High Court Bulletin
Produced by the Legal Research Officer, 
High Court of Australia Library
[2015] HCAB 10 (22 December 2015)

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	
Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd & Ors	Employment Law	
Macoun v Commissioner of Taxation	Income Tax	
Plaintiff M64/2015 v Minister for Immigration and Border Protection	Migration	
Wei v Minister for Immigration and Border Protection	Migration	
Vella v Minister for Immigration and Border Protection & Anor	Practice and Procedure	
Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate & Ors; Construction, Forestry, Mining and Energy Union & Anor v Director, Fair Work Building Industry Inspectorate & Anor	Practice and Procedure	
Firebird Global Master Fund II Ltd v Republic of Nauru & Anor	Public International Law	
Commissioner of Taxation v Australian Building Systems Pty Ltd (In Liq); Commissioner of Taxation v Muller & Anor as Liquidators of Australian Building Systems Pty Ltd (In Liq)	Taxation	
Allen v Chadwick	Torts	

2: Cases Reserved
Case	Title	
The Queen v GW	Criminal Law	
Fischer & Ors v Nemeske Pty Ltd & Ors	Equity	
CGU Insurance Limited v Blakeley & Ors	Procedure	
Moreton Bay Regional Council v Mekpine Pty Ltd	Property	

3: Original Jurisdiction
Case	Title	
Alqudsi v The Queen	Constitutional Law	
The Maritime Union of Australia & Anor v Assistant Minister for Immigration and Border Protection & Anor	Migration	

4: Special Leave Granted
Case	Title	
Betts v The Queen	Criminal Law	
Nguyen v The Queen	Criminal Law	
Crown Melbourne Limited v Cosmopolitan Hotel (Vic) Pty Ltd & Anor	Equity	
Deal v Kodakkathanath	Workers’ Compensation	

1: Cases Handed Down

The following cases were handed down by the High Court of Australia during the December 2015 sittings.

Employment Law

Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd & Ors
P38/2015: [2015] HCA 45.

Judgment delivered:  2 December 2015. 

Coram: French CJ, Kiefel, Bell, Gageler and Nettle JJ. 

Catchwords:

Employment law – Employer and employee – Independent contractor – Sham arrangements – Fair Work Act 2009 (Cth), s 357(1) prohibits representation by employer to employee that contract of employment under which individual is employed is contract for services – First respondent represented that employees performed work as independent contractors under contracts for services with second respondent – Whether first respondent contravened s 357(1).

Words and phrases – "contract for services", "independent contractor", "sham arrangement".

Appealed from FCA (FC): [2015] FCAFC 37. 

Held: Appeal allowed. 

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Income Tax

Macoun v Commissioner of Taxation
S100/2015: [2015] HCA 44.

Judgment delivered: 2 December 2015.

Coram: French CJ, Bell, Gageler, Nettle and Gordon JJ. 

Catchwords: 
Income tax – International Organisations (Privileges and Immunities) Act 1963 (Cth) – Exemption from taxation on salaries and emoluments received from certain international organisations – Whether monthly pension payments exempt from taxation.

International law – Treaty interpretation – Privileges and immunities of specialized agencies – Whether Convention on the Privileges and Immunities of the Specialized Agencies requires Australia not to tax monthly pension payments received by former officer of specialized agency.

Words and phrases – "emolument", "pension", "salary".

Appealed from FCA (FC): [2014] FCAFC 162.

Held: Appeal dismissed. 

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International Law

See also Income Tax: Macoun v Commissioner for Taxation. 

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Migration

Plaintiff M64/2015 v Minister for Immigration and Border Protection
M64/2015: [2015] HCA 50.

Judgment delivered: 17 December 2015. 

Coram: French CJ, Bell, Gageler, Keane and Gordon JJ. 

Catchwords:

Migration – Visa application – Clause 202. 222(2) of Sched 2 to Migration Regulations 1994 (Cth) provides for grant of Refugee and Humanitarian (Class XB) (Subclass 202) visa if Minister satisfied there are compelling reasons for giving special consideration to granting visa – Where applications for Subclass 202 visas refused by delegate of Minister – Where delegate considered capacity of Australian community to permanently settle visa applicants – Where delegate considered departmental policy that established priorities to be accorded to visa applications – Construction of cl 202. 222(2) – Whether decision affected by jurisdictional error.

Words and phrases – "capacity", "compelling reasons", "irrelevant considerations", "jurisdictional error", "priorities policy", "special consideration".

Held: Questions answered. 

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Wei v Minister for Immigration and Border Protection
S9/2015: [2015] HCA 51. 

Judgment delivered: 17 December 2015. 

Coram: Gageler, Keane and Nettle JJ. 

Catchwords:

Migration – Visa cancellation – Migration Act 1958 (Cth), s 116(1)(b) provides that Minister may cancel visa if satisfied that visa holder has not complied with condition of visa – Where delegate cancelled plaintiff's visa on satisfaction that plaintiff had breached visa condition – Where delegate's satisfaction formed by process of fact-finding tainted by non-compliance of third party with imperative statutory duty – Whether delegate failed to make obvious inquiry as to critical fact – Whether decision affected by jurisdictional error.

Migration – Original jurisdiction of High Court – Where plaintiff's application for remedy made outside time limit in Migration Act 1958 (Cth), s 486A(1) – Operation of s 486A.

Words and phrases – "extension of time", "imperative duty", "jurisdictional error".

Held: Writ of Prohibition issued and Writ of Certiorari granted. 

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Practice and Procedure

Vella v Minister for Immigration and Border Protection & Anor
S233/2015: [2015] HCA 42. 

Judgment delivered: 30 November 2015. 

Coram: Gageler J.

Catchwords:

Practice and procedure – High Court of Australia – Extension of time – Migration law – Migration Act 1958 (Cth), s 486A imposes 35 day limit on application for remedy in High Court's original jurisdiction in relation to migration decision – High Court may extend 35 day period if necessary in the interests of the administration of justice – Application for order to show cause in relation to migration decision made 16 months out of time – Whether order extending 35 day period should be made – Whether case for extension of time exceptional.

Words and phrases – "interests of the administration of justice".

Held: Application refused with costs. 

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Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate & Ors; Construction, Forestry, Mining and Energy Union & Anor v Director, Fair Work Building Industry Inspectorate & Anor
B36/2015; B45/2015: [2015] HCA 46. 

Judgment delivered: 9 December 2015. 

Coram: French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ.  

Catchwords:

Practice and procedure – Civil penalties – Whether submissions as to agreed penalty permissible – Whether Barbaro v The Queen (2014) 253 CLR 58 applies to civil penalty proceedings.

Words and phrases – "agreed penalty", "appropriate penalty", "civil penalty".

Appealed from FCA (FC): [2015] FCAFC 59. 

Held: Appeal allowed. 

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See also Public International Law: Firebird Global Master Fund II Ltd v Republic of Nauru & Anor. 

Public International Law

Firebird Global Master Fund II Ltd v Republic of Nauru & Anor
S29/2015: [2015] HCA 43.

Judgment delivered: 2 December 2015. 

Coram: French CJ, Kiefel, Gageler, Nettle and Gordon JJ. 

Catchwords:
	
Public international law – Foreign State immunity – Immunity from jurisdiction – Proceedings for registration of a foreign judgment – Where appellant obtained judgment in Tokyo District Court against first respondent as guarantor of certain bonds – Where appellant obtained order from Supreme Court of New South Wales that the foreign judgment be registered under Foreign Judgments Act 1991 (Cth) – Whether first respondent entitled to foreign State immunity from jurisdiction under s 9 of Foreign States Immunities Act 1985 (Cth) – Whether exception in s 11(1) of Foreign States Immunities Act for proceedings concerning "commercial transactions" applies.

Public international law – Foreign State immunity – Immunity from execution – Where appellant obtained garnishee order against Australian bank where first respondent held bank accounts – Whether first respondent entitled to foreign State immunity from execution under s 30 of Foreign States Immunities Act – Whether property "in use" or "set aside" – Whether exception in s 32(1) of Foreign States Immunities Act for "commercial property" applies.

Statutory interpretation – Implied repeal – Where Foreign States Immunities Act provides for foreign State immunity from jurisdiction in certain proceedings and Foreign Judgments Act requires a foreign judgment be registered on satisfaction of applicable criteria – Whether the operations of the two statutes are inconsistent such that the earlier statute is impliedly repealed to the extent of inconsistency.

Procedure – Service – Registration of foreign judgments – Where judgment debtor in registration proceedings is a foreign State – Whether Pt III of Foreign States Immunities Act requires service of summons prior to registration order being made under Foreign Judgments Act.

Appealed from NSWSC (CA): (2014) 316 ALR 497; (2014) 289 FLR 398; [2014] NSWCA 360.

Held: Appeal dismissed in part. 

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Statutory Interpretation

See also Public International Law: Firebird Global Master Fund II Ltd v Republic of Nauru & Anor. 

See also Taxation: Commissioner of Taxation v Australian Building Systems Pty Ltd (In Liq); Commissioner of Taxation v Muller & Anor as Liquidators of Australian Building Systems Pty Ltd (In Liq). 

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Taxation

Commissioner of Taxation v Australian Building Systems Pty Ltd (In Liq); Commissioner of Taxation v Muller & Anor as Liquidators of Australian Building Systems Pty Ltd (In Liq)
B19/2015; B20/2015: [2015] HCA 48. 

Judgment delivered: 10 December 2015.  

Coram: French CJ, Kiefel, Gageler, Keane and Gordon JJ. 

Catchwords:

Taxes and duties – Income tax and related legislation – Obligations of agents and trustees – Where liquidators caused company to sell property resulting in a capital gain – Whether retention obligation in s 254(1)(d) of Income Tax Assessment Act 1936 (Cth) arises before assessment – Whether liquidators are trustees of trust estate for the purposes of Div 6 of Pt III of Act.

Statutes – Construction – Same or similar phrases within a statute – Whether construction of a phrase in one provision controls construction of the same or similar phrase in another provision – Relevance of context and purpose.

Words and phrases – "agent", "answerable as taxpayer", "assessment", "capital gain", "collecting provision", "due", "due and payable", "income, profits or gains", "is or will become due", "owing", "sufficient", "trustee".

Appealed from FCA (FC): [2014] FCAFC 133. 

Held: Each appeal dismissed with costs. 

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Torts

Allen v Chadwick
A14/2015: [2015] HCA 47.

Judgment delivered: 9 December 2015. 

Coram: French CJ, Kiefel, Bell, Keane and Gordon JJ. 

Catchwords:

Torts – Negligence – Contributory negligence – Section 47 of Civil Liability Act 1936 (SA) ("Act") presumes contributory negligence of injured person who relied on care and skill of intoxicated person and who was aware or ought to have been aware that other person was intoxicated – Section 47(2)(b) of Act establishes exception where injured person could not reasonably be expected to have avoided risk – Where respondent travelled in car with intoxicated driver and suffered serious injuries – Whether respondent could reasonably be expected to have avoided risk – Proper construction of s 47(2)(b) of Act – Relevance of respondent's capacity to make reasonable assessment of relative risks – Relevance of subjective characteristics.

Torts – Negligence – Contributory negligence – Section 49 of Act presumes contributory negligence where person injured in motor vehicle accident not wearing seatbelt – Where respondent was not wearing seatbelt and suffered serious injuries in motor vehicle accident – Whether appellant's erratic driving prevented respondent from fastening seatbelt – Whether factual findings overturned on appeal – Relevance of "act of a stranger" defence.

Words and phrases – "act of a stranger", "could not reasonably be expected to have avoided the risk", "reasonable assessment of risk".

Appealed from SASC (FC): [2014] SASCFC 100.

Held: Appeal allowed in part

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2: Cases Reserved

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

Constitutional Law

Plaintiff M68/2015 v Minister for Immigration and Border Protection & Ors 
M68/2015: [2015] HCATrans 255; [2015] HCATrans 256.  

Dates heard: 7 October 2015; 8 October 2015. 

Coram: French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ. 

Catchwords

Constitutional law – Where plaintiff was an “unauthorised maritime arrival” pursuant to s 5AA of the Migration Act 1958 (Cth) (“Act”) – Where plaintiff was taken to Nauru Regional Processing Centre (“RPC”) pursuant to s 198AD(2) of the Act – Where plaintiff was granted an RPC visa by the Nauru government which had certain restrictions and specifications - Whether plaintiff has standing to challenge whether the Commonwealth or the Minister was authorised in the past to engage in the activities relating to the creation and operation of the RPC – Whether Commonwealth or Minister were authorised to engage in acts relating to the creation and operation of the RPC pursuant to s 61 of the Constitution, s 198AHA of the Act, and s 32B of the Financial Framework (Supplementary Powers) Act 1997 (Cth) read together with reg 16 and items 417.021, 417.027, 417.029 and 417.042 of Sch 1AA Financial Framework (Supplementary Powers) Regulations 1997 (Cth) – Whether the restrictions imposed on the plaintiff and the specifications of her RPC visa are contrary to Article 5(1) of the Constitution of Nauru – Whether the statutory provisions relied upon by the Commonwealth are invalid because they are not supported by any head of Commonwealth legislative power or are contrary to Ch III of the Constitution. 

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Criminal Law

The Queen v GW
C13/2015: [2015] HCATrans 325. 

Date heard: 10 December 2015. 

Coram: French CJ, Bell, Gageler, Keane and Nettle JJ. 

Catchwords:

Criminal law – Evidence – Unsworn statements – Where respondent was found guilty of committing acts of indecency upon or in the presence of children “R” and “H” contrary to s 61(1) of the Crimes Act 1900 (ACT) – Where R gave evidence at a pre-trial hearing but was unable to give sworn evidence due to her age – Where she gave unsworn evidence pursuant to s 13 of the Evidence Act 2011 (ACT) – Where evidence was admitted without a warning – Where the Court of Appeal overturned the conviction on the basis that the unsworn evidence of R should not have been admitted and the trial judge failed to direct the jury regarding the unsworn evidence of R – Whether, where witnesses give unsworn evidence pursuant to s 13 of the Evidence Act, there should be a requirement that the jury be warned that there is a difference between sworn and unsworn evidence – Whether a finding by a judge that a witness is not competent to give sworn evidence pursuant to s 13(3) of the Evidence Act requires a particular formulation of the warning. 

Appealed from ACTSC (CA): [2015] ACTCA 15. 

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Equity

Fischer & Ors v Nemeske Pty Ltd & Ors
S223/2015: [2015] HCATrans 321.

Date heard:  2 December 2015. 

Coram: French CJ, Kiefel, Bell, Gageler and Gordon JJ. 

Catchwords:

Equity – Trusts and trustees – Power of trustees – Maintenance and advancement – Where first respondent is the trustee of the Nemes Family Trust and applicants are the “Specified Beneficiaries” – Where in July 1994 the trust recorded an “asset revaluation reserve” in the accounts of the trust in the amount of $3,904,300 – Where first respondent determined to make a distribution to Mr and Mrs Nemes but no money was paid out – Where, in 1995, first respondent executed a Deed of Charge in favour of the Nemes which recorded that trust was indebted to the Nemes to the sum of $3,904,300 – Whether a trustee of an express trust validly exercise a power to “advance” or “apply” the capital or income of that trust by resolving to pay or credit an amount of money to a beneficiary of the trust, notwithstanding that the trust assets do not include, and have never included, any money – Whether an action for money received maintainable against a trustee upon the trustee stating an account to the relevant beneficiary, notwithstanding that the trustee continued to have ongoing active duties as trustee in respect of all of the trust assets from which any liability to the relevant beneficiary would be realised. 

Appealed from NSWSC (CA): [2015] NSWCA 6. 

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Procedure

CGU Insurance Limited v Blakeley & Ors
M221/2015: [2015] HCATrans 324.

Date heard: 9 December 2015. 

Coram: French CJ, Kiefel, Bell, Keane and Nettle JJ. 

Catchwords:

Procedure – Joinder of third parties – Where declaratory relief was sought by first respondent against appellant – Where first respondent was stranger to insurance contract between appellant and second to fifth respondents – Whether Court has jurisdiction to declare the rights and obligations of parties under a contract of insurance where declaration is sought by a third party and the parties to the contract do not intend to pursue any claim relating to their rights or obligations under the contract – Whether such a declaration would bind parties to the contract as a matter of res judicata or finally determine their rights and obligations pursuant to the contract – Whether Court has jurisdiction to make a declaration about the meaning of a contract at the suit of a third party on the grounds of “practical utility”. 

Appealed from VSC (CA): [2015] VSCA 153.

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Property

Moreton Bay Regional Council v Mekpine Pty Ltd
B60/2015: [2015] HCATrans 323. 

Date heard: 8 December 2015.

Coram: French CJ, Kiefel, Bell, Gageler and Nettle JJ. 

Catchwords:

Property law – Crown lands – Where respondent entered into a retail shop lease within the meaning of the Retail Shop Leases Act 1994 (Qld) in respect of Lot 6 on RP 809722 (“Lot 6”) – Where the Retail Shopping Centre that Lot 6 was expanded to include Lot 1 on RP 847798 (“Old Lot 1”) and this Lot was amalgamated by registration of a plan of survey and existing interests under the Land Title Act 1994 (Qld) to create a new Lot 1 – Where appellant resumed part of the new Lot 1 under the provision of the Acquisition of Land Act 1967 (Qld) (“ALA”) – Where respondent brought a claim for compensation pursuant to the ALA on the basis that, at the date of resumption, respondent had an interest in the resumed land for the purposes of s 12(5) of the ALA – Whether the creation of a new lot has the effect of varying a lease over just one of the existing allotments – Whether the provisions of the Retail Shop Leases Act which include a definition of “common areas” of a retail shopping centre, operate to vary a retail shop lease to include areas defined by the Retail Shop Leases Act as “common areas” or otherwise create an interest in the “common areas” defined by the Retail Shop Leases Act.

Appealed from QSC (CA): [2014] QCA 317.

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Statutes

State of Victoria v Tatts Group Limited
M83/2015: [2015] HCA Trans 290.

Date heard: 11 November 2015. 

Coram: French CJ, Kiefel, Bell, Keane and Gordon JJ. 

Catchwords:

Statutory interpretation – Gambling Regulation Act 2003 (Vic) ss 1.3, 3.4.33 and Pt 4 of Ch 3 – Gaming operator licences – Where the regime changed and the ability to issue gaming operator’s licences was abolished – Where respondent’s licence expired – Whether respondent entitled to a terminal payment on the grant of gaming operator’s licence to person other than former licensee or a related entity – Whether when construing a contractual promise in an agreement between a government and private party which expressly requires the subsequent enactment of that promise in legislation can this agreement to afford the promise statutory force be relevant to ascertaining the intentions of the parties with respect to the meaning of the promise – Whether the contractual promise survives the agreed enactment of legislation embodying the same – Whether the contractual promise continues to have operation after the enactment of the statutory right if that statutory right is legislatively nullified – Whether a prior contractual promise can survive the enactment of legislation which has the purpose and effect of nullifying the parallel statutory right. 

Appealed from VSC (CA): [2014] VSCA 311.  

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Tabcorp Holdings Limited v State of Victoria
M81/2015: [2015] HCATrans 288; [2015] HCATrans 289.

Date heard: 10 November 2015; 11 November 2015. 

Coram: French CJ, Kiefel, Bell, Keane and Gordon JJ. 

Catchwords:

Statutory interpretation – Gambling Regulation Act 2003 (Vic) s 4.3.21 – Gaming operator licences – Where the regime changed and the ability to issue gaming operator’s licences was abolished – Where appellant’s licence expired – Whether appellant is entitled to a terminal payment on the grant of gaming operator’s licence to person other than former licensee or a related entity – Whether words “new licences” in s 4.3.12(1) of the Gambling Regulation Act 2003 should be construed to have their ordinary meaning.

Contracts – General contractual principles – Whether respondent’s failure to seek to secure appellant’s right to repayment of a breach of the duty of good faith and reasonable dealing.

Appealed from VSC (CA): [2014] VSCA 312.

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3: Original Jurisdiction

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

Constitutional Law

Alqudsi v The Queen
S119/2015; S132/2015: Removal application. 

Catchwords:

Constitutional law – Trial by jury for Commonwealth indictable offences – Whether s 80 of the Constitution can be read to permit a state Parliament to pass a statute allowing for a trial to be by a judge alone where the prosecution and accused agree or the accused seeks that outcome and the Court considers it in the interest of justice – Whether such a position would be consistent with Brown v The Queen. 

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See also Native Title: Quandamooka Yoolooburrabee Aboriginal Corporation RNTBC v State of Queensland

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Migration

The Maritime Union of Australia & Anor v Assistant Minister for Immigration and Border Protection & Anor
S136/2015: Special case. 

Catchwords:

Migration – Categories of visas – Migration Act 1958 (Cth) (“Act”) – Where Act contains a regime under which non-citizens working in the offshore resources industries must hold permanent or prescribed temporary visas – Where Minister made two Determinations which excluded some off-shore activities from the the regime - Whether Determinations IMMI 14/073 and IMMI 14/074 made pursuant to s 9A(6) of the Act by the Minister are valid. 

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Native Title

Quandamooka Yoolooburrabee Aboriginal Corporation RNTBC v State of Queensland
B26/2014: Special case.

Catchwords:

Native title – Indigenous Land Use Agreement (“ILUA”) – North Stradbroke Island Protection and Sustainability Act 2011 (Qld) (“Principal Act”) – North Stradbroke Island Protection and Sustainability and Another Act Amendment Act 2013 (Qld) (“Amendment Act”) – Amendment Act allowed for renewal of four mining leases for periods longer than those provided in Principal Act – Amendment Act replaced environmental authority provisions in Principal Act with new s 17 which no longer applied conditions to two mining leases – ILUA registered as area agreement under ss 24CA to 24CL of Native Title Act 1993 (Cth) (“NTA”) – Whether ILUA binds defendant not to enact ss 9 and 12 of Amendment Act.

Constitutional law – Inconsistency – Commonwealth Constitution, s 109 – Whether Amendment Act is invalid under s 109 of Constitution by reason of inconsistency between Amendment Act and ss 24EA and 87 of NTA. 

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4: Special Leave Granted

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

Administrative Law

Acquista Investments Pty Ltd & Anor v The Urban Renewal Authority & Ors
A29/2015: [2015] HCATrans 295. 

Date heard: 13 November 2015 – Special leave granted. 

Catchwords:

Administrative law – Judicial review – Grounds of review – Delegation of power - Where first respondent entered into a deed with the Minister for State Development and third respondent to grant third respondent options to purchase 407 hectares of land owned by first respondent – Where Cabinet had made decision to enter into Deed, purportedly on behalf of first respondent - Where appellants had previously expressed interest in purchasing the property – Whether the decision of first respondent to entered into a deed granting third respondent options to purchase is amenable to judicial review – Whether a valid delegation and exercise of power under relevant legislation or executive power occurred – Whether decision to enter into deed was legally unreasonable and ultra vires in the circumstances. 

Appealed from SASC (FC): [2015] SASCFC 91. 

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Banking

Paciocco & Anor v Australia and New Zealand Banking Group Limited
M219/2015; M220/2015: [2015] HCATrans 229. 

Date heard: 11 September 2015 – Special leave granted. 

Catchwords:

Banking and financial institutions – Consumer protection – Australian Securities and Investments Commission Act 2001 (Cth) s 12CB – National Consumer Credit Protection Act 2009 (Cth) s 76 and Fair Trading Act 1999 (Vic) s 8 – Where first appellant was charged 26 late payment fees on two credit card accounts held with respondent – Where there was a disparity between the fee charged and the loss accrued as a consequence of late payment - Whether the terms “unconscionable”, “unfair” and “unjust”, as used in the statutory causes of action available, are intended to extend the common law in respect of standard form consumer contracts – Whether disproportion between the quantum of late payment fees and cost to respondent associated with late payment gives rise to statutory unconscionability, unjustness or unfairness if the fees were not exorbitant from respondent’s perspective.  

Appealed from FCA (FC): [2015] FCAFC 50. 

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Constitutional Law

Mok v Director of Public Prosecutions (NSW)
S246/2015: [2015] HCATrans 301. 

Date heard: 13 November 2015 – Special leave granted. 

Catchwords:

Constitutional law – Commonwealth places – Service and Execution of Process Act 1992 (Cth) (“Act”) s 89(4) – Where appellant pleaded guilty to a number of fraud offences in New South Wales – Where appellant failed to appear for sentencing – Where appellant was charged with unrelated offences in Victoria – Where appellant escaped custody whilst in an airport and was apprehended shortly after – Where appellant was charged with attempting to escape from lawful custody contrary to s 310D Crimes Act 1900 (NSW) – Whether when applying a criminal offence provision by virtue of s 89(4) of the Act is the prosecution relieved of the burden of proving all elements of the offence – Whether s 89(4) of the Act is an offence creating provision. 

Appealed from NSWSC (CA): [2015] NSWCA 98.

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Criminal Law

Murdoch v The Queen
D12/2015: [2015] HCATrans 266. 

Date heard: 16 October 2015 – Special leave granted. 

Catchwords:

Criminal law – Evidence – Tendency evidence – Evidence (National Uniform Legislation) Act (NT) (“Uniform Evidence Law”) s 97 – Where appellant was found guilty of offences committed against his step grandchild – Where complainant made a complaint to family members – Where evidence was given of an incident which was not charged and occurred after the time period of the offences charged – Where several people give evidence of the complaints – Whether trial judge is required to assume that the jury will accept the evidence when considering the probative value of the tendency evidence pursuant to s 97(1)(b) of the Uniform Evidence Law – Whether hearsay evidence of a complaint, involving general allegations of sexual misconduct not linked to any particular charge is admissible as evidence of guilt of the offences charged under the Uniform Evidence Law – Whether the correct approach to assessment of “probative value” for the purposes of s 137 of the Uniform Evidence Law was made.

Appealed from NTSC (CCA): [2014] NTCCA 20.

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Miller v The Queen
A28/2015: [2015] HCATrans 296. 

Date heard: 13 November 2015 – Special leave granted. 

Catchwords:

Criminal law – Criminal Law Consolidation Act 1935 (SA) ss 11, 24(1), 269 - Murder – Intention – Where appellant was convicted of one count of murder and one count of aggravated causing of harm with two others – Where appellant was convicted on the basis of joint criminal enterprise or extended joint criminal enterprise - Where appellant was highly intoxicated – Where evidence was given that this intoxication significantly impaired appellant’s decision-making – Whether appellant was too intoxicated to form the relevant intention for a conviction of murder. 

Appealed from SASC (FC): [2015] SASCFC 53. 

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R & Anor v The Independent Broad-based Anti-corruption Commissioner 
M246/2015: [2015] HCATrans 293. 

Date heard: 13 November 2015 – Special leave granted. 

Catchwords:

Criminal law – Evidence – Confessions and admissions – Independent Broad-based Anti-corruption Commission Act 2011 (Vic) (“IBAC Act”) ss 115, 120, 190 - Where person ‘A’ was allegedly assaulted by appellants at a police station – Where Victorian Police notified the Independent Broad-based Anti-corruption Commissioner (“IBAC”) – Where IBAC commenced an investigation into appellants’ conduct and issued – summons to appellants requiring attendance at public examinations – Where appellants are under investigation by police in respect of criminal charges arising out of the same incident – Whether the power to examine persons conferred by the IBAC Act extends to persons who are the subject of a criminal investigation about the subject matter of that criminal investigation – Whether it is permissible to conduct compulsory examinations where IBAC may initiate a criminal prosecution for an offence in relation to any matter arising out of the IBAC investigation. 

Appealed from VSC (CA): [2015] VSCA 271. 

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Zaburoni v The Queen
B69/2015: [2015] HCATrans 298. 

Date heard: 13 November 2015 – Special leave granted. 

Catchwords:

Criminal law – Criminal liability – Criminal Code 1899 (Qld) s 317 - Element of intent to cause a specific result – Where appellant is HIV positive – Where appellant commenced a relationship with complainant – Where appellant did not disclose HIV status – Where complainant was diagnosed with HIV after engaging in unprotected sex with appellant – Where appellant was found guilty of transmitting a serious disease with intent – Whether the element of intent to cause a specific result can be satisfied by establishing that an accused engaged in a course of conduct over a significant period time and was reckless as to the potential consequences of that conduct – Whether the element of intent can be inferred from an awareness of increased risk where conduct is engaged in frequently and over a period of time – Whether intent can be inferred from frequent conduct where the precise time at which the intent formed and the result occurred cannot be identified.

Appealed from QSC (CA): [2014] QCA 77. 

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Betts v The Queen
S110/2015: [2015] HCATrans 328. 

Date heard: 11 December 2015 – Special leave granted. 

Catchwords:

Criminal law – Sentencing – Where Court of Criminal Appeal found that the sentencing judge made errors in the sentencing of appellant – Where Court of Appeal considered the matter afresh – Whether Court of Appeal erred by failing to consider new evidence when exercising the sentencing discretion afresh. 

Appealed from NSWSC (CCA): [2015] NSWCCA 39. 

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Nguyen v The Queen 
S149/2015: [2015] HCATrans 330.

Date heard: 11 December 2015 – Special leave granted on limited grounds. 

Catchwords:

Criminal law – Sentencing – Objective seriousness of offending – Whether sentencing judge appropriately considered the objective seriousness of the offending – Whether the principle in The Queen v De Simoni prohibits a sentencing judge from having regard to the absence of a fact which would render an offender guilty of a more serious offence where that fact is not an element of the more serious offence. 

Appealed from NSWSC (CCA): [2013] NSWCCA 195. 

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See also Constitutional Law: Mok v Director of Public Prosecutions.

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Equity

Crown Melbourne Limited v Cosmopolitan Hotel (Vic) Pty Ltd & Anor
M61/2015: [2015] HCATrans 335. 

Date heard: 11 December 2015 – Special leave granted. 

Catchwords:

Equity – Promissory estoppel – Where respondent operated restaurants at appellant’s complex - Where the appellant made representations to the respondent that if certain refurbishments were made respondent would be “looked after” when it came time to renew the lease for the premises – Whether an ambiguous representation is capable of founding a promissory estoppel – Whether a promissory estoppel can be found to exist by proving the making and the resiling from a representation made. 

Appealed from VSC (CA): [2014] VSCA 353. 

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Professions and Trades

See also Torts: Attwells & Anor v Jackson Lalic Lawyers Pty Limited.

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Badenach & Anor v Calvert
H12/2015: [2015] HCATrans 279. 

Date heard: 26 October 2015 – Special leave granted. 

Catchwords:

Professions and trades – Lawyers – Duties and liabilities – Solicitors’ duties to other persons – Beneficiaries – Where first appellant acted for a testator who had terminal cancer in the preparation of a will – Where respondent was regarded as a son by testator – Where testator had an estranged daughter – Where testator did not disclose existence of estranged daughter and first appellant did not make any inquiries in this respect and did not give any advice as the effect of the Testator’s Family Maintenance Act 1912 (Tas) on this arrangement – Whether a solicitor retained to draw a will owes a testator a duty of care which extends to inquiries as to the existence of estranged children and advice pursuant to the effect of the Act.

Torts – Negligence – Duty of care – Civil Liability Act 2002 (Tas) - Whether solicitor owed a duty of care to a non-client beneficiary – Whether damages for loss of opportunity can be awarded where opportunity is hypothetical and dependent on acts of third parties. 

Appealed from TASC (FC): [2015] TASFC 8. 

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Property

Coverdale v West Coast Council
H10/2015: [2015] HCATrans 228. 

Date heard: 11 September 2015 – Special leave granted. 

Catchwords:

Real Property – Rates and charges – Where the Valuer-General is required by the Valuation of Land Act 2001 (Tas) (“VLA”) to make valuations of all lands within a valuation district including any Crown lands that are liable to be rated – Where Macquarie Harbour is Crown land within the respondent’s municipality – Whether the sea or seabed is land which the Valuer-General is required to value. 

Appealed from TASC (FC): [2015] TASFC 1. 

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Torts

Attwells & Anor v Jackson Lalic Lawyers Pty Limited
S161/2015: [2015] HCATrans 176. 

Date heard: 7 August 2015 – Special leave granted

Catchwords:

Torts – Negligence – Defences – Advocates’ immunity – Scope – Where respondent gave advice to appellants to agree to a terms of settlement – Where the terms of settlement caused the appellants to accept liability significantly higher than they would have otherwise been liable for if they had not defended the proceedings – Whether advocates’ immunity applies – Whether the advice falls with the boundaries of advocates’ immunity – Whether immunity is attracted in respect of final outcomes not the subject of a judicial determination on the merits. 

Appealed from NSWSC (CA): [2014] NSWCA 335. 

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Robinson Helicopter Company Incorporated v McDermott & Ors
B61/2015: [2015] HCATrans 274. 

Date heard: 16 October 2015 – Special leave granted. 

Catchwords: 

Torts – Negligence – Where first respondent was a passenger in a Robinson R 22 helicopter which was manufactured by the appellant – Where helicopter crashed, killing the pilot and seriously injuring first respondent – Where it was a failure in the forward flexplate of the helicopter which caused it to crash – Whether appellant is liable for the failures of the helicopter – Whether a manufacturer of goods is to be held liable under ss 75AD and AE of the Trade Practices Act 1974 (Cth) or in negligence by reason of the maintenance manual calling for a technician to verify the parts without specifying the particular method to do so – Whether appellant should have been held liable without consideration of whether the negligence or breach of the Trade Practices Act was causative of any loss. 

Appealed from QSC (CA): [2014] QCA 357. 

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See also Professions and Trades: Badenach & Anor v Calvert.

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Workers’ Compensation

Military Rehabilitation and Compensation Commission v May
S243/2015: [2015] HCATrans 302. 

Date heard: 13 November 2015 – Special leave granted. 

Catchwords:

Workers’ compensation – Injury – Safety, Rehabilitation and Compensation Act 1988 (Cth) (“Act”) – Where respondent enlisted in the Royal Australian Air Force in 1998 – Where respondent lodged a claim under the Act for rehabilitation and compensation in for “low immunity, fatigue, illnesses and dizziness” that respondent claimed was caused by vaccinations he received in the course of his employment in 1998 – Where no specific condition or cause of symptoms was diagnosed – Whether respondent’s symptoms amount to an “injury” as defined by the Act – Whether an injury as defined by the Act requires a sudden or identifiable physiological change or disturbance of the normal physiological state in an employee – Whether the Act contemplates no more than a physiological change or disturbance of the normal physiological state in the employee. 

Appealed from FCA (FC): [2015] FCAFC 93. 

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Deal v Kodakkathanath 
M190/2015: [2015] HCATrans 333. 

Date heard: 11 December 2015 – Special leave granted. 

Catchwords:

Workers’ compensation – Accident compensation – Occupational Health and Safety Regulations 2007 (Vic) r 3.1.2 (“regulations”) – Where appellant fell off a step ladder whilst attempting to remove large displays from a wall and suffered a knee injury – Whether “associated with” in the phrase “associated with a hazardous manual handling task affecting an employee” requires a close connection between the manual handling task and the anticipated risk – Whether injury is the kind that the regulations are designed to prevent – Whether regulations should be interpreted to apply to an injury occasioned by the stresses or forces involved in the activity.

Appealed from VSC (CA): [2015] VSCA 191. 

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5: Cases Not Proceeding or Vacated

Torts

Stewart & Ors v Ackland
C12/2015: [2015] HCATrans 322. 

Consent orders made: 3 December 2015. 

Catchwords:

Torts – Negligence – Personal injury – Civil Liability Act 2002 (NSW) (‘Act’) ss 5L and 5F - Where respondent was injured while attempting to perform a backward somersault on a jumping pillow at an amusement park operated by appellant – Where there was no signs prohibiting backward somersaults or other inverted manoeuvres – Whether s 5L of the Act requires that the extent of  the harm suffered by the plaintiff to be objectively obvious to a reasonable person in the position of the plaintiff – Whether and to what extent the principle of personal autonomy applies so as to limit the scope of an occupier’s duty of care in respect of recreational activities. 

Appealed from ACTSC (CA): [2015] ACTCA 1. 

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6: Special Leave Refused

Publication of Reasons: 10 December 2015

No.	
Applicant	
Respondent	
Court appealed from	
Results
	
1.		Kowalski
	Lieschke & Weatherill Lawyers
(A19/2015)
	Full Court of the Supreme Court of South Australia
[2015] SASCFC 108
	Application dismissed
[2015] HCASL 213	
2.		BZAGU
	Minister for Immigration and Border Protection & Anor
(B54/2015)
	Federal Court of Australia
[2015] FCA 920
	Application dismissed
[2015] HCASL 214	
3.		GJ
	AS
(C9/2015)
	Supreme Court of the Australian Capital Territory 
(Court of Appeal)
[2015] ACTCA 31
	Application dismissed
[2015] HCASL 215	
4.		Urbaniak-Bak
	Prail
(C10/2015)
	Supreme Court of the Australian Capital Territory 
(Court of Appeal)
[2015] ACTCA 39
	Application dismissed
[2015] HCASL 216	
5.		Luck
	Principal Officer of Independent Broad-Based Anti Corruption Commission & Anor
(M33/2014)
	Supreme Court of Victoria 
(Court of Appeal)
no MNC
	Application dismissed
[2015] HCASL 217	
6.		Lally
	Minister for Immigration and Border Protection & Anor
(M77/2015)
	Federal Court of Australia
[2015] FCA 440
	Application dismissed
[2015] HCASL 218	
7.		Singh & Anor
	Minister for Immigration and Border Protection & Anor
(M201/2015)
	Federal Court of Australia
[2015] FCA 905
	Application dismissed
[2015] HCASL 219	
8.		MZZZH & Anor
	Minister for Immigration and Border Protection & Anor
(M192/2015)
	Federal Court of Australia
[2015] FCA 819
	Application dismissed
[2015] HCASL 220	
9.		MZACJ & Anor
	Minister for Immigration and Border Protection & Anor
(M194/2015)
	Federal Court of Australia
[2015] FCA 839
	Application dismissed
[2015] HCASL 221	
10.		MZAEL
	Minister for Immigration and Border Protection & Anor
(M195/2015)
	Federal Court of Australia
[2015] FCA 921
	Application dismissed
[2015] HCASL 222	
11.		MZAEZ & Anor
	Minister for Immigration and Border Protection & Anor
(M197/2015)
	Federal Court of Australia
[2015] FCA 873
	Application dismissed
[2015] HCASL 223	
12.		Patel
	Naderasa
(S153/2015)
	Supreme Court of New South Wales 
(Court of Appeal)
[2015] NSWCA 209
	Application dismissed
[2015] HCASL 224	
13.		Kumar
	Minister for Immigration and Border Protection & Anor
(S166/2015)
	Federal Court of Australia
[2015] FCA 898
	Application dismissed
[2015] HCASL 225	
14.		AHB15
	Minister for Immigration and Border Protection & Anor
(S174/2015)
	Federal Court of Australia
[2015] FCA 937
	Application dismissed
[2015] HCASL 226	
15.		Gramotnev
	Queensland University of Technology
(B42/2015 & B43/2015)
	Supreme Court of Queensland 
(Court of Appeal)
[2015] QCA 127
	Application dismissed
[2015] HCASL 227	
16.		Trackcorp Adrenalin Pty Ltd 
	Bathurst Regional Council
(S109/2015)
	Supreme Court of New South Wales 
(Court of Appeal)
[2015] NSWCA 123
	Application dismissed with costs 
[2015] HCASL 228	
17.		Minister for Immigration and Border Protection
	CZBQ & Anor
(S126/2015)
	Federal Court of Australia
[2015] FCA 526
	Application dismissed with costs 
[2015] HCASL 229	
18.		Fabre
	Lui
(S134/2015)
	Supreme Court of New South Wales 
(Court of Appeal)
[2015] NSWCA157
	Application dismissed with costs 
[2015] HCASL 230	
19.		Kumar
	Legal Services Commissioner of New South Wales
(S138/2015)
	Supreme Court of New South Wales 
(Court of Appeal)
[2015] NSWCA 161
	Application dismissed with costs 
[2015] HCASL 231	
20.		Taleb
	The Queen
(S133/2015)
	Supreme Court of New South Wales 
(Court of Criminal Appeal)
[2015] NSWCCA 105
	Application dismissed
[2015] HCASL 232	

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11 December 2015: Melbourne

No.	
Applicant	
Respondent	
Court appealed from	
Results	
1.		Kumar
	The Queen
(M106/2015)
	Supreme Court of Victoria
(Court of Appeal)
[2014] VSCA 102
	Application dismissed
[2015] HCATrans 336
	
2.		The Queen
	Ramon Harris (a Pseudonym)
(M112/2015)
	Supreme Court of Victoria
(Court of Appeal)
[2015] VSCA 112
	Application dismissed 
[2015] HCATrans 334
	
3.		David Glass (a pseudonym)
	The Chief Examiner & Ors
(M114/2015)
	Supreme Court of Victoria
(Court of Appeal)
[2015] VSCA 127
	Application dismissed with costs
[2015] HCATrans 339
	
4.		Commissioner of Taxation of the Commonwealth of Australia
	Haritos & Anor
(M171/2015)
	Federal Court of Australia
[2014] FCAFC 92
	Application dismissed with costs
[2015] HCATrans 337
	
5.		Clayton Utz (a Firm)
	Dale
(M185/2015)
	Supreme Court of Victoria
(Court of Appeal)
[2015] VSCA 186
	Application dismissed with costs
[2015] HCATrans 338
	
6.		Linkhill Pty Ltd 
	The Director of the Fair Work Building Industry Inspectorate
(M189/2015)
	Full Court of the
Federal Court of Australia
[2015] FCAFC 99
	Application dismissed with costs
[2015] HCATrans 340	

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11 December 2015: Sydney

No.	
Applicant	
Respondent	
Court appealed from	
Results	
1.		
Robertson
	
The Queen
(B11/2015)
	
Supreme Court of Queensland (Court of Appeal)
[2015] QCA 11
	
 Application dismissed 
[2015] HCATrans 326
	
2.		Knight
	The Queen
(B12/2015)
	Supreme Court of Queensland (Court of Appeal)
[2015] QCA 11
	Application dismissed [2015] HCATrans 326
	
3.		Williams
	The Queen
(B13/2015)
	Supreme Court of Queensland (Court of Appeal)
[2015] QCA 11
	Application dismissed 
[2015] HCATrans 326
	
4.		Construction, Forestry, Mining and Energy Union
	Endeavour Coal Pty Ltd (ABN 380 99 830 476)
(S129/2015)
	Full Court of the Federal Court of Australia
[2015] FCAFC 76
	Application dismissed with costs
[2015] HCATrans 331

5.		Pisano & Anor
	Williams
(S143/2015)
	Supreme Court of New South Wales (Court of Appeal)
[2015] NSWCA 177
	Application dismissed with costs
[2015] HCATrans 327
	
6.		Chand
	Commonwealth Bank of Australia
(S145/2015)
	Supreme Court of New South Wales (Court of Appeal)
[2015] NSWCA 181
	Application dismissed with costs
[2015] HCATrans 329
	
7.		Navazi	NSW Land & Housing Corporation
(S226/2015)	Supreme Court of New South Wales
(Court of Appeal)
[2015] NSWCA 308	Application dismissed with costs
[2015] HCATrans 332	

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Publication of Reasons: 17 December 2015

No.	
Applicant	
Respondent	
Court appealed from	
Results	
1.		Pilton Holdings Pty Ltd  & Anor
	Essential Beauty Franchising WA Pty Ltd  & Ors
(A16/2015)
	Full Court of the Supreme Court of South Australia
[2015] SASCFC 88
	Application dismissed
[2015] HCASL 233	
2.		Halls
	Registrar of Motor Vehicles 
(A21/2015)
	Full Court of the Supreme Court of South Australia
[2015] SASCFC 123
	Application dismissed
[2015] HCASL 234	
3.		Chidgey
	State of Queensland
(B55/2015)
	Supreme Court of Queensland 
(Court of Appeal)
[2015] QCA 149
	Application dismissed
[2015] HCASL 235	
4.		Kezic
	St John of God Health Care Inc
(P40/2015 & P41/2015)
	Supreme Court of Western Australia 
(Court of Appeal)
[2015] WASCA 182
[2015] WASCA 182 (S)
	Application dismissed
[2015] HCASL 236	
5.		Barevadiya & Anor
	Minister for Immigration and Border Protection & Anor
(M202/2015)
	Federal Court of Australia
[2015] FCA 972
	Application dismissed
[2015] HCASL 237	
6.		Sharma & Anor
	Minister for Immigration and Border Protection & Anor
(M207/2015)
	Federal Court of Australia
[2015] FCA 984
	Application dismissed
[2015] HCASL 238	
7.		MZZQY
	Minister for Immigration and Border Protection & Anor
(M211/2015)
	Federal Court of Australia
[2015] FCA 883
	Application dismissed
[2015] HCASL 239	
8.		Davint
	Malburon
(M222/2015)
	Family Court of Australia
No MNC
	Application dismissed
[2015] HCASL 240	
9.		MZZNK
	Minister for Immigration and Border Protection & Anor
(M239/2015)
	Federal Court of Australia
[2015] FCA 217
	Application dismissed
[2015] HCASL 241	
10.		Sullivan
	Tyler & Anor
(S183/2015)
	Family Court of Australia
No MNC
	Application dismissed
[2015] HCASL 242	
11.		Eriksson
	Commonwealth Bank of Australia
(S193/2015)
	Federal Court of Australia
[2014] FCA 561
	Application dismissed
[2015] HCASL 243	
12.		SZTYY
	Minister for Immigration and Border Protection & Anor
(S196/2015)
	Federal Court of Australia
[2015] FCA 985
	Application dismissed
[2015] HCASL 244 	
13.		SZSWC
	Minister for Immigration and Border Protection & Anor
(S197/2015)
	Federal Court of Australia
[2015] FCA 992
	Application dismissed
[2015] HCASL 245	
14.		SZUQD
	Minister for Immigration and Border Protection & Anor
(S211/2015)
	Federal Court of Australia
[2015] FCA 994
	Application dismissed
[2015] HCASL 246	
15.		Hooper
	Australian Electoral Commission
(S154/2015)
	Application for removal

	Application dismissed with costs
[2015] HCASL 247	
16.		Gjonej
	Minister for Immigration and Border Protection & Anor
(A7/2015)
	Federal Court of Australia
[2015] FCA 159
	Application dismissed with costs
[2015] HCASL 248	
17.		Bampton
	Viterra Limited
(A15/2015)
	Full Court of the Supreme Court of South Australia
[2015] SASCFC 87
	Application dismissed with costs
[2015] HCASL 249	
18.		Haddad
	Allianz Australia Insurance Limited
(S148/2015)
	Supreme Court of New South Wales 
(Court of Appeal)
[2015] NSWCA 186
	Application dismissed with costs 
[2015] HCASL 250	
19.		Aldred
	Stelcad Pty Limited 
ACN 075 818 736
(S152/2015)
	Supreme Court of New South Wales 
(Court of Appeal)
[2015] NSWCA 201
	Application dismissed with costs
[2015] HCASL 251