High Court Bulletin
Produced by the Legal Research Officer, 
High Court of Australia Library
[2012] HCAB 03 (2 April 2012)

A record of recent High Court of Australia cases: decided, reserved for judgment, awaiting hearing in the Court’s original jurisdiction, granted special leave to appeal, refused special leave to appeal and not proceeding or vacated

1: Cases Handed Down
2: Cases Reserved
3: Original Jurisdiction
4: Special Leave Granted
5: Cases Not Proceeding or Vacated
6: Special Leave Refused

Summary of New Entries

1: Cases Handed Down
Case
	Title	
Betfair Pty Limited v Racing New South Wales	Constitutional Law	
Phonographic Performance Company of Australia Limited v Commonwealth of Australia 	Constitutional Law/ Intellectual Property	
Sportsbet Pty Ltd v New South Wales	Constitutional Law	
Baiada Poultry Pty Ltd v The Queen	Criminal Law	
BBH v The Queen	Criminal Law	
The Queen v Getachew	Criminal Law	
Commissioner of Taxation v Bargwanna	Taxation	

2: Cases Reserved
Case
	Title	
Crump v State of New South Wales & Anor 
	Constitutional Law	
Forrest v Australian Securities and Investments Commission & Anor; Fortescue Metals Group Inc v Australian Securities and Investments Commission & Anor	Corporations	
Minister for Home Affairs of the Commonwealth & Ors v Zentai & Ors	Extradition 	
The Board of Bendigo Regional Institute of Technical and Further Education v Barclay & Anor	Industrial law	

3: Original Jurisdiction
Case
	Title	
There are no new matters ready for hearing in the original jurisdiction of the High Court since High Court Bulletin 2 [2012] HCAB 02.	

4: Special Leave Granted
Case
	Title	
No new matters were granted special leave since High Court Bulletin 2 [2012] HCAB 02. 	

1: Cases Handed Down

The following cases were handed down by the High Court of Australia during the March 2012 sittings.

Constitutional Law

Betfair Pty Ltd v Racing New South Wales & Ors
S116/2011: [2012] HCA 12.   

Judgment delivered:  30 March 2012. 

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

Catchwords:

Constitutional law (Cth) – Operation and effect of Constitution – Freedom of interstate trade, commerce, and intercourse – Validity of fees imposed for use of NSW race field information – Practical effect of fee structure – Prejudice upon trade and not upon particular traders – Competitive disadvantage – Whether Racing Administration Act 1998 (NSW), s 33A(2) must be read as not authorising provisions in Racing Administration Regulation 2005 (NSW) obnoxious to s 92 of Constitution – Whether demonstrating greater financial impact on appellant relative to competitors sufficient to establish protection of intrastate trade from interstate competition.

Words and phrases – "competitive disadvantage", "discrimination", "protectionism".

Appealed from FCA FC: (2010) 189 FCR 356; [2010] FCAFC 133.

Phonographic Performance Company of Australia Limited v Commonwealth of Australia
S23/2010: [2012] HCA 8. 

Judgment delivered:  28 March 2012. 

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

Catchwords:

Intellectual property – Copyright – Sound recordings – Source of rights – Transitional provisions – Whether after commencement of Copyright Act 1968 (Cth), the Copyright Act 1911 (Imp) remained source of subsisting copyright in pre-1969 sound recordings.

Constitutional law (Cth) – Validity of Commonwealth legislation – Acquisition of property on just terms – Whether fixing of a "cap" on compulsory licence fees in relation to copyright interests is unconstitutional – Application of s 51(xxxi) of Constitution. 

Words and phrases – "compulsory licence", "copyright", "Imperial legislation", "just terms", "licence fees", "validity".

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

Sportsbet Pty Ltd v New South Wales
S118/2011: [2012] HCA 13.

Judgment delivered:  30 March 2012. 

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

Catchwords:

Constitutional law (Cth) – Operation and effect of Constitution – Freedom of interstate trade, commerce, and intercourse – Approval of use of NSW race field information for fee on wagering turnover – Practical effect of imposition of fee – Connection between location of wagering operator business and turnover of that business – Prejudice upon trade and not upon particular traders – Whether power of approval under Racing Administration Act 1998 (NSW), s 33A confined by positive rule that trade and commerce between Territories and States shall be absolutely free – Whether legislation granting power of approval imposed discriminatory restraints and interferences of protectionist kind.

Constitutional law (Cth) – Operation and effect of Constitution – Inconsistency of laws – Effect of Interpretation Act 1987 (NSW), s 31 on questions of inconsistency between Commonwealth and State law – Whether Northern Territory (Self-Government) Act 1978 (Cth), s 49 limits State legislative power – Whether Racing Administration Act, ss 33 and 33A inconsistent with Northern Territory (Self-Government) Act, s 49 and invalid to extent of inconsistency – Whether Northern Territory (Self-Government) Act, s 49 interpreted in accordance with s 92 of Constitution.

Words and phrases – "free trade", "practical operation", "protectionism".

Appealed from FCA FC:  (2010) 189 FCR 448; [2010] FCAFC 132.

Criminal Law

Baiada Poultry Pty Ltd v The Queen
M126/2011: [2012] HCA 14.

Judgment delivered:  30 March 2012. 

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

Catchwords:

Criminal law – Appeal – Jury misdirection – Application of "proviso" – Appellant convicted of offence under Occupational Health and Safety Act 2004 (Vic) – Trial judge failed to direct jury that prosecution had to prove beyond reasonable doubt particular element of offence in issue – Whether appellate court able to conclude that no substantial miscarriage of justice occurred – Whether judicial "discretion" in applying proviso.

Words and phrases – "proviso", "substantial miscarriage of justice".

Appealed from Vic SC (CA):  (2011) 203 IR 396; [2011] VSCA 23. 

BBH v The Queen
B76/2010: [2012] HCA 9.

Judgment delivered:  28 March 2012. 

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

Catchwords:

Criminal law — Evidence — Relevance — Propensity evidence — Applicant found guilty by jury of maintaining sexual relationship with child under 16, indecent treatment of child under 16 and sodomy of person under 18 — Complainant was applicant's daughter — Complainant's brother gave evidence of uncharged incident between applicant and complainant — Complainant's brother provided innocent explanation for incident — Whether brother's evidence admissible where complainant did not give evidence about incident — Whether evidence relevant to applicant's alleged sexual interest in complainant — Whether test for admissibility in Pfennig v The Queen (1995) 182 CLR 461 applicable — Whether test satisfied.

Words and phrases – "propensity", "rational view", "sexual interest".

Appealed from Qld SC (CA):  [2007] QCA 348.

The Queen v Getachew
M139/2011:  [2012] HCA 10.

Judgment delivered:  28 March 2012. 

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

Catchwords:

Criminal law – Rape – Mens rea – Directions to jury – Complainant penetrated anally while asleep – No evidence and no assertion that accused believed complainant consenting – Trial judge directed jury that mental element of offence in s 38(2)(a)(i) of Crimes Act 1958 (Vic) established if accused aware complainant was or might be asleep – Court of Appeal held trial judge's direction precluded jury from considering possibility that accused believed complainant was awake and consenting to intercourse – Whether open on evidence for jury to conclude that accused may have believed complainant to be awake – Whether trial judge permitted or required to direct jury about accused's belief in consent if no evidence or assertion that accused believed in consent.

Words and phrases – "aware", "believed", "if evidence is led or an assertion is made".

Appealed from Vic SC (CA):  [2011] VSCA 164.

Taxation 

Commissioner of Taxation v Bargwanna
S284/2011:  [2012] HCA 11.

Judgment delivered:  29 March 2012. 

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

Catchwords:

Taxation – Income tax – Exemption from income tax under Div 50 of Income Tax Assessment Act 1997 (Cth) – Charitable purpose – Whether fund was applied for the purposes for which it was established – Whether application of fund viewed as a whole sufficient to qualify for exemption.

Trusts – Trustees – Charitable trust – Breaches of trust – Mingling of trust monies with other monies – Use of trust monies by trustees in their personal capacity – Relevance of success on possible application under s 85 of Trustee Act 1925 (NSW).

Words and phrases – "charitable trust", "income tax exemption", "misapplication of trust monies", "purposes for which it was established".

Appealed from FCA FC:  (2010) 191 FCR 184; (2011) ATC 20-244; [2010] FCAFC 126.

2: Cases Reserved

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

Administrative Law

Public Service Association of South Australia Incorporated v Industrial Relations Commission of South Australia & Anor
A7/2011:  [2011] HCATrans 322.

Date heard:  29 November 2011 — Judgment reserved. 

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

Catchwords:

Administrative law — Judicial review — Grounds of review — Jurisdictional error — Privative clauses — Applicant notified two disputes in Industrial Relations Commission of South Australia ("Commission") — Commission at first instance and on appeal ruled it lacked jurisdiction because no industrial dispute extant, as required by s 26 of Fair Work Act 1994 (SA) ("Act") — Section 206 of Act precludes review of Commission determinations unless "on the ground of an excess or want of jurisdiction" — Full Court of Supreme Court of South Australia held it lacked jurisdiction to review Commission's determinations because no "excess or want of jurisdiction" within s 206 of Act — Whether failure to exercise jurisdiction an act in "excess or want of jurisdiction" — Whether 
s 206 of Act precludes judicial review by Supreme Court of jurisdictional error not in "excess or want of jurisdiction" — Whether s 206 of Act beyond power of South Australian Parliament — Whether Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 impliedly overruled Public Service Association of South Australia v Federated Clerks' Union of Australia, South Australian Branch (1991) 173 CLR 132.  

Constitutional law (Cth) — Commonwealth Constitution, Ch III — State Supreme Courts — Power of State Parliament to alter defining characteristic of State Supreme Court — Supervisory jurisdiction — Whether all jurisdictional errors of tribunals subject to review by State Supreme Courts — Whether s 206 of Act impermissibly limits Supreme Court of South Australia's jurisdiction to exercise judicial review where jurisdictional error has occurred.

Words and phrases — "excess or want of jurisdiction".

Appealed from SA SC (FC):  (2011) 109 SASR 223; (2011) 207 IR 1; [2011] SASCFC 14.

See also Citizenship and Migration:  Plaintiff S10/2011 v Minister for Immigration and Citizenship & Anor; Kaur v Minister for Immigration and Citizenship & Anor; Plaintiff S49/2011 v Minister for Immigration and Citizenship & Anor; Plaintiff S51/2011 v Minister for Immigration and Citizenship & Anor.

See also Competition Law: The Pilbara Infrastructure Pty Ltd & Anor v Australian Competition Tribunal & Ors; The National Competition Council v Hamersley Iron Pty Ltd & Ors; The National Competition Council v Robe River Mining Co Pty Ltd & Ors.  

Citizenship and Migration 

Plaintiff S51/2011 v Minister for Immigration and Citizenship & Anor
S51/2011: [2012] HCATrans 16; [2012] HCATrans 17; [2012] HCATrans 18.

Dates heard:  7, 8 & 9 February 2012 — Judgment reserved. 

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

Catchwords:

Citizenship and migration — Migration — Ministerial discretion — Non-compellable powers — Procedural fairness — Section 195A of Migration Act 1958 (Cth) ("the Act") empowers first defendant ("Minister") to grant visa to person in immigration detention pursuant to s 189 of the Act, if Minister thinks "in the public interest to do so" — Section 417 the Act of empowers Minister to substitute decision of Refugee Review Tribunal ("RRT") made under s 415 of the Act with another decision more favourable to an applicant, if Minister thinks "in the public interest to do so" — Section 48B of the Act empowers Minister to determine that s 48A of the Act does not apply to prevent application for protection visa made by non-citizen, if Minister thinks "in the public interest to do so" — In December 2009, favourable assessment made under Minister's Guidelines for s 195A in respect of plaintiff, though matter not referred to Minister ("the s 195A decision") — Plaintiff applied for Ministerial intervention pursuant to ss 48B and 417 of Act — In December 2010, Minister's delegate informed plaintiff that Minister had decided not to exercise power under s 417 of the Act ("the s 417 decision), and plaintiff's s 48B application had been assessed against Minister's Guidelines but was not referred to Minister ("the s 48B decision") — Whether Minister and/or second defendant through his officers failed to accord procedural fairness to plaintiff in the s 195A decision by denying plaintiff opportunity to make submissions addressing matters in s 195A and Department's adverse summary of initial departmental processes — Whether Minister and/or second defendant through his officers failed to accord procedural fairness to plaintiff in the s 417 decision by denying plaintiff opportunity to address criterion used in the s 195A decision — Whether Minister and/or second defendant through his officers failed to accord procedural fairness to plaintiff in the s 417 decision and the s 48B decision by denying plaintiff opportunity to address adverse material. 

This application for an order to show cause was filed in the original jurisdiction of the High Court. 

Plaintiff S10/2011 v Minister for Immigration and Citizenship & Anor
S10/2011: [2012] HCATrans 16; [2012] HCATrans 17; [2012] HCATrans 18.

Dates heard:  7, 8 & 9 February 2012 — Judgment reserved. 

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

Catchwords:

Citizenship and migration — Migration — Ministerial discretion — Non-compellable powers — Procedural fairness — Section 417 of Migration Act 1958 (Cth) ("the Act") empowers first defendant ("Minister") to substitute decision of Refugee Review Tribunal ("RRT") made under s 415 of the Act with another decision more favourable to an applicant, if Minister thinks "in the public interest to do so" — Section 48B of the Act empowers Minister to determine that s 48A of the Act does not apply to prevent application for protection visa made by non-citizen, if Minister thinks "in the public interest to do so" — Plaintiff applied for Ministerial intervention pursuant to ss 48B and 417 of the Act — In October 2010, Minister's delegate informed plaintiff that Minister had decided not to exercise power under s 417 of the Act ("the s 417 decision), and plaintiff's s 48B application had been assessed against Minister's Guidelines but was not referred to Minister ("the 
s 48B decision") — Whether Minister and/or second defendant through his officers failed to accord procedural fairness to plaintiff in the s 48B decision and the s 417 decision by taking into consideration certain matters without providing plaintiff with opportunity to know about or comment on those matters — Whether plaintiff had legitimate expectation that information provided by him in respect of his applications would be considered in assessing whether he fell within Guidelines — Whether Minister and/or second defendant through his officers failed to apply Minister's Guidelines correctly by taking into account irrelevant considerations or failing to take into account relevant considerations — Whether jurisdictional error occurred irrespective of privative clause in s 474(2) of the Act. 
 
This application for an order to show cause was filed in the original jurisdiction of the High Court. 

Plaintiff S49/2011 v Minister for Immigration and Citizenship & Anor
S49/2011: [2012] HCATrans 16; [2012] HCATrans 17; [2012] HCATrans 18.

Dates heard:  7, 8 & 9 February 2012 — Judgment reserved. 

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

Catchwords:

Citizenship and migration — Migration — Ministerial discretion — Non-compellable powers — Procedural fairness — Section 417 of Migration Act 1958 (Cth) ("the Act") empowers first defendant ("Minister") to substitute decision of Refugee Review Tribunal ("RRT") made under s 415 of the Act with another decision more favourable to an applicant, if Minister thinks "in the public interest to do so" — Section 48B of the Act empowers Minister to determine that s 48A of the Act does not apply to prevent application for protection visa made by non-citizen, if Minister thinks "in the public interest to do so" — Plaintiff, an Indian national, arrived in Australia in 1998 carrying Indian passport issued in particular name — Plaintiff detained as unlawful non-citizen in 2003 — Plaintiff claimed to be national of Bangladesh with different name to that on Indian passport — In June 2009, plaintiff applied for Ministerial intervention under ss 48B and 417 of the Act — In October 2009, Minister's delegate informed plaintiff that his s 48B application did not meet Minister's Guidelines for intervention and was not referred to Minister ("the s 48B decision") — In December 2010, Minister's delegate informed plaintiff that Minister had decided not to exercise power under s 417 of the Act with respect to plaintiff ("the s 417 decision") — Whether Minister and/or second defendant through his officers failed to accord procedural fairness to plaintiff in the s 48B decision and the s 417 decision by taking into consideration certain matters without providing plaintiff with opportunity to know about or comment on those matters — Whether Minister and/or second defendant through his officers failed to apply Minister's Guidelines correctly by taking into account irrelevant considerations or failing to take into account relevant considerations — Whether jurisdictional error occurred irrespective of privative clause in s 474(2) of the Act. 
 
This application for an order to show cause was filed in the original jurisdiction of the High Court. 

Kaur v Minister for Immigration and Citizenship & Anor
S43/2011: [2012] HCATrans 16; [2012] HCATrans 17; [2012] HCATrans 18.

Dates heard:  7, 8 & 9 February 2012 — Judgment reserved. 

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

Catchwords:

Citizenship and migration — Migration — Ministerial discretion — Non-compellable powers — Procedural fairness — Section 351 of Migration Act 1958 (Cth) ("the Act") empowers first defendant ("Minister") to substitute decision of Migration Review Tribunal ("MRT") made under s 349 of the Act with another decision more favourable to an applicant, if Minister thinks "in the public interest to do so" — Plaintiff granted Subclass 573 Higher Education Sector student visa in September 2005, expiring in August 2008 — In June 2006, Minister's delegate notified plaintiff by letter that she had been granted Subclass 573 Higher Education Sector student visa with permission to change education provider — Letter stated plaintiff's visa valid until June 2008 — Plaintiff applied for Subclass 572 Vocational Education and Training Sector visa in September 2008 — Applications for Subclass 572 visas must be made within 28 days after day when last substantive visa ceased to be in effect: Migration Regulations 1994 (Cth), Sched 2, sub-item 572.211(3)(c)(i) — Minister's delegate refused plaintiff's application for Subclass 572 visa because application filed out of time — MRT rejected plaintiff's application for review of delegate's decision — Plaintiff unsuccessfully applied for Ministerial intervention under s 351 of the Act — Federal Court of Australia rejected plaintiff's application for review of decision of MRT — Plaintiff again sought Ministerial intervention under s 351 of the Act — In January 2011, Minister's delegate informed plaintiff that second Ministerial intervention application would not be forwarded to Minister — Whether Minister and/or second defendant through his officers failed to accord procedural fairness to plaintiff by considering information or matters adverse to plaintiff without providing plaintiff with opportunity to know about or comment on those matters — Whether second defendant through his officers denied plaintiff procedural fairness by failing to apply Minister's Guidelines correctly — Whether jurisdictional error occurred irrespective of privative clause in s 474(2) of the Act. 

This application for an order to show cause was filed in the original jurisdiction of the High Court. 

 Competition Law

The Pilbara Infrastructure Pty Ltd & Anor v Australian Competition Tribunal & Ors; The National Competition Council v Hamersley Iron Pty Ltd & Ors; The National Competition Council v Robe River Mining Co Pty Ltd & Ors
M45/2011; M46/2011; M155-157/2011:  [2012] HCATrans 52; [2012] HCATrans 53; [2012] HCATrans 54. 

Dates heard:  6, 7 & 8 March 2012 — Judgment reserved. 

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

Catchwords:

Competition law — Declared services — Rio Tinto Ltd and associated entities ("Rio") operate Hamersley and Robe railway lines in Pilbara region — The Pilbara Infrastructure Pty Ltd ("TPI") applied to National Competition Council ("NCC") for a recommendation that the Minister declare the Hamerlsey and Robe lines 'essential facilities', pursuant to s 44F of Trade Practices Act 1974 (Cth) (now Competition and Consumer Act 2010 (Cth)) ("Act") — Declaration would allow third party trains and rolling stock to move along the lines — Commonwealth Minister declared Hamersley and Robe lines for period of 20 years pursuant to s 44H of Act — Rio applied to Australian Competition Tribunal ("Tribunal") for review of decision to declare — Tribunal made determination, pursuant to s 44K(7) of Act, setting aside Hamersley declaration and varying Robe declaration to ten year period — Section 44H(4) of Act required Minister to be satisfied of certain matters — Tribunal found, inter alia, that s 44H(4)(b) was satisfied because Hamersley and Robe lines were natural monopolies — Tribunal found that s 44H(4)(f) was not satisfied in respect of Hamersley line because access would be contrary to public interest, because putative benefits associated with construction of alternate railway lines outweighed costs of providing access to existing railway lines — Tribunal held that it would at any rate exercise its residual discretion not to declare — Full Court of Federal Court upheld Tribunal's decision in respect of Hamersley line and set aside declaration in respect of Robe line — Full Court found that neither s 44H(4)(b) nor s 44H(4)(f) were satisfied — Full Court held, however, that Tribunal had denied procedural fairness to TPI and Fortescue Metals Group Ltd (together, 'Fortescue') in respect of Hamersley line proceedings, because the Tribunal relied on material irregularly provided to it by Rio Tinto to support its conclusion that it was likely that Fortescue would, in the absence of declaration, construct an alternate railway line — Whether criterion for declaration of service specified in s 44H(4)(b) of Act imposes test of private profitability or test applying economic principles taking into account natural monopoly characteristics — Whether public interest criterion in s 44H(4)(f) of Act requires or permits inquiry into likely net balance of social costs and benefits that would arise were a declaration to be made — Scope of the residual discretion conferred by s 44H(2) of Act — Whether there was a denial of procedural fairness in denying Fortescue the opportunity to comment on Rio's submissions as to the alternate line

Application for leave to amend notice of appeal — In proceedings before the High Court of Australia on 8 March 2012, Fortescue sought leave to file an amended notice of appeal raising a new ground of appeal, namely, that Tribunal misconceived the nature of its role under s 44K of Act — Whether Tribunal was required to reconsider afresh the application made to NCC — Whether Tribunal's role was confined to considering the correctness of the Minister's decision to declare in light of the NCC's recommendation — Whether Tribunal could consider any material the parties considered relevant  

Words and phrases — "uneconomical for anyone to develop another facility to provide the service" — "would not be contrary to the public interest" — "review by the Tribunal is a re-consideration of the matter".

Appealed from FCA (FC):  (2011) 193 FCR 57; (2011) 277 ALR 282; [2011] FCAFC 58.

Constitutional Law

Crump v State of New South Wales
S165/2011:  [2012] HCATrans 81.

Dates heard:  27 March 2012 — Judgment reserved. 

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

Catchwords:

Constitutional law (Cth) — Commonwealth Constitution, Ch III — State Supreme Courts — Variation or alteration of judgment, decree, order or sentence by Parliament — Plaintiff convicted of murder and conspiracy to murder and sentenced to life imprisonment on both counts — Sentencing judge expressed view that plaintiff should never be released — Pursuant to s 13A of Sentencing Act 1989 (NSW), Supreme Court of New South Wales subsequently fixed dates on which plaintiff eligible for release on parole — Section 154A of Crimes (Administration of Sentences) Act 1999 (NSW) ("Administration Act") provides that Parole Authority may make order directing release of person subject to non-release recommendation only in prescribed circumstances — Parole Board determined plaintiff ineligible for parole pursuant to s 154A of Administration Act — Whether s 154A of Administration Act invalid because it has effect of varying or otherwise altering a judgment, decree, order or sentence of Supreme Court of New South Wales in a matter within meaning of s 73 of Commonwealth Constitution. 

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

Williams v The Commonwealth
S307/2010:  [2011] HCATrans 198; [2011] HCATrans 199; [2011] HCATrans 200.

Dates heard:  9, 10 & 11 August 2011 — Judgment reserved.

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

Catchwords:

Constitutional law (Cth) — Executive — Plaintiff the parent of children enrolled at Darling Heights State Primary School ("School") — Commonwealth implemented National School Chaplaincy Programme ("NSCP") in 2007 — Commonwealth entered into funding agreement with Scripture Union Queensland ("SUQ")  for provision of funding to School under NSCP ("Funding Agreement") — From 2007, chaplaincy services provided to School by SUQ for reward using NSCP funding — Whether Funding Agreement invalid by reason of being beyond executive power of Commonwealth — Whether executive power of Commonwealth includes power to enter into, and make payments pursuant to, contracts in respect of matters other than those in respect of which the Constitution confers legislative power — Whether executive power of Commonwealth includes power to enter into, and make payments pursuant to, contracts in respect of which the Constitution confers legislative power — Whether executive power of Commonwealth includes power to enter into, and make payments pursuant to, contracts with respect to the provision of benefits to students within meaning of s 51(xxiiiA) of Constitution — Whether executive power of Commonwealth includes power to enter into contracts with trading corporations within meaning of s 51(xx) of Constitution — Whether payments to SUQ under Funding Agreement provide "benefits to students" — Whether SUQ a trading corporation — Commonwealth Constitution, ss 51(xx), 51(xxiiiA), 61.

Constitutional law (Cth) — Revenue and appropriation — Payments under Funding Agreement drawn from Consolidated Revenue Fund ("CRF") by Appropriation Acts — Whether drawing of money from CRF for purpose of making payments under Funding Agreement authorised by Appropriation Acts — Whether Appropriation Acts authorised expenditure only for "ordinary annual services of government" — Whether permitted and appropriate to have regard to practices of Parliament to determine "ordinary annual services of the Government" — Whether payments to SUQ under Funding Agreement were "ordinary annual services of government" — Commonwealth Constitution, ss 54, 56, 81, 83. 

Constitutional law (Cth) — Restrictions on Commonwealth legislation — Laws relating to religion — Whether definition of "school chaplains" in NSCP Guidelines, as incorporated in Funding Agreement, invalid by reason of imposing religious test as qualification for office under the Commonwealth in contravention of s 116 of Commonwealth Constitution.

High Court of Australia — Original jurisdiction — Practice and procedure — Parties — Standing — Whether plaintiff has standing to challenge validity of Funding Agreement — Whether plaintiff has standing to challenge drawing of money from CRF for purpose of making payments pursuant to Funding Agreement — Whether plaintiff has standing to challenge Commonwealth payments to SUQ pursuant to Funding Agreement.

Words and phrases — "office under the Commonwealth", "ordinary annual services of the Government", "provision of benefits to students", "religious test", "school chaplains", "trading corporation". 

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

See also Administrative Law:  Public Service Association of South Australia Incorporated v Industrial Relations Commission of South Australia & Anor.

See also Industrial Law: Australian Education Union v General Manager of Fair Work Australia & Ors. 

Contracts

See also Corporations Law:  Fortescue Metals Group Ltd v Australian Securities and Investments Commission & Anor; Forrest v Australian Securities and Investments Commission & Anor.

Corporations Law

Australian Securities and Investments Commission v Shafron; Australian Securities and Investments Commission v Terry; Australian Securities and Investments Commission v Hellicar; Australian Securities and Investments Commission v Brown; Australian Securities and Investments Commission v Gillfillan; Australian Securities and Investments Commission v Koffel; Australian Securities and Investments Commission v O'Brien; Australian Securities and Investments Commission v Willcox; Shafron v Australian Securities and Investments Commission
S174/2011—S181/2011; S173/2011:  [2011] HCATrans 293; [2011] HCATrans 294; [2011] HCATrans 295.

Dates heard:  25, 26 & 27 October 2011 — Judgment reserved.

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

Catchwords:

Corporations — Management and administration — Civil penalties — Evidence — Misleading announcement describing corporate restructuring proposal issued by board of James Hardie Industries Limited ("JHIL") to Australian Stock Exchange ("ASX") — At trial, Australian Securities and Investments Commission ("ASIC") failed to call solicitor ("Mr Robb") advising JHIL who attended meeting of board at which draft ASX announcement allegedly approved — Trial judge made adverse findings and declarations of contravention against first to eighth respondents — Court of Appeal found ASIC failed to discharge burden of proof because it breached obligation of fairness in failing to call Mr Robb, which affected cogency of ASIC's case and vitiated finding that respondents breached s 180(1) of Corporations Law and Corporations Act 2001 (Cth) ("Acts") —Whether ASIC failed to discharge burden of proving that non-executive directors voted in favour of, and JHIL board passed, draft ASX announcement resolution ("Resolution") — Whether, in civil penalty proceedings, ASIC subject to obligation of fairness which can be breached by failure to call particular witness — Whether obligation of fairness inconsistent with s 1317L of Acts and s 64 of Judiciary Act 1903 (Cth) — Whether ASIC obliged to call Mr Robb to give evidence of firm's receipt of draft ASX announcement — Whether ASIC's failure to comply with obligation of fairness, if extant, had negative evidentiary impact on cogency of ASIC's case — Whether minutes of board meeting at which Resolution allegedly passed evidence of passing of Resolution — Whether amendments to draft ASX announcement, prior to issuing of final announcement to ASX, evidence that Resolution not passed — Whether oral evidence of respondents Brown and Koffel ought to have been accepted as correlating with terms of draft ASX announcement — Whether of evidentiary significance that company associated with respondents O'Brien and Terry produced to ASIC identical version of draft ASX announcement — Whether declarations of contravention made in respect of first to eighth respondents should be set aside.

Corporations — Management and administration — Civil penalties — Whether Shafron an officer of JHIL within meaning of s 9 of Acts, as person who participated in decisions affecting business of JHIL — Whether, in performing impugned conduct, Shafron discharged role as company secretary or general counsel of JHIL — If Shafron discharged role as general counsel, whether subject to s 180(1) of Acts because also company secretary of JHIL — Whether Shafron failed to comply with duty imposed by s 180(1) of Acts. 

Words and phrases — "obligation of fairness".

Appealed from NSW SC (CA):  (2010) 274 ALR 205; (2010) 247 FLR 140; (2010) 81 ACSR 285; [2010] NSWCA 331. 

Fortescue Metals Group Ltd v Australian Securities and Investments Commission & Anor; Forrest v Australian Securities and Investments Commission & Anor
P44/2011; P45/2011:  [2012] HCATrans 48; [2012] HCATrans 49; [2012] HCATrans 84.

Dates heard:  29 February 2012, 1 March 2012 & 30 March 2012 — Judgment reserved. 

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

Catchwords:

Corporations law — Continuous disclosure — Misleading and deceptive conduct — Fortescue Metals Group Ltd ("FMG") entered into framework agreements with three Chinese entities — Forrest Chairman and CEO of FMG — FMG made public announcements that FMG and Chinese entities had executed binding agreements to build, finance and transfer infrastructure for mining project in Pilbara region — Whether, in making announcements, FMG contravened ss 674(2) and 1041H of Corporations Act 2001 (Cth) ("Act"), and Forrest contravened ss 180(1) and 674(2A) of Act — Whether announcements made by FMG misleading or deceptive or likely to mislead or deceive in contravention of s 1041H of Act or s 52 of Trade Practices Act 1974 (Cth) — Whether announcements would have been understood by reasonable person as statement of FMG's honest, or honest and reasonable, belief as to legal effect of framework agreements rather than statements that warranted or guaranteed their truth — Whether FMG and Forrest honestly, or honestly and reasonably, believed framework agreements effective as binding contracts — Whether FMG contravened s 674(2) and Forrest contravened s 674(2A) of Act because neither had "information" that framework agreements unenforceable at law — Whether Forrest could avail himself of the defence under s 674(2B) of Act — Whether, if announcements by FMG misleading or deceptive or likely to mislead or deceive, Forrest failed to act with due care and skill contrary to s 180(1) of Act — Whether s 180(1) of Act provides for civil liability of directors for contraventions of other provisions of Act — Whether business judgment rule under s 180(2) of Act available as defence to alleged contravention of s 180(1) if proceedings based on contravention of provisions containing exculpatory provisions — Whether s 180(2) of Act applies to decisions concerning compliance with Act.

Contracts — Agreements contemplating existence of fuller contracts — Certainty — Whether framework agreements obliged Chinese entities to build, finance and transfer infrastructure for Pilbara project — Whether FMG and Chinese entities intended to create legal relations — Whether framework agreements uncertain as to subject matter — Whether provision for third party determination of certain matters rendered framework agreements certain.

Appealed from FCA (FC):  (2011) 190 FCR 364; (2011) 274 ALR 731; (2011) 5 BFRA 220; (2011) 81 ACSR 563; (2011) 29 ACLC 11-015; [2011] FCAFC 19.

Criminal Law

Baker v The Queen
M154/2011:  [2012] HCATrans 47.

Date heard:  28 February 2012 — Judgment reserved.

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

Catchwords:

Criminal law — Evidence — Hearsay — Admissions — Applicant, along with co-accused at trial, LM, involved in altercation following which one Mr Snowball fell through glass window to street below and died — Applicant found guilty of murder of Mr Snowball — LM acquitted — Witnesses gave competing versions of events leading to death of Mr Snowball — Version implicating applicant as person who pushed or punched Mr Snowball in manner resulting in his fall was preferred by jury — In case against LM, Crown relied on evidence of admissions made by LM that suggested he was responsible for Mr Snowball's fall — Trial judge directed jury that case against each accused was to be assessed only in light of evidence applicable to each accused, meaning evidence of LM's admissions not evidence in case against applicant — Whether evidence of LM's admissions was admissible in exculpation of applicant — Whether potential exception to hearsay considered in Bannon v The Queen (1995) 185 CLR 1 ought to be recognised and whether LM's admissions within scope of any such exception — Whether applicant's trial miscarried and jury's verdict unsafe or unsatisfactory by reason of exclusion of LM's admissions. 

Appealed from Vic SC (CA):  [2010] VSCA 226.

King v The Queen
M129/2011:  [2011] HCATrans 327.

Date heard:  6 December 2011 — Judgment reserved.

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

Catchwords:

Criminal law — Dangerous driving causing death — Direction to jury — Appellant found guilty of two counts of culpable driving causing death contrary to s 318 of Crimes Act 1958 (Vic) ("Act") — Primary judge left to jury alternative charge of dangerous driving causing death contrary to s 319(1) of Act — Whether primary judge erred in directing jury that, in relation to dangerous driving charge, driving need only have significantly increased risk, or created real risk, of hurting or harming others, and that driving need not be deserving of criminal punishment — Whether a substantial miscarriage of justice in terms of s 568(1) of Act — R v De Montero (2009) 25 VR 694. 

Words and phrases — "substantial miscarriage of justice".

Appealed from Vic SC (CA):  (2011) 57 MVR 373; [2011] VSCA 69.

PGA v The Queen 
A15/2011:  [2011] HCATrans 267.

Date heard:  27 September 2011 — Judgment reserved.

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

Criminal law — Rape and sexual assault — Consent — Existence of common law presumption of marital consent — Appellant charged in 2010 with two counts of rape, allegedly committed in 1963, against then wife — In 1963, s 48 of Criminal Law Consolidation Act 1935 (SA) ("Act") made person convicted of rape guilty of felony — Where elements of offence of rape in South Australia in 1963 supplied by common law — Act amended in 1976 to remove presumption of marital consent to sexual intercourse in certain circumstances — Whether common law of Australia in 1963 permitted husband to be found guilty of rape of his wife — Whether common law recognises retrospective imposition of criminal liability absent statutory requirement — Whether appellant liable to be found guilty of offence of rape of his wife allegedly committed in 1963 — Effect of R v L (1991) 174 CLR 379 — Whether enactment of Criminal Law Consolidation Act Amendment Act 1976 (SA) precluded subsequent amendment of common law position prevailing in 1963 — Act, ss 48 and 73 — Acts Interpretation Act 1915 (SA), s 16.

Appealed from SA SC (CCA):  (2010) 109 SASR 1; [2010] SASCFC 81.

R v Khazaal
S344/2011:  [2012] HCATrans 50.

Date heard:  2 March 2012 — Judgment reserved.

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

Catchwords:

Criminal law — Terrorism — Collecting or making document likely to facilitate terrorist act — Section 101.5(1) of Criminal Code 1995 (Cth) ("Code") creates offence of collecting or making document "connected with preparation for, the engagement of a person in, or assistance in a terrorist act", where person knows of connection — Section 101.5(5) of Code creates defence if collection or making of document "not intended to facilitate preparation for, the engagement of a person in, or assistance in a terrorist act" — Defendant bears evidential burden under s 101.5(5), as defined in s 13.3(6) of Code — Respondent found guilty of offence of making document connected with assistance in terrorist act knowing of that connection contrary to s 101.5(1) of Code — Whether respondent discharged evidential burden under s 101.5(5) of Code, having regard to s 13.3(6) of Code — Whether evidence at trial suggested reasonable possibility that making of document by respondent not intended to facilitate assistance in terrorist act so as to engage defence in s 101.5(5) of Code — Whether trial judge required to direct jury that phrase "connected with" in s 101.5(1) of Code required more than tenuous or remote connection. 

Words and phrases — "connected with", "evidential burden".

Appealed from NSW SC (CCA):  [2011] NSWCCA 129.

Defamation

Harbour Radio Pty Limited v Trad
S318/2011:  [2012] HCATrans 9; [2012] HCATrans 51. 

Dates heard:  3 February 2012 & 5 March 2012 — Judgment reserved.

Coram: Gummow, Hayne, Heydon, Kiefel & Bell JJ. 

Catchwords:

Torts — Defamation — Application of defence — Imputations reply to public attack — Defence of qualified privilege — Defences of truth and contextual truth — Respondent engaged in public speech concerning activities of Radio 2GB, a station owned and operated by appellant — Radio 2GB broadcast response to respondent's speech consisting of presenter's monologue, audio recording of part of respondent's speech and talkback calls — Respondent brought proceedings for defamation — Jury found certain defamatory imputations arose from broadcast — Appellant relied on, inter alia, defences of qualified privilege, truth and contextual truth — Trial judge found appellant not actuated by malice and upheld defence of qualified privilege — Trial judge found certain imputations were matters of substantial truth and upheld defences of truth and contextual truth — Court of Appeal overturned trial judge's findings on all three defences — Whether common law defence of qualified privilege requires response to attack to be legitimate or proportionate to attack or requires merely absence of malice — Test to be applied in determining whether imputation a matter of 'substantial truth' — Whether Court of Appeal erred in exercising its jurisdiction under s 75A of the Supreme Court Act 1970 (NSW) — Defamation Act 1974 (NSW), ss 15 and 16.

Appealed from NSW SC (CA):  (2011) 279 ALR 183; [2011] Aust Torts Reports 82-080; [2011] NSWCA 61. 

Evidence

Aytugrul v The Queen
S315/2011:  [2011] HCATrans 329.

Date heard:  8 December 2011 — Judgment reserved.	

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

Catchwords:

Evidence — Admissibility — Expert evidence — Identification evidence — DNA evidence — Appellant convicted of murder of former partner — Evidence led by prosecution at trial that a hair found on deceased's thumbnail consistent with appellant's mitochondrial DNA profile — Expert witness for prosecution gave evidence that one in 1600 people could be expected to share mito-type of the hair ("frequency estimate"), meaning 99.9 per cent of people in general population would not have a profile matching the hair ("exclusion percentage") — Whether trial judge ought to have applied s 137 (or, alternatively, s 135) of Evidence Act 1995 (NSW) ("Act") to exclude reference to exclusion percentage — Whether risk of unfair prejudice to appellant outweighed probative value of reference to exclusion percentage — Whether permissible for Court to determine s 137 question by reference to academic literature not in evidence at trial.

Appealed from NSW SC (CCA):  (2010) 205 A Crim R 157; [2010] NSWCCA 272.

Extradition 

Minister for Home Affairs of the Commonwealth & Ors v Zentai & Ors
P56/2011:  [2012] HCATrans 82.

Date heard:  28 March 2012 — Judgment reserved.	

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

Catchwords:

Extradition — Permissible circumstances for surrender — Hungarian Military Judge issued warrant for arrest of first respondent — Warrant alleged that during World War II first respondent committed war crime contrary to s 165 of Criminal Code of Hungary — Australian magistrate determined first respondent eligible for extradition — Federal Court affirmed magistrate's decision and Full Federal Court dismissed appeal — Whether extradition pursuant to Treaty on Extradition Between Australia and the Republic of Hungary ("Treaty") permitted only where actual offence for which extradition sought an offence in requesting state at time conduct constituting offence took place — Whether extradition permitted where acts constituted an offence other than actual offence in relation to which extradition sought — Treaty, art 2(5)(a) — Extradition Act 1988 (Cth), s 22(3)(e)(i) and (iii). 

Appealed from FCA (FC): (2010) 195 FCR 515; (2010) 280 ALR 728; (2010) 122 ALD 455: [2011] FCAFC 102.

High Court of Australia

See also Competition Law: The Pilbara Infrastructure Pty Ltd & Anor v Australian Competition Tribunal & Ors; The National Competition Council v Hamersley Iron Pty Ltd & Ors; The National Competition Council v Robe River Mining Co Pty Ltd & Ors  

See also Constitutional Law:  Williams v The Commonwealth

Industrial Law

Australian Education Union v General Manager of Fair Work Australia & Ors
M8/2011:  [2012] HCATrans 5.

Date heard:  31 January 2012 — Judgment reserved.

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

Catchwords: 

Industrial law — Registered organisations — Statutory interpretation — Retrospective operation of statutes — Presumption against retrospectivity — Presumption that legislation not to interfere with final judgment — Interpretation of Fair Work (Registered Organisations) Act 2009 (Cth) ("FWRO Act") — Third respondent applied to Australian Industrial Relations Commission ("AIRC") for registration as an organisation under Workplace Relations Act 1996 (Cth) — Applicant objected to registration — AIRC granted application for registration — Full Court of Federal Court ("FCAFC") made order of certiorari to quash decision of AIRC to register third respondent because third respondent's rules did not contain "purging rule" — On 1 July 2009, s 26A of the FWRO Act, which provides that prior registration of organisation which would have been valid but for absence of purging rule is taken to be valid and always to have been valid, came into effect — Fair Work Australia regarded itself as obliged by s 26A of the FWRO Act to treat third respondent as registered organisation — Whether s 26A of the FWRO Act validates registration of third respondent when such registration previously quashed by FCAFC prior to commencement of s 26A. 

Constitutional law (Cth) — Judicial power of Commonwealth — Commonwealth Constitution, Ch III — Whether s 26A of the FWRO Act invalid as impermissible usurpation of, or interference with, judicial power of Commonwealth — Whether s 26A of the FWRO Act capable of being read down. 

Appealed from FC FCA:  (2010) 189 FCR 259; (2010) 201 IR 315; [2010] FCAFC 153.

Board of Bendigo Regional Institute of Technical and Further Education v Barclay & Anor
M128/2011:  [2012] HCATrans 83.

Date heard:  29 March 2012 — Judgment reserved.

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

Catchwords:

Industrial law — Adverse action — General protection — First respondent ("Barclay") an employee of appellant ("Institute") and Sub-Branch President at Institute of second respondent ("AEU") — Barclay sent email to AEU members employed at Institute noting reports of serious misconduct by unnamed persons at Institute — Barclay did not advise managers of details of alleged misconduct — Chief Executive Officer ("CEO") of Institute wrote to Barclay requiring him to show cause why he should not be disciplined for failing to report alleged misconduct — Barclay suspended on full pay — Respondents alleged action taken by CEO of Institute constituted adverse action under s 342 of Fair Work Act 2009 (Cth) ("Act") — Trial judge found adverse action taken by CEO on basis of breach of Institute's code of conduct rather than Barclay's union activity — Full Court of Federal Court held that sending of email was part of Barclay's functions as AEU officer and therefore adverse action had been taken within meaning of Act — Whether evidence that adverse action taken for innocent and non-proscribed reason sufficient to establish defence to cause of action under Pt 3.1 of Act  ("general protections provisions") — Whether a decision-maker who is not conscious of a proscribed reason able to be found to have engaged in adverse action contrary to general protection provisions — Whether a distinction exists between the cause of conduct said to constitute adverse action and the reason a person took adverse action — Act, ss 341, 342, 346, 360, 361 — General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605; Purvis v State of New South Wales (2003) 217 CLR 92. 

Appealed from FCA FC:  (2011) 182 FCR 27; [2011] FCAFC 14. 

	
Intellectual Property

Roadshow Films Pty Ltd & Ors v iiNet Limited
S288/2011:  [2011] HCATrans 323; [2011] HCATrans 324; [2011] HCATrans 325.

Date heard:  30 November 2011, 1 & 2 December 2011 — Judgment reserved.

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

Catchwords:

Intellectual property — Copyright — Infringement — Authorisation — Appellants owners and exclusive licensees of copyright in commercially-released cinematograph films — Respondent an internet service provider whose agreements with customers contained terms requiring customers to comply with all laws and reasonable directions by respondent as well as obligation not to use service to infringe copyright — Respondent had legal and technical capacity to issue warnings to customers whose services were being used to infringe copyright — Australian Federation Against Copyright Theft, on behalf of appellants, served copyright infringement notices on respondent, alleging users of respondent's network infringing appellants' copyright in cinematographic films by making them available online — Respondent took no steps to notify customers that services being used to infringe copyright — Whether, and if so from what date, respondent authorised infringements of appellants' copyright by users of respondent's internet services ("infringing acts") — Whether respondent had sufficient knowledge of infringing acts to support finding of authorisation — Whether appellants required to present respondent with "unequivocal and cogent evidence" of infringing acts and provide undertaking to reimburse and indemnify respondent for reasonable cost of verifying infringing acts — Whether respondent's conduct constituted "countenancing" of infringing acts — Copyright Act 1968 (Cth), ss 36 and 101 — University of New South Wales v Moorhouse (1975) 133 CLR 1.

Words and phrases — "authorise", "cinematograph films", "copyright", "countenance", "infringe", "unequivocal and cogent evidence".

Appealed from FCA FC:  (2011) 194 FCR 285; (2011) 275 ALR 1; (2011) 89 IPR 1; [2011] AIPC 92-410; [2011] FCAFC 23.

3: Original Jurisdiction

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

Constitutional Law

J T International SA v Commonwealth of Australia; British American Tobacco Australasia Limited & Ors v Commonwealth of Australia 
S389/2011; S409/2011

Catchwords:

Constitutional law (Cth) — Commonwealth Constitution, s 51(xxxi) — Constitutional guarantees — Express limits on Commonwealth legislative power — Implied limits on Commonwealth legislative power — Acquisition of property on just terms — Plaintiffs' hold trade marks some of which registered under Trade Marks Act 1995 (Cth) ("Trade Marks") — Plaintiffs were entitled to use Trade Marks for tobacco products and packaging of tobacco products — Plaintiffs' hold copyright in distinctive tobacco packaging ("Copyright Works")  — Plaintiffs' registered owner of tobacco packaging designs registered under Designs Act 2003 (Cth) ("the Designs") — Plaintiffs' hold patents relating to form of tobacco products registered pursuant to Patents Act 1990 (Cth) ("the Patents") — Plaintiffs' tobacco products use distinctive trade dress and get up which utilise the Trade Marks and/or reproduce Copyright Works ("the Get Up") — The Tobacco Plain Packaging Act 2011 (Cth) ("the Packaging Act") regulates and standardises retail packaging and appearance of tobacco products — Section 15 of the Packaging Act provides, inter alia, that the Act does not apply to the extent (if any) that its operation would result in an unconstitutional acquisition of property from a person otherwise than on just terms — Whether the Packaging Act would, but for the operation of s 15, result in unconstitutional acquisition of plaintiffs' property comprising the Trade Marks, Copyright Works, the Get Up, licensing goodwill, the Designs, the Patents, packaging goodwill, packaging rights and intellectual property licence rights ("the Property") otherwise than on just terms — Whether by reason of s 15 the Packaging Act's operative provisions do not apply to and have no operation with respect to the Property — Whether the Packaging Act impermissibly confers legislative power upon judiciary — Whether if by purporting to identify the circumstances to which it validly applies the Packaging Act falls outside the scope of legislative power conferred by s 51(xxxi) — Whether the Packaging Act invalid because its purported enactment did not involve an exercise of legislative power to make "laws" conferred by s 51(xxxi).

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

4: Special Leave Granted

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

Administrative Law

Commonwealth of Australia v Kutlu & Ors; Commonwealth of Australia v Clarke & Ors; Commonwealth of Australia v Lee & Ors; The Hon Nicola Roxon, Commonwealth Minister of State for Health v Condoleon & Ors
S279/2011 — S283/2011: [2012] HCATrans 35.

Date heard:  10 February 2012 – Special leave granted

Catchwords:

Administrative law — Jurisdictional error — Statutory construction — Ministerial appointments — De facto officer doctrine — Professional services review scheme — Non-compliance with statutory requirements for consultation before making appointments — Health Insurance Act 1973 (Cth) ("the Act") provides that Minister must consult with and be advised by Australian Medical Association ("AMA") before appointing medical practitioner as a Deputy Director or member of the Professional Services Review ("PSR") Panel — Appointments made without consulting the AMA — Impugned appointees members of PSR Committees that subsequently made adverse findings against the five respondent medical practitioners — Challenge to validity of PSR Committees — Full Court of the Federal Court of Australia held the PSR Panel appointments and composition of PSR Committees including the appointees invalid — Findings by invalidly constituted PSR Committees of no legal effect — Whether an appointment to the PSR Panel under s 84(2) of the Act is invalid if there is a breach of the requirement in s 84(3) that the Minister consult the AMA before making the appointment — Whether an appointment of a Deputy Director under s 85(1) of the Act is invalid if there is a breach of the requirement in s 85(3) that the Minister consult the AMA before making the appointment — Whether the failure of the Minister to consult with the AMA before making an appointment to the PSR Panel results in the invalid constitution of any PSR Committee whose constitution includes such appointees — Whether the failure of the Minister to consult with the AMA before making an appointment to the PSR Panel results in the invalidity of the draft and final reports of a PSR Committee whose constitution includes such appointees — Whether de facto officer doctrine applicable to remedy decisions involving impugned appointees. 

Appealed from FCA (FC):  (2011) 197 FCR 177, (2011) 280 ALR 428, [2011] FCAFC 94. 

Corporations Law

Beck v Weinstock & Ors
S311/2011: [2012] HCATrans 34. 

Date heard:  10 February 2012 — Special leave granted.

Catchwords:

Corporations law — Redeemable preference shares — Validity of issue — Rights attaching to shares — Eight C class shares were allotted in the third respondent ("the Company") — No other shares in the Company over which the C class shares conferred any priority or preference were ever issued — Directors of the Company resolved to redeem the eight C class shares for a nominal amount — Whether other shares, over which preference is enjoyed, must exist for redeemable preference shares to be valid — Whether eight C class shares in the Company were redeemable preference shares for the purposes of the Corporations Act 2011 (Cth) notwithstanding that there were never any other shares issued in the Company by reference to which the C class shares conferred preference. 

Appealed from NSW SC (CA): (2011) 252 FLR 462, [2011] NSWCA 228. 

Kizon v The Queen; Mansfield v The Queen
P28/2011; P29/2011:  [2011] HCATrans 331.

Date heard:  9 December 2011 — Special leave granted.

Catchwords:

Corporations law — Insider trading — Inside information — Applicants prosecuted on indictment alleging offences contrary to Corporations Act 2001 (Cth) ("Act"), s 1043A and (former) s 1002G — Trial judge held inside information "must, in general circumstances, be a factual reality" and directed verdicts of acquittal on all but four counts against Mansfield — Whether "information", for purpose of offence in (former) s 1002G and 
s 1043A of Act, as defined in (former) s 1002G and s 1042A of Act, required to be truthful, a factual reality or based on reasonable grounds — Whether element of offence of insider trading that inside information possessed by accused corresponds with information possessed by entity entitled to have or use it.

Words and Phrases — “information”.

Appealed from WA SC (CA):  (2011) 251 FLR 286; [2011] WASCA 132.

International Litigation Partners Pte Ltd v Chameleon Mining NL (Receivers & Managers Appointed) & Ors 
S232/2011:  [2011] HCATrans 296.

Date heard:  28 October 2011 — Special leave granted on condition of applicant's provision of security for costs.

Catchwords:

Corporations law — Financial products — Litigation funding — Parties entered into funding deed under which applicant ("ILP") was to fund proceedings brought by first respondent ("CHM") ("Funding Deed") — Clause 4 of Funding Deed provided for early termination fee in event of change of control of CHM — CHM granted fixed and floating charge in favour of ILP as security for payment of moneys owed ("Charge") — CHM entered agreement with second respondent, Cape Lambert Resources Ltd ("CLR"), under which CLR provided standby facility to CHM in exchange for charge over CHM's assets — CHM notified ILP that it disputed ILP's entitlement to payment under funding deed on basis that ILP engaged in unlicensed financial services business in Australia and notified rescission of funding deed under s 925A of Corporations Act 2001 (Cth) ("Act) — ILP appointed receivers to CHM under Charge — Primary judge upheld ILP's entitlement to engage in litigation funding absent an Australian Financial Services License ("AFSL") and its right to early termination fee but dismissed claim to further payment — Whether Funding Deed a financial product within meaning of ss 762A-762C, 763A and 763C of Act as facility through which, or through acquisition of which, a person manages financial risk — If Funding Deed a statutory financial product, whether reasonable to assume that any financial product purpose of Funding Deed an incidental purpose such that Funding Deed not a financial product pursuant to s 763E of Act — If Funding Deed a statutory financial product, whether a credit facility within meaning of s 765A(h)(i) of Act and regs 7.1.06(1) and (3) of Corporations Regulations 2001 (Cth) and consequently excluded from being a financial product — Whether litigation funder required to comply with provisions of Act engaged by issuing of financial product, including requirement to obtain AFSL pursuant to s 911A of Act — Whether Funding Deed validly rescinded by CHM pursuant to s 925A(1) of Act. 

Appealed from NSW SC (CA):  (2011) 276 ALR 138; (2011) 248 FLR 149; (2011) 82 ACSR 517; [2011] NSWCA 50.

Costs

Certain Lloyds Underwriters Subscribing to Contract No IHOOAAQS v Cross; Certain Lloyds Underwriters Subscribing to Contract No IHOOAAQS v Thelander; Certain Lloyds Underwriters Subscribing to Contract No IHOOAAQS v Thelander
S256/2011; S257/2011; S258/2011:  [2011] HCATrans 340.

Date heard:  9 December 2011 — Special leave granted.

Catchwords:

Costs — Recoverable costs — Limitations — Personal injury damages — Trial judge held respondents suffered injuries from assaults committed by employees of Australian Venue Security Services Pty Ltd ("Insured") — Trial judge held verdict for damages against Insured covered by Insured's insurance policy held with applicant — Whether respondents' claims were claims for personal injury damages within meaning of s 198D of Legal Profession Act 1987 (NSW) or s 338 of Legal Profession Act 2004 (NSW) — Whether expression "personal injury damages" in Legal Profession Acts has same meaning as in Civil Liability Act 2002 (NSW).

Words and phrases — "personal injury damages", "the same meaning". 

Appealed from NSW SC (CA):  [2011] NSWCA 136.

State of New South Wales v Williamson
S259/2011:  [2011] HCATrans 340.

Date heard:  9 December 2011 — Special leave granted.

Catchwords:

Costs — Recoverable costs — Limitations — Personal injury damages — Respondent sought damages from applicant for trespass to person constituting battery and false imprisonment — Judgment for respondent entered by consent without admission as to liability — Respondent sought declaration that costs of proceeding not regulated by s 338 of Legal Profession Act 2004 (NSW) — Whether respondent's claim a claim for personal injury damages — Whether deprivation of liberty and loss of dignity capable of being personal injury or "impairment of a person's physical or mental condition" for purpose of Civil Liability Act 2002 (NSW), s 11 — Whether claim for damages that includes claims based on false imprisonment and assault, which are not severable, a claim for personal injury damages — Whether claim for damages for false imprisonment severable from claim for damages for assault — Whether New South Wales Court of Appeal bound by decision in Cross v Certain Lloyds Underwriters [2011] NSWCA 136. 

Appealed from NSW SC (CA):  [2011] NSWCA 183.

Criminal Law

Burns v The Queen
S339/2011:  [2012] HCATrans 32. 

Date heard:  10 February 2012 — Special leave granted.

Catchwords:

Criminal law — Homicide — Manslaughter — Involuntary manslaughter — Criminal negligence — Duty of care to deceased — Existence of duty of care — Applicant the supplier of illicit drug to victim — Victim died after consuming an illicit drug at the applicant's premises — Victim had consumed two different types of drug — One type of drug was medication consumed by the victim prior to attending the applicant's premises — Victim refused an offer by the applicant's husband to call an ambulance — Whether the circumstances were capable of giving rise to a duty of care — Whether the trial judge's directions as to the existence of a duty of care were erroneous — Whether the trial judge's directions as to causation were erroneous — Whether causation could be established on either limb of involuntary manslaughter where a person by his or her own act voluntarily consumes the substance that is a substantial cause of his or her death. 

Appealed from NSW SC (CCA):  (2011) 205 A Crim R 240, [2011] NSWCCA 56

Likiardopoulos v The Queen 
M71/2011:  [2012] HCATrans 67.

Date heard: 9 March 2012 — Special leave granted.

Catchwords:

Criminal law — Homicide — Murder — Joint criminal enterprise — Counselling and procuring — Deceased victim an intellectually disabled 22 year old — Victim was missing for several months before body found — Applicant and others were charged with murder —  Evidence demonstrated that applicant and co-accused engaged in sustained assault over the course of several days on the victim — Crown accepted pleas of lesser offences by applicant's co-accused namely manslaughter and being an accessory after the fact to manslaughter — Applicant found guilty of murder — Whether it is an abuse of process for the Crown to present a case based on the allegation that an accused has counselled or procured another or others to commit murder (a derivative form of liability) when none of the alleged principals had been convicted of murder — Whether the trial judge erred in leaving to the jury the accused's liability for counselling or procuring another or others to commit murder when none of the alleged principals had been convicted of murder. 

Appealed from Vic SC (CA):(2010) 208 A Crim R 84; [2010] VSCA 344.

Patel v The Queen
B25/2011:  [2012] HCATrans 19.

Date heard:  10 February 2012 — Special leave granted.

Catchwords:

Criminal law — Homicide — Manslaughter — Grievous bodily harm — Duty of persons doing dangerous acts — Medical practitioner — Surgery — Applicant convicted of manslaughter of three victims and unlawfully doing grievous bodily harm to one victim — Applicant a surgeon who operated on the four victims — Applicant convicted on the basis that his decision to operate in each case was so thoroughly reprehensible that the decision was criminal and deserved criminal punishment — Whether the applicant's decision to operate or to commend surgery to a patient was the doing of an "act" within the meaning of s 288 of the Criminal Code (Q) ("the Code") — Whether s 288 of the Code can have any application to a decision to conduct surgery upon a patient — Whether there was a miscarriage of justice in the conduct of the trial.   

Appealed from Qld SC (CA): [2011] QCA 81. 

Defamation

Papaconstuntinos v Holmes a Court
S142/2011:  [2011] HCATrans 235.

Date heard:  2 September 2011 — Special leave granted.

Catchwords:

Defamation — Defence of qualified privilege — Respondent involved in bid to invest funds in South Sydney District Rugby League Football Club ("Club") in exchange for controlling interest — Applicant, employee of Construction, Forestry, Mining and Energy Union ("CFMEU"), opposed respondent's bid — Prior to Extraordinary General Meeting at which bid was to be put to Club members, respondent sent letter of complaint to State Secretary of CFMEU, copied to former Chairman of Club, which also came to attention of applicant's immediate supervisor — Trial judge found letter conveyed three defamatory imputations and rejected, inter alia, respondent's plea of common law qualified privilege on the basis that there was no "pressing need" for the respondent to protect his interests by volunteering the defamatory information — Court of Appeal held defence of qualified privilege established since respondent had a legitimate interest in publishing the defamatory letter, and that the trial judge erred in applying the test of "pressing need" to establish qualified privilege — Whether defence of qualified privilege at common law requires evidence of "pressing need" to communicate defamatory matter — Whether absence of "pressing need" decisive — Whether requisite reciprocity of interest existed on occasion of communication of defamatory matter — Whether respondent's communication of suspicion of applicant's criminality fairly warranted to protect of further respondent's interests. 

Words and phrases — "pressing need". 

Appealed from NSW SC (CA):  [2011] Aust Torts Reports 82-081; [2011] NSWCA 59.

Property Law

Clodumar v Nauru Lands Committee
M37/2011

Appeal as of right pursuant to s 5(1) of Nauru (High Court Appeals) Act 1976 (Cth).

Catchwords:

Property law — Transfers inter vivos — Presidential approval — Section 3 of Lands Act 1976 (Nauru) requires Presidential approval of land transfers — Mr Burenbeiya attempted to transfer inter vivos certain lands in Yaren District of Nauru to appellant ("Transfer") — Transfer not perfected, and therefore legally inoperative, by reason of finding of fact that Presidential approval not obtained, based on information provided to Court by respondent — Appellant subsequently made aware that Presidential approval had been given in respect of Transfer — Whether evidence of Presidential approval of Transfer admissible in appeal to High Court of Australia — Whether finding that Presidential approval of Transfer was not obtained, and judgment pursuant to that finding, should be set aside. 

Appealed from Supreme Court of Nauru:  Civil Action No 16/2000.

Public International Law

PT Garuda Indonesia Ltd v Australian Competition and Consumer Commission
S166/2011:  [2011] HCATrans 280.

Date heard:  7 October 2011 — Special leave granted.

Catchwords:

Public international law — Jurisdiction — Sovereign immunity — Section 11(1) of Foreign States Immunities Act 1985 (Cth) ("Act") provides that a foreign State is not immune in a proceeding that concerns a "commercial transaction" — Respondent commenced proceedings against applicant alleging anti-competitive conduct in relation to international air freight contrary to Pt IV of Trade Practices Act 1974 (Cth) — Applicant a "separate entity" of Republic of Indonesia, as defined in s 22 of Act — Respondent alleges applicant participated in conduct outside Australia amounting to arrangements or understandings with other carriers concerning fuel surcharges — Whether civil penalty proceeding brought by respondent against an entity otherwise entitled to sovereign immunity falls within "commercial transaction" exception in Act — Whether applicant immune under Act from exercise of jurisdiction. 

Words and phrases — "commercial transaction", "concern". 

Appealed from FCA (FC):  (2011) 192 FCR 393; (2011) 277 ALR 67; [2011] FCAFC 52.

Statutes

Newcrest Mining Limited v Thornton
P24/2011:  [2011] HCATrans 337.

Date heard:  9 December 2011 — Special leave granted. 

Catchwords: 

Statutes — Construction — Contribution — Respondent injured in workplace accident — Settlement reached with employer and consent judgment entered — Respondent subsequently issued summons against applicant, owner of mine site at which respondent injured — Applicant sought and received summary judgment on ground that respondent already compensated for injury by employer and s 7(1)(b) of Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 (WA) ("Act") precluded recovery of additional damages — Whether s 7(1)(b) of Act applies only to damages awarded following judicial assessment or also to judgments entered by consent — Whether Western Australia Court of Appeal ought to have followed decision of equivalent intermediate appellate court in respect of equivalent legislation — Nau v Kemp & Associates [2010] Aust Torts Reports 82-064. 

Appealed from WA SC (CA):  [2011] WASCA 92. 

Taxation 

Commissioner of Taxation v Qantas Airways Ltd
B25/2011:  [2012] HCATrans 36. 

Date heard:  10 February 2012 — Special leave granted.

Catchwords:

Taxation — Goods and services tax — Taxable supply — Contract for supply of services — Airline travel — When Goods and services tax ("GST") is payable — Passenger made booking and paid fare but did not take actual flight or receive refund — Whether taxable supply is the making of the reservation itself or the actual travel — Whether the respondent made a "taxable supply" within the meaning of section 9-5 of the A New Tax System (Goods and Services Tax) Act 1999 (Cth) in circumstances where passengers made and paid for reservations or bookings for flights which they subsequently did not take — Whether an amount received as consideration under a contract for supplies is to be excluded from the calculation of GST unless all of the supplies contemplated by the contract are made. 

Appealed from FCA (FC): (2001) 195 FCR 260, (2011) ATC 20-276, [2011] FCAFC 113. 

Torts

Barclay v Penberthy & Ors
P25/2011:  [2011] HCATrans 333.

Date heard:  9 December 2011 — Special leave granted.

Catchwords:

Torts — Negligence — Duty of care — Economic loss — Loss of services — First respondent piloted aircraft that crashed, killing two and injuring three employees of third respondents — Cause of crash determined to be failure of part designed by applicant — Court of Appeal held applicant and first respondent owed third respondents duty of care, which they breached, causing economic loss to third respondents — Whether applicant owed third respondents duty of care in respect of economic loss claim — Whether existence of action for loss of services a relevant factor in determining whether applicant owed third respondents duty of care — Whether existence of action for loss of services requires imposition of common law duty of care.

Appealed from WA SC (CA):  [2011] Aust Torts Reports 82-087; [2011] WASCA 102.

Madeleine Louise Sweeney bhnf Norma Bell v Thornton 
S321/2011: [2012] HCATrans 58.

Date heard:  9 March 2012 — Matter referred to Full Court.

Catchwords:

Torts — Negligence — Motor vehicle accident — Duty of care — Applicant learner driver — Content of duty of care owed by voluntary supervisor to learner driver — Applicant suffered personal injury when she crashed a car when navigating a bend — Whether supervisor’s failure to warn driver to reduce speed constituted breach of the duty of care — Whether the Court of Appeal erred as to the content of the respondent's duty of care — Whether the Court of Appeal erred in its findings on causation — Whether the Court of Appeal erred in its limitation of effect of the respondent's admission on the content of the duty of care — Whether the Court of Appeal erred with respect to various factual findings. 

Appealed from NSW SC (CA): (2011) 59 MVR 155; [2011] NSWCA 244. 

5: Cases Not Proceeding or Vacated

The following cases in the High Court of Australia are not proceeding or have been vacated since High Court Bulletin 2 [2012] HCAB 02.

6: Special Leave Refused

Canberra:  29 February 2012
(Publication of reasons)

Applicant	Respondent	Court appealed from	Result	
Kowalski	Mitsubishi Motors Australia Ltd & Ors
(A32/2011)	Full Court of the Federal Court of Australia
[2011] FCAFC 159	Application Dismissed
[2011] HCASL 43	
Menzies	Paccar Financial Pty Ltd & Ors
(M160/2011)	Federal Court of Australia
[2011] FCA 1161	Application Dismissed
[2011] HCASL 44	
Slaveski	State of Victoria & Ors
(M165/2011)	Supreme Court of Victoria (Court of Appeal)
(no media neutral citation)	Application Dismissed
[2011] HCASL 45	
Bahonko	Attorney-General for the State of Victoria
(M7/2012)	Supreme Court of Victoria (Court of Appeal)
(no media neutral citation)	Application Dismissed
[2011] HCASL 46	
SZQAM	Minister for Immigration and Citizenship a& Anor
(S383/2011)	Federal Court of Australia
(no media neutral citation)	Application Dismissed
[2011] HCASL 47	
SZQFL	Minister for Immigration and Citizenship & Anor
(S398/2011)	Federal Court of Australia
[2011] FCA 1280	Application Dismissed
[2011] HCASL 48	
SZQJE	Minister for Immigration and Citizenship & Anor
(S400/2011)	Federal Court of Australia
[2011] FCA 1311	Application Dismissed
[2011] HCASL 49	
SZQDC	Minister for Immigration and Citizenship & Anor
(S402/2011)	Federal Court of Australia
[2011] FCA 1366	Application Dismissed
[2011] HCASL 50	
Donaldson	Commonwealth of Australia
(S410/2011)	Supreme Court of New South Wales
(Court of Appeal)
(no media neutral citation)	Application Dismissed
[2011] HCASL 51	
SZQCJ	Minister for Immigration and Citizenship & Anor
(S411/2011)	Federal Court of Australia
[2011] FCA 1184	Application Dismissed
[2011] HCASL 52	
SZQFS	Minister for Immigration and Citizenship & Anor
(S13/2012)	Federal Court of Australia
[2011] FCA 1244	Application Dismissed
[2011] HCASL 53	
HZAAA	Minister for Immigration and Citizenship & Anor
(H1/2012)	Federal Court of Australia
[2011] FCA 1459	Application Dismissed
[2011] HCASL 54	
HZAAB & Anor	Minister for Immigration and Citizenship & Anor
(H2/2012)	Federal Court of Australia
[2011] FCA 1460	Application Dismissed
[2011] HCASL 55	
Re Smart	(M164/2011)	High Court of Australia
[2011] HCATrans 310	Application Dismissed
[2011] HCASL 56	
SZOZV	Minister for Immigration and Citizenship & Anor
(S380/2011	Federal Court of Australia
[2011] FCA 1235	Application Dismissed
[2011] HCASL 57	
Muradzi	Minister for Immigration and Citizenship
(M133/2011)	Federal Court of Australia
[2011] FCA 976	Application Dismissed with Costs
[2011] HCASL 58	
Kocic	Deputy Commissioner of Taxation
(S360/2011)	Supreme Court of New South Wales (Court of Appeal)
[2011] NSWCA 322	Application Dismissed with Costs
[2011] HCASL 59	
Saenz	The Queen
(M57/2011)	Supreme Court of Victoria (Court of Appeal)
[2011] VSCA 154	Application Dismissed
[2011] HCASL 60	
Nguyen	The Queen
(S368/2011)	Supreme Court of New South Wales (Court of Criminal Appeal)
[2011] NSWCCA 92	Application Dismissed
[2011] HCASL 61	
Japaljarri	The Queen
(M53/2011)	Supreme Court of Victoria (Court of Appeal)
[2002] VSCA 154	Application Dismissed
[2011] HCASL 62