High Court Bulletin
Produced by the Legal Research Officer, 
High Court of Australia Library
[2012] HCAB 06 (13 June 2012)

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

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

Summary of New Entries

1: Cases Handed Down
Case
	Title	
PGA v The Queen 
	Criminal Law	

2: Cases Reserved
Case
	Title	
Likiardopoulos v The Queen	Criminal Law	
Patel v The Queen	Criminal Law	
Commissioner of Taxation v Qantas Airways Limited	Taxation	
Newcrest Mining Limited v Thornton	Torts	

3: Original Jurisdiction
Case
	Title	
Plaintiff M47/2012 v Director General of Security & Ors	Citizenship and migration	
RCB as Litigation Guardian of EKV, CEV, CIV and LRV v The Honourable Justice Colin James Forrest, One of the Judges of the Family Court of Australia & Ors	Constitutional law	

4: Special Leave Granted
Case
	Title	
No new matters were granted special leave since High Court Bulletin 5 [2012] HCAB 05. 	

1: Cases Handed Down

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

Criminal Law

PGA v The Queen 
A15/2011:  [2012] HCA 21.

Judgment delivered:  30 May 2012. 

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

Catchwords:

Criminal law – Rape – Husband's immunity from prosecution for rape of wife – Presumption of consent to intercourse by wife in marriage – Appellant charged in 2010 with two counts of rape contrary to s 48 of Criminal Law Consolidation Act 1935 (SA) – Alleged rapes committed in 1963 against then spouse – Legislative amendments enabled institution of proceedings despite lapse of time – Elements of offence of rape in 1963 supplied by common law – Whether in 1963 common law of Australia presumed consent by wife in marriage.

Precedent – Judicial method – Development of common law – Whether presumption of consent by wife in marriage was part of common law of Australia – Whether statement of common law in R v L [1991] HCA 48; (1991) 174 CLR 379 applied to events alleged to have occurred in 1963. 

Words and phrases – "common law", "marital exemption", "marital immunity", "presumption of consent", "rape", "retrospective application".

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

2: Cases Reserved

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

Administrative Law

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

Date heard:  29 November 2011 — Judgment reserved. 

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

Catchwords:

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

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

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

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

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

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

Citizenship and Migration 

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

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

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

Catchwords:

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

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

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

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

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

Catchwords:

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

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

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

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

Catchwords:

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

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

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

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

Catchwords:

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

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

 Competition Law

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

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

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

Catchwords:

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

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

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

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

Constitutional Law

J T International SA v Commonwealth of Australia; British American Tobacco Australasia Limited & Ors v Commonwealth of Australia 
S389/2011; S409/2011: [2012] HCATrans 91; [2012] HCATrans 92; [2012] HCATrans 93.   

Dates heard:  17, 18 & 19 April 2012 — Judgment reserved. 

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

Catchwords:

Constitutional law (Cth) — Legislative power — Acquisition of property on just terms — Plaintiffs hold registered and unregistered trade marks and other intellectual property rights in relation to tobacco products and packaging — Tobacco Plain Packaging Act 2011 (Cth) ("Packaging Act") regulates and standardises retail packaging and appearance of tobacco products — Packaging Act, s 15 provides, among other things, that Packaging Act "does not apply to the extent (if any) that its operation would result in an acquisition of property from a person otherwise than on just terms" — Whether Packaging Act would, but for s 15, result in acquisition of plaintiffs' property (including intellectual property rights, goodwill, and rights to determine appearance of tobacco products and packaging) otherwise than on just terms — Whether plaintiffs' rights constitute "property" for purposes of Constitution, s 51(xxxi) — Whether Commonwealth has acquired rights in plaintiffs' property for purposes of Constitution, s 51(xxxi) — Whether any acquisition of property effected by Packaging Act an "acquisition-on-just-terms" within meaning of compound expression in Constitution, s 51(xxxi) or Packaging Act a law with respect to alternative head of legislative power  —Whether "just terms" provided for purposes of Constitution, s 51(xxxi) — Whether, by reason of s 15, operative provisions of Packaging Act have no operation with respect to plaintiff's property. 

Constitutional law (Cth) — Judicial power — Constitution, Ch III — Implied limits on Commonwealth legislative power — Whether Packaging Act, s 15 impermissibly confers legislative power upon judiciary — Whether Packing Act, s 15 invalid.

These matters were filed in the original jurisdiction of the High Court. 

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

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

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

Catchwords:

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

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

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

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

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

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

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

Contracts

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

Corporations Law

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

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

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

Catchwords:

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

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

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

Mansfield v The Queen; Kizon v The Queen
P60/2011; P61/2011: [2012] HCATrans 102. 

Date heard:  9 May 2012 — Judgment reserved.

Coram: Hayne, Heydon, Crennan, Kiefel and Bell JJ.

Catchwords:

Corporations law — Insider trading — Inside information — Applicants prosecuted on indictment alleging offences contrary to Corporations Act 2001 (Cth) ("Act"), s 1043A and (former) s 1002G — Trial judge held inside information "must, in general circumstances, be a factual reality" and directed verdicts of acquittal on all but four counts against Mansfield — Whether "information", for purpose of offence in (former) s 1002G and 
s 1043A of Act, as defined in (former) s 1002G and s 1042A of Act, must be, a factual reality and cannot include falsehoods or lies — Whether element of offence of insider trading that inside information possessed by accused corresponds with information possessed by entity entitled to have or use it.

Words and Phrases — “information”.

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

Criminal Law

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

Date heard:  28 February 2012 — Judgment reserved.

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

Catchwords:

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

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

Burns v The Queen
S46/2012:  [2012] HCATrans 99; [2012] HCATrans 100. 

Dates heard:  2 & 3 May 2012 — Judgment reserved.

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

Catchwords:

Criminal law — Homicide — Manslaughter — Involuntary manslaughter — Manslaughter by gross criminal negligence — Appellant unlawfully supplied methadone to deceased at her premises — Deceased died after consuming that methadone — Deceased had shown symptoms of overdose — Appellant had insisted that deceased be removed from her premises — Deceased had refused offer by appellant's husband to call ambulance — Whether appellant owed a duty of care to deceased — Whether trial judge's directions as to existence of a duty of care erroneous — Whether a person who creates a dangerous situation owes a duty of care to minimise the potential damage of that situation — Whether deceased's refusal of treatment negated duty of care in light of his intoxicated state.

Criminal law — Homicide — Manslaughter — Involuntary manslaughter — Manslaughter by unlawful and dangerous act — Whether Crown case at trial was that the relevant unlawful and dangerous act was supply, or whether relevant act was said to be joint criminal enterprise with deceased to self-administer methadone.

Criminal law — Homicide — Manslaughter — Involuntary manslaughter — Causation — Whether the trial judge's directions as to causation erroneous — Whether causation can be established on either limb of involuntary manslaughter where a person by his or her own act voluntarily consumes the substance that substantially causes his or her death — Whether a decision to consume which is not "rational, voluntary and informed" can constitute an intervening act — Whether deceased was "informed" if he knew of methadone's nature and effects.

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

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

Date heard:  6 December 2011 — Judgment reserved.

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

Catchwords:

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

Words and phrases — "substantial miscarriage of justice".

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

Likiardopoulos v The Queen 
M24/2012:  [2012] HCATrans 129.

Date heard: 31 May 2012 — Judgment reserved.
Coram: French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.

Catchwords:

Criminal law — Homicide — Murder — Joint criminal enterprise — Counselling and procuring — Abuse of process  — Deceased victim intellectually disabled 22 year old — Appellant and others charged with murder —  Evidence demonstrated that appellant and co-accused engaged in sustained assault over several days on victim — Crown accepted pleas to lesser offences by appellant's co-accused namely manslaughter and being an accessory after the fact to manslaughter — Appellant found guilty of murder — Whether it is an abuse of process for the Crown to present a case based on the allegation that an accused has counselled or procured another or others to commit murder when none of the alleged principals had been convicted of murder — Whether it is open at law to convict of murder on the basis of counselling or procuring when the alleged principals have pleaded guilty to lesser offences. 

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

Patel v The Queen
B25/2011:  [2012] HCATrans 134; [2012] HCATrans 135.

Dates heard:  6 & 7 June 2012 — Judgment reserved.

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

Catchwords:

Criminal law — Homicide — Manslaughter — Grievous bodily harm — Duty of persons doing dangerous acts — Medical practitioner — Surgery — Appellant convicted of manslaughter of three victims and unlawfully doing grievous bodily harm to one victim — Appellant surgeon operated on the four victims — Appellant convicted on basis that his decisions to operate deserved criminal punishment — Whether appellant's decisions to operate or to commend surgery was "surgical or medical treatment" or "any other lawful act" within the meaning of s 288 of the Criminal Code (Q) ("the Code") — Whether appellant was convicted under the wrong provisions of the Code, in particular by incorrect reliance on breaching s 288 as a pre-requisite to conviction — Whether there was a miscarriage of justice in the conduct of the trial  — Whether the proviso in s 668E(1A) of the Code applied.

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

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

Date heard:  2 March 2012 — Judgment reserved.

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

Catchwords:

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

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

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

Defamation

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

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

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

Catchwords:

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

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

Papaconstuntinos v Holmes a Court
S319/2011: [2012] HCATrans 103. 

Date heard:  10 May 2012 – Judgment Reserved. 

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

Catchwords:

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

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

Extradition 

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

Date heard:  28 March 2012 — Judgment reserved.	

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

Catchwords:

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

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

High Court of Australia

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

See also Constitutional Law:  Williams v The Commonwealth

See also Property Law:  Clodumar v Nauru Lands Committee

Industrial Law

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

Date heard:  29 March 2012 — Judgment reserved.

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

Catchwords:

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

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

Private International Law

PT Garuda Indonesia Ltd v Australian Competition and Consumer Commission
S343/2011:  [2012] HCATrans 101.

Date heard:  8 May 2012 – Judgment Reserved. 

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

Catchwords:

Private international law — Sovereign immunity — Sections 9 and 22 of Foreign States Immunities Act 1985 (Cth) ("Act") provide that foreign States and separate entities of foreign States are immune from jurisdiction of Australian courts, subject to exceptions created by Act — Section 11(1) of Act provides that foreign States and separate entities of foreign States are "not immune in a proceeding in so far the proceeding concerns a commercial transaction" — Appellant a "separate entity" of Republic of Indonesia, as defined in s 3 of Act — Respondent commenced civil penalty proceeding against appellant alleging anti-competitive conduct in relation to international air freight contrary to Pt IV of Trade Practices Act 1974 (Cth) — Whether civil penalty proceeding brought by respondent against separate entity otherwise entitled to immunity under ss 9 and 22 of Act falls within exception in s 11(1) of Act.

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

Property Law

Clodumar v Nauru Lands Committee
M37/2011: [2012] HCATrans 94.

Date heard:  20 April 2012 — Appeal allowed, Court to publish reasons in due course.

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

Catchwords:

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

High Court of Australia — Original jurisdiction — Nauru (High Court Appeals Act 1976 (Cth) confers original jurisdiction on High Court to hear appeal from Supreme Court of Nauru — Whether fresh evidence may be admitted at hearing in original jurisdiction. 

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

Statutes 

See also Torts:  Newcrest Mining Limited v Thornton

Taxation 

Commissioner of Taxation v Qantas Airways Ltd
S47/2012:  [2012] HCATrans 131; [2012] HCATrans 132.

Dates heard:  4 & 5 June 2012 – Judgment Reserved. 

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

Catchwords:

Taxation — Goods and services tax — Taxable supply — Contract for supply of services — Airline travel — Whether goods and services tax ("GST") payable — Passenger made booking and paid fare but did not take actual flight or receive refund — Whether taxable supply occurred when customer made reservation or whether actual travel required — Whether appellant's assessment "excessive" within s 14ZZK of the Taxation Administration Act 1953 (Cth) — Whether respondent made a "taxable supply" within the meaning of section 9-5 of A New Tax System (Goods and Services Tax) Act 1999 (Cth) in circumstances where passengers made and paid for reservations or bookings for flights which they subsequently did not take.

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

Torts

Barclay v Penberthy & Ors
P55/2011;P57/2011: [2012] HCATrans 98.

Date heard:  1 May 2012 – Judgment Reserved. 

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

Catchwords:

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

Torts — action per quod servitium amisit — Loss of services — Whether action per quod servitium amisit contines to exist in Australian common law — Whether appellant and first respondent liable to third respondents in action per quod servitium amisit.

Torts — Wrongful death — Rule in Baker v Bolton (1808) 1 Camp 493;[170 ER 1033] — Lord Campbell's Act — Fatal Accidents Act 1959 (WA) — Whether action for wrongful death exists at common law. 

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

Newcrest Mining Limited v Thornton
P59/2011:  [2012] HCATrans 130.

Date heard:  1 June 2012 — Judgment Reserved.	

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

Catchwords: 

Torts — Joint or several tortfeasors — Contribution — Satisfaction — Double recovery — Statutory prohibition — Respondent injured in workplace accident — Settlement reached with employer and consent judgment entered — Respondent subsequently issued summons against appellant, owner of mine site at which respondent injured — Appellant sought and received summary judgment on ground that respondent already compensated for injury by employer and s 7(1)(b) of Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 (WA) ("Act") precluded recovery of additional damages — Whether s 7(1)(b) of Act applies only to damages awarded following judicial assessment or also to judgments entered by consent — Nau v Kemp & Associates (2010) 77 NSWLR 687. 

Statutes — Statutory construction — Whether consent judgment is a judgment within the meaning of s 7(1)(b) of Act.

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

3: Original Jurisdiction

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

Citizenship and Migration

Plaintiff M47/2012 v Director General of Security & Ors
M47/2012

Catchwords:

Citizenship and migration – Migration – Refugees – Plaintiff Sri Lankan national seeking asylum – Australian Security and Intelligence Organisation ("ASIO") officers interviewed Plaintiff – ASIO subsequently issued adverse security assessment of Plaintiff – Plaintiff therefore did not meet requirements for protection visa – Whether ASIO failed to accord Plaintiff procedural fairness – Whether Plaintiff notified of relevant matters and provided with meaningful opportunity to respond to allegations. 

Citizenship and migration – Unlawful non-citizen – Plaintiff refused protection visa – Plaintiff held in mandatory detention – Plaintiff found to be owed "protection obligations" within meaning of s 36 Migration Act 1958 (Cth) ("the Act") – Plaintiff refused visa because he did not meet satisfy public interest criterion 4002 due to ASIO's adverse security assessment – Plaintiff held in detention as unlawful non-citizen – No third country currently available to receive Plaintiff – Whether s 198 of the Act authorises Plaintiff's removal from Australia – Whether ss 189 and 196 of the Act authorise Plaintiff's detention – Whether Al-Kateb v Godwin (2004) 219 CLR 562 correctly decided.  

Constitutional law (Cth) – Judicial power of Commonwealth – Unlawful non-citizen in immigration detention – No real prospect of removal from Australia in reasonably foreseeable future – Whether indefinite detention without judicial order infringes Ch III of Constitution – Whether detention for period within control of Executive involves exercise of judicial power of Commonwealth by Executive.

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

Constitutional Law 

RCB as Litigation Guardian of EKV, CEV, CIV and LRV v The Honourable Justice Colin James Forrest, One of the Judges of the Family Court of Australia & Ors 
B28/2012

Catchwords:

Constitutional law (Cth) – Judicial power of Commonwealth – Constitution, Ch III – Family court proceedings – Director-General of the Department of Communities initiated proceedings in the Family Court of Australia under Family Law (Child Abduction Convention) Regulations 1986 ("regulations") – Court ordered that EKV, CEV, CIV and LRV ("the affected children") be returned to Italy – Affected children did not have separate and independent legal representation in proceedings – Section 68L of Family Law Act 1975 (Cth) ("Act") provides that in proceedings under the regulations a court "may order that the child's interests … be independently represented … only if the court considers there are exceptional circumstances that justify doing so" – Whether s 68L of Act and the regulations require a Chapter III court to exercise judicial power in a manner repugnant to the judicial process – Whether regulations beyond the delegated-legislative power under which they were purportedly made. 

Administrative law – Scope and content of duty of procedural fairness – Affected children denied application by litigation guardian to intervene in hearing of application to discharge order that they be returned to Italy – Whether refusal of opportunity to have separate and independent representation denied affected children procedural fairness.  

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

4: Special Leave Granted

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

Banking and Finance

See also Contract Law:  Andrews & Ors v Australian and New Zealand Banking Group Limited

Constitutional Law

Attorney-General for the State of South Australia v Corporation of the City of Adelaide & Ors
A22/2011: [2012] HCATrans 107. 

Date heard:  11 May 2012 – Special leave granted

Catchwords:

Constitutional law (Cth) — Operation and effect of Constitution — Interpretation — Implied freedom of political communication about government or political matters — System of representative and responsible government — Local government — Clauses 2.3 and 2.8 of the Corporation of the City of Adelaide By-Law No 4 (Roads), inter alia, prohibited preaching, canvassing, haranguing, and distribution of printed matter without permission on roads ("by-law") — Application of constitutional freedom of communication about government and political matters where possible to seek judicial review of an administrative decision that refused consent to communicate — Whether by-law complies with limitations on legislative power delegated to local government under s 667(1)9(XVI) of the Local Government Act 1934 (SA) — Whether impugned by-law effectively burdens freedom of communicating about government and political matters — Whether by-law reasonably appropriate and adapted to serve legitimate end in manner compatible with maintenance of representative and responsible government — Whether potential that by-law may be erroneously administered relevant to validity. 

Appealed from SASC (FC): (2011) 110 SASR 334, (2011) 182 LGERA 181, (2011) 252 FLR 418, [2011] SASCFC 84. 

The Public Service Association and Professional Officers' Association Amalgamated of NSW v Director of Public Employment & Ors
S384/2011: [2012] HCATrans 113.

Date heard:  11 May 2012 – Special leave granted

Catchwords:

Constitutional law (Cth) — Constitution, Ch III — Vesting of federal jurisdiction in State courts — Institutional integrity of State Courts — Power of State Parliament to alter defining characteristic of Court of a State — Relationship between the NSW Industrial Commission and the Industrial Court — Presidential members of the NSW Industrial Commission are the only persons who may be appointed as members of the Industrial Court — Certain functions of the NSW Industrial Commission can only be exercised by the Commission constituted as Industrial Court  — Section 146C of the Industrial Relations Act 1996 (NSW), inserted by the Industrial Relations Amendment (Public Sector Conditions of Employment) Act 2011 (NSW) ("Act"), effectively requires the NSW Industrial Commission, not Industrial Court, to give effect to executive policies — Whether the Act is invalid by reason that it undermines the institutional integrity of the NSW Industrial Relations Commission when constituted as Industrial Court — Whether imposition of a requirement upon judges of a State court to give effect to executive policy when exercising non-judicial functions as part of an arbitral tribunal undermines institutional integrity or appearance of independence and impartially of that court — Whether requirement imposed upon judicial members to give effect to executive policy when sitting as the NSW Industrial Commission undermines institutional integrity of the Industrial Court. 

Appealed from NSWIRComm (FB):  [2011] NSWIRComm 143. 

Contract Law

Andrews & Ors v Australian and New Zealand Banking Group Limited
M4/2012: [2012] HCATrans 104.
 
Date heard:  11 May 2012 — Cause Removed from the Federal Court of Australia.

Catchwords:
 
Contract law — Liquidated damages — Law of penalties — History of the law of penalties — Law of penalties in Australia and United Kingdom — Relationship between equity and the common law — Requirement for breach — Relationship between banker and customer — Applicants customers of respondent ("ANZ") — ANZ charged customers a variety of fees for overdrawn facilities, overdrawn accounts, dishonouring instructions and over-limit credit card accounts ("Exception Fees") — Whether Exception Fees were capable of characterisation as penalties — Whether the "jurisdiction" in respect of penalties is available only at common law or remains alive in equity — Scope of jurisdiction in equity — Whether relief against penalties requires a breach of contract — Whether jurisdiction to relieve against penalties capable of application in any transaction where, viewed as a matter of substance, an obligation is imposed on one party to pay a sum of money or transfer property to the other in order to secure the performance or enjoyment of a principal object of that transaction — Consideration of core banking law principles pertaining to banker customer relationship — Whether relief against penalties available against Exception Fees.  

Removed from FCA:  (2011) 86 ACSR 292; [2011] FCA 1376.

Corporations Law

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

Date heard:  10 February 2012 — Special leave granted.

Catchwords:

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

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

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

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

Catchwords:

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

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

Costs

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

Date heard:  9 December 2011 — Special leave granted.

Catchwords:

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

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

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

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

Date heard:  9 December 2011 — Special leave granted.

Catchwords:

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

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

Criminal Law

Cooper v The Queen 
S423/2011:  [2012] HCATrans 120.

Date heard: 11 May 2012 — Special leave granted.

Catchwords:

Criminal law — Homicide — Appeal against conviction — Applicant convicted of murder — Applicant originally stood trial with co-accused — Co-accused acquitted of the murder at separate trial — Co-accused subsequently gave evidence at applicant's trial — Co-accused gave evidence that applicant assaulted deceased with bat and axe — Evidence was adduced that suggested deceased threatened applicant's daughter and assaulted applicant — Another witness "C" gave evidence that co-accused admitted hitting deceased with an axe — Crown presented case as applicant solely responsible for the death or alternatively guilty for participation in a joint criminal enterprise with co-accused — Trial judge included joint criminal enterprise in written directions and further written directions to jury — Culpability for joint criminal enterprise was said to be founded on C's evidence coupled with a rejection of self-defence — Court of Criminal Appeal accepted that  joint criminal enterprise was not supported by the evidence but applied the proviso in s 6(1) of the Criminal Appeal Act 1912 (NSW) — Whether the error upheld in applicant's appeal, in which joint criminal enterprise liability was left to the jury when it was not open on the evidence, so fundamental as to preclude application of the proviso — Whether the Court erred in holding that there was no error or inadequacy in the trial judge's directions on joint criminal enterprise, self-defence (or defence of another) and the co-accused's confession to witness "C" — Whether the Court of Criminal Appeal erred in holding that defence counsel's failure to adduce relevant evidence in relation to the deceased's mental condition did not occasion a miscarriage of justice. 

Appealed from NSW (CCA): [2011] NSWCCA 258. 

Douglass v The Queen 
A/29:  [2012] HCATrans 111

Date heard: 11 May 2012 — Special leave granted.

Catchwords:

Criminal law — Evidence — Burden of proof — Sexual offences — Unsworn evidence — Applicant tried before a judge alone of two counts of indecent assault against his daughter ("LD") and one count of aggravated indecent assault against LD's daughter ("CD") — Applicant found not guilty of counts concerning LD and guilty of count concerning CD — LD's evidence given in form of a video under s 34CA of the Evidence Act 1929 (SA) — LD's evidence unsworn and uncorroborated — LD's evidence contradicted in court by accused’s sworn evidence — Only evidence adduced by prosecution in relation to the offence against LD was that of LD —  Whether or not the burden of proof against the applicant discharged — Whether the Court of Appeal erred in considering that this case was a case of "word against word". 

Appealed from SASC (CCA) [2010] SASCFC 66. 

Equity

See also Contract Law:  Andrews & Ors v Australian and New Zealand Banking Group Limited

Torts

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

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

Catchwords:

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

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

5: Cases Not Proceeding or Vacated

The following cases in the High Court of Australia are not proceeding or have been vacated since High Court Bulletin 5 [2012] HCAB 05.

Administrative Law

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

Date heard:  10 February 2012 – Special leave granted

Notices of discontinuance filed 18 May 2012. 

Catchwords:

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

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

6: Special Leave Refused

Canberra:  31 May 2012
(Publication of reasons)

Applicant	Respondent	Court appealed from	Result	
Vella	The State of Western Australia
(P22/2006)	Supreme Court of Western Australia (Court of Appeal)
[2006] WASCA 129	Application Dismissed
[2012] HCASL 81	
Vella	The State of Western Australia
(P10/2007)	Supreme Court of Western Australia (Court of Appeal)
[2007] WASCA 59
	Application Dismissed
[2012] HCASL 81	

Brisbane:  7 June 2012

Civil 
Applicant	Respondent	Court appealed from	Result	
Keswick Developments 
Pty Ltd & Anor	Keswick Island Pty Ltd 
& Ors
(B2/2012)	Supreme Court of Queensland (Court of Appeal) 
[2011] QCA 379	Special leave refused with costs	
Criminal 
Applicant	Respondent	Court appealed from	Result	
Bakir	The Queen
(B61/2011)	Supreme Court of Queensland (Court of Appeal)
[2011] QCA 306	Special leave refused	
Hill	The Queen
(B62/2011)	Supreme Court of Queensland (Court of Appeal)
[2011] QCA 306	Special leave refused	
Fox	The Queen
(B5/2012)	Supreme Court of Queensland (Court of Appeal) 
[2011] QCA 349	Special leave refused	

Brisbane:  8 June 2012

Civil 
Applicant	Respondent	Court appealed from	Result	
Dickfoss	Director of Public 
Prosecutions & Ors
(D1/2012)	Supreme Court of the Northern Territory 
(Court of Appeal)
[2012] NTCA 1	Special leave refused with costs	
Commissioner of 
Taxation	Byrne Hotels QLD 
Pty Ltd
(B58/2011)	Full Court of the 
Federal Court of Australia
[2011] FCAFC 127	Special leave refused with costs	
Hart	Commonwealth Director 
of Public Prosecutions
(B64/2011)	Supreme Court of Queensland (Court of Appeal) 
[2011] QCA 351	Special leave refused with costs	
Hart	Commonwealth of Australia
(B65/2011)	Supreme Court of Queensland (Court of Appeal) 
[2011] QCA 351	Special leave refused with costs