High Court Bulletin
Produced by the Legal Research Officer, 
High Court of Australia Library
[2016] HCAB 10 (22 December 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	
New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act	Aboriginal and Torres Strait Islander Peoples	
Simic & Ors v NSW Land and Housing Corporation & Ors	Contract Law 	
The Queen v Kilic	Criminal Law 	
RP v The Queen	Criminal Law 	
Southern Han Breakfast Point Pty Ltd (In Liquidation) v Lewence Construction Pty Ltd & Ors	Statutory Construction	
Australian Competition & Consumer Commission v Flight Centre Travel Group Limited	Trade Practices	
Elecnet (Aust) Pty Ltd (as Trustee for the Electrical Industry Severance Scheme) v Commissioner of Taxation of the Commonwealth of Australia	Taxation	

2: Cases Reserved
Case	Title	
Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd	Contract Law	
Prior v Mole	Criminal Law 	
Bondelmonte v Bondelmonte & Anor	Family Law 	
Minister for Immigration and Border Protection v Kumar & Ors	Migration	

3: Original Jurisdiction
Case	Title	
Brown & Anor v The State of Tasmania	Constitutional Law 	
Plaintiff S195/2016 v Minister for Immigration and Border Protection & Ors	Migration 	

Court of Disputed Returns
Case		
Re Culleton	Judgment reserved	

4: Special Leave Granted
Case	Title	
Director of Public Prosecutions v Dalgliesh	Criminal Law 	
GAX v The Queen	Criminal Law 	
Esso Australia Pty Ltd v Australian Workers’ Union	Industrial Law 	
Australian Workers’ Union v Esso Australia Pty Ltd	Industrial Law	

5: Cases Not Proceeding or Vacated

Case	Title	
Tangilanu v Minister for Immigration and Border Protection	Migration	

1: Cases Handed Down

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

Aboriginal and Torres Strait Islander Peoples

New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act 
S168/2016: [2016] HCA 50

Judgment delivered: 14 December 2016

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

Catchwords: 

Aboriginal and Torres Strait Islander peoples – Land rights – Claimable Crown lands – Crown land dedicated for public purposes – Where State recorded as registered proprietor – Where Crown land dedicated for gaol purposes – Where Crown land proclaimed as correctional complex and correctional centre – Where gaol closed but dedications continued in force – Where proclamations revoked – Where Crown land held pending decision as to future use – Where activities on Crown land not inconsistent with dedications – Whether land "lawfully used or occupied" under s 36(1)(b) of Aboriginal Land Rights Act 1983 (NSW).

Constitutional law (NSW) – Executive power – Power over Crown lands – Whether executive power abrogated by s 2 of New South Wales Constitution Act 1855 (Imp) – Whether statutory authorisation required for lawful occupation of Crown lands.

Words and phrases – "actual occupation", "beneficial and remedial legislation", "beneficial construction", "claimable Crown lands", "Crown lands", "dedication", "lawfully used or occupied", "lawful occupation", "the Crown".

Aboriginal Land Rights Act 1983 (NSW) – s 36.

New South Wales Constitution Act 1855 (Imp) (18 & 19 Vict c 54) – s 2.

Real Property Act 1900 (NSW) – ss 13D, 13J.

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

Held: Appeal dismissed with costs.

Return to Top 

Contract Law 

Simic & Ors v NSW Land and Housing Corporation & Ors
S136/2016: [2016] HCA 47

Judgment delivered: 7 December 2016

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

Catchwords: 

Contract – Construction of terms – Performance bonds – Where unconditional undertakings by financial institution to pay on demand ("Undertakings") required as security under construction contract – Where Undertakings and underlying finance applications erroneously referred to non-existent entity as payee because incorrect information provided by applicant for security – Principle of autonomy – Principle of strict compliance – Whether possible to construe references to non-existent entity in Undertakings and applications as references to counterparty to construction contract.

Contract – Rectification – Actual or true common intention of parties – Where references to non-existent entity in Undertakings and applications result of common mistake – Whether rectification available to correct references to non-existent entity.

Words and phrases – "actual or true common intention", "bank guarantee", "common mistake", "letter of credit", "performance bond", "principle of autonomy", "principle of strict compliance", "rectification", "subjective intention of the parties".

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

Held: Appeal allowed; cross appeals allowed.

Return to Top 

Criminal Law 

The Queen v Kilic 
M105/2016: [2016] HCA 48

Judgment delivered: 7 December 2016

Coram: Bell, Gageler, Keane, Nettle and Gordon JJ

Catchwords:

Criminal law – Sentencing – Intentionally causing serious injury – Where respondent and victim in domestic relationship – Where victim 12 weeks pregnant with respondent's child – Where respondent caused serious injury to victim by dousing her with petrol and setting her alight – Where instant offence at upper end of range of seriousness for offence of intentionally causing serious injury – Whether Court of Appeal erred in use of expression "worst category" of offence – Whether Court of Appeal erred in consideration of current sentencing practices – Whether sentence imposed by sentencing judge manifestly excessive.

Words and phrases – "comparable case", "current sentencing practices", "maximum prescribed penalty", "spectrum of seriousness", "upper end of the range of seriousness", "worst category", "yardstick".

Crimes Act 1958 (Vic) – s 16.

Sentencing Act 1991 (Vic) – ss 1(a), 5(2)(b).

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

Held: Appeal allowed.

Return to Top

RP v The Queen
S193/2016: [2016] HCA 53

Judgment delivered: 21 December 2016

Coram: Kiefel, Bell, Gageler, Keane and Gordon JJ

Catchwords 

Criminal law – Criminal liability and capacity – Doli incapax – Where appellant convicted of two counts of sexual intercourse with child under 10 years – Where appellant approximately 11 years and six months at time of offending – Where appellant found to be of very low intelligence – Whether presumption of doli incapax rebutted.

Words and phrases – "doli incapax", "knowledge of the moral wrongness of the act", "merely naughty or mischievous", "morally wrong", "seriously wrong".

Children (Criminal Proceedings) Act 1987 (NSW) – s 5.

Crimes Act 1900 (NSW) – s 66A(1).
	
Appealed from NSWSC (CCA): [2015] NSWCCA 215

Held: Appeal allowed.

Return to Top

Statutory Construction 

Southern Han Breakfast Point Pty Ltd (In Liquidation) v Lewence Construction Pty Ltd & Ors 
S199/2016: [2016] HCA 52

Judgment delivered: 21 December 2016

Coram: Kiefel, Bell, Gageler, Keane and Gordon JJ

Catchwords:

Statutory Construction – Building and Construction Industry Security of Payment Act 1999 (NSW), s 13(1) – Whether existence of reference date under construction contract precondition to making of valid payment claim.

Contract – Construction of terms – Where construction contract made provision for contractor to "claim payment progressively" by making a "progress claim" – Whether it was the parties' intention that the contractor's right to make a progress claim under construction contract was to survive termination.

Words and phrases – "payment claim", "progress claim", "progress payment", "reference date".

Building and Construction Industry Security of Payment Act 1999 (NSW) – ss 8, 13.

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

Held: Appeal allowed with costs.

Return to Top 

Trade Practices 

Australian Competition & Consumer Commission v Flight Centre Travel Group Limited
B15/2016: [2016] HCA 49 

Judgment delivered: 14 December 2016

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

Catchwords:

Trade practices – Restrictive trade practices – Substantially lessening competition – Price fixing – Where travel agent sold international airline tickets on behalf of airlines – Where travel agent attempted to induce airlines to agree not to discount price at which international airline tickets offered directly to customers – Whether travel agent acting as agent for airlines – Whether travel agent and airlines "in competition" notwithstanding travel agent supplied as agent for airlines – Trade Practices Act 1974 (Cth), ss 45(2)(a)(ii), 45(3), 45A.

Trade practices – Restrictive trade practices – Market definition – Relevance of "functional approach" to market definition.

Words and phrases – "agency agreement", "agent", "competition", "functional approach to market definition", "international air carriage", "market", "price fixing", "substantially lessening competition".

Trade Practices Act 1974 (Cth) – ss 4E, 45, 45A.
	
Appealed from FCA (FC): [2015] FCAFC 104

Held: Appeal allowed.

Return to Top 

Taxation

Elecnet (Aust) Pty Ltd (as Trustee for the Electrical Industry Severance Scheme) v Commissioner of Taxation of the Commonwealth of Australia 
M104/2016: [2016] HCA 51

Judgment delivered: 21 December 2016

Coram: Kiefel, Gageler, Keane, Nettle and Gordon JJ

Catchwords:

Taxation – Unit trusts – Public trading trust – Where trust settled by deed – Where employers become members of industry severance scheme created by trust – Where members of scheme obliged to make payments to trustee – Where trustee credits payments to accounts in name of individual employees – Where trustee makes payment to employee upon termination of employment – Whether unit trust within meaning of Div 6C of Pt III of the Income Tax Assessment Act 1936 (Cth).

Words and phrases – "beneficial interest", "ordinary acceptation", "prescribed trust estate", "public trading trust", "unit", "unit trust".

Income Tax Assessment Act 1936 (Cth) – ss 102M, 102P, 102R, 102S, 102T.

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

Held: Appeal dismissed with costs.

Return to Top

2: Cases Reserved

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

Constitutional Law

Palmer v Marcus William Ayres, Stephen James Parbery and Michael Andrew Owen in their capacities as liquidators of Queensland Nickel Pty Ltd (in liq) & Ors
B52/2016: [2016] HCATrans 265

Date heard: 10 November 2016

Coram: Kiefel, Gageler, Keane, Nettle and Gordon JJ
  
Catchwords:

Constitutional law – Validity of the Corporations Act 2001 (Cth) – Where plaintiff had been a director of a company on a number of occasions – Where company was subsequently placed into administration – Where Federal Court issued summons, pursuant to s 596A of the Corporations Act 2001 (Cth), to plaintiff requiring plaintiff’s attendance to be examined and to produce documents – Whether s 596A is an exercise of judicial power.

Orders made on 10 November 2016 dismissing writ of summons. Written reasons of the Court to be published at a future date.

Return to Top

Ferguson v Marcus William Ayres, Stephen James Parbery and Michael Andrew Owen in their capacities as liquidators of Queensland Nickel Pty Ltd (in liq)
B55/2016: [2016] HCATrans 265

Date heard: 10 November 2016

Coram: Kiefel, Gageler, Keane, Nettle and Gordon JJ
  
Catchwords:

Constitutional law – Validity of the Corporations Act 2001 (Cth) – Where plaintiff had been a director of a company – Where company was subsequently placed into administration – Where Federal Court issued summons, pursuant to s 596A of the Corporations Act 2001 (Cth), to plaintiff requiring plaintiff’s attendance to be examined and to produce documents – Whether s 596A is an exercise of judicial power.

Orders made on 10 November 2016 dismissing writ of summons. Written reasons of the Court to be published at a future date.

Return to Top

Contract Law
Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd 
M143/2016: [2016] HCATrans 300

Date heard: 14 December 2016

Coram: Kiefel, Bell, Gageler, Nettle and Gordon JJ

Catchwords:

Contract law – Construction of contract – Long term farm lease – Where planning scheme restrictions prevented freehold sale – Where parties entered into 99 year lease for total rental of $70,000 paid in full at commencement of lease – Where clause 13 referred to intention of lessor to sell and lessee to purchase freehold for consideration of $70,000 – Where clause 4 provided that lessee to pay “all rates taxes assessments and outgoings whatsoever excepting land tax … payable by the Landholder or tenant” – Whether the Court should consider parties mutual subjective intention when constructing a contract. 

Appealed from VSC (CA): [2016] VSCA 23

 Return to Top 

Criminal Law

Perara-Cathcart v The Queen
A39/2016: [2016] HCATrans 269

Date heard: 11 November 2016

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

Catchwords:

Criminal law – Directions to jury – Proviso – Application of proviso – Where evidence was led at trial about the appellant’s drug possession – Where Court of Criminal Appeal held that evidence of the appellant’s drug possession was relevant and correctly admitted – Where a majority of the Court of Criminal Appeal held that the trial Judge failed to provide satisfactory directions regarding the permissible use of the evidence of the appellant’s drug possession – Whether the Court of Criminal Appeal correctly applied the proviso.

Appealed from SASC (CCA): [2015] SASCFC 103

Return to Top

Prior v Mole 
D5/2016: [2016] HCATrans 294

Date heard: 6 December 2016

Coram: Kiefel, Bell, Gageler, Nettle and Gordon JJ

Catchwords:

Criminal law – Where appellant was taken into “protective custody” under the Police Administration Act (NT) s 128 – Where appellant spat on police officer – Where appellant was convicted of assault – Construction of s 128(1) of the Police Administration Act (NT) – Exercise of power under s 128(1) – Whether the Police Officer had reasonable grounds to establish that the appellant was likely to commit another offence – Whether the appellant’s apprehension was lawful. 

Appealed from NTSC (CA): [2016] NTCA 2

Return to Top 

Family Law 

Bondelmonte v Bondelmonte & Anor
S247/2016: [2016] HCATrans 299

Date heard: 13 December 2016

Coram: Kiefel, Bell, Keane, Nettle and Gordon JJ

Catchwords:

Family law – Children – Parenting orders – Family Law Act 1975 (Cth) – Where children retained in United States after travelling there for a holiday – Where retention in breach of order for equal shared parental responsibility – Where the father appeals against interim orders which require him to return the children to Sydney pending determination of whether the children are permitted to relocate to the United States – Where children, aged almost 15 and almost 17, express desire to stay in the United States – Whether the trial judge failed to consider and evaluate the relevant statutory considerations – Whether the trial judge gave adequate weight to the views expressed by the children – Consideration of living arrangements on the children’s return – Whether the orders made by the primary judge were in the best interests of the children – Whether trial judge was required to make further findings before issuing parenting order.

Appealed from FamFC (FC): [2016] FamCAFC 48

Orders made on 13 December 2016 dismissing the appeal. Written reasons of the Court to be published at a future date.

Return to Top

Migration 

Minister for Immigration and Border Protection v Kumar & Ors 
P49/2016: [2016] HCATrans 297

Date heard: 9 December 2016

Coram: Bell, Gageler, Keane, Nettle and Gordon JJ

Catchwords:

Migration – Requirement that visa applicant holds a certain visa at the time of application – Where visa application lodged on the Monday immediately following expiry on Sunday of the previously held visa – Application of s 36(2) of the Acts Interpretation Act 1901 (Cth).

Appealed from FCA: [2016] FCA 177

Return to Top

Planning

Western Australian Planning Commission v Leith; Western Australian Planning Commission v Southregal Pty Ltd & Anor 
P47/2016; P48/2016: [2016] HCATrans 262

Date heard: 9 November 2016

Coram: Kiefel, Bell, Gageler, Keane and Nettle JJ

Catchwords:

Planning – Statutory construction – Planning and Development Act 2005 (WA), s 173, s 177 – Planning Scheme – Amendment to planning scheme – Injurious affection – Compensation – Whether compensation available to person who subsequently purchased property from owner at the time scheme came into effect.

Appealed from WASC (CA): [2016] WASCA 53

Return to Top

Taxation

Commissioner of State Revenue v ACN 005 057 349 Pty Ltd 
M88/2016; M89/2016: [2016] HCATrans 230

Date heard: 6 October 2016

Coram: Kiefel, Bell, Gageler, Keane and Gordon JJ.

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

Return to Top

3: Original Jurisdiction

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

Constitutional Law 

ResourceCo Material Solutions Pty Ltd & Anor v State of Victoria & Anor
M32/2016: Demurrer 

Catchwords:

Constitutional law – Section 92 – Trade within the Commonwealth to be free – Environment Protection Act 1970 (Vic) – Environment Protection (Industrial Waste Resource) Regulations 2009 (Vic) – Where plaintiffs operate in national waste collection, recycling and disposal industry - Contract to dispose of contaminated soil in Victoria by transporting to and disposing of in South Australia - 2nd plaintiff obtained approval from Environment Protection Authority South Australia for treatment of soil in South Australia - 1st plaintiff sought approval from Environment Protection Victoria for transport of waste from Victoria to South Australia – Where approval refused - EPA Vic not satisfied waste would be deposited at facility in SA with better environmental performance standards than in Vic - Whether reg 26 or 26(3) Environment Protection (Industrial Waste Resource) Regulations 2009 (Vic) contrary to s 92 Commonwealth Constitution and therefore invalid - Whether refusal decision contrary to s 92 Commonwealth Constitution and therefore invalid or ultra vires the Regulations.

Return to Top

Knight v State of Victoria & Anor
M251/2015: Special Case

Catchwords:

Constitutional law – Chapter III of the Constitution – Where plaintiff pleaded guilty to seven counts of murder and 46 counts of attempted murder in Supreme Court of Victoria – Where plaintiff was sentenced to life imprisonment in respect of each of the seven counts of murder – Where plaintiff was sentenced to be imprisoned for 10 years for each of the 46 counts of attempted murder, to be served concurrently – Where sentencing judge set a minimum term of 27 years, pursuant to s 17 of the Penalties and Sentences Act 1985 (Vic) – Where minimum term expired on or about 8 May 2014 – Where in 2014 the Victorian Parliament passed the Corrections Amendment (Parole) Act 2014 which inserted section 74AA into the Corrections Act 1986 – Where section 74AA requires Adult Parole Board to not release plaintiff unless plaintiff is in imminent danger of dying or seriously incapacitated which as result of, denies plaintiff of the capacity to cause physical harm – Whether s 74AA is contrary to Chapter III of the Constitution.

Return to Top

Brown & Anor v The State of Tasmania
H3/2016: Special Case

Catchwords:

Constitutional Law – Implied freedom of political communication – Workplaces (Protection from Protesters) Act 2014 (Tas) (“Act”) – Where Forestry Tasmania was authorised to undertake forestry operations in the Lapoinya Forest – Where plaintiffs protested forestry operations in vicinity of the operations  – Where plaintiffs were charged on separate occasions for breaching s 8 of the Act – Where charges were dismissed against both plaintiffs – Whether plaintiffs have standing – Whether Act impermissibly burdens the implied freedom of political communication.
	
Return to Top

Migration

Plaintiff A33/2016 v Minister for Immigration and Border Protection
A33/2016: Application to Show Cause

Catchwords:

Migration – Procedural fairness – Where plaintiff is citizen of Pakistan – Where delegate of defendant refused to grant plaintiff a Protection (Class XA) visa – Where officer of defendant’s department interviewed plaintiff – Where plaintiff was informed that the officer that interviewed plaintiff would make decision about plaintiff’s Protection visa – Where officer who did not interview plaintiff made decision to refuse to grant plaintiff visa - Where plaintiff declared in a statutory declaration the Taliban had killed his father – Where plaintiff subsequently provided death certificate of father – Whether delegate of defendant appropriately considered death of father. 

Return to Top

Te Puia v Minister for Immigration and Border Protection; Graham v Minister for Immigration and Border Protection
P58/2016; M97/2016: Special Cases 

Catchwords:

Where plaintiffs are citizens of New Zealand – Where plaintiffs were granted a class TY subclass 444 Special Category (Temporary) visa when they each respectively last entered Australia  - Where defendant cancelled plaintiffs’ visas under s 501(3) of the Migration Act 1958 (Cth) – Where defendant received information in accordance with s 503A(1) of the Migration Act 1958 (Cth) – Where s 503A(2) prevents defendant from disclosing confidential information to the Court – Whether s 503A(2) is invalid because it requires a Federal court to exercise judicial power in a manner which is inconsistent with the essential character of a court.

Return to Top

Plaintiff M96A/2016 & Anor v The Officer in Charge, Melbourne Immigration Transit Accommodation & Anor
M96/2016: Demurrer 

Catchwords:

Migration – Where plaintiffs arrived in Australia at Christmas Island as “unauthorised maritime arrivals” – Where plaintiffs were detained under s 189(3) of the Migration Act 1958 (Cth) – Where plaintiffs were taken to the Republic of Nauru – Where plaintiffs were then subsequently brought to Australia for medical treatment – Where plaintiffs are detained in a detention centre in Australia – Whether plaintiffs detention is beyond power.

Return to Top

Plaintiff S195/2016 v Minister for Immigration and Border Protection & Ors
S195/2016: Special Case

Catchwords:

Migration – Where plaintiff is citizen of Iran – Where plaintiff was an “unauthorised maritime arrival” – Where plaintiff is unwilling to return to Iran - Where plaintiff was sent to Papua New Guinea under regional processing arrangements – Where Papua New Guinea Supreme Court handed down Belden Norman Namah, MP Leader of the Opposition v Hon Rimbank Pato, Minister for Foreign Affairs & Immigrations SCA NO 84 of 2013 (“Namah Decision”) – Whether designation of Papua New Guinea as a regional processing country is beyond power of s 198AB(1) of Migration Act by reason of Namah Decision – Was taking of the plaintiff to Papua New Guinea beyond power of s 198AD of Migration by reason of Namah Decision. 
	
Return to Top

Court of Disputed Returns

The Senate has referred the following questions to the High Court of Australia sitting as the Court of Disputed Returns pursuant to section 376 of the Commonwealth Electoral Act 1918 (Cth).

Re Day
C14/2016: Questions referred to the Court of Disputed Returns pursuant to section 376 of the Commonwealth Electoral Act 1918 (Cth)

Questions:

(a)	Whether, by reason of s 44(v) of the Constitution there is a vacancy in the representation of South Australia in the Senate for the place for which Robert John Day was returned;

(b)	If the answer to Question (a) is “yes”, by what means and in what manner that vacancy should be filled;

(c)	Whether, by reason of s 44(v) of the Constitution, Mr Day was at any time incapable of sitting as a Senator prior to the dissolution of the 44th Parliament and, if so, on what date he became so incapable;

(d)	What directions and other orders, if any, should the Court make in order to hear and finally dispose of this reference; and

(e)	What, if any, orders should be made as to the costs of these proceedings.

Return to Top	

Re Culleton
C15/2016: [2016] HCATrans 296

Questions referred to the Court of Disputed Returns pursuant to section 376 of the Commonwealth Electoral Act 1918 (Cth)

Date heard: 7 December 2016

Coram: Kiefel, Bell, Gageler, Keane and Nettle JJ

Questions:

(a)	Whether, by reason of s 44(ii) of the Constitution there is a vacancy in the representation of Western Australia in the Senate for the place for which Senator Rodney Norman Culleton was returned;

(b)	If the answer to Question (a) is “yes”, by what means and in what manner that vacancy should be filled;

(c)	What directions and other orders, if any, should the Court make in order to hear and finally dispose of this reference; and

(d)	What, if any, orders should be made as to the costs of these proceedings.

Judgment reserved.

Return to Top

4: Special Leave Granted

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

Compensation

Transport Accident Commission v Katanas
M160/2016: [2016] HCATrans 286

Date heard: 18 November 2016 – Special leave granted.

Catchwords: 

Compensation – Transport accident – Transport Accident Act 1986 (Vic) – Meaning of “serious injury” – Test for establishing whether an injury is a “serious injury” within the meaning of s 93 of the Transport Accident Act 1986 (Vic) – Application of Humphries v Poljak [1992] 2 VR 129 – Whether Court of Appeal applied correct test.

Appealed from VSC (CA): [2016] VSCA 140

Return to Top 

Competition Law 

Air New Zealand Ltd v Australian Competition and Consumer Commission 
S245/2016: [2016] HCATrans 245

Date heard: 14 October 2016 – Special leave granted.

Catchwords:

Competition – Trade Practices Act 1974 (Cth) – Price fixing – s 4E of the Trade Practices Act 1974 (Cth) – Meaning of a market “in Australia” – Whether markets for airborne cargo out of Hong Kong, Singapore and Indonesia to ports in Australia were markets “in Australia”.

Appealed from FCA (FC): [2016] FCAFC 42

Return to Top 

PT Garuda Indonesia Ltd v Australian Competition and Consumer Commission 
S248/2016: [2016] HCATrans 245 

Date heard: 14 October 2016 – Special leave granted.

Catchwords:

Competition – Trade Practices Act 1974 (Cth) – Price fixing – s 4E of the Trade Practices Act 1974 (Cth) – Meaning of a market “in Australia” – Whether markets for airborne cargo out of Hong Kong, Singapore and Indonesia to ports in Australia were markets “in Australia”.

Appealed from FCA (FC): [2016] FCAFC 42

Return to Top 

Constitutional Law 

Rizeq v State of Western Australia 
P55/2016: [2016] HCATrans 233

Date heard: 7 October 2016 – Special leave granted on limited grounds.

Catchwords:

Constitutional law – s 80 of the Constitution – Judiciary Act 1903 (Cth) – Where appellant was a resident of NSW – Where appellant was charged and convicted for drug offences in Western Australia under the Misuse of Drugs Act 1981 (WA) – Where appellant was convicted by majority - Whether sections of the Misuse of Drugs Act 1981 (WA) were picked up and applied as Commonwealth Law under s 79(1) of the Judiciary Act 1903 (Cth) – Whether s 80 of the Constitution applied to the appellants trial.

Appealed from WASC (CA): [2015] WASCA 164

Return to Top

Criminal Law

Hughes v The Queen
S226/2016: [2016] HCATrans 201

Date heard: 2 September 2016 – Special leave granted on limited grounds.

Catchwords:

Criminal law – Tendency evidence – Significant probative value – Whether trial judge erred in admitting tendency evidence – Whether trial judge properly accounted for risk of contamination and concoction in assessing significant probative value – Evidence Act 1995 (NSW) s 97 – Prejudicial effect of tendency evidence – Evidence Act 1995 (NSW) s 101 – Whether directions to jury sufficient.

Appealed from NSWSC (CCA): [2015] NSWCCA 330

Return to Top

The Queen v Afford
M144/2016: [2016] HCATrans 248

Date determined: 14 October 2016 – Special leave granted.

Catchwords:

Criminal law – Criminal Code (Cth) s 307.1 – Intention – Factual inferential reasoning – Application of Kural v The Queen (1987) 162 CLR 502 – Whether “awareness of the likelihood” can be used to establish intention under the Criminal Code (Cth). 

Appealed from VSC (CA): [2016] VSCA 56

Return to Top

Smith v The Queen
S249/2016: [2016] HCATrans 247

Date determined: 14 October 2016 – Special leave granted.

Catchwords:

Criminal law – Criminal Code (Cth) s 307.1 – Intention – Factual inferential reasoning – Application of Kural v The Queen (1987) 162 CLR 502 – Whether “awareness of the likelihood” can be used to establish intention under the Criminal Code (Cth).

Appealed from NSWSC (CCA): [2016] NSWCCA 93

Return to Top

MA v The Queen
S274/2016: [2016] HCATrans 277

Date heard: 16 November 2016 – Special leave granted. 

Catchwords:
	
Criminal law – Statutory construction – Crimes Act 1900 (NSW) – Where it was alleged by prosecution that appellant transmitted HIV to complainant by consensual intercourse – Where appellant was convicted of maliciously inflicted grievous bodily harm, contrary to s 35(1)(b) of Crimes Act 1990 (NSW) – Where jury acquitted appellant on principal count of maliciously causing the complainant to contract a grievous bodily disease with intent to cause that result, contrary to s 36 of Crimes Act 1900 – Whether “intent” requires the application of force.

Appealed from NSWSC (CCA)

Return to Top

IL v The Queen
S270/2016: [2016] HCATrans 279

Date heard: 16 November 2016 – Special leave granted on limited grounds.

Catchwords:

Criminal law – Joint criminal enterprise – Where death caused by ignition of ring burner by deceased – Where evidence showed deceased and appellant had been involved in the production of prohibited drugs – Whether ignition of ring burner within criminal enterprise – Whether act “malicious” as required for constructive or felony murder under Crimes Act 1990 (NSW). 

Appealed from NSWSC (CCA): [2016] NSWCCA 51

Return to Top

Pickering v The Queen
B68/2016: [2016] HCATrans 280

Date heard: 16 November 2016 – Special leave granted on limited grounds.

Catchwords: 

Criminal law – Criminal Code (Qld) – Where jury found appellant guilty of manslaughter – Where appellant killed deceased whilst allegedly trying to avoid him – Whether application of s 31(1)(c) of the Criminal Code (Qld) was excluded by s 31(2).

Appealed from QSC (CA): [2016] QCA 124

Return to Top

The Queen v Dickman
M162/2016: [2016] HCATrans 283

Date heard: 18 November 2016 – Special leave granted.

Catchwords:

Criminal law – Evidence – Identification Evidence – Where respondent was identified using a photoboard – Evidence Act 2008 (Vic) – Where respondent was convicted of intentionally causing serious injury and making a threat to kill – Where Court of Appeal by majority quashed conviction and ordered a new trial – Whether Court of Appeal erred in in holding that the trial judge erred in failing to exercise discretion to exclude identification evidence.

Appealed from VSC (CA): [2015] VSCA 311
	
Return to Top

The Queen v Dookheea
M159/2016: [2016] HCATrans 284

Date heard: 18 November 2016 – Special leave granted.

Catchwords: 

Criminal law – Jury directions – Where respondent was convicted of murder – Where respondent admitted to the unlawful killing of the victim – Where issue at trial was whether respondent had requisite intention – Where trial judge explained to jury “beyond reasonable doubt” – Where Court of Appeal allowed appeal and ordered re-trial – Whether Court of Appeal erred in allowing appeal

Appealed from VSC (CA): [2016] VSCA 67

Return to Top

Director of Public Prosecutions v Dalgliesh 
M99/2016: [2016] HCATrans 312

Date heard: 16 December 2016 – Special leave granted.

Catchwords:

Criminal law – Sentencing – Where respondent convicted on several counts of incest and sexual penetration of a child under 16 – Where offending against daughters of de facto partner – Where 13-year-old victim fell pregnant – Where pregnancy subsequently terminated - Where total effective sentence 5y 6m – Where sentence 3y 6m on charge involving pregnancy – Whether sentence manifestly inadequate on current sentencing principles. 

Appealed from VSC (CA): [2016] VSCA 148

Return to Top

GAX v The Queen
B46/2016: [2016] HCATrans 304

Date heard: 16 December 2016 – Special leave granted. 

Catchwords:

Criminal law – Where appellant was convicted of one count of indecently dealing with a child under the age of 16 years who was his lineal descendant – Where the complainant gave evidence that the appellant, her father, lay in bed with her and that his fingers were down near where her underwear was supposed to be – Where the complainant’s mother and sister also gave evidence of finding the appellant in bed with the complaint – Where there was some inconsistencies between the accounts of the complainant, the mother and the sister – Where majority of the Court of Appeal dismissed appeal – Whether majority of the Court of Appeal failed to make an independent assessment of the sufficiency and quality of the evidence.

Appealed from QSC (CA): [2016] QCA 189

Return to Top

Industrial Law 

Esso Australia Pty Ltd v Australian Workers’ Union
M81/2016: [2016] HCATrans 311

Date heard: 16 December – Special leave granted on limited grounds.

Catchwords:

Industrial Law – Fair Work Act 2009 (Cth) – Construction of s 413(5) – Where s 413(5) requires that certain persons “must not have contravened any orders that apply to them” for industrial action to be protected – Whether under s 413(5) the contravention must be at the relevant time – Whether under s 413(5) the order must be operative.

Appealed from FCA (FC): [2016] FCAFC 72

Return to Top

Australian Workers’ Union v Esso Australia Pty Ltd
M82/2016: [2016] HCATrans 311

Date heard: 16 December – Special leave granted on limited grounds.

Catchwords:

Industrial Law – Fair Work Act 2009 (Cth) – Construction of ss 343 and 348 – Where sections prevent actions being taken against another person “with intent to coerce” the other person to take or not take industrial action – Whether sections require knowledge that action was unlawful.

Appealed from FCA (FC): [2016] FCAFC 72

Return to Top

Migration 

SZTAL v Minister for Immigration and Border Protection & Anor; SZTGM v Minister for Immigration and Border Protection & Anor 
S272/2016; S273/2016: [2016] HCATrans 276

Date heard: 16 November 2016 – Special leave granted.

Catchwords: 

Migration – Statutory interpretation – Migration Act 1958 (Cth) – s 36(2)(aa), complementary protection criteria – Where appellants are nationals of Sri Lanka – Where appellants left Sri Lanka illegally – Where Tribunal accepted that it was likely that the appellants would be jailed upon return to Sri Lanka – Whether the Full Court of the Federal Court erred in holding that the requirement of international infliction of “cruel and inhuman treatment of punishment” or “degrading treatment or punishment” requires proof of a subjective intention.

Appealed from FCA (FC): [2016] FCAFC 69

Return to Top

Negligence

Kendirjian v Lepore & Anor
S170/2016: [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 in 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

Return to Top

Procedure 

Talacko v Bennett & Ors
M154/2016:  [2016] HCATrans 263

Date determined: 10 November 2016 – Special leave granted.

Catchwords:

Procedure – Where money judgment in Australian Court – Where judgment creditor’s wish to enforce judgment in foreign country – Where two applications for certificate under s 15(1) Foreign Judgments Act 1991 (Cth) – Where certificates issued – Where judgment debtor bankrupt at time applications made – Where judgment amounted a “probable debt” – Whether applications precluded by s 15(2) Foreign Judgments Act 1991 (Cth) on basis of s 58(3) of Bankruptcy Act 1966 (Cth).

Appealed from VSC (CA): [2016] VSCA 179

Statutory Construction

Forrest & Forrest Pty Ltd v Wilson & Ors 
P59/2016: [2016] HCATrans 264

Date determined: 10 November 2016 – Special leave granted.

Catchwords:

Statutory Construction – Mining Act 1978 (WA) – Meaning of “accompanied by” in s 74(1) – Whether lodgement of documents specified in s 74(1)(ca)(ii) a jurisdictional fact or a condition of validity.

Appealed from WASC (CA): [2016] WASCA 116

Return to Top

Taxation

Commissioner of Taxation v Jayasinghe 
S275/2016: [2016] HCATrans 275

Date heard: 16 November 2016 – Special leave granted.

Catchwords:

Taxation – International Organisations (Privileges and Immunities) Act 1963 (Cth) – Where respondent is civil engineer engaged by the United Nations – Where under the Act and Regulations made under the Act a person who “holds an office in an international organisation” engages taxation exemptions - Whether respondent is a person who “holds and office in an international organisation” under the Act and Regulations made under the Act.

Appealed from FCA(FC): [2016] FCAFC 79

Return to Top

5: Cases Not Proceeding or Vacated

Migration

Tangilanu v Minister for Immigration and Border Protection
M92/2016: [2016] HCATrans 309

Catchwords:

Migration – Procedural fairness – Where plaintiff is a citizen of Tonga – Where plaintiff applied for a New Zealand Citizen (Family Relationship) (Temporary) (class UP) subclass 461 visa – Where at time of application plaintiff’s spouse had returned to New Zealand – Where delegate of the Minister refused visa – Whether delegate to the Minister observed procedural fairness.

Return to Top

6: Special Leave Refused

Publication of Reasons: 7 December 2016

No.	
Applicant
	
Respondent	
Court appealed from	
Result	
1.		Giza
	Waybecca Pty Ltd 
(M114/2016)

	Supreme Court of Victoria 
(Court of Appeal)
[2016] VSCA 184
	Application dismissed
[2016] HCASL 314	
2.		Dhindsa & Ors
	Minister for Immigration and Border Protection 
& Anor
(M137/2016)

	Federal Court of Australia
[2016] FCA 1075
	Application dismissed
[2016] HCASL 315	
3.		Sullivan
	Tyler & Anor
(S167/2016)
	Full Court of the Family Court 
of Australia

	Application dismissed with costs
[2016] HCASL 316	
4.		Sullivan
	Tyler & Anor
(S234/2016)

	Full Court of the Family Court of Australia
	Application dismissed
[2016] HCASL 317	
5.		SZVSO
	Minister for Immigration and Border Protection 
& Anor
(S238/2016)
	Federal Court of Australia
[2016] FCA 1040
	Application dismissed
[2016] HCASL 318	

Return to Top

Publication of Reasons: 13 December 2016

No.	
Applicant	
Respondent	
Court appealed from
	
Result	
1.		Lawrie
	Lawler
(D6/2016)
	Supreme Court of the Northern Territory (Court of Appeal)
[2016] NTCA 03
	Application dismissed
with costs
[2016] HCASL 319
	
2.		Winky Pop Pty Ltd & Anor
	Mobil Refining Australia 
Pty Ltd & Anor
(M122/2016)
	Supreme Court of Victoria (Court of Appeal)
[2016] VSCA 187
	Application dismissed
with costs
[2016] HCASL 320	
3.		AXQ15
	Minister for Immigration and Border Protection & Anor
(S173/2016)
	Full Court of the Federal Court of Australia
[2016] FCAFC 73
	Application dismissed
with costs
[2016] HCASL 321	
4.		Gorczynski
	Bendigo and Adelaide Bank Limited
(S231/2016)
	Supreme Court of New South Wales (Court of Appeal)
[2016] NSWCA 170
	Application dismissed
with costs
[2016] HCASL 322	
5.		Moore
	The Queen
(S225/2016)
	Supreme Court of New South Wales (Court of Criminal Appeal)
[2016] NSWCCA 185
	Application dismissed
[2016] HCASL 323	

Return to Top

Publication of Reasons: 14 December 2016

No.	
Applicant
	
Respondent	
Court appealed from	
Result	
1.		Forster
	Forster
(A38/2016)
	Full Court of the Family Court of Australia
	Application dismissed
[2016] HCASL 324	
2.		Karam
	Palmone Shoes Pty Ltd
(M129/2016)
	Supreme Court of Victoria (Court of Appeal)
[2016] VSCA 208
	Application dismissed
[2016] HCASL 325	
3.		MZABP
	Minister for Immigration and Border Protection & Ors
(M131/2016)
	Full Court of the Federal Court of Australia
[2016] FCAFC 110
	Application dismissed
[2016] HCASL 326	
4.		MZAJG & Ors
	Minister for Immigration and Border Protection & Anor
(M132/2016)
	Federal Court of Australia
[2016] FCA 1045
	Application dismissed
[2016] HCASL 327	
5.		Plaintiff M80/2016
	Minister for Immigration and Border Protection & Anor
(M136/2016)
	High Court of Australia
[2016] HCATrans 204
	Application dismissed
[2016] HCASL 328	
6.		SZUCJ & Ors
	Minister for Immigration and Border Protection & Anor
(S140/2016)
	Federal Court of Australia
[2016] FCA 471
	Application dismissed
[2016] HCASL 329	
7.		Griffin
	Council of the Law Society of NSW
(S227/2016)
	Application for removal

	Application dismissed with costs
[2016] HCASL 330	
8.		Palmer
	State of Queensland
(B48/2016)
	Supreme Court of Queensland (Court of Appeal)
[2016] QCA 191
	Application dismissed with costs
[2016] HCASL 331	
9.		Harris
	State of Queensland
(B49/2016)
	Supreme Court of Queensland (Court of Appeal)
[2016] QCA 191
	Application dismissed with costs
[2016] HCASL 332	
10.		Hayes
	State of Queensland
(B50/2016)
	Supreme Court of Queensland (Court of Appeal)
[2016] QCA 191
	Application dismissed with costs
[2016] HCASL 333	
11.		Greenhalgh
	State of Queensland
(B51/2016)
	Supreme Court of Queensland (Court of Appeal)
[2016] QCA 191
	Application dismissed with costs
[2016] HCASL 334	
12.		Palkovich
	Palkovich
(S202/2016)
	Full Court of the Family Court of Australia

	Application dismissed with costs
[2016] HCASL 335	
13.		Johnson
	Athalie Calvo as executrix of the estate of the late Peter Calvo & Ors
(S215/2016)
	Supreme Court of New South Wales (Court of Appeal)
[2016] NSWCA 136
[2016] NSWCA 197
	Application dismissed with costs
[2016] HCASL 336	
14.		Otsuka Pharmaceutical Co., Ltd & Anor
	Generic Health Pty Ltd
(S230/2016)
	Full Court of the Federal Court of Australia
[2016] FCAFC 111
	Application dismissed with costs
[2016] HCASL 337	
15.		Gertos & Anor
	Inner West Council
(S233/2016)
	Supreme Court of New South Wales (Court of Criminal Appeal)
[2016] NSWCCA 186
	Application dismissed
[2016] HCASL 338	
16.		Smits
	Lillas & Loel Lawyers & Anor
(B53/2016)
	Full Court of the Federal Court of Australia
[2016] FCAFC 143
	Application dismissed 
[2016] HCASL 339	
17.		Maddax
(2 applications)	Danner
(B59/2016 & B60/2016)
	Full Court of the Family Court of Australia

	Applications dismissed
[2016] HCASL 340	
18.		Marijancevic
	Roads Corporation of Victoria
(M117/2016)
	Supreme Court of Victoria (Court of Appeal)
[2016] VSCA 181
	Application dismissed 
[2016] HCASL 341	
19.		Lei & Anor
	Lei & Ors
(M120/2016)
	Supreme Court of Victoria
[2016] VSC 336
	Application dismissed 
[2016] HCASL 342	
20.		Djime
	Le
(M125/2016)
	Supreme Court of Victoria (Court of Appeal)
[2016] VSCA 202
	Application dismissed 
[2016] HCASL 343	
21.		Singh
	Minister for Immigration and Border Protection & Anor
(M134/2016)
	Federal Court of Australia
[2016] FCA 1066
	Application dismissed 
[2016] HCASL 344	
22.		Ahmed
	Minister for Immigration and Border Protection & Anor
(S232/2016)
	Federal Court of Australia
[2016] FCA 1029
	Application dismissed 
[2016] HCASL 345	
23.		Sun & Ors
	Minister for Immigration and Border Protection & Anor
(B25/2016)
	Full Court of the Federal Court of Australia
[2016] FCAFC 52
	Application dismissed 
with costs
[2016] HCASL 346	
24.		Quaid
	The State of Western Australia
(P33/2016)
	Supreme Court of Western Australia (Court of Appeal)
[2016] WASCA 91 
	Application dismissed
[2016] HCASL 347
	
25.		Zanon
(2 applications)	The State of Western Australia
(P52/2016 & P53/2016)
	Supreme Court of Western Australia (Court of Appeal)
[2016] WASCA 91
	Applications dismissed
[2016] HCASL 347	
26.		Donnelly
	Australia and New Zealand Banking Group Limited & Anor
(S192/2016)
	Supreme Court of New South Wales (Court of Appeal)
[2016] NSWCA 167
	Application dismissed 
with costs
[2016] HCASL 348	
27.		Muliri
	The Queen
(S211/2016)
	Supreme Court of New South Wales (Court of Criminal Appeal)
[2016] NSWCCA 129
	Application dismissed 
[2016] HCASL 349	

Return to Top

16 December : Sydney

No.	
Applicant	
Respondent	
Court appealed from
	
Results	
1.		The Age Company Pty Ltd 
& Ors	Liu
(S160/2016)
	Supreme Court of New South Wales (Court of Appeal)
[2016] NSWCA 115
	Application dismissed with costs
[2016] HCATrans 306	
2.		Dickson
	The Queen
(S171/2016)
	Supreme Court of New South Wales (Court of Criminal Appeal)
	Application dismissed
[2016] HCATrans 307	
3.		Anglo Coal (Drayton Management) Pty Ltd
	Construction, Forestry, Mining and Energy Union
(S175/2016)
	Federal Court of Australia
[2016] FCA 689
	Application dismissed with costs
[2016] HCATrans 308	
4.		Duncan
	Independent Commission Against Corruption
(S182/2016)
	Supreme Court of New South Wales (Court of Appeal)
[2016] NSWCA 143
	Application dismissed with costs
[2016] HCATrans 305	
	Poole & Anor
	Independent Commission Against Corruption
(S183/2016)
	Supreme Court of New South Wales (Court of Appeal)
[2016] NSWCA 143
	Application dismissed with costs
[2016] HCATrans 305	
	Atkinson
	Independent Commission Against Corruption
(S184/2016)
	Supreme Court of New South Wales (Court of Appeal)
[2016] NSWCA 143

	Application dismissed with costs
[2016] HCATrans 305	

Return to Top

16 December 2016: Canberra

No.	
Applicant
	
Respondent	
Court appealed from	
Results	
1.		DWN042
	Republic of Nauru
(M79/2016)
	Supreme Court of Nauru
[2016] NRSC 6
	Application dismissed
[2016] HCATrans 310	
2.		Save Beeliar Wetlands (Inc)
	The Hon Albert Jacob MLA & Ors
(P38/2016)
	Supreme Court of Western Australia (Court of Appeal)
[2016] WASCA 126
	Application dismissed
[2016] HCATrans 311	

Return to Top