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HIGH COURT OF AUSTRALIA Public Information Officer 2 August 2007 ATTORNEY-GENERAL FOR THE NORTHERN TERRITORY OF AUSTRLIA v CAMERON OWEN CHAFFEY AND SANTOS LIMITED SANTOS LIMITED v CAMERON OWEN CHAFFEY AND ATTORNEY-GENERAL FOR THE NORTHERN TERRITORY OF AUSTRLIA Northern Territory legislation providing that employers’ superannuation contributions were not to be treated as part of earnings for compensation paid to an injured worker was constitutionally valid and did not amount to an acquisition of property, the High Court of Australia held today. Mr Chaffey was injured in September 2003 while working for Santos as a maintenance operator at Mereenie Gasfield, 200km west of Alice Springs. Santos accepted liability to pay compensation pursuant to section 53 of the Work Health Act. During Mr Chaffey’s employment, Santos made superannuation contributions on his behalf of 10 per cent of salary, but did not continue to make these as part of his compensation payments. In 2004 the Full Court of the NT Supreme Court held in Hastings Deering (Australia) v Smith (No. 2) that “remuneration” included employers’ superannuation contributions. The Act was then amended to exclude these contributions from the definition of “normal weekly earnings”, backdated to 1 January 1987. Justice Dean Mildren referred two questions to the Full Court of the Supreme Court for determination. These were whether before and whether after the commencement of the amendment, 26 January 2005, it constituted an acquisition of Mr Chaffey’s property inconsistent with section 50 of the Commonwealth Northern Territory (Self-Government) Act. Section 50 provides that the legislative power of the NT Assembly does not extend to the making of laws for the acquisition of property other than on just terms. By majority, the Full Court answered Yes to both questions. The NT Attorney-General intervened in the Full Court proceeding and instituted its own appeal to the High Court. Santos also appealed. The High Court unanimously allowed both appeals. It held that section 53 of the Work Health Act, which imposes obligations upon employers to make payments to injured workers, is subject to the rest of the compensation scheme set out in the Act’s Part V, as amended from time to time. The method prescribed for quantifying the amount of compensation payable by an employer had not been fixed in permanent form at the date of Mr Chaffey’s injury and was always subject to change. Therefore, there was no acquisition of property and section 50 of the NT (Self- Government) Act had no application to the change made to the Work Health Act. The Court held that both questions should be answered No. |
HIGH COURT OF AUSTRALIA 14 November 2018 COMPTROLLER GENERAL OF CUSTOMS v DOMENIC ZAPPIA [2018] HCA 54 Today the High Court unanimously allowed an appeal from a judgment of the Full Court of the Federal Court of Australia, which set aside a decision of the Administrative Appeals Tribunal. A company, Zaps Transport (Aust) Pty Ltd ("Zaps"), operated a warehouse in which goods subject to "customs control" under the Customs Act 1901 (Cth) ("the Act") were stored. To this end, Zaps held a warehouse licence issued under Pt V of the Act. The respondent was employed by Zaps as its general manager and warehouse manager. The respondent's father was Zaps' sole director. In May 2015, tobacco goods were stolen from Zaps' warehouse. The stolen goods were "dutiable goods", and, at the time of the theft, they had not been "entered" for home consumption. Section 35A(1) of the Act provided, relevantly, that a person who "has, or has been entrusted with, the possession, custody or control" of dutiable goods subject to customs control, and who "fails to keep those goods safely", shall, on demand by a Collector, pay to the Commonwealth the amount of customs duty which would have been payable on those goods had they been entered for home consumption on the day of the demand. After the theft at Zaps' warehouse, a Collector made demands to each of the respondent, the respondent's father and Zaps under s 35A(1) of the Act. The respondent, the respondent's father and Zaps applied to the Tribunal for review of the Collector's decisions to demand payment from each of them. The Tribunal affirmed each of the decisions. In relation to the respondent, the Tribunal found that he had directed what was to happen to the stolen goods on a day-to-day basis and concluded that he had exercised "control" over them. The respondent appealed to the Full Court of the Federal Court. A majority of that Court allowed the appeal, concluding that the "kind of control" over goods exercised by an employee of a warehouse licence holder, who acts in his or her capacity as an employee, does not meet the level of "control" required by s 35A(1). By special leave, the Comptroller General of Customs appealed to the High Court. The High Court held that an employee of a warehouse licence holder is capable of being a person who "has, or has been entrusted with, the possession, custody or control" of the relevant goods. The reference in s 35A(1) to the "possession, custody or control" of goods is to the degree of power or authority that would enable a person to meet the obligations imposed by s 35A(1)(a) and (b). Those obligations are to keep the goods safely and, on request, to show the goods to a Collector or to satisfy a Collector that the goods have been dealt with in accordance with the Act. Any person who possesses this degree of power or authority, irrespective of the manner in which the person might exercise that power or authority, will be a person who "has" the possession, custody or control of goods. Such persons are not, therefore, limited to warehouse licence holders. The facts found by the Tribunal established that the respondent was a person who had the possession, custody or control of the stolen goods and who had failed to keep those goods safely. The demand issued to him was valid. |
HIGH COURT OF AUSTRALIA 29 September 2005 JILL McNAMARA (McGRATH) v CONSUMER TRADER AND TENANCY TRIBUNAL AND ROADS AND TRAFFIC AUTHORITY The Roads and Traffic Authority is not entitled to the statutory rights and immunities of the Crown in all its functions, and could not escape the operation of New South Wales legislation covering landlords and tenants, the High Court of Australia held today. The RTA attempted to evict Mrs McNamara from the house she has rented in the Sydney suburb of Croydon Park since 1981, first from the Commissioner of Main Roads and then from the RTA. In October 2000, the RTA sought to obtain vacant possession of the house and served on Mrs McNamara a 60-day termination notice. When she failed to comply, the RTA applied to the Consumer Trader and Tenancy Tribunal for an order terminating the agreement and an order for possession of the premises. Mrs McNamara alleged the tribunal lacked jurisdiction as the Landlord and Tenant (Amendment) Act applied and the later Residential Tenancies Act did not. The Residential Tenancies Act was one of the Acts under which the tribunal had jurisdiction but the Act did not apply to properties that were “prescribed premises” under the Landlord and Tenant Act. In April 2002, the tribunal determined that it did have jurisdiction as the RTA had the benefit of an exemption in section 5 of the Landlord and Tenant Act which provided that this Act shall not bind the Crown or the Housing Commission. This meant Mrs McNamara could not resist the RTA’s application for vacant possession by relying on the house being “prescribed premises”. She filed a summons in the NSW Supreme Court which was dismissed by Justice John Dunford who referred to section 46(2)(b) in the Transport Administration Act which provided that the RTA is a statutory body representing the Crown. The Court of Appeal refused leave to appeal. Mrs McNamara then appealed to the High Court. The High Court, by a 5-1 majority, allowed the appeal and held that the RTA was bound by the Landlord and Tenant Act. The Court ordered that the matter be remitted to the tribunal to be determined according to law. |
HIGH COURT OF AUSTRALIA 11 May 2022 PLAINTIFF M1/2021 v MINISTER FOR HOME AFFAIRS [2022] HCA 17 Today the High Court answered questions stated in a special case, the primary question being whether, in deciding whether there was "another reason" to revoke the cancellation of the plaintiff's visa pursuant to s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth) ("the Act"), a delegate of the then Minister for Immigration and Border Protection ("the Delegate") was required to consider the plaintiff's representations which raised a potential breach of Australia's international non-refoulement obligations where the plaintiff was able to make a valid application for a protection visa. Ultimately, what divided the parties was not if those representations should have been considered, but how. The plaintiff, a citizen of the Republic of South Sudan, entered Australia as the holder of a Global Special Humanitarian visa, which is not a protection visa. In October 2017, the plaintiff's visa was cancelled pursuant to s 501(3A) of the Act ("the Cancellation Decision"). The plaintiff sought revocation of the Cancellation Decision. He relevantly made representations that if he were returned to South Sudan he would face persecution, torture and death, and he did not think it was possible to remove him to South Sudan due to "non-refoulment obligations". In August 2018, the Delegate decided not to revoke the Cancellation Decision. The Delegate considered that it was unnecessary to determine whether non-refoulement obligations were owed because the plaintiff could make a valid application for a protection visa, and the existence or otherwise of those obligations would be fully assessed in the course of processing such an application. The High Court, by majority, answered the primary question to the effect that: the Delegate was required to read, identify, understand and evaluate the plaintiff's representations that raised a potential breach of Australia's international non-refoulement obligations; Australia's international non-refoulement obligations unenacted in Australia were not a mandatory relevant consideration; and to the extent Australia's international non-refoulement obligations are given effect in the Act, one available outcome for the Delegate was to defer assessment of whether the plaintiff was owed the non-refoulement obligations on the basis that it was open to the plaintiff to apply for a protection visa. The majority held that the Delegate's reasons recorded that they had read, identified, understood and evaluated the plaintiff's representations. Their Honours held that, having proceeded on the basis that non-refoulement obligations could be assessed in accordance with the specific mechanism chosen by Parliament for responding to protection claims in the form of protection visa applications, it was reasonable and rational for the Delegate to not give weight to potential non-refoulement obligations as "another reason" for revoking the Cancellation Decision. The Delegate did not fail to exercise the jurisdiction conferred by s 501CA(4) of the Act or deny the plaintiff procedural fairness, and the Delegate's reasons did not reflect a misunderstanding of the operation of the Act. The majority further held that where the cancelled visa is not a protection visa, and a decision-maker defers assessment of whether non-refoulement obligations are owed to permit a former visa holder to avail themselves of the protection visa procedures provided for in the Act, it may be necessary for the decision-maker to take account of the alleged facts underpinning that claim where those facts are relied upon in support of "another reason" why the cancellation decision should be revoked. In this case, the Delegate sufficiently considered the issues of fact presented by the plaintiff's non-refoulement claims. |
HIGH COURT OF AUSTRALIA 11 November 2010 PLAINTIFF M61/2010E v COMMONWEALTH OF AUSTRALIA & ORS PLAINTIFF M69 of 2010 v COMMONWEALTH OF AUSTRALIA & ORS [2010] HCA 41 Today the High Court declared that it was an error of law for a person conducting a review of a refugee status assessment as part of an "offshore processing regime" to fail to treat provisions of the Migration Act 1958 (Cth) ("the Migration Act") and the decisions of Australian courts as binding. It held that two Sri Lankan citizens who arrived at Christmas Island claiming refugee status were also denied procedural fairness in the review of the assessment of their claims. Each plaintiff arrived at Christmas Island by boat, and was detained under the Migration Act. Under the Migration Act, each became an "unlawful non-citizen" and by the operation of section 46A(1) could not make a valid application for a protection visa. The Minister had power to waive the operation of section 46A(1), or grant a visa, if it was in the public interest to do so. During the plaintiffs' detention, officers of the Department of Immigration and Citizenship made assessments of each plaintiff's refugee status and concluded that neither was a person to whom Australia owed protection obligations. An Independent Merits Review of each of those decisions conducted by contractors of the Department reached the same conclusion. Each plaintiff argued before the High Court that he was not afforded procedural fairness during the assessment or review process, and that the persons conducting the assessment and review erred in law by not treating themselves as bound by relevant provisions of the Migration Act and relevant decisions of Australian courts. The Commonwealth and the Minister for Immigration and Citizenship argued that the assessment and review processes were conducted as an exercise of non- statutory executive power. It was argued that there was consequently no obligation on assessors and reviewers to afford procedural fairness, or to decide applications according to law. The plaintiffs argued that the processes were a part of the exercise of the Minister's powers under the Migration Act. It was also argued by one plaintiff that section 46A of the Migration Act, which precluded him from making a valid application for a protection visa in the circumstances of the case, was invalid. In a unanimous decision the Court held that because the Minister has decided to consider exercising powers under the Migration Act in every case where an offshore entry person claims to be owed protection obligations, the assessment and review inquiries adopted in respect of such offshore entry persons are therefore steps taken under and for the purposes of the Migration Act. Because these inquiries prolonged the detention of the plaintiffs, there was a direct impact on the rights and interests of the plaintiffs to freedom from detention at the behest of the Executive. Those making the inquiries were therefore bound to act according to law and to afford procedural fairness to the plaintiffs. The Court rejected the challenge to the validity of section 46A. The Commonwealth and the Minister were ordered to pay the plaintiffs' costs. |
HIGH COURT OF AUSTRALIA 12 September 2018 [2018] HCA 39 Today the High Court unanimously dismissed an appeal from the Full Court of the Supreme Court of South Australia. The High Court held that it would be inappropriate to relax the requirement of the doctrine of part performance that the acts relied upon as part performance must be unequivocally, and in their own nature, referable to an agreement of the kind alleged. In 2002, the respondent and her then-husband George purchased a property at Clark Road, Virginia, South Australia, though the respondent was the sole registered proprietor of the property. The couple made improvements to the property. In 2004, the respondent, George, the appellant and his wife Sophie jointly purchased a property at Taylors Road, Virginia, South Australia, which was financed by way of contributions from both couples and a bank loan. The appellant and Sophie jointly held a half-interest in the property, and George held the other half in his name alone. Later in 2004, the two couples purchased a property at Penfield Road, Virginia, South Australia, which was financed in part by way of a bank loan. The appellant and Sophie paid the deposit and the balance of the purchase price. In 2012, the appellant commenced proceedings in the District Court of South Australia, seeking a declaration that the respondent held a half-interest in the Clark Road property on trust for him, or, alternatively, an order that he be registered as joint proprietor of "one undivided moiety" of the property. The appellant claimed that in July 2004, he and George had agreed that the appellant would acquire half of the respondent's interest in the Clark Road property (but not the improvements) for $45,000, to be paid largely by way of funding of George and the respondent's share in the purchase of the Penfield Road property. The only documentary evidence of any agreement was a handwritten note signed by the respondent. The agreement did not meet the formality requirements of s 26(1) of the Law of Property Act 1936 (SA). However, the appellant contended that the doctrine of part performance entitled him to a decree that the agreement be specifically performed. The trial judge dismissed the claim, and the Full Court of the Supreme Court of South Australia dismissed the appellant's appeal. By grant of special leave, the appellant appealed to the High Court. The appellant submitted that it is sufficient for a contracting party seeking specific performance of a parol contract for the sale or disposition of an interest in land to show that he or she has knowingly been induced or allowed by the counterparty to alter his or her position on the faith of the contract. He submitted that it is not necessary, in order to satisfy the requirements of the doctrine of part performance, that the acts of part performance be unequivocally referable to an agreement of the kind alleged. The High Court unanimously dismissed the appeal. The Court held that the doctrine of part performance requires acts which are unequivocally referable to an agreement of the kind alleged. The appellant's concession that he had not done acts that were unequivocally referable to an agreement of the kind alleged, combined with considerations of authority and principle, required that the appeal be dismissed. |
HIGH COURT OF AUSTRALIA 7 August 2019 VICTORIAN BUILDING AUTHORITY v NICKOLAOS ANDRIOTIS [2019] HCA 22 Today the High Court unanimously dismissed an appeal from the Full Court of the Federal Court of Australia. The High Court held that s 20(2) of the Mutual Recognition Act 1992 (Cth) ("the MRA") does not provide a local registration authority with a discretionary power to refuse registration under the MRA. It also held that a "good character" requirement in a State Act does not fall within the exception to the "mutual recognition principle" in s 17(2) of the MRA. The mutual recognition principle set out in s 17(1) is that a person registered in the first State for an occupation is entitled, after notifying the local registration authority of the second State, to be registered in the second State for the equivalent occupation. Section 20(2) provides that the local registration authority "may" grant registration on that ground. Section 17(2) provides for an "exception" to the mutual recognition principle, which is that it does not affect the operation of laws that regulate the manner of carrying on an occupation in the second State so long as those laws, relevantly, are "not based on the attainment or possession of some qualification or experience relating to fitness to carry on the occupation". The respondent was registered in New South Wales as a waterproofer. He falsely stated in his application to the New South Wales local registration authority that he had certain work experience. He then sought registration as a waterproofer in Victoria pursuant to the MRA. The Victorian Building Practitioners Board ("the Board") refused to grant registration on the basis that the respondent's New South Wales application demonstrated dishonesty, and he was therefore not of "good character" as required by s 170(1)(c) of the Building Act 1993 (Vic), being the Victorian scheme regulating registration. The Administrative Appeals Tribunal affirmed the Board's decision. On the respondent's appeal to the Federal Court, the Victorian Building Authority ("the VBA") (the Board's successor) argued that a local registration authority retains a discretion under s 20(2) to refuse registration and, in any event, the "good character" requirement in s 170(1)(c) of the Building Act falls within the exception to the mutual recognition principle in s 17(2) of the MRA. The Full Court rejected both arguments and allowed the appeal. By grant of special leave, the VBA appealed to the High Court. The Court held that the words "qualification … relating to fitness to carry on the occupation" in s 17(2) have a broader meaning than a qualification of an educational or technical kind, and clearly encompass the subject matter of s 170(1)(c) of the Building Act. That construction is consistent with the scheme of the MRA. The mutual recognition principle upon which the MRA is founded accepts that registration for an occupation in a first State is sufficient for recognition in the second State, without any further requirements of the law of the second State being fulfilled. The Court held that the word "may" in s 20(2) of the MRA is empowering, providing a local registration authority with power to grant registration under the MRA on the "ground" referred to in s 20(1), namely registration in the first State. Section 20(2) does not admit of a broader discretion to refuse registration. |
HIGH COURT OF AUSTRALIA 12 December 2012 STATE OF NEW SOUTH WALES v JAYSON WILLIAMSON [2012] HCA 57 The High Court today held that a claim for personal injury damages based on an intentional tort was a claim for personal injury damages within the meaning of s 338(1) the Legal Profession Act 2004 (NSW) ("Legal Profession Act") and that a claim for personal injury damages under s 338(1) of the Legal Profession Act did not include a claim for damages for false imprisonment. The respondent sued the State of New South Wales ("State") in the District Court of New South Wales for damages for trespass to the person and false imprisonment. The respondent alleged that the State was vicariously liable for the actions of police officers who had thrown him to the ground, restrained him, and confined him in a police wagon and then released him without charge. The action in the District Court of New South Wales was settled and orders were made by consent to dispose of the proceedings. The damages awarded were for $80,000, with costs to be assessed or agreed. As no agreement could be reached about the costs that were to be allowed, the respondent applied for an order transferring the proceedings to the Supreme Court of New South Wales and for a declaration that costs in the proceedings were not regulated by s 338 of the Legal Profession Act. Section 338(1) of the Legal Profession Act provided that where the amount recovered on a claim for personal injury damages did not exceed $100,000, the maximum costs for legal services provided to a plaintiff were fixed at 20% of the amount recovered or $10,000, whichever is greater. Section 337(1) of the Legal Profession Act provided that "personal injury damages" had the same meaning as in Part 2 of the Civil Liability Act 2002 (NSW) ("Liability Act"). The Liability Act limited awards for personal injury damages. The awards limited by the Liability Act were subject to specific exceptions contained within the Liability Act. The central points of difference between the parties were, first, whether the definition of "personal injury damages" was to be construed by reference only to the words of the definition in the Liability Act or by reference to both the words of the definition and the limited operation which the Liability Act had in respect of awards of personal injury damages as a result of the relevant exclusions contained within the Liability Act and, secondly, whether a claim for personal injury damages extended to a claim for false imprisonment. In the Supreme Court of New South Wales, it was ruled that the respondent's claim for costs was not regulated by s 338(1) of the Legal Profession Act. An appeal to the Court of Appeal of the Supreme Court of New South Wales was dismissed. By special leave, the State appealed to the High Court. The High Court dismissed the appeal. A majority of the Court held that s 338(1) of the Legal Profession Act applied if the amount recovered on a claim for personal injury damages did not exceed $100,000, whether the claim is framed in negligence or as an intentional tort. The majority also held that a claim for personal injury damages does not include a claim for damages for false imprisonment, which would commonly include damages for deprivation of liberty. As the settlement was a lump sum settlement and the agreed settlement amount could not be attributed between the claim for trespass and the claim for false imprisonment, it was not possible to say whether the settlement sum was for damages for personal injury. |
HIGH COURT OF AUSTRALIA 8 December 2010 ANTHONY JOSEPH LUIS HILI v THE QUEEN; GLYN MORGAN JONES v THE QUEEN [2010] HCA 45 Today the High Court unanimously dismissed appeals by two individuals against the sentences imposed on them by the Court of Criminal Appeal of New South Wales in respect of tax evasion offences prosecuted as part of Project Wickenby. It held that there is no judicially determined norm or starting point for the period of imprisonment that a federal offender should actually serve in prison before release on a recognizance release order. Anthony Hili and Glyn Jones were convicted of federal offences under the Criminal Code (Cth) and the Crimes Act 1914 (Cth) ("the Crimes Act") in respect of tax evasion covering over $750,000 of income tax. In the New South Wales District Court, Morgan DCJ sentenced each offender to 18 months' total imprisonment, with a recognizance release order to take effect after seven months. On appeal by the prosecution, the Court of Criminal Appeal held that the sentences imposed were manifestly inadequate, and sentenced each accused to a total of three years' imprisonment with a recognizance release order to take effect after 18 months. The Court of Criminal Appeal noted the submission put by the prosecution that there was an appropriate ratio between a non-parole period and the head sentence, and that the non-parole period should be between 60 and 66% of the total sentence. It was argued before the High Court that there ought to be no "norm or starting point, expressed as a percentage" for the period of imprisonment that a federal offender should actually serve prior to release on a recognizance release order, and that the Court of Criminal Appeal had given insufficient reasons for its conclusion that the sentences imposed by Morgan DCJ were manifestly inadequate. The High Court held that there neither is, nor should be, a judicially determined norm or starting point for the period of imprisonment that a federal offender should actually serve in prison before release on a recognizance release order. The Court held that the applicable provisions of Part IB of the Crimes Act, which govern the sentencing of federal offenders, made no provision fixing any relationship between the head sentence and a recognizance release order, and that the sentencing court had power to fix a recognizance release order to take effect at any time during the period of the head sentence. The Court considered that the Court of Criminal Appeal was incorrect in saying that the "norm" for a period of mandatory imprisonment under the Crimes Act is between 60 and 66%, but that the Court of Criminal Appeal was correct in concluding that the sentences imposed by Morgan DCJ were manifestly inadequate. |
HIGH COURT OF AUSTRALIA 8 September 2005 JEFFREY THOMAS JARRATT v COMMISSIONER OF POLICE FOR NEW SOUTH WALES AND STATE OF NEW SOUTH WALES Under the rules of natural justice, Mr Jarratt was entitled to be given an opportunity to answer criticisms of his performance before he was removed from his role as Deputy Commissioner of the NSW Police Service, the High Court of Australia held today. Mr Jarratt, who joined the NSW Police Service in 1967, was appointed one of two Deputy Commissioners in February 1997 for three years. In 2000, his appointment was renewed for five years. In September 2001, Mr Jarratt was removed from office by the Governor on the recommendation of Police Commissioner Peter Ryan made with the approval of Police Minister Paul Whelan. In a media release Mr Ryan said the removal was on grounds related to performance. Mr Jarratt complained that he was given no opportunity to be heard on the substance of any criticisms of his performance before the recommendation that he be removed was made. The Commissioner and the State Government argued that he was not entitled to such an opportunity. Section 51 of the Police Service Act provided that a Deputy Commissioner may be removed from office at any time by the Governor on the recommendation of the Commissioner submitted with the approval of the Minister. Mr Jarratt instituted proceedings against the Commissioner and the State in the NSW Supreme Court, claiming that he had not been validly removed under section 51. The Commissioner and the State argued that the common law rule that servants of the Crown hold office only at the pleasure of the Crown, and may be dismissed at any time without notice or justification, was not displaced by the Act. In July 2002, Justice Carolyn Simpson held that there had been a denial of natural justice to Mr Jarratt, that his removal was invalid, that his discharge constituted a repudiation of his contract and that, after allowing for compensation already paid to him, he was entitled to damages of $642,936.35, the salary he would have received during the remainder of his five-year term. The Court of Appeal reversed that decision, holding that Mr Jarratt had not been entitled to a hearing by the Commissioner before recommending removal and that the common law principle relied on by the Commissioner and the State applied. In the High Court his application for special leave to appeal was referred to a Full Court and argued as on an appeal. The Court unanimously granted Mr Jarratt’s application for special leave and allowed the appeal. It held that under the Act there was an obligation to give Mr Jarratt procedural fairness and the"dismissal at pleasure" principle did not apply. The Court held that unless excluded by plain words, an exercise of power by a public official, such as the Commissioner to prejudice the rights of Mr Jarratt, was to accord with the rules of natural justice. |
HIGH COURT OF AUSTRALIA 3 November 2021 CATHERINE VICTORIA ADDY v COMMISSIONER OF TAXATION [2021] HCA 34 Today the High Court unanimously allowed an appeal from a judgment of the Full Court of the Federal Court of Australia. The principal question for determination was whether Pt III of Sch 7 to the Income Tax Rates Act 1986 (Cth) ("the Rates Act") contravened Art 25(1) of the Convention between Australia and the United Kingdom for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income and on Capital Gains ("the United Kingdom convention") by imposing a more burdensome taxation requirement on a national of the United Kingdom than that imposed on an Australian national in the same circumstances. Article 25(1) of the United Kingdom convention relevantly provides that nationals of the United Kingdom shall not be subjected in Australia to "other or more burdensome" taxation than is imposed on Australian nationals "in the same circumstances, in particular with respect to residence". From 1 January 2017, Pt III of Sch 7 to the Rates Act applied a new tax rate to people holding a Working Holiday (Temporary) (Class TZ) (Subclass 417) visa (a "working holiday visa"). The new tax rate was a flat rate of tax of 15 per cent to the first $37,000 of an individual's "working holiday taxable income", a maximum tax liability of $5,550. Under Pt I of Sch 7 to the Rates Act, the tax burden for an Australian national deriving taxable income from the same source during the same period was less: an Australian national was entitled to a tax-free threshold for the first $18,200 and was then taxed at 19 per cent up to $37,000, a maximum tax liability of $3,572. The appellant, Ms Addy, is a national of the United Kingdom who, between August 2015 and May 2017, lived and worked in Australia while holding a working holiday visa. On appeal to the High Court, there was no dispute that Ms Addy was an Australian resident for tax purposes during the 2017 income year. The respondent, the Commissioner of Taxation, issued Ms Addy with an amended notice of assessment for that income year which applied Pt III of Sch 7 to Ms Addy's assessable income after 1 January 2017. The High Court unanimously held that Art 25(1) of the United Kingdom convention requires a comparison between a national of the United Kingdom and an Australian national who is, otherwise than with respect to nationality, "in the same circumstances, in particular with respect to residence". The "same circumstances" that must be considered under Art 25(1) cannot include being or not being the holder of a working holiday visa, because that status depends on nationality. Ms Addy was an Australian resident for tax purposes and was taxed at rates applied under Pt III of Sch 7 to the Rates Act. An Australian national deriving taxable income from the same source during the same period would have been taxed at a lower rate under Pt I of Sch 7. The more burdensome taxation was imposed on Ms Addy owing to her nationality and, for that reason, contravened Art 25(1) of the United Kingdom convention. |
HIGH COURT OF AUSTRALIA 10 April 2014 ATTORNEY-GENERAL FOR THE NORTHERN TERRITORY & ANOR v EMMERSON & ANOR [2014] HCA 13 Today the High Court, by majority, held that a statutory scheme for the forfeiture of property, effected by the combined operation of s 36A of the Misuse of Drugs Act (NT) and s 94 of the Criminal Property Forfeiture Act (NT), was within the legislative power of the Northern Territory Legislative Assembly and was valid. Section 36A of the Misuse of Drugs Act provides that the Supreme Court of the Northern Territory can declare that a person who, within a 10 year period, has been convicted three or more times of certain offences is a "drug trafficker". Section 94(1) of the Criminal Property Forfeiture Act provides for the forfeiture to the Northern Territory of property owned, effectively controlled or given away by that person without the need for a further court order. The Director of Public Prosecutions applied successfully to the Supreme Court for a declaration that Mr Emmerson was a drug trafficker. The Court of Appeal of the Northern Territory, by majority, allowed Mr Emmerson's appeal and set aside the primary judge's declaration. The majority concluded that the statutory scheme was invalid because it required the Supreme Court to act in a manner incompatible with the proper discharge of the Court's function as a repository of federal jurisdiction and with its institutional integrity. All members of the Court of Appeal rejected Mr Emmerson's submission that the statutory scheme effected an acquisition of property otherwise than on just terms, within the meaning of s 50(1) of the Northern Territory (Self-Government) Act 1978 (Cth), and rejected his purported construction of s 52(3) of the Criminal Property Forfeiture Act. By special leave, the Attorney-General for the Northern Territory appealed to the High Court. The High Court, by majority, allowed the appeal and held that s 36A of the Misuse of Drugs Act and s 94(1) of the Criminal Property Forfeiture Act were compatible with the limits imposed on State and Territory legislative power by Ch III of the Constitution. The impugned provisions did not operate to deny the Supreme Court such independence and impartiality as is compatible with its constitutional role as a repository of federal jurisdiction. The Court held that ss 36A and 94(1) did not effect an acquisition of property otherwise than on just terms. Further, the Court held that s 52(3) of the Criminal Property Forfeiture Act did not contain any temporal limitation on restraining orders imposed under that Act. |
HIGH COURT OF AUSTRALIA 8 April 2015 COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA & ORS v QUEENSLAND RAIL & ANOR [2015] HCA 11 Today the High Court unanimously held that Queensland Rail is a trading corporation within the meaning of s 51(xx) of the Constitution, with the consequence that the relations between Queensland Rail and its employees are governed by federal industrial relations law and not Queensland industrial relations law. Queensland Rail operates as a labour hire company and provides labour used by a related entity, Queensland Rail Limited, in the operation of rail services in Queensland. Queensland Rail was established by the Queensland Rail Transit Authority Act 2013 (Q) and, by that Act, Queensland Rail "is not a body corporate" but it has all the powers of an individual to create and be made subject to legal rights and duties, and it may sue and be sued in its own name. The Act also provided for the relations between Queensland Rail and its employees to be governed by Queensland industrial relations law. The plaintiffs, each an association or organisation of employees, brought a proceeding in the original jurisdiction of the High Court alleging that Queensland Rail and its employees are subject to federal industrial relations law. They alleged that Queensland Rail is a "trading corporation" within the meaning of s 51(xx) of the Constitution and therefore, by the terms of the Fair Work Act 2009 (Cth), an employer subject to the operation of that Act. The plaintiffs also alleged that provisions in the Queensland Rail Transit Authority Act 2013 (Q) and in the Industrial Relations Act 1999 (Q) which sought to apply Queensland industrial relations law to Queensland Rail and its employees were inconsistent with the Fair Work Act 2009 (Cth), and to that extent were invalid by operation of s 109 of the Constitution. The High Court unanimously found that Queensland Rail is a trading corporation within the meaning of s 51(xx) of the Constitution and subject to the Fair Work Act 2009 (Cth). It followed that the provisions in the Queensland Acts which sought to apply Queensland industrial relations law to Queensland Rail and its employees were invalid. |
HIGH COURT OF AUSTRALIA 9 October 2014 KENTWELL v THE QUEEN O'GRADY v THE QUEEN [2014] HCA 37 [2014] HCA 38 Today the High Court unanimously allowed two appeals against decisions of the Court of Criminal Appeal of the Supreme Court of New South Wales refusing the appellants' applications to extend time within which to apply for leave to appeal against sentence. In 2009, Mr Kentwell was convicted in the District Court of New South Wales of two offences which were subject to standard non-parole periods at the time at which they were committed. In 2010, Mr O'Grady was separately convicted in the District Court of one offence subject to a standard non-parole period. In each case, the sentencing judge sentenced the appellant conformably with the approach to sentencing for standard non-parole period offences laid down by the Court of Criminal Appeal in R v Way (2004) 60 NSWLR 168. Neither Mr Kentwell nor Mr O'Grady applied for leave to appeal against their respective sentences within the relevant time period required by the Criminal Appeal Act 1912 (NSW) and the Criminal Appeal Rules (NSW). In 2011, in Muldrock v The Queen (2011) 244 CLR 120, the High Court held that Way was incorrectly decided. In turn, each appellant separately applied to the Court of Criminal Appeal for an extension of time within which to apply for leave to appeal against sentence, asserting, amongst other things, error of the kind identified in Muldrock. The Court of Criminal Appeal separately dismissed each application. In each case, the Court approached the exercise of the discretion conferred by the Act and the Rules to extend time by applying a test formulated in Abdul v The Queen [2013] NSWCCA 247 for applications based on "Muldrock error". That test requires the court to ask whether refusal of the application would occasion substantial injustice. In each case, the Court found that the sentencing of the appellant was affected by material error, but nonetheless dismissed the application because the appellant had failed to demonstrate that substantial injustice was occasioned by the sentence. By grant of special leave, Mr Kentwell and Mr O'Grady appealed to the High Court. The Court held that Abdul was wrongly decided. The wide discretion conferred on the Court of Criminal Appeal under the Act and the Rules is to be exercised by consideration of what the interests of justice require in the particular case. It was an error to introduce in applications for an extension of time based on asserted "Muldrock error" consideration of whether refusal of the application would occasion substantial injustice. In applying the Abdul test in the appellants' cases, the Court of Criminal Appeal wrongly confined its discretion. Accordingly, the High Court allowed the appeals, set aside the orders of the Court of Criminal Appeal and remitted the applications for extension of time to that Court for determination. |
HIGH COURT OF AUSTRALIA 6 April 2005 BRETT GEORGE JERZY CZATYRKO v EDITH COWAN UNIVERSITY The University failed in its duty of care to Mr Czatyrko by not providing him with a safe system of work, the High Court of Australia held today. Mr Czatyrko, 43, was a general assistant at the University in 1997 when he was injured while loading boxes of books and documents on to a truck with colleague Reece John Fendick. The truck had a hydraulic lifting platform which emitted a loud noise when being raised and a clanging sound when it reached its full height but no sound was emitted when it was lowered. Both men loaded boxes on to trolleys and took them up into the truck with the platform. When they were told they needed to hurry, Mr Fendick went back and forth collecting boxes on his trolley while Mr Czatyrko arranged the boxes inside the truck. When the truck was almost full and Mr Fendick was taking the platform down Mr Czatyrko stepped backwards and fell heavily. He sued the University in the Western Australian District Court for damages for negligence arising from an alleged failure to provide safe equipment and a safe system of work. Mr Czatyrko claimed the University failed to take reasonable precautions for his safety by not providing a warning device to indicate that the platform was descending, by instructing him and Mr Fendick to do their work hurriedly and in a manner that ignored safety issues, and by failing to have a system in place requiring that an employee lowering the platform alert other employees. The University denied liability and contended that Mr Czatyrko’s injuries were caused by his own negligence because he failed to look behind him. District Court Judge Peter Martino awarded him $379,402 after finding that the University was entirely responsible. Judge Martino held that the University had exposed Mr Czatyrko to unnecessary risk of injury, that it was foreseeable that Mr Czatyrko would not realise the platform had been lowered, and that his belief that the platform was in place when he stepped backwards was reasonable. The University successfully appealed to the Full Court of the Supreme Court of WA which held that Mr Czatyrko was under an obligation to take reasonable care to avoid foreseeable risk of injury to himself and that his injuries were caused by his own negligence. He then appealed to the High Court. The Court unanimously allowed the appeal. It held that employers must take reasonable care to avoid risks of workplace injury. Employers must take into account possible thoughtlessness, inadvertence or carelessness, particularly with repetitive work. In its failure to implement necessary safety measures the University was in breach of its duty to take reasonable care to prevent the risk of injury. The Court held that the issue was not simply of failing to warn Mr Czatyrko of a risk, but of creating a risk by failing to adopt a safe system of work. Repetitive work in a diminishing space under pressure to do the job quickly left wide scope for inadvertently stepping backwards without noticing whether the platform was raised. |
HIGH COURT OF AUSTRALIA 22 June 2011 MAURICE BLACKBURN CASHMAN v FIONA HELEN BROWN [2011] HCA 22 Ms Brown was a salaried partner employed by Maurice Blackburn Cashman ("MBC") in its legal practice in Melbourne. Ms Brown alleged that between January and November 2003 she had been "systematically undermined, harassed and humiliated" by a fellow employee, despite complaints and requests for intervention made to MBC's managing partner, and that, as a result, she had suffered injury, including psychiatric injury. In December 2005, Ms Brown made a claim against MBC under the Accident Compensation Act 1985 (Vic) ("the Act") for compensation for non-economic loss. The Act provided for payment of compensation "in respect of an injury resulting in permanent impairment as assessed in accordance with section 91". Section 91 of the Act prescribed how the assessment of the degree of impairment of a worker was to be made. No compensation was payable if the degree of impairment was less than 30 per cent. The Victorian WorkCover Authority ("the Authority") was required under the Act to "receive and assess and accept or reject claims for compensation" and to pay "compensation to persons entitled to compensation under" the Act. In February 2006 the Authority accepted that Ms Brown had a psychological injury arising out of her employment with MBC. Ms Brown disputed the determination of her impairment made by the Authority. The Authority was therefore required by the Act to refer to a Medical Panel, established under the Act, questions relating to the degree of impairment resulting from the injury claimed by Ms Brown and whether she had an injury which was a "total loss". In June 2006 a Medical Panel provided its opinion that there was a 30% psychiatric impairment resulting from the accepted psychological injury and that the impairment was permanent. Under the Act this was deemed to be a "serious injury" which entitled Ms Brown to bring proceedings against her employer at common law. In 2007 Ms Brown commenced proceedings in the County Court of Victoria against MBC claiming damages for personal injuries she alleged she had suffered as a result of MBC's negligence. MBC denied that she had suffered injury, loss and damage. Ms Brown asserted, among other things, that MBC was precluded from "making any assertion whether by pleading, submission or otherwise" and from "leading, eliciting or tendering evidence, whether in chief or in cross-examination or re- examination" that was inconsistent with the Medical Panel's opinion that she had, as at the date of that opinion, a "serious injury" as defined in s 134AB(37)(c) of the Act, a permanent severe mental disturbance or disorder or a psychological injury arising out of her employment. The parties asked the trial judge to reserve questions, relating to whether MBC was confined in its defence by the Medical Panel's opinion, for the opinion of the Court of Appeal of the Supreme Court of Victoria. The Court of Appeal answered those questions adversely to MBC. MBC appealed, by special leave, to the High Court of Australia. In the High Court the central issue was whether, as the Court of Appeal held, MBC was precluded either by the Act or by estoppel from contesting in evidence or argument in the County Court the existence and extent of Ms Brown's injury. The High Court held that MBC was not precluded, either under the Act or as a matter of estoppel, from advancing the relevant contentions. Accordingly, the High Court allowed MBC's appeal. |
HIGH COURT OF AUSTRALIA 9 March 2004 SIEMENS LTD v SCHENKER INTERNATIONAL (AUSTRALIA) PTY LTD AND Siemens could recover just a portion of the cost of damage to a shipment of telecommunications equipment because a limit on liability for such loss while the goods were airlifted from Germany to Melbourne applied all the way to the transport company’s warehouse, the High Court of Australia held today. In 1996 Siemens Australia imported from its German parent a consignment of equipment as part of a contract with Telstra. Transport was undertaken by the German and Australian arms of Schenker. Siemens and Schenker had had a standing arrangement since the 19th century. At Tullamarine Airport the consignment was collected by Schenker Australia for delivery to its warehouse. Some equipment fell off the truck due to the driver’s negligence. Siemens Australia sued Schenker Australia and Schenker Germany in the Supreme Court of New South Wales. The Schenker companies did not dispute their liability for the accident but sought to limit it either by reference to the International Convention for the Unification of Certain Rules Relating to International Carriage by Air (the Warsaw Convention) or by reference to the air waybill issued by Schenker Germany. The Court rejected both limitation provisions and awarded Siemens $1.69 million including interest. The Court of Appeal agreed the Warsaw Convention did not apply but held that the waybill governed the rights and obligations of the parties, including limitation on liability, and reduced damages to $US74,680 plus interest. Siemens Australia appealed to the High Court which upheld the Court of Appeal decision. The High Court agreed the Warsaw Convention did not apply beyond the limits of an aerodrome and that the waybill did. Clause 4 of the waybill specified that where the Warsaw Convention did not apply, the carrier’s liability was limited to $US20 per kilogram of goods damaged or lost. Siemens Australia argued that the waybill only applied to “carriage by air”. The Schenker companies argued that the waybill continued to operate at least until the consignment was delivered to the warehouse so it applied to damage to the consignment en route there. The High Court held that the Schenker argument was valid because Clause 4 operated only in respect of carriage to which the Warsaw Convention did not apply so “carriage” had a different meaning. Secondly, the terms of the standing agreement appeared to include transport to the warehouse. Thirdly, the statutory regime permitted no other possibility as Schenker Australia had permission under the Customs Act to have customs inspections performed at the warehouse, provided goods were taken directly there. Therefore, the damage sustained while complying with such requirements fell within the terms of clause 4 of the waybill. The High Court, by a 3-2 majority, dismissed the appeal with costs. |
HIGH COURT OF AUSTRALIA 14 June 2006 Public Information Officer ANDREW BATISTATOS (by his tutor William George Rosebottom) v ROADS AND TRAFFIC AUTHORITY OF NEW SOUTH WALES ANDREW BATISTATOS (by his tutor William George Rosebottom) v NEWCASTLE CITY COUNCIL A man who tried to sue over injuries suffered in a motor vehicle accident near Newcastle in 1965 could not proceed as a fair trial was no longer possible, the High Court of Australia held today. Mr Batistatos, 74, has spent much of his life in institutions. His mother died when he was two and he and his brother and sister went into children’s homes. At age five, he was committed to the Newcastle Mental Asylum as he was mentally retarded. He was later assessed as having an IQ of 69. Mr Batistatos was released from the asylum in 1954 and worked for the Department of Public Works as a cleaner until the accident left him a quadriplegic. He was returning from a party when his van overturned on Fullerton Street in Stockton in August 1965. Mr Batistatos spent the next 14 years in a hospital and a nursing home until his brother located him. He has lived with his sister in Sydney since 1982. The accident was allegedly caused by the negligence of Newcastle City Council and the Roads and Traffic Authority in the design, construction or maintenance of the road. The dog leg-shaped road lacked warning signs, lighting and reflector posts. Vegetation allegedly obscured vision where the crash occurred. The road has since been straightened. Mr Batistatos commenced an action for damages against the RTA and the Council in the New South Wales Supreme Court in December 1994. He claimed that, despite the lapse of 29 years since the accident, he was not barred from bringing his action by the Limitation Act because he was a person under a disability within section 11(3) of the Act. The consequence of that would be that the ultimate bar of 30 years under section 51(1) applied to him. The RTA and the Council sought summary dismissal or permanent stay of the action. They claimed the lapse of time meant a fair trial was no longer possible and constituted an abuse of process. Police records, medical records, road design and construction documents, people involved in road maintenance before 1965, and the identity of the insurer in 1965 could no longer be located, and the physical state of the road had changed substantially. Under Supreme Court Rules, where it appears no reasonable cause of action is disclosed, the proceedings are frivolous or vexatious, or the proceedings are an abuse of process of the Court, the Court may order that the proceedings be stayed or dismissed. Justice Clifton Hoeben rejected the applications to dismiss or stay the action. He rejected the argument that Mr Batistatos’s claim was so obviously untenable it could not possibly succeed and held that the Council and the RTA had failed to show they could not have a fair trial. The NSW Court of Appeal allowed an appeal by the RTA and the Council. It held that they had not shown that the cause of action was untenable, but due to the long period of time since the accident the action could not be fairly tried. Mr Batistatos appealed to the High Court, which by a 4-3 majority, upheld the Court of Appeal decision and dismissed the appeals. It held that an action commenced within the absolute 30-year limit may still be subject to a stay for abuse of process and that it is not necessary for there to be some oppressive conduct on the part of a plaintiff in commencing the action before a permanent stay may be granted. |
HIGH COURT OF AUSTRALIA 8 November 2018 RICHARD JOHN McPHILLAMY v THE QUEEN [2018] HCA 52 Today the High Court published its reasons for orders made on 9 August 2018, allowing an appeal from the Court of Criminal Appeal of the Supreme Court of New South Wales, quashing the appellant's convictions and directing a new trial. In 2015, following a trial before a judge and jury, the appellant was convicted of six sexual offences alleged to have been committed between 1995 and 1996 against "A". At the time, "A" was an 11-year- old altar boy under the supervision of the appellant in his role as an acolyte. On "A"'s account, the offences occurred on two Saturday nights before mass when the appellant followed him into the church's public toilet. The appellant did not give evidence at trial. The appellant's case was that "A" had made up the allegations to support his claim for compensation from the Catholic Church, knowing that the appellant had been charged with sexual offences against boys, but without knowing the details of those offences. "A" had previously told police that he had falsely stated in his compensation application that the appellant had anally penetrated him. Over objection, the prosecution led tendency evidence from two men, "B" and "C". In 1985, "B" and "C" were about 13 years old and were boarding students at a college at which the appellant was then an assistant housemaster. "B" and "C" gave evidence that they had separately sought out the appellant when they felt homesick. On their accounts, the appellant had then comforted them in the appellant's room before committing sexual acts against them. At the trial for offences against "A", the appellant did not challenge the evidence of "B" or "C". The jury were instructed that the prosecution relied on the tendency evidence as demonstrating the appellant's "sexual interest in male children in their early teenage years who were under his supervision". The appellant appealed against his convictions to the Court of Criminal Appeal, challenging the admission of the tendency evidence. Tendency evidence is not admissible unless the court considers that it possesses "significant probative value". A majority of the Court of Criminal Appeal held that the tendency evidence strongly supported the prosecution case and had been rightly admitted. By grant of special leave, the appellant appealed to the High Court. The High Court held that, while the tendency evidence was capable of establishing that the appellant had a sexual interest in young teenage boys, it did not meet the threshold requirement of significant probative value in circumstances in which there was no evidence that the asserted tendency had manifested itself in the decade prior to the commission of the alleged offending. The tendency evidence rose no higher than to insinuate that, because the appellant had sexually offended against "B" and "C" ten years before, in different circumstances, he was the kind of person who was more likely to have committed the offences that "A" alleged. It was not, however, capable of affecting to a significant extent the assessment of the likelihood that the appellant committed the offences alleged by "A". |
HIGH COURT OF AUSTRALIA 15 June 2006 Public Information Officer BEROWRA HOLDINGS PTY LTD v RODNEY JOHN GORDON BRIGHTON UND REFERN PLASTER PTY LIMITED under external administration and/or controller appointed v SCOTT RAYMOND BOARDMAN A lack of strict compliance by two injured workers with workers compensation laws did not prevent them from pursuing damages from their employers, the High Court of Australia held today. Mr Gordon was a farm hand on “Berowra” near Dubbo in central New South Wales when his legs were severely injured by the spinning shaft of a post hole digger. Mr Boardman was employed by Brighton as a carpenter on a construction site in the Sydney suburb of Rockdale when he developed persistent back injuries from lifting and laying Hebel blocks weighing up to 150kg. Both were injured in 2001. Section 151C of the NSW Workers Compensation Act stipulates that a worker cannot commence court proceedings against an employer for damages until six months have elapsed since the employer was notified of the injury. Both workers initiated proceedings in the NSW District Court before the six months had elapsed. Neither Berowra nor Brighton took any point as to non-compliance with section 151C until considerable time had passed and after numerous steps had been taken pursuant to the District Court Rules. In Mr Gordon’s case, Berowra took no point in relation to non-compliance with section 151C until the day before the case was set for hearing in the District Court, 18 months after Mr Gordon filed his statement of claim. An offer of compromise, valid for 28 days, had been made under the District Court Rules and this could not be withdrawn without leave of the Court. The evening before the hearing, Berowra’s solicitors told Mr Gordon’s solicitors that they would apply to the Court to withdraw the offer, seek an order that the proceedings were a nullity, and seek summary dismissal. The next morning, Mr Gordon’s solicitors faxed Berowra’s solicitors his notice of acceptance of the offer of compromise. At the hearing that day, the District Court held that the proceedings were a nullity and should be dismissed. This was reversed by the NSW Court of Appeal. Berowra then obtained special leave to appeal to the High Court. In Mr Boardman’s case, when Brighton failed to appear at a show cause hearing in April 2002, an order for judgment was made against it under the District Court Rules, it was deemed to have admitted liability, and the matter was listed to proceed to trial for the assessment of damages. In August 2002, 13 months after the statement of claim had been filed, Brighton first raised section 151C when it filed a notice of motion for summary dismissal of the proceedings for non-compliance. The order for judgment was still in force when the notice of motion came on for hearing in February 2004. The Court accepted Mr Boardman’s argument that Brighton by its conduct had waived its right to rely on section 151C and dismissed its motion. The Court of Appeal refused leave to appeal and Brighton obtained special leave to appeal to the High Court. The Court unanimously dismissed both appeals. It held that non-compliance with section 151C did not render the proceedings a nullity. Section 151C should not be read as if waiting six months to commence court proceedings were a precondition to the jurisdiction conferred upon the District Court to determine claims for work injury damages. The section does not extinguish or create rights; rather, it postpones the remedy. Section 151C potentially gives defendants a right to apply to strike out proceedings commenced in non-compliance, but that right must be exercised in accordance with the procedural rules of the Court. The effect of non-compliance will depend in each case upon a defendant’s actions under the Rules of Court. |
HIGH COURT OF AUSTRALIA 14 March 2018 POUYAN KALBASI v THE STATE OF WESTERN AUSTRALIA [2018] HCA 7 Today the High Court, by majority, dismissed an appeal from the Court of Appeal of the Supreme Court of Western Australia. The appellant was convicted, following a re-trial before judge and jury in the District Court of Western Australia, of attempting to possess a prohibited drug with intent to sell or supply to another, contrary to ss 6(1)(a) and 33(1) of the Misuse of Drugs Act 1981 (WA) ("the MDA"). It was the prosecution case that the appellant had attempted to possess a consignment of 4.981 kg of 84% pure methylamphetamine. The police had removed the drugs and replaced them with rock salt prior to the collection of the consignment. The consignment note recorded a mobile telephone number to be contacted for collection. Evidence linked the appellant to that number. The consignment was collected by a man named Lothian, who was known to the appellant. The appellant was present at Lothian's premises when the "drugs" were unpacked. Mixing bowls, digital scales, disposable gloves and a substance used to cut methylamphetamine were found in the premises shortly after the appellant's arrest. The appellant's DNA was found on the inside of one of the disposable gloves. The sole issue at trial was whether the appellant was in possession (whether jointly with Lothian or otherwise) of the "drugs" during the period that he was inside Lothian's premises. Under s 11 of the MDA, a person who is in possession of more than 2 g of methylamphetamine is deemed to possess it with intent to sell or supply to another subject to proof to the contrary. In Krakouer v The Queen (1998) 194 CLR 202, the High Court held that s 11 does not apply to the prosecution of a charge of attempted possession of a prohibited drug with intent to sell or supply to another. The appellant's trial was conducted on the common, mistaken, assumption by the parties and the trial judge that s 11 was engaged. The jury was directed that, in the event it was satisfied that the appellant was in possession of the "drugs", his intention to sell or supply them to another would be proved beyond reasonable doubt. The appellant appealed against his conviction to the Court of Appeal of the Supreme Court of Western Australia. The State conceded that the trial judge's direction concerning proof of the element of intention was wrong. The Court of Appeal upheld the State's submission that the appeal should nonetheless be dismissed under s 30(4) of the Criminal Appeals Act 2004 (WA), which provides that the Court of Appeal may dismiss the appeal if it considers that "no substantial miscarriage of justice has occurred" ("the proviso"). By grant of special leave, the appellant appealed to the High Court on the ground that the Court of Appeal erred in applying the proviso. The High Court declined to re-open the principles governing the proviso stated in Weiss v The Queen (2005) 224 CLR 300. The majority rejected the appellant's contention that he was "not in reality tried for the offences for which he was indicted". The majority found that there was no basis in the evidence, or in the way the appellant's case had been run, that left open that the appellant may have been in possession of a lesser quantity of the "drugs" with a view to purchase for his own use, or that he possessed the "drugs" without intent to sell or supply to another. Rather, the sole issue at trial was whether he was in possession of the whole of the substitute "drugs". In the circumstances, the majority held that the Court of Appeal was correct to reason that proof of the attempt to possess nearly 5 kg of 84% pure methylamphetamine compelled the conclusion that it was the appellant's intention to sell or supply the drugs to another. Therefore, the majority held that the Court of Appeal was correct in concluding that the misdirection did not result in a substantial miscarriage of justice. |
HIGH COURT OF AUSTRALIA 5 December 2012 WESTFIELD MANAGEMENT LIMITED AS TRUSTEE FOR THE WESTART TRUST v AMP CAPITAL PROPERTY NOMINEES LIMITED AS NOMINEE OF UNISUPER LIMITED IN ITS CAPACITY AS TRUSTEE OF THE COMPLYING SUPERANNUATION FUND KNOWN AS UNISUPER [2012] HCA 54 Today the High Court unanimously dismissed an appeal from a decision of the Court of Appeal of the Supreme Court of New South Wales regarding the terms of a unitholders' agreement between two corporations. The High Court held that the terms of the agreement did not fetter a party's statutory right to vote for the winding up of a managed investment scheme under the Corporations Act 2001 (Cth) ("the Act"). Westfield and AMP Capital Property Nominees are the unitholders of a trust set up to acquire and operate a shopping centre in Perth. The trust is a managed investment scheme registered under the Act. AMP sought to invoke its right under the Act to vote on a resolution to direct that the scheme be wound up, and requested that a members' meeting be convened for that purpose. AMP was in a position to carry the resolution alone because it holds two-thirds of the units in the trust. Westfield opposed the resolution and obtained an injunction from the Supreme Court of New South Wales preventing AMP from voting in favour of it without Westfield's prior consent. Westfield relied upon two provisions of its unitholders' agreement with AMP. The first prohibits the sale of trust property without the written consent of the unitholders, and the second requires members to exercise their voting rights in a way that gives effect to the "intent and effect" of the agreement. The Supreme Court held that by voting for a winding up without Westfield's consent, AMP would breach the second provision because a winding up would inevitably lead to the shopping centre being sold. AMP appealed to the Court of Appeal of the Supreme Court of New South Wales. The Court of Appeal held that "intent and effect" of the prohibition on selling trust property without consent did not include preventing a sale following a determination of the trust. Therefore, the restriction on how voting rights could be exercised did not preclude AMP from voting in favour of the resolution to wind up the scheme. The injunction was set aside. Westfield appealed by special leave to the High Court. The High Court unanimously dismissed the appeal. The Court held that, on its proper construction, the prohibition on selling trust property without consent is directed to a sale during the continuance of the scheme; it does not apply where a resolution is passed by members to wind up the scheme, even if that would result in the trust property being sold. |
HIGH COURT OF AUSTRALIA Manager, Public Information 28 May 2009 FRIEND v BROOKER & ANOR [2009] HCA 21 Today the High Court determined that a director of a company who borrowed from a third party to on- lend the money to the company could not claim contribution from a fellow director toward repaying the third party lender. The remedy of equitable contribution did not apply where there was no co-ordinate liability or common obligation on the part of the two directors. In May 1977 Mr Frederick Brooker, a civil engineer, and his colleague, Mr Nicholas Friend, agreed that they would set up a construction business together. Although the business relationship was initially created as a partnership, they incorporated the company of Friend & Brooker Pty Ltd on 18 July 1977 to carry on the business. Each of Mr Friend and Mr Brooker was a shareholder and director of the company. Over the years they each obtained loans from family and friends which were then advanced as loans to the company, to ensure the company could continue to operate during periods of financial difficulty. The company’s indebtedness appeared in its books as debts due to either of the directors, Mr Friend or Mr Brooker. In 1986 Mr Brooker obtained one such loan of $350,000 from SMK Investments Pty Ltd (the SMK loan). By December 1995, with the accrual of interest, the amount needed to repay the loan was $1.1 million. The company ceased to trade in 1990 and was deregistered in 1996. Thereafter Mr Brooker and Mr Friend disputed the company accounts and who was responsible for repayment of various loans. In 2000 Mr Brooker filed a claim in the Supreme Court of NSW alleging that the company had been a corporate vehicle for the conduct of a partnership or joint venture between the two men. He sought the taking of a full account of the partnership and recovery for loss he had suffered because Mr Friend refused to make equal contribution to the repayment of his personal borrowings made for the purpose of the business. The primary judge dismissed the claim, having found no evidence to support Mr Brooker’s contentions that a partnership or joint venture existed. He considered the law concerning corporate insolvency should determine how the debts owed by the company were be dealt with. Mr Brooker appealed to the NSW Court of Appeal and, in allowing the appeal, the majority considered that Mr Friend had an equitable duty to contribute equally to repayment of the SMK loan. The High Court granted special leave to Mr Friend to appeal from that decision. In a unanimous decision, the High Court considered the equitable doctrine of contribution could not be extended to overcome the undisturbed findings of the primary judge that, after the company was created, Mr Brooker and Mr Friend were neither in a partnership nor a joint venture. Mr Brooker and Mr Friend had set up a corporate structure as the vehicle for their business enterprise and the consequences were that companies legislation determined how the debts owed by the company were to be dealt with. The Court also held that there was no fiduciary obligation requiring Mr Brooker and Mr Friend to be personally liable to each other for losses flowing from their personal borrowings. The Court allowed Mr Friend’s appeal and reinstated the decision of the primary judge. |
HIGH COURT OF AUSTRALIA Public Information Officer 10 May 2006 LEIGH WILLIAM DALTON v NSW CRIME COMMISSION, COMMONWEALTH ATTORNEY-GENERAL AND NEW SOUTH WALES ATTORNEY-GENERAL The ability of a State or Territory to serve, in other parts of Australia under Commonwealth law, a summons to appear before a tribunal, was upheld by the High Court of Australia today. Section 76 of the Commonwealth Service and Execution of Process Act empowers Supreme Courts of States and Territories to grant leave to serve subpoenas outside the relevant State or Territory to compel a person to appear before a tribunal or to produce documents or other items to a tribunal. The Crime Commission, which investigates illegal drug trafficking, organised crime and other criminal activity, met the SEP Act’s definition of tribunal. In November 2003 it began a drug operation codenamed “Gymea IV”. On 12 March 2004, the Commission issued a summons for Mr Dalton to appear before it on 5 April 2004 to give evidence. The summons was a subpoena relating to an investigative function as required by the Act. The NSW Supreme Court granted leave to serve the subpoena on Mr Dalton whose address was in St Kilda East in Melbourne. Service took place in Melbourne on 22 March 2004. In the Supreme Court Mr Dalton challenged the subpoena on the ground that section 76 of the SEP Act is unconstitutional. Proceedings were referred to the Court of Appeal which, by majority, rejected the challenge. Mr Dalton then appealed to the High Court. The Court unanimously dismissed the appeal. It held that Mr Dalton failed to demonstrate the invalidity of section 76, therefore service was effective in accordance with federal law. Section 76 is a law supported by section 51(xxiv) of the Constitution which provides that Parliament can make laws with respect to the service and execution throughout the Commonwealth of the civil and criminal process and the judgments of the courts of the States. Mr Dalton had argued that the summons did not answer the description “the civil and criminal process” because this was said to refer only to the process of bodies which determine disputes between persons or the enforcement of the criminal law by prosecution and trial. He said the laying of criminal charges preceded by an investigation does not render the investigative process of a body such as the Commission part of the criminal process. The Court held that “civil and criminal” in section 51(xxiv) of the Constitution were not words of limitation or qualification, but words of universal description embracing all that might be described as a “process”. The Court also rejected Mr Dalton’s argument that a subpoena served under section 76 of the SEP Act was one issued in relation to an investigative function, rather than an adjudicative function, so did not fall within section 51(xxiv). Mr Dalton submitted that because courts do not have investigative functions there could be no extension by analogy to tribunals. However, the Court held that Australian courts have always had a range of investigative functions and Mr Dalton’s argument failed. |
HIGH COURT OF AUSTRALIA 8 November 2007 Public Information Officer WESTON ALUMINIUM PTY LIMITED v ALCOA AUSTRALIA ROLLED PRODUCTS PTY LIMITED (appeal) WESTON ALUMINIUM PTY LIMITED v ENVIRONMENT PROTECTION AUTHORITY AND ALCOA AUSTRALIA ROLLED PRODUCTS PTY LIMITED (special leave application) An aluminium recycling plant was not permitted to process aluminium dross brought in from interstate without a separate development consent, the High Court of Australia held today. In 1996, Alcoa acquired Comalco Australia’s aluminium manufacturing plant at Yennora in western Sydney. Since the 1960s, aluminium cans and other scrap have been recycled at Yennora by melting them down and casting them into blocks or bars. Melting aluminium scrap produces aluminium dross which, when used as feedstock in a rotary furnace, allows recovery of more aluminium. Smelting also produces aluminium dross and since 2002, when it obtained a variation to its licence under the Protection of the Environment Operations Act (PEO Act), Alcoa has brought dross from its smelter at Port Henry in Geelong to Yennora as feedstock. Weston Aluminium brought proceedings in the New South Wales Land and Environment Court (LEC) alleging that the processing of imported dross at Yennora is a land use which requires development consent under the Environmental Planning and Assessment Act (EPA Act) and that Alcoa lacks this consent. Weston sought declarations and an injunction restraining Alcoa from processing imported dross. In 2004, Justice David Lloyd held that Weston was entitled to this relief but no orders granting relief were made because Alcoa applied under the EPA Act for authority to process imported dross at Yennora. The application was not determined within the time limit so Alcoa brought proceedings in the LEC to challenge the deemed refusal of its application. Alcoa obtained leave to appeal out of time against Justice Lloyd’s decision, even though no final orders had been made. In 2005, Weston began further proceedings in the LEC to challenge the variation to Alcoa’s licence to process imported dross. The LEC dismissed these proceedings and Weston appealed to the NSW Court of Appeal. The Court of Appeal ordered that Weston’s first proceedings be dismissed and upheld the LEC’s order dismissing Weston’s second proceedings. By special leave, Weston appealed to the High Court regarding the first proceedings and Weston also sought special leave to appeal in the second proceedings. The High Court unanimously allowed the appeal in the first matter. In the second matter, it granted special leave to appeal, treated the appeal as heard and allowed the appeal. In relation to the first appeal, there was no development consent which permitted Alcoa’s use of the Yennora site to process imported dross. In the second matter, the Court held that the PEO Act provides that the Environment Protection Authority is prohibited from issuing or varying any licence regulating a particular use of land unless development consent has been granted for that use. When the EPA varied the relevant licence, Alcoa did not have development consent to use the Yennora site to process imported dross, therefore the variation was invalid. The matter was remitted to the LEC for further consideration in conformity with the High Court’s decision. |
HIGH COURT OF AUSTRALIA 15 April 2020 SMETHURST & ANOR v COMMISSIONER OF POLICE & ANOR [2020] HCA 14 Today the High Court unanimously held, in answer to questions stated in a special case, that the warrant relied upon by officers of the Australian Federal Police ("the AFP") to authorise the search of the residence of the first plaintiff, Ms Annika Smethurst, was invalid and should be quashed. On 29 April 2018 the second plaintiff, Nationwide News Pty Ltd, published articles authored by Ms Smethurst in its newspaper, the Sunday Telegraph, and on its website. On 4 June 2019 the AFP searched Ms Smethurst's residence in the course of an investigation it was conducting in relation to those articles. The AFP purported to rely upon a warrant issued on 3 June 2019, which in turn relied upon there being "reasonable grounds for suspecting" that the things mentioned in it would afford evidence as to the commission of a Commonwealth indictable offence. In particular, the warrant stated that Ms Smethurst and the Sunday Telegraph "communicated a document or article to a person, that was not in the interest of the Commonwealth, and permitted that person to have access to the document, contrary to section 79(3) of the Crimes Act 1914, Official Secrets". Relying on the warrant, the AFP copied data from Ms Smethurst's mobile phone onto the AFP's laptop. Documents that were identified as falling within the terms of the warrant were copied onto a USB stick belonging to the AFP. The material was then deleted from the laptop, Ms Smethurst's phone was returned to her and the USB stick was taken from the premises. Ms Smethurst and Nationwide News ("the plaintiffs") commenced proceedings in the original jurisdiction of the High Court seeking, among other things, to have the warrant quashed, and to obtain a mandatory injunction requiring the delivery up or destruction of the material copied from Ms Smethurst's mobile phone. The plaintiffs' principal argument for injunctive relief was that an injunction should issue to reverse the consequences of the trespass said to have been committed by the AFP as a result of its reliance on an invalid warrant, namely the retention of the copied material. Arguments were also made that statute or s 75(v) of the Constitution could provide a juridical basis for an injunction. The plaintiffs expressly eschewed the argument that the law should recognise a cause of action of invasion of privacy and that an injunction should be issued to protect a right to privacy. The High Court unanimously held that the warrant relied upon by the AFP was invalid on the ground that it misstated the substance of s 79(3) of the Crimes Act, as it stood on 29 April 2018, and failed to state the offence to which the warrant related with sufficient precision. The entry, search and seizure which occurred on 4 June 2019 were therefore unlawful. Having made this finding, it was not necessary for the Court to consider whether the warrant was invalid on the ground that s 79(3) of the Crimes Act, as it stood on 29 April 2018, infringed the implied freedom of political communication. Nor was it necessary to consider the validity of the order that had been made under s 3LA of the Crimes Act requiring Ms Smethurst to give assistance to enable a constable to access, copy or convert data on a computer or data storage device. The Court unanimously ordered that the warrant be quashed. A majority of the Court declined to grant the injunctive relief sought by the plaintiffs, pointing to the plaintiffs' inability to identify a sufficient right or interest that required protection by way of a mandatory injunction. |
HIGH COURT OF AUSTRALIA 12 February 2009 Public Information Officer TABCORP HOLDINGS LTD v BOWEN INVESTMENTS PTY LTD Tabcorp rented office premises from Bowen Investments. A clause in the lease prohibited the tenant from making substantial alteration or addition to the leased premises without first obtaining the landlord’s written consent. Within six months of leasing the building Tabcorp redesigned and replaced the foyer without the landlord’s consent, written or otherwise. Today the High Court decided Bowen Investments was entitled to damages that would cover both the cost of reinstating the foyer as it had been prior to the unauthorised alteration and the loss of rent while that work was being done, rather than to damages which would cover only the reduction in the value of the premises arising out of the unauthorised work. Mrs Bergamin is a director of Bowen Investments. During 1996 she took particular interest in the construction of the foyer in a building owned by the company, located at 5 Bowen Crescent Melbourne. The foyer utilised San Francisco Green granite, Canberra York Grey granite and sequence-matched crown-cut American cherry timber in its construction. On 23 December 1996 Bowen Investments leased the building to Tabcorp. The lease commenced on 1 February 1997 for a term of 10 years. It contains options to renew for a further five years in 2007 and 2012. Under clause 2.13 Tabcorp promised “not without the written approval of the Landlord first obtained (which consent shall not be unreasonably withheld or delayed) to make or permit to be made any substantial alteration or addition to [the premises]”. On 10 July 1997 Mrs Bergamin had indicated to Tabcorp that Bowen Investments did not consent to any alteration to the foyer. On 11 July 1997 she wrote to Tabcorp advising the landlord could not consent to proposed alterations until they had been examined at a site meeting arranged for 14 July 1997. When Mrs Bergamin attended the premises to inspect the proposal on 14 July she found that a glass and stone partition, timber panelling and stone floor tiles had been removed and that what remained of the floor stone work was being jack-hammered. Despite her protests Tabcorp continued the work of altering the foyer until it was completed in August 1997. Bowen Investments sued Tabcorp for damages in the Federal Court. The trial judge described Tabcorp’s conduct as involving “contumelious disregard” for Bowen Investments’ rights. Neither party disputed the description. The trial judge found there had been a breach of clause 2.13 but determined that the appropriate assessment of damages for the breach was the reduction in the value of the premises arising out of the unauthorised alteration to the foyer. The reduction in value arose out of the reduction in the floor area available for use as office space. The resulting loss of rental income was assessed to be $34,820. On appeal the Full Court of the Federal Court determined that damages should be assessed taking account of the cost of restoring the foyer to its condition before Tabcorp made the alterations. A majority of the Full Court increased the damages to $1.38 million, made up of $580,000 for the cost of restoring the foyer to its original condition and $800,000 for rental losses during the restoration period. The third member of the Full Court wanted to hear further argument about how the damages should be assessed. Tabcorp appealed that decision and two Justices of the High Court granted special leave to appeal on 1 August 2008. In a unanimous decision the High Court held that, in the absence of its giving written consent to any alterations, Bowen Investments was contractually entitled to have the building foyer remain as it had been constructed. By altering the foyer without consent Tabcorp had failed to perform its contractual obligation to preserve the foyer. The appropriate measure of Bowen Investments’ loss was the cost of restoring the foyer to the condition it would have been in had Tabcorp not breached that obligation. The High Court dismissed Tabcorp’s appeal thus confirming the assessment of damages at $1.38 million. |
HIGH COURT OF AUSTRALIA 15 December 2006 Public Information Officer SZBEL v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS AND REFUGEE REVIEW TRIBUNAL SZBEL was denied procedural fairness by the Refugee Review Tribunal when it found aspects of his story to be implausible, the High Court of Australia held today. SZBEL, an Iranian seaman, jumped ship in Port Kembla in April 2001. He applied for a protection visa, saying he feared for his safety because the ship’s captain knew of his attraction to Christianity. The Immigration Department refused him a visa and he sought review of that decision by the RRT. It told SZBEL it was unable to make a decision in his favour on the information supplied, and invited him to appear before it to give evidence. During questioning, the RRT member did not challenge what SZBEL said, express any reaction, or invite him to amplify any of the three particular aspects of his original account which the RRT later deemed implausible. In his visa application SZBEL said he had attended Christian services as often as possible since 1996 in various countries. In December 2000 fellow crew members spotted him coming out of a church in Argentina and took him back to the ship where an officer warned him that displaying interest in Christianity would cost him his job. At home SZBEL told friends about his activities. They urged him to renounce his heresy. He received threatening phone calls. The captain heard from a crew member of rumours circulating in SZBEL’s home town and of the ostracism he experienced there. The captain told SZBEL he would be dealt with when the ship returned to Iran and he would be closely supervised until then. SZBEL said he became increasingly afraid of the crew who thought the captain should lock him up. On 6 April 2001 he was allowed to visit a doctor in Port Kembla as he was ill from the constant harassment. The next day SZBEL jumped ship. The RRT held that his claim that he did so because he feared punishment when the captain handed him to authorities in Iran was not credible. The RRT was sceptical about how the captain came to hear of SZBEL’s conversation with his friends in a town hundreds of kilometres from the ship, that the captain would accuse him of apostasy on the strength of a crew member’s comments, and allowed him to consult a doctor if the captain was intending to hand to Iranian authorities. SZBEL explained that another crew member escorted to and from the doctor. The Federal Magistrates Court dismissed SZBEL’s application for relief, and the Federal Court of Australia dismissed an appeal. He appealed to the High Court, which unanimously allowed his appeal. The Court held that the RRT had not accorded SZBEL procedural fairness. Under the Migration Act, an applicant is to be invited to give evidence and present arguments relating to the issues arising in relation to the decision under review. SZBEL complained that he was not put on notice that his account of how the captain came to know of his interest in Christianity, and the captain’s reaction, were issues arising in relation to the decision under review. Nothing in the department’s decision indicated that these aspects were in issue and the RRT did not challenge what SZBEL said of them. Based on the department’s decision SZBEL would have understood that the determinative question was the nature and extent of his Christian commitment. The Court held that the RRT did not give SZBEL sufficient opportunity to give evidence or make submissions about what turned out to be the decisive issues. It remitted the case to the RRT for rehearing in accordance with the Court’s reasons. |
HIGH COURT OF AUSTRALIA Public Information Officer 13 June 2007 AJS v THE QUEEN AJS was entitled to be acquitted of a charge of incest and should face a trial on the alternative charge of committing an indecent act, the High Court of Australia held today. In 2004 AJS was convicted of incest by digital penetration of his 13-year-old granddaughter. The Victorian Court of Appeal held that that verdict was not open on the evidence and ordered that the conviction be quashed and a new trial held. If the jury had found AJS not guilty of incest they could have considered the alternative charge of committing an indecent act with a child under 16. AJS appealed to the High Court, arguing that the Court of Appeal should have entered a verdict of acquittal on the charge of incest and ordered a new trial on the indecency charge. The High Court unanimously allowed the appeal. It ordered his acquittal on the incest charge and ordered a new trial on the indecency charge. The Court held that a new trial would not be a second or subsequent prosecution but would be the continuation of so much of the original prosecution as remained alive after the Court of Appeal’s determination of the appeal. While the charge of incest has been resolved in AJS’s favour, the other lesser alternative offence remains unresolved. The Court held that no question of double jeopardy arises. Entering a verdict of acquittal on the incest charge does not found a plea that AJS has already been acquitted of the indecent dealing charge, just as a jury verdict of not guilty on the incest count would not have precluded the jury from going on to consider this alternative offence. The power to order a new trial extends to ordering a new trial for an offence for which AJS could have been convicted at the first trial. |
HIGH COURT OF AUSTRALIA Public Information Officer 18 June 2008 MATTHEW LUMBERS AND WARWICK LUMBERS v W COOK BUILDERS PTY LTD (in liquidation) The owners of an Adelaide house did not owe any money to a company which built the house but which was not the company with which the owners contracted for the work, the High Court of Australia held today. Matthew Lumbers owned the land and his father Warwick Lumbers had an unregistered lease of the property for life and lived in the house in the suburb of North Haven. The house was large, of unusual design and expensive, costing more than $1 million to build. In late 1993 the Lumbers entered into an oral agreement with W Cook & Sons (“Sons”) to build the house, completed in May 1995. Warwick Lumbers dealt with long-time employee of the Cook companies David McAdam. The Lumbers chose Sons because of its reputation and because of Mr Lumbers’s confidence in Mr McAdam. The informality of the contract was due in part to this trust. No price was fixed, the contract was never put into writing, and no invoices were ever issued. Rather than progress payments for actual costs incurred, Mr McAdam would periodically phone Mr Lumbers to seek a round sum and Mr Lumbers would send a cheque. Following a corporate reorganisation and without the knowledge of the Lumbers, the work, including engagement of subcontractors and supervision, was performed not by Sons but by an associated company, W Cook Builders (“Builders”). Builders was not a licensed builder. The lump-sum payments to Sons were passed on to Builders. Builders went into liquidation in June 1998. The Lumbers were unaware of Builders until August 1998. In February 1999, Sons director Malcolm Cook wrote to Warwick Lumbers explaining that Builders had taken over building the house following a restructure and advised that nothing was owed by the Lumbers to Sons for the house. In November 1999, Builders served the Lumbers with a demand for an alleged shortfall of $181,904 and $92,887 as a 10 per cent fee for supervising the work, totalling $274,791. No claim had been made before and the supervision fee only appeared in Builders’ books after the liquidation. Builders also sought $274,791 from Sons. It commenced action in the South Australian District Court against both the Lumbers and Sons. Builders failed to provide security for Sons’ costs so the action against Sons was stayed. Builders claimed against the Lumbers on the basis that Sons had assigned the contract to Builders (rather than it being a subcontractor) and for restitution/unjust enrichment. Judge Barry Beazley dismissed both claims. The SA Court of Appeal rejected the assignment claim, but upheld the appeal on restitution, holding that an incontrovertible benefit was conferred on the Lumbers at Builders’ expense and it would be unconscionable for them to keep the benefit of the service without paying a reasonable sum for it. The Lumbers appealed to the High Court which unanimously allowed the appeal and restored Judge Beazley’s judgment. The Court held that the Court of Appeal had not taken sufficient account of the rights and obligations under the contractual relationship between Sons and the Lumbers. The Lumbers were not shown to have unconscionably accepted a benefit at Builders’ expense. They had never asked Builders to do anything in connection with the house. Builders’ remedies lay under its subcontract with Sons. |
HIGH COURT OF AUSTRALIA Manager, Public Information 22 April 2009 ICETV PTY LTD & ANOR v NINE NETWORK AUSTRALIA PTY LTD IceTV provides a subscription based electronic television program guide known as the "IceGuide", which uses time and title information obtained in part from aggregated guides such as those published in newspaper TV guides and online. The aggregated guides are based on TV program scheduling information provided to media outlets by the television networks. The Nine Network provides a weekly schedule which is incorporated into the aggregated guides. The High Court today decided that IceTV's use of some of Nine Network's time and title information obtained from aggregated guides did not infringe Nine's copyright in its weekly schedules. The IceTV guide originated from templates of the daily programming of the Sydney channels, Nine, Ten and Seven prepared by an employee of IceTV who watched television continuously for a period of weeks and wrote down time and title information of programs broadcast throughout that time. The template was then used to predict programs to be broadcast for the purposes of the IceGuide. The IceGuide itself was corrected from week-to-week by reference to the aggregated guides. The aggregated guides are schedules of programs to be broadcast on various television stations over a given week and are published in various media. They are produced from information provided by free-to-air television broadcasters including information provided by the Nine Network via its weekly schedules. The weekly schedule is a schedule of programs to be broadcast on Nine Network stations in a given week and is produced from an electronic database. It contains various elements including the time and title of programs to be broadcast, whether a program is a repeat or live screening, format and classification information, and program or episode synopses. When the IceGuide is downloaded on to certain devices it displays details of programs scheduled to be broadcast by free-to-air television stations for the coming six to eight days, including stations in the Nine Network. In preparing information to be included in the IceGuide for a given day in a current week, IceTV employees would use information usually in the previous week's IceGuide for that specific day, then compare it with the published aggregated guide for that same day in the current week. If there were a discrepancy between the IceGuide and the aggregated guide, the IceGuide would be amended to reflect the aggregated guide in almost all circumstances. Nine Network argued before a single Judge of the Federal Court that IceTV's reproduction of time and title information from the aggregated guides amounted to reproduction of a substantial part of the weekly schedules which had been prepared by Nine Network staff. On that basis the Nine Network argued that IceTV had infringed Nine's copyright in the weekly schedule. The trial judge disagreed. The Nine Network appealed to the Full Court of the Federal Court which allowed the appeal. The High Court granted IceTV special leave to appeal against the Full Court's decision. Today the High Court allowed IceTV's appeal having determined that its use of time and title information in the IceGuide did not infringe Nine's copyright in either the weekly schedule or the database from which the weekly schedule was produced, assuming without deciding that Nine had copyright in the database. The judges of the Court produced two separate sets of reasons. Three judges were of the view that a program's title was ordinarily bestowed by the producer of the program rather than the person or persons who authored the weekly schedule and that expression of the time at which a program is shown can only practically be done by using words or figures based on either a 12 or 24 hour time cycle for a day. Thus there was little originality in the expression of time and title information. The level of skill and labour required to express the time and title information was minimal. These considerations led to the conclusion that the time and title information was not a substantial part of the weekly schedule or of Nine's database. Their Honours determined that IceTV had not infringed Nine's copyright in the weekly schedule or the Nine database when it utilised time and title information from the aggregated guides in the IceGuide. The other three judges considered that the originality of Nine's weekly schedule lay not in the time and title information but rather in its selection and presentation together with additional program information and synopses to produce a composite. They considered that setting down program titles in particular time slots required only modest skill and labour. IceTV's use of the time and title information from the aggregated guide therefore could not be characterised as reproduction of a substantial part of the weekly schedule or of the Nine database. The High Court set aside the orders of the Full Federal Court and restored the orders made by the trial judge. |
HIGH COURT OF AUSTRALIA 8 November 2007 PM v THE QUEEN Public Information Officer The New South Wales District Court had jurisdiction to try a child who was originally charged with an offence that was downgraded to a lesser offence that would ordinarily be dealt with by the Children’s Court, the High Court of Australia held today. In September 2004, when PM was 16, he was given a court attendance notice alleging that he had had non-consensual sexual intercourse with a girl in circumstances of aggravation, namely that she was aged under 16. She was 14. A month later, PM was given another court attendance notice charging him with a second count of aggravated sexual assault in which the circumstance of aggravation was that he caused actual bodily harm to the girl. The first charge, relating to age, was not a serious children’s indictable offence, but the second, relating to bodily harm, was. Under the Children (Criminal Proceedings) Act (CCP Act), the NSW Children’s Court has jurisdiction to hear and determine proceedings in respect of any offence other than a serious children’s indictable offence. At the committal hearing at the Bidura Children’s Court in Glebe in April 2005, the Director of Public Prosecutions proceeded only on the second offence and the magistrate committed PM for trial at the District Court. The DPP filed an indictment containing only the second charge. In March 2006, the DPP filed a fresh indictment containing three counts which were the first charge and two alternative counts: having sexual intercourse with a girl aged between 14 and 16, and assaulting a girl under 16 at the same time committing an act of indecency on her. None of the charges was a serious children’s indictable offence. Shortly after the District Court trial began, the jury sent a note to Judge John McGuire asking why PM was being tried as an adult and PM submitted that the proceedings should be remitted to the Children’s Court. Judge McGuire concluded that, because the Children’s Court had not said that the charges may not be dealt with summarily, the District Court had no jurisdiction to deal with the charges and he remitted the matter to the Children’s Court. The DPP appealed to the Court of Criminal Appeal which, by majority, allowed the appeal and set aside Judge McGuire’s order. PM appealed to the High Court. He argued that all offences not defined as serious children’s indictable offences are required to be dealt with summarily and the District Court had no jurisdiction to hear and determine the charges because he had not asked for a jury trial and the Children’s Court had not decided that it could not properly dispose of the particular charges in a summary manner. The High Court unanimously dismissed the appeal. It held that, while section 44 of the CCP Act gives the District Court power to remit a matter to the Children’s Court if the District Court is satisfied that it does not have jurisdiction to deal with the charge, nothing in the Act excludes or limits its jurisdiction in respect of indictable offences (crimes that warrant a trial by jury). Criminal proceedings against PM were commenced appropriately in the District Court. An indictment that lays charges different from those on which they were committed for trial does not affect the jurisdiction of the court in which the indictment is filed. The CCP Act does not give the Children’s Court exclusive jurisdiction over indictable offences that not are serious children’s indictable offences. The condition for exercising the power under section 44 is not satisfied and the District Court had jurisdiction to deal with the charges against PM. |
HIGH COURT OF AUSTRALIA 22 June 2011 DASREEF PTY LIMITED v HAWCHAR [2011] HCA 21 Today the High Court upheld findings by the Dust Diseases Tribunal of New South Wales ("the Tribunal") and the Court of Appeal of New South Wales that a company (Dasreef Pty Limited) was liable to pay compensation to one of its former workers (Mr Hawchar) for silicosis. The High Court found that the Court of Appeal had erred in rejecting complaints by Dasreef about the admission of opinion evidence by the Tribunal and the Tribunal's reliance on its own experience as a "specialist tribunal". However, the High Court held that in light of other uncontradicted evidence before the Tribunal the Court of Appeal was right to uphold the finding that Dasreef was liable to Mr Hawchar. Mr Hawchar worked for Dasreef as a labourer and stonemason over a period of around five and a half years between 1999 and 2005. He was diagnosed with early stage silicosis in 2006. He brought proceedings in the Tribunal, claiming that he had been exposed to unsafe levels of silica dust while working for Dasreef. Mr Hawchar relied on opinion evidence from Dr Kenneth Basden, a chartered chemist, chartered professional engineer and retired academic. At the time Mr Hawchar was working for Dasreef, a standard prescribing the maximum permitted exposure to respirable silica was applicable. In his report, Dr Basden spoke of an operator of an angle grinder cutting sandstone being exposed to levels of silica dust "of the order of a thousand or more times" the prescribed maximum. The Tribunal and the Court of Appeal took this evidence as expressing an opinion about the numerical or quantitative level of exposure to respirable silica encountered by Mr Hawchar, in the sense that it could form the basis of a calculation of the level of exposure. Section 79(1) of the Evidence Act 1995 (NSW) ("the Evidence Act") provides that "[i]f a person has specialised knowledge based on the person's training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge." The "opinion rule" contained in s 76(1) of the Evidence Act provides that "[e]vidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed." For a witness to give admissible evidence of an opinion about the quantitative level of Mr Hawchar's exposure in the conditions under which he worked it would have to be shown that the witness had specialised knowledge based on their training, study or experience that permitted them to measure or estimate such a figure and that the opinion about the level of exposure was wholly or substantially based on that knowledge. In this case, Dr Basden did not give evidence asserting that his training, study or experience permitted him to provide anything beyond a "ballpark" figure estimating the amount of respirable silica dust to which a worker, when cutting stone with an angle grinder, would be exposed. The witness had seen an angle grinder used in that way only once before. He gave no evidence that he had ever measured, or sought to calculate, the amount of respirable dust to which such an operator would be exposed. The evidence was not admissible to establish the numerical or quantitative level of exposure. The Tribunal also stated in its reasons that it was, as a "specialist tribunal", permitted to take into account its "experience" that silicosis is "usually caused by very high levels of silica exposure" in determining what caused Mr Hawchar's silicosis. The Dust Diseases Tribunal Act 1989 (NSW) provided that, subject to specific exceptions in that Act or the Dust Diseases Tribunal Rules (NSW), proceedings in the Tribunal are governed by the rules of evidence. The High Court held that no exception was engaged in this case and that the Tribunal therefore erred in taking its "experience" into account in determining the cause of Mr Hawchar's silicosis. The Court of Appeal had erred in reaching the same conclusion as the Tribunal. Notwithstanding the findings of error in the approach of the Tribunal and the Court of Appeal, the High Court dismissed Dasreef's appeal. It held that, in light of the undisputed expert evidence that Mr Hawchar was suffering silicosis, evidence as to the cause of the silicosis and the short latency of the disease, and evidence of readily available means of avoiding injury, the Court of Appeal was correct, in the event, to dismiss Dasreef's appeal against the finding of liability. Dasreef was ordered to pay Mr Hawchar's costs. |
HIGH COURT OF AUSTRALIA 15 October 2014 RHIANNON GRAY BY HER TUTOR KATHLEEN ANNE GRAY v RICHARDS [2014] HCA 40 Today the High Court unanimously allowed, in part, an appeal from the Court of Appeal of the Supreme Court of New South Wales, which had held that Ms Gray was not entitled to recover, as a component of a damages award, an amount in respect of the costs associated with managing a lump sum damages award. In 2003, Ms Gray sustained a traumatic brain injury as a result of a collision with a motor vehicle driven by Mr Richards, causing a need for constant care and an incapacity to manage her own affairs. Through her tutor, she commenced proceedings against Mr Richards claiming he was liable in negligence for her loss. Those proceedings were compromised on terms that obliged Mr Richards to pay Ms Gray $10 million ("the compromise monies"), plus an amount of damages, to be assessed at a later date, to cover expenses associated with managing the compromise monies ("the fund management damages"). Subsequently, Ms Gray was declared incapable of managing her own affairs, and a private trustee was appointed to manage her estate. That private trustee charged management fees on the whole of the funds under management, comprising the compromise monies and the fund management damages. There was no suggestion that that arrangement was atypical. In 2011, the Supreme Court of New South Wales determined that the fund management damages should include an amount to offset the cost of managing the fund management damages, and a further amount to offset the cost of managing the fund's predicted future income. Those amounts were awarded on the basis that the fund management damages and the fund's predicted future income would need to be managed, and would therefore attract their own management charges. The Court of Appeal reversed the decision of the primary judge in relevant respects, holding that an amount of damages for the cost of managing the fund management damages and the fund's predicted future income should not be awarded. By special leave, Ms Gray appealed to the High Court. Allowing the appeal in part, the Court held that the Court of Appeal had erred in deciding that no allowance should be made for the cost of managing the fund management damages, but was correct in deciding that no allowance should be made for the cost of managing the fund's predicted future income. |
HIGH COURT OF AUSTRALIA 7 September 2012 BOARD OF BENDIGO REGIONAL INSTITUTE OF TECHNICAL AND FURTHER EDUCATION v GREGORY PAUL BARCLAY & ANOR [2012] HCA 32 Today the High Court allowed an appeal by the Bendigo Regional Institute of Technical and Further Education ("BRIT") from a decision of the Full Court of the Federal Court of Australia. The High Court held that BRIT's Chief Executive Officer, Dr Louise Harvey, had not taken adverse action against the first respondent, Mr Gregory Barclay, for a reason prohibited by the Fair Work Act 2009 (Cth) ("the Act"). Mr Barclay was an employee of BRIT and an officer of the second respondent, the Australian Education Union ("the AEU"). On 29 January 2010, Mr Barclay sent an email to all members of the AEU employed at BRIT. The email noted allegations of serious misconduct by unnamed persons at BRIT, who were said to have been involved in the production of false or fraudulent documents in connection with an upcoming audit. Mr Barclay did not report the allegations of misconduct to BRIT management when he became aware of them, and he did not provide details of the allegations to management when asked to do so. On 2 February 2010 Dr Harvey handed a letter to Mr Barclay requiring him to show cause why he should not be disciplined for this conduct. Dr Harvey suspended Mr Barclay on full pay pending a disciplinary investigation. Section 346 of the Act prohibits an employer from taking adverse action against an employee because the employee "is ... an officer or member of an industrial association" or "engages ... in industrial activity". Adverse action includes dismissing an employee and altering the position of an employee to the employee's prejudice. Mr Barclay and the AEU applied to the Federal Court for a declaration that BRIT had contravened s 346 of the Act. Dr Harvey gave evidence that she had not taken adverse action against Mr Barclay because of his industrial activities or affiliation, but because of the inappropriate way in which he had raised the allegations of serious misconduct. The trial judge accepted Dr Harvey's evidence that she had not taken the adverse action for a prohibited reason, and dismissed the application. Mr Barclay and the AEU appealed to the Full Court of the Federal Court which, by majority, allowed the appeal. By special leave, BRIT appealed to the High Court. The High Court unanimously allowed the appeal. The Court held that Dr Harvey's evidence, which had been accepted by the trial judge and had not been challenged before the Full Court, established that the adverse action taken against Mr Barclay had not been for a prohibited reason. |
HIGH COURT OF AUSTRALIA 19 May 2004 GAS v THE QUEEN SJK v THE QUEEN The High Court of Australia today upheld the increased sentences imposed by the Victorian Court of Appeal on two youths who pleaded guilty to the manslaughter of an elderly woman during a robbery of her home. It unanimously dismissed the youths’ appeals against the new sentences. The victim, aged 73, was found dead in her Seaford, Melbourne, home on 16 October 2000 where she lived with her brain-damaged son. GAS and SJK were aged 16 and 15 respectively. SJK knew the son and was friends with two of the victim’s grandchildren. GAS and SJK knew the victim kept large amounts of cash for her son’s shopping expeditions and knew the son left doors open at night. They had previously stolen her handbag from beside her bed during the night. SJK told police that on the later occasion the victim woke up and GAS attacked her, appearing to break her neck. GAS denied being at the house. The victim’s death was caused by strangulation. She had also been beaten around the head and body, had three fractured ribs and had been sexually assaulted. GAS and SJK both pleaded guilty when the original charge of murder was changed to manslaughter. The prosecutor told the Court it would be impossible to say which one killed the victim, so each should be sentenced as an aider and abettor rather than as a principal offender. Justice Bernard Bongiorno sentenced each to six years’ jail with a four-year non-parole period. The Director of Public Prosecutions appealed on the ground that the sentences were manifestly inadequate. The DPP argued that Justice Bongiorno had given undue weight to the offenders’ youth and to the prospect of rehabilitation and fell into error by allowing too great a reduction in sentence for aiding and abetting. He argued that in manslaughter of this type little, if any, disparity between being a principal and being an aider and abettor was justified. The Court of Appeal upheld all the DPP’s submissions and increased each sentence to nine years with a six-year non-parole period. GAS and SJK appealed to the High Court on the ground that the Court of Appeal erred in allowing the DPP to conduct his appeal in a manner said to be contrary to a plea agreement between the Crown and the two offenders. They objected to the DPP arguing there was little difference between a principal offender and an aider and abettor in this case. The High Court held that the Court of Appeal was right to accept that this was an extremely serious manslaughter case, occurring in circumstances of extreme aggravation, including night-time home invasion, taking advantage of knowledge from the handicapped son, robbery, and a vicious attack including sexual assault on an elderly woman. The Court held that it was not within the capacity of the parties to agree that each offender receive a substantially lesser sentence than a principal. It held that aiders and abettors were not always substantially less culpable than principal offenders and that the error was in their original sentencing. |
HIGH COURT OF AUSTRALIA Public Information Officer 8 November 2007 MATTHEW JAMES ELLIOTT v THE QUEEN BRONSON MATTHEW BLESSINGTON v THE QUEEN The High Court of Australia today refused Mr Elliott and Mr Blessington leave to reopen their 1992 appeal and held that a recommendation that they never be released did not give them grounds to appeal against their life sentences. The two men, along with Stephen Jamieson, were convicted in the NSW Supreme Court in 1990 in relation to the abduction, rape and murder of 20-year-old bank teller Janine Balding in Sydney on 8 September 1988. Mr Elliott was 16, Mr Blessington 14, and Mr Jamieson 22 at the time of the murder. Justice Peter Newman jailed the three for life and recommended that they never be released. At the time, such a recommendation had no legal effect. The Court of Criminal Appeal (CCA) in 1992 dismissed appeals by Mr Elliott and Mr Blessington against the severity of their sentences. The final orders made those appeals were not perfected (properly finalised), and in 2006, they brought another appeal to the CCA in which they sought to have the sentences imposed by Justice Newman quashed and to be resentenced in light of subsequent changes to sentencing laws. The CCA dismissed the appeal, but Justice David Kirby, in dissent, would have resentenced them to 28 years’ jail with a non-parole period of 21 years. They appealed to the High Court. Mr Elliott and Mr Blessington argued that Justice Newman’s recommendation had legal effect upon their punishment and it could then have been the subject of an appeal against sentence. They also argued that, in any event, the treatment of the recommendation by later legislation gave it the status of an order made by the trial court against which they could appeal. The High Court unanimously dismissed their appeals. It held that the non-release recommendation did not have the character of an order by the trial court against which an appeal against sentence would lie. The Court also rejected the submission regarding the effect of subsequent legislation. Any subsequent legal effect resulting from Justice Newman’s recommendation was a matter of legislation, not judicial power. The High Court held that the recommendation never was and did not subsequently acquire the character of an order made by the trial court, with the result that the CCA was correct to dismiss the 2006 appeal. Although the orders made in the 1992 appeal had not been perfected, the High Court held that the CCA was correct to refuse to grant leave to reopen the 1992 decision. Subsequent legislation affecting the position of Mr Elliott and Mr Blessington did not create any miscarriage of justice in the 1992 CCA decision which would call for interference in that decision. The 1992 decision did not proceed upon any misapprehension of the relevant law, and there was no other reason to reopen the case. |
HIGH COURT OF AUSTRALIA 7 October 2004 RE KIT WOOLLEY, MANAGER OF THE BAXTER IMMIGRATION DETENTION CENTRE, AND THE HONOURABLE AMANDA VANSTONE, MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS; EX PARTE APPLICANTS M276/2003 AND GS AS THEIR NEXT FRIEND The detention of asylum seeker children was lawful, the High Court of Australia unanimously held today. The Court dismissed an application for orders for habeas corpus, prohibition and injunction to end the detention of four Afghan children. The children, aged between seven and 15 when the application was filed in October 2003, their parents and an adult brother arrived in Australia from Afghanistan in January 2001. The family had been detained in the Woomera then Baxter detention centres but have been released into the community since the appeal hearing. The father, GS, applied for a protection visa and the children were included as dependents. The Immigration Department and the Refugee Review Tribunal refused the application. The children sought a writ of habeas corpus requiring Mr Woolley to release them, and either a writ of prohibition or an injunction to prohibit or restrain the Minister from detaining or continuing to detain them. The Court held that it was within the power of the Commonwealth Parliament to legislate for the detention of children as well as adults. It held that sections 189 and 196 of the Migration Act do not distinguish between unlawful non-citizens who are above and below the age of 18 years and other provisions of the Act contemplate the presence of children in detention centres. The Court also rejected the contention that the Act was invalid because children lacked the capacity to request their removal from Australia. The Court held that the discretion to request departure was vested in parents and guardians and that some children would be mature enough to make such a request for themselves. |
HIGH COURT OF AUSTRALIA 12 June 2019 AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION v LINDSAY KOBELT [2019] HCA 18 Today the High Court, by majority, dismissed an appeal from the Full Court of the Federal Court of Australia. The majority held that the respondent's provision of "book-up" credit did not contravene the prohibition on unconscionable conduct in s 12CB(1) of the Australian Securities and Investments Commission Act 2001 (Cth). The respondent operated a general store in Mintabie, South Australia. He sold goods including food, groceries, fuel and second-hand cars. Almost all of the respondent's customers were Anangu persons who resided predominantly in two remote communities. The Anangu customers were vulnerable due to the remoteness of their communities, their impoverishment and the limitations on their education and financial literacy. The respondent supplied credit to his Anangu customers using a system of credit known as "book-up", under which payment for goods was deferred in whole or in part subject to the respondent retaining the customer's debit card and personal identification number ("PIN") linked to the customer's account into which wages or Centrelink payments were credited. The respondent would then use the debit card and PIN to withdraw the whole or nearly the whole of the wages or Centrelink payments shortly after they were credited, so as to prevent the customer having any practical opportunity to access the monies in other ways. At least 50 per cent of the withdrawn funds were applied to reduce the customer's indebtedness to the general store, and the remainder was held in the respondent's account and informally made available to the customer for the provision of future goods and services. The withdrawal of funds was authorised by the customers, who understood the basic elements of the book-up system. Anthropological evidence suggested that Anangu customers entrusted the respondent with their debit cards to enable them to exercise choice about what was in their own interests. Several customers reported that they were supportive of the book-up system and the respondent's business. For many, book-up was the only means by which they could purchase a vehicle or access credit. Further, the respondent's retention of the whole of the monies credited to the customers' accounts could protect them from a cultural practice of "humbugging" or "demand sharing", which required them to share resources with certain categories of kin. Book-up credit also ameliorated the "boom and bust" cycle of expenditure and allowed the Anangu customers to buy food between pay days. With two exceptions, the Anangu witnesses considered that the respondent had treated them well. Section 12CB(1) of the Act relevantly provided that a person must not, in trade or commerce and in connection with the supply of financial services, engage in conduct that is, in all the circumstances, unconscionable. It was accepted that, at all relevant times, s 12CB(1) was capable of applying to a system of conduct or pattern of behaviour, whether or not a particular individual was identified as having been disadvantaged by the conduct or behaviour. The sole issue was whether the respondent's provision of book-up credit was, in all the circumstances, unconscionable. The primary judge found that the respondent's conduct was unconscionable as the respondent had chosen to maintain a system that, while it provided some benefits to Anangu customers, took advantage of their vulnerability to "tie" them to his store. On appeal, the Full Court of the Federal Court concluded that the respondent's conduct was not unconscionable. By grant of special leave, the appellant appealed to the High Court. A majority of the Court held that the respondent's conduct was not unconscionable. The majority held that, although the book-up system rendered the customers more vulnerable to exploitation, no feature of the respondent's conduct exploited or otherwise took advantage of the Anangu customers' vulnerability. The basic elements of the book-up system were also understood and voluntarily accepted by the Anangu customers. The Anangu customers' acceptance of the terms on which book-up credit was supplied was not the product of their lack of financial literacy, but rather reflected aspects of Anangu culture not found in mainstream Australian society. |
HIGH COURT OF AUSTRALIA 18 June 2003 DARREN GIFFORD v STRANG PATRICK STEVEDORING PTY LTD KELLY GIFFORD v STRANG PATRICK STEVEDORING PTY LTD MATTHEW GIFFORD v STRANG PATRICK STEVEDORING PTY LTD An employer owed a duty of care to a dead worker’s children to guard against nervous shock to them as a result of their father’s death, the High Court of Australia held today. Barry Gifford, a wharf labourer and wharf clerk with Strang Patrick Stevedoring, was killed in a forklift accident at Sydney’s Darling Harbour on June 14, 1990. His family was told of his death later that day and did not see his disfigured body. Strang Patrick admitted negligence causing Mr Gifford’s death. The issue was whether Strang Patrick owed a duty of care to the children, who brought claims for damages for negligently inflicted psychiatric injury. The children’s claim they suffered psychiatric injury has not yet been determined. The New South Wales District Court dismissed the children’s claims in 1999, holding that under section 4 of the Law Reform (Miscellaneous Provisions) Act 1944, Strang Patrick was under no liability for their alleged nervous shock because Mr Gifford had not been killed, injured or put in peril within their sight or hearing. The NSW Court of Appeal in 2001 concluded that section 4 did not exclude liability at common law, but it held that because the children did not directly perceive the event resulting in their father’s death or its aftermath there was no duty of care at common law. After the Court of Appeal decision, the High Court handed down its decision in Annetts v Australian Stations Pty Ltd, in which it held that the parents of a teenage jackaroo who died in the Western Australian desert, could claim for nervous shock upon hearing of their son James’s death. Mr and Mrs Annetts also had no direct perception of an incident or its aftermath. The High Court held the Gifford children’s claims would need to be reconsidered in light of the Annetts decision. The Court held that as an employer Strang Patrick was under a duty of care to Mr Gifford. It held that Strang Patrick also owed his children a duty of care to take reasonable care to avoid causing them a psychiatric illness as a consequence of their father’s death in the course of his employment. The Court held that section 4 of the Law Reform (Miscellaneous Provisions) Act did not seek to exhaustively define liability and was intended to confer rather than take away rights. The High Court unanimously allowed each appeal and ordered that the children’s claims be remitted to the District Court for determination of whether the children suffered psychiatric injury. |
HIGH COURT OF AUSTRALIA 14 August 2019 NORTHERN TERRITORY OF AUSTRALIA v SOULEYMANE SANGARE [2019] HCA 25 Today the High Court unanimously allowed an appeal from a decision of the Court of Appeal of the Supreme Court of the Northern Territory. The issue was whether, in the exercise of the judicial discretion as to costs, the impecuniosity of the unsuccessful party was a consideration that, without more, could justify a decision to deny the successful party its costs. The respondent is a citizen of Guinea who arrived in Australia under a Belgian passport belonging to his brother. Upon arrival he unsuccessfully applied for a protection visa. The Northern Territory Department of Infrastructure ("the Department") employed the respondent on a temporary basis as a civil engineer, and agreed to sponsor him under a skilled migration scheme run by the Commonwealth Government. As part of that scheme, the respondent was required to apply for and obtain the appropriate visa. The respondent applied for a temporary work visa but was advised that his application was invalid because he had previously been refused a protection visa. The respondent sought expressions of support for his application from the Minister of the Department. The Minister requested that officers of the Department brief him on the respondent's request. The Minister was provided with a briefing note which, according to the respondent, contained material fabricated to make it appear that he had provided false and misleading information regarding his immigration status and to make it appear that he was a dishonest person of bad character. The respondent commenced proceedings against the appellant for defamation in the Local Court of the Northern Territory. The proceedings were transferred to the Supreme Court of the Northern Territory as the respondent sought damages in the sum of $5 million. The respondent was unsuccessful at first instance and the Court of Appeal dismissed the respondent's appeal. The appellant, which had been wholly successful on appeal and at trial, sought an order that the respondent pay its costs of the trial and the appeal. The Court of Appeal acknowledged that customarily, in such circumstances, an order for costs would be made on the basis that costs should follow the event, but declined to make an order for costs on the basis that such an award would likely be futile because of the respondent's impecuniosity. By grant of special leave, the appellant appealed to the High Court. The High Court observed that a guiding principle by reference to which the discretion to award costs should be exercised is that the successful party is generally entitled to his or her costs by way of indemnity against the expense of litigation that should not, in justice, have been visited upon that party. In the present case, there had been no conduct on the part of the appellant that might have weighed against the exercise of the discretion in its favour. The Court, noting that the impecuniosity of a defendant wrongdoer is not a reason for declining to order the payment of damages found to be due to an injured plaintiff, held that it was likewise erroneous to decline to make an order for costs because it was perceived that the debt might not be paid. |
HIGH COURT OF AUSTRALIA 8 May 2013 MINISTER FOR IMMIGRATION AND CITIZENSHIP v XIUJUAN LI & ANOR [2013] HCA 18 Today the High Court unanimously dismissed an appeal from a decision of the Full Court of the Federal Court of Australia, which held that a refusal by the Migration Review Tribunal ("the Tribunal") to adjourn review proceedings was unreasonable. The first respondent, Ms Xiujuan Li, was refused a skilled overseas student residence visa by a delegate of the Minister for Immigration and Citizenship ("the Minister") on the basis that some of the employment history provided to support the assessment of her relevant skills was not genuine. Ms Li applied to the Tribunal for a review of the delegate's decision. She also applied for a fresh skills assessment. Upon obtaining that assessment, Ms Li's migration agent informed the Tribunal that it was unfavourable but explained that because fundamental errors had been made in it, Ms Li was confident of succeeding on her application to the assessing authority for a review. The migration agent requested the Tribunal delay making a final decision on Ms Li's review application until the skills assessment review was finalised. The Tribunal refused that request. It considered that Ms Li had been provided with enough opportunities to present her case and was not prepared to delay any further. The Tribunal found that, because the first skills assessment had been affected by fraud, the relevant visa criterion was not met. The delegate's decision was affirmed. Ms Li successfully applied for review of the Tribunal's decision to the Federal Magistrates Court of Australia. Burnett FM considered that the Tribunal's decision to proceed was unreasonable in circumstances where the review of the second skills assessment was the only outstanding matter and where it could be inferred that Ms Li was not attempting to deliberately delay a decision in her case. The Full Court of the Federal Court unanimously dismissed the Minister's appeal. Greenwood and Logan JJ held that the Tribunal had exercised its discretion to adjourn, pursuant to s 363(1)(b) of the Migration Act 1958 (Cth), in an unreasonable manner. The Minister appealed by special leave to the High Court. The High Court held that the Tribunal's exercise of the discretion under s 363(1)(b) was unreasonable. The Tribunal's reasons failed to identify any consideration weighing in favour of the abrupt conclusion it brought to the review and none was suggested by the Minister on the appeal. The failure by the Tribunal to discharge its function under s 363(1)(b) of the Migration Act according to law meant that the Tribunal had acted beyond its jurisdiction in affirming the delegate's decision. |
HIGH COURT OF AUSTRALIA 13 September 2017 STEPHEN JOHN HAMRA v THE QUEEN [2017] HCA 38 Today the High Court dismissed an appeal from a decision of the Court of Criminal Appeal of the Supreme Court of South Australia. The appellant was charged with an offence of persistent sexual exploitation of a child contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA). Section 50(1) creates an offence where an adult person, "over a period of not less than 3 days, commits more than 1 act of sexual exploitation of a particular child under the prescribed age". Section 50(2) provides that "an act of sexual exploitation" is an act of a kind that could be the subject of a charge of a sexual offence, if it were able to be properly particularised. Section 50(4) provides that a charge under s 50(1) must allege with sufficient particularity the period during which the acts of sexual exploitation allegedly occurred and the alleged conduct comprising the acts of sexual exploitation. The appellant was tried by a judge alone in the District Court of South Australia. Following the close of the prosecution case, the appellant submitted that there was no case to answer. The trial judge accepted this submission and delivered a verdict of not guilty. The trial judge held that the complainant had been unable to relate the alleged acts of sexual exploitation to any particular occasion, circumstance, or event beyond "what typically or routinely or generally occurred", so that it was impossible to identify two or more of the requisite acts. The prosecution appealed to the Full Court of the Supreme Court of South Australia, sitting as the Court of Criminal Appeal. The Court of Criminal Appeal allowed the appeal, and remitted the matter for retrial. By grant of special leave, the appellant appealed to the High Court on the grounds that the Court of Criminal Appeal had erred by (i) concluding that there was a case to answer, and (ii) failing to address the appellant's submission that permission to appeal should not be granted on the basis of, among other things, double jeopardy considerations. The High Court rejected both grounds of appeal. The Court unanimously held that although s 50(1) requires a jury, or judge sitting alone, to identify two or more acts of sexual exploitation, proof of the offence does not require evidence which allows acts of sexual exploitation to be delineated by reference to differentiating circumstances. It would, for example, be sufficient if the jury (or judge in a trial by judge alone) accepted that an act of sexual exploitation was committed every day over a two week period without any further differentiation of those occasions and deduced from that evidence that two or more acts must have occurred over a period of "not less than 3 days". The Court also held that although the majority of the Court of Criminal Appeal did not expressly give reasons for why permission to appeal should be granted, it was clear that the issue was considered and decided. Nor did the majority err by failing expressly to refer to double jeopardy as a factor weighing against the consideration of whether to grant permission to appeal to correct an error of law. The appeal was dismissed. |
HIGH COURT OF AUSTRALIA 5 June 2013 THE STATE OF NEW SOUTH WALES v GREGORY WAYNE KABLE [2013] HCA 26 Today the High Court unanimously allowed an appeal by the State of New South Wales and held that a detention order made by a judge of the Supreme Court of New South Wales under legislation later held to be unconstitutional was a defence to a claim for false imprisonment. The order was held to be valid until it was set aside. Mr Gregory Wayne Kable was detained in custody for six months in 1995 pursuant to an order of the Supreme Court made under s 9 of the Community Protection Act 1994 (NSW) ("the Community Protection Act"). Mr Kable unsuccessfully appealed against the detention order to the Court of Appeal. After Mr Kable was released from detention, he successfully appealed to the High Court. The High Court ordered that the detention order be set aside on the basis that the Community Protection Act was unconstitutional and was therefore invalid. Following the decision of the High Court setting aside the detention order, Mr Kable commenced proceedings in the Supreme Court, ultimately claiming damages against the State for abuse of process, false imprisonment and malicious prosecution. A number of preliminary questions were decided by the primary judge against Mr Kable and judgment was entered for the State. Mr Kable appealed to the Court of Appeal. That Court allowed the appeal in part, holding that Mr Kable should have judgment against the State for damages to be assessed on his claim for false imprisonment. By special leave, the State appealed to the High Court. The Court unanimously allowed the appeal, and held that the detention order was valid until set aside. It had therefore provided lawful authority for Mr Kable's detention. The primary judge's orders dismissing Mr Kable's claims were reinstated. |
HIGH COURT OF AUSTRALIA 3 May 2017 PLAINTIFF M96A/2016 & ANOR v COMMONWEALTH OF AUSTRALIA & ANOR [2017] HCA 16 Today the High Court unanimously held that ss 189 and 196 of the Migration Act 1958 (Cth) ("the Act") validly authorised the detention of unlawful non-citizens who were brought to Australia from a regional processing country for a temporary purpose. In August 2013, the plaintiffs, a mother and her daughter, arrived in Australia at Christmas Island. As "unauthorised maritime arrivals", they were taken to the Republic of Nauru in February 2014. They claimed to be owed refugee protection. In November 2014, the plaintiffs were brought to Australia for the temporary purpose of medical treatment. They were detained in Darwin and at the Melbourne Immigration Transit Accommodation. In December 2016, they were released after the Minister for Immigration and Border Protection made a residence determination permitting them to reside at a specified place subject to conditions. At all material times, the plaintiffs needed to be in Australia for medical treatment, and had no right to apply for a visa whilst in Australia. By an application for an order to show cause, the plaintiffs challenged the validity of ss 189 and 196 of the Act insofar as those provisions purported to authorise their detention in Australia. The plaintiffs submitted that their detention was unlawful because it was not necessary for a legitimate, non-punitive purpose, and because the duration of their detention was not reasonably capable of objective determination as it was governed only by the question whether and when they no longer needed to be in Australia. The plaintiffs did not challenge the lawfulness of the Commonwealth's act of bringing them to Australia, or the lawfulness of their eventual removal from Australia. The defendants demurred to the whole of the plaintiffs' amended statement of claim, submitting that the detention was authorised by the Act. By an order of a single Justice of the High Court, the demurrer was referred to the Full Court. The Court unanimously allowed the defendants' demurrer on the basis that ss 189 and 196 of the Act validly authorised the plaintiffs' detention whilst they were in Australia. The Court held that the plaintiffs' detention was for a lawful purpose, namely the purpose of removal from Australia. The Court also held that the duration of the plaintiffs' detention was able to be objectively determined at any time and from time to time by reference to various preconditions provided for in the Act, and that the temporal limits of their detention were connected with the purpose of their detention. |
HIGH COURT OF AUSTRALIA 8 August 2018 MINISTER FOR IMMIGRATION AND BORDER PROTECTION v SZVFW & ORS [2018] HCA 30 Today the High Court unanimously held that a decision of the Refugee Review Tribunal ("the Tribunal") to proceed in the absence of the first and second respondents ("the respondents") was not unreasonable, and that the Full Court of the Federal Court of Australia should have set aside a decision of the Federal Circuit Court of Australia which had found the Tribunal's decision to be unreasonable. The respondents sought review by the Tribunal of a decision of a delegate of the appellant ("the Minister") to refuse their application for protection visas. In May 2014, the Tribunal wrote to the respondents, inviting them to provide material or written arguments on the review. In August 2014, the Tribunal invited the respondents to appear before it at a hearing. The respondents did not contact the Tribunal or attend the hearing. Section 426A(1) of the Migration Act 1958 (Cth) provided that, if an applicant for review was invited to appear before the Tribunal and failed to so appear, the Tribunal could proceed to make a decision on the review without taking further action to allow or enable the applicant to appear before it. The Tribunal, relying on s 426A(1), proceeded to determine the review application, affirming the delegate's decision to refuse the protection visas. The respondents sought judicial review of the Tribunal's decision to proceed in their absence. The primary judge held that the Tribunal's decision to proceed to determine the review application was legally unreasonable, because the Tribunal ought to have taken some further action to allow or enable the respondents to appear before proceeding to its decision on the review. On appeal, the Full Court of the Federal Court upheld the primary judge's decision, holding that the Minister was required to demonstrate that the primary judge's evaluation of the legal unreasonableness ground involved appealable error of fact or law akin to that required in appeals from discretionary judgments (which are subject to the principles explained in House v The King (1936) 55 CLR 499). Such error not having been demonstrated, the Full Court dismissed the appeal. By grant of special leave, the Minister appealed to the High Court. The Court unanimously allowed the appeal. Principles analogous to those stated in House v The King had no application to an appeal by way of rehearing from a judicial review of an administrative decision on the ground that the decision was legally unreasonable. Rather, the Full Court of the Federal Court was required to examine for itself the administrative decision of the Tribunal to determine whether the primary judge was correct to conclude that the decision was unreasonable. The High Court unanimously held that, in the circumstances of the respondents' failure to respond to the Tribunal's invitations, and having regard to the statutory context of s 426A(1), the Tribunal's decision to proceed in the absence of the respondents was not unreasonable. |
HIGH COURT OF AUSTRALIA Public Information Officer 27 February 2007 LEICHHARDT MUNICIPAL COUNCIL v LESLIE MONTGOMERY Roads authorities, such as councils, do not have an automatic liability for the negligent behaviour of employees of independent roadworks contractors, the High Court of Australia held today. Leichhardt Council engaged Roan Constructions to upgrade a footpath on Parramatta Road in Sydney. Work was carried out between 7.30pm and 5.30am. Carpet was placed over a Telstra pit with a broken lid. As Mr Montgomery walked with two others on their way to his birthday celebration on 7 April 2001 the lid gave way and he fell into the pit, seriously injuring one knee. He sued both Roan and the Council. The claim against Roan was settled for $50,000. After a trial in the New South Wales District Court, Mr Montgomery was awarded damages of $264,450.75 in damages against the Council, minus the $50,000 already received. Both the District Court and the NSW Court of Appeal accepted that the Council owed Mr Montgomery a non-delegable duty of care and that that duty had been breached. The Court of Appeal agreed with the primary judge that, there having been negligence on the part of Roan’s employees, the Council was liable without any need for Mr Montgomery to show fault on the part of Council officers. The Council was granted leave to appeal to the High Court on condition that it paid the costs of the appeal. The Court unanimously allowed the appeal. It held that the Council did not owe Mr Montgomery a non-delegable duty of care. A non-delegable duty of care when an independent contractor was engaged was not supported by statute, policy or recent High Court cases. Instead, the Council’s duty was the ordinary duty to take reasonable care to prevent injury. The NSW Roads Act did not contain any express or implied requirement that roads authorities undertake road construction and maintenance only through their own employees, and use of contractors was common. The Court held that a special responsibility or duty to ensure reasonable care was taken by an independent contractor and the contractor’s employees went beyond the general duty to act reasonably in exercising prudent oversight of what the contractor does. It was implausible to impose a duty on the Council to ensure that such carelessness as placing carpet over the broken pit lid did not occur, regardless of whether the Council’s own employees were at fault. The Council had a duty to exercise reasonable care in supervising a contractor or in approving a contractor’s plans and system of work, but it was not automatically liable for the negligence of an independent contractor’s employees. The Court held that a line of Court of Appeal decisions to the contrary should be overruled. As the appeal was confined to the issue of whether the Council owed a non-delegable duty of care, and there was an unresolved allegation of lack of care on the part of Council officers, the Court remitted the case to the Court of Appeal to resolve outstanding negligence issues. |
HIGH COURT OF AUSTRALIA 8 March 2012 ALH GROUP PROPERTY HOLDINGS PTY LIMITED v CHIEF COMMISSIONER OF STATE REVENUE [2012] HCA 6 Today the High Court allowed an appeal from the Court of Appeal of the Supreme Court of New South Wales, which had held that ALH Group Property Holdings Pty Limited ("ALH") was not entitled to a refund of stamp duty under s 50(2) of the Duties Act 1997 (NSW) ("the Act"). ALH sought the refund in respect of a cancelled agreement for the purchase of a property at Frenchs Forest, New South Wales. Oakland Glen Pty Limited ("Oakland") was the registered owner of the property at Frenchs Forest. In 2003, a company, later known as Trust Company Fiduciary Services Limited ("Trust"), contracted to purchase the property from Oakland ("the 2003 contract"). In June 2008, Oakland, Trust and ALH executed a deed ("the Deed of Consent") under which, in essence: Trust assigned its rights as purchaser under the 2003 contract to ALH; Oakland consented to the assignment; ALH promised Oakland that it would perform Trust's obligations under the 2003 contract; and Oakland released and discharged Trust from liability under the 2003 contract. In October 2008, the parties entered into a further deed ("the Deed of Termination") which, as rectified, cancelled the Deed of Consent. Oakland and ALH executed a new contract for the sale of the property. The primary issue arising from these transactions was whether the Deed of Termination cancelled an "agreement for the sale or transfer of dutiable property", within the meaning of s 50(1) of the Act. Under s 50(1) of the Act, agreements for the sale or transfer of dutiable property that are cancelled are not liable to duty, provided that the Chief Commissioner is satisfied of certain matters. Under s 50(2), if an application for refund is made within certain time limits, the Chief Commissioner must reassess and refund duty that has been paid on an agreement which is not liable to duty. Upon application by ALH for a refund, the Chief Commissioner assessed the Deed of Consent as being liable to duty. ALH objected to the Chief Commissioner's decision, and when its objection was disallowed, appealed to the Supreme Court of New South Wales. A judge of the Supreme Court ordered the Chief Commissioner to refund the duty paid on the Deed of Consent. The Deed of Consent was held to have extinguished the 2003 contract and to have constituted a new agreement, in identical terms to the 2003 contract, between ALH and Oakland. The Court of Appeal allowed the Chief Commissioner's subsequent appeal. It held that no new agreement arose between Oakland and ALH under the Deed of Consent, as the 2003 contract was not expressly rescinded, Oakland did not undertake any new or express obligation to transfer the property to ALH on payment of the balance of the purchase price, and the 2003 contract remained the only source of Oakland's obligation to transfer the property to ALH. By special leave, ALH appealed to the High Court of Australia. The High Court allowed the appeal, with the result that the Chief Commissioner must refund the duty paid by ALH on the Deed of Consent. The High Court held that, properly construed, the Deed of Consent discharged the 2003 contract and substituted a new contract between Oakland and ALH. The High Court rejected a submission that Oakland's obligations as vendor continued to have their source in the 2003 contract, holding that it was necessarily to be implied from the Deed of Consent that Oakland would transfer the property to ALH on payment of the balance of the purchase price. By cancelling the Deed of Consent, the Deed of Termination therefore cancelled an "agreement for the sale or transfer of dutiable property" within the meaning of s 50(1) of the Act. |
HIGH COURT OF AUSTRALIA 5 April 2017 IN THE MATTER OF QUESTIONS REFERRED TO THE COURT OF DISPUTED RETURNS PURSUANT TO SECTION 376 OF THE COMMONWEALTH ELECTORAL ACT 1918 (CTH) CONCERNING MR ROBERT JOHN DAY AO [2017] HCA 14 Today the High Court, sitting as the Court of Disputed Returns, unanimously held that Mr Robert John Day AO was a person who had an "indirect pecuniary interest" in an agreement with the Public Service of the Commonwealth prior to and at the time of the 2016 federal election, and was therefore incapable of being chosen or of sitting as a senator by reason of s 44(v) of the Constitution. On 9 May 2016, the 44th Parliament of the Commonwealth was dissolved and a general election was subsequently held. Mr Day's nomination for the 2016 federal election was declared on 10 June 2016. On 4 August 2016, he was declared re-elected as a senator for South Australia. On 1 December 2015, the Commonwealth entered into a lease agreement with Fullarton Investments Pty Ltd ("Fullarton Investments"), the registered proprietor of premises at 77 Fullarton Road, Kent Town in South Australia ("the Fullarton Road property"), for use by Mr Day as his electorate office. The commencement date of the lease was 1 July 2015. Under the lease, Fullarton Investments was entitled to direct the Commonwealth to pay rent to any person. On 26 February 2016, it directed that rental payments be made to a bank account owned by Mr Day. The Fullarton Road property was previously owned by B & B Day Pty Ltd ("B & B Day") as trustee for the Day Family Trust, a discretionary trust of which Mr Day and his wife were beneficiaries. On 24 April 2014, Fullarton Investments purchased the Fullarton Road property from B & B Day on a vendor finance basis. Fullarton Investments was the trustee of the Fullarton Road Trust, a discretionary trust of which the Day Family Trust was a beneficiary. There was also a loan facility provided by a bank to B & B Day, and loan facilities provided to companies associated with Mr Day. Each loan facility was secured by, among other things, a guarantee given by Mr Day and a mortgage over the Fullarton Road property. Payment of rent by the Commonwealth would facilitate repayment of the purchase price of the Fullarton Road property by Fullarton Investments to B & B Day, which would in turn facilitate repayment by B & B Day of the loan facility, thereby reducing the extent of Mr Day's contingent liability to the bank as guarantor. If the Commonwealth did not pay rent, Fullarton Investments had no other significant source of revenue. On 8 November 2016, the President of the Senate referred five questions to the Court of Disputed Returns. The principal question was whether Mr Day was incapable of being chosen or of sitting as a senator by reason of s 44(v) of the Constitution. The Senate's reference also asked how the resulting vacancy should be filled if Mr Day were found to have been incapable of being chosen or of sitting as a senator. The Court held by majority that there was no requirement that a "pecuniary interest" be a legally enforceable interest, and it was unanimously held that the financial benefit which Mr Day stood to obtain from the Commonwealth performing its obligations to pay rent pursuant to the lease constituted an "indirect pecuniary interest" within the meaning of s 44(v) of the Constitution. By virtue of the direction that the rent be paid into a bank account owned by him, Mr Day was to receive rent directly from the Commonwealth. Therefore he had an expectation of a pecuniary benefit from the lease. A majority of the Court held he was incapable of being chosen or of sitting as a senator from no later than 26 February 2016, when the direction was made. The Court unanimously held that the resulting vacancy should be filled by a special count of the ballot papers. |
HIGH COURT OF AUSTRALIA 11 February 2020 LOVE v COMMONWEALTH OF AUSTRALIA; THOMS v COMMONWEALTH OF AUSTRALIA [2020] HCA 3 Today, the High Court, by majority, answered a question in two special cases to the effect that Aboriginal Australians (understood according to the tripartite test in Mabo v Queensland [No 2] (1992) 175 CLR 1) are not within the reach of the power to make laws with respect to aliens, conferred on the Commonwealth Parliament by s 51(xix) of the Constitution ("the aliens power"). That is the case even if the Aboriginal Australian holds foreign citizenship and is not an Australian citizen under the Australian Citizenship Act 2007 (Cth). The tripartite test requires demonstration of biological descent from an indigenous people together with mutual recognition of the person's membership of the indigenous people by the person and by the elders or other persons enjoying traditional authority among those people. The plaintiffs, Mr Thoms and Mr Love, were both born outside Australia and are not Australian citizens. Mr Thoms was born in New Zealand on 16 October 1988 and became a New Zealand citizen by birth. He has resided permanently in Australia since 23 November 1994. Mr Thoms is a descendant of the Gunggari People through his maternal grandmother. He identifies as a member of that community and is accepted as such by members of the Gunggari People. He is also a common law holder of native title. Mr Love was born on 25 June 1979 in the Independent State of Papua New Guinea. He is a citizen of that country but has been a permanent resident of Australia since 25 December 1984. Mr Love is a descendant, through his paternal great-grandparents, of Aboriginal persons who inhabited Australia prior to European settlement. He identifies as a descendant of the Kamilaroi tribe and is recognised as such by an elder of that tribe. The plaintiffs were sentenced for separate and unrelated offences against the Criminal Code (Qld). After their convictions, the visas of both men were cancelled by delegates of the Minister for Home Affairs under s 501(3A) of the Migration Act 1958 (Cth). They were taken into immigration detention, under s 189 of that Act, on suspicion of being "unlawful non-citizen[s]" and were liable to deportation. In the case of Mr Love, the decision to cancel his visa has since been revoked pursuant to s 501CA(4) of the Migration Act and he has been released from immigration detention. The Commonwealth relied upon the aliens power to support the validity of the Migration Act in its application to Mr Thoms and Mr Love. In their separate reasons, the Justices forming the majority held that it is not open to the Parliament to treat an Aboriginal Australian as an "alien" because the constitutional term does not extend to a person who could not possibly answer the description of "alien" according to the ordinary understanding of the word. Aboriginal Australians have a special cultural, historical and spiritual connection with the territory of Australia, which is central to their traditional laws and customs and which is recognised by the common law. The existence of that connection is inconsistent with holding that an Aboriginal Australian is an alien within the meaning of s 51(xix) of the Constitution. The High Court held, by majority, that as an Aboriginal Australian Mr Thoms is not within the reach of the aliens power. However, the majority was unable to agree, on the facts stated in the special case, as to whether Mr Love has been accepted, by elders or others enjoying traditional authority, as a member of the Kamilaroi tribe. For that reason, the majority was unable to answer the question of whether he is an "alien" within the meaning of s 51(xix). |
HIGH COURT OF AUSTRALIA Public Information Officer 23 April 2008 There was no legal or factual basis for a shorter sentence for a person convicted of possessing a commercial quantity of ecstasy on the ground that ecstasy was less harmful than heroin, the High Court of Australia held today. Mr Adams, an American citizen, was convicted in the Victorian County Court in 2004 of possessing prohibited imports, which were almost 20kg of a mixture containing almost 9kg of MDMA, or ecstasy. He was charged under the Customs Act following the interception of containers shipped from overseas. The trafficable quantity of MDMA was 0.5 grams; that of heroin or cocaine was two grams. The commercial quantity of MDMA was 0.5kg; that of heroin was 1.5kg; that of cocaine 2kg. Offences involving a trafficable quantity of any form of narcotic carry a penalty of up to 25 years’ jail and/or a fine of $500,000. Offences involving commercial quantities carry a maximum penalty of life imprisonment and/or a fine of $750,000. Mr Adams was sentenced to nine years’ jail, on top of 260 days already in custody, with a non-parole period of seven years. In sentencing Mr Adams, Judge Anthony Duckett said that the courts treat ecstasy, for sentencing purposes, as being similar to heroin. Mr Adams argued that this was an error and that he should have been sentenced on the basis that MDMA was less harmful than heroin. He appealed unsuccessfully to the Victorian Court of Appeal. He then appealed to the High Court. Four Justices of the Court dismissed his appeal and the fifth Justice would have revoked special leave to appeal. The Court held that generalisations seeking to differentiate between the evils of the illegal trade in heroin and MDMA could not be sustained by evidence. Furthermore, the Customs Act fixed the penalties for drug importation offences and the courts could not apply a harm-based gradation of penalties that cut across the legislative scheme. There was nothing in the Act, or the evidence, or the available knowledge or opinion which required or permitted a court to sentence on the basis that possessing a commercial quantity of MDMA was in some way less anti-social than possessing a commercial quantity of heroin. The Court held that Mr Adams had failed to demonstrate either a legal or a factual foundation for the contention that he should have been sentenced on the basis that MDMA was less harmful than heroin. |
HIGH COURT OF AUSTRALIA 14 December 2005 NAIS, NAIT AND NAIU v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS AND REFUGEE REVIEW TRIBUNAL A prolonged delay in the determination of a visa application by the Refugee Review Tribunal resulted in procedural unfairness, the High Court of Australia held today. Three Bangladeshi citizens, a husband and wife and their daughter, arrived in Australia in August 1996 and lodged applications for protection visas in January 1997. They claimed they had a well- founded fear of persecution in Bangladesh because the husband was Muslim and the wife Catholic. The Immigration Department refused the application in May 1997 and the family immediately applied to the Refugee Review Tribunal for a review. The parents gave oral evidence at a hearing on 6 May 1998 and sent in further written material. They did not hear from the RRT until 30 November 2001 when the RRT invited the family to attend another hearing on 19 December 2001. The RRT also sought out expert evidence and country information from the Australian High Commission which reported that mixed marriages are readily accepted, although resistance is greater in rural areas, and that if the family accepts a marriage so will the community. On 14 January 2003, the RRT handed down its decision that the family was not entitled to protection visas. It noted that the husband made admissions that certain claims made by him and his wife were fabricated and it suggested that this indicated collusion. The RRT rejected particular incidents of apparent persecution. It accepted that the husband was alienated from his family but that this did not affect his right to remain married or to find work. It held that the couple did not face a real chance of harm and any fears they held were not well-founded. The Federal Court dismissed an application for judicial review of the RRT decision. The family appealed to the Full Court of the Federal Court, which by a 2-1 majority dismissed the appeal. The family then appealed to the High Court. They argued that the delay meant that the RRT could not possibly properly assess and comment fairly on their demeanour by the time it made its decision. The Court, by a 4-2 majority, allowed the appeal. The majority held that the RRT’s decision, which significantly depended on the credibility of the asylum seekers, was not made fairly. The procedure was flawed in a manner likely to affect the RRT’s capacity to make a proper assessment of the family’s sincerity and reliability. When the RRT, without explanation, draws out its procedures to such an extent that its capacity to discharge its statutory obligations is likely to be materially diminished, then a case of procedural unfairness arises. The Court remitted the matter to the RRT for redetermination. |
HIGH COURT OF AUSTRALIA 6 April 2022 COMMISSIONER OF TAXATION v NATALIE CARTER & ORS [2022] HCA 10 Today the High Court unanimously allowed an appeal from a judgment of the Full Court of the Federal Court of Australia concerning the operation of s 97(1) of the Income Tax Assessment Act 1936 (Cth). Section 97(1) relevantly provides that "where a beneficiary of a trust estate who is not under any legal disability is presently entitled to a share of the income of the trust estate ... the assessable income of the beneficiary shall include ... so much of that share of the net income of the trust estate as is attributable to a period when the beneficiary was a resident". The principal question for determination was whether a beneficiary's present entitlement under s 97(1) is to be determined immediately prior to the end of an income year or whether events after the end of the income year may be considered. The respondents were beneficiaries of a trust estate. The trust deed provided that if the trustee did not pay, apply, set aside or accumulate any part of the trust income in a given accounting period, the trustee would hold that income in trust for specified beneficiaries, including the respondents. An accounting period was relevantly defined as a 12-month period ending on 30 June. In this way, the trust deed ensured that in each accounting period, the whole of the trust income was distributed, if not otherwise dealt with. In the 2014 income year, the trustee failed to pay, apply, set aside or accumulate the income of the trust. As a result, one-fifth of the trust income was held on trust for each of the respondents. On 27 October 2015, the appellant, the Commissioner of Taxation ("the Commissioner"), issued an amended assessment to each respondent for the 2014 income year ("the 2014 Assessments") which included as assessable income one-fifth of the trust income on the basis that the respondents were "presently entitled" to that income within the meaning of s 97(1). On 30 September 2016, the respondents disclaimed their interest in the trust income. They subsequently objected to the 2014 Assessments in reliance on the disclaimers. On appeal on a question of law from a decision of the Administrative Appeals Tribunal, the Full Court of the Federal Court relevantly held that the respondents' disclaimers operated retrospectively so as to disapply s 97(1) in respect of the 2014 income year. The High Court held that s 97(1) is directed to the position existing immediately before the end of the income year for the purpose of identifying the beneficiaries who are to be assessed with the income of the trust. The section looks to the right to receive an amount of distributable income, not the receipt of income. Events occurring after the end of the income year cannot disentitle a beneficiary who was "presently entitled" immediately before the end of the income year. The respondents' disclaimers were therefore not effective to retrospectively expunge the rights of the Commissioner against the respondents which were in existence at midnight on 30 June 2014 and which gave rise to the 2014 Assessments. |
HIGH COURT OF AUSTRALIA Public Information Officer 13 December 2007 KOOMPAHTOO LOCAL ABORIGINAL LAND COUNCIL AND TERRY LAWLER v SANPINE PTY LIMITED AND KLALC PROPERTY & INVESTMENT PTY LTD Serious breaches by Sanpine of its administrative obligations under an agreement to develop land justified termination of the contract by the Koompahtoo Local Aboriginal Land Council, the High Court of Australia held today. In 1997, Koompahtoo and Sanpine entered into a joint venture agreement for the development of a large area of land near Morisset, south of Newcastle. Koompahtoo contributed the land, which had been acquired under the NSW Aboriginal Land Rights Act, and Sanpine managed the project. Each party had a 50 per cent interest and Sanpine was also to receive a management fee equal to 25 per cent of the total project costs. Despite accruing costs of more than $2 million, the project did not proceed to rezoning. It involved sensitive environmental issues, was controversial within the Koompahtoo community, and had difficulty attracting finance. A mortgagee took possession in April 2003. In February 2003, Mr Lawler was appointed as administrator. He attempted to obtain from Sanpine information on the financial position of the joint venture, including how money from two lenders had been used. In December 2003, Mr Lawler terminated the joint venture agreement. Sanpine commenced proceedings in the NSW Supreme Court, seeking a declaration that the termination was invalid and the agreement still on foot. Justice Joseph Campbell held that the agreement was validly terminated. He found Sanpine had committed serious breaches of its obligations under the joint venture agreement. Those obligations were categorised as document production and maintenance, banking and spending of money, and failures to maintain proper books. Proper accounts and financial records were never kept, and documentation was lacking to explain or justify significant amounts it claimed to be expenses chargeable to the joint venture, including a payment of more than $183,000 to the wife of a Sanpine controller. Sanpine argued that by reasons of waiver or estoppel Koompahtoo could not complain of these breaches. Justice Campbell rejected this argument and found that the Koompahtoo members of the joint venture’s management committee made no representations on which Sanpine relied concerning non- performance of its obligations. He described the failure to keep books for the joint venture so that annual accounts could be drawn up and audited each year as a gross departure from the terms of the agreement. The NSW Court of Appeal, by majority, allowed an appeal by Sanpine. Koompahtoo appealed to the High Court. The Court unanimously allowed the appeal. It held that the breaches deprived Koompahtoo’s representatives of the capacity to make informed decisions. Sanpine’s breaches went to the root of the contract and justified termination of the contract. |
HIGH COURT OF AUSTRALIA 1 June 2011 JEMENA GAS NETWORKS (NSW) LIMITED v MINE SUBSIDENCE BOARD [2011] HCA 19 Today the High Court allowed an appeal from the Court of Appeal of the Supreme Court of New South Wales regarding the construction of s 12A(1)(b) of the Mine Subsidence Compensation Act 1961 (NSW). By majority, the High Court held that the appellant is entitled, under s 12A(1)(b) of the Act, to an amount from the Mine Subsidence Compensation Fund ("the Fund") to meet the proper and necessary expense of preventing or mitigating cumulative subsidence from approved longwall mining at Mallaty Creek that the appellant reasonably anticipated, based on expert advice, would likely cause damage to its pipeline. The appellant owns and operates a gas pipeline which runs from Moomba to Sydney. The gas pipeline is the main source of natural gas for the Sydney and Newcastle metropolitan areas. The gas pipeline runs underground at the point where it crosses Mallaty Creek and traverses an area of land which is subject to a mining lease held by a subsidiary of BHP Billiton Limited relating to the West Cliff Colliery. The pipeline runs above a series of "panels" (designated areas) proposed, and used, for underground longwall mining. Longwall mining has been taking place in them for some years. Expert consultants predicted in December 2003 that there would be subsidence where the pipeline crosses Mallaty Creek when a certain panel was mined and that the subsidence would increase as subsequent longwall panels were mined. Other expert consultants advised in February 2004 that mitigating works would be needed as a result of future extraction from subsequent longwall panels. Between December 2005 and January 2007, the appellant undertook excavation work to prevent the pipeline being damaged by the predicted subsidence. The cumulative subsidence that eventuated after those works were undertaken broadly corresponded with the predictions of the expert consultants. The Fund, to which colliery proprietors make compulsory contributions pursuant to the Act, is administered by the respondent, the Mine Subsidence Board ("the Board"). Under s 12A(1)(b), owners of improvements on land may make claims for payment from the Fund for proper and necessary expenditure incurred in preventing or mitigating damage to those improvements that, in the opinion of the Board, "the owner could reasonably have anticipated would otherwise have arisen, or could reasonably anticipate would otherwise arise, from a subsidence that has taken place". On 17 July 2007, pursuant to s 12A(1)(b), the appellant made a claim against the Fund for the costs of preventative and mitigatory works performed between December 2005 and January 2007 on the pipeline. The Board considered that the appellant could not make a claim under s 12A(1)(b) of the Act. The Board held that a claim could only be made under that provision if the whole of the subsidence had occurred before the expense of preventative works was incurred. The appellant instituted proceedings in the Land and Environment Court of New South Wales against the Board. That Court held that, assuming that the appellant could establish that the expenses were "proper and necessary", the appellant was not entitled to an amount under s 12A(1)(b) because the Court of Appeal had held in a previous case that no claim could be made unless the whole of the subsidence had occurred before the expense of preventative works was incurred. The appellant appealed to the Court of Appeal, however, the appeal was unanimously dismissed. The appellant appealed to the High Court. By majority, the High Court held that claims under s 12A(1)(b) are not confined to expenditure incurred only once a subsidence has in fact occurred. Rather, claims under s 12A(1)(b) extend to expenditure that, in the opinion of the Board, the owner could reasonably have anticipated would otherwise have arisen, or could reasonably anticipate would otherwise arise, from a subsidence that has taken place prior to that damage arising, even though at the time when the expense is incurred or proposed there has not yet been either subsidence or damage. |
HIGH COURT OF AUSTRALIA 27 June 2013 DIRECTOR OF PUBLIC PROSECUTIONS (CTH) v JM [2013] HCA 30 Today the High Court unanimously held that buying or selling shares on the securities exchange operated by ASX Limited ("the ASX"), for the sole or dominant purpose of creating or maintaining a particular price, created or maintained an "artificial price" for those shares for the purposes of the offence of market manipulation under s 1041A of the Corporations Act 2001 (Cth) ("the Act"). The High Court allowed an appeal by the Commonwealth Director of Public Prosecutions ("CDPP") regarding answers given by the Court of Appeal of the Supreme Court of Victoria to questions of law that arose before JM's trial on charges of 39 counts of market manipulation contrary to s 1041A of the Act and two counts of conspiring with others to commit market manipulation in relation to the trading of shares on the ASX. JM has pleaded not guilty to all charges. Before a jury was empanelled, Weinberg JA, sitting in the Trial Division of the Supreme Court of Victoria, stated a case under s 302 of the Criminal Procedure Act 2009 (Vic) and reserved three questions of law for the Court of Appeal. The questions asked whether the price of a share on the ASX, which had been created or maintained by a transaction carried out for the sole or dominant purpose of creating or maintaining a particular price for the share, was an "artificial price" for the purposes of s 1041A of the Act. The case stated set out the assertions of fact which the CDPP sought to establish at trial. The Court of Appeal held, by majority, that the original questions formulated by Weinberg JA were inappropriate to answer because they were answerable only by reference to disputed facts. The Court of Appeal remitted the case stated to Weinberg JA for amendment of the first question reserved, to ask whether the expression "artificial price" in s 1041A of the Act was used in the sense of a term having a legal signification as opposed to its sense in ordinary English or some non-legal technical sense and, if so, what was its legal signification. The Court of Appeal found that the expression "artificial price" in s 1041A had the legal signification of being market manipulation by conduct of the kind typified by American jurisprudential conceptions of "cornering" and "squeezing". The CDPP sought special leave to appeal to the High Court against the orders made by the Court of Appeal, alleging that the answer given to the reformulated question was founded on a misconstruction of s 1041A of the Act. JM sought special leave to cross-appeal to argue that both the original and reformulated questions were hypothetical questions and that to answer the questions was beyond the judicial power of the Commonwealth. The High Court granted both applications for special leave. The Court allowed the appeal and allowed the cross-appeal in part. The Court held that the original question should have been answered by the Court of Appeal, but that the reformulated question was not a question which arose before JM's trial. The construction of s 1041A of the Act adopted by the Court of Appeal was held to be incorrect. The High Court held the price of a share on the ASX created or maintained by a transaction on the ASX that was carried out for the sole or dominant purpose of creating or maintaining a particular price was an "artificial price" for the purposes of s 1041A. No question concerning the judicial power of the Commonwealth arose. |
HIGH COURT OF AUSTRALIA 13 December 2012 TAHIRI v MINISTER FOR IMMIGRATION AND CITIZENSHIP [2012] HCA 61 Today the High Court held that a delegate of the Minister for Immigration and Citizenship did not err in refusing a combined application for a Subclass 202 Refugee and Humanitarian (Class XB) visa by the plaintiff's mother and her four dependent children. The plaintiff is a citizen of Afghanistan. He arrived unaccompanied in Australia as a 17-year-old and was granted a protection visa. The plaintiff proposed his mother's application for a visa with four of her children as additional applicants. The mother and the four children are citizens of Afghanistan living in Pakistan. The children's father has been missing since 2003. The criteria for granting the combined application included satisfaction of public interest criterion 4015 ("PIC 4015"). PIC 4015 relevantly required the delegate to be satisfied either that the law of the children's home country permitted their removal, or that each person who could lawfully determine where the children were to live consented to the grant of the visa. The delegate found that the children's home country was Afghanistan and was not satisfied that the law of Afghanistan permitted the removal of the children. The delegate also found that the persons who could lawfully determine where the children were to live included the children's father, or (if he was dead) his relatives, and was not satisfied that any of them consented to the grant of the visa. In a proceeding commenced in the original jurisdiction of the Court, the plaintiff sought to have the delegate's decision quashed and the defendant compelled to determine the visa application according to law. Under the rules of the Court, the parties agreed to submit a special case stating questions of law for the opinion of the Full Court. The High Court held that the delegate's factual conclusions were reasonably open and that the plaintiff failed to establish that the delegate proceeded on an incorrect legal understanding of PIC 4015. It also held that although the delegate may have taken into account certain material not disclosed to the plaintiff's mother, that material was not shown to be adverse in any sense requiring its disclosure in accordance with obligations of procedural fairness. |
HIGH COURT OF AUSTRALIA 28 February 2008 RAYMOND FREDERICK AYLES v THE QUEEN Public Information Officer A trial judge’s amendment of the provision under which a person was charged was within power and did not give rise to a miscarriage of justice in the circumstances of the case, the High Court of Australia held today. Mr Ayles was charged with six counts of indecent assault and two counts of buggery while he was an Anglican priest at Para Hills in Adelaide. In the South Australian District Court in June 2006 he pleaded guilty to two counts of indecent assault and not guilty to the other charges, all involving a boy, T, whose family were parishioners. Counts 1 and 2 alleged indecent assault between 24 October 1971 and 2 May 1972 to which Mr Ayles pleaded not guilty. Mr Ayles had asked T to clean his house for pocket money when he touched T’s penis (count 1) and encouraged him to reciprocate (count 2). The prosecutor said T fixed the time as during a short period when his parents separated, about the time he was sitting a high school entry exam. This would have been 1971 when he was 12 years old and Mr Ayles 26. However in his testimony T said he believed he had been 13 and had just started high school. T’s birthday is 2 May 1959. The prosecutor applied to amend counts 1 and 2 (and other counts) to make 1 May 1973 the date marking the end of the period in which the offences occurred. Judge Andrea Simpson, who was sitting without a jury, ordered the amendments. Mr Ayles had been charged under section 70 of the Criminal Law Consolidation Act 1935 (CLCA). It was amended on 9 November 1972 to replace sections 69 to 71 with a single section, section 69. The offences in the period before 9 November 1972 therefore needed to be identified by reference to section 70 and from that date by reference to section 69. In evidence Mr Ayles agreed that the incident that gave rise to counts 1 and 2 occurred but said it happened about October 1973, when T would have been 14. In her written judgment, Judge Simpson amended the end of the period in which count 1 allegedly occurred to 31 October 1973 and changed the relevant provision of the CLCA to section 69. She found Mr Ayles guilty of count 1. He was sentenced to four years’ imprisonment with a two-year non-parole period for the three offences of which he was guilty. Mr Ayles appealed to the SA Court of Criminal Appeal, arguing that Judge Simpson did not have the power to amend the charge without an application from the prosecutor, and that the effect was to substitute a new charge that went beyond the power of amendment. The CCA held that the prosecutor had foreshadowed an application by identifying the provisions she relied upon at the close of her case. Although she should have formally applied for an amendment so submissions could have been heard, Judge Simpson did not need to wait for an application as a judge was responsible for correcting the pleadings. The CCA held that in the circumstances of the case, there was no miscarriage of justice. Mr Ayles appealed to the High Court. The High Court, by a 3-2 majority, dismissed the appeal. The majority held that Judge Simpson’s correction of the provision to section 69 gave effect to the prosecutor’s stated intention and she had not usurped the prosecutor’s role as she he did not decide for herself to add a charge to the indictment. An indictment referring to a statute not in effect at the time of offence was defective but capable of amendment. There was no unfairness or miscarriage of justice. |
HIGH COURT OF AUSTRALIA 8 October 2014 BROOKFIELD MULTIPLEX LTD v OWNERS CORPORATION STRATA PLAN 61288 & ANOR [2014] HCA 36 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 Brookfield, the builder of a strata-titled apartment complex, did not owe a duty of care to the Owners Corporation to avoid causing it economic loss resulting from latent defects in the common property. Brookfield built the complex pursuant to a design and construct contract with a developer who owned the land on which it was built. Upon the registration of a strata plan in relation to the part of the complex which was to be used for serviced apartments, the Owners Corporation was created by operation of law. The common property was vested in the Owners Corporation as manager of the strata scheme and as agent for the owners of the serviced apartments. The design and construct contract contained detailed provisions with respect to the quality of the work to be performed by Brookfield and required Brookfield to remedy defects or omissions in the work within a defined defects liability period. The standard form contract of sale to purchasers of the serviced apartments, annexed to the design and construct contract, conferred on each purchaser specific contractual rights in relation to defects in the property, including the common property. The Owners Corporation commenced proceedings against Brookfield in the Supreme Court of New South Wales to recover damages including the cost of repairing latent defects in the common property of the apartment complex. Brookfield was said to be liable in negligence for breach of a duty to take reasonable care to avoid a reasonably foreseeable economic loss to the Owners Corporation in having to make good the consequences of latent defects caused by the building's defective design and/or construction. The primary judge held that Brookfield did not owe the duty propounded by the Owners Corporation. On appeal, the Court of Appeal unanimously held that Brookfield did owe the Owners Corporation a duty of care, albeit a narrower duty to avoid causing loss resulting from latent defects which were structural or dangerous or which made the serviced apartments uninhabitable. By grant of special leave, Brookfield appealed to the High Court. The Owners Corporation was granted special leave to cross-appeal, and sought orders providing for a wider duty of care than that found by the Court of Appeal. The High Court allowed the appeal, dismissed the cross-appeal, and held that Brookfield did not owe the duty of care propounded by the Owners Corporation or found by the Court of Appeal. |
HIGH COURT OF AUSTRALIA 7 April 2011 [2011] HCA 10 Today the High Court allowed an appeal against a decision of the Court of Appeal of the Supreme Court of Queensland to increase the sentence imposed on Mr Dionne Matthew Lacey following an appeal by the Attorney-General of Queensland. By majority, the High Court held that a legislative provision allowing for appeals against sentence to be made by the Attorney-General did not permit the Court of Appeal to vary a sentence in the absence of demonstrated or inferred error on the part of the original sentencing judge. Mr Lacey was convicted of manslaughter, and sentenced to 10 years imprisonment. The Crown Prosecutor had sought a sentence of 13 years, with a two year deduction for time already served on remand. The trial judge indicated that he would have imposed a sentence of 12 years, but had taken the two years served on remand into account. Mr Lacey appealed against the conviction and sought leave to appeal against his sentence. The Attorney-General appealed against the sentence on the alternative grounds that it was "inadequate" or "manifestly inadequate". Section 669A(1) of the Criminal Code (Qld) empowers the Attorney-General to appeal against any sentence imposed by a trial court, and provides that the court hearing the appeal "may in its unfettered discretion vary the sentence and impose such sentence as to the Court seems proper." In the proceedings before the Court of Appeal, the Solicitor-General (on behalf of the Attorney- General) sought a sentence in the range of 15 to 18 years, before deduction for time on remand. The Court of Appeal dismissed Mr Lacey's appeal against conviction and application for leave to appeal against sentence, and allowed the Attorney-General's appeal. The Court, by majority, increased the sentence to 11 years, holding that the "unfettered discretion" conferred by s 669A(1) required the Court of Appeal to have regard to the sentence below, but come to its own view as to the proper sentence to be imposed. The High Court today held that the Court of Appeal's construction was erroneous. The words of s 669A(1) neither expressly nor by implication defined a jurisdiction which enlivened a general power to vary sentences simply because the Attorney-General chose to appeal. Such a construction would require clear language to that effect. The appellate jurisdiction conferred by the section required error on the part of the sentencing judge to be demonstrated before the appellate court's "unfettered discretion" to vary the sentence arose. The High Court allowed the appeal, and set aside the order of the Court of Appeal, ordering that the appeal to that Court be dismissed. |
HIGH COURT OF AUSTRALIA 10 May 2017 THE QUEEN v STEVEN LAKAMU SIOSIUA AFFORD [2017] HCA 19 Today the High Court held in relation to two appeals that an inference that an accused intended to import a substance contrary to s 307.1(1) of the Criminal Code (Cth) ("the Code") could be drawn from the accused's knowledge or belief that there was a real or significant chance that he or she was importing the substance. The first appeal, Smith v The Queen, involved the importation into Australia of illicit drugs, secreted in golf sets, shoes, containers of vitamins and soap. Although admitting that he had some concerns about the items he had been given by an acquaintance in India, Mr Smith claimed that he had no intention to import the illicit drugs concealed in them. Mr Smith was convicted in the District Court of New South Wales on one count of importing a commercial quantity of a border controlled drug contrary to s 307.1(1) of the Code. He unsuccessfully appealed against conviction to the Court of Criminal Appeal of the Supreme Court of New South Wales on the ground that the trial judge misdirected the jury with respect to the fault element of intent. The second appeal, The Queen v Afford, also involved the importation of illicit drugs. The drugs were found in packages stitched inside the lining of luggage given to Mr Afford by an acquaintance in Manila. Mr Afford denied that he intended to import the illicit drugs and submitted that even if he had been suspicious that the suitcase might contain drugs, such a suspicion could not establish an intention to import the substances. Mr Afford was convicted in the County Court of Victoria on one count of importing a commercial quantity of a border controlled drug contrary to s 307.1(1) of the Code. He successfully appealed to the Court of Appeal of the Supreme Court of Victoria on the grounds that the verdict was unreasonable and that a substantial miscarriage of justice occurred by reason of a misdirection with respect to the fault element of intent. By grants of special leave, the appeals came before the High Court and were heard together. The Court held that the process of inferential reasoning posited in Bahri Kural v The Queen (1987) 162 CLR 502; [1987] HCA 16 is applicable to proof of an intention to import a substance contrary to s 307.1(1) of the Code. Consequently, where it is established that an accused perceived there to be a real or significant chance of a substance being present in an object which the accused brought into Australia, it is open to infer on the basis of all the facts and circumstances of the case that the accused intended to import the substance. It is also appropriate for a trial judge so to direct the jury. A majority of the Court held that the trial judge's directions to the jury were sufficient in both appeals. The Court also held that it was open to the jury to be satisfied of Mr Afford's guilt beyond reasonable doubt. Accordingly, the appeal in Smith v The Queen was dismissed and the appeal in The Queen v Afford was allowed. |
HIGH COURT OF AUSTRALIA 1 May 2013 TAMAR RIVQA BECK v AMIRAM DAVID WEINSTOCK & ORS [2013] HCA 15 Today the High Court unanimously dismissed an appeal by Mrs Tamar Beck regarding whether shares in LW Furniture Consolidated (Aust) Pty Ltd, described as "C" Redeemable Preference Shares (the "C class shares"), were able to be redeemed under the Corporations Act 2001 (Cth). The Court rejected Mrs Beck's argument that the C class shares were not preference shares (and could not be redeemable preference shares) because no ordinary shares or other shares with lesser rights were issued. LW Furniture was incorporated in 1971. Its articles of association provided for several different classes of shares, including C class shares. In 1971, eight C class shares were issued to Mrs Hedy Weinstock. The company issued other preference shares having the same rights as the C class shares, but never issued any ordinary shares. Mrs Weinstock died in 2004 and, after her death, the company sought to redeem the C class shares for one dollar each. As executor of the estate of Mrs Weinstock, Mrs Beck claimed that the C class shares were not redeemable because they were not preference shares. In the Supreme Court of New South Wales, Hamilton AJ held that the C class shares were not validly issued as preference shares because there were no other shares on issue over which they had preference. On appeal, the Court of Appeal held that the C class shares were preference shares and had been validly redeemed. By special leave, Mrs Beck appealed to the High Court. The High Court unanimously dismissed the appeal. The High Court held that the C class shares were preference shares and the redemption of shares was valid. The C class shares were preference shares, as they had rights attached that preferred the holder of those shares to the holder of any ordinary shares in the company on issue when the relevant right was to be examined. |
HIGH COURT OF AUSTRALIA Manager, Public Information 29 July 2009 BACKOFFICE INVESTMENTS PTY LTD & ANOR [2009] HCA 25 Today, the High Court allowed an appeal against an award of damages for misleading or deceptive conduct in connection with the sale of a share representing a half interest in Healthy Water Pty Ltd (the Company). The Court concluded that the evidence did not support the finding by the Court of Appeal of New South Wales that certain pleaded representations had been made or that the purchaser had relied upon misrepresentations about the financial affairs of the Company in making his decision to buy into it. The High Court upheld the Court of Appeal’s decision that the primary judge had erred in making an order for the vendor of the share to buy it back from the purchaser. The vendor, Mr Douglas Campbell, established a business to sell and maintain water filtration systems. Eventually he incorporated the Company to carry on that business, and in 2004 he decided to undertake a capital restructure. Mr Timothy Weeks became interested in the business and in January 2005 Mr Weeks’ company, Backoffice Investments, entered into a share sale agreement (SSA) under which Backoffice purchased one of the two issued shares in the Company from Mr Campbell for $850,000. The relationship between Mr Campbell and Mr Weeks quickly broke down. By consent a provisional liquidator was appointed in April 2005 and on 31 May 2005 the provisional liquidator sold the Company’s assets to another company controlled by Mr Campbell for $196,815. That money was used to pay the Company’s liabilities and the provisional liquidator’s fees and expenses. The Company was left an empty shell and its shares were worthless. On 1 April 2005 Mr Weeks filed a statement of claim against Mr Campbell and the Company alleging numerous causes of action including oppression pursuant to section 232 of the Corporations Act 2001 (Cth), for which he sought an order that Mr Campbell buy back the share; breach of warranties in the SSA, for which he sought damages; and a claim of misleading and deceptive conduct in breach of section 42 of the Fair Trading Act 1987 (NSW), for which he also sought damages. The primary judge allowed Mr Weeks’ oppression claim and ordered Mr Campbell to buy back the Company share for $853,000. The claim for damages for misleading and deceptive conduct failed because the primary judge found that Mr Weeks had not relied on the alleged misrepresentations when he purchased the share in the Company. Her Honour found there had been breach of some of the warranties in the SSA but awarded no damages, given she had made the buy-back order. By majority the New South Wales Court of Appeal allowed Mr Campbell’s appeal against the buy-back order. By a different majority the Court of Appeal found that Mr Campbell had made pre-contractual representations which were misleading and deceptive, and which had been relied on by Mr Weeks when entering into the SSA. The Court of Appeal ordered Mr Campbell to pay damages of $850,000 to Mr Weeks and Backoffice. Two of the judges of the Court of Appeal did not decide whether there had been a breach of any warranties and the third judge agreed with the primary judge’s conclusions concerning breach of warranties but held that only nominal damages were payable. The High Court granted special leave to appeal against the decision of the Court of Appeal. All members of the High Court held that the Court of Appeal had been correct to set aside the primary judge’s buy-back order. However, their Honours considered that the evidence did not support a finding that certain pleaded representations were actually made, or that Mr Weeks and Backoffice would not have purchased a share in the Company had he been aware of the falsity of certain statements made by Mr Campbell concerning the Company’s financial performance. The Court noted that live issues concerning breach of contractual warranties had not been determined by the Court of Appeal. The High Court ordered that the order made by the Court of Appeal setting aside the primary judge’s buy-back order should stand, the orders entering judgment for Backoffice for $850,000 for reliance on misleading and deceptive conduct should be set aside, and issues concerning breach of contractual warranties, and any potential damages arising therefrom, should be remitted to the Court of Appeal. |
HIGH COURT OF AUSTRALIA 15 December 2010 MINISTER FOR IMMIGRATION & CITIZENSHIP v SZJSS & ORS [2010] HCA 48 In reviewing the unsuccessful protection visa application of a Nepalese citizen ("SZJSS"), the Refugee Review Tribunal ("RRT") chose to give "no weight" to certain letters provided by SZJSS which appeared to corroborate some of the assertions made by him in support of his application. The RRT also described the giving of certain oral evidence by him as a "baseless tactic". An application by SZJSS and his wife for judicial review of the decision was dismissed by the Federal Magistrates Court on 11 September 2009. However, the Federal Court allowed an appeal from that decision, and quashed the decision of the RRT. It found that the RRT had fallen into jurisdictional error by failing to give "proper, genuine and realistic consideration" to the letters, and by referring to the giving of certain evidence as a "baseless tactic". The Federal Court also found that the reasons of the RRT gave rise to a reasonable apprehension of bias, by reason of pre- judgment. The High Court today unanimously upheld an appeal by the Minister against the decision of the Federal Court. It found that the weight to be placed on the letters was a matter on which reasonable minds might come to different conclusions, and that the RRT's preference for other evidence could not be said to entail a jurisdictional error. It held further that the RRT's use of the expression "baseless tactic" did not, in the circumstances, give rise to any jurisdictional error. On the question of apprehended bias, the Court found that the RRT's use of the expression "baseless tactic" did not provide any foundation for a contention that the RRT pre-judged a central but contestable issue in the matter. Pursuant to an undertaking given to the Court, the Minister was ordered to pay the costs of the visa applicants. |
HIGH COURT OF AUSTRALIA 10 October 2018 PAUL JOSEPH RODI v THE STATE OF WESTERN AUSTRALIA [2018] HCA 44 Today the High Court unanimously allowed an appeal from the Court of Appeal of the Supreme Court of Western Australia. The appellant was charged with possession of a prohibited drug with intent to sell or supply it to another, after a police search located 925.19 grams of cannabis at the appellant's home. At trial, the appellant admitted possession of the cannabis but maintained it was entirely for personal use. He further claimed that all of the cannabis was harvested from two plants located at his home. A prosecution witness, Detective Coen, testified that in his experience, mature, naturally grown female cannabis plants typically yield between 100 grams and 400 grams of cannabis head material, and that he would expect the yield from the two plants located at the appellant's home to be at the lower end of this scale. A jury found the appellant guilty. In the Court of Appeal, the appellant sought an extension of time within which to appeal against his conviction. His proposed ground of appeal was that as a result of fresh or new evidence a miscarriage of justice had occurred. The new evidence on which the appellant relied consisted of transcripts of earlier proceedings which showed that Detective Coen had previously given evidence to the effect that naturally grown female cannabis plants may yield between 300 grams and 600 grams of head material ("the Earlier Coen evidence"). A yield within that range was consistent with the appellant's account that the cannabis in his possession had come from the two plants at his home. This evidence had not been disclosed to the appellant at trial. The Court of Appeal admitted this evidence, as well as evidence of Detective Coen's explanation that his opinion had changed after his own experiments and discussions with cannabis growers. The Court of Appeal, by majority, refused the application for an extension of time and dismissed the appeal. The Court held that the Earlier Coen evidence was "fresh evidence". Nevertheless, the Court concluded that the non-disclosure of the Earlier Coen evidence to the appellant did not give rise to a miscarriage of justice. The Court referred to a number of considerations in reaching this conclusion, including that Detective Coen's explanation for his change in opinion was "credible and cogent". The Court concluded that there was no significant possibility that, on the whole of the trial record and the additional evidence, a jury, acting reasonably, would be satisfied to the requisite standard that the appellant did not intend to sell or supply to another any of the cannabis. By grant of special leave, the appellant appealed to the High Court on the ground that the majority of the Court of Appeal erred in finding that the fresh evidence did not give rise to a significant possibility of acquittal by the jury. The Court accepted this contention. The blow to the appellant's credibility by Detective Coen's evidence at trial was undeniably significant to the jury's assessment of the strength of the appellant's evidence. The Court of Appeal, by considering that the effect of any doubt as to the reliability of Detective Coen's explanation for his change of opinion on the appellant's prospects of acquittal might be resolved by the Court's acceptance of that explanation, misunderstood the role of an appellate court confronted with fresh evidence that impugns a verdict at trial. The cogency of his explanation was a question for the jury. Accordingly, the Court ordered that the appellant's appeal be allowed, his conviction be quashed, and a new trial be had. |
HIGH COURT OF AUSTRALIA 12 May 2021 UTALACKO v TALACKO & ORS [2021] HCA 15 Today the High Court unanimously dismissed an appeal from judgments of the Court of Appeal of the Supreme Court of Victoria and allowed cross-appeals from a judgment of the same Court. The appeal concerned whether loss or damage had been suffered such that an unlawful means conspiracy was actionable. The cross-appeals concerned whether damages for the unlawful means conspiracy should be discounted to reflect the chance of separate recovery from two of the conspirators in foreign proceedings. A conspiracy by unlawful means was undertaken by Jan Emil Talacko with his wife and two of their sons. The conspiracy was directed at depriving Jan Emil's siblings, or those claiming through them – the first to fifth respondents to this appeal ("the Respondents") – of the value of their rights, namely a chose in action against Jan Emil arising from an unquantified judgment in their favour ("the chose in action against Jan Emil"). The conspiracy involved agreements by which Jan Emil donated valuable properties that he held in the Czech Republic to his sons (collectively, "the Donation Agreement") to impede recovery of the anticipated judgment debt, which was later quantified. In 2009, the proceeding which led to this appeal concerning, amongst other things, unlawful means conspiracy was commenced by the Respondents in the Supreme Court of Victoria. In 2011 and 2012, the Respondents brought proceedings against the sons in the Czech Republic to set aside the Donation Agreement ("the Donation Agreement Proceedings") to enable a claim to be made, and enforced, directly against the sons. The Supreme Court of Victoria held that the unlawful means conspiracy was not actionable because the Respondents had not proved that they had suffered loss or damage. The primary category of loss alleged by the Respondents – being prevented from recovering the judgment debt because of the Donation Agreement – was held to be only contingent since the value of the properties might yet be recovered from the sons through the Donation Agreement Proceedings. An appeal to the Court of Appeal was allowed on the basis that the Respondents had suffered loss or damage. The quantification of the primary category of loss by the Supreme Court of Victoria was discounted by 25%, including for the prospect that Jan Emil might have impeded recovery even without the unlawful means conspiracy. The damages were further reduced by 20% to account for a speculative prospect of separate recovery from the sons through the Donation Agreement Proceedings. The High Court dismissed the appeal, holding that the Court of Appeal was correct to conclude that the Respondents had suffered loss or damage so that the unlawful means conspiracy was actionable. The reason for this was that the value of the Respondents' rights, the chose in action against Jan Emil, was reduced by Jan Emil's entry into the Donation Agreement because the transfer of the properties reduced the available assets to meet the anticipated judgment debt. The Court allowed the cross-appeals, concluding that the 20% prospect of success arising from the Donation Agreement Proceedings could not be said to be a benefit of any real value to the Respondents that had reduced their loss. |
HIGH COURT OF AUSTRALIA 5 April 2005 PICO HOLDINGS INC v WAVE VISTAS PTY LTD (formerly Turf Club Australia Pty Ltd) AND NATIONAL AUSTRALIA BANK Pico has a valid claim over property formerly belonging to Turf Club Australia which must now compete for priority against interests held by the National Australia Bank, the High Court of Australia held today. Pico is a Californian corporation which had dealings over several years with various companies controlled by Peter David Voss, including Dominion Capital Pty Ltd. On 22 December 2000, in great urgency, Pico lent Dominion Capital $US1.2 million, repayable a fortnight later, secured by collateral of 400,000 shares in Dominion Wines. Terms were recorded in a non-negotiable secured promissory note. No share certificate was sent and the loan was not repaid, despite an extension to 30 April and Mr Voss’s repeated promises. On 25 April 2001, Pico director John Hart told Mr Voss that Pico required security before another month’s extension could be made. Mr Voss offered a property at Nerang on the Gold Coast which he said was worth twice the value of the loan. He agreed to send Mr Hart the title deeds and a recent valuation and faxed Pico a letter on Dominion Capital letterhead to that effect on 4 May 2001, along with a copy of a certificate of title showing the land was owned by Turf Club Australia, of which Mr Voss was the sole director. However he had already given NAB a mortgage over the land. He told NAB he was selling the land for $3-$3.1 million. The certificate of title was held by a Gold Coast law firm for unpaid fees, later paid by NAB which then held the certificate. For two months, Pico sought confirmation that Dominion Capital’s Sydney solicitors held the certificate of title in trust for Pico and sought delivery of the certificate. Its demands for the certificate and for repayment were unmet. Pico obtained judgment against Dominion Capital in the Victorian Supreme Court for recovery of the loan, then instituted proceedings in the Queensland Supreme Court against Turf Club, seeking declarations that it had an equitable charge over the land and that that charge had priority over NAB’s mortgage. However Justice John Helman held there was merely an oral agreement and that Turf Club was not a party to it. Even if it were, the agreement was unenforceable because of non-compliance with the Property Law Act which required that contracts for the transfer of land be in writing. The Queensland Court of Appeal dismissed the appeal. Pico appealed to the High Court. The Court unanimously allowed the appeal. It held that Mr Voss had authority to commit Turf Club Australia to a promise to supply a certificate of title over its land. The Court held that the promise to deliver the certificate of title, in exchange for Pico extending the repayment period, was specifically enforceable. The May 4 2000 letter was a note of the contract, fulfilling the requirements of the Property Law Act. The Court declared that Pico has an interest in the proceeds of sale of the land corresponding with an equitable mortgage created by the contract between Pico, Turf Club and Dominion Capital arising from the oral promises of 25 April 2001, the letter of 4 May 2001 and an addendum, regarding the extension, to the promissory note of 22 December 2000. The Court ordered that the matter be remitted to the Court of Appeal to determine whether Pico’s equitable mortgage over the property takes priority over any interests held by NAB. |
HIGH COURT OF AUSTRALIA 18 December 2013 [2013] HCA 56 Today the High Court, by majority, allowed an appeal from a decision of the Court of Appeal of the Supreme Court of New South Wales concerning the measure of damages that the purchaser of assets of a business was entitled to recover from the vendor who broke its contractual promise to deliver stock complying with a warranty. The appellant and respondent were registered medical practitioners who each specialised in providing assisted reproductive technology services. The appellant agreed to buy assets of St George Fertility Centre Pty Limited, a company which was controlled by the respondent and which provided medical and assisted reproductive technology services to patients. The company ("the vendor") agreed to sell certain assets of the practice, including a stock of frozen donated sperm. The respondent guaranteed the vendor's obligations under the contract. The vendor warranted that the identification of donors of the sperm complied with specified guidelines. Of the stock of sperm delivered, 1,996 straws of sperm which the appellant would have expected to be able to use were not as warranted and were unusable. The appellant could not buy suitable replacement sperm in Australia but could in the United States of America. The primary judge found that buying 1,996 straws of replacement sperm from the American supplier ("Xytex") would have cost about $1 million at the time the contract was breached. The purchase price for the assets (including the stock of frozen donated sperm) was less than $400,000. The appellant accepted that ethically she could not charge, and in fact had not charged, any patient a fee for using donated sperm greater than the amount the appellant had outlaid to acquire it. The Supreme Court of New South Wales entered judgment for the appellant against the vendor for breach of warranty, and against the respondent as guarantor of the vendor's obligations. The primary judge assessed the damages for breach of warranty as the amount that the appellant would have had to pay Xytex (at the time the contract was breached) to buy 1,996 straws of sperm. On appeal against the assessment of damages, the Court of Appeal held that the appellant should have no damages for the vendor's breach of warranty. The appellant had bought straws of sperm from Xytex to use in treating patients and had charged each patient a fee which covered the costs the appellant had incurred in buying the straws that were used in treating that patient. The Court of Appeal held that the appellant had thus avoided any loss she would otherwise have sustained. By special leave, the appellant appealed to the High Court seeking orders reinstating the award of damages made by the primary judge. The Court allowed the appeal by majority. It held that the appellant should recover the amount it would have cost (at the date of the breach of warranty) to acquire 1,996 straws of sperm from Xytex. |
HIGH COURT OF AUSTRALIA 9 May 2006 Public Information Officer ALEXIA HARRITON (BY HER TUTOR GEORGE HARRITON) v PAUL RICHARD STEPHENS KEEDEN WALLER (BY HIS TUTOR DEBORAH WALLER) v CHRISTOPHER JAMES AND SYDNEY IVF PTY LIMITED KEEDEN WALLER (BY HIS TUTOR DEBORAH WALLER) v BRIAN HOOLAHAN Two severely disabled people who claim they should not have been born do not have a case for negligence against their mothers’ doctors, the High Court of Australia held today. Alexia Harriton’s mother, Olga Harriton, contracted rubella early in her pregnancy. After suffering fever and a rash, she told her GP, Dr Max Stephens, the late father of Dr Paul Stephens, that she thought she was pregnant and also ill with rubella. She had a blood test and the pathology service reported that if there were no recent contact or rubella-like rash further contact with the virus was unlikely to produce congenital abnormalities. Dr Paul Stephens confirmed Mrs Harriton’s pregnancy and ruled out rubella but did not prescribe a follow-up “IgM” blood test and did not advise that a pregnant woman who had had rubella in the first trimester had a very high risk of having a child with congenital abnormalities. Mrs Harriton says that, had she received proper advice, she would have terminated the pregnancy. Alexia, now 25, suffers from blindness, deafness, mental retardation and spasticity and requires constant care. She claimed damages for past and future medical and care costs, general damages for pain and suffering and loss of income. Keeden Waller, now five, was born after his parents underwent IVF. His father, Lawrence, had an anti- thrombin 3 (AT3) deficiency which meant his blood had a propensity to clot for which he took medication. Dr James, the Wallers’ infertility specialist, arranged for tests on Mr Waller but these did not cover the genetic basis for the AT3 deficiency or the likelihood of it being passed on. The IVF went ahead. Dr Hoolahan, an obstetrician, oversaw Mrs Waller’s pregnancy but the tests he ordered did not relate to the AT3 deficiency and its possible consequences. After Keeden was born he was found to have a cerebral thrombosis. He has permanent brain damage, suffers from cerebral palsy, has uncontrolled seizures and requires constant care. Had the Wallers known the AT3 deficiency could be passed on to Keeden, they say they would have deferred IVF until methods were available to ensure AT3 deficiency was not passed on, used donor sperm, or, if told of the high risk that the foetus would have the AT3 deficiency, would have terminated the pregnancy. In the New South Wales Supreme Court, Justice Timothy Studdert dismissed Alexia and Keeden’s claims for damages, holding they had no cause of action. The Court of Appeal, by majority, dismissed each appeal. Alexia and Keeden then appealed to the High Court which, by a 6-1 majority, dismissed each appeal. To have a cause of action in negligence each needed to show damage had been suffered and a duty of care on the doctors to avoid that damage. No legally recognisable damage – loss, deprivation or detriment caused by an alleged breach of duty – could be shown. The Court held that comparing a life with non-existence for the purposes of proving actual damage is impossible as it could not be determined that the children’s lives represented a loss, deprivation or detriment compared with non-existence. It also held that damages could not be assessed because in all the circumstances comparisons with able-bodied children or with a notional life without disabilities could not be made. The damage claimed by Alexia and Keeden is not amenable to being determined by a court by the application of established negligence principles. Consequently, their claims could not succeed. |
HIGH COURT OF AUSTRALIA 13 November 2019 LORDIANTO & ANOR v COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE; KALIMUTHU & ANOR v COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE [2019] HCA 39 Today the High Court dismissed two appeals from decisions of the Court of Appeal of the Supreme Court of New South Wales and the Court of Appeal of the Supreme Court of Western Australia. The High Court held that property in respect of bank accounts into which deposits were made through a money laundering process known as "cuckoo smurfing" had not "ceased" to be proceeds or an instrument of an offence under the Proceeds of Crime Act 2002 (Cth) ("the POCA"). That was because interests in connection with the property – the choses in action in respect of the bank accounts – were not acquired for sufficient consideration in circumstances that would not arouse a reasonable suspicion that the interests were proceeds or an instrument of an offence. The appellants in each appeal remitted large sums of money to Australia using remitters or money changers in a foreign country. The appellants either deposited foreign currency in a foreign country into accounts nominated by the remitters or gave cash to the remitters. A large number of cash deposits, usually each less than $10,000, but together equivalent to the amounts paid by the appellants to the remitters, were then made into the appellants' nominated bank accounts in Australia as part of a cuckoo smurfing process. The Commissioner of the Australian Federal Police successfully applied for orders under s 19 of the POCA restraining the disposal of, or any dealing with, specific bank accounts in the name of one or more of the appellants on the basis that they were proceeds or an instrument of a structuring offence contrary to s 142(1) of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth). The offence was aimed at those who conduct transactions with the sole or dominant purpose of avoiding "threshold transactions" of $10,000 or more, so that they are not reported to the Australian Transaction Reports and Analysis Centre. Subsequent to the restraining orders being made, the appellants applied under ss 29 and 31 of the POCA to have their interest in the property the subject of the restraining orders excluded from those orders. The property sought to be excluded was the appellants' choses in action in respect of their various bank accounts. The appellants in both cases conceded that that "property" was proceeds or an instrument of an offence. They sought to establish that their property had "ceased" to be proceeds or an instrument of an offence pursuant to s 330(4) of the POCA. Relevantly, s 330(4)(a) required the appellants to establish that the property had been "acquired by a third party for sufficient consideration without the third party knowing, and in circumstances that would not arouse a reasonable suspicion, that the property was proceeds of an offence or an instrument of an offence (as the case requires)". The High Court unanimously held that, in the Lordianto appeal and in relation to the first appellant in the Kalimuthu appeal, the appellants did not discharge their onus to prove the matters necessary under s 330(4)(a). The High Court also held by majority that the second appellant in the Kalimuthu appeal did not establish the requirements of s 330(4)(a) because the second appellant was a volunteer who did not acquire the property for sufficient consideration. |
HIGH COURT OF AUSTRALIA 9 February 2005 GUY EDWARD SWAIN v WAVERLEY MUNICIPAL COUNCIL The High Court of Australia today upheld a damages award to Mr Swain who became a quadriplegic in an accident at Bondi Beach in November 1997. Mr Swain, then 24, was at the beach with his friend Kathryn Galvin and her flatmate Earl Wilson. He waded out about 15 metres into waist-deep water and dived through a wave but hit his head on a sandbar. Mr Swain sued Waverley Council for negligence, alleging that the red-and-yellow flags induced him to swim where he did and that the Council had failed to take reasonable care in positioning the flags and in not erecting signs warning swimmers of the sandbar. The case was heard by Acting Justice Ken Taylor and a four-member jury in the New South Wales Supreme Court. Justice Taylor instructed the jury that the Council had a duty to take reasonable care for the safety of people using the beach. It was for the jury to decide whether there had been a breach of that duty. The jury found the Council liable and found contributory negligence of 25 per cent on the part of Mr Swain. He was awarded $3.75 million. The Council successfully appealed to the NSW Court of Appeal on two issues. The Court of Appeal unanimously accepted there was no evidence to support the decision against the Council for failing to warn swimmers of the sandbar and by a 2-1 majority accepted that there was no evidence to support the verdict on the flag placement issue. Mr Swain appealed to the High Court on this latter issue. The Court allowed the appeal by a 3-2 majority. It held that the Court of Appeal had erred in setting aside the jury verdict. The High Court majority held that there was sufficient evidence on which a jury could be reasonably satisfied that the Council had been negligent. It was open to the jury to accept Mr Swain’s version of how he was injured. It was also open to the jury to conclude that in placing the flags the Council should have exercised reasonable care to prevent injury to bathers. Whether or not the risk posed by the sandbar was obvious was a question of fact and it was open to the jury to conclude that the sandbar was a concealed hazard. The flags were not moved on the day of Mr Swain’s accident. The Council called no evidence to explain why the flags could not have been moved so as to avoid the hazard. The majority held there was sufficient material to sustain a finding in favour of Mr Swain on the issue of negligence and that, since it was for the jury to decide whether such a finding should be made, the verdict should stand. The majority pointed out that the case, properly analysed, was one concerned with the correct approach by appeal courts to overturning jury verdicts rather than the liability of local government authorities to surfers as such. |
HIGH COURT OF AUSTRALIA Public Information Officer 8 October, 2003 RE PHILIP RUDDOCK IN HIS CAPACITY AS MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS; EX PARTE APPLICANT S154 OF 2002 The High Court of Australia today dismissed an application for constitutional writs by a Sri Lankan woman who belatedly raised claims she was raped by police in Sri Lanka. The woman, 29, known as Applicant S154, is an ethnic Tamil and a Christian. In 1996 she moved to the Maldives and lived with her employer, a Muslim Pakistani. They married in 1998 and a few days later arrived in Australia, along with S154’s mother. S154 applied for a protection visa, contending she was suspected by the authorities of belonging to the Tamil Tigers separatist group. The Immigration Department denied her a protection visa because it was not satisfied she was a person to whom Australia owed protection obligations under the Refugees Convention. She was not regarded as being associated with the Tamil Tigers, had never been arrested or detained under anti-terrorist laws, had been free to travel in and out of Sri Lanka, was of no interest to the authorities and had no well-founded fear of persecution. The decision was affirmed by the Refugee Review Tribunal, but was reversed by the Federal Court in 2000 on the ground that the RRT failed to make findings about S154’s claim, made for the first time at the RRT hearing, that she feared being recruited by the Tamil Tigers. The matter was remitted to the RRT and heard by another Member. At the second hearing, S154 said she was raped by police questioning her about the Tamil Tigers. She said she had not raised this before because she did not want her mother or husband to know. The Member replied, “OK, I don’t need to ask you any further question about that particular incident.” The Member subsequently asked S154 whether she wanted to say anything further about the claim The RRT also affirmed the original decision to refuse S154 a protection visa, holding that she had never even mentioned being taken to the police station until the second hearing. She had also not mentioned rape to a psychologist whom she saw 10 times. The Member said he was satisfied the claim was untrue and designed to bolster S154’s case. S154 then applied to the High Court for constitutional writs. S154 claimed the Member’s comment conveyed the impression that the Member had accepted her evidence and she was denied natural justice. The Court held that the Member was openly sceptical and gave her several opportunities to say more about the incident at the police station, so he did not mislead her. The Court, by a 4-1 majority, dismissed the application. |
HIGH COURT OF AUSTRALIA 11 February 2004 YOLANDA AND ROCCO GATTELLARO v WESTPAC BANKING CORPORATION A guarantee given by Mr Gattellaro for his company’s debts was held to be valid by the High Court of Australia today. The Court also held that security given by his wife also covered the liability. Mr and Mrs Gattellaro owned Falgat Constructions which built and renovated houses. In 1977 they executed a mortgage over their home at Chiswick in Sydney to secure their personal indebtedness to the Commercial Bank of Australia (now part of Westpac). The Gattellaros in 1986 entered into another mortgage over their home to secure an advance of $450,000. Westpac took action over that mortgage and in 2000 the New South Wales Supreme Court ordered the Gattellaros to pay Westpac $983,000 and to give up possession of their home. The Court of Appeal dismissed their appeal. Westpac said Falgat’s indebtedness was secured by an unlimited guarantee given by Mr Gattellaro in 1985, that obligations under that guarantee were secured by the 1977 mortgage, and that this mortgage also made Mrs Gattellaro liable. Westpac’s difficulty was that it could not produce the 1985 unlimited guarantee on which its contention depended, forcing it to rely on other documents, including an internal memo that Mrs Gattellaro was to sign the guarantee later the same week. Whether she ever signed remained uncertain. Mr Gattellaro said, because she had not signed, his guarantee was inoperative. The Court of Appeal by majority held it was unnecessary to decide whether Mrs Gattellaro had given a guarantee as the 1977 mortgage made her liable and rendered their home security for company debts. The majority took judicial notice that Westpac had a standard form guarantee which contained a clause that the guarantee was binding on each person who signed it, even though someone named as a guarantor had not. The Gattellaros said the guarantee did not contain the clause, but a guarantee with a print date of 1984 signed in 1986 by their relatives, the Falcomatas, did contain such a clause. In the High Court, Westpac accepted that the doctrine of judicial notice did not permit the Court of Appeal to find as common knowledge that the bank used a standard form of guarantee. The High Court held that, as the case was pleaded and conducted, the Gattellaros bore the onus of proving both that the 1986 mortgage was unjust and of nullifying the 1985 guarantee by proving Mrs Gattellaro had to be a co-surety for the guarantee. This the Gattellaros were unable to do. The Court, by a 4-1 majority, dismissed the Gattellaros’ appeal. The 1977 mortgage continued to apply and it made Mrs Gattellaro liable for all money for which Mr Gattellaro might be liable to Westpac. The second mortgage did not increase their overall liability. However the High Court unanimously criticised Westpac’s slowness in conceding that the Court of Appeal had erred. If it had conceded this when the High Court was hearing the Gattellaros’ special leave application the Court could have allowed the appeal immediately and remitted the matter to the Court of Appeal. Instead, the Gattellaros had to incur the expense of an appeal, so the Court denied Westpac its costs. |
HIGH COURT OF AUSTRALIA 15 June 2004 ANDAR TRANSPORT PTY LTD v BRAMBLES LIMITED Brambles could not claim an indemnity against liability for negligence in the case of an injured driver, Daryl Wail, but it was entitled to a contribution towards an award of damages from Mr Wail’s company, the High Court of Australia held today. Brambles provides laundry delivery services to hospitals but since 1990 it has contracted out the work. Mr Wail had been a driver for Princes Linen Service, which was taken over by Brambles. When Brambles decided to contract out laundry deliveries, Mr Wail and Andrew Parker set up Andar Transport and bought the truck from Brambles. Mr Wail was employed as a driver. On 26 July 1993, Mr Wail, then aged 28, loaded a truck with 22 trolleys of clean linen at Brambles laundry for delivery to Cotham Private Hospital in Kew in Melbourne. While unloading, a trolley became jammed against another. Attempting to pull it free Mr Wail felt a searing pain across his lower back. His lumbosacral disc had been damaged and he could no longer work as a truck driver. Mr Wail commenced negligence proceedings against Brambles in 1998 in the Victorian County Court, claiming Brambles failed to ensure fully laden trolleys could be manoeuvred without risk of injury. A jury found in favour of Mr Wail and he was awarded damages totalling $415,000. After subtracting $104,411.60 pursuant to section 135A of the Accident Compensation Act and a reduction of 35 per cent for Mr Wail’s contributory negligence, the Court entered judgment for him of $201,822.46 plus interest. This result is not the subject of the appeal to the High Court. Brambles joined Andar as a party in the proceedings and sought an indemnity from Andar in respect of any damages Brambles might be ordered to pay or contribution due to Andar’s alleged negligence as Mr Wail’s employer. The County Court dismissed Brambles’ third-party claims against Andar. In the Court of Appeal Brambles appealed against the outcomes of both the original proceeding and the third-party proceeding. The Court dismissed the appeal on the first but allowed the appeal on the latter. It held that the contract between Brambles and Andar indemnified Brambles against liability so did not need to consider the extent of the contribution Brambles was also entitled to under section 23B of the Wrongs Act. Andar appealed to the High Court, arguing that the Court of Appeal erred in concluding Andar was contractually bound to indemnify Brambles and that it erred in holding that a claim for contribution against Andar was otherwise available. The High Court, by a 6-1 majority, held that Andar was not obliged to indemnify Brambles as indemnity clauses in the contract did not extend to injured drivers. However it held that a claim for contribution was available to Brambles. The Court held that an employer such as Andar owed a duty to its employees, including directors, to provide a safe system of work in the loading and unloading of trolleys. The Court allowed the appeal and remitted the case to the Court of Appeal for calculation of any contribution to which Brambles was entitled. |
HIGH COURT OF AUSTRALIA 7 April 2021 VICTORIA INTERNATIONAL CONTAINER TERMINAL LIMITED v LUNT & ORS [2021] HCA 11 Today, the High Court unanimously dismissed an appeal from a judgment of the Full Court of the Federal Court of Australia. The appeal concerned whether proceedings brought by a plaintiff on behalf of a trade union to quash the approval of an enterprise agreement, in circumstances where the predecessor trade union had originally supported the approval, should be summarily dismissed on the basis that the proceedings were an abuse of process. The appellant, Victoria International Container Terminal Limited ("VICT"), applied to the Fair Work Commission ("the Commission") for approval of the Victoria International Container Operations Agreement 2016 ("the Enterprise Agreement"). The application was made with the support of the Maritime Union of Australia ("the MUA"), which later merged to form the fourth respondent, the Construction, Forestry, Maritime, Mining and Energy Union ("the CFMMEU"). The Commission approved the Enterprise Agreement. Following that approval, the MUA brought several proceedings against VICT in reliance on the Enterprise Agreement. However, the MUA soon became dissatisfied with the Enterprise Agreement and began publicly to criticise it. The first respondent ("Mr Lunt") was a longstanding member of the MUA who had been employed by VICT. Mr Lunt commenced proceedings seeking to quash the Commission's approval of the Enterprise Agreement. VICT sought summary dismissal of the proceedings, arguing that they were an abuse of process because the CFMMEU (as it now was) was the true moving party behind the proceedings, with Mr Lunt being deployed as a "front man" to conceal the CFMMEU's role. The MUA and CFMMEU had funded the proceedings and were found to have been unwilling to bring proceedings in their own names because of the perceived risk that they would be refused relief on discretionary grounds, including because the MUA had acquiesced in the approval of the Enterprise Agreement. Mr Lunt, however, maintained that he sought the quashing of the approval of the Enterprise Agreement by reason of his concerns about its conditions and the manner in which it was made. On appeal to this Court, VICT argued that to permit the pursuit of the proceedings by Mr Lunt would bring the administration of justice into disrepute, emphasising the lack of candour involved in Mr Lunt's attempt to conceal the role of the CFMMEU in the proceedings. The High Court dismissed the appeal, holding that the choice of Mr Lunt as plaintiff would not have prevented, in any real way, scrutiny by the court of the role played by the MUA in the making of the Enterprise Agreement. The court's powers in relation to abuse of process were not to be exercised in order to deter or punish a want of candour on the part of a litigant of the kind revealed in this case; they are exercised in order to protect the integrity of the court's own processes. In any event, a stay or summary dismissal of proceedings should not be ordered where there are less drastic means to protect the integrity of the court's processes. With the arrangements between Mr Lunt and the CFMMEU now being well known, the administration of justice could not be brought into disrepute by allowing the proceedings to continue to a determination on their merits. |
HIGH COURT OF AUSTRALIA 16 March 2022 STUBBINGS v JAMS 2 PTY LTD & ORS [2022] HCA 6 Today, the High Court unanimously allowed an appeal from a judgment of the Court of Appeal of the Supreme Court of Victoria. The appeal concerned whether the enforcement of the respondents' rights against the appellant, in the context of asset-based lending, was unconscionable. The respondents were in the business of asset-based lending. Their system of lending operated on the basis that potential borrowers, such as the appellant, would meet with an intermediary working with a law firm. The law firm provided a service to clients, including the respondents, to facilitate the making of secured loans by those clients. It acted as agent for the respondents and, because of the intermediary, never dealt directly with the appellant. The appellant was unemployed and had no regular income. He owned two properties, both of which were mortgaged. In 2015, the appellant sought to purchase another property and he met on a number of occasions with the intermediary. In accordance with the system of lending, the appellant acted as guarantor for a loan made to a company by the respondents, of which he was the sole director and shareholder, with the three properties as security for his guarantee. As part of the transactions, the law firm prepared a certificate of "Independent Financial Advice" and a certificate of "Independent Legal Advice" to be signed by an accountant and lawyer, respectively, whom the law firm referred the appellant to. The property was purchased in late 2015. When the company defaulted on the third month's interest payments, the respondents commenced proceedings against the appellant, seeking to enforce the guarantee and their rights as mortgagees of the properties. The Court of Appeal overruled the primary judge, concluding that there was nothing inherently unconscionable about asset-based lending, and that the respondents' agent had neither actual nor constructive knowledge of the appellant's desperate personal and financial circumstances and was entitled to rely on the certificates of independent advice. The High Court held that the respondents had acted unconscionably contrary to equitable principle. It was not in dispute that the appellant suffered from a special disadvantage, because of his poor financial literacy, inability to understand the nature and risks of the transactions, and bleak financial circumstances. The respondents' agent had sufficient appreciation of the appellant's vulnerability and the likelihood that loss would be suffered. A finding of actual knowledge was not essential to the appellant's case for relief. The dangerous nature of the loan, obvious to the agent but not the appellant, was sufficient to establish that the agent had exploited the appellant's vulnerability contrary to good conscience. It was open to the primary judge to infer that the certificates were mere "window dressing", so that they could not negate the agent's actual appreciation of the dangerous nature of the loans and the appellant's vulnerability. It was therefore unconscionable for the respondents to insist upon their rights under the mortgages. |
HIGH COURT OF AUSTRALIA Public Information Officer 14 December 2006 VBAO v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL For an asylum seeker to show a well-founded fear of persecution, a threat of harm must mean a real risk of harm, not merely an earlier communication of intention to harm, the High Court of Australia held today. VBAO is a Sri Lankan national who held an entertainment visa issued to him as a visiting member of a dance troupe sponsored by the Sinhala Cultural and Community Services Foundation. He entered Australia in November 2001. The foundation withdrew sponsorship when it became clear that the troupe was not a troupe of genuine dancers. VBAO applied for a protection visa. He told an Australian official that he wanted to work in Australia to pay off a loan and provide for his family. He also said he was a member of the Sri Lankan Freedom Party, attending and performing at political rallies and organising political meetings. VBAO said his life had been threatened by United National Party members and claimed he would be killed if the UNP, as he expected, came to power in Sri Lanka. He said on his way home from a wedding UNP members pulled him into a van, beat him and cut his hair. He said he had been intentionally struck by a rear-view mirror of a passing van and that eggs had been thrown at him. VBAO said he had lost his job as a musician because of his political involvement, been threatened by UNP members and left his home. The Immigration Department refused him a protection visa. The Refugee Review Tribunal upheld that decision. It found that VBAO had not been actively involved in politics as his knowledge of Sri Lankan politics was limited. The RRT was prepared to accept that he may have received threatening phone calls and letters and that UNP thugs may have assaulted him after the wedding, but it was not satisfied that these incidents constituted persecution within the Refugees Convention. The RRT said the egg throwing and the collision with the rear-view mirror also did not amount to harm as severe as persecution, assuming they actually occurred. The Federal Magistrates Court reversed the RRT decision, holding that threats, in the sense of statements of intention to harm, amounted to persecution and that VBAO had a fear of future threats. The Federal Court of Australia allowed an appeal by the Minister. VBAO appealed to the High Court. The Court unanimously dismissed the appeal. VBAO had argued that the phrase “threat ... to life and liberty” in section 91R of the Migration Act means a communication of an intention to cause harm. The Minister argued that it means a real risk of harm. The Court held that, depending on context, the word “threat” could mean either a risk or a hostile communication. In the context of the Migration Act, and the definition of a fear of persecution in the future, it meant a risk of harm. On the RRT’s finding that there was no such risk, VBAO’s claim must fail. |
HIGH COURT OF AUSTRALIA 6 December 2013 KAREN KLINE v OFFICIAL SECRETARY TO THE GOVERNOR-GENERAL & ANOR [2013] HCA 52 Today the High Court unanimously dismissed an appeal from a decision of the Full Court of the Federal Court of Australia, which held that documents relating to nominations of a person to the Order of Australia were not subject to disclosure under s 6A(1) of the Freedom of Information Act 1982 (Cth) ("the Act"). The appellant made a request under the Act for access to certain categories of documents held by the first respondent, the Official Secretary to the Governor-General of the Commonwealth of Australia ("the Official Secretary"). The categories of documents requested related to two nominations of a person to the Order of Australia, submitted by the appellant. Section 6A(1) of the Act provides that the Act does not apply to any request for access to a document of the Official Secretary, unless the document "relates to matters of an administrative nature". By letter, the Official Secretary refused the appellant's request, informing her that no documents relating to matters of an administrative nature had been identified, although she could be provided with copies of her two nomination forms. The appellant applied for review of the Official Secretary's decision by the Australian Information Commissioner, who affirmed the decision to refuse the appellant access to the balance of documents requested. The appellant appealed to the second respondent, the Administrative Appeals Tribunal ("the Tribunal"), which affirmed the decision of the Official Secretary. On appeal, the Full Court of the Federal Court upheld the Tribunal's decision. By special leave, the appellant appealed to the High Court. The High Court held that documents relating to the Governor-General's substantive powers and functions were excluded from disclosure by operation of s 6A(1) of the Act. The exception of a class of documents which related to "matters of an administrative nature" referred to documents concerning the management and administration of the office resources of the Official Secretary, or the provision of logistical support, which the Official Secretary was required to disclose. The High Court held that the documents sought by the appellant were excluded from disclosure by s 6A(1) of the Act. Relevant criteria for the making of awards in the Order were already available to the public. Further, the Official Secretary accepted that any documents relating to review processes, if such documents existed, would be publicly available without recourse to the Act. |
HIGH COURT OF AUSTRALIA Public Information Officer 2 September, 2003 BRITISH AMERICAN TOBACCO (AUSTRALIA) LTD v STATE OF WESTERN AUSTRALIA AND COMMISSIONER OF STATE TAXATION (WESTERN AUSTRALIA) British American Tobacco (formerly Rothmans of Pall Mall (Australia) Ltd) had a right to proceed in an action against Western Australia to recover almost $7 million worth of tobacco licence fees, the High Court of Australia held today. In August 1997 in the Ha v New South Wales decision, the High Court found similar licence fees imposed by New South Wales were excise duties, therefore unconstitutional, as under section 90 of the Constitution excise could only be imposed by the Commonwealth. Following the Ha decision, Rothmans commenced action in the WA Supreme Court, claiming a declaration that WA licence fees were also excise duties, and seeking an order for the repayment of $6,957,528.30 paid by Rothmans three weeks before Ha was handed down. Negotiations between Rothmans and the WA government failed to resolve the issue and Rothmans gave notice in April 1998 under section 6 of WA’s Crown Suits Act 1947 that it proposed to commence action. Section 5 of the Act provides that the Crown (the State of WA) may sue and be sued in the same manner as a subject but section 6 provides that no right of action lies against the Crown unless the party proposing the action gave written notice as soon as practicable or within three months (whichever was longer). Rothmans’ cause of action had accrued by August 1997 but the company did not give notice until April 1998, so there was no compliance with section 6. The Full Court of the WA Supreme Court entered summary judgment for the State and the State Tax Commissioner. The issue in the appeal to the High Court was whether sections 5 and 6 were relevant, bearing in mind that the WA Supreme Court was exercising federal jurisdiction. The High Court unanimously ordered that the summary judgment be set aside to allow Rothmans, as British American Tobacco, the right to proceed against the State. The Court held sections 5 and 6 of the Crown Suits Act did not apply. The decision only dealt with the right to proceed. It did not deal with the legal merits of the claim for recovery of the taxes. The case was remitted to the WA Supreme Court to deal with that issue. |
HIGH COURT OF AUSTRALIA 5 February 2004 JOHN JAMES MURPHY AND ANNE ELIZABETH GEDZ (AS NEXT FRIEND OF DAPHNE MURPHY) v OVERTON INVESTMENTS PTY LIMITED The High Court of Australia today ordered the Federal Court to assess what damages may be due to two retirement village residents after it found errors in the way the Full Court of the Federal Court reached its conclusion that the Murphys had not proved loss or damage. The couple moved into Heritage Retirement Village in Sydney’s Padstow Heights in 1992 after being told that the estimated weekly cost of management and maintenance was $55.71, but it turned out this figure did not cover all outgoings and the true cost was much higher. The Murphys understood the levy could rise but were misled about what was then the true level of outgoings. The High Court appeal was the latest episode in protracted litigation in both the Federal Court and the New South Wales Supreme Court between Heritage tenants and the owners over the levy. Matters were further complicated by Overton selling the village in 2000 to a person not party to the proceedings. It was not in issue in the appeal that there had been misleading conduct in contravention of the Trade Practices Act (TPA). The question in the appeal was what, if any, relief was then due to the Murphys. They contended the Full Court of the Federal Court was wrong to dismiss their appeal against Justice Arthur Emmett’s refusal to award damages. He and the Full Court held that the Murphys had not paid too much for their lease and Justice Emmett also held there was no evidence the Murphys did not receive value for their levy. The High Court held that it did not necessarily follow that no loss was incurred. Inducement to enter the lease by a misleading statement of estimated outgoings meant they undertook a greater than expected obligation. The Court held that the Full Court was wrong to conclude that the Murphys had not established that they had suffered or were likely to suffer loss or damage by Overton’s conduct in contravention of the TPA. Damages for past and future outgoings would make good the position they would have been in had the misrepresentation not been made. The Court held the Murphys had not shown any difference in value of the lease of the unit. If they had, awarding a further sum would have been inappropriate and unnecessary. The High Court held that the Murphys suffered a loss when Overton started to charge all the outgoings it was entitled to charge. It held the Full Court was wrong to determine the amount of that loss only by comparing the Murphys’ financial position if they had taken other accommodation, rather than determining how much larger was the burden of the extra outgoings added into the levy. The Court unanimously allowed the appeal and remitted the assessment of damages to Justice Emmett for further consideration in accordance with the High Court’s reasons. |
HIGH COURT OF AUSTRALIA Public Information Officer 7 August, 2003 AMACA PTY LIMITED (formerly known as JAMES HARDIE & COY PTY LIMITED) v THE STATE OF NEW SOUTH WALES AND ROLLS ROYCE INDUSTRIAL POWER (PACIFIC) LIMITED (formerly known as JOHN THOMPSON (AUSTRALIA) PTY LIMITED The New South Wales Court of Appeal must now decide whether the State of NSW owes an asbestos disease victim a duty of care and whether it should contribute to a damages pay-out after the High Court of Australia today unanimously allowed Amaca's appeal. Warren Hay was diagnosed with mesothelioma in 1993 after being exposed to asbestos dust and fibre between 1958 and 1961 during construction of the Wallerawang power station near Lithgow. Mr Hay brought proceedings in the NSW Dust Diseases Tribunal, obtaining consent judgments against his then employer Rolls Royce and the NSW Electricity Commission for $185,000 each. Rolls Royce and the Electricity Commission both sought contribution from asbestos product manufacturer James Hardie. The Electricity Commission has settled its claim, obtaining a 70 per cent contribution ($129,500). James Hardie then claimed contribution from the State, alleging NSW breached a duty of care owed to Mr Hay as it was in a position to prevent or minimise harm caused by exposure to asbestos in sites such as power stations. In the Tribunal, Judge James Curtis found it unnecessary to decide whether NSW owed a duty to Mr Hay. He held that James Hardie created a danger which the State had merely failed to avoid and said contribution to Mr Hay's damages should come out of James Hardie's profits from selling asbestos products, not from NSW taxpayers. The NSW Court of Appeal dismissed James Hardie's appeal, holding that Judge Curtis had properly exercised the power under section 5(2) of the Miscellaneous Provisions Act to exempt NSW from liability. Subsequently, the High Court gave Amaca special leave to appeal against the Court of Appeal judgment. The question for the Court was whether Amaca's claim against NSW could be decided without any determination of the State's liability towards Mr Hay. It held that contribution outcomes available under section 5(2) depended upon Amaca's entitlement to obtain contribution from another body liable for the same damage. But neither the Dust Diseases Tribunal nor the Court of Appeal ever decided whether or not the State was liable. Nor did NSW admit liability. The High Court held that Judge Curtis made two errors of law. That James Hardie was a commercial enterprise and the State raised revenue through taxes was irrelevant in deciding their responsibilities to contribute to Mr Hay's damages. Judge Curtis also made an assumption about the State's liability without determining the content of its duty of care or how the duty had been breached. These issues had to be determined before any decision concerning contribution could be made. The Court ordered that the case be remitted to the Court of Appeal to determine whether NSW owed Mr Hay a duty of care and whether Amaca could claim contribution from the State. |
HIGH COURT OF AUSTRALIA Public Information Officer 22 March 2007 THE QUEEN v STEVEN WAYNE HILLIER The ACT Court of Appeal had erred in its approach to circumstantial evidence in the murder case against Mr Hillier, the High Court of Australia held today. Mr Hillier, 43, of Chisholm in Canberra, was charged with the murder of his former de facto wife, Ana Louise Hardwick, 35, who was found strangled in her Isabella Plains home on 2 October 2002. The couple lived together from 1987 to 1999 and had two children. When they separated the children lived with Mr Hillier, but in June 2002, on Ms Hardwick’s application, the Family Court of Australia ordered that the children reside with her. Mr Hillier had an appeal pending when Ms Hardwick died. The prosecution case was that Mr Hillier murdered Ms Hardwick to avoid losing custody of their children. He was convicted in the ACT Supreme Court and sentenced to 18 years’ jail. The Court of Appeal, by majority, allowed an appeal and ordered that the conviction and sentence be set aside. It concluded there was a real possibility that another person was responsible for Ms Hardwick’s death, pointing to the presence of an another person’s DNA on Ms Hardwick’s pyjamas, a pair of handcuffs (still in their packaging) and matching marks on the bedhead, bruises on her wrists, footprints in soot from a fire lit in her bedroom after she died, and fingerprints and hair from an unidentified source. The Director of Public Prosecutions sought special leave to appeal to the High Court, arguing that the Court of Appeal erred in substituting its views of the evidence for the verdict of the jury, and in setting aside Mr Hillier’s conviction rather than ordering a retrial. The application was argued before a High Court full bench as on appeal. The DPP argued that Mr Hillier had the opportunity to kill Ms Hardwick, he had a motive as he was concerned about losing custody, his DNA was also on Ms Hardwick’s pyjama top, and chemical injuries to his fingertips were caused to avoid being fingerprinted. In the week before she died, Mr Hillier made numerous phone calls to doctors, psychiatrists, lawyers and counsellors to seek assistance with his Family Court appeal, but the calls stopped when Ms Hardwick is thought to have died. The High Court unanimously granted the special leave application and allowed the appeal. By a 4-1 majority, the Court remitted the matter to the Court of Appeal for rehearing. One member of the High Court would have ordered a retrial. The Court held that the majority in the Court of Appeal had identified facts which, examined in isolation from other evidence, were treated as requiring the conclusion that it was not open to the jury to be satisfied of his guilt beyond reasonable doubt. The High Court held that the Court of Appeal failed to consider whether, on the whole of the evidence, all of it circumstantial, it was open to the jury to be persuaded beyond reasonable doubt that Mr Hillier was guilty. Neither at trial, nor on appeal, was a circumstantial case to be considered in piecemeal fashion. The conclusion that a guilty verdict was not open to the jury could only be reached if some aspects of the evidence were assessed separately from the rest. The Court held that the reasoning of the Court of Appeal majority was erroneous. |
HIGH COURT OF AUSTRALIA Public Information Officer 11 September, 2003 CHRISTOPHER MICHAEL ROGERS v NATIONWIDE NEWS PTY LIMITED The High Court of Australia today allowed an appeal by Sydney eye surgeon Dr Rogers who had sued for defamation for the misreporting of the circumstances of earlier litigation in which he had been successfully sued by a patient. Maree Lynette Whitaker was awarded almost $875,000 in damages and interest by the New South Wales Supreme Court in 1990. Dr Rogers had operated on her blind right eye. She was left blind in both eyes. Dr Rogers was found liable because he had failed to warn Mrs Whitaker of a remote risk in the surgical procedure he recommended and performed. He was not negligent either in recommending the procedure or in the manner in which it was performed. The Australian Taxation Office assessed the interest component of the award as income and taxed Mrs Whitaker on it. In the Federal Court in 1996 Justice Graham Hill rejected Mrs Whitaker’s challenge to the assessment. The Daily Telegraph’s story on this second case referred to her being blinded by her surgeon’s negligence. The story imputed to Dr Rogers negligence in the performance of the surgery. Dr Rogers sued Nationwide News, publisher of The Daily Telegraph, for defamation and was awarded $250,000 by the NSW District Court. Judge Robyn Tupman found that the journalist was more concerned with sensationalism than accuracy and did not check earlier stories in her own newspaper or other newspapers which widely reported the original Rogers v Whitaker decision. The NSW Court of Appeal, by majority, allowed an appeal by Nationwide News, holding that the publisher had made out a defence under section 24 of the NSW Defamation Act protecting fair reports of court proceedings. The Court of Appeal also unanimously held that the damages awarded to Dr Rogers were excessive. He appealed to the High Court. The High Court unanimously held that The Daily Telegraph’s story was not a fair report of court proceedings and defamed Dr Rogers by adding to what was actually said by Justice Hill. Nationwide News’s conduct in publishing the story was not reasonable in the circumstances so the story was not entitled to the statutory defence of qualified privilege. The Court also unanimously held that the $250,000 damages were not excessive. |
HIGH COURT OF AUSTRALIA LYONS v STATE OF QUEENSLAND 5 October 2016 [2016] HCA 38 Today the High Court dismissed an appeal from the Court of Appeal of the Supreme Court of Queensland. The High Court held that the Court of Appeal did not err in holding that the appellant was not discriminated against when she was excluded from jury service. The appellant is profoundly deaf. She was summoned for jury service by the Deputy Registrar of the Ipswich District Court ("Deputy Registrar"). She contacted the Ipswich Courthouse advising that she would require the services of two Australian Sign Language ("Auslan") interpreters. The Deputy Registrar responded that there was no provision under the Jury Act 1995 (Q) to administer an oath to an interpreter for a juror and that it was not possible for an interpreter to be present in the jury room during its deliberations. The appellant made a complaint which was referred to the Queensland Civil and Administrative Tribunal ("QCAT"). The appellant alleged that the Deputy Registrar contravened the prohibitions, under the Anti-Discrimination Act 1991 (Q), against direct and indirect discrimination in the performance of a function or the exercise of a power under Queensland law. The appellant asserted that the Deputy Registrar had excluded her on the basis of her impairment so as to constitute direct discrimination and that the Deputy Registrar had imposed a condition on her participation in the jury process so as to constitute indirect discrimination. QCAT found that the Deputy Registrar's understanding of the Jury Act was incorrect but it accepted that the Deputy Registrar had not unlawfully discriminated against the appellant. The appellant appealed to QCAT's Appeal Tribunal which dismissed the appeal, holding that the Deputy Registrar's understanding of the Jury Act was correct. The Court of Appeal refused leave to appeal from the Appeal Tribunal's decision. By grant of special leave, the appellant appealed to the High Court. The Court held that, absent specific legislative provision, Queensland law did not permit an Auslan interpreter to be present during jury deliberations. It followed that the appellant was not qualified to serve as a juror and the Deputy Registrar was required to exclude her from the jury panel. The exercise of the Deputy Registrar's powers in conformity with the Jury Act therefore did not infringe the relevant prohibitions, under the Anti-Discrimination Act, against discrimination. |
HIGH COURT OF AUSTRALIA 28 March 2012 PHONOGRAPHIC PERFORMANCE COMPANY OF AUSTRALIA LIMITED & ORS v COMMONWEALTH OF AUSTRALIA & ORS [2012] HCA 8 Today the High Court dismissed a challenge to the validity of compulsory licensing provisions under ss 109 and 152 of the Copyright Act 1968 (Cth) ("the 1968 Act"). The Court held unanimously that those provisions are not invalid by reason of s 51(xxxi) of the Constitution, which empowers the Commonwealth Parliament to make laws with respect to "the acquisition of property on just terms". Prior to the 1968 Act, the Copyright Act 1911 (Imp) ("the 1911 Act") was in force in Australia, with such modifications as were made by the Copyright Act 1912 (Cth) ("the 1912 Act"), as amended from time to time. An owner of a copyright in a record protected under the 1911 Act had the exclusive right to perform the record in public, and a correlative exclusive right to license or authorise a radio broadcaster to broadcast the record. Neither the 1911 Act nor the 1912 Act provided for a compulsory license scheme under which a broadcaster could broadcast a sound recording without the consent of the owner. The 1968 Act commenced operation on 1 May 1969. The effect of transitional provisions contained in the 1968 Act was that pre-1969 recordings which were copyright protected under the 1911 Act were taken to be sound recordings in which copyright subsisted under Pt IV of the 1968 Act. Section 109 of the 1968 Act operates to qualify the exclusive right under the 1968 Act of an owner of copyright to communicate a published sound recording to the public. It provides that copyright in a published sound recording is not infringed by a broadcaster, even in the absence of authorisation by the "owner" of the copyright, if there is either an order by the Copyright Tribunal ("the Tribunal") under s 152 of the 1968 Act in force, or an undertaking given to pay the owner such amounts as may be determined under that section. Section 152 imposes a "cap" on the amount that the Tribunal may require a broadcaster to pay for what is in substance a compulsory license. The first plaintiff carries on business as a copyright collecting society. It acts in the interests of the owners and exclusive licensees and controllers of copyright in sound recordings which presently subsist under Pt IV of the 1968 Act. In these proceedings the first plaintiff acted on behalf of the second to fifth plaintiffs in respect of sound recording copyrights in published sound recordings which were made before the commencement of the 1968 Act. The sixth plaintiff is also the holder of relevant sound recording copyrights. The plaintiffs brought proceedings in the original jurisdiction of the High Court challenging the validity of the cap created by ss 109 and 152 of the 1968 Act. The plaintiffs submitted that, by fixing a cap on the amount which the Tribunal may determine for the compulsory licence of the pre-1969 recordings, ss 109 and 152 effected an acquisition of the property in the pre-1969 recordings on other than just terms, contrary to s 51(xxxi) of the Constitution. However the plaintiffs did not assert that the 1968 Act is invalid because it brought to an end the operation of the copyright system under the 1911 Act without the provision of just terms, or that the compulsory licensing system established by the 1968 Act is wholly invalid. The High Court held unanimously that the 1968 Act excluded further operation of the 1911 Act and denied subsistence of copyright otherwise than by virtue of the 1968 Act. Sections 109 and 152 therefore did not operate to qualify the copyright of the plaintiffs under the 1911 Act and so did not constitute an acquisition of the property in the pre-1969 recordings. |
HIGH COURT OF AUSTRALIA 10 August 2011 AMANDA CUSH v MERYL LURLINE DILLON LESLIE FRANCIS BOLAND v MERYL LURLINE DILLON [2011] HCA 30 Today the High Court dismissed two appeals from the Court of Appeal of the Supreme Court of New South Wales. The appeals were brought by Ms Amanda Cush and Mr Leslie Boland, who claimed to have been defamed by Mrs Meryl Dillon. The Court of Appeal had held that the common law defence of qualified privilege applied to a defamatory statement made by Mrs Dillon unless it could be shown in a new trial that her statement was actuated by malice. At the time of the defamatory statement, Mr James Croft was the Chairperson of the Board of the Border Rivers-Gwydir Catchment Management Authority ("the CMA"), Ms Cush was the General Manager and Mrs Dillon and Mr Boland were Board members. The defamatory statement was made at a meeting on 8 April 2005 between Mr Croft and Mrs Dillon concerning the management of the CMA. Mrs Dillon said to Mr Croft "it is common knowledge among people in the CMA that Les and Amanda are having an affair". In actions brought by Ms Cush and Mr Boland in the District Court of New South Wales, a jury found that Mrs Dillon had defamed Ms Cush and Mr Boland. The jury found that the defamatory imputations conveyed by the statement were that Mr Boland and Ms Cush were acting unprofessionally in their roles at the CMA, that Mr Boland was unfaithful to his wife and that Ms Cush was undermining Mr Boland's marriage. Mrs Dillon accepted that the content of the statement was not true and said that she did not believe the allegations to be true when she made the statement. Mrs Dillon pleaded in defence that the statement had been made on an occasion of qualified privilege. The trial judge did not determine whether the occasion for the making of the statement was a privileged one. He held that any privilege which may have attached to the making of the statement had been lost by malice on the part of Mrs Dillon. This conclusion was based upon findings that Mrs Dillon had previously spread the rumour and her belief that the statement was not true. On appeal, the Court of Appeal held that the trial judge had erred in failing to find that the publication had occurred on a privileged occasion. It ordered a new trial on the defence of qualified privilege at common law. Ms Cush and Mr Boland appealed, by special leave, to the High Court of Australia. The High Court held that the publication had occurred on a privileged occasion. Mrs Dillon had a duty to disclose, and Mr Croft an interest in receiving, information concerning the nature of the relationship between members of the Board and members of staff. The Court held that, in the context in which Mrs Dillon spoke to Mr Croft, there was no relevant distinction in relation to the operation of the privilege between publication of a rumour or the fact of an affair conveyed by the expression "common knowledge". The Court also held that the words used by Mrs Dillon were not extraneous or irrelevant to the occasion of qualified privilege, which can only be destroyed by evidence that the statement was actuated by improper motive, lack of belief in the truth of a statement being insufficient. Accordingly, the Court dismissed the appeals. There will be a new trial confined to the issue whether qualified privilege at common law was destroyed by malice on the part of Mrs Dillon. |
HIGH COURT OF AUSTRALIA 4 August 2005 RE SENATOR THE HONOURABLE AMANDA VANSTONE, THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS; EX PARTE AMOS BODE AME The High Court of Australia today upheld the validity of Australian laws which provided that when Papua New Guinea became independent in 1975 its indigenous people who then became citizens of PNG ceased to be citizens of Australia. Mr Ame had argued that he had remained an Australian citizen and never become a PNG citizen because he never took steps to renounce Australian citizenship. He was born in 1967 in Papua, which with New Guinea was administered by Australia. People born in Papua after the Australian Citizenship Act was passed in 1948 were Australian citizens but under the Migration Act required an entry permit to enter or live in Australia. Mr Ame first entered Australia in December 1999 on a three-month visa. Since then he has held a series of visas, the latest a bridging visa that will expire 28 days from today. Mr Ame began proceedings against the Minister seeking writs of prohibition and mandamus and a declaration as he contends that he did not cease to be an Australian citizen on PNG’s Independence Day, 16 September 1975, that he is not an “alien” according to the Australian Constitution and that the provisions of the Migration Act relating to detention and removal of unlawful non-citizens do not apply to him. Australia’s Papua New Guinea Independence Act provided that after Independence Day Australia ceased to have any sovereignty, sovereign rights or administrative rights in relation to PNG. The PNG Constitution did not allow dual citizenship and declared that anyone who was born in PNG and had two indigenous grandparents was automatically a PNG citizen. All four of Mr Ame’s grandparents were born in his district in Papua. Under the policy against dual citizenship, children who also had “real foreign citizenship” had to renounce their other citizenship by age 19 or they ceased to be PNG citizens. Australian citizenship acquired simply by being born in Papua or New Guinea was not “real foreign citizenship” so did not need to be renounced. Regulation 4 under the PNG Independence Act provided that a person in the position of Mr Ame who became a citizen of the new nation of PNG ceased to be an Australian citizen. The Court unanimously held that Mr Ame ceased to be an Australian citizen on Independence Day, that regulation 4 was authorised by the PNG Independence Act, and that the Act was constitutionally valid. On Independence Day Mr Ame became a citizen of PNG by virtue of the PNG Constitution. In recognition of the anti-dual citizenship policy, Australia, by regulation 4, withdrew Mr Ame’s Australian citizenship. The legislation under which that was done was within the constitutional power to make laws with respect to naturalization and aliens. |
HIGH COURT OF AUSTRALIA 26 March 2008 Public Information Officer AUSSIE VIC PLANT HIRE PTY LTD v ESANDA FINANCE CORPORATION LIMITED A court could not extend the time for compliance with a statutory demand under the Corporations Act if the time fixed by the Act had already expired, the High Court of Australia held today. Esanda served a statutory demand on Aussie Vic Plant Hire when Aussie Vic owed Esanda more than $400,000 under several hiring and chattel mortgage contracts. A statutory demand is a demand served on a company under section 459E of the Corporations Act to pay a debt or debts within 21 days. Section 459F(2) provides that if the company applies pursuant to section 459G for an order to set aside the demand, a court may extend the period for compliance, and if no extension is ordered the period ends seven days after the application under section 459G is finally determined. Aussie Vic applied to the Victorian Supreme Court for an order setting the demand aside. On 20 June 2006, Master John Efthim dismissed the application to set aside the demand but ordered that the time for compliance be extended to 4 July 2006. Aussie Vic was entitled to appeal to a single judge of the trial division of the Supreme Court. After the extension fixed by Master Efthim had expired but before the appeal to a single judge had come on for hearing, Aussie Vic applied for another extension of time for compliance. The application and the appeal were heard by Justice Simon Whelan who dismissed both. He held that he could make no order to extend time due to section 459F(1) of the Act, which provided that the company was taken to fail to comply with the demand if the period for compliance had ended. Aussie Vic then appealed to the Victorian Court of Appeal, which sat with five Justices. On the issue of whether the time for compliance with a statutory demand could be extended after it had expired, two members of the Court held that it could, two members held that the preferable construction of the Act was that it could but that earlier contrary decisions should still apply, and the fifth member held that it could not. The Court of Appeal dismissed the appeal and Aussie Vic appealed to the High Court. The High Court, by a 4-1 majority, dismissed the appeal and held that an order could be not be made to extend the period of compliance with a statutory demand after that period had expired. Generally the Act allowed a period for compliance to be extended even if the period has ended, unless the contrary intention appeared. The Court held that such a contrary intention did appear in Part 5.4 of the Act, entitled “Winding up in insolvency”, which included sections 459E, 459F and 459G. It held that the evident purposes of Part 5.4 included speedy resolution of applications to wind up insolvent companies. Section 459F(1) provides that if at the end of the period for compliance with a statutory demand the demand is still in effect and the company has not complied with it, the company is taken to fail to comply with the demand. The Court held that the demand was in force and the time had expired so the company had not complied with the demand. It said that Aussie Vic’s argument that an order extending the time for compliance can be made after the period has expired was not supported by section 459(2). It pointed out that denying the power to extend the time to comply with a statutory demand after the time had already expired did not affect the determination of the rights or liabilities of the company or of the party making the demand. Non-compliance with a demand merely creates a rebuttable presumption of insolvency. |
HIGH COURT OF AUSTRALIA 13 December 2019 CNY17 v MINISTER FOR IMMIGRATION AND BORDER PROTECTION & ANOR [2019] HCA 50 Today the High Court, by majority, allowed an appeal from the Full Court of the Federal Court of Australia concerning whether a decision of the Immigration Assessment Authority ("the IAA") was infected by apprehended bias. The majority held that the decision was infected by apprehended bias because the IAA considered material provided by the Secretary of the Department of Immigration and Border Protection ("the Secretary") which was irrelevant to the review and prejudicial to the appellant. The appellant applied for a safe haven enterprise visa in September 2016. In his application form, the appellant disclosed a conviction for damaging Commonwealth property while in immigration detention on Christmas Island, and noted pending charges for "spitting at a guard & breaking a window" during protests on Christmas Island. The appellant's visa application was refused. The decision to refuse the visa was automatically referred to the IAA for review. When a decision is referred to the IAA, s 473CB of the Migration Act 1958 (Cth) requires the Secretary to give certain "review material" to the IAA. This includes any material held by the Secretary which the Secretary considers to be "relevant to the review". Section 473DB requires the IAA to conduct its review by considering the review material provided by the Secretary. The Secretary gave review material to the IAA to consider in reviewing the decision to refuse the appellant's visa application. This included material which was not relevant to the review ("the extraneous material"). The extraneous material contained factual assertions about the appellant. These included, among other things, assertions that the appellant had a history of aggressive or challenging behaviour, had been involved in many incidents while in detention, was the subject of unspecified investigations, and had been refused bridging visas on a number of occasions. The appellant had never seen the documents containing these assertions. He was not given an opportunity to respond to them. The IAA affirmed the decision to refuse the appellant's visa application. The IAA said in its reasons that it had considered the information provided by the Secretary, but did not make particular reference to the extraneous material. The appellant argued that the decision of the IAA should be quashed, because a fair-minded lay observer might have thought, in light of the extraneous material, that the IAA might not have brought an impartial mind to the question of whether the appellant was entitled to a visa. That argument was rejected by the Federal Circuit Court of Australia and by a majority of the Full Court of the Federal Court of Australia. A majority of the High Court held that the provision of the extraneous material to the IAA gave rise to a reasonable apprehension of bias. The IAA was required to consider the review material provided by the Secretary, which included the extraneous material, and said that it had done so. A fair-minded lay observer might think that consideration of the extraneous material might lead the IAA to have a bias against the appellant, possibly by thinking, consciously or subconsciously, that the appellant was not a fit person to hold a visa or that he would be a danger to the community. This might lead the IAA to make a decision otherwise than on the merits of the appellant's application. The IAA's decision was therefore quashed and the matter remitted to a differently constituted IAA. |
HIGH COURT OF AUSTRALIA 20 June 2014 PLAINTIFF S297/2013 v MINISTER FOR IMMIGRATION AND BORDER PROTECTION & ANOR [2014] HCA 24 Today the High Court unanimously held that the Minister for Immigration and Border Protection ("the Minister") did not have the power under s 85 of the Migration Act 1958 (Cth) ("the Act") to limit the number of protection visas that may be granted in a specified financial year. The judgment in this matter should be read with the judgment handed down today in the concurrently heard matter Plaintiff M150 of 2013 v Minister for Immigration and Border Protection [2014] HCA 25. The plaintiff is a Pakistani national who entered Australia by sea at Christmas Island in 2012. He did not have a visa and was, therefore, an unlawful non-citizen within the meaning of the Act. He made a valid application for a protection visa. The Refugee Review Tribunal determined that he was a refugee within the meaning of the Refugees Convention, satisfying the criterion for a protection visa under s 36(2)(a) of the Act. However, he has been neither granted nor refused a protection visa because of an instrument signed by the Minister on 4 March 2014, which purported to determine under s 85 of the Act the maximum number of protection visas that may be granted in the financial year ending 30 June 2014. That maximum number having been reached, the grant of a protection visa to the plaintiff in this financial year would exceed that limit. Section 85 of the Act provides that the Minister may, by notice in the Commonwealth of Australia Gazette, determine the maximum number of visas of a specified class that may be granted in a specified financial year. Protection visas are a class of visa provided for by s 36. Under s 65, the Minister has a duty, after considering a valid application for a visa, to grant the visa if satisfied that certain conditions are met and to refuse to grant the visa if not so satisfied. Section 65A imposes a duty on the Minister to make a decision on protection visa applications within 90 days. In proceedings initiated in the High Court, the plaintiff claimed that the instrument limiting the number of protection visas which may be granted was invalid and that the Minister was bound to consider and determine his application and grant him a protection visa. A special case stated questions of law for determination by the Full Court. The High Court held that the instrument was invalid. In light of the time limit imposed by s 65A on the determination of protection visa applications, s 85 did not empower the Minister to determine the maximum number of protection visas that may be granted in a financial year. The Court ordered that the Minister consider and determine the plaintiff's application for a protection visa according to law. |
HIGH COURT OF AUSTRALIA 14 December 2011 SAYED ABDUL RAHMAN SHAHI v MINISTER FOR IMMIGRATION AND CITIZENSHIP [2011] HCA 52 Today the High Court held that it was not a requirement for the grant of a Global Special Humanitarian visa to the mother of a refugee that the son who proposed her for the visa be under the age of 18 at the time of the decision whether to grant it. A delegate of the Minister for Immigration and Citizenship refused to grant a visa to the plaintiff's mother on the basis that she did not fall within the definition of a member of the plaintiff's "immediate family" (a requirement for a Global Special Humanitarian visa) because the plaintiff had reached the age of 18 after his mother applied for the visa but before the decision on her application was made nine months later. Accordingly, the delegate of the Minister made a jurisdictional error. The plaintiff, a refugee from Afghanistan, held a protection visa. In December 2009 he proposed that his mother and some other relatives be granted visas to enter and remain in Australia. The Migration Regulations 1994 (Cth) ("the Regulations") provided for prescribed classes of visas including the relevant subclass of Refugee and Humanitarian (Class XB) visas, Subclass 202 Global Special Humanitarian. Schedule 2 of the Regulations set out criteria to be satisfied for the grant of a visa. Clause 202.211(1)(b) of Sched 2 stated, as the criterion to be satisfied at time of application, that the applicant "meets the requirements of subclause (2)". Sub-clause (2) of cl 202.211 set out six requirements, including that the visa applicant must have been a "member of the immediate family" of the proposer at certain specified dates. The expression "member of the immediate family" was defined in reg 1.12AA(1) as including where "A is the parent of B, and B is not 18 years or more." Clause 202.221 required that, for the grant of a Subclass 202 visa, "the applicant continues to satisfy the criterion in clause 202.211." At the time that the plaintiff's mother made her application the plaintiff was under 18 years of age, but he attained 18 years of age before the Minister's delegate decided whether to grant or refuse the application. As a result, the mother ceased to be a member of the plaintiff's immediate family within the meaning of reg 1.12AA(1). The Minister's delegate decided that the mother's ceasing to be a member of the plaintiff's immediate family required that the mother's application be refused. The plaintiff instituted proceedings in the original jurisdiction of the High Court seeking certiorari to quash the decision made by the delegate of the defendant Minister. The issue before the Court was how the requirement made by cl 202.221 applied in relation to cl 202.211; that is, what was "the criterion" in cl 202.211 which the applicant must continue to satisfy? The Court held by majority that the requirement under cl 202.221 should not be read as engaging with cl 202.211(1)(b) or any of the six requirements stated in cl 202.211(2). The drafting history of the Regulations pointed to reading the requirement that the applicant continue to satisfy "the criterion" in cl 202.211 as engaging only with the first criterion, that "[t]he applicant… is subject to substantial discrimination, amounting to gross violation of human rights, in the applicant's home country and is living in a country other than the applicant's home country". The Regulations contained within the text of the provisions dealing with Subclass 202 visas a readily available form of words that could have been adopted to provide, as a criterion to be satisfied at the time of decision, that the applicant continue to be a member of the immediate family of the proposer. The failure to adopt this precedent suggested that the provision made by cl 202.221 of continuing to satisfy the criterion in cl 202.211 was not to engage with the requirement about membership of the proposer's family. |
HIGH COURT OF AUSTRALIA 17 November 2005 RINGROW PTY LTD v BP AUSTRALIA PTY LTD ULTIMATE FUEL PTY LTD v BP AUSTRALIA PTY LTD NADER-ONE PTY LTD v BP AUSTRALIA PTY LTD The High Court of Australia today upheld a clause in contracts relating to the sale of service station sites, which permitted BP to buy back the site in the event of breach of a term of a related contract under which the purchaser agreed, for a certain period, to supply only BP fuel from the site. Ringrow, Ultimate Fuel and Nader-One were Sydney service station operators who later bought their sites under a BP privately owned sites agreement (POSA). In 2002, BP served notices on all three operators that it intended to exercise its contractual option to buy back the sites as the operators had bought fuel from suppliers other than BP. In the Federal Court of Australia, Justice Peter Hely made declarations upholding the validity of BP’s termination of the POSA and its exercise of the option to buy back sites. The Full Court of the Federal Court unanimously dismissed an appeal. The service station operators then appealed to the High Court. The Court unanimously dismissed the appeal and held that the option clause did not amount to a penalty. The law of penalties is attracted, for example, where a contract stipulates that if a breach occurs the contract breaker will pay an agreed sum which exceeds what can be regarded as genuine pre-estimate of the damage likely to be caused by the breach. The service station operators argued that the POSA involved three penal factors: exclusion of goodwill from the resale price even though each operator had paid for goodwill; a double remedy for the same breach from the cumulative imposition of the buyback option upon the liability to pay damages should BP enforce that liability before exercising the option; and “the indiscriminate factor” – that the entitlement to terminate the POSA was indiscriminate regarding the nature of the breach. The High Court rejected all three arguments. It held that the difference between the original price and the buyback price must be extravagant and unconscionable or disproportionate to the point of oppressiveness to amount to a penalty. Because the service station operators failed to demonstrate the monetary value of the goodwill, it was not possible to say what money would be lost on buyback. The Court held therefore that it could not be said that the imposition of the buyback option was oppressive or was extravagant and unconscionable. The service station operators argued unsuccessfully for a concept of proportionality to be applied in determining penalty questions. The Court held that parties to a contract are normally free to agree upon its terms, and exceptions from that freedom of contact require good reason to attract judicial intervention to set aside the bargains upon which parties of full capacity have agreed. |
HIGH COURT OF AUSTRALIA 13 September 2017 THE QUEEN v KRITSINGH DOOKHEEA [2017] HCA 36 Today the High Court unanimously allowed an appeal from a decision of the Court of Appeal of the Supreme Court of Victoria concerning jury directions on the criminal standard of proof. The respondent was charged with the murder of the deceased and stood trial in the Supreme Court of Victoria. The sole issue at trial was whether the respondent had acted with murderous intent. The evidence showed that, shortly after the deceased arrived at the respondent's home, a violent physical altercation started between the deceased and the respondent, during which the deceased attempted to flee from the respondent. It was accepted that the respondent placed his hands around the deceased's neck and squeezed until the deceased stopped resisting. The trial judge directed the jury that the Crown had to satisfy the jury of the respondent's guilt "not beyond any doubt, but beyond reasonable doubt". The respondent was convicted of murder. The respondent appealed against conviction on a number of grounds and the Court of Appeal allowed the appeal on the ground that the trial judge erred in directing the jury that the Crown was required to satisfy them of guilt "not beyond any doubt, but beyond reasonable doubt". The Court of Appeal concluded that it was an error to suggest to the jury that they may entertain a doubt which is not a "reasonable" doubt and on that basis proceed to convict the respondent. By grant of special leave, the Crown appealed to the High Court on the question of whether it was an error of law productive of a substantial miscarriage of justice for the trial judge to direct the jury that the Crown had to satisfy the jury of the respondent's guilt "not beyond any doubt, but beyond reasonable doubt". The Crown argued that although the trial judge had strayed from the traditional formulation of the criminal standard of proof by directing the jury in those terms, it was not an error to do so and, in any event, it was not productive of a substantial miscarriage of justice because the charge taken as a whole sufficiently made clear to the jury that the respondent was to be given the benefit of any reasonable doubt. The Court held that a reasonable doubt is what a reasonable jury considers to be a reasonable doubt. Although it is generally speaking undesirable for a trial judge to contrast reasonable doubt with any doubt, in point of principle it is not wrong to notice the distinction and it is therefore not necessarily determinative of an appeal against conviction that the trial judge directed the jury by reference to that distinction. In this case, it could not be supposed that the jury might have been left in any uncertainty as to the true meaning of the need for proof beyond reasonable doubt. Accordingly, the appeal was allowed. |
HIGH COURT OF AUSTRALIA 4 August 2010 CGU INSURANCE LIMITED v ONE.TEL LIMITED (IN LIQUIDATION) & ORS [2010] HCA 26 In September 2004, Mr John Greaves was ordered to pay $20 million in compensation to One.Tel Limited ("One.Tel"). Mr Greaves had been a director of One.Tel and was insured under a directors and officers liability policy, issued by CGU Insurance Limited ("CGU"). Today the High Court held that the termination of a deed of arrangement, pursuant to which Mr Greaves had assigned his rights under the policy to a trustee, did not prevent the trustee from commencing an action on the policy in respect of the $20 million. Mr Greaves (the third respondent) was, in 1995 and from 1997 to 2001, a director of One.Tel (the first respondent). He was insured under a directors and officers liability policy of insurance, issued by CGU (the appellant). In December 2001, after the collapse of One.Tel, the Australian Securities and Investments Commission ("ASIC") (the fourth respondent) sued Mr Greaves in the Supreme Court of New South Wales for breaches of the Corporations Act 2001 (Cth). In September 2004, by consent of the parties, the Supreme Court ordered Mr Greaves to pay compensation to One.Tel in the sum of $20 million and to pay $350,000 to ASIC. In November 2004, Mr Greaves entered into a deed of arrangement pursuant to Part X of the Bankruptcy Act 1966 (Cth). Mr David Watson was the trustee of the deed. Under the deed, Mr Greaves was to assign to Mr Watson, as trustee, all the property described in Schedule A to the deed, including Mr Greaves's rights under the policy with CGU. The deed provided that the trustee should "get in and realise" that property "as soon as reasonably practicable". It also provided that the trustee should apply any amount received under the insurance policy in payment of any liability Mr Greaves might have to ASIC and One.Tel. Immediately after the trustee had completed or settled any claim under the policy (or had decided not to pursue a claim under the policy), the trustee was to issue a certificate. Once that certificate had been executed, Mr Greaves would be absolutely released and discharged from all liability in respect of the orders made by the Supreme Court in September 2004. Prior to the execution of that certificate, the deed prevented the trustee or any creditor from enforcing those orders. Finally, the deed stipulated that it was to terminate three years from the date of its execution unless the creditors resolved to extend its operation. On October 2006, the trustee commenced proceedings against CGU in the Supreme Court of New South Wales, pursuing Mr Greaves's cause of action on the policy in respect of the $20 million compensation order. In November 2007, the deed terminated – three years having passed since its execution. The primary issue for determination by the trial judge was whether the trustee's right to pursue an action under the policy survived the termination of the deed. His Honour held that, once the deed terminated, the trustee had no power to continue the proceedings. The Court of Appeal allowed the appeal. On 12 March 2010, CGU was granted special leave to appeal to the High Court. CGU advanced two central contentions before the Court. The first was that, even if the assignment to the trustee of the chose in action (that is, the right to pursue proceedings under the policy) was a valid legal or equitable assignment, neither the Bankruptcy Act nor the deed itself gave the trustee the power to continue the proceedings after termination. The second was that Mr Greaves had suffered no "loss" within the meaning of the policy, because even after the deed had terminated it continued to prevent anyone from enforcing the orders of September 2004 against him. On the first issue, the Court noted CGU's concession that, once the deed had terminated, the trustee remained a trustee; but instead of holding the chose in action on the trusts under the deed, he held the property on trust for Mr Greaves. The Court accepted that concession as correct. It noted, however, that one obligation of a trustee which exists by virtue of the very office is the obligation to protect the trust property and vindicate the rights attaching to it. That obligation exists even if no provision of any statute or trust instrument creates it, and unless it is negated by any such provision. Here, no provision of the Bankruptcy Act or the deed negated it. Even after termination of the deed, the trustee remained a trustee and continued to have an obligation to comply with the duty to vindicate the rights associated with the trust property. The trustee was not disentitled from continuing the proceedings against CGU. On the second issue, the Court rejected CGU's submission that the clause preventing the trustee and creditors from enforcing the September 2004 orders survived the termination of the deed. It further held that, even if the stay continued in force, Mr Greaves had still suffered a "loss" within the meaning of the policy. The Court allowed the appeal in part, as its answers to some of the questions reserved for the consideration of the trial judge differed from those given by the Court of Appeal. The appeal was otherwise dismissed and CGU was ordered to pay One.Tel's costs. |
HIGH COURT OF AUSTRALIA 14 December 2016 NEW SOUTH WALES ABORIGINAL LAND COUNCIL v MINISTER ADMINISTERING THE CROWN LANDS ACT [2016] HCA 50 Today the High Court, by majority, dismissed an appeal from the Court of Appeal of the Supreme Court of New South Wales. The majority held that land in Berrima which had been the site of a gaol and correctional centre ("the claimed land") was not claimable under s 36 of the Aboriginal Land Rights Act 1983 (NSW) ("the ALR Act") because it was "lawfully ... occupied" under s 36(1)(b) of that Act. Section 36(2) of the ALR Act allows the appellant, the New South Wales Aboriginal Land Council ("NSW ALC"), to make a claim for land. Under s 36(5), the Crown Lands Minister shall grant the claim if satisfied that the land is "claimable Crown lands", which is defined in s 36(1) to include Crown land that has been "dedicated for any purpose" under certain legislation, except where, relevantly, land is "lawfully used or occupied" within the meaning of s 36(1)(b). On 24 February 2012, the NSW ALC made a claim under s 36(2) for the claimed land. Different parts of the claimed land were relevantly dedicated for the purposes of "Gaol Site (extension)", "Gaol Purposes" and "Gaol Site (addition)". Proclamations of the claimed land as the "Berrima Correctional Centre" and "Berrima Correctional Complex" had been revoked, and consideration was being given to its future use and ownership. Pursuant to s 13D of the Real Property Act 1900 (NSW), the State of New South Wales was registered as proprietor of the claimed land. The claim was refused by the joint Crown Lands Ministers on the basis that the claimed land was lawfully used and occupied by Corrective Services NSW ("CSNSW"). The NSW ALC appealed to the Land and Environment Court. Pain J dismissed the appeal, holding that the activities conducted on the claimed land at the date of claim established lawful occupation. Her Honour referred to the following factors: a security guard was always present; the buildings were locked at all times; essential services continued to be supplied to the buildings; the buildings were the subject of a continuous contract for their maintenance; the gardens continued to be maintained, largely by offenders serving community service orders; and the public could, and did, visit the gardens with permission from CSNSW. The NSW ALC appealed to the Court of Appeal, which dismissed the appeal (Leeming JA, Beazley P and Macfarlan JA agreeing). The Court of Appeal upheld Pain J's findings regarding occupation and rejected the NSW ALC's argument that Pain J erred in assessing occupation by reference to the claimed land being held pending a decision as to future use, rather than by reference to its dedicated gaol purposes. The Court also held that statutory authorisation was not required for "lawful occupation". By grant of special leave, the NSW ALC appealed to the High Court. A majority of the High Court held that the claimed land was occupied at the date of claim by reference to the activities taking place on it, and that it did not need to be actively used for its dedicated gaol purposes to be "lawfully occupied" as that would deny "occupied" a separate sphere of operation from "used" in s 36(1)(b). The majority considered the NSW ALC's argument that the claimed land could not lawfully be occupied without statutory authorisation. It held that s 2 of the New South Wales Constitution Act 1855 (Imp) did not abrogate the executive's power to appropriate waste lands to itself by way of dedication, use or occupation. Rather, s 2 made the executive's power over waste lands subject to the control of the legislature of New South Wales. The majority rejected an argument that CSNSW was not empowered to occupy the claimed land. As the owner of the claimed land, the State could lawfully occupy the claimed land through the executive government and its agents, including employees of CSNSW. |
HIGH COURT OF AUSTRALIA Public Information Officer 6 December 2007 GRAHAME JAMES GATELY v THE QUEEN No miscarriage of justice occurred when a jury, without the trial judge or lawyers present, was able to have a second viewing of a video of a child giving her evidence in a sexual offences trial, the High Court of Australia held today. Mr Gately was convicted in the Queensland District Court in November 2004 of 10 counts of indecent treatment of a girl under 16 who is a lineal descendant and one count of incest. A further charge of attempting to procure a child under 16 to commit an indecent act was withdrawn during the trial. The girl was 14 at the time the offences allegedly occurred between 22 July and 4 August 2002 and 16 by the time of the trial. A pre-recorded video of the girl giving her evidence and being cross-examined was shown to the jury. During deliberations, the jury asked to see the video again. Counsel for both the prosecution and defence agreed that, rather than reconvening the court, the jury could watch the video in the courtroom supervised by the bailiff. Mr Gately appealed to the Court of Appeal against his convictions. It unanimously dismissed the appeal. He then appealed to the High Court, alleging that there had been a miscarriage of justice because Judge Milton Griffin erred in allowing the jury to watch the video again and he did not direct the jury not to give undue weight to the girl’s evidence. Mr Gately also alleged that Judge Griffin erred in permitting the prosecutor to tender the girl’s written statement to police when she had already given full pre-recorded evidence. The High Court, by a 4-1 majority, dismissed the appeal. The Court unanimously held that the way in which the video was replayed to the jury without the Court reconvening was irregular, but the majority held that in the circumstances of the case this had not led to a miscarriage of justice. Mr Gately’s counsel’s consent to the jury watching the video with the bailiff was significant. Mr Gately did not give evidence or call evidence in his defence and little other evidence was given apart from the girl’s pre-recorded testimony. Her evidence was critical to both the prosecution’s case and Mr Gately’s answer that the prosecution had not proved its case beyond reasonable doubt. Allowing only the girl’s evidence to be re-examined by the jury in the circumstances of this case presented no risk of an unbalanced consideration of competing accounts of what allegedly happened. The majority rejected Mr Gately’s contention that Judge Griffin should have directed the jury not to give undue weight to the video evidence. No such direction was sought at trial. The Court unanimously dismissed the third ground of appeal, that the girl’s police statement was wrongly received in evidence. It held that the statement was properly admitted under section 93A of the Queensland Evidence Act which concerns written statements by children or intellectually impaired persons where they were also available to give evidence at trial. |
HIGH COURT OF AUSTRALIA 28 March 2008 Public Information Officer MW v DIRECTOR-GENERAL OF THE DEPARTMENT OF COMMUNITY SERVICES A New Zealand father had not established that he and the mother of his son had been de facto partners at the time of the child’s birth so an order for the boy to be sent back to NZ after the mother had removed him to Australia should be quashed, the High Court of Australia held today. MW was born in Poland in 1977 and moved to New Zealand with her parents. In 1996 she gave birth to a son, K. The father, born in 1964, is a New Zealander. MW and the father were not married and at least since shortly after the birth they have not lived together. K spent every second weekend and half the school holidays with his father under an access order made in 2000. Relations between the couple deteriorated. In 2006, without telling the father, MW departed with K for Sydney, where her parents now lived. The Director-General of the NSW Department of Community Services, as the State Central Authority acting on behalf of its NZ counterpart under the Hague Convention on the Civil Aspects of International Child Abduction, successfully applied to the Family Court of Australia for orders for the return of K to NZ. The application stated that the father had custody rights because he had the access order and because, as he was living with K’s mother when the boy was born, he was a joint guardian. Evidence was by way of affidavits from the parents and others which were not the subject of cross- examination. The Full Court of the Family Court, by majority, dismissed an appeal by MW, who then appealed to the High Court. The Court, by a 3-2 majority, allowed the appeal and dismissed the application to the Family Court. The Authority argued that the appeal should be dismissed on three grounds: that the access order conferred rights upon the father including the right to determine K’s place of residence; that removal breached the rights of custody held by the New Zealand Family Court which had made the access order; and that the father had rights of custody as he was K’s joint guardian. The High Court, by a 4-1 majority, rejected the first two grounds. It held that the father’s access order gave no right of veto over K’s removal from NZ. The Authority failed in its reliance upon the access order as the source of the father’s custodial rights including a right to determine K’s place of residence. As to the second ground, the Court held that Australia’s Family Law (Child Abduction Convention) Regulations did not support a Convention application by a parent asserting breach of the rights of custody vested in a NZ court. The NZ Care of Children Act provided that a mother was a child’s sole guardian if she were neither married to nor living with the father as a de facto partner when the child was born. However, K’s parents disputed whether or not they were living as de facto partners when K was born. In MW’s first affidavit she said verbal and physical abuse started during her pregnancy and that when K was two months old she moved out and went to live with her parents. In her second affidavit she said she did not live with the father when K was born, but that after about a month and a half she stayed with the father for three nights a week for about six weeks to see if he could be a father to K. She said at no time was she the father’s de facto partner. The High Court, by a 3-2 majority, held that the Full Court of the Family Court erred in concluding that the Authority had discharged its onus of establishing that K’s removal from NZ was wrongful on this third ground. It held that the affidavit material was insufficient to found an inference that the parents had lived together as a couple in the nature of a marriage or civil union. The Authority had failed to establish its case that the father was a guardian who could thus determine K’s place of residence. |
HIGH COURT OF AUSTRALIA 11 May 2011 INSIGHT VACATIONS PTY LTD T/AS INSIGHT VACATIONS v YOUNG [2011] HCA 16 Today the High Court unanimously dismissed an appeal by a tour company against a decision of the Court of Appeal of the Supreme Court of New South Wales upholding the liability of the company for damages for breach of an implied contractual warranty that its services, supplied in this case in Europe, would be rendered with due care and skill. In 2005, Mrs Young purchased a European tour package from Insight Vacations Pty Ltd ("Insight"). The contract between Mrs Young and Insight stated that it was to be governed by the law of New South Wales. The contract contained a clause exempting Insight from liability for claims arising from any accident or incident where a passenger occupied a motor coach seat fitted with a safety belt if the safety belt was not being worn. While travelling by coach between Prague and Budapest, Mrs Young got out of her seat to retrieve something from the overhead shelf. The coach braked suddenly, causing Mrs Young to fall and suffer injury. Mrs Young sued Insight for damages for breach of a contractual warranty, implied by s 74(1) of the Trade Practices Act 1974 (Cth) ("TPA"), that services supplied under the contract would be rendered with due care and skill. At trial in the District Court of New South Wales, Insight argued that it could rely on the exemption clause in the contract as an answer to Mrs Young's claim, notwithstanding s 68 of the TPA, which relevantly provided that any term of a contract purporting to exclude, modify or restrict liability for breach of the implied warranty is void. Insight's argument was based on s 74(2A) of the TPA, which provided that where an implied warranty in a contract was breached and the law of a State was the proper law of the contract, the law of the State applied to limit or preclude liability for that breach. Insight argued that s 74(2A) had the effect of picking up and applying s 5N of the Civil Liability Act 2002 (NSW) ("Civil Liability Act"), which provided that "a term of a contract for the supply of recreation services may exclude, restrict or modify" liability resulting from breach of an implied warranty. Insight submitted that the exemption clause was thereby given effect. That argument was rejected in the District Court. Mrs Young's claim was successful and she was awarded $22,371 in damages with costs. Insight's appeal to the Court of Appeal of the Supreme Court of New South Wales against the quantum of damages was allowed by all members of that Court, and the damages reduced, but Insight's appeal against liability was dismissed by majority. By special leave, Insight appealed to the High Court, advancing the same contentions as it had raised at first instance. Today the High Court unanimously dismissed the appeal. The Court held that s 74(2A) of the TPA picks up and applies, as surrogate federal laws, State laws that apply to limit or preclude liability for the breach of an implied warranty, but that s 5N of the Civil Liability Act is not picked up because it does not meet that description. Section 5N does not itself apply to limit or preclude liability, but only permits parties to certain contracts to exclude, restrict or modify certain liabilities. The Court further held that, even if s 5N had been picked up by s 74(2A), it would not have engaged with the facts of Mrs Young's claim. The reference in s 5N(1) to "a term of a contract for the supply of recreation services", while expressed in general language, should be read as subject to a geographical limitation deriving from the context and subject matter of the Civil Liability Act. The relevant geographical limitation is the place of supply of the recreation services. Therefore, s 5N applies only to contracts for the supply of recreation services in New South Wales. Section 5N did not apply to the contract between Mrs Young and Insight because that contract was for the supply of recreation services outside New South Wales. Moreover, the Court held that the exemption clause itself would have had no application to Mrs Young's claim. On its true construction, the exemption clause could apply only when a passenger occupied a seat on a motor coach, not when the passenger had left his or her seat to move about the coach as passengers were permitted to do under the contract. Because Mrs Young was not sitting in her seat when she fell, the exemption clause could not apply. Insight was ordered to pay Mrs Young's costs. |
HIGH COURT OF AUSTRALIA 5 October 2012 JT INTERNATIONAL SA v COMMONWEALTH OF AUSTRALIA; BRITISH AMERICAN TOBACCO AUSTRALASIA LIMITED & ORS v COMMONWEALTH OF AUSTRALIA [2012] HCA 43 On 15 August 2012 the High Court made orders in two matters concerning the Tobacco Plain Packaging Act 2011 (Cth) ("the Act"). Today the High Court delivered its reasons in those matters. A majority of the High Court held that the Act was valid as it did not acquire property. It therefore did not engage s 51(xxxi) of the Constitution, which requires any acquisition of property effected by a Commonwealth law to be on just terms. The Act imposes restrictions on the colour, shape and finish of retail packaging for tobacco products and restricts the use of trademarks on such packaging. The plaintiffs brought proceedings in the High Court challenging the validity of the Act, arguing that the Commonwealth acquired their intellectual property rights and goodwill otherwise than on just terms. A majority of the Court held that to engage s 51(xxxi) an acquisition must involve the accrual to some person of a proprietary benefit or interest. Although the Act regulated the plaintiffs' intellectual property rights and imposed controls on the packaging and presentation of tobacco products, it did not confer a proprietary benefit or interest on the Commonwealth or any other person. As a result, neither the Commonwealth nor any other person acquired any property and s 51(xxxi) was not engaged. |
HIGH COURT OF AUSTRALIA 12 February 2015 COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE & ORS v ZHAO & ANOR [2015] HCA 5 Today the High Court unanimously dismissed an appeal from a decision of the Court of Appeal of the Supreme Court of Victoria, which had stayed proceedings brought by the appellant for the forfeiture of property of the respondents as proceeds of crime, pursuant to s 49 of the Proceeds of Crime Act 2002 (Cth) ("the Act"), until the determination of a criminal charge against the second respondent. The second respondent was charged that he aided and abetted another to deal with money or property that was the proceeds of crime and worth $100,000 or more, contrary to ss 11.2 and 400.4 of the Criminal Code (Cth). He has been committed to stand trial for that offence. The first respondent is the second respondent's wife, and has not been charged with any offence, but is registered as the proprietor of a residential property which is a subject of the forfeiture proceedings. On the application of the appellant, the County Court of Victoria made an order under s 19 of the Act restraining the disposition of certain property owned by the respondents on the basis that it was the proceeds of crime. Later, the appellant applied for forfeiture of this property pursuant to s 49 of the Act. In the proceedings for the restraining order and the forfeiture order, it was alleged that the property sought to be forfeited is the proceeds of the same offence as that for which the second respondent is to be prosecuted in the criminal proceedings, save that in the criminal proceedings the offence is stated with respect to a particular period. The respondents filed applications commencing proceedings for the exclusion of certain property from the restraining order and from forfeiture. Thereafter, they made an application for a stay of the forfeiture proceedings and the exclusion proceedings until the completion of the criminal proceedings against the second respondent. The High Court unanimously found that the Court of Appeal was correct to order a stay of the forfeiture proceedings and the exclusion proceedings. The Court held that the issue, offences and circumstances in the forfeiture proceedings and in the criminal proceedings were substantially identical. It was not necessary for the second respondent to say any more than he did on the application for a stay in order to identify the risk of prejudice to him in the criminal proceedings. The Court found that the interests of justice were not served by requiring the second respondent to defend the forfeiture proceedings or pursue the exclusion proceedings before his criminal proceedings were finalised, especially since the appellant would suffer no relevant prejudice from a delay in the continuation of the forfeiture proceedings. |
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