High Court Bulletin
Produced by the Legal Research Officer, 
High Court of Australia Library
[2013] HCAB 02 (20 March 2013)

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	
Attorney-General for the State of South Australia v Corporation of the City of Adelaide & Ors	Constitutional Law	
Monis v The Queen & Anor; Droudis v The Queen & Anor	Constitutional Law	
TCL Air Conditioner (Zhongshan) Co Ltd v The Judges of the Federal Court of Australia and Anor	Constitutional Law	
Assistant Commissioner Michael James Condon v Pompano Pty Ltd & Anor	Constitutional Law	
Huynh v The Queen; Duong v The Queen; Sem v The Queen	Criminal Law	
Yates v The Queen	Criminal Law	

2: Cases Reserved
Case	Title	
SZOQQ v Minister for Immigration and Citizenship & Anor	Citizenship and Migration	
Fortescue Metals Group Limited & Ors v The Commonwealth of Australia	Constitutional Law	
Commissioner of Taxation v Unit Trend Services Pty Ltd	Taxation	
Wallace v Kam	Torts	

3: Original Jurisdiction
Case	Title	
There are no new matters ready for hearing in the original jurisdiction of the High Court.	

4: Special Leave Granted
Case	Title	
Pantazis; Issa; & Elias v The Queen & Anor	Criminal Law	
Nguyen v The Queen	Criminal Law	
Westpac Banking Corporation & Ors v Bell Group Ltd (In Liq) & Ors	Equity	
Legal Services Board v Gillespie-Jones	Legal Practitioners	

	

1: Cases Handed Down

The following cases were handed down by the High Court of Australia during the February-March 2013 sittings.

Constitutional Law

Attorney-General for the State of South Australia v Corporation of the City of Adelaide & Ors
A16/2012: [2013] HCA 3.

Judgment delivered: 27 February 2013.

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

Catchwords:

Constitutional law – Implied freedom of communication on government and political matters – Where by-law prohibited preaching and distributing printed matter on any road without permission – Whether by-law effectively burdened freedom of political communication – Whether by-law reasonably appropriate and adapted to achieving legitimate end in manner compatible with system of representative and responsible government.

Local government – Where power to make by-laws "for the good rule and government of the area, and for the convenience, comfort and safety of its inhabitants" – Whether generally expressed by-law making power must be narrowly or restrictively construed – Whether by-law exceeded limitations on power delegated to local government under Local Government Act 1934 (SA) – Whether by-law complied with limitations and procedures prescribed by Local Government Act 1999 (SA) – Whether by-law was reasonable and proportionate exercise of by-law making power.

Words and phrases – "could not reasonably have been adopted", "legitimate end", "licence", "political communication", "principle of legality", "proportionality".

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

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Monis v The Queen & Anor; Droudis v The Queen & Anor
S172/2012; S179/2012: [2013] HCA 4.

Judgment delivered: 27 February 2013.

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

Catchwords:

Constitutional law – Implied freedom of communication on government and political matters – Criminal offence under s 471.12 of Criminal Code (Cth) for person to use postal or similar service in way that "reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive" – Appellants allegedly sent communications to relatives of Australian soldiers and officials killed in Afghanistan and Indonesia – Communications criticised deployment of Australian troops in Afghanistan in terms critical of deceased – Appellants charged with using and aiding and abetting use of postal service in way that reasonable persons would regard as offensive – Whether s 471.12 in its application to "offensive" uses of postal service effectively burdens implied freedom of political communication – Whether s 471.12 in its application to "offensive" uses of postal service is reasonably appropriate and adapted to legitimate end in manner compatible with system of representative and responsible government.

Statutes – Interpretation – Whether purpose of s 471.12 of Criminal Code (Cth) in its application to "offensive" uses of postal service is only to prohibit those offensive uses – Whether purpose of s 471.12 in its application to "offensive" uses of postal service is to prohibit misuse of service for intrusion of seriously offensive material into home or workplace – Whether s 471.12 in its application to "offensive" uses of postal service is limited to seriously offensive uses.

Words and phrases – "effectively burden", "legitimate end", "offensive", "proportionality", "reasonable person", "reasonably appropriate and adapted".

Appealed from NSW SC (CCA): (2011) 256 FLR 28; [2011] NSWCCA 231.

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TCL Air Conditioner (Zhongshan) Co Ltd v The Judges of the Federal Court of Australia and Anor
S178/2012: [2013] HCA 5.

Judgment delivered: 13 March 2013.
 
Coram: French CJ, Hayne, Crennan, Kiefel, Bell and Gageler JJ.

Catchwords: 

Constitutional law – Judicial power of Commonwealth – Constitution, Ch III – Section 16(1) of International Arbitration Act 1974 (Cth) provided that UNCITRAL Model Law on International Commercial Arbitration ("Model Law") has “force of law in Australia” – Article 35 of Model Law provided that arbitral award shall be enforced upon application to "competent court" – Where Federal Court of Australia had no power to refuse to enforce arbitral award for error of law on face of award – Whether institutional integrity of Federal Court impermissibly impaired – Whether judicial power of Commonwealth vested in arbitral tribunals.

Words and phrases – "arbitral award", "institutional integrity", "judicial power".

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

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Assistant Commissioner Michael James Condon v Pompano Pty Ltd & Anor
B59/2012: [2013] HCA 7.

Judgment delivered: 14 March 2013.

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

Catchwords:

Constitutional law – Constitution, Ch III – Institutional integrity of State courts – Section 10(1) of Criminal Organisation Act 2009 (Q) ("Act") allowed Supreme Court of Queensland on application of commissioner of police service to declare organisation "criminal organisation" – Where criminal organisation application supported by "criminal intelligence" – Sections 66 and 70 of Act required closed criminal intelligence hearing with no notice given to respondents – Section 78(1) of Act required Supreme Court to close part of criminal organisation hearing when criminal intelligence considered – Whether provisions of Act denied procedural fairness to respondents to criminal organisation application – Whether provisions of Act repugnant to or inconsistent with continued institutional integrity of Supreme Court – Whether question of organisation being "unacceptable risk to the safety, welfare or order of the community" suitable for judicial determination – Whether ss 9 and 106 of Act prevented Supreme Court from extending time for respondents to file response to criminal organisation application.

Words and phrases – "closed hearing", "continued institutional integrity", "criminal intelligence", "criminal organisation", "procedural fairness", "unacceptable risk to the safety, welfare or order of the community". 

Removed from Qld SC.

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Criminal Law

Huynh v The Queen; Duong v The Queen; Sem v The Queen
A30/2012; A31/2012; A32/2012: [2013] HCA 6. 

Judgment delivered: 13 March 2013.

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

Catchwords: 

Criminal law – Appeal – Jury misdirection – Appellant and two co-accused convicted of murder after trial before jury – Trial judge gave oral summing relating facts in narrative form - Trial judge also provided written directions on request from jury – Trial judge’s directions omitted element of 'participation' from joint enterprise liability - Whether directions flawed for failure to identify 'participation' as an element of joint enterprise liability - Whether oral summing up and written redirection flawed on account of failure to apply legal directions to case against each individual co-accused.    

Practice and procedure - Application for special leave to appeal - Application for special leave brought by two co-accused.

Appealed from SA SC (CCA): (2011) 110 SASR 296; [2011] SASCFC 100.

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Yates v The Queen 
P21/2012: [2013] HCA 8.

Judgment delivered: 14 March 2013.

Catchwords: 

Criminal law – Sentence – Detention during Governor's pleasure on expiration of sentence under s 662 of Criminal Code (WA) – Whether evidence capable of supporting conclusion that applicant a constant danger to community – Whether order demonstrably necessary to protect society from physical harm.

Appealed from WA SC (CCA): (1987) 25 A Crim R 361. 

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Local Government 

See also Constitutional Law: Attorney-General for the State of South Australia v Corporation of the City of Adelaide & Ors

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Practice and Procedure

See also Criminal Law: Huynh v The Queen; Duong v The Queen; Sem v The Queen

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Statutes

See also Constitutional Law: Monis v the Queen & Anor; Droudis v The Queen & Anor 

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Words and Phrases

See also Constitutional Law: Attorney-General for the State of South Australia v Corporation of the City of Adelaide & Ors

See also Constitutional Law: Monis v the Queen & Anor; Droudis v The Queen & Anor 

See also Constitutional Law: TCL Air Conditioner (Zhongshan) Co Ltd v The Judges of the Federal Court of Australia and Anor 

See also Constitutional Law: Assistant Commissioner Michael James Condon v Pompano Pty Ltd & Anor 

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2: Cases Reserved

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

Administrative Law

See also Citizenship and Migration: Minister for Immigration and Citizenship v Li and Anor

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Citizenship and Migration

Plaintiff M79 v Minister for Immigration and Citizenship 
M79/2012: [2013] HCATrans 7.

Date heard: 8 February 2013.

Catchwords:

Citizenship and Migration – Refugees – Plaintiff 'offshore entry person' – Plaintiff made a request for a refugee status assessment – Delegate determined that Plaintiff did not meet the definition of 'refugee' in Art 1A of the Refugees Convention – Plaintiff applied for independent merits review and subsequently judicial review – Judicial review decision remains reserved – Minister intervened under s 195A of the Migration Act 1958 (Cth) and granted the Plaintiff a temporary safe haven visa permitting a stay of seven days and a bridging E visa permitting a stay of six months – Grant of temporary safe haven visa bars  plaintiff's application for protection visa  under s 91L of the Migration Act  – Whether temporary safe heaven visa validly granted – Whether plaintiff's application for a protection visa valid. 

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

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Minister for Immigration and Citizenship v Li and Anor
B68/2012: [2013] HCATrans 6.

Date heard: 7 February 2013.

Catchwords:

Citizenship and Migration – Immigration – Migration Review Tribunal ('MRT') – Procedural fairness – Right to be heard – Hearings – Respondent unsuccessfully applied for a 'Skilled Independent Overseas Student (Residence) (Class DD) Visa' – Respondent requested MRT to forbear from making review decision until final outcome of a second skills assessment by Trades Recognition Australia – Respondent sought to address procedural errors by Trades Recognition Australia – MRT made decision without second assessment – Whether MRT’s refusal to adjourn denied applicant procedural fairness – Whether application doomed to failure – Whether ss 353 and 357A(3) of the Migration Act 1958 (Cth) impose requirements capable of supporting substantive grounds of review for jurisdictional error – Migration Act 1958 (Cth), ss 348, 353, 357A, 360.  

Administrative law – Wednesbury unreasonableness – Proper test for unreasonableness in relation to adjournment – Whether failure to adjourn unreasonable.      

Appealed from FCA (FC): (2012) 202 FCR 387; (2012) 127 ALD 238; (2012) 289 ALR 210; [2012] FCAFC 74.

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SZOQQ v Minister for Immigration and Citizenship and Anor
S97/2012: [2013] HCATrans 44.

Date heard: 12 March 2013.

Catchwords:

Citizenship and Migration – Refugees – Refoulement – Applicant an Indonesian national convicted of serious criminal offences in Australia – Applicant found to have real chance of being persecuted if returned – Applicant was excluded by Art 33(2) of the Refugees Convention because of serious criminal convictions and threat posed to Australian community – Whether Minister required to take into account the likely consequence of returning a non-citizen to his or her home country when determining if Article 33(2) of the Refugees Convention applies to deny the benefit of non-refoulement – Convention Relating to the Status of Refugees 1951, Arts 33(1), 33(2) – Migration Act 1958 (Cth), ss 36 & 65.

Appealed from FCA (FC): (2012) 202 FCR 387; (2012) 127 ALD 238; (2012) 289 ALR 210; [2012] FCAFC 74.

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Constitutional Law

See also Statutes: Maloney v The Queen

See also Statutes: X7 v Australian Crime Commission and Anor

Fortescue Metals Group Limited and Ors v The Commonwealth of Australia
S163/2012: [2013] HCATrans 41; [2013] HCATrans 42; [2013] HCATrans 43.

Dates heard: 6, 7 & 8 March 2013.

Catchwords:

Constitutional law (Cth) – Powers of the Commonwealth Parliament – Constitution, s 51(ii) – Taxation – Commonwealth Parliament passed several Acts establishing a 'minerals resource rent tax' – Whether any or all of Minerals Resource Rent Tax (Imposition-Customs) Act 2012 (Cth) s 3, Minerals Resources Rent Tax (Imposition-Excise) Act 2012 (Cth) s 3, Minerals Resource Rent Tax (Imposition-General) Act 2012 (Cth) s 3 (collectively 'the Acts') are invalid to the extent that they discriminate between the States contrary to s 51(ii) of the Constitution. 

Constitutional law (Cth) – Constitution, s 99 – Prohibition on Commonwealth preference in trade, commerce or revenue – Whether any or all of the Acts give preference to one State over another. 

Constitutional law (Cth) – Melbourne Corporation doctrine – Whether any or all of the Acts discriminate against or place a particular burden upon the operations or activities of the States, as to be beyond the legislative power of the Commonwealth.  

Constitutional law (Cth) – Constitution, s 91 – Section 91 provides, inter alia, that '[n]othing in this Constitution prohibits a State from granting any aid to or bounty on mining for gold, silver, or other metals' – Whether any or all of the Acts contravene s 91. 

This writ of summons was filed in the original jurisdiction of the High Court of Australia.

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Corporations Law

Beck v Weinstock & Ors; Weinstock & Anor v Beck & Anor
S56/2012;S266/2012: [2012] HCATrans 283; [2012] HCATrans 284; [2012] HCATrans 285. 

Dates heard:  14 & 15 November 2012. 

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

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 2001 (Cth) notwithstanding that there were never any other shares issued in the Company by reference to which the C class shares conferred preference. 

Corporations law – Management and administration – Directors and other officers – Appointment removal and retirement of directors – Power of court to rectify corporate act which is taken in contravention of corporate constitution – Section 1322(4) of the Corporations Act 2001 (Cth) confers on a court power to make an order that any "act, matter or thing purporting to be have been done" either under the Corporations Act, or "in relation to a corporation" is not invalid by reason of any "contravention of a provision of [the Corporations Act] or a provision of the constitution of a corporation" – Whether purported act contravening constitution by person never validly appointed to office is a "contravention" that can be cured by s 1322(4) – Scope of power conferred by s 1322(4) of the Corporations Act 2001. 

Appealed from NSW SC (CA): (2011) 252 FLR 462, [2011] NSWCA 228; (2012) 87 ACSR 672, [2012] NSWCA 76.

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Native Title 

Leo Akiba on behalf of the Torres Strait Regional Seas Claim Group v Commonwealth of Australia & Ors
B58/2012: [2013] HCATrans 15.

Date heard: 12 February 2013.

Catchwords:

Native title – Preservation of native title rights – Prior extinguishment – Native title claim over maritime area – Native title right to take fish and other aquatic life for commercial purposes – Whether native title rights extinguished by fisheries legislation prohibited, in the absence of a licence, taking of such resources for commercial purposes – Whether rights to take resources from an area constitute native title rights or interests within the meaning of s 223(1) of the Native Title Act 1993 (Cth) where those rights are held under traditional laws and customs on the basis of a 'reciprocal relationship' with a holder of 'occupation based' native title rights. 

Appealed from FCA (FC): (2012) 289 ALR 400, [2012] FCAFC 25.

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Negligence

Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd & Ors S270/2012: [2012] HCATrans 344.

Date heard:  12 December 2012.

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

Catchwords:

Negligence – Proportionate liability – Loan and mortgage transactions effected by forged signatures of purported borrower/mortgagor – Mortgage registered but respondent lender's interest not indefeasible as security for loan amount – Respondent's solicitors ('the appellant') liable to respondent for negligence in failing to word mortgage so as to be indefeasible as security for loan amount – Sections 34 and 35 of the Civil Liability Act 2002 (NSW), inter alia, limit liability of a defendant who establishes that other parties are concurrently liable to a plaintiff in respect of the damage or loss that is the subject of plaintiff's claim against the defendant – Whether insolvent fraudsters concurrent wrongdoer together with appellant – What is the correct approach to identifying 'the damage or loss that is the subject of the claim' within the meaning of s 34(2) of the Civil Liability Act 2002. 

Negligence – Damages – Financial loss – Loss of Interest component – Forged mortgage – Scope of liability under s 5D Civil Liability Act 2002 (NSW) – Whether Court of Appeal erred in holding that damages payable by applicant included amounts referable to interest rate provided in forged mortgage. 

Appealed from NSW SC (CA): [2012] NSWCA 38.

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Property

Castle Constructions Pty Limited v Sahab Holdings Pty Ltd & Anor
S263/2012 [2013] HCATrans 5. 

Date heard:  6 February 2013.

Catchwords:

Property – Real property – Powers of Registrar-General – On applicant's request the Registrar-General intentionally, albeit incorrectly, removed easement from applicant's property in the nature of a right of way benefitting neighbouring property – Subsequent purchaser of neighbouring property requested Registrar-General reinstate easement – Registrar-General declined – Whether, contrary to the principles of indefeasibility embodied in the Real Property Act 1900 (NSW) (‘the Act’) the easement should be reinstated to the Register – Whether Registrar-General has power to reinstate easement under s 12(1)(d) of the Act – Whether the term ‘omission’ in ss 12(1)(d) and 42(1)(a1) of the Act encompasses deliberate removal of easement from the Register – Whether a court has power to reinstate easement under s 138 of the Act – Whether proceedings barred by s 12A(3) of the Act by reason of a failure to respond to notice of intention to remove the easement.

Appealed from NSW SC (CA): (2011) 15 BPR 29,627; [2011] NSWCA 395; [2012] NSWCA 42;[2012] NSWCA 72.

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Statutes 

Maloney v The Queen
B57/2012: [2012] HCATrans 342; [2012] HCATrans 343.  

Dates heard: 11 & 12 December 2012.

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

Catchwords:

Statutes – Interpretation – Racial discrimination – The community area of the Palm Island Shire Council declared a 'restricted area' pursuant to s 147G of the Liquor Act 1992 (Q) – Appellant convicted of possessing liquor in the Palm Island restricted area pursuant to s 168B(1) of the Liquor Act – Whether liquor restrictions contravene s 10 of the Racial Discrimination Act 1975 (Cth) – Whether liquor restrictions valid as special measure within the meaning of s 8 of the Racial Discrimination Act.

Constitutional law (Cth) – Inconsistency between Commonwealth and State laws – Whether State law inconsistent with Commonwealth law and invalid to extent of inconsistency.

Appealed from Qld SC (CA): (2012) 262 FLR 172; [2012] QCA 105.

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X7 v Australian Crime Commission and Anor
S100/2012: [2012] HCATrans 280.

Date heard:  7 November 2012.

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

Catchwords: 

Statutes – Australian Crime Commission Act 2002 (Cth) ('ACC Act') – ACC examiner required plaintiff to attend before examiner to give evidence – Before examination, plaintiff charged with offences – Plaintiff subsequently interviewed by ACC examiner – Whether authorisation of examination by ACCC Board authorised questioning of plaintiff on the subject of charged offences –  Whether Div 2 of Pt II of the ACC Act empowers ACC examiner to examination of person charged where examination concerns the subject matter of the offence.

Constitutional law – Judicial power of Commonwealth – Constitution, Ch III – Whether Div 2 of Pt II of the ACC Act invalid to the extent that it is contrary to Ch III of the Constitution.

This writ of summons was filed in the original jurisdiction of the High Court of Australia.

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Taxation

Commissioner of Taxation v Unit Trend Services Pty Ltd
B61/2012: [2013] HCATrans 46.

Date heard:  14 March 2013.

Catchwords:

Taxation – Goods and services tax – Anti-avoidance – Anti-avoidance provisions in Div 165 of the A New Tax System (Goods and Services Tax) Act 1999 (Cth) enable Commissioner of Taxation to negate GST benefit derived from a scheme – Provisions do not apply if GST benefit attributable to the making of a "choice, election, application or agreement expressly provided for by the GST law" – Where property development scheme involved a combination of several choices provided for by GST law – Whether GST benefit attributable to choice or to scheme – Meaning of s 165-5(1)(b) of the A New Tax System (Goods and Services Tax) Act 1999 (Cth). 

Appealed from FCA (FC): (2012) 205 FCR 29; [2012] ATC 20-342; [2012] FCAFC 112.  

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Torts 

Beckett v The State of New South Wales
S144/2012: [2013] HCATrans 4.

Date heard:  5 February 2013. 

Catchwords:

Torts – Malicious Prosecution – Elements of action – Applicant convicted of multiple charges – Applicant subsequently acquitted of one charge and remaining convictions quashed and new trial ordered – Prosecution decided not to proceed with outstanding charges – Applicant brought action for malicious prosecution – Whether plaintiff must prove innocence – Whether nolle prosequi filed with court or whether alternative characterisation appropriate – Whether Davis v Gell (1924) 35 CLR 275 should be overruled. 

Appealed from NSW SC (CA): [2012] NSWCA 114. 

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Wallace v Kam
S122/2012: [2013] HCATrans 45.

Date heard:  13 March 2013. 

Catchwords:

Torts – Negligence – Causation – Medical practitioner – Failure to warn – Duty to warn patient of material risks inherent in applicant’s proposed back surgery – Multiple material risks – Applicant suffered nerve damage on account of one of several risks materialising – Applicant argued that he would not have undergone surgery if told of all risks – Whether failure to warn of material risks that did not eventuate causally connected to damage – Civil Liability Act 2002 (NSW), s 5D. 

Appealed from NSW SC (CA): [2012] Aust Torts Reports 82-101, [2012] AMLC 30-032, [2012] NSWCA 82. 

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3: Original Jurisdiction

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

Administrative Law

See also Citizenship and Migration: Plaintiff S138 v Director-General of Security and Ors 

Citizenship and Migration

Plaintiff S138 v Director-General of Security and Ors 
S138/2012: Special case.

Catchwords: 

Citizenship and migration – Migration – Refugees – Protection visas – Plaintiff found to be a refugee but refused protection visa due to adverse security assessment by Australian Security Intelligence Organisation – Department relied on public interest criterion 4002 which requires that applicant not be assessed by ASIO to be a risk to security – In Plaintiff M47 v Director-General of Security public interest criterion 4002 found to be beyond power conferred by s 31(3) of the Migration Act 1958 (Cth) – Whether the Secretary made an error of law by relying on public interest criterion 4002
	
Citizenship and migration – Mandatory detention – Plaintiff held in detention as unlawful non-citizen – No third country currently available to receive plaintiff – Whether ss 189 and 196 of Act authorise plaintiff's detention

Administrative law – Procedural fairness – Adverse security assessment – ASIO interviewed plaintiff – Plaintiff did not meet requirements for protection visa – Plaintiff never informed of the reasons why or nature of apparent risk he poses to security – Whether Director-General failed to accord plaintiff procedural fairness

Constitutional law – Whether ss 189, 196 and 198 of Act are beyond the legislative power of the Commonwealth

This special case was filed in the original jurisdiction of the High Court of Australia.

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4: Special Leave Granted

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

Constitutional Law

See also Criminal Law: Jason Lee (aka Do Young Lee) & Anor v New South Wales Crime Commission

Keating v Director of Public Prosecutions (Cth)
M74/2012: [2012] HCATrans 346.

Date heard: 14 December 2012 – Matter removed from the Magistrates’ Court of Victoria.

Catchwords:

Constitutional law – Powers of the Commonwealth Parliament – Social Security Legislation – Retrospective application of offence – Section 66A of the Social Security (Administration) Act 1999 (Cth) ('the Administration Act') retrospectively creates duty for applicant to inform Centrelink of income increases – Applicant charged with three counts of obtaining financial advantage contrary to s 135(1) for failing to report increases in her income to Centrelink –  Whether s 66A of the Administration Act invalid in so far as it operates retrospectively – Whether the sending or deemed receipt of a notice under s 68 of the Administration Act is sufficient to give rise to a duty under law to perform an action for the purposes of s 4.3(b) of the Criminal Code (Cth).  

Removed from Magistrates' Court of Victoria. 

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State of NSW v Kable
S233/2012: [2012] HCATrans 356.

Date heard: 14 December 2012 – Special leave granted.

Catchwords:

Constitutional law – Judicial power – Respondent detained pursuant to order of Supreme Court on application of Director of Public proceedings pursuant to purported State legislation – Legislation subsequently held invalid – Respondent sought damages from the appellant for false imprisonment – Whether orders of Supreme Court valid until set aside – Whether the orders of a State Supreme Court exercising federal jurisdiction in resolving the constitutionality of a State Act and exercising powers pursuant to that Act are deprived of the character of judicial orders by reason of the subsequent invalidity of the State Act. 

Torts – False imprisonment – Defences – Lawful authority –   Respondent held under order of Supreme Court that was subsequently set aside – Whether persons acting to obey orders of a State Supreme Court, which were valid on their face, have defence of lawful authority to tortious liability at common law. 

Appealed from NSW (CA): [2012] NSWCA 243.

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Criminal Law

Agius v The Queen 
S254/2012: [2013] HCATrans 30.

Date heard: 15 February 2013 – Special leave granted. 

Catchwords: 

Criminal law – Conspiracy – In 2001 the Crimes Act 1914 (NSW) s 29D dealing with the offence of conspiracy was repealed and replaced with the Criminal Code Act 1995 (Cth) s 135 – Whether proof of conspiracy under the Criminal Code Act 1995 (Cth) requires evidence of an agreement entered into after the Code began operation on 24 May 2001 – Whether the Criminal Code Act 1995 (Cth) can apply retrospectively to an agreement entered into before 24 May 2001 – Whether physical element of conduct constituted by a conspiracy can be “a state of affairs” 

Appealed from NSW (CA): [2011] NSWCCA 119.

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Jason Lee (aka Do Young Lee) & Anor v New South Wales Crime Commission 
S292/2012: [2013] HCATrans 27.

Date heard: 15 February 2013 – Special leave granted. 

Catchwords: 

Criminal law – Recovery of proceeds of crime – Examination orders – Whether examination would interfere with the administration of justice in criminal proceedings – Whether examination order may be made where criminal charges pending against examinee – Whether procedural protections available to prevent abuse of power – Criminal Assets Recovery Act 1990 (NSW), ss 13A, 31D, 63 

Constitutional law – Ch III of the Constitution – Separation of judicial powers – Functions incompatible with institutional integrity of State Supreme Court – Validity of s 31D of Criminal Assets Recovery Act 1990 (NSW) – Whether requiring a State Supreme Court to make an examination order without regard to the capacity of that order to prejudice the fair trial of the person is incompatible with Ch III 

Statutes – Criminal Assets Recovery Act 1990 (NSW) ss 13A, 31D, 63 – Examination orders – Whether power to order examination limited by general law principles relating to a fair trial

Appealed from NSW (CA): [2012] NSWCA 276

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Director of Public Prosecutions (Cth) v JM
M73/2012: [2012] HCATrans 347.

Date heard: 14 December 2012 – Referred to Full Court

Catchwords:

Criminal law – Market manipulation – Corporations Act 2001 (Cth), s 1041A – Transaction alleged to have or likely to have effect of creating artificial price for shares on ASX – Meaning of 'artificial price' in s 1041 of the Corporations Act – Whether meaning of 'artificial price' informed by equivalent US jurisprudential conceptions of 'cornering' and 'squeezing'.  

Appealed from Vic SC (CA): (2012) 90 ACSR 96; [2012] VSCA 21.

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Nguyen v The Queen
M94/2012: [2013] HCATrans 57. 

Date heard:  15 March 2013 – Special leave granted.

Catchwords:

Criminal law – Murder – Attempted murder – Jury directions – Accused found guilty by complicity with another – Whether alternative verdict of manslaughter sufficiently left to jury on the charge of murder – Whether failure by trial judge to direct jury as to alternative verdict caused a substantial miscarriage of justice 

Appealed from VSC (CA): [2010] VSCA 23

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Pantazis; Issa; & Elias v The Queen & Anor
M80, M81, M82/2012: [2013] HCATrans 51.  

Date heard: 15 March 2013 – Special leave granted.

Catchwords:

Criminal law – Sentencing – Most appropriate offence – Liang & Li principle – Maximum penalty for the offence of attempting to pervert the course of justice at common law is prescribed by section 320 of the Crimes Act 1958 (Vic) at 25 years imprisonment – Under section 43 of the Crimes Act 1914 (Cth) maximum penalty at relevant time was five years imprisonment – Whether Court of Appeal erred in failing to have regard to the lighter sentence.

Appealed from VSC (CA): [2012] VSCA 60.

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Equity

See also Legal Practitioners: Legal Services Board v Gillespie-Jones 

Kakavas v Crown Melbourne Limited & Ors
M53/2012: [2012] HCATrans 348.

Date heard: 14 December 2012 – Special leave granted.

Catchwords:

Equity – Unconscionable dealing – Appellant gambled at respondent's casino over extended period of time – Appellant alleged to suffer from psychiatric condition known as "pathological gambling" – Appellant also subject to "interstate exclusion order" for purposes of Casino Control Act 1991 (Vic) at all relevant times – Whether series of gambling transactions between appellant and respondent affected by unconscionable dealing – Whether respondent liable for unconscionable dealing in circumstances where its officers did not bring to mind matters known to them which placed the appellant at a special disadvantage – What constitutes constructive notice of a special disadvantage in a claim of unconscionable dealing against a corporate person – Whether 'equality of bargaining position' test for determining whether person under 'special disadvantage'.  

Trade practices – Unconscionable conduct – Gambling transactions – Section 51AA for the Trade Practices Act 1974 (Cth) – Whether gambling transactions involved a contravention of s 51AA of the Trade Practices Act. 

Appealed from Vic SC (CA): [2012] VSCA 95.

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Westpac Banking Corporation & Ors v Bell Group Ltd (In Liq) & Ors
P29/2012: [2013] HCATrans 49.  

Date heard: 15 March 2013 – Special leave granted.

Catchwords:

Equity – fiduciary duty – Judicial review – Whether courts can intervene to review the exercise of powers by directors on the basis of a lack of reasonable grounds for decision.

Equity – Fiduciary duty – Breach – Remedies – Equitable compensation versus account of profits – Whether compound interest should be utilised for restitutionary purposes – If so, whether the appropriate measure of compound interest can be determined – Whether on appeal the measure of compound interest was “grossly excessive” or a simple disgorgement of profits.

Equity – Fiduciary duty – Barnes v Addy – Particularisation of breach of fiduciary duty by directors – Whether recipient liability is available against a person who enters an executory transaction with a company involving a balance of rights and obligations that are performed on both sides before any act of avoidance – Whether accessorial liability requires a dishonest and fraudulent design by the trustee.

Appealed from WASC (CA): [2012] WASCA 157. 

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Evidence 

Aristocrat Technologies Australia Pty Ltd and Ors v Global Gaming Supplies Pty Ltd and Ors  
S168/2012: [2012] HCATrans 296.

Date heard: 16 November 2012 – Referred to Full Court

Catchwords:

Evidence – Tendency evidence – Evidence Act 1995 (Cth), s 97 –  Applicants engaged in business of manufacturing and selling electronic gaming machines – Applicants alleged that the respondents infringed copyright under s 38 of the Copyright Act 1968 (Cth) by selling counterfeited gaming machines – Infringement of copyright in circumstances where respondent 'knew, or ought reasonably to have known, the making of the article constituted an infringement of copyright' – Email chain that demonstrated that the respondents had a tendency to engage in infringing transactions – Whether emails inadmissible tendency evidence – Whether the limitation on tendency evidence in s 97 of the Evidence Act 1995 applies to evidence of a person's awareness or state of mind about that person's own prior activities where the issue is the person's knowledge or reasons to believe under s 38 of the Copyright Act 1968 (Cth).  
	
Intellectual Property – Copyright – Copyright Act 1968 (Cth), s 38 –Infringement – Infringement by dealing – Whether respondents infringed applicants' copyright. 

Appealed from FCA (FC): (2012) 95 IPR 242; [2012] FCAFC 34. 

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Intellectual Property

See also Evidence: Aristocrat Technologies Australia Pty Ltd and Ors v Global Gaming Supplies Pty Ltd and Ors

Apotex Pty Ltd v Sanofi-Aventis Australia Pty Ltd & Ors
S219/2012: [2012] HCATrans 357.  

Date heard: 14 December 2012 – Special leave granted.

Catchwords:

Intellectual Property – Patents – Patent claimed administration of pharmaceutical drug as method of preventing or treating particular condition – Administration of drug for different purpose than that specified in patent had effect of preventing or treating condition referred to in patent – Whether methods of treating human body patentable inventions within the meaning of s 18(1)(a) of the Patents Act 1900 (Cth) – Whether second or subsequent medical uses of previously known products patentable inventions. 

Intellectual Property – Patents – Infringement – Patent claims use of compound for treatment of a specified disease – Whether a person who supplies the compound and indicates its use for treatment of a different disease infringes the patent under s 177(1) of the Patents Act 1990 (Cth).  

Appealed from FCA (FC): (2012) 204 FCR 494; (2012) 290 ALR 1; (2012) 96 IPR 185; [2012] FCAFC 102

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Legal Practitioners

Legal Services Board v Gillespie-Jones
M46/2012: [2013] HCATrans 53.  

Date heard: 15 March 2013 – Special leave granted.

Catchwords:

Legal Practitioners – Fidelity fund – Moneys paid to solicitor to be paid into trust account and used for express purpose of paying counsel’s fees – Moneys used by solicitor for own purpose – Whether counsel entitled to claim against Fund – Whether claim barred by lack of costs agreement.

Equity – Trusts and trustees – Quistclose trust – Whether moneys paid to solicitor for purpose of paying counsel’s fees held on Quistclose trust.

Words and phrases – “Actual pecuniary loss” – “Interests” – “For or on behalf of”.

Appealed from VSC (CA): [2012] VSCA 68

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Native Title

Karpany & Anor v Dietman
A18/2012: [2012] HCATrans 210. 

Date heard:  7 September 2012 –Referred to Full Court 

Catchwords:

Native title – Preservation of native title rights – Prior extinguishment – Native title right to take fish – Applicants convicted of possession of an aquatic resource contrary to s 72(2)(c) Fisheries Management Act 2007 (SA) – Whether native title rights to take fish extinguished by virtue of s 29 of the Fisheries Act 1971 (SA) – Whether s 72(2)(c) Fisheries Management Act 2007 (SA) inoperative due to inconsistency with s 221 of the Native Title Act 1993 (Cth).
 
Appealed from SA SC (FC): (2012) 112 SASR 51; (2012) 262 FLR 292; [2012] SASCFC 53.

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Trade Practices  

See also Equity: Aristocrat Technologies Australia Pty Ltd and Ors v Global Gaming Supplies Pty Ltd and Ors

Words and Phrases

See also Legal Practitioners: Legal Services Board v Gillespie-Jones 

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 1 [2013] HCAB 1.

6: Special Leave Refused

Sydney:  26 February 2013
(Publication of Reasons)

Applicant	Respondent	Court appealed from	Result	
Re Tkachenko 	(A26/2012)
	High Court of Australia
[2012] HCATrans 183 	Application Dismissed
[2013] HCASL 1.	
Coronis	Jilt Pty Ltd & Anor
(B36/2012)	Supreme Court of Queensland 
(Court of Appeal)
[2012] QCA 66	Application Dismissed
[2013] HCASL 2.	
Mount Cathay Pty Ltd	Lend Lease Funds Management Limited & Ors
(B62/2012)	Supreme Court of Queensland 
(Court of Appeal)
[2012] QCA 274	Application Dismissed
[2013] HCASL 3.	
Freeman	The Queen
(B63/2012)	Supreme Court of Queensland 
(Court of Appeal)
[2012] QCA 192	Application Dismissed
[2013] HCASL 4.	
Hettiarachchi	The Queen
(M96/2012)	Supreme Court of Victoria
(Court of Appeal)
[2009] VSCA 270	Application Dismissed
[2013] HCASL 5.	
SZQRD & Ors	Minister for Immigration and Citizenship & Anor
(S251/2012)	Federal Court of Australia
[2012] FCA 874	Application Dismissed
[2013] HCASL 6.	
Raashed	Hussein & Anor
(S265/2012)	Supreme Court of New South Wales (Court of Appeal)
[2012] NSWCA 264	Application Dismissed
[2013] HCASL 7.	
SZQPT	Minister for Immigration and Citizenship & Anor
(S287/2012)	Federal Court of Australia
[2012] FCA 929	Application Dismissed
[2013] HCASL 8.	
SZQPX	Minister for Immigration and Citizenship & Anor
(S291/2012)	Federal Court of Australia
[2012] FCA 983	Application Dismissed
[2013] HCASL 9.	
SZQTS & Ors	Minister for Immigration and Citizenship & Anor
(S313/2012)	Federal Court of Australia
[2012] FCA 1094	Application Dismissed
[2013] HCASL 10.	
Kocalidis	Andrews
(M70/2012)	Supreme Court of Victoria
(Court of Appeal)
[2012] VSCA 127	Application Dismissed with Costs
[2013] HCASL 11.	
O'Donoghue	The Honourable Brendan O'Connor, Minister for Justice & Ors
(P11/2012)	Full Court of the Federal Court of Australia
[2012] FCAFC 47	Application Dismissed with Costs
[2013] HCASL 12.	
Bott	Carter & Anor
(S129/2012)	Supreme Court of New South Wales (Court of Appeal)
[2012] NSWCA 89	Application Dismissed with Costs
[2013] HCASL 13.	
Gacic & Anor	Minister for Immigration and Citizenship & Anor
(S161/2012)	Federal Court of Australia
[2012] FCA 531	Application Dismissed with Costs
[2013] HCASL 14.	
Romeo	Papalia & Ors
(S224/2012)	Supreme Court of New South Wales (Court of Appeal)
[2012] NSWCA 221	Application Dismissed with Costs
[2013] HCASL 15.	
CTC Group Pty 
Ltd	Perpetual Trustee Company Limited
(S250/2012)	Supreme Court of New South Wales (Court of Appeal)
[2012] NSWCA 252	Application Dismissed with Costs
[2013] HCASL 16.	
Chalmers	Liang & Anor
(M59/2012)	Supreme Court of Victoria
(Court of Appeal)
[2011] VSCA 439	Application Dismissed
[2013] HCASL 17.	
GA	The Queen
(M66/2012)	Supreme Court of Victoria
(Court of Appeal) [2012] VSCA 108	Application Dismissed
[2013] HCASL 18.	

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Canberra:  13 March 2013
(Publication of Reasons)

Applicant	Respondent	Court appealed from	Result	
Laing	The Queen
(B70/2012)	Supreme Court of Queensland 
(Court of Appeal)
[2008] QCA 317	Application Dismissed
[2013] HCASL 19.	
Challen	Golder Associates Pty Ltd
(B72/2012)	Supreme Court of Queensland 
(Court of Appeal)
[2012] QCA 339	Application Dismissed
[2013] HCASL 20.	
Stamp	The Queen
(D7/2012)	Supreme Court of the Northern Territory 
(Court of Criminal Appeal)
[2012] NTCCA 15	Application Dismissed
[2013] HCASL 21.	
Henderson & Anor	Thackray & Anor
(P34/2012)	Supreme Court of Western Australia 
(Court of Appeal)
[2012] WASCA 197	Application Dismissed
[2013] HCASL 22.	
Rahman	Dubs
(S314/2012)	Federal Court of Australia
[2012] FCA 1081	Application Dismissed
[2013] HCASL 23.	
Patsalis	State of New South Wales
(S325/2012)	Supreme Court of New South Wales 
(Court of Appeal)
[2012] NSWCA 307	Application Dismissed 
[2013] HCASL 24.	
Dhiman	Minister for Immigration and Citizenship & Anor
(S331/2012)	Federal Court of Australia
[2012] FCA 1254	Application Dismissed 
[2013] HCASL 25.	
Reznytska	State of New South Wales
(S332/2012)	Supreme Court of New South Wales 
(Court of Appeal)
[2012] NSWCA 103	Application Dismissed 
[2013] HCASL 26.	
SZOIG & Anor	Minister for Immigration and Citizenship & Anor
(S335/2012)	Federal Court of Australia
[2012] FCA 1250	Application Dismissed 
[2013] HCASL 27.	
Evans 	Secretary Department of Families, Community Services and Indigenous Affairs
(S336/2012)	Full Court of the Federal Court of Australia
[2012] FCAFC 81	Application Dismissed 
[2013] HCASL 28.	
SZQZH	Minister for Immigration and Citizenship & Anor
(S338/2012)	Federal Court of Australia
[2012] FCA 1251	Application Dismissed 
[2013] HCASL 29.	
SZRAJ & Ors 	Minister for Immigration and Citizenship & Anor (S339/2012) 	Federal Court of Australia [2012] FCA 1237 	Application Dismissed [2013] HCASL 30. 	
SZQQY 	Minister for Immigration and Citizenship & Anor (S340/2012) 	Federal Court of Australia [2012] FCA 1231 	Application Dismissed [2013] HCASL 31. 	
SZRES 	Minister for Immigration and Citizenship & Anor (S351/2012) 	Federal Court of Australia [2012] FCA 1308 	Application Dismissed [2013] HCASL 32. 	
Ogawa 	Minister for Immigration and Citizenship & Anor (B66/2011) 	Federal Court of Australia [2011] FCA 1358 	Application Dismissed with Costs [2013] HCASL 33. 	
Prasad 	Minister for Immigration and Citizenship & Anor (B32/2012) 	Federal Court of Australia [2012] FCA 591 	Application Dismissed with Costs [2013] HCASL 34. 	
Memery 	Trilogy Funds Management Limited (B39/2012) 	Supreme Court of Queensland (Court of Appeal) [2012] QCA 160 	Application Dismissed with Costs [2013] HCASL 35. 	
Davey 	Herbst & Ors (C1/2012) 	Supreme Court of the Australian Capital Territory (Court of Appeal) [2012] ACTCA 31 	Application Dismissed with Costs [2013] HCASL 36.	

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Sydney:  15 March 2013

Applicant 	Respondent 	Court appealed from 	Result 	
Lesdor Properties Pty Limited 	Cordon Investments Pty Limited & Ors (S193/2012) 	Supreme Court of New South Wales (Court of Appeal) [2012] NSWCA 184 	Application Dismissed with costs [2013] HCASL 60.	
Cordon Investments Pty Limited & Ors 	Lesdor Properties Pty Limited (S196/2012) 	Supreme Court of New South Wales (Court of Appeal) [2012] NSWCA 184 	Application Dismissed with costs [2013] HCASL 60.	
SZQUR 	Minister for Immigration & Citizenship & Anor (S268/2012) 	Federal Court of Australia [2012] FCA 906 	Application Dismissed with costs [2013] HCASL 67.	
Lynch 	Victims Compensation Fund Corporation & Anor (S288/2012) 	Supreme Court of New South Wales (Court of Appeal) [2012] NSWCA 273 	Application Dismissed with costs [2013] HCATrans 62.	
Tobin & Anor 	Ezekiel & Anor (S295/2012) 	Supreme Court of New South Wales (Court of Appeal) [2012] NSWCA 285 	Application Dismissed with costs [2013] HCATrans 61.	
Manildra Flour Mills (Manufacturing) Pty Limited 	National Union of Workers on behalf of Craig Fahy & Ors (S302/2012) 	Federal Court of Australia [2012] FCA 1010 	Application Dismissed with costs [2013] HCATrans 63.	
Ingram 	Alana Fay Axiak by her tutor Donna Marie Axiak & Ors (S305/2012) 	Supreme Court of New South Wales (Court of Appeal) [2012] NSWCA 311 	Application Dismissed with costs [2013] HCATrans 64.	
Dennis 	The Queen (S308/2012) 	Supreme Court of New South Wales (Court of Criminal Appeal) [2012] NSWCCA 120 	Application Dismissed. 	
Lloyd-Jones 	Allen (S312/2012) 	Supreme Court of New South Wales (Court of Appeal) [2012] NSWCA 230; [2012] NSWCA 315 	Application Dismissed with costs [2013] HCASL 66.	
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Melbourne:  15 March 2013
 
Applicant 	Respondent 	Court appealed from 	Result 	
Bui 	The Queen (M1/2012) 	Supreme Court of Victoria (Court of Appeal) [2011] VSCA 404 	Application Dismissed [2013] HCATrans 56.	
UCORP Pty Ltd & Anor 	ACOHS Pty Ltd (M54/2012) 	Full Court of the Federal Court of Australia [2012] FCAFC 67 	Application Dismissed with costs [2013] HCATrans 52.	
SNF (Australia) Pty Ltd 	CIBA Specialty Chemicals Water Treatment Limited & Anor (M75/2012) 	Full Court of the Federal Court of Australia 2012] FCAFC 95 	Application Dismissed with costs [2013] HCATrans 54.	
Healthscope Ltd & Anor 	Specialist Diagnostic Services Pty Ltd (formerly Symbion Pathology Pty Ltd) & Anor (M89/2012) 	Supreme Court of Victoria (Court of Appeal) [2012] VSCA 175 	Application Dismissed with costs [2013] HCATrans 50.	
KRI 	The Queen (M92/2012) 	Supreme Court of Victoria (Court of Appeal) [2012] VSCA 186 	Application Dismissed [2013] HCATrans 55.	

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