining an officer of a corporation for the purpose of pursuing a claim against the corporation in external administration or one of its officers or advisers for the enforcement of the law can be a legitimate use of the power conferred by s 596A, irrespective of whether it is in the interests of the corporation or whether the claim relates to all or only some of the corporation's creditors or contributories. The summons was therefore not issued for a purpose that was an abuse of process. |
HIGH COURT OF AUSTRALIA 16 October 2019 COMMISSIONER OF TAXATION v SHARPCAN PTY LTD [2019] HCA 36 Today the High Court unanimously allowed an appeal from a judgment of the Full Court of the Federal Court of Australia concerning the deductibility under the Income Tax Assessment Act 1997 (Cth) ("the 1997 Act") of payments to acquire gaming machine entitlements ("GMEs") under the Gambling Regulation Act 2003 (Vic). Spazor Pty Ltd ("the Trustee"), as trustee of a trust of which the respondent was the beneficiary, purchased a hotel business. The Trustee did not purchase the 18 gaming machines at the premises but, in accordance with the purchase agreement, was paid a percentage of the income derived by the owner of the machines, an authorised gaming operator under the Gambling Regulation Act. After that Act was amended to provide for GMEs to be put up for auction and allocated directly to gaming venue operators, the Trustee bid for, and was allocated, 18 GMEs, each permitting it to operate a gaming machine for ten years, and each being capable of sale and transfer to other venue operators, subject to approvals. To fund the purchase price of $600,300, the Trustee entered an agreement with the Minister for Gaming providing for deferred payment by instalments and forfeiture in default of payment. After payment, the Trustee claimed the purchase price as a deduction under s 8-1 of the 1997 Act or one-fifth of that price under s 40-880 of the 1997 Act. The appellant Commissioner disallowed both claims. On review, that decision was set aside by the Administrative Appeals Tribunal, which held that the purchase price was not an outgoing of a capital nature and was therefore deductible under s 8-1 of the 1997 Act. In dismissing an appeal by the Commissioner, a majority of the Full Court held that the outgoing was not on capital account because: (i) it had to be recouped out of every day's trading across the business; (ii) it reflected the economic value of the income stream expected from using the gaming machines which the GMEs permitted; (iii) it was incurred in relation to an integrated hotel business; and (iv) the Trustee, confronted with changed circumstances from government intervention by the amendment of the Gambling Regulation Act, had to respond to the possible loss of gaming revenue. Alternatively, the majority reasoned that one-fifth of the purchase price would have been deductible under s 40-880 because the purpose of the expenditure was to preserve the goodwill of the hotel business and the value to the Trustee of the GMEs was solely attributable to their effect on the goodwill of the business. The High Court unanimously held that the GMEs were assets of enduring value acquired by the Trustee as the means of production, necessary for the structure of the business, and a barrier to entry, and that the four factors identified by the Full Court were not to the point. The Court therefore held that the purchase price, although paid in instalments, was in the nature of a once- and-for-all outgoing for the acquisition of a capital asset, and thus not deductible under s 8-1 of the 1997 Act. The Court further held that the evidence did not establish that the subjective or objective purpose of purchasing the GMEs was to preserve but not enhance the goodwill of the hotel business, and that the value of the GMEs was not solely attributable to their effect on goodwill, but resided in their capacity to generate gaming income and to be sold and transferred. The Court therefore held that no deduction under s 40-880 of the 1997 Act was permitted. |
HIGH COURT OF AUSTRALIA Manager, Public Information 22 April 2009 DAVID STUART & ANOR v TANIA KIRKLAND-VEENSTRA & ANOR Today the High Court decided that two police officers did not owe Mrs Kirkland-Veenstra's husband, Ronald Veenstra, a duty of care to take steps to prevent him from committing suicide. At about 5.40am on 22 August 1999, two police officers observed Mr Veenstra in his car at a beachside car park. There was a hose pipe leading from the exhaust into the interior of the car, but the car engine was not running. The officers spoke with Mr Veenstra who indicated that he had thought about doing something stupid but had changed his mind. The officers offered to contact various people, including his wife or a doctor, but Mr Veenstra said that he would go home and talk to his wife. The officers considered that Mr Veenstra was rational and cooperative and showed no sign of mental illness. They allowed him to leave. Later that day, Mr Veenstra committed suicide at his home by securing a hose from the exhaust of his car and starting the engine. Under section 10 of the Mental Health Act (Victoria), the police officers were empowered (though not obliged) to apprehend a person and take him or her to be assessed by a medical practitioner if he or she appeared to them to be mentally ill ("mental illness" being defined in the Act to mean "a medical condition that is characterised by a significant disturbance of thought, mood, perception or memory") and they reasonably believed that he or she had recently attempted suicide or was likely to do so. Mrs Kirkland-Veenstra sued the officers and the State of Victoria, arguing that the officers owed duties of care, both to her husband to protect his health and safety, and to her to avoid the foreseeable psychiatric injury consequential upon her husband committing suicide. In the Victorian County Court, the trial judge held that, as a matter of law, the officers owed neither Mr Veenstra nor Mrs Kirkland-Veenstra a duty of care. On appeal to the Victorian Court of Appeal, it was held by majority that the officers did owe those duties of care. The two officers appealed to the High Court and the High Court today allowed their appeal. In three separate judgments, all six Justices decided that the officers owed no duty of care to either Mr Veenstra or Mrs Kirkland-Veenstra. It was explained that historically the law did not oblige a person to rescue another from harm. In one judgment it was held that the circumstances present in this case did not contain special features to take the case outside of that general rule; no duty of care arose. The Justices held that the control of the risk of the harm to himself remained with Mr Veenstra. In each of the judgments it was pointed out that the Mental Health Act was not designed to prevent suicide; it was addressed to the protection of mentally ill persons. It would be wrong to assume that all persons who attempted suicide were mentally ill; the Mental Health Act contained no such assumption. Three Justices considered the fact that the police officers had not formed the view that Mr Veenstra was mentally ill to be critical. Unless they had that opinion they were not permitted to apprehend him pursuant to section 10 and take him to be assessed. They did not have that power. The High Court set aside the decision of the Victorian Court of Appeal and reinstated the trial judge's finding that the officers owed no duty of care to Mrs Kirkland-Veenstra. |
HIGH COURT OF AUSTRALIA 3 December 2014 COMMISSIONER OF TAXATION v MBI PROPERTIES PTY LTD [2014] HCA 49 Today the High Court unanimously allowed an appeal from a decision of the Full Court of the Federal Court of Australia, and held that the respondent's assumption of a lessor's rights and obligations following its purchase of premises, subject to an existing lease, involved the making of supplies which were neither taxable supplies nor GST-free supplies. The making of those supplies subjected the respondent to assessment for GST under s 135-5 of the A New Tax System (Goods and Services Tax) Act 1999 (Cth) ("the GST Act"). Section 135-5 of the GST Act sets out the circumstances in which the recipient of a supply of a going concern is subject to liability for GST under the "increasing adjustment" for which that section provides. That increasing adjustment applies where an entity is the recipient of a supply of a going concern and the entity intends that some or all of the supplies made through the enterprise to which the supply relates will be supplies that are input taxed supplies, and that are therefore neither taxable supplies nor GST-free supplies. The respondent, MBI Properties Pty Ltd, acquired three apartments in a hotel complex each of which was subject to a lease between the vendor, South Steyne Hotel Pty Ltd ("South Steyne"), and the operator of the hotel, Mirvac Management Ltd ("MML"). The respondent, on acquiring the rights of the lessor, became the recipient of a supply of a going concern. The Commissioner assessed the respondent to GST on the basis of it having an increasing adjustment under s 135-5. On disallowance of its objection to that decision, the respondent appealed to the Federal Court. At first instance, the respondent's appeal was dismissed, with the primary judge accepting the Commissioner's argument that the continuation of the apartment leases resulted in a continuation of an input taxed supply of residential premises by way of lease from South Steyne to MML. The Full Court allowed the respondent's appeal, holding that the only relevant supply occurred, and was completed, on the grant of the leases by South Steyne to MML and, therefore, there was no input taxed supply which the respondent could have intended would be made through the enterprise it acquired from South Steyne as a going concern. Allowing the appeal, the High Court held that each apartment lease, as an executory contract, obliged the respondent to give MML use and occupation of the apartment throughout the term of the lease in consideration for the periodic payment of rent. The respondent's observance of this continuing obligation was properly characterised as an intended supply of residential premises by way of lease by the respondent to MML which was input taxed under s 40-35 of the GST Act. The Court also rejected the respondent's argument, raised by a notice of contention, that no increasing adjustment could be calculated in accordance with s 135-5 because the rent paid by MML was exclusively the price for the grant of the lease by South Steyne to MML and could not also be the price for the supply made by the respondent to MML. The respondent was therefore subject to assessment for GST under s 135-5 of the GST Act. |
HIGH COURT OF AUSTRALIA Public Information Officer 13 February, 2003 ANTHONY PHILLIP MAURICI v CHIEF COMMISSIONER OF STATE REVENUE The High Court of Australia today allowed an appeal from a resident of the Hunters Hill municipality in Sydney who objected to having the value of his land gauged against sales of the few vacant blocks left in the district. A 1998 assessment for land tax was based on an unimproved value of Mr Maurici’s land in Woolwich of $2.44 million, later reduced to $2 million. Mr Maurici argued the unimproved value was $1.25 million, derived by deducting improvements including a substantial house from a notional selling price, rather than by comparison with recent sales of vacant land. The valuation relied on only four sales, including a quick resale, of vacant land. Commissioner Anthony Nott, of the Land and Environment Court, accepted the method of valuation by comparison with sales of rare vacant blocks, but reduced the unimproved value by $50,000 to $1.95 million. Justice Dennis Cowdroy accepted Mr Maurici’s argument that sales of vacant blocks were inflated due to the scarcity factor, but the New South Wales Court of Appeal reversed that decision. It held that land was to be valued as though vacant and without improvements. The High Court unanimously upheld Justice Cowdroy’s ruling. It held that the valuation method was unduly selective and that a few sales of vacant land were unrepresentative of sales in Hunters Hill. The Court held that the Valuation of Land Act did not require valuations to be made in comparison with vacant blocks whose buyers may constitute a special class. The Court ordered that the case be remitted to Commissioner Nott for rehearing and awarded costs to Mr Maurici for his appeals to the Court of Appeal and the High Court. |
HIGH COURT OF AUSTRALIA 12 December 2013 PLAINTIFF M76/2013 v MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS AND CITIZENSHIP & ORS [2013] HCA 53 Today the High Court unanimously declared that an error of law affected the exercise of power by the Minister for Immigration, Multicultural Affairs and Citizenship to determine whether to permit the plaintiff to make a valid application for a visa. The error of law was that an officer of the Commonwealth, in deciding not to refer the plaintiff's case to the Minister, acted upon an incorrect view of the law by considering an invalid regulation to be relevant to the decision. The plaintiff arrived in Australia at Christmas Island by boat in 2010 without a visa. She is a Sri Lankan national of Tamil ethnic origin and had been a member of the Liberation Tigers of Tamil Eelam. Because the plaintiff arrived at Christmas Island without a visa, the Migration Act 1958 (Cth) prevented her from making a valid application for a visa unless the Minister exercised his power under the Act to permit her to do so. In order to consider whether to exercise that power, the Minister had in place processes by which his department assessed whether the plaintiff was a person in respect of whom Australia owed protection obligations under the Refugees Convention. The plaintiff was assessed to be such a person. The plaintiff was also the subject of an adverse security assessment made by the Australian Security Intelligence Organisation. The Minister's department took that adverse security assessment to mean that the plaintiff could not satisfy a criterion for the grant of a visa (public interest criterion 4002). On that basis, it did not refer the plaintiff's case to the Minister for his consideration. Subsequently, in Plaintiff M47/2012 v Director-General of Security (2012) 86 ALJR 1372; 292 ALR 243; [2012] HCA 46, the High Court held that public interest criterion 4002 was invalid. The plaintiff is currently in immigration detention. Due to her refugee status, she cannot be returned to Sri Lanka. Approaches to third countries for her resettlement have been unsuccessful. In the original jurisdiction of the High Court, the plaintiff sought habeas corpus and declaratory relief, claiming on both statutory and constitutional grounds that her detention is unauthorised. She invited the High Court to re-open and overrule its decision in Al-Kateb v Godwin (2004) 219 CLR 562; [2004] HCA 37. A special case stated questions of law for the determination of the Court. The High Court unanimously held that the exercise of the Minister's power was affected by an error of law, in that the Minister's department acted upon an invalid regulation in deciding not to refer the plaintiff's case to the Minister. The Court held that, because the Minister, as a result of the error of law, has yet to complete his consideration of whether to permit the plaintiff to make a valid application for a visa, the plaintiff's present detention, being for the purpose of allowing that consideration to be completed according to law, is authorised by the Act. A majority of the Court found that it was therefore unnecessary to decide the plaintiff's constitutional claim or whether Al-Kateb v Godwin should be re-opened. |
HIGH COURT OF AUSTRALIA 4 May 2011 [2011] HCA 13 SKA was convicted of five counts of sexual offences against a child committed when the child was staying at the house of SKA and his family. The offences were alleged to have been committed in two time periods. Three counts were alleged to have occurred in 2004. Counts four and five were alleged to have occurred between 1 December 2006 and 25 December 2006. In relation to counts four and five, the child was unable to specify a date on which the incidents took place but gave evidence that it was around Christmas 2006. The date on which these two offences were said to have occurred was critical because SKA led evidence at trial which provided an alibi for the period from the evening of 22 December 2006 up to and including Christmas Eve. SKA appealed to the Court of Criminal Appeal of New South Wales against conviction and sentence, including under s 6(1) of the Criminal Appeal Act 1912 (NSW) on the ground that the verdicts of the jury were perverse and not supported by the evidence. Section 6(1) states that the Court of Criminal Appeal "shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence". The Court of Criminal Appeal dismissed SKA's appeals and allowed the Crown's cross-appeal against sentence. SKA's application for special leave to appeal to the High Court from the Court of Criminal Appeal's decision was referred to the Full Court. Today, the High Court granted special leave on three grounds of appeal, and a majority of the Court allowed the appeal, holding that the Court of Criminal Appeal had incorrectly concerned itself with whether, as a question of law, there was evidence to support the verdicts, rather than making its own assessment of the evidence. The High Court held that it was critical for the Court of Criminal Appeal to determine the date at which it was alleged, in the evidence, that SKA committed the offences the subject of counts four and five. The Court of Criminal Appeal's failure to do so led the Court into error when considering the sufficiency of evidence to support the jury's verdict. The High Court also refused special leave to appeal on two grounds of appeal, holding that the Court of Criminal Appeal was not in error in not viewing a video recording of an interview between the child and the police, instead relying on a transcript of the recording. The order of the Court of Criminal Appeal dismissing SKA's appeal against conviction to that Court was set aside and the matter was remitted to the Court of Criminal Appeal for rehearing. |
HIGH COURT OF AUSTRALIA 18 March 2020 THE QUEEN v GUODE [2020] HCA 8 Today the High Court by majority allowed an appeal from the Court of Appeal of the Supreme Court of Victoria concerning whether the Court of Appeal took into account an irrelevant consideration when determining the respondent's appeal against sentence. The respondent was arraigned before the Supreme Court of Victoria on an indictment alleging one charge of infanticide ("Charge 1"), two charges of murder ("Charges 2 and 3") and one charge of attempted murder ("Charge 4"). The events comprising those offences took place on 8 April 2015, when the respondent drove a car carrying four of her children into a lake with the intention of killing each of the children. The three youngest children, including the respondent's infant son, died as a result. Section 6(1) of the Crimes Act 1958 (Vic) provided that a woman is guilty of infanticide and not murder if she carried out conduct causing the death of her child in circumstances that would constitute murder and, at the time of carrying out that conduct, the "balance of her mind was disturbed" because of her not having fully recovered from the effect of giving birth to that child within the preceding two years, or because of a disorder consequent upon giving birth to that child within the preceding two years. Section 6(1) of the Crimes Act provided that the maximum penalty for the offence of infanticide is five years' imprisonment; a significantly shorter maximum penalty than that for murder, being life imprisonment, and for attempted murder, being 25 years' imprisonment. The sentencing judge found that the respondent was affected by a depressive disorder that was relevant to the sentencing for all four offences, and that consequently the sentencing principles stated in R v Verdins (2007) 16 VR 269 applied to mitigate the sentences that might have otherwise been imposed. The sentencing judge sentenced the respondent to 12 months' imprisonment in respect of Charge 1, 22 years' imprisonment for each of Charges 2 and 3, and six years' imprisonment in respect of Charge 4. Cumulatively, the sentencing judge sentenced the respondent to a total effective sentence of 26 years and six months' imprisonment with a non-parole period of 20 years. The Court of Appeal allowed the respondent's appeal against sentence and determined that the sentencing judge had erred by giving insufficient weight to the respondent's mental condition and other mitigating factors, with the consequence that the sentences imposed for Charges 2, 3 and 4 were manifestly excessive. The Court of Appeal re- sentenced the respondent to 16 years' imprisonment for each of Charges 2 and 3, and to four years' imprisonment in respect of Charge 4. The Court of Appeal imposed a total effective sentence of 18 years' imprisonment and a non-parole period of 14 years. By grant of special leave, the Crown appealed against the Court of Appeal's decision on the sole ground that the Court erred by taking into account an irrelevant consideration when assessing whether the sentences imposed at first instance were manifestly excessive. A majority of the High Court held that the Court of Appeal erred by taking into account the Crown's acceptance of the respondent's plea of guilty to the charge of infanticide when considering whether the sentences imposed for Charges 2, 3 and 4 were manifestly excessive. The majority observed that although the evidence of the mental condition operative at the time infanticide is committed is likely to be the same as that to be considered for the purpose of applying the Verdins considerations, satisfaction of the elements of infanticide under the Crimes Act says nothing sufficiently specific about the nature and gravity of the mental condition for the purposes of applying the Verdins considerations to the other offences. |
HIGH COURT OF AUSTRALIA 23 September 2009 Manager, Public Information MINISTER FOR IMMIGRATION & CITIZENSHIP v SZIAI & ANOR [2009] HCA 39 The High Court today held that the Refugee Review Tribunal (RRT) had not fallen into jurisdictional error when it failed to make further inquiry concerning the authenticity of certain certificates relied on by an applicant in his claim for a protection visa. SZIAI, a Bangladeshi citizen, claimed to have a well-founded fear of persecution if he were to return to Bangladesh. While living in Bangladesh he had converted from the Sunni Muslim faith to become an Ahmadi Muslim. He said that, following his conversion, his life had been threatened by Sunni Muslims and would be again if he were to return. He supported his claims with certificates signed by persons who were purportedly associated with the Ahmadiyya Muslim Jamaat at Khulna in Bangladesh (AMJ Khulna). The certificates stated that SZIAI had taken a responsible role in AMJ Khulna and was always engaged in its activities. The RRT wrote to the Ahmadiyya Muslim Association Australia Inc, enclosing copies of the certificates and asking whether SZIAI was known to Ahmadiyya Muslim Jamaat in Bangladesh (AMJ Bangladesh). The Association responded, enclosing a letter from the National Ameer of AMJ Bangladesh which stated that AMJ Bangladesh had no record of SZIAI and that the certificates were “fake and forged”. In accordance with section 424A of the Migration Act 1958 (Cth) the RRT wrote to SZIAI’s solicitors seeking comment on a number of things, including the letter from the National Ameer. The solicitors responded to the suggestion that SZIAI was not an Ahmadi, stating “…the applicant disagrees with the information forwarded and states that he is an Ahmadi. He cannot, however, otherwise prove that to be so.” Having regard to the information in the National Ameer’s letter and the response from SZIAI’s solicitors, the RRT concluded that SZIAI was not a witness of truth and that there was no truth to the claims made in support of his application for a protection visa. As a result, the RRT affirmed the decision of a delegate of the Minister for Immigration and Citizenship refusing SZIAI a protection visa. SZIAI’s application to the Federal Magistrates Court for judicial review was dismissed. On appeal, a judge of the Federal Court considered that the RRT ought to have made inquiries of the authors of the certificates concerning the National Ameer’s statement that they were forged. The Federal Court held that the RRT’s failure to inquire had rendered its decision manifestly unreasonable, and this constituted a jurisdictional error on the part of the RRT. The High Court granted the Minister special leave to appeal against the Federal Court’s decision. The High Court noted that a failure on the part of the RRT to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could in some circumstances be sufficient to constitute a failure by the RRT to undertake its core function, which is to review decisions. However, the High Court found that it was not necessary to explore that principle in this case, for two reasons. First, none of the information available to the RRT indicated that any further inquiry into the authenticity of the certificates would yield a useful result. Secondly, the response from SZIAI’s solicitors indicated that SZIAI could add nothing beyond a bare denial of the assertions in the National Ameer’s letter. There was no factual basis to conclude that the RRT’s failure to inquire meant it had failed to exercise its jurisdiction or committed jurisdictional error. The Court also held that, by giving SZIAI an opportunity to respond to the information in the National Ameer’s letter, the RRT had discharged its responsibility to alert SZIAI to any information the RRT considered would be the reason, or part of the reason, for affirming the decision under review. The High Court allowed the Minister’s appeal and set aside the decision of the Federal Court. |
HIGH COURT OF AUSTRALIA 6 September 2012 ANDREWS v AUSTRALIA AND NEW ZEALAND BANKING GROUP LTD [2012] HCA 30 Today the High Court granted leave to appeal against a decision of the Federal Court of Australia and allowed the appeal. The Court held that the fact that particular fees were not charged by the respondent, Australia and New Zealand Banking Group Ltd ("the ANZ"), upon breach of contract did not render the fees incapable of being characterised as penalties. The applicants, approximately 38,000 group members, commenced representative proceedings in the Federal Court of Australia. They sought, amongst other remedies, declaratory relief that certain provisions between each of them and the ANZ were void or unenforceable as penalties. On that basis, the applicants claimed repayment of fees charged to them by way of "honour fees", "dishonour fees", "late payment fees", "non-payment fees" and "over limit fees" (collectively, "exception fees"). The applicants asked the Federal Court, by way of separate questions, whether the exception fees were payable by the applicants upon breach of contractual obligations owed to the ANZ, and, in the alternative, whether it had been the responsibility of the applicants to see that the circumstances occasioning the imposition of the exception fees did not arise. If either question was answered in the affirmative, the applicants then asked whether such fees were capable of being characterised as penalties. On 5 December 2011, the Federal Court held that only the late payment fees were payable upon breach of contract. Following the decision of the New South Wales Court of Appeal in Interstar Wholesale Finance Pty Ltd v Integral Home Loans Pty Ltd (2008) 257 ALR 292, the primary judge held that the penalty doctrine was limited to breaches of contract and thus could only be applied to the late payment fees. The applicants sought leave to appeal to the Full Court of the Federal Court of Australia. On 11 May 2012 the High Court, acting pursuant to s 40(2) of the Judiciary Act 1903 (Cth), removed the application for leave. A question before the Court was whether the Interstar decision correctly stated the law with respect to penalties and whether the modern doctrine respecting penalties had become wholly a doctrine of the common law, rather than of Equity. The High Court unanimously rejected the proposition that the penalty doctrine applies only where there has been a breach of contract. The question is one of substance rather than form. The Court also rejected the proposition in Interstar that the doctrine had been absorbed into the common law. The fact that the honour, dishonour, non-payment and over limit fees were not payable for breach of contract did not prevent them from being characterised as penalties. It will be for the Federal Court on the further hearing of the matter to decide whether these exception fees are penalties. |
HIGH COURT OF AUSTRALIA Public Information Officer 12 March, 2003 MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS v JI DONG WANG The High Court of Australia today overturned a decision by the Full Court of the Federal Court directing a Refugee Review Tribunal matter be reheard by the same tribunal member because that member had made findings of fact favourable to Mr Wang. Mr Wang arrived in Australia from China in 1997, claiming persecution as a Protestant Christian after being repeatedly detained for attending unregistered religious meetings rather than worshipping in official churches. He was refused a protection visa. A review by RRT member Kerry Boland confirmed that decision. The Federal Court dismissed Mr Wang’s application for review of Ms Boland’s decision. On appeal, the Full Court set aside the decision and ordered that the matter be remitted to the RRT as previously constituted, that is, to be reheard by Ms Boland. The Full Court held that her findings of fact were generally favourable to Mr Wang but deficient in some respects. The Full Court was concerned that Mr Wang might be treated less favourably by other RRT members. At first, the Full Court did not order that Ms Boland review Mr Wang’s case, but that if there was a dispute over the constitution of the RRT the parties had liberty to apply for a fresh order. When his matter was not relisted before Ms Boland Mr Wang exercised the liberty to apply and the Full Court ordered that Ms Boland rehear the case. The Minister argued that the Federal Court lacked the power to make this order or that it erred in the exercise of its discretion. The High Court held that neither Ms Boland nor any other RRT member would be bound by her earlier findings of fact, even if the circumstances of Mr Wang’s religious status in China was unchanged. The RRT was required to decide whether a person had a well-founded fear of persecution, a decision to be made on its merits on the basis of information the RRT had before it at the time, not according to earlier findings of fact preserved for the person’s benefit. The Federal Court could possibly direct the RRT to correct a legal error or to make a particular finding as a matter of law, but directing the RRT to act on facts found at a previous hearing was not open to it. The High Court, by a 4-1 majority, held that the orders of the Full Court of the Federal Court should be set aside and substituted with an order to dismiss Mr Wang’s application to have Ms Boland conduct another review of his case. |
HIGH COURT OF AUSTRALIA 1 October 2004 ROBERT JOHN FARDON v RODNEY JON WELFORD, ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND Queensland legislation under which dangerous sexual offenders can continue to be held in detention after serving their prison terms in certain circumstances is valid, the High Court of Australia held today. Mr Fardon was sentenced in 1980 to 13 years’ imprisonment for rape and after eight years was released on parole. Twenty days later he committed rape, sodomy and assault occasioning actual body harm. He was sentenced to a 14-year jail term which expired 27 June 2003. The Dangerous Prisoners (Sexual Offenders) Act came into force on 6 June 2003. Mr Welford applied for an order that Mr Fardon be detained indefinitely under section 13 of the Act. Pursuant to section 8, Supreme Court Justice John Muir granted an interim detention order on 27 June, pending a final hearing of Mr Welford’s application. The Court of Appeal, by majority, dismissed an appeal against Justice Muir’s order and his judgment affirming the validity of the Act. After a four-day hearing, Justice Margaret White last November made an order for continuing detention. She said the major concern was Mr Fardon’s refusal to participate in therapy to treat his sexual violence and alcohol and drug abuse. Mr Fardon also instituted an appeal against Justice White’s order. The High Court granted Mr Fardon special leave to appeal against the Court of Appeal decision relating to Justice Muir’s order and later removed into the High Court so much of the cause pending in the Court of Appeal relating to Justice White’s order. Mr Fardon challenged the validity of both section 8 concerning interim detention orders and section 13 concerning the process for granting continuing detention orders. The Court, by a 6-1 majority, held that the Act was valid and dismissed the appeal. It held that the Act did not compromise the integrity of the Supreme Court or conflict with the power conferred on Federal Parliament by the Constitution to invest State courts with federal jurisdiction. The Act contained many safeguards of a trial, unlike the NSW Community Protection Act. The Court held in 1996 that the NSW Act, which provided for the continuing detention of convicted wife killer Gregory Wayne Kable, was invalid. By contrast, the Queensland Act is directed at a class of offenders rather than at one particular person, the Supreme Court exercises judicial power in determining whether the release of a sexual offender is an unacceptable risk, the Attorney-General bore the onus of proving a prisoner is a serious danger to the community, if the Supreme Court is satisfied a prisoner is a serious danger it had discretion to order a continuing detention order or a supervision order, such orders are subject to periodic review, the issue of unacceptable risk must be satisfied to a high degree of probability having regard to matters listed in section 13(4), detailed reasons must be given for any order, and there is a right of appeal. |
HIGH COURT OF AUSTRALIA 7 February 2018 COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE v STEVEN IRVINE HART & ORS; COMMONWEALTH OF AUSTRALIA v YAK 3 INVESTMENTS PTY LTD AS TRUSTEE FOR YAK 3 DISCRETIONARY TRUST & ORS; COMMONWEALTH OF AUSTRALIA & ANOR v FLYING FIGHTERS PTY LTD & ORS [2018] HCA 1 Today the High Court unanimously allowed two appeals from a decision of the Court of Appeal of the Supreme Court of Queensland concerning the Proceeds of Crime Act 2002 (Cth) ("the POCA"). The appeals related to whether property that was forfeited to the Commonwealth under the POCA could be recovered by, or an amount equivalent to its value paid to, companies which held an interest in the property immediately prior to its forfeiture. The High Court unanimously dismissed a further appeal from the same decision regarding the date at which a court must be satisfied that particular property is subject to the effective control of a person, in order that the court may declare that the whole or part of that property is available to satisfy a pecuniary penalty order made against the person. In May 2003, the Commonwealth Director of Public Prosecutions ("the CDPP") obtained restraining orders under the POCA prohibiting disposal of, or other dealing with, certain property suspected of being under the effective control of Mr Steven Hart, who was suspected of committing offences in operating tax minimisation schemes. The restrained property included aircraft, a car and real property. In May 2005, Mr Hart was convicted of nine offences of defrauding the Commonwealth. In April 2006, the restrained property was automatically forfeited to the Commonwealth under s 92 of the POCA. Following the automatic forfeiture, a number of companies with which Mr Hart was affiliated applied to the District Court of Queensland under s 102 of the POCA to recover their respective interests, or an amount equal to the value of their interests, in some of the forfeited property. The companies contended that, for the purposes of s 102(3), the property was not "used in, or in connection with, any unlawful activity" ("the use condition"); was not "derived or realised, directly or indirectly" from any unlawful activity ("the derivation condition"); and had been "acquired ... lawfully" ("the acquisition condition"). The CDPP also applied to the District Court under s 141 of the POCA for a declaration that any property recovered by the companies was available to satisfy any pecuniary penalty order made against Mr Hart. Under s 141, a precondition to the District Court making that order was that the District Court be satisfied that the relevant property "is subject to the effective control" of Mr Hart. A pecuniary penalty order was subsequently made requiring Mr Hart to pay $14,757,287.35 to the Commonwealth. The District Court ordered the recovery, under s 102, of some of the real property and some of the aircraft, on condition that the companies pay to the Commonwealth $1.6 million in respect of fixed and floating charges (over some of the forfeited property) which had also been automatically forfeited to the Commonwealth. The District Court dismissed the CDPP's application under s 141 on discretionary grounds. The companies, the Commonwealth, and the Commissioner of the Australian Federal Police (replacing the CDPP) each appealed. On appeal, the Court of Appeal held, by majority, that the companies had proved that the use condition, the derivation condition, and the acquisition condition were each satisfied in respect of the relevant forfeited property and that the orders under s 102 sought by the companies should be made without the condition imposed by the District Court. A key element of the majority's reasoning was that property would only be "derived" from unlawful activity if it was wholly derived from the commission of a relevant offence. The majority also held that effective control of the property for the purposes of s 141 was to be assessed at the date of the determination of the CDPP's application under that provision, meaning that the application should be dismissed because it could not be established that Mr Hart had effective control of the property at that date. By special leave, the Commonwealth and the Commissioner of the Australian Federal Police appealed to the High Court. The High Court held that property will be "derived" from unlawful activity for the purposes of the derivation condition if it is wholly or partly derived from an act or omission constituting a relevant offence. For property to be "partly derived" from unlawful activity, the degree of derivation must be more than trivial, but beyond that there is no requirement that the degree of derivation must be substantial. Regarding the use condition, the Court held that "use in, or in connection with, unlawful activity" is a broad conception that involves practical considerations that will vary from case to case. However, "use" does not require a causal link between the property and a relevant offence or that the property was necessary for or made a unique contribution to the offence, nor does the degree of use need to be proportionate to the forfeiture of the property. Regarding the acquisition condition, the Court held that the applicant must prove that each step in the process by which the applicant came to hold a relevant interest in the property was lawful, including that all of the consideration paid by the applicant for the interest was lawfully acquired. In the result, the companies' application under s 102 failed in respect of all of the forfeited property except for one item of real property, the proceeds of which (if any) were to be paid by the Commonwealth to one of the companies following satisfaction of $1.6 million secured by two security interests. Accordingly, the appeals in respect of the s 102 application were allowed. The High Court also held that effective control of property for the purposes of s 141 is to be assessed at the date of the determination of an application under that provision. Accordingly, the appeal in respect of the s 141 application was dismissed. |
HIGH COURT OF AUSTRALIA 4 November 2020 DEGUISA & ANOR v LYNN & ORS [2020] HCA 39 Today the High Court unanimously allowed an appeal from a judgment of the Full Court of the Supreme Court of South Australia. The appeal concerned the requirement of notification in s 69 of the Real Property Act 1886 (SA) ("the Act") in relation to the burden of restrictive covenants which are part of a common building scheme affecting land. Section 69 of the Act provides, subject to immaterial exceptions, "[t]he title of every registered proprietor of land shall, subject to such encumbrances, liens, estates, or interests as may be notified on the original certificate of such land, be absolute and indefeasible". Restrictive covenants in common building schemes cannot be registered under the Act. The appellants are the registered proprietors of land situated at 538 Henley Beach Road, Fulham ("Lot 3"). The appellants obtained planning approval to subdivide Lot 3 and build two townhouses. Lot 3 and 51 other allotments were once part of a large parcel of land which was subdivided and sold in the mid-1960s as part of what was claimed by the respondents to be a common building scheme. The present certificate of title for Lot 3 referred in its schedule of dealings to a memorandum of encumbrance ("the Memorandum of Encumbrance"). The Memorandum of Encumbrance was lodged for registration and recorded on the now cancelled certificate of title for Lot 3 when in 1965 it was first sold. The terms of the Memorandum of Encumbrance relevantly prohibited the erection of any building or buildings other than "a dwellinghouse", and also prohibited the erection of "multiple dwellings". On the back-cover sheet of the Memorandum of Encumbrance there appeared a handwritten requisition by the Land Titles Office, stating "[i]s the encumbrance part of a common building scheme? If not to what land is it appurtenant". The handwritten requisition gave rise to the Memorandum of Encumbrance being relodged, with a typed statement by a land broker that "[t]his encumbrance forms portion of a common Building Scheme". Neither the Memorandum of Encumbrance itself nor the present certificate of title identified the other lots intended to be benefited by the restrictive covenants in the Memorandum of Encumbrance. The respondents, contending that building two townhouses on Lot 3 would infringe the restrictive covenants in the Memorandum of Encumbrance, commenced proceedings in the District Court of South Australia to prevent the construction. The primary judge held that the appellants were sufficiently notified of the restrictive covenants and were therefore bound by them. The primary judge held further that the respondents had standing to bring the proceedings, and the terms of the Memorandum of Encumbrance prohibited the appellants' proposed construction of the townhouses. Those conclusions were upheld by a majority of the Full Court of the Supreme Court. By grant of special leave, the appellants appealed to the High Court. The High Court held that the appellants were not notified of the restrictive covenants in accordance with s 69 of the Act. A person is not notified of an encumbrance or qualification upon the title of the registered proprietor of land that cannot be ascertained from a search of the certificate of title or from a registered instrument referred to in a memorial on the certificate of title. The appellants were not required to undertake further inquiries and searches to ascertain the extent of the common building scheme referred to in the land broker's notation in the Memorandum of Encumbrance. Given this conclusion, the Court found it unnecessary to consider whether the respondents had standing to enforce the common building scheme or whether the covenant on its terms prevented the appellants' proposed construction. |
HIGH COURT OF AUSTRALIA 17 August 2022 TU'UTA KATOA v MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS & ANOR [2022] HCA 28. Today, the High Court unanimously dismissed an application, brought in the Court's original jurisdiction, seeking writs to quash, and require the remaking of, the Federal Court of Australia's decision to refuse an extension of time for the plaintiff to seek judicial review of a ministerial decision to cancel the plaintiff's visa. The plaintiff, a citizen of New Zealand, held a Class TY Subclass 444 Special Category (Temporary) visa. That visa was cancelled by the then Minister for Home Affairs pursuant to s 501(3)(b) of the Migration Act 1958 (Cth) ("the Act") on the basis that the Minister reasonably suspected that the plaintiff did not pass the character test and was satisfied that the cancellation of the visa was in the national interest. The plaintiff did not apply to the Federal Court of Australia for review of that decision within the time allowed by s 477A(1) of the Act. The plaintiff later applied to the Federal Court pursuant to s 477A(2) of the Act for an extension of time in which to file an application for review of the Minister's decision. Under s 477A(2), an extension could only be granted if the Federal Court was satisfied that an extension was necessary in the interests of the administration of justice. The primary judge heard the application for an extension of time concurrently with the underlying substantive application for judicial review. The primary judge dismissed the extension of time application after failing to be persuaded that the single ground of review in the proposed substantive application had any merit. Subsections 476A(3)(b) and (4) of the Act had the effect that the plaintiff was not able to bring an appeal from the decision of the primary judge to refuse to grant an extension of time. In the High Court, the plaintiff contended that the primary judge's decision involved jurisdictional error because the judge misapprehended or misconceived the nature and purpose of the statutory power in s 477A(2) to extend time. The plaintiff argued that this error was revealed by the primary judge's reasons, which were said to extend beyond an assessment of the merits of the application for review on an "impressionistic" basis for the limited purpose of assessing whether the application was reasonably arguable. In dismissing the application, the High Court accepted that, in determining what is necessary in the interests of the administration of justice for the purposes of s 477A(2), it will often be appropriate to assess the merits of the proposed grounds of review at a "reasonably impressionistic level". However, there will also be circumstances in which it is appropriate for the Federal Court to engage in more than an impressionistic assessment of the merits. As the merits of a proposed application are a consideration permitted by the terms of s 477A(2), it is within the Federal Court's jurisdiction to have regard to that factor in such manner as it considers appropriate in the circumstances. It was permissible, and in this case appropriate, for the primary judge to assess whether the proposed ground of appeal had any merit in order to decide the extension of time application. |
HIGH COURT OF AUSTRALIA 12 February 2004 CHARLES DELIUS SOMERVILLE ALEXANDER AND OTHERS trading as MINTER ELLISON v PERPETUAL TRUSTEES WA LIMITED AND PERPETUAL TRUSTEES COMPANY LIMITED The High Court of Australia today dismissed an appeal by Minter Ellison, which had sought to have the Perpetual Trustees companies contribute to repayment of trust money lost by 40 investors. The decision follows a related April 2003 decision, Youyang Pty Ltd as trustee of the Bill Hayward Discretionary Trust v Minter Ellison Morris Fletcher (later Minter Ellison), in which the Court unanimously held Minters liable in respect of an investment by a family trust and ordered the law firm to restore the lost $500,000, plus interest and costs, to the trust fund. In both cases, investors had invested substantial amounts in a preference share issue by EC Consolidated Capital Limited (ECCCL) which went into liquidation in 1997, resulting in the loss of all money invested. In today’s decision, investments were made via the Perpetual Trustees companies, which were trustees of two managed superannuation funds, identified as first-level trusts. Minters were both solicitors for ECCCL and agents for Perpetual Trustees. Perpetual Trustees handed over investors’ subscriptions which Minters held in its trust account, constituting the second-level trust. ECCCL was to receive the money only after providing deposit certificates, issued by a Dresdner Bank subsidiary as security for subscribers’ investments. Minters never received the deposit certificates, but released the funds to ECCCL. Perpetual Trustees failed to ensure subscriptions conformed with the required terms. The investors, some of whom were trustees for other investors, successfully sued Perpetual Trustees in the New South Wales Supreme Court. Minters were then found liable to the Perpetual Trustees companies for $12.44 million to replenish trust funds or to repay investors. Minters claimed Perpetual Trustees should share this liability. The NSW Court of Appeal dismissed an appeal by Minters, which appealed to the High Court, claiming the Court of Appeal erred in holding that it was not entitled to contribution from Perpetual Trustees to the repayments. The High Court appeal turned on construction of sections of Victoria’s Wrongs Act concerning contribution. Section 23B provides for claims for contribution from anyone liable for the same damage. Minters was not liable to the investors. Perpetual Trustees were liable to the investors for breach of the first-level trusts. Minters were liable to Perpetual Trustees for breach of the second- level trusts. The question was whether Minters and Perpetual Trustees were liable for the same damage. Only six members of the Court sat on the appeal, the other member of the court having been involved in the proceedings as counsel. The High Court being evenly divided, the appeal failed and was dismissed (Judiciary Act section 23(2)(b)). |
HIGH COURT OF AUSTRALIA 6 October 2005 EDDY STEVENS v KABUSHIKI KAISHA SONY COMPUTER ENTERTAINMENT, SONY COMPUTER ENTERTAINMENT EUROPE LIMITED AND SONY COMPUTER ENTERTAINMENT AUSTRALIA PTY LIMITED The High Court of Australia today allowed an appeal against a finding that Mr Stevens’s modifications to Sony PlayStation consoles to allow unauthorised copies of games to be played were illegal. With effect from 4 March 2001, the Copyright Amendment (Digital Agenda) Act introduced provisions relating to “circumvention devices” into the Copyright Act. The appeal concerned the meaning of that term. The Sony companies manufactured and distributed both PlayStation consoles for playing computer games on television sets and the computer games on CD-ROMs. Sony owned the copyright in both the hardware and the software. Each CD contains an access code and the circuit boards of the PlayStation consoles contain a chip described as a boot ROM. An unauthorised copy of a PlayStation CD does not replicate the access code so the boot ROM of the console denies it access so that the game cannot be played. Sony claimed that the access code and boot ROM, either separately or together, constituted a “technological protection measure”, as defined in section 10(1) of the Copyright Act. Section 116A of the Copyright Act gives an owner of copyright in an item protected by a “technological protection measure” a right of action against someone who makes or sells “circumvention devices”, devices capable of overcoming the protection measure. On two occasions in 2001, after the Amendment Act took effect, Mr Stevens sold unauthorised copies of the PlayStation games Croc 2, Medi Evil, Motor Races World Tour and Porsche 2000. On three occasions he also sold “mod chips” and installed them in PlayStation consoles to bypass the boot ROM anti-infringement device and allow the copies to be played. These mod chips would constitute “circumvention devices” – and Sony would have a right of action against Mr Stevens – only if Sony’s device was found to be a “technological protection measure”. In the Federal Court, Justice Ronald Sackville held that they were not such measures, because in order to be a “technological protection measure” a device must be designed to prevent or inhibit copying in breach of copyright. The Full Court of the Federal Court unanimously allowed an appeal by Sony, holding that its device inhibiting infringement by making unauthorised copies unusable was sufficient. A majority of the Full Court did agree with Justice Sackville that when a game is played computer programs are not reproduced in a material form in the Random Access Memory of the console, and a copy of the game fulfilling the definition of “cinematograph film” is not made in RAM. The Court granted Sony a declaration, an injunction and costs and ordered that the question of damages be remitted to Justice Sackville. Mr Stevens appealed to the High Court. The Court unanimously allowed the appeal. It accepted Justice Sackville’s construction of a “technological protection measure” as a device which denies access to a copyright work or which limits capacity to make copies of a work and thereby prevents or inhibits the undertaking of acts which would infringe copyright. The Court upheld the finding by Justice Sackville and the Full Court majority that computer programs are not reproduced in a material form in RAM and copies of cinematograph films are not made in RAM when games are played. |
HIGH COURT OF AUSTRALIA Public Information Officer 2 October, 2003 RE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS The High Court of Australia today upheld a decision of the Minister Philip Ruddock to revoke the visa of a German man who had lived in Australia since he was 10 years old. Mr Palme sought relief under section 75(v) of the Constitution against Mr Ruddock, but the Court, by a 4-1 majority, dismissed his application. Mr Palme, 42, was born in Germany and brought up by a foster family who moved to Australia in 1971. He never took out Australian citizenship, but contended he had been effectively absorbed into the Australian community. He is divorced and has two teenage children. In 1992, Mr Palme pleaded guilty in the New South Wales Supreme Court to murdering David Roberts who disappeared during a fishing trip in 1989. Although a coronial inquiry found Mr Roberts had drowned, Mr Palme later told two friends he had smashed a rock over Mr Roberts’s head and thrown him into the water. He alleged he had killed Mr Roberts to extricate Mr Roberts’s wife and her children from intolerable abuse. Mr Palme was jailed for 16 years with a minimum sentence of 10 years, but is now in an immigration detention centre. Mr Ruddock exercised his discretion to cancel Mr Palme’s visa before Mr Palme was due for release in 2002. Under section 501(2) of the Migration Act, the Minister could cancel a visa if a person did not pass the character test, in this case by having been jailed for 12 months or more. The majority of the High Court held that Mr Palme had not made out his entitlement to relief under section 75(v) of the Constitution and declined to issue the writs of certiorari to quash Mr Ruddock’s decision and prohibition to prevent his decision being implemented. The majority held that Mr Ruddock had not failed to observe procedural fairness in making his decision to cancel the visa and that other grounds of complaint had not been made out. |
HIGH COURT OF AUSTRALIA 2 February 2009 CHEE KAN KENNETH WONG v COMMONWEALTH OF AUSTRALIA Public Information Officer ASHRAF THABIT SELIM v VINAYAK (VINOO) LELE, PATRICK TAN and DAVID RIVETT constituting the Professional Services Review Committee No. 309; THE DETERMINING AUTHORITY established under section 106Q of the Health Insurance Act 1973 (Cth); HEALTH INSURANCE COMMISSION; AND ALAN JOHN HOLMES in his capacity as Director, Professional Services Review The Medicare system does not amount to civil conscription of doctors in contravention of the Constitution, the High Court of Australia held today. Dr Wong and Dr Selim have each been found by a Professional Services Review (PSR) Committee, set up under the Commonwealth Health Insurance Act, to have engaged in conduct amounting to “inappropriate practice” due to seeing very high numbers of patients in a given time. In April 2006, Dr Wong commenced an action in the High Court, seeking declarations that sections 10, 20 and 20A and Part VAA of the Act were invalid because they amounted to civil conscription, within the meaning of section 51(xxiiiA) of the Constitution. Section 51(xxiiiA), added to the Constitution after a referendum in 1946, gives Parliament the power to make laws with respect to “provision of maternity allowances, widows’ pensions, child endowment, unemployment, pharmaceutical, sickness and hospital benefits, medical and dental services (but not so as to authorise any form of civil conscription), benefits to students and family allowances”. Sections 10, 20 and 20A deal respectively with entitlement to a Medicare benefit, payment to persons incurring medical expenses, and assignment of a Medicare benefit to the relevant medical practitioner. Part VAA of the Act sets up the PSR Scheme and contains the provisions relating to inappropriate practice. The doctors said all their professional activities were controlled by the Commonwealth and that Part VAA dealt so extensively with doctors’ conduct as to cover everything a doctor might do. A Justice of the High Court remitted Dr Wong’s action to the Federal Court of Australia in October 2006. In that Court, Dr Wong’s action was heard together with an appeal by Dr Selim from a decision of Justice Margaret Stone denying Dr Selim’s application for judicial review. The Full Court’s decision was adverse to both doctors. It held that the impugned sections did not compel a practitioner to render any professional service to any person. Rather, they compelled doctors to conduct their practices with the care and skill that would be acceptable to the general body of medical practitioners. Dr Wong and Dr Selim both appealed to the High Court. The High Court, by a 6-1 majority, dismissed both appeals. It held that sections 10, 20 and 20A of the Act do not amount to a form of civil conscription, because doctors do not compulsorily provide service for the Commonwealth, or for other bodies on the Commonwealth’s behalf. The Act does not force doctors to treat or not treat particular patients. Doctors are free to choose where and when they practise. The PSR scheme requires doctors to conform to certain norms, which are calculated to ensure that doctors perform professionally. Aspects of the Medicare scheme, such as denial of payment where there is a failure to record details such as item numbers, are conditions of participation in the scheme but these aspects do not amount to a practical compulsion to perform a professional service. |
HIGH COURT OF AUSTRALIA 13 April 2022 [2022] HCA 14 Today, the High Court unanimously allowed appeals from a decision of the Court of Criminal Appeal of the Supreme Court of New South Wales concerning the mandatory discharge of a juror under s 53A(1)(c) of the Jury Act 1977 (NSW) where the juror has engaged in "misconduct". "[M]isconduct" includes "conduct that constitutes an offence against" the Jury Act. It is an offence against s 68C(1) for a juror for the trial of any criminal proceedings to make an inquiry – such as conducting research by using the internet – for the purpose of obtaining information about any matters relevant to the trial. The appellant was tried in the District Court of New South Wales on an indictment charging him with 12 counts of sexual offences against children, which were alleged to have been committed whilst the appellant was a mathematics tutor. As part of its case, the Crown led evidence that the appellant did not hold a Working with Children Check. Character evidence was adduced by the appellant to counter that evidence, and his counsel made submissions about that evidence, which the trial judge then referred to in her summing up. During their deliberations, the jury provided a note to the trial judge stating they had reached unanimous verdicts on eight counts. The following day, the foreperson provided a note to the trial judge stating that a juror had disclosed that they had Googled the requirements for a Working with Children Check and discovered the relevant legislation. The note stated that the juror had been a teacher and was curious as to why they did not have a check. The trial judge then proceeded to take ten verdicts, eight of which the jury had indicated they had reached the day prior to the juror's Google search, and only then discharged the juror under s 53A(1)(c). The remaining jurors later delivered guilty verdicts in respect of the two remaining counts. A majority of the Court of Criminal Appeal dismissed the appellant's appeal, holding that the juror had not engaged in misconduct because the juror had made the inquiry for the purpose of "satisfying herself as to why she did not require a Working with Children Check", which was not a matter relevant to the trial. The Court of Criminal Appeal also held that mandatory discharge under s 53A(1)(c) was not required before the trial judge took the ten verdicts as her Honour had only tentatively formed the view that there was misconduct before taking those verdicts. The High Court unanimously held that the juror did engage in misconduct and the trial judge erred in taking the verdicts before discharging the juror. The phrase "information about ... any matters relevant to the trial" is to be understood as including, at least, information about matters of evidence given or addresses to the jury at the trial. Section 68C(1) is not concerned with the juror's motive. It is the fact of the inquiry, and that the purpose of the inquiry was to obtain information about a particular matter relevant to the trial, which is the subject of the prohibition. In this case, the matter about which the juror made the inquiry was the Working with Children Check, which was the subject of evidence and was referred to in defence counsel's submissions and the trial judge's summing up. Discharge was therefore mandatory. The High Court quashed the appellant's convictions on the counts in respect of which verdicts of guilty were entered before the juror was discharged, ordered there be a new trial on those counts, and remitted the matter to the Court of Criminal Appeal in respect of the appellant's sentence on the remaining counts. |
HIGH COURT OF AUSTRALIA 23 June 2021 COMMONWEALTH OF AUSTRALIA V AJL20 [2021] HCA 21 Today the High Court allowed appeals from the Federal Court of Australia, removed to this Court pursuant to s 40 of the Judiciary Act 1903 (Cth), concerning the construction of ss 189, 196, 197C and 198 of the Migration Act 1958 (Cth) ("the Act"). Section 189(1) of the Act, read with the s 5(1) definition of "detain", authorises and requires the Executive to take into and keep "unlawful non-citizens" in immigration detention. "Unlawful non- citizens" are non-citizens in the "migration zone" (in broad terms, Australia) who do not hold effective visas. Section 196 governs the period for which an unlawful non-citizen taken into immigration detention is to be kept in immigration detention under s 189(1). Section 196(1) relevantly provides that an unlawful non-citizen must be kept in immigration detention until he or she is removed from Australia under s 198 or until he or she is granted a visa. Section 198(6) imposes an obligation on the Executive to effect the removal of an unlawful non-citizen (without an outstanding visa application) "as soon as reasonably practicable". Section 197C had the effect that it was irrelevant whether the Executive's performance of the s 198 duty would place Australia in breach of its non-refoulement obligations under international law. The respondent's visa was cancelled on character grounds on 2 October 2014. Having become an unlawful non-citizen, the respondent was detained as required by s 189(1) of the Act. On 11 September 2020, the Federal Court ordered the respondent's release on the footing that his continuing detention was unlawful because, due to its legislatively irrelevant desire to comply with Australia's non-refoulement obligations, the Executive had not removed him from Australia "as soon as reasonably practicable". The Federal Court considered that the period of detention authorised and required by the Act ceases when removal should have occurred had the Executive acted with all reasonable despatch. This reading of the Act was thought to be compelled by a need to observe the limitations on the Parliament's power to authorise detention by the Executive flowing from the separation of judicial power effected by Ch III of the Constitution. The High Court, by majority, held that ss 189(1) and 196(1) validly authorise and require the detention of an unlawful non-citizen until the actual event of, relevantly, their removal from Australia or grant of a visa. Detention so authorised and required does not involve constitutionally impermissible punishment of the detainee by the Executive because it is reasonably capable of being seen as necessary for the legitimate non-punitive purposes of segregation pending investigation and determination of any visa application or removal. The authority and obligation to detain is hedged about by enforceable duties, including that in s 198(6), that give effect to these legitimate non-punitive purposes and mean that the duration of detention is capable of determination. Upon performance of these hedging duties by the Executive, detention is to be brought to an end. Non-performance by the Executive erases neither these duties nor the legitimate non-punitive statutory purposes which they support. Rather, judicial power compels performance by the Executive of its duties, through the remedy of mandamus, so as to enforce the supremacy of the Parliament over the Executive. |
HIGH COURT OF AUSTRALIA 14 December 2022 ALLIANZ AUSTRALIA INSURANCE LTD v DELOR VUE APARTMENTS CTS 39788 [2022] HCA 38 Today, the High Court allowed an appeal from a decision of the Full Court of the Federal Court of Australia. The appeal concerned the ability of an insurer to rely on a statutory defence to a claim for indemnity despite a representation by the insurer that it would grant indemnity, but the extent of which indemnity was ambiguous. The respondent, Delor Vue Apartments CTS 39788, was the body corporate for a complex of apartment buildings. It held a policy of insurance for public liability and property damage with the appellant, Allianz Australia Insurance Ltd. Delor Vue knew that the apartment buildings had serious non-structural defects. It did not disclose this to Allianz. On 28 March 2017, Tropical Cyclone Debbie struck north Queensland, causing substantial damage to the apartment buildings and exposing the defects. Delor Vue notified a claim under the policy of insurance. On 9 May 2017, Allianz emailed to advise Delor Vue that, despite the non-disclosure, it would honour the claim and provide indemnity. The extent of the promised indemnity was ambiguous. A dispute arose as to the sequence of repair work and the distribution of costs. On 28 May 2018, Allianz proposed a "settlement" to resolve the dispute about the extent of indemnity and advised that if Delor Vue did not accept, Allianz would rely on its power pursuant to s 28(3) of the Insurance Contracts Act 1984 (Cth) to reduce its liability on the basis of Delor Vue's non-disclosure. Delor Vue did not accept and Allianz denied indemnity. Delor Vue commenced proceedings in the Federal Court of Australia, arguing that Allianz was bound by the representation that it would grant indemnity because it: (i) had irrevocably elected not to rely on the s 28(3) defence; (ii) had waived its right to rely on the s 28(3) defence; (iii) was estopped from resiling from the representation; and (iv) had breached its duty of utmost good faith. The primary judge upheld claims (ii), (iii), and (iv). A majority of the Full Court dismissed an appeal from the primary decision, finding that all four claims were established. The High Court, by majority, allowed the appeal, concluding that the 9 May 2017 email contained a waiver of the s 28(3) defence which was "revoked" on 28 May 2018, in the sense that it was made conditional upon the acceptance of terms resolving ambiguity as to the extent of the indemnity. In the law of contract there are limited circumstances in which a gratuitous waiver of rights is irrevocable, none of which was present. Unless such circumstances are exceptional they would undermine other contractual rules, including those generally requiring that variation of a contract be in the form of a deed or supported by consideration. Further, the waiver of the s 28(3) defence did not involve an election between alternative and inconsistent sets of rights, such as to give rise to an irrevocable "election by affirmation". Nor did Delor Vue establish that it had suffered any detriment in reliance on Allianz's representation such that Allianz was estopped from revoking its waiver. There being no free-standing obligation upon an insurer, independent of its contractual obligations, to act in a manner which is decent and fair, there was no basis to find that Allianz breached its duty of utmost good faith. |
HIGH COURT OF AUSTRALIA 7 December 2016 R v YAVAZ KILIC [2016] HCA 48 Today the High Court unanimously allowed an appeal from a decision of the Court of Appeal of the Supreme Court of Victoria. The High Court held that the Court of Appeal had erred in holding that the sentences imposed on the respondent by the sentencing judge were manifestly excessive. At the time of the offending the respondent was 22 years of age and in a relationship with the victim, who was 12 weeks pregnant with his child. Their relationship was described by the victim as "dysfunctional and controlled by drug use". On the evening of the offending, the victim arrived at the respondent's home in a car in the company of two mutual friends of the couple. When they arrived the respondent ran at the car with a samurai sword and thrust it through the open driver's window where one of the friends was sitting. The respondent yelled abuse at the victim but, after a time, returned to the house. Later, he approached the car and a struggle ensued as the victim attempted to fight him off. The respondent emptied a can of petrol, which had been sitting on the back seat, over the victim. He then got out of the car but returned a few minutes later and, after a further struggle, held a cigarette lighter to the victim's chest, igniting the petrol. Immediately, the victim's hair, face and clothing were engulfed in flames. After the fire was eventually extinguished, the victim was taken to hospital in a critical condition. Her injuries required multiple complex life-saving treatments. Due to the nature and seriousness of her injuries, and her long-term prognosis, the victim's pregnancy was terminated at her request. The respondent pleaded guilty to one count of intentionally causing serious injury and two summary offences. He was sentenced by a judge of the County Court of Victoria to a total effective sentence of 15 years' imprisonment with a non-parole period of 11 years. On the respondent's appeal to the Court of Appeal, their Honours held that there was "such a disparity between the sentence imposed [for the offence of causing serious injury] and current sentencing practice as illustrated by the authorities relied upon by the parties" that they were satisfied that there had "been a breach of the underlying sentencing principle of equal justice". The Court of Appeal allowed the appeal, quashed the sentences imposed by the sentencing judge, re-sentenced the respondent to a total effective sentence of 10 years and 10 months' imprisonment, and set a non-parole period of seven years and six months. By grant of special leave, the Crown appealed to the High Court. The High Court unanimously allowed the appeal, holding that the Court of Appeal had erred in their consideration of "current sentencing practices" by holding that the difference between the sentence imposed by the sentencing judge for the offence of causing serious injury and the sentences imposed in some other cases to which the Court of Appeal referred warranted the conclusion that the former was manifestly excessive. The High Court also held that the Court of Appeal had erred in concluding that the sentences imposed by the sentencing judge for the summary offences were manifestly excessive. The High Court made orders with the effect of restoring the sentences imposed by the sentencing judge. |
HIGH COURT OF AUSTRALIA Public Information Officer 19 June, 2003 PAUL JOHN COOK (as trustee of the property of Peter Robert Benson) v PETER ROBERT BENSON, LEGAL AND GENERAL SUPERANNUATION SERVICES PTY LTD, PRUDENTIAL CORPORATION AUSTRALIA LIMITED, AND MERCANTILE MUTUAL CUSTODIANS PTY LTD The High Court of Australia today dismissed an appeal by Mr Benson’s trustee in bankruptcy, Mr Cook, who sought to recover $80,000 from a lump-sum superannuation pay-out that Mr Benson rolled over to three other super funds. Mr Benson was employed by Industrial Sales and Service (Tas) Pty Ltd from 1972 to 1990 and was a member of ISAS’s super fund. When ISAS went into liquidation in 1990, Mr Benson lost his job and received a lump-sum benefit of $96,192.36. He re-invested $80,000 in other superannuation funds: $20,000 each to Legal and General and Mercantile Mutual and $40,000 to Prudential. Mr Benson became bankrupt in July 1992. The trustee sought to recover the $80,000 for the benefit of creditors. The Federal Court and Full Court of the Federal Court held that the payments were dispositions of property covered by section 120 of the Bankruptcy Act. But the Full Court, by majority, held that they fell within an exception made for settlements of property in favour of a purchaser in good faith and for valuable consideration and this defeated Mr Cook’s claim. The High Court, by a 4-1 majority, upheld the decision of the Full Court of the Federal Court. The High Court held that the payments were made in return for obligations undertaken by the trustees of the super schemes to provide Mr Benson with the rights and benefits to which he would eventually become entitled. Those rights and benefits constituted substantial and valuable consideration for Mr Benson’s contributions and the trustees of the superannuation schemes were purchasers for valuable consideration. |
HIGH COURT OF AUSTRALIA 7 December 2007 Public Information Officer KENNETH JOHN FOOTS v SOUTHERN CROSS MINE MANAGEMENT PTY LTD, ENSHAM RESOURCES PTY LTD, BLIGH COAL LIMITED, IDEMITSU QUEENSLAND PTY LTD, EPDC (AUSTRALIA) PTY LTD, LG INTERNATIONAL (AUSTRALIA) PTY LTD, FOOTS PTY LTD, LITTLE DIGGER MINING LIMITED, NORMA AGNES FOOTS AND A costs order made against a bankrupt after he entered bankruptcy is not a debt provable in his bankruptcy, even though it related to a damages award made before the bankruptcy, the High Court of Australia held today. In the Queensland Supreme Court in 2005, Justice Richard Chesterman heard a complex multi- party action concerning the ownership of machinery at an open-cut coal mine. On 26 August he gave judgment for Ensham in its cross-claim against Southern Cross Mine Management and Mr Foots, who had been Ensham’s chief executive officer. Justice Chesterman found that Mr Foots had breached his fiduciary and contractual duties of good faith towards Ensham, and that he had was also liable for breaches by Southern Cross of section 52 of the Trade Practices Act relating to misleading and deceptive conduct. On 1 September 2005, Justice Chesterman awarded damages of $2.46 million to Ensham. Two weeks later, Mr Foots entered bankruptcy. On 22 November 2005, Justice Chesterman heard argument as to whether a stay under section 58(3) of the Bankruptcy Act applied so that Ensham would require leave of the Federal Court to take a fresh step in proceedings, in this case applying for costs, where the fresh step was in respect of a provable debt. If the costs order was a debt or liability provable in his bankruptcy within the meaning of section 82(1) of the Bankruptcy Act, the proceedings in which the costs order was made would be stayed under section 58(3). If the costs order was not a provable debt or liability Mr Foots remains liable to meet those costs after his discharge from bankruptcy. A release from bankruptcy only applies to debts provable in the bankruptcy. Justice Chesterman held that since the costs order would not be a debt provable in Mr Foots’s bankruptcy, section 58(3) was no impediment to his making a costs order. On 3 February 2006, Justice Chesterman ordered Mr Foots to pay Ensham’s costs. Rather than awarding costs on the usual party-and-party basis, on application from Ensham Justice Chesterman awarded them on an indemnity basis in light of Mr Foots’s wrongdoing. By majority, the Queensland Court of Appeal dismissed an appeal by Mr Foots. In the High Court, he argued that the costs order was, in the terms of section 82 of the Bankruptcy Act, a debt or liability arising from the award of damages, an obligation incurred before his bankruptcy. Alternatively, Mr Foots submitted that the costs order was a liability incidental to a provable debt. The Court, by a 4-1 majority, rejected both arguments and dismissed the appeal. It held that the award of costs is discretionary, and arises independently of the entry of judgment against Mr Foots. The costs order fell outside section 82(1) because it was made after bankruptcy and was not a liability to which he was subject at the date of bankruptcy. Mr Foots was also not under a pre-existing obligation to pay costs until the order was made against him. The stay in section 58(3) of the Act therefore did not apply. |
HIGH COURT OF AUSTRALIA 5 November 2014 ALPHAPHARM PTY LTD v H LUNDBECK A/S & ORS [2014] HCA 42 Today the High Court, by majority, held that s 223(2) of the Patents Act 1990 (Cth) conferred power on the Commissioner of Patents to extend the time within which the first respondent, H Lundbeck A/S ("Lundbeck"), could apply under s 70(1) of the Act for an extension of the term of its Australian patent. Section 71(2) of the Act required that an application for an extension of the term of a standard patent be made during the term of the patent and within six months after the latest of three specified dates. Section 223(2) provided that, in certain circumstances, where a "relevant act" which was required to be done within a certain time was not done within that time, the Commissioner could extend the time for doing the act. Section 223(11) defined "relevant act" to mean an action (other than a "prescribed action") in relation to a patent. Regulation 22.11(4)(b) of the Patents Regulations 1991 (Cth) provided that "filing, during the term of a standard patent as required by subsection 71(2) of the Act, an application under subsection 70(1) of the Act for an extension of the term of the patent" was a prescribed action. Lundbeck applied to the Commissioner for an extension of time within which to make an application under s 70(1) of the Act to extend the term of its Australian patent. The application for an extension of time was opposed by the appellant, Alphapharm Pty Ltd. Lundbeck made the application during the term of the patent but more than six months after the latest of the three dates specified in s 71(2). The Commissioner's delegate granted Lundbeck the extension of time sought. This decision was affirmed by the Administrative Appeals Tribunal, and an appeal to the Full Court of the Federal Court of Australia was dismissed. By special leave, Alphapharm appealed to the High Court. The High Court dismissed the appeal. The Court held, by majority, that s 71(2) of the Act imposed two cumulative time requirements. The first was that an application under s 70(1) for an extension of the term of a patent be made during the term of the patent. The second was that such an application be made within six months after the latest of the three dates specified in s 71(2). Properly understood, s 223(2) permitted the Commissioner to enable an application under s 70(1) to be made during the term of the patent but more than six months after the latest of the three dates specified in s 71(2). |
HIGH COURT OF AUSTRALIA Public Information Officer 4 September 2008 GILBERT GEDEON v COMMISSIONER OF THE NEW SOUTH WALES CRIME COMMISSION, NEW SOUTH WALES CRIME COMMISSION AND ATTORNEY-GENERAL FOR NEW SOUTH WALES DAVID DARLEY DOWE v THE COMMISSIONER OF THE NEW SOUTH WALES CRIME COMMISSION AND THE NEW SOUTH WALES CRIME COMMISSION Controlled operations that involved the selling of large quantities of cocaine to users was conduct likely to seriously endanger the health or safety of those people and should not have been authorised by the NSW Crime Commission, the High Court of Australia held today. In early 2005, the Commissioner authorised six controlled operations using unlawfully imported cocaine in early 2005, pursuant to the NSW Law Enforcement (Controlled Operations) Act (LECO Act). Two authorities were used to support sales by an informer codenamed “Tom” to Mr Gedeon of 2kg and 750g of cocaine. Another was used for the sale of 1kg to Mr Dowe. None of this cocaine was recovered. The Commissioner and senior police had been briefed that recovery of the cocaine would be unlikely because it would be sold on to end users. The LECO Act was the NSW response to the High Court’s decision in Ridgeway v The Queen in 1995 to quash John Anthony Ridgeway’s conviction for possession of heroin, which had been imported as part of an undercover police operation. The Act legitimised certain actions of undercover officers and permitted evidence obtained in authorised controlled operations to be classified as legal and prima facie admissible. Section 16 stated that activity engaged in as part of a controlled operation was not unlawful as long as it was authorised by the authority. Section 7(1)(b) stated that an authority to conduct a controlled operation must not be granted where a participant would be engaging in conduct likely to seriously endanger the health or safety of any other person. In May 2005, Mr Gedeon and Mr Dowe were charged with taking part in the supply of a prohibited drug, contrary to the NSW Drug Misuse and Trafficking Act. The two men commenced proceedings in the NSW Supreme Court in April 2006, seeking declarations that the authorities were invalid. They failed in the Supreme Court and, by majority, in the Court of Appeal. In the meantime they were committed for trial. Mr Dowe was convicted in November 2007, after the Court of Appeal upheld the validity of the authorities, and sentenced to 12 years’ imprisonment. His appeal and Mr Gedeon’s trial are still pending. They sought special leave to appeal to the High Court from the Court of Appeal concerning the validity of the authorities. Two Justices referred their special leave applications to a Court of six Justices. The Court unanimously granted them special leave to appeal and allowed their appeals with costs against the Commission. It made a declaration that the relevant authorities were invalid. The Court held that Mr Gedeon and Mr Dowe were entitled to succeed on grounds related to section 7(1)(b) of the LECO Act. It held that there was no statutory power to grant an authority where the proposed operation involved any participant in the operation of any activity listed in section 7(1). The Commission had estimated that the conduct of the controlled operations using Tom was that between 70,000 and 100,000 dosage units of cocaine would reach the streets. The Court held that a reasonable person in the position of the Commissioner would have foreseen that this would involve a risk of seriously endangering the health of at least some of the purchasers of the cocaine. It held that that prospect was sufficient to attract the prohibition in section 7(1)(b). |
HIGH COURT OF AUSTRALIA 12 October 2016 KJERULF AINSWORTH & ORS v MARTIN ALBRECHT & ANOR [2016] HCA 40 Today the High Court unanimously allowed an appeal from the Court of Appeal of the Supreme Court of Queensland. The High Court held that opposition to a motion which was required to be passed by a body corporate without dissent was not unreasonable in circumstances where the proposal in question was apt to create a reasonable apprehension that it would affect adversely the interests of opponents of the proposal. The Body Corporate and Community Management Act 1997 (Q) ("the BCCM Act") regulates the determination of disputes between the owners of lots in a community titles scheme. Here the dispute concerned a proposal for the alteration of the rights of lot owners in the scheme by an owner who sought exclusive use of part of the common property airspace in order to amalgamate the two balconies forming part of his lot so as to create one larger deck. Under the BCCM Act, approval of the proposal required a resolution without dissent of the Body Corporate. The motion was defeated. Item 10 of Sched 5 to the BCCM Act makes provision for an adjudicator to order that a proposal, otherwise required to be passed without dissent, be approved notwithstanding dissent by a lot owner if the opposition to the proposal was unreasonable in the circumstances. The adjudicator accepted that individual lot owners voted against the motion in good faith, and in genuine reliance on architectural and other advice, but nevertheless considered that their opposition to the proposal was unreasonable. An order was made deeming the motion supporting the proposal to be passed. The appellants appealed to the Queensland Civil and Administrative Tribunal, which concluded that the adjudicator had impermissibly substituted her own opinion as to the reasonableness of the proposal, rather than focussing on whether the opponents' grounds of opposition were reasonably held. The adjudicator's orders were set aside. The first respondent appealed to the Court of Appeal, which held that the adjudicator did not adopt the wrong approach in resolving the dispute. The decision of the adjudicator was upheld. By grant of special leave, the appellants appealed to the High Court. The Court held that the adjudicator had adopted the wrong approach in resolving the dispute. The adjudicator's task under Item 10 of Sched 5 to the BCCM Act is not to determine whether the outcome of the vote of the general meeting of the Body Corporate achieved a reasonable balancing of competing considerations, but whether the opposition to the proposal was unreasonable. The Court further held that a lot owner may not be regarded as acting unreasonably in declining to assist another lot owner gratuitously to enhance that lot owner's interest, where the enhancement of that interest is reasonably viewed as adverse to the interests of the other lot owner. In the result, the Tribunal's decision to set aside the adjudicator's orders was reinstated. |
HIGH COURT OF AUSTRALIA 10 August 2005 AIR LINK PTY LIMITED v MALCOLM IAN PATERSON MALCOLM IAN PATERSON v AIR LINK PTY LIMITED AGTRACK (NT) PTY LTD (trading as Spring Air) v ANN CHRISTINE HATFIELD The two-year time limit on claims for compensation in airline accidents under the Commonwealth Civil Aviation (Carriers’ Liability) Act was the subject of these matters which were decided by the High Court of Australia today. In a statement of claim issued out of the District Court of New South Wales on 22 September 2000, Mr Paterson claimed damages from Air Link for personal injuries caused on 25 September 1998 when a mobile stair was not properly attached to an aircraft from which he was alighting in Dubbo and he fell to the ground. Mrs Hatfield’s husband, Stephen, died on 14 August 1997 when a chartered plane on a sightseeing trip crashed in the Northern Territory. By writ and attached statement of claim filed on 22 January 1999 in the Victorian Supreme Court, Mrs Hatfield sought damages against Spring Air. Mr Paterson was changing planes en route to the Gold Coast and Mr Hatfield’s tourist flight from the Kimberleys in Western Australia. Interstate flights or flights between a state and a territory or within a territory come within the Carriers’ Liability Act. The Act displaced operation of NT law, state legislation was rendered invalid to the extent of inconsistency with the Act, and no action could be founded in tort or contract, with liability under Part IV of the Act substituting for any other civil liability. Rights to compensation for death or injury under Part IV are treated as extinguished under section 34 if no action had been brought within two years. Section 34 implemented an international convention. Neither Mr Paterson’s nor Mrs Hatfield’s statements of claim referred to the Carriers’ Liability Act. The NSW District Court rejected Air Link’s motion to dismiss Mr Paterson’s action and the airline’s submission that the statement of claim could not be regarded as an action brought under Part IV. The Court of Appeal allowed an appeal from Air Link. Mr Paterson then successfully applied to the District Court for leave to amend his statement of claim to expressly rely on Part IV. An appeal from Air Link was dismissed and it appealed to the High Court. In the first matter, an application for special leave to appeal from Mr Paterson was argued as an appeal and was heard with the appeal from Air Link. The Court today unanimously granted special leave and decided both appeals in Mr Paterson’s favour, holding that an action had been instituted by Mr Paterson under Part IV by his statement of claim, thus was within the two-year period fixed by section 34. The Victorian Supreme Court granted Mrs Hatfield leave to file an amended statement of claim grounding her action within the Act. The Court of Appeal dismissed an appeal by Agtrack. The High Court held that if Mrs Hatfield’s claim had indeed been extinguished it could not be revived, but the Court found that sufficient facts had been pleaded to raise a claim so that she had properly brought an action within two years of 14 August 1997 and there was no extinguishment under section 34. The facts alleged in the pleadings were sufficient to show that Part IV applied. The Court unanimously dismissed the appeal by Agtrack. |
HIGH COURT OF AUSTRALIA 4 October 2007 SOPHEAR EM v THE QUEEN Public Information Officer The use of a secretly recorded conversation with detectives investigating Mr Em in relation to two home invasions did not make his trial unfair, the High Court of Australia held today. The prosecution case was that Mr Em, armed with a pistol, and another man, carrying an AK47 assault rifle, held up the Logozzo family in Cecil Hills in south-western Sydney on 7 January 2002 just as Joseph and Marianne Logozzo arrived home. During a struggle, Mr Logozzo was fatally shot in the chest with the pistol. Mrs Logozzo ran to his aid and was shot in the hand. The intruders fled. Ten nights later, three men, armed with a pistol, a rifle and a knife, forced their way into a house at nearby West Hoxton and tied up Michael and Beverly Kress, their teenage children Jonathon and Alyson and Alyson’s boyfriend Ramzi Tamer. Numerous items were stolen. On 24 April 2002, police discovered that SIM cards registered to two people living in a Bass Hill unit had been used in a mobile phone stolen from the Kresses. When they searched the unit, where Mr Em was staying, they found a bag filled with black clothing, a balaclava, ski goggles, cable ties, gloves, grey duct tape and a sheath knife. He admitted the bag was his. He had not previously been linked to either home invasion. At the police station, Mr Em refused to have his interview recorded on video or audio tape or in writing, but allegedly made admissions about the Kress home invasion, including possessing the pistol used there. He refused to say anything about the Logozzo home invasion. Detectives transcribed the interview from memory. In May 2002, the Supreme Court issued warrants authorising detectives to wear covert recording devices. On 15 May, the detectives took Mr Em to a park to talk about the home invasions. He identified from photographs the gun used in the shooting but denied involvement in the Logozzo home invasion. On page 25 of the 40-page transcript, one detective is recorded telling Mr Em that he might feel better if he told them what happened and that “it’s not as though we’re going to slap the handcuffs on you and take you away, otherwise we’d be at the police station if we were gunna do that, wouldn’t we?” Mr Em proceeded to give a detailed account of what occurred at the Logozzo house. Justice Bruce James excluded part of the evidence of that account but admitted some of it. At a voir dire in an earlier Supreme Court trial in 2003, Justice Jeff Shaw had excluded the entire 15 May conversation, but the Court of Criminal Appeal overturned that order. In 2004 Mr Em was convicted of murdering Mr Logozzo, assaulting him with intent to rob while armed with a dangerous weapon, and firing a firearm with disregard for Mrs Logozzo’s safety. In 2005, he was sentenced to 25 years’ jail with a non-parole period of 16 years for the first offence, 10 years’ jail for the second, and two years’ jail, backdated to May 2002, for the third. During the trial he pleaded guilty to five counts of robbery with a dangerous weapon for the Kress home invasion and received five concurrent sentences of 12 years’ jail, backdated to May 2003. The 10-year and 25-year sentences commence in 2013. The Court of Criminal Appeal dismissed an appeal and Mr Em appealed to the High Court, arguing that Justice James erred in allowing the first part of the 15 May conversation to be admitted into evidence and that the jury should have been warned about the unreliability of any confessions. The Court, by a 4-1 majority, dismissed the appeal and held that neither the use of the first part of the 15 May 2002 conversation nor the absence of a specific warning was unfair to Mr Em. Section 90 of the Evidence Act provides that a court may refuse to admit evidence of an admission if, having regard to the circumstances in which it was made, it would be unfair to a defendant to use the evidence. However, the Court held that the way in which the conversation took place did not make the first part of it unfair to Mr Em. It held that the police did not reinforce or contribute to his mistaken assumption that whatever he said could not be used against him. Mr Em knew he was speaking to detectives investigating two home invasions. The Court held that in the circumstances of the conversation no particular warning to the jury was required and that Justice James’s directions adequately explained the issues that jurors were to consider. |
HIGH COURT OF AUSTRALIA 13 June 2018 CRI028 v THE REPUBLIC OF NAURU [2018] HCA 24 Today the High Court unanimously allowed an appeal from the Supreme Court of Nauru. The High Court held that the Supreme Court was wrong to uphold the approach adopted by the Refugee Status Review Tribunal ("the Tribunal") to the "internal relocation principle". That principle provides that a person is not a refugee if there is an area in the country of their nationality where the person would not have a well-founded fear of persecution and to which the person could, in all the circumstances, reasonably be expected to relocate. The appellant was born in a district in the province of Punjab, Pakistan ("K District"). In 2004, the appellant moved to Karachi, where his wife and child remain. In 2013, the appellant arrived in Australia at Christmas Island and was transferred to Nauru. The appellant applied under the Refugees Convention Act 2012 (Nr) to be recognised as a refugee. The Secretary of the Department of Justice and Border Control ("the Secretary") refused that application. The appellant applied to the Tribunal for review of the Secretary's decision. The Tribunal found that the appellant had a well-founded fear of persecution in Karachi. However, the Tribunal affirmed the Secretary's determination on the basis that the appellant could relocate to K District. The Tribunal's principal thread of reasoning focused on whether K District was a "home area" of the appellant. In the alternative, based on "ordinary relocation principles", the Tribunal purported to consider whether relocation by the appellant was reasonable. No reference was made to issues that might arise, in relation to relocation, from the fact that the appellant had a wife and child. The Supreme Court dismissed the appellant's appeal, upholding the reasoning of the Tribunal in relation to the appellant's relocation to K District. The appellant appealed as of right to the High Court. The High Court held that the Supreme Court erred in affirming the Tribunal's decision. The Tribunal was distracted by an inquiry into whether K District was a "home area" of the appellant and did not properly consider whether K District was an area to which the appellant could reasonably be expected to relocate, having regard to all the circumstances particular to the appellant. The Tribunal failed to take into account the appellant's wife and child. The High Court set aside the order of the Supreme Court, quashed the decision of the Tribunal, and remitted the matter to the Tribunal for redetermination according to law. |
HIGH COURT OF AUSTRALIA 1 August 2007 Public Information Officer STATE OF NEW SOUTH WALES v JAMES JOHN CORBETT AND ROBYN JEAN CORBETT The citation of a repealed statute on an application for a search warrant did not render the application or the search warrant invalid, the High Court of Australia held today. Mr Corbett is a former NSW police officer who had attended traumatic events such as the Hilton Hotel bombing and the Granville rail disaster. During the 1990s, he suffered from emotional and mental problems. While working in police communications Mr Corbett developed a rural radio network which gave police 24- hour radio contact. In 1997 the police decided to replace his system with one operated in conjunction with a mobile phone provider. Mr Corbett became concerned that police safety would be jeopardised by the new system. On 28 May 1998, while attending a communications conference in Wollongong, he attempted suicide and was hospitalised. A suicide note included the words “police will die”. The Court of Appeal later observed that this related to his concerns about the new communications regime, but police at first took it as a threat. Goulburn police suspended his shooter’s licence and applied for a warrant to search the Corbetts’ property for firearms. On 4 June 1998, while Mr Corbett was still in hospital, police entered and searched the property. No firearms were found. The Corbetts commenced proceedings seeking damages for trespass on the basis that the search warrant was invalid and did not authorise police to enter their property. They contended that the application for the search warrant failed to specify an offence because the pro forma application referred to the 1989 Firearms Act which had been repealed and replaced by the 1996 Firearms Act. At the time, the Search Warrants Act still referred to the 1989 Firearms Act. The Search Warrants Act provided that a search warrant is not invalidated by a defect unless it affects the substance of the warrant. Equivalent sections in the 1989 and 1996 Firearm Acts both prohibited the possession or use of a firearm without a licence or a permit. The definition of “firearm” differed only slightly between the two Acts but the substance of each offence was the same. The Corbetts also contended that the officer who applied for the search warrant did not have a reasonable belief that Mr Corbett had any firearms in his possession. The NSW District Court determined that the defects in the search warrant did not render it invalid, therefore the search warrant provided a defence to the Corbetts’ action for trespass. The Court of Appeal found that the search warrant was invalid due to the reference to the 1989 Firearms Act, but rejected the submission that the officer seeking the search warrant did not have reasonable grounds for a belief relating to the possession of firearms by Mr Corbett. The State then appealed to the High Court on the issue of the validity of the search warrant. The High Court unanimously allowed the appeal. It held that it was an accurate statement of the offence (possession of a firearm) which was critical, not the reference to a repealed Act. This was surplusage and did not detract from the statement of the nature of the offence or render the description of the object of the search unintelligible or ambiguous. Furthermore, the 1996 Firearms Act contains a transitional provision which stated that a reference in any instrument to any provision of the 1989 Act is to be read as referring to the corresponding provision of the 1996 Act. Accordingly, the statutory requirements were complied with and the application and the search warrant were valid, so no trespass to the Corbetts’ property was committed. The Court also upheld the Court of Appeal’s conclusion that police believed on reasonable grounds that there would be firearms on the property. |
HIGH COURT OF AUSTRALIA 6 May 2015 UELESE v MINISTER FOR IMMIGRATION AND BORDER PROTECTION & ANOR [2015] HCA 15 Today the High Court unanimously allowed an appeal from a decision of the Full Court of the Federal Court of Australia. The High Court held that the Administrative Appeals Tribunal ("the Tribunal") erred in its application of s 500(6H) of the Migration Act 1958 (Cth) ("the Act") by failing to consider information adduced during the cross-examination of a witness. The appellant is a Samoan-born citizen of New Zealand, who has been living in Australia since 1998 on a visa tied to his New Zealand citizenship. The appellant has a "substantial criminal record" for the purposes of s 501(7)(c) of the Act. In 2012, on the basis of that criminal record, a delegate of the Minister made a decision under s 501(2) of the Act to cancel the appellant's visa. The appellant applied to the Tribunal for review of the delegate's decision. Under a ministerial direction made pursuant to s 499 of the Act, the Tribunal was obliged to consider the best interests of any minor children in Australia affected by the cancellation of the appellant's visa. The appellant made submissions about the best interests of three of his children. In the course of the hearing, during cross-examination of the appellant's partner, it emerged that the appellant has an additional two younger children from a different relationship. Section 500(6H) of the Act provides that, in matters of this kind, the Tribunal must not have regard to any information presented orally in support of a person's case unless it has been provided in a written statement to the Minister at least two days before the Tribunal holds a hearing. The Tribunal regarded s 500(6H) as precluding consideration by it of the position of the appellant's two youngest children and affirmed the delegate's decision to cancel the appellant's visa. The appellant applied to the Federal Court for judicial review of the Tribunal's decision. That application was dismissed. The appellant appealed from that decision to the Full Court of the Federal Court. That appeal was also dismissed. By special leave, the appellants appealed to the High Court. The High Court unanimously allowed the appeal, holding that s 500(6H) does not preclude the Tribunal from considering information which is not presented by or on behalf of an applicant for review as part of his or her case. The Court held that by applying s 500(6H) in the way that it did, the Tribunal had truncated the review that it was required to undertake. The Court also held that s 500(6H) does not fetter the power of the Tribunal to grant an adjournment to enable the applicant to give the required notice to the Minister, where this is necessary to ensure that a review is conducted thoroughly and fairly. |
HIGH COURT OF AUSTRALIA 20 March 2019 OKS v THE STATE OF WESTERN OF AUSTRALIA [2019] HCA 10 Today the High Court unanimously allowed an appeal from a decision of the Court of Appeal of the Supreme Court of Western Australia. The appellant was charged with four counts of indecently dealing with a child under the age of 13 years contrary to s 320(4) of the Criminal Code (WA). The trial took place nearly 20 years after the alleged offences. The central issue at the trial was the credibility and reliability of the complainant's evidence in light of certain inconsistencies in her evidence and admitted or asserted lies told by her. In the course of summing up the case to the jury, the trial judge directed the jury not to follow a process of reasoning to the effect that, just because the complainant was shown to have told a lie or had admitted to telling a lie, all of her evidence was in fact dishonest and could not be relied upon ("the impugned direction"). The appellant was convicted of the first count and acquitted of the second count. The remaining counts had been withdrawn from the jury. The appellant appealed against his conviction to the Court of Appeal on the basis that the impugned direction was a wrong decision on a question of law. The Court of Appeal unanimously concluded that it was, but held that the appeal should nonetheless be dismissed under s 30(4) of the Criminal Appeals Act 2004 (WA) because no substantial miscarriage of justice had occurred ("the proviso"). By grant of special leave, the appellant appealed to the High Court. The Court unanimously held that, if the jury accepted or found that the complainant had told lies, it was open to the jury to find that those lies, without more, precluded acceptance of the complainant's evidence of the commission of the offences beyond reasonable doubt. The impugned direction took away that process of reasoning and was apt to lessen the weight which it was otherwise open to the jury to give to the complainant's lies. In those circumstances, the natural limitations on an appellate court proceeding on the record meant that it could not be assumed that the impugned direction had no effect upon the jury's verdict. As a result, the proviso could not be applied. Accordingly, the Court unanimously allowed the appeal, quashed the appellant's conviction and ordered a new trial. |
HIGH COURT OF AUSTRALIA Public Information Officer 6 February, 2003 STATE OF NEW SOUTH WALES v ANGELO LEPORE AND ANOR VIVIAN CHRISTINA SAMIN v STATE OF QUEENSLAND, THE MINISTER FOR EDUCATION OF QUEENSLAND AND WILLIAM THEODORE D’ARCY SHEREE ANNE RICH v STATE OF QUEENSLAND, THE MINISTER FOR EDUCATION OF QUEENSLAND AND WILLIAM THEODORE D’ARCY State education authorities will not generally be held liable for the sexual abuse of pupils by teachers unless there has been shown to be fault on the part of the authorities, the High Court of Australia held today. The Lepore appeal, from a decision of the New South Wales Court of Appeal, and the Rich and Samin appeals, from a decision of the Queensland Court of Appeal, were heard together by the Court. Each case involved alleged abuse by a primary teacher on school premises during school hours. The teacher in the Queensland cases is serving a jail sentence for sexual offences committed at a one-teacher school in the 1960s. The cases raise the issue of liability of education authorities for damage suffered by pupils even when there is no fault on the part of such authorities, such as negligence in their engagement and supervision of staff, in their systems or procedures, or in a failure to respond to complaints of misconduct. A majority of the NSW Court of Appeal had held that a state school authority had a legal obligation to ensure pupils were not physically injured by a teacher on school premises during school hours, whether that teacher is acting negligently or intentionally, and whether or not the authority was therefore at fault. The Queensland Court of Appeal disagreed with this approach. By majority, the High Court has overruled the decision of the NSW Court of Appeal. The High Court, by majority, held that education authorities were vicariously liable for acts performed in the course of teachers’ employment, but that sexual abuse was generally too far removed from a teacher’s duties to be regarded as occurring in the course of their employment. The High Court allowed in part the appeal from NSW and ordered a new District Court trial for Mr Lepore’s case, because of the way the original trial was dealt with. The Court dismissed Ms Samin and Ms Rich’s appeals. |
HIGH COURT OF AUSTRALIA Public Information Officer 20 June 2007 JUSTIN PATRICK LIBKE v THE QUEEN A Brisbane man convicted of sexual offences against an intellectually disabled woman was not disadvantaged by the trial judge’s directions to the jury about the woman’s capacity to give consent and his trial was not unfair, the High Court of Australia held today. The woman was 18 at the time but had a mental age of eight to 10 with an IQ of 61. Mr Libke, 43, was charged with three counts of rape, one count of indecent dealing with an intellectually impaired person, and one count of sodomy of an intellectually impaired person in 2002. The first count of rape arose from an incident in a park where he first met the woman while walking their dogs. Mr Libke allegedly digitally penetrated the woman. Some days later he telephoned the woman and arranged to come to her house where they had sex. Mr Libke denied any anal penetration and denied being aware that she was intellectually impaired. At the trial in the Queensland District Court, the main issues concerned consent and whether he reasonably believed the woman was not intellectually impaired. Mr Libke was convicted of the count of rape involving digital penetration. He was acquitted of the other counts of rape, and the counts of sodomy and indecent dealing, but was found guilty of three alternative lesser offences: two of unlawful carnal knowledge with an intellectually impaired person and an offence of exposing such a person to an indecent act. Mr Libke was sentenced to eight years’ imprisonment. The Court of Appeal cut the sentence to five years but dismissed the appeal against conviction. Mr Libke appealed to the High Court, alleging that the prosecutor’s cross-examination was unfair and that Judge Milton Griffin gave incorrect and insufficient directions to the jury. He said many of the cross-examiner’s questions were confusing, harassing, oppressive and repetitive and that the prosecutor expressed inappropriate comment about his answers. Mr Libke said Judge Griffin failed to give adequate directions on consent as it related to cognitive capacity and intellectual impairment; that he failed to tell the jury that if Mr Libke honestly and reasonably believed that the woman’s capacity for communication, social interaction and learning was not substantially reduced, or that he believed that she did not need support, he was entitled to be acquitted; and that flow charts given to the jury as part of Judge Griffin’s directions were inadequate. The High Court, by a 3-2 majority, dismissed the appeal. It held that the prosecutor’s conduct did not result in an unfair trial. The Court held that Judge Griffin did not make errors in his directions. In particular, he adequately instructed the jury about the defences available to Mr Libke. |
HIGH COURT OF AUSTRALIA 9 May 2018 IN THE MATTER OF QUESTIONS REFERRED TO THE COURT OF DISPUTED RETURNS PURSUANT TO SECTION 376 OF THE COMMONWEALTH ELECTORAL ACT 1918 (CTH) [2018] HCA 17 Today the High Court sitting as the Court of Disputed Returns unanimously answered questions referred to it by the Senate under s 376 of the Commonwealth Electoral Act 1918 (Cth) to the effect that Senator Katy Gallagher was "a citizen of a foreign power" and therefore incapable of being chosen or of sitting as a senator by reason of s 44(i) of the Constitution when she nominated for election on 31 May 2016. Senator Gallagher was a Citizen of the United Kingdom and Colonies by descent. On 20 April 2016 Senator Gallagher provided a declaration of renunciation, copies of identity documents and her credit card details to the Australian Labor Party, which forwarded them to the Home Office of the United Kingdom. The Home Office received the documents on 26 April 2016, and deducted the relevant fee from her credit card on 6 May 2016. On 31 May 2016 Senator Gallagher lodged her nomination as a candidate for election to the Senate in the Federal election to be held on 2 July 2016. On 20 July 2016 Senator Gallagher received a letter from the Home Office requiring further documents, which were provided. On 2 August 2016 Senator Gallagher was returned as a duly elected senator for the Australian Capital Territory. At the time of her nomination and return as a duly elected senator, Senator Gallagher was a foreign citizen. On 16 August 2016 Senator Gallagher's renunciation was registered by the Home Office. Section 44(i) of the Constitution relevantly operates to disqualify a person who has the status of a foreign citizen from being chosen or sitting as a senator. That disqualifying operation is subject to an implicit qualification that an Australian citizen not be irremediably prevented by foreign law from participation in representative government ("the constitutional imperative"). Senator Gallagher contended that the reason she did not cease to be a British citizen before the date of her nomination lay in matters beyond her control, which were an irremediable impediment to her participation in the 2016 election. She contended that the constitutional imperative was therefore engaged, entitling her to participate in the 2016 election. The Court held that the constitutional imperative is engaged when both of two circumstances are present. First, the foreign law must operate irremediably to prevent an Australian citizen from participation in representative government. Secondly, that person must have taken all steps reasonably required by the foreign law and within his or her power to free himself or herself of the foreign nationality. The Court further held that British law did not irremediably prevent Senator Gallagher from participation in representative government. The procedure provided for by British law for renunciation of British citizenship was not onerous, and the issue for Senator Gallagher was only ever to be the timing of the registration. The constitutional imperative is not engaged merely because a foreign law presents an obstacle to a particular individual being able to nominate for a particular election. Accordingly, the Court held that there was a vacancy in the representation of the Australian Capital Territory in the Senate for the place for which Senator Gallagher was returned. |
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