High Court Bulletin
Produced by the Legal Research Officer, 
High Court of Australia Library
[2016] HCAB 6 (4 August 2016)

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	
Paciocco & Anor v Australia and New Zealand Banking Group Limited	Banking	
Crown Melbourne Limited v Cosmopolitan Hotel (Vic) Pty Ltd & Anor	Contract	
Graham v The Queen	Criminal	
Minister for Immigration and Border Protection & Anor v SZSSJ & Anor; Minister for Immigration and Border Protection & Ors v SZTZI	Migration	

2: Cases Reserved
Case	Title	
Australian Competition & Consumer Commission v Flight Centre Travel Group Limited	Competition	
Simic & Ors v NSW Land and Housing Corporation & Ors	Contract	
The Queen v Baden-Clay	Criminal	
Lyons v State of Queensland	Discrimination 	
The Maritime Union of Australia & Anor v Minister for Immigration and Border Protection & Anor	Migration	
Prince Alfred College Incorporated v ADC	Torts	

3: Original Jurisdiction
Case	Title	
Plaintiff S61 v Minister for Immigration and Border Protection	Migration	

4: Special Leave Granted
Case	Title	
Southern Han Breakfast Point Pty Ltd v Lewence Construction Pty Ltd & Ors	Administrative Law	
RP v The Queen	Criminal	
The Queen v Kilic	Criminal	
Timbercorp Finance Pty Ltd (In Liquidation) v Collins & Anor	Procedure	
Timbercorp Finance Pty Ltd (In Liquidation) v Tomes	Procedure	
Elecnet (Aust) Pty Ltd (as Trustee for the Electrical Industry Severance Scheme) v Commissioner of Taxation of the Commonwealth of Australia	Taxation	

5: Cases Not Proceeding or Vacated
Case	Title	
Quandamooka Yoolooburrabee Aboriginal Corporation RNTBC v State of Queensland	Native Title	

1: Cases Handed Down

The following cases were handed down by the High Court of Australia during the July 2016 sittings.

Banking 

Paciocco & Anor v Australia and New Zealand Banking Group Limited
M219/2015; M220/2015: [2016] HCA 28

Judgment delivered: 27 July 2016. 

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

Catchwords:

Banker and customer – Rule against penalties – Consumer credit card accounts – Late payment fees – Where late payment fees were $35 and $20 – Where costs actually incurred by respondent upon failure by first appellant to make timeous payment of amounts owing were approximately $3 – Where late payment fees not genuine pre-estimates of damage – Where respondent alleged it could conceivably have incurred loss provision costs, collection costs and regulatory capital costs as a result of first appellant's default – Whether late payment fees penalties – Whether late payment fees extravagant, exorbitant or unconscionable – Whether late payment fees out of all proportion to interests damaged – Whether respondent's legitimate interests confined to reimbursement of expenses directly occasioned by first appellant's default.

Contract – Rule against penalties – Essential characteristics of a penalty – Whether sum disproportionate to actual loss suffered amounts to a penalty – Whether sum incorporating loss too remote to be recoverable in action for damages amounts to a penalty – Relevance of Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd [1915] AC 79.

Trade practices – Consumer protection – Late payment fees – Unconscionable conduct – Unjust transactions – Unfair terms – Whether late payment fees unconscionable, unjust or unfair.

Precedent – Apex courts of foreign jurisdictions – Status of unwritten law of United Kingdom in Australia.

Words and phrases – "exorbitant", "extravagant", "genuine pre-estimate", "in terrorem", "late payment fees", "liquidated damages", "out of all proportion", "penalty", "unconscionable", "unconscionable conduct", "unfair terms", "unjust transactions".

Australian Securities and Investments Commission Act 2001 (Cth) – ss 12BF, 12BG, 12CB, 12CC.

National Consumer Credit Protection Act 2009 (Cth) – Sched 1 s 76.

Fair Trading Act 1999 (Vic) – ss 8, 8A, 32W, 32X.

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

Held: Appeals dismissed with costs.

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Contract Law 

Crown Melbourne Limited v Cosmopolitan Hotel (Vic) Pty Ltd & Anor
M253/2015: [2016] HCA 26

Judgment delivered: 20 July 2016

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

Catchwords:

Contract – Collateral contract – Where tenants held five year leases under which they operated two restaurants – Where clause of leases required landlord to give notice that leases were to be renewed or continued or the premises were to be vacated – Where in course of negotiations for further leases landlord made statement to tenants that they would be "looked after at renewal time" – Where landlord required tenants to vacate premises on expiration of leases – Whether statement gave rise to collateral contract – Whether statement promissory in nature – Whether obligation uncertain.

Estoppel – Whether statement to tenants that they would be "looked after at renewal time" could give rise to estoppel – Whether statement capable of conveying to reasonable person that tenants would be offered further lease – Whether expectation acted upon by tenants.

Appeals – Procedure – Where question whether statement amounted to binding contractual promise – Whether question of fact or question of law.

Words and phrases – "certainty", "collateral contract", "oral contract", "promissory estoppel", "proprietary estoppel", "question of fact", "question of law", "reasonable correspondence", "remittal".

Victorian Civil and Administrative Tribunal Act 1998 (Vic) – s 148.

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

Held: Appeal allowed with costs.

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Criminal Law 

Graham v The Queen 
B14/2016: [2016] HCA 27

Judgment delivered: 20 July 2016.

Coram: French CJ, Kiefel, Bell, Nettle and Gordon JJ

Catchwords:

Criminal law – Appeal – Directions to jury – Where appellant convicted of attempted murder after firing shots during confrontation with man with knife – Where appellant relied on defence of self-defence under ss 271(1), 271(2) and 272(1) of Criminal Code (Q) – Where prosecutor suggested in closing address existence of "consensual confrontation" negated self-defence – Where trial judge did not direct jury that no evidence of consent – Where no redirection sought by defence counsel on this issue – Whether trial judge failed to properly direct jury as to self-defence – Whether trial judge erred in failing to direct jury as to defence of mistake under s 24 of Criminal Code. 

Words and phrases – "assault", "consensual confrontation", "consent to assault", "mistaken belief", "self-defence".

Criminal Code (Q) – ss 24, 245, 271, 272.

Appealed from QSC (CA): [2015] QCA 137.

Held: Appeal dismissed.

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Migration

Minister for Immigration and Border Protection & Anor v SZSSJ & Anor; Minister for Immigration and Border Protection & Ors v SZTZI
S75/2016; S76/2016: [2016] HCA 29

Judgment delivered: 27 July 2016

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

Catchwords:

Migration – Refugees – Protection visas – Procedural fairness – Where SZSSJ and SZTZI ("respondents") applied for protection visas – Where respondents' personal information published on Department of Immigration and Border Protection website and accessed from 104 unique IP addresses – Where IP addresses known to Department – Where Department conducted International Treaties Obligations Assessments ("ITOAs") to determine impact of publication on non-refoulement obligations – Where ITOAs conducted in accordance with publicly available "Procedures Advice Manual" – Where Department notified respondents of ITOAs and instructed officers conducting ITOAs to assume personal information may have been accessed by authorities in countries where respondents feared persecution or other relevant harm – Where Department neither disclosed IP addresses nor provided unabridged report relating to disclosure of personal information – Whether obligation to afford procedural fairness applied to ITOA processes – Whether ITOA processes procedurally fair.

Courts and judges – Jurisdiction – Federal Circuit Court of Australia – Whether respondents' claims to relief engaged jurisdiction of Court – Whether jurisdiction excluded by s 476(2)(d) of Migration Act 1958 (Cth).

Words and phrases – "conduct preparatory to the making of a decision", "International Treaties Obligations Assessment", "privative clause decision", "procedural decision to consider whether to grant a visa or to lift the bar", "substantive decision to grant a visa or to lift the bar".

Migration Act 1958 (Cth) – ss 48B, 195A, 417, 474, 476.

Appealed from FCA (FC): [2015] FCAFC 125.

Held: Appeals allowed.

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2: Cases Reserved

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

Competition

Australian Competition & Consumer Commission v Flight Centre Travel Group Limited
B15/2016: [2016] HCATrans 167 

Date heard: 27 July 2016

Coram: French CJ, Kiefel, Gageler, Nettle & Gordon JJ

Catchwords:

Competition – Whether appellant travel agent attempted to induce specific airlines to make a contract, arrangement or arrive at an understanding which had the purpose or effect of substantially lessening competition in a market – Consideration of relevant market – Characterisation of relevant services supplied by airlines and travel agents – Whether airlines and travel agents competed in a market for booking and distribution services, or whether the only relevant market was the market for international passenger air travel services – Whether travel agents competed with airlines in that market given they were the agent of the airlines when supplying such services – Application of ss 45 and 45A of the Trade Practices Act 1974 (Cth).

Appealed from FCA (FC): [2015] FCAFC 104.

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Constitutional Law 

Murphy & Anor v Electoral Commissioner & Anor 
M247/2015: [2016] HCATrans 108; [2016] HCATrans 111.

Date heard: 11 May 2016; 12 May 2016.

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

Catchwords:
	
Constitutional law – Legislative power – Franchise – Constitutional limitations upon power of Parliament to regulate exercise of entitlement to enrol to vote – Date for close of Electoral Rolls in Commonwealth Electoral Act 1918 (Cth) – Where Act suspends the enrolment or transfer of enrolment of electors in the period between the close of the Rolls and the close of the poll – Whether denial of enrolment effected by Act contravenes constitutional requirement that representatives be "directly chosen by the people" – Whether amendments operated as disqualification from entitlement to vote and, if so, whether disqualification for substantial reason – Relevance of Roach v Electoral Commissioner (2007) 233 CLR 162 – Relevance of Rowe v Electoral Commissioner (2010) 243 CLR 1.

Questions answered on 12 May 2016. Written reasons of the Court to be published at a future date.

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Cunningham & Ors v Commonwealth of Australia & Anor
S140/2015: [2016] HCATrans 140

Date heard: 16 June 2016

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

Catchwords:

Constitution – s 51(xxxi) – Remuneration and Other Legislation Amendment Act 2011 (Cth) – Members of Parliament (Life Gold Pass) and Other Legislation Amendment Act 2012 (Cth) – Acquisition of property on just terms – Where applicants are former members of the House of Representatives – Where applicants occupied positions as Ministers of State or where officeholders of the Parliament or of a House of Parliament – Where Parliament reduced the ‘retiring allowance’ of past members – Where Parliament restricted the number of return trips per year using the ‘Gold Pass’.

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Contract Law

Simic & Ors v NSW Land and Housing Corporation & Ors
S136/2016: [2016] HCATrans 160

Date heard: 20 July 2016

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

Catchwords: 

Contract – Letters of credit – Whether a misdescription of the beneficiary of a bank guarantee entitled the bank to refuse to pay out the credit – Whether regard could be had to the underlying contract to confirm the correct description of the beneficiary – Autonomy principle – Principle of strict compliance

Appealed from NSWSC (CA): [2015] NSWCA 413

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Criminal Law

Miller v The Queen; Smith v The Queen; Presley v The Director of Public Prosecutions for the State of South Australia
A28/2015; A22/2015; A17/2015: [2016] HCATrans 106; [2016] HCATrans 107. 

Date heard: 10 May 2016; 11 May 2016

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

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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Zefi v The Director of Public Prosecutions; Jakaj v The Director of Public Prosecutions; Stakaj v The Director of Public Prosecutions; NH v The Director of Public Prosecutions
A16/2016; A15/2016; A19/2016; A14/2016: [2016] HCATrans 136

Date heard: 9 June 2016

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

Catchwords:

Criminal law – procedure – jury – verdict – alternative verdict – exercise of jurisdiction – whether the Supreme Court of a State has an inherent jurisdiction to set aside perfected orders that there be a conviction or acquittal – whether open to the court to admit evidence of the 12 (former) jurors in relation to whether the jury had determined to return a verdict of not guilty of the charge of murder.

Appealed from SASC (CCA): [2015] SASCFC 139.

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Sio v The Queen
S83/2016: [2016] HCATrans 138

Date Heard: 15 June 2016

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

Catchwords:

Criminal law – conviction appeal – armed robbery – joint criminal enterprise – unreasonable verdict – where appellant was acquitted of  constructive murder based on the appellant’s participation in a joint criminal enterprise to commit armed robbery – where appellant was convicted of armed robbery with wounding – whether appellant’s conviction on alternative count is inconsistent with acquittal on principle count. 

Criminal law – evidence – hearsay rule – accomplice – made admission against interest in police interview – accomplice not available - whether the trial judge was required to take into account the “demonstrable unreliability” of individual representations to determine whether interview was “made in circumstance that made it likely the representation was reliable”.

Appealed from NSWSC (CCA): [2015] NSWCCA 42.

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The Queen v Baden-Clay 
B33/2016: [2016] HCATrans 166

Date heard: 26 July 2016

Coram: French CJ, Kiefel, Bell, Keane & Gordon JJ

Catchwords:

Criminal law – Where the respondent was convicted at trial of murdering his wife – Where the Court of Appeal set aside verdict of murder and substituted a verdict of manslaughter – Whether Court of Appeal decision is inconsistent with R v Ciantar (2006) 16 VR 26 – Whether the evidence raised an inference that the respondent killed his wife with intent to do her grievous bodily harm or to kill her – Whether evidence was capable of establishing motive relevant to the intention to kill

Appealed from QSC (CA): [2015] QCA 265

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Discrimination

Lyons v State of Queensland
B16/2016: [2016] HCATrans 165

Date heard: 25 July 2016.

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

Catchwords: 

Discrimination – direct discrimination – where the appellant, who was deaf, was excluded from jury service by a Deputy Registrar – where the appellant made a complaint of direct discrimination – construction of s 11 of the Anti-Discrimination Act 1991 (Qld) – where the appellant argues that her impairment was inextricably linked to her requirement of an Auslan interpreter – construction of Jury Act 1995 (Qld).

Appealed from QSC (CA): [2015] QCA 159.

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Migration

The Maritime Union of Australia & Anor v Minister for Immigration and Border Protection & Anor
S136/2015: [2016] HCATrans 158

Date heard: 19 July 2016

Coram: French CJ, Bell, Gageler, Keane & Nettle JJ

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 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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Torts

Prince Alfred College Incorporated v ADC 
A20/2016: [2016] HCATrans 163

Date heard: 21 July 2016

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

Catchwords: 

Torts – Negligence – Negligence of school authorities or teachers – Liability of employer – Limitation of actions – Extension of time in personal injuries matters – Knowledge of material facts of decisive character – Principles upon which discretion to grant extension of time – Whether Full Court erred in granting extension of time.

Appeal from SASC (FC): [2015] SASCFC 161

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Workers Compensation

Deal v Kodakkathanath 
M252/2015: [2016] HCATrans 135 

Date heard: 8 June 2016 

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

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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3: Original Jurisdiction

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

Migration

Plaintiff S61 v Minister for Immigration and Border Protection
S61/2016: Special case.

Catchwords:

Migration – Family Stream – Direction by Minister – Where Minister gave written Direction 62 – order for considering and disposing of Family Stream visa applications, under s 499 of the Migration Act 1958 (Cth) – Where direction provides an order of priority for the processing of Family Stream visa applications – Whether the Direction is a legislative instrument per Legislation Act 2003 (Cth) – Whether Direction obliged delegates of the Minister to follow the order of priority set out in s 8 of the Direction in every case – Whether Direction is inconsistent with the Minister’s obligation under the Migration Act to consider and determine each Family Stream visa application within a reasonable time - Whether Direction is inconsistent with s 51(1) of the Migration Act.

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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 

Southern Han Breakfast Point Pty Ltd v Lewence Construction Pty Ltd & Ors 
S222/2015: [2016] HCATrans 173

Date heard: 28 July 2016 – Special leave granted on limited grounds.

Catchwords:

Administrative law – Jurisdictional error – Reference date – Whether the existence of a reference date in s 8 of the Building and Construction Industry Security of Payment Act 1999 (NSW) to support a payment claim is a jurisdictional fact.

Appealed from NSWSC (CA): [2015] NSWCA 288

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Criminal Law

Bucca v The Queen
A26/2016: 2016 HCATrans 121.

Date heard: 25 May 2016 – Special leave granted.

Catchwords:

Criminal law – Evidence – Confessions and admissions – Application of proviso – Where statement was incorrectly admitted – Misdirection and non-direction

Criminal law – Evidence – Propensity evidence – Possession of firearms – Whether court of appeal erred in holding that evidence regarding the possession of firearms was correctly admitted.

Appealed from SASC (CCA): [2015] SASCFC 180

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Castle v The Queen
A24/2016: 2016 HCATrans 121.

Date heard: 25 May 2016 – Special leave granted.

Catchwords:

Criminal law – Evidence – Confession and admissions – Application of proviso – Whether possibility jury relied on inadmissible statement made by the co-accused to reject oral evidence could be excluded.

Criminal law – Extended joint enterprise – Application of McAuliffe v The Queen (1995) 183 CLR 108.

Appealed from SASC (CCA): [2015] SASCFC 180

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RP v The Queen
S193/2016: [2016] HCATrans 162

Date heard: 21 July 2016 – Special leave granted.

Catchwords 

Criminal law – Sexual intercourse with a child under 10 years – Where accused was aged between 11 and 13 years – Doli incapax – Whether presumption rebutted – Test for establishing whether doli incapax presumption rebutted. 

Appealed from NSWSC (CCA): [2015] NSWCCA 215

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The Queen v Kilic 
M2/2016: [2016] HCATrans 169

Date heard: 28 July 2016 – Special leave granted.

Catchwords:

Criminal law – Sentencing – Where respondent doused victim with petrol and set her alight – Where respondent pleaded guilty to intentionally causing serious injury – Where offence carries a maximum of 20 years imprisonment – Where respondent was sentenced to 14 years for primary offence – Where Court of Appeal found that the sentence was manifestly excessive – Where Court of Appeal reduced sentence – Principles regarding the review of sentencing. 

Appealed from VSC(CA): [2015] VSCA 331

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Land 

New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act 
S168/2016: [2016] HCATrans 144.

Date heard: 17 June 2016 – Special leave granted on limited grounds.

Catchwords: 

Land – Aboriginal land rights – Aboriginal Land Rights Act 1983 (NSW) – Claim to Crown Land – Where land had been dedicated to gaol – Where gaol decommissioned but dedications not revoked – Whether land was lawfully occupied within the meaning of s 36(1)(b) of Act.

Appealed from NSWSC (CA): [2015] NSWCA 349

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Negligence

Kendirjian v Lepore & Anor
S170/2015: [2016] HCATrans 141; [2016] HCASL 140.

Date heard: 17 June 2016 – Special leave granted.

Catchwords: 

Negligence – Professional negligence – Lawyers – Advocates immunity – Duties and liabilities – Settlement of proceedings – Whether alleged failure to advice in relation to settlement offer was a decision affecting the conduct of the case in Court – application of test in D’Orta-Ekenaike v Victorian Legal Aid (2005) 223 CLR 1.

Appealed from NSWSC (CA): [2015] NSWCA 132

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Procedure

Ainsworth & Ors v Albrecht & Anor 
B37/2016: [2016] HCATrans 122.

Date heard: 25 May 2016 – Special leave granted.

Catchwords:

Procedure – Body Corporate and Community Management Act 1997 (QLD) – Where applicants opposed the first respondent’s application to extend balcony – Whether Court of Appeal erred in holding that adjudicator was required to reach conclusion on whether the motion should have passed – Whether QCAT was correct in upholding that adjudicator should have determined whether the ‘motion was objectively unreasonable’.

Appealed from QSC (CA): [2015] QCA 220

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Timbercorp Finance Pty Ltd (In Liquidation) v Collins & Anor
M98/2016: [2016] HCATrans 159

Date heard: 20 July 2016 – Special leave granted.

Catchwords:

Procedure – Group proceedings  - Part 4A of the Supreme Court Act 1986 (Vic) – Managed investment schemes – Collapse of schemes – Group proceeding on behalf of investors in schemes – Defendants include lender to investors – Dismissal of group proceeding – opt out provisions – Subsequent recovery proceedings by lender against group members – Group members had not opted out of group proceeding – Group members raised individual claims and defences in recovery proceedings – Whether failure to opt out of group proceeding precluded group members from raising individual claims and defences in recovery proceedings.

Procedure – Group proceedings – Anshun estoppel – Test – Whether unreasonable of group members not to have raised individual claims and defences during group proceeding – Whether group members estopped from raising individual claims and defenced in subsequent proceedings by a reason of failure to raise individual claims and defences in the group proceedings – Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589.

Procedure – Group proceedings – Abuse of process – Failure of plaintiff of group members to raise individual claims in group proceedings – Whether raising individual claims and defences by group members in subsequent proceedings is oppressive or brings administration of justice into disrepute. 

Appealed from VSC (CA): [2016] VSCA 128

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Timbercorp Finance Pty Ltd (In Liquidation) v Tomes
M101/2016: [2016] HCATrans 168

Date heard: 28 July 2016 – Special leave granted.

Catchwords:

Procedure – Group proceedings  - Part 4A of the Supreme Court Act 1986 (Vic) – Managed investment schemes – Collapse of schemes – Group proceeding on behalf of investors in schemes – Defendants include lender to investors – Dismissal of group proceeding – opt out provisions – Subsequent recovery proceedings by lender against group members – Group members had not opted out of group proceeding – Group members raised individual claims and defences in recovery proceedings – Whether failure to opt out of group proceeding precluded group members from raising individual claims and defences in recovery proceedings.

Procedure – Group proceedings – Anshun estoppel – Test – Whether unreasonable of group members not to have raised individual claims and defences during group proceeding – Whether group members estopped from raising individual claims and defenced in subsequent proceedings by a reason of failure to raise individual claims and defences in the group proceedings – Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589.

Procedure – Group proceedings – Abuse of process – Failure of plaintiff of group members to raise individual claims in group proceedings – Whether raising individual claims and defences by group members in subsequent proceedings is oppressive or brings administration of justice into disrepute. 

Appealed from VSC (CA): [2016] VSCA 128

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Taxation

Hua Wang Bank Berhad v Commissioner of Taxation 
S135/2016: [2016] HCATrans 101

Date heard: 5 May 2016 – Special leave granted.

Catchwords:

Income Tax – Whether company is resident of Australia – Place of central management and control – Real business – Relevant principles in determining place of central management and control –Profits from sale of shares – Trading stock – Construction of s 70-40(2) of the Income Tax Assessment Act 1997 (Cth).

Appealed from FCA (FC): [2015] FCAFC 176

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Bywater Investments Limited & Ors v Commissioner of Taxation 
S134/2016: [2016] HCATrans 100

Date heard: 5 May 2016 – Special leave granted.

Catchwords:

Income Tax – Whether company is resident of Australia – Place of central management and control – Real business – Relevant principles in determining place of central management and control –Construction of s 70-40(2) of the Income Tax Assessment Act 1997 (Cth).

Appealed from FCA (FC): [2015] FCAFC 176

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Blank v Commissioner of Taxation 
S144/2016: [2016] HCATrans 115

Date heard: 16 May 2016 – Special leave granted.

Catchwords: 

Income tax – Where appellant participated in profit participation schemes as an employee of company group in foreign countries and in Australia – Where employee allocated ‘profit participation units’ and equal number of shares in holding company – Whether amount assessable as ordinary income or as a capital gain.

Appeal from FCA (FC): [2015] FCAFC 154

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Commissioner of State Revenue v ACN 005 057 349 Pty Ltd 
M88/2016; M89/2016: [2016] HCATrans 146.

Date heard: 17 June 2016 – Special leave granted.

Catchwords:

Taxation – Land tax – Where Commissioner of State Revenue raised a land tax liability under the Land Tax Act 1958 (Vic) – Duplication error – Discretionary power of the Commissioner to amend assessments – Where the Commissioner refuses to amend assessments – Whether the issue of a tax assessment creates a tax debt.

Appealed from the VSC (CA): [2015] VSCA 332

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Elecnet (Aust) Pty Ltd (as Trustee for the Electrical Industry Severance Scheme) v Commissioner of Taxation of the Commonwealth of Australia 
M13/2016: [2016] HCATrans 170

Date heard: 28 July 2016 – Special leave granted.

Catchwords:

Taxation – Statutory construction – “Unit trust” – Meaning of a “unit trust” within Division 6C of Income Tax Assessment Act 1936 (Cth) – Whether definition of “unit for the purposes of a “prescribed trust estate” can inform the meaning of a “unit trust” – Whether Electrical Industry Severance Scheme is a unit trust. 

Appealed from FCA (FC): [2015] FCAFC 178

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Workers Compensation

Comcare v Martin 
S142/2016: [2016] HCATrans 116  

Date heard: 16 May 2016 – Special leave granted.

Catchwords: 

Workers compensation – The operation and exclusion in s 5A of the Safety, Rehabilitation and Compensation Act 1988 (Cth) – Causation of injury, disease or aggravation under the Act – Whether injury, disease or aggravation suffered ‘as a result of’ administrative action – Whether administrative action taken ‘in a reasonable manner.’

Appealed from FCA (FC): [2015] FCAFC 169

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5: Cases Not Proceeding or Vacated

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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6: Special Leave Refused

Publication of Reasons: 20 July 2016

No.	
Applicant	
Respondent	
Court appealed from	
Result	
1.		Hines
	Commissioner of Police
(B17/2016)
	Supreme Court of Queensland (Court of Appeal)
[2016] QCA 3
	Application dismissed
[2016] HCASL 144	
2.		Wales
	Wales & Ors
(M28/2016)
	Supreme Court of Victoria (Court of Appeal)
[2015] VSCA 365
[2015] VSCA 345
	Application dismissed
[2016] HCASL 145	
3.		Ogbonna
	CTI Logistics Ltd & Ors
(P10/2016)
	Federal Court of Australia
[2016] FCA 239
	Application dismissed
[2016] HCASL 146	
4.		Tanamerah Estates 
Pty Limited
	Tibra Capital Pty Limited
(S84/2016)
	Supreme Court of New South Wales (Court of Appeal)
[2016] NSWCA 23
	Application dismissed
[2016] HCASL 147	
5.		Tanamerah Estates 
Pty Limited & Anor
	Tibra Capital Pty Limited
(S104/2016)
	Supreme Court of New South Wales (Court of Appeal)
[2016] NSWCA 42
	Application dismissed
[2016] HCASL 148	
6.		SZUZN
	Minister for Immigration and Border Protection & Anor
(S88/2016)
	Federal Court of Australia
[2016] FCA 174
	Application dismissed
[2016] HCASL 149	
7.		Singh & Ors
	Minister for Immigration and Border Protection & Anor
(S103/2016)
	Federal Court of Australia
[2016] FCA 272
	Application dismissed
[2016] HCASL 150	
8.		AHV15	Minister for Immigration and Border Protection & Anor
(S105/2016)
	Federal Court of Australia
[2016] FCA 237
	Application dismissed
[2016] HCASL 151	
9.		Eather	Acting Director of Public Prosecutions
(H2/2016)
	Supreme Court of Tasmania (Court of Criminal Appeal)
[2016] TASCCA 2	Application dismissed
[2016] HCASL 152	

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Publication of Reasons: 21 July 2016

No.	
Applicant	
Respondent	
Court appealed from	
Result 
	
1.		Neale & Anor
	Commonwealth Bank of Australia & Ors
(S215/2015)
	Supreme Court of New South Wales (Court of Appeal)
[2015] NSWCA 272
	Application dismissed with costs
[2016] HCASL 153	
2.		Seymour & Anor
	Commissioner of Taxation
(S70/2016)
	Full Court of the Federal Court of Australia 
[2016] FCAFC 18
	Application dismissed with costs
[2016] HCASL 154	
3.		Khanna & Ors
	Minister for Immigration and Border Protection & Anor
(S81/2016)
	Federal Court of Australia
[2016] FCA 142
	Application dismissed with costs
[2016] HCASL 155	
4.		Motor Vehicles Insurance Ltd
	Breen & Ors
(S96/2016)
	Supreme Court of New South Wales (Court of Appeal)
[2016] NSWCA 28
	Application dismissed with costs
[2016] HCASL 156	
5.		Angel
	The Queen
(A8/2016)
	Supreme Court of South Australia (Court of Criminal Appeal)
[2016] SASCFC 2
	Application dismissed
[2016] HCASL 157	
6.		Al Shakarji
	The Queen
(B20/2016)
	Supreme Court of Queensland (Court of Appeal)
[2016] QCA 29
	Application dismissed
[2016] HCASL 158	
7.		Pancious
	Searle
(M39; M41/2016)
	Family Court of Australia
	Application dismissed
[2016] HCASL 159	
8.		Pancious
	Searle & Anor 
(M40/2016)
	Family Court of Australia
	Application dismissed
[2016] HCASL 159	
9.		Love
	KWS Capital Pty Ltd 
(P65/2015)
	Supreme Court of Western Australia (Court of Appeal)
[2015] WASCA 237
	Application dismissed
[2016] HCASL 160	
10.		SZRAG
	Minister for Immigration and Border Protection & Anor
(S102/2016)
	Federal Court of Australia
[2016] FCA 189
	Application dismissed
[2016] HCASL 161	
11.		Fan
	South Eastern Sydney Local Health District
(S113/2016)
	Supreme Court of New South Wales (Court of Appeal)
[2016] NSWCA 64
	Application dismissed
[2016] HCASL 162	
12.		Ioannidis
	The Queen
(A30/2015)
	Supreme Court of South Australia (Court of Criminal Appeal)
[2015] SASCFC 158
	Application dismissed
[2016] HCASL 163	
13.		Lowe
	The Queen
(M6/2016)
	Supreme Court of Victoria (Court of Appeal)
[2015 VSCA 327
	Application dismissed
[2016] HCASL 164	
14.		SZTBJ
	Minister for Immigration and Border Protection & Anor
(S257/2015)
	Federal Court of Australia
[2015] FCA 1182
	Application dismissed with costs
[2016] HCASL 165	
15.		BC
	The Queen
(S17; S18; S19/2016)
	Supreme Court of New South Wales (Court of Criminal Appeal)
[2015] NSWCCA 327
	Application dismissed
[2016] HCASL 166	
16.		Gazis
	South Sydney Junior Rugby League Club Ltd & Ors
(S55/2016)
	Supreme Court of New South Wales (Court of Appeal)
[2016] NSWCA 8
	Application dismissed with costs
[2016] HCASL 167	

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Publication of Reasons: 27 July 2016

No.	
Applicant
	
Respondent	
Court appealed from	
Result	
1.		Mentink
	Secretary, Department of Social Services
(B18/2016)
	Full Court of the Federal Court of Australia
[2016] FCAFC 39
	Application dismissed
[2016] HCASL 168	
2.		MZZUQ
	Minister for Immigration and Border Protection & Anor
(M49/2016)
	Federal Court of Australia
[2015] FCA 157
	Application dismissed
[2016] HCASL 169	
3.		Rankilor
	City of South Perth
(P6/2016 & P12/2016)
	Supreme Court of Western Australia (Court of Appeal)
[2016] WASCA 28
[2016] WASCA 29

	Applications dismissed
[2016] HCASL 170	
4.		Luo
	Liew
(S71/2016)
	Family Court of Australia
	Application dismissed
[2016] HCASL 171	
5.		SZUYK
	Minister for Immigration and Border Protection & Anor
(S92/2016)
	Federal Court of Australia
[2016] FCA 216
	Application dismissed
[2016] HCASL 172	

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28 July 2016: Brisbane 

No.	
Applicant	
Respondent	
Court appealed from	
Result
	
1.		Baiada Poultry Pty Ltd
	Glenister & Anor
(M16/2016)
	Supreme Court of Victoria (Court of Appeal)
[2015] VSCA 344
	Application dismissed with costs
[2016] HCATrans 171	
2.	\	State of Western Australia
	Banjima People & Ors
(P2/2016)
	Full Court of the Federal Court of Australia
[2015] FCAFC 171
	Application dismissed with costs
[2016] HCATrans 172	
3.		Perilya Broken Hill Limited
	Valuer-General of New South Wales
(S13/2016)
	Supreme Court of New South Wales (Court of Appeal)
[2015] NSWCA 400
	Application dismissed with costs
[2016] HCATrans 174	
4.		Saleh
	The Queen
(S45/2016)
	Supreme Court of New South Wales (Court of Criminal Appeal)
[2015] NSWCCA 299
	Application dismissed
[2016] HCATrans 175	

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