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Decisions

May

Crump v State of New South Wales [2012] HCA 20

Constitutional law (Cth) – Judicial power of Commonwealth – Constitution, Ch III – Sentencing and parole procedure – Whether determination made under s 13A of Sentencing Act 1989 (NSW) is a "matter" within s 73 of Constitution – Whether s 154A of Crimes (Administration of Sentences) Act 1999 (NSW) invalid for setting aside, varying, altering or otherwise stultifying a judgment, decree, order or sentence of Ch III court.

Australian Education Union v General Manager of Fair Work Australia [2012] HCA 19

Statutes – Acts of Parliament – Interpretation – Presumptions as to legislative intention – Presumption against retrospective operation – Full Federal Court of Australia held that registration of Australian Principals Federation ("APF") under Workplace Relations Act 1996 (Cth) ("WR Act") invalid because of absence of "purging rule" terminating membership of organisation of persons no longer entitled to be members – WR Act renamed Fair Work (Registered Organisations) Act 2009 (Cth) and s 26A inserted validating purported registrations made invalid because of absence of purging rule – Whether s 26A operated to validate registration of APF.
Constitutional law (Cth) – Judicial power of Commonwealth – Constitution, Ch III – Whether s 26A in substance dissolved or reversed the orders of the Full Federal Court – Whether s 26A impermissibly usurped or interfered with exercise of Commonwealth judicial power – Whether s 26A invalid.

Shafron v Australian Securities and Investments Commission [2012] HCA 18

Corporations – Duties and liabilities of directors and officers – Section 180(1) of the Corporations Act 2001 (Cth) ("the Act") required directors and officers of a corporation to discharge duties with degree of care and diligence that reasonable person in their position and with their responsibilities would exercise – "Officer" defined in s 9 of the Act – Paragraph (a) of definition provided that secretary of a corporation is an "officer" – Paragraph (b)(i) of definition provided that person who "participates in making" decisions that substantially affect business of corporation is an "officer" – Appellant was company secretary and general counsel of corporation – Whether appellant participated in making decisions substantially affecting business of corporation – Whether s 180(1) applied to all tasks that officer of corporation performed within that corporation – Whether responsibilities of company secretary and general counsel divisible – How scope of "responsibilities within the corporation" of an officer to be determined.

ASIC v Hellicar & Ors [2012] HCA 17

Corporations – Duties and liabilities of directors and officers – Contraventions of civil penalty provisions of Corporations Act 2001 (Cth) ("the Act") – Corporation released misleading announcement to Australian Stock Exchange ("ASX") – Australian Securities and Investments Commission ("ASIC") brought proceedings against respondents (and others) for contraventions of the Act – Section 180(1) of the Act required directors and officers to act with degree of care and diligence that reasonable person in that position would exercise – ASIC alleged directors contravened s_180(1) by approving draft announcement not materially different from misleading announcement released to ASX – ASIC alleged company secretary and general counsel of corporation contravened s 180(1) by not advising board that draft announcement was misleading – Whether directors approved draft announcement.
Evidence – ASIC tendered minutes of board meeting recording tabling and approval of draft ASX announcement – Minutes subsequently approved – ASIC did not call corporation's solicitor, who had supervised preparation of draft minutes and attended board meeting – Whether ASIC owed respondents a "duty of fairness" in its conduct of litigation – Whether ASIC breached putative duty by not calling solicitor – Whether proper consequence of any such breach was to discount cogency of ASIC's case – Whether board minutes sufficient evidence to prove directors' approval of draft announcement.

April

Roadshow Films Pty Ltd v iiNet Limited [2012] HCA 16

Intellectual property: Copyright; Infringement; Authorisation; Appellants owners and exclusive licensees of copyright in commercially released films and television programs ("appellants' films"); Respondent internet service provider supplied internet services under agreement requiring that services not be used to infringe others' rights or for illegal purposes; Users of respondent's internet services infringed copyright in appellants' films by making appellants' films available online using BitTorrent peer-to-peer file sharing system; Notices served on respondent alleging copyright infringement by users of respondent's internet services; Respondent took no action to suspend or terminate user accounts in response to notices; Respondent did not authorise infringement of copyright in appellants' films by users of respondent's internet services; the extent of iiNet's power was limited to an indirect power to prevent a customer's primary infringement of the appellants' films by terminating the contractual relationship between them; the notices did not provide iiNet with a reasonable basis to do so; iiNet's inactivity after receipt of the AFACT notices did not give rise to an inference of authorisation of any act of primary infringement by its customers.

Aytugrul v The Queen [2012] HCA 15

Criminal law: Evidence; Admissibility of evidence about DNA analysis; Appellant convicted of murder; Expert gave evidence at trial about mitochondrial DNA testing of hair found on deceased's thumbnail; Expert's statistical evidence given in form of frequency ratio and exclusion percentage; Court held evidence of exclusion percentage relevant given evidence of frequency ratio, "the probative value of the exclusion percentage was necessarily the same as that of the frequency ratio"; probative value of evidence of exclusion percentage not outweighed by danger of unfair prejudice to appellant as "both the frequency ratio and the manner in which the exclusion percentage had been derived from the frequency ratio were to be explained in evidence to the jury"; evidence of exclusion percentage not misleading or confusing.
Evidence: Judicial notice; Argument for general rule that evidence of exclusion percentage is always inadmissible due to danger of unfair prejudice; Facts underpinning adoption of general rule not proved; insufficient basis to conclude that judicial notice can be taken of psychological research said to support adoption of general rule.

March

Baiada Poultry Pty Ltd v The Queen [2012] HCA 14

Criminal law – Appeal – Jury misdirection – Application of "proviso" – Appellant convicted of offence under Occupational Health and Safety Act 2004 (Vic) – Trial judge failed to direct jury that prosecution had to prove beyond reasonable doubt particular element of offence in issue – Whether appellate court able to conclude that no substantial miscarriage of justice occurred – Whether judicial "discretion" in applying proviso.

Sportsbet Pty Ltd v New South Wales [2012] HCA 13

Constitutional law (Cth) – Operation and effect of Constitution – Freedom of interstate trade, commerce, and intercourse – Approval of use of NSW race field information for fee on wagering turnover – Practical effect of imposition of fee – Connection between location of wagering operator business and turnover of that business – Prejudice upon trade and not upon particular traders – Whether power of approval under Racing Administration Act 1998 (NSW), s 33A confined by positive rule that trade and commerce between Territories and States shall be absolutely free – Whether legislation granting power of approval imposed discriminatory restraints and interferences of protectionist kind.

Constitutional law (Cth) – Operation and effect of Constitution – Inconsistency of laws – Effect of Interpretation Act 1987 (NSW), s 31 on questions of inconsistency between Commonwealth and State law – Whether Northern Territory (Self-Government) Act 1978 (Cth), s 49 limits State legislative power – Whether Racing Administration Act, ss 33 and 33A inconsistent with Northern Territory (Self-Government) Act, s 49 and invalid to extent of inconsistency – Whether Northern Territory (Self-Government) Act, s 49 interpreted in accordance with s 92 of Constitution.

Betfair Pty Ltd v Racing New South Wales [2012] HCA 12

Constitutional law (Cth) – Operation and effect of Constitution – Freedom of interstate trade, commerce, and intercourse – Validity of fees imposed for use of NSW race field information – Practical effect of fee structure – Prejudice upon trade and not upon particular traders – Competitive disadvantage – Whether Racing Administration Act 1998 (NSW), s 33A(2) must be read as not authorising provisions in Racing Administration Regulation 2005 (NSW) obnoxious to s 92 of Constitution – Whether demonstrating greater financial impact on appellant relative to competitors sufficient to establish protection of intrastate trade from interstate competition.

Commissioner of Taxation v Bargwanna [2012] HCA 11

Taxation – Income tax – Exemption from income tax under Div 50 of Income Tax Assessment Act 1997 (Cth) – Charitable purpose – Whether fund was applied for the purposes for which it was established – Whether application of fund viewed as a whole sufficient to qualify for exemption.
Trusts – Trustees – Charitable trust – Breaches of trust – Mingling of trust monies with other monies – Use of trust monies by trustees in their personal capacity – Relevance of success on possible application under s 85 of Trustee Act 1925 (NSW).

The Queen v Getachew [2012] HCA 10

Criminal law – Rape – Mens rea – Directions to jury – Complainant penetrated anally while asleep – No evidence and no assertion that accused believed complainant consenting – Trial judge directed jury that mental element of offence in s 38(2)(a)(i) of Crimes Act 1958 (Vic) established if accused aware complainant was or might be asleep – Court of Appeal held trial judge's direction precluded jury from considering possibility that accused believed complainant was awake and consenting to intercourse – Whether open on evidence for jury to conclude that accused may have believed complainant to be awake – Whether trial judge permitted or required to direct jury about accused's belief in consent if no evidence or assertion that accused believed in consent.

BBH v The Queen [2012] HCA 9

Criminal law — Evidence — Relevance — Propensity evidence — Applicant found guilty by jury of maintaining sexual relationship with child under 16, indecent treatment of child under 16 and sodomy of person under 18 — Complainant was applicant's daughter — Complainant's brother gave evidence of uncharged incident between applicant and complainant — Complainant's brother provided innocent explanation for incident — Whether brother's evidence admissible where complainant did not give evidence about incident — Whether evidence relevant to applicant's alleged sexual interest in complainant — Whether test for admissibility in Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461 applicable — Whether test satisfied.

Phonographic Performance Company of Australia Limited v Commonwealth of Australia [2012] HCA 8

Intellectual property – Copyright – Sound recordings – Source of rights – Transitional provisions – Whether after commencement of Copyright Act 1968 (Cth), the Copyright Act 1911 (Imp) remained source of subsisting copyright in pre-1969 sound recordings.

Constitutional law (Cth) – Validity of Commonwealth legislation – Acquisition of property on just terms – Whether fixing of a "cap" on compulsory licence fees in relation to copyright interests is unconstitutional – Application of s 51(xxxi) of Constitution.

Equuscorp Pty Ltd v Haxton; Equuscorp Pty Ltd v Bassat; Equuscorp Pty Ltd v Cunningham's Warehouse Sales Pty Ltd [2012] HCA 7

Restitution − Restitution of benefits derived from unenforceable or illegal contracts − Recovery of money paid as money had and received − Respondents invested in tax driven blueberry farming schemes − Respondents borrowed funds to pay farm management fees − Each investment a "prescribed interest" under Companies Code of each respondent's home State ("Code") − Contrary to s 170(1) of Code, no valid prospectus registered when prescribed interests offered − Farming schemes collapsed − Respondents did not repay loan funds − Loan agreements unenforceable against respondents due to illegality − Whether restitution of loan funds available − Whether failure of consideration − Whether respondents' retention of loan funds unjust.

Personal property − Alienation of personal property − Assignment of choses in action − Assignment of right to restitution − Deed of assignment included assignment of legal right to debts and "all legal and other remedies" − Whether right to restitution capable of assignment − Whether deed of assignment assigned right to restitution.

ALH Group Property Holdings Pty Ltd v Chief Commissioner of State Revenue [2012] HCA 6

Stamp duty – Agreement for sale or transfer of dutiable property – Cancelled agreement – Section 8(1)(b)(i) of Duties Act 1997 (NSW) ("Duties Act") charged duty on "an agreement for the sale or transfer of dutiable property" – Section 50(1)-(2) of Duties Act relevantly provided that cancelled agreement for sale or transfer of dutiable property not liable to duty and that respondent must refund duty paid on such agreement – Oakland Glen Pty Limited ("Oakland") entered into contract ("2003 contract") to sell property to Trust Company Fiduciary Services Limited ("Trust") – Oakland, Trust and appellant executed deed ("Deed of Consent") under which appellant assumed Trust's obligations under 2003 contract – Oakland and appellant executed deed ("Deed of Termination") which as rectified cancelled Deed of Consent – Whether Deed of Consent recorded agreement on which duty chargeable under s 8(1)(b)(i) of Duties Act – Whether Deed of Consent effected novation or assignment of Trust's rights under 2003 contract to appellant – Whether Deed of Consent rescinded 2003 contract – Whether Deed of Termination cancelled any agreement for sale or transfer of property recorded in Deed of Consent so that respondent must refund duty paid pursuant to s 50(2) of Duties Act.

Strong v Woolworths Ltd [2012] HCA 5

Negligence – Causation – Slip and fall injury – Absence of adequate system for periodic inspection and cleaning – Whether factual causation under s 5D of Civil Liability Act 2002 (NSW) ("Act") excludes notions of "material contribution" – Whether appellant had proved factual causation under s 5D(1)(a) of Act – Whether open on evidence to apply probabilistic reasoning in Shoeys Pty Ltd v Allan (1991) Aust Torts Reports 81-104.

February

Waller v Hargraves Secured Investments Ltd [2012] HCA 4

Mortgages – Mortgagee's remedies – Farm Debt Mediation Act 1994 (NSW) ("Act") – Creditor must provide notice of intention to take "enforcement action" under "farm mortgage" ("Notice") – Notice must specify availability of mediation regarding farm debts – Creditor unable to take enforcement action until NSW Rural Assistance Authority ("Authority") issues certificate that Act does not apply because satisfactory mediation has occurred – Borrower mortgaged land to secure all monies owed under loan agreement – Borrower defaulted and lender provided Notice – Borrower requested mediation under Act – Following mediation parties executed second and third loan agreements, discharged previous debts and created new farm debts – Authority satisfied of successful mediation and issued certificate certifying that Act did not apply to farm mortgage – Borrower defaulted in making interest payments due under third loan agreement – Whether successive farm debts created new "farm mortgage" requiring satisfactory mediation before creditor could pursue enforcement action – Whether separate Notice required for enforcement action under subsequent loan agreements – Whether certificate issued by Authority void – Whether lender's entitlement to possession of secured land and outstanding monies barred.

Australian Education Union v Department of Education and Children's Services [2012] HCA 3

Statutes − Acts of Parliament − Interpretation − Statutory powers and duties − Construction − Conferral and extent of power − Minister purportedly appointed persons as temporary "contract teachers" under s 9(4) of Education Act 1972 (SA) − Section 15 empowered Minister to appoint "officers of the teaching service" on permanent or temporary basis − Section 9(4) empowered Minister to appoint such officers and employees "in addition to" employees and officers of teaching service as Minister considered "necessary for the proper administration of this Act or for the welfare of the students of any school" − Meaning of "in addition to" − Whether Minister empowered to appoint officers as teachers under s 9(4) − Whether s 15 provided exclusively for such appointments.

Wotton v Queensland [2012] HCA 2

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 – Validity of ss 132(1)(a) and 200(2) of Corrective Services Act 2006 (Q) – Whether statute complies with limitations on legislative power of State – Whether the impugned law effectively burdens freedom of communicating about government and political matters – Whether provisions reasonably appropriate and adapted to serve legitimate end in manner compatible with maintenance of representative and responsible government.

Administrative law – Relationship between Judicial Review Act 1991 (Q) and determination of issues of legislative validity – Whether validity of particular conditions imposed pursuant to s 200(2) of Corrective Services Act 2006 (Q) question of constitutional law or of compliance by repository of power with statutory limits.

Bui v Director of Public Prosecutions (Cth) [2012] HCA 1

Criminal law – Appeal – Appeal against sentence – Prosecution appeal – Double jeopardy – Appellant pleaded guilty to importation of a marketable quantity of a border controlled drug contrary to s 307.2(1) of Criminal Code (Cth) – Appellant sentenced to three years' imprisonment to be released forthwith upon giving security to comply with a condition that appellant be of good behaviour for three years – Respondent appealed against sentence – Sections 289(2) and 290(3) of Criminal Procedure Act 2009 (Vic) ("Victorian provisions") provided that double jeopardy not to be taken into account in allowing appeal against sentence or imposing sentence – Whether ss 68(1) or 79(1) of Judiciary Act 1903 (Cth) ("Judiciary Act") rendered Victorian provisions applicable to prosecution appeal against sentence instituted by respondent – Whether a "common law principle against double jeopardy" picked up by s 80 of Judiciary Act – Whether ss 16A(1)-(2) of Crimes Act 1914 (Cth) required or permitted court determining sentence for federal offence to take into account double jeopardy.

December 2011

Amaca Pty Ltd v Booth; Amaba Pty Ltd v Booth [2011] HCA 53

Evidence – Expert evidence – First respondent sued appellants in Dust Diseases Tribunal of New South Wales – First respondent claimed exposure to asbestos fibres in breach of each appellant's duty of care caused his mesothelioma – First respondent's expert evidence that cumulative exposure to asbestos contributed to mesothelioma accepted at trial – Appellants led epidemiological evidence disputing link between exposure to asbestos of members of first respondent's profession and risk of mesothelioma – Whether inference of fact concerning contraction of disease reasonably open on evidence.

Negligence – Causation – Whether more probable than not that appellants' negligence was a cause of first respondent's disease – Whether issues of causation lie within common knowledge and experience – Role of expert medical evidence.

Practice and procedure – Appeal – No evidence – Appeal from Dust Diseases Tribunal of New South Wales to Supreme Court of New South Wales – Section 32 of Dust Diseases Tribunal Act 1989 (NSW) confers a right of appeal to Supreme Court against decision of Tribunal "in point of law" – Whether Tribunal erred in point of law when deciding that appellants' negligence more probably than not a cause of first respondent's disease.

Shahi v Minister for Immigration and Citizenship [2011] HCA 52

Immigration – Visa – Refugee and Humanitarian (Class XB) visa – Subclass 202 Global Special Humanitarian – Plaintiff Australian permanent resident, eligible proposer for and held Subclass 202 visa – Plaintiff's mother applied for Subclass 202 visa – Primary criteria for grant of visa in cl 202.211 of Sched 2 to Migration Regulations 1994 (Cth) included that applicant "member of the immediate family of the proposer" on date proposer's visa granted and that applicant "continues to be a member of the immediate family of the proposer" at time of applicant's application for visa – Applicant must continue "to satisfy the criterion in clause 202.211" at time of decision for applicant's visa – Mother "member of the immediate family" of proposer only until proposer 18 years old – Plaintiff proposed mother for visa before turned 18 but Minister's delegate's decision not made until after plaintiff turned 18 – Minister's delegate decided that mother ceasing to be member of plaintiff's "immediate family" after date of application but before date of decision required refusal of mother's application – Whether "continues to be a member of the immediate family of the proposer" is criterion to be determined at time of application or time of decision – Whether jurisdictional error.

Handlen v The Queen; Paddison v The Queen [2011] HCA 51

Criminal law – Appeal – Jury misdirection – Application of proviso – Appellants in joint trial each convicted of multiple drug-related offences under Criminal Code (Cth) ("Code"), including two counts of importing commercial quantity of border controlled drugs into Australia contrary to s 307.1 of Code ("importation offences") – Trial conducted on mistaken assumption that guilt of importation offences could be established by proof that appellants parties to joint criminal enterprise – Whether prosecution upon basis not known to law denied application of proviso under s 668E(1A) of Criminal Code (Q) – Whether directions to jury on "group exercise" distracted from real issues in trial of each count in indictment.

Moti v The Queen [2011] HCA 50

Abuse of process – Criminal proceedings – Appellant was citizen of Australia suspected of child sex offences against Australian law committed overseas – Appellant deported from Solomon Islands to Australia by Solomon Islands Government contrary to Solomon Islands law – Australian Government representatives in Solomon Islands aware, and informed superiors in Canberra, of illegality – Australian Government issued travel document for appellant and visas to Solomon Islands officials, which facilitated deportation – Appellant charged and prosecuted on arrival in Australia – Whether circumstances of appellant's removal from Solomon Islands required permanent stay of his prosecution.

Abuse of process – Criminal proceedings – Complainant and certain family members made statements about appellant's conduct to Australian Federal Police ("AFP") – Complainant and family later refused to participate in prosecution as witnesses unless given "financial protection" – AFP made significant payments to complainant and family – Payments exceeded AFP guidelines but not unlawful – Whether payments to witnesses required permanent stay of appellant's prosecution.

Private international law – Act of State – Act of foreign State – Appellant prosecuted in Australia for offences against Australian law committed overseas – Appellant asserted illegality of Solomon Islands Government's actions under Solomon Islands law in application for permanent stay of prosecution – Whether Australian court can examine, as preliminary to ultimate decision under Australian law, legality of foreign government's actions under foreign law.

Green v The Queen; Quinn v The Queen [2011] HCA 49

Criminal law – Appeal – Appeal against sentence – Appeal by Crown – Parity principle – Where primary judge imposed sentence having regard to parity principle as between appellants and other co-offender – Where s 5D of Criminal Appeal Act 1912 (NSW) provided that primary purpose of appeals against sentences by the Crown is "to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons" – Where appellate court increased each appellant's sentence – Whether appellate court erred in allowing Crown appeal and thereby creating disparity between sentences of appellants and other co-offender – Whether appellate court erred in finding, absent any submission from Crown, that sentence imposed on other co-offender manifestly inadequate.

Michael Wilson & Partners Limited v Nicholls [2011] HCA 48

Courts and judges – Bias – Apprehended bias – Appellant successfully applied ex parte to use respondents' affidavits for foreign proceedings and criminal investigations on several occasions – Judge relied on appellant's unchallenged affidavit evidence – Applications heard in closed court and orders made preventing respondents knowing about applications – Whether fair-minded lay observer might reasonably apprehend judge might not bring impartial and unprejudiced mind to resolution of issues at trial of action.

Practice and procedure – Appeal – Trial judge refused respondents' pre-trial disqualification applications – Trial judge offered to make orders facilitating urgent appeal – Whether order on disqualification application capable of appeal – Respondents did not seek leave to appeal – Whether respondents permitted to raise disqualification on appeal from final judgment.

Abuse of process – Multiple proceedings – Appellant commenced arbitration proceeding against solicitor in London for breach of fiduciary duty then proceeding against respondents in Supreme Court of New South Wales for knowingly assisting solicitor's breach and in tort – Loss from substantially same breaches of fiduciary duty alleged in both proceedings – Proceedings could not be brought in one venue – Supreme Court delivered judgment before arbitrators delivered award on liability – Findings about appellant's loss differed – Whether Supreme Court proceeding abuse of process.

Equity – Remedies – Solicitor liable to appellant for breach of fiduciary duty – Respondents liable to appellant for knowingly assisting solicitor's breach – Whether respondents' liability ancillary to, coordinate with or necessarily limited by solicitor's liability – Equity against double recovery – Whether respondents have equity to prevent appellant enforcing Supreme Court judgment against them where particular loss satisfied pursuant to arbitral award against solicitor.

November 2011

Australian Crime Commission v Stoddart [2011] HCA 47

Evidence – Privilege – Spousal privilege – Witness summonsed pursuant to s 28(1) of Australian Crime Commission Act 2002 (Cth) ("Act") to give evidence regarding "federally relevant criminal activity" involving her husband – Witness declined to answer examiner's questions by claiming spousal privilege – Whether spousal privilege exists at common law and, if so, whether spousal privilege extends to non-curial proceedings – If spousal privilege exists at common law, whether Act restricts or abrogates spousal privilege.

ACN 078 272 867 Pty Limited (In liquidation) (Formerly Advance Finances Pty Limited) v Deputy Commissioner of Taxation; Binetter v Deputy Commissioner of Taxation [2011] HCA 46

Corporations – Reinstatement to register – Winding up – Companies deregistered under Corporations Act 2001 (Cth) ("Act") – Federal Court made orders reinstating companies to register pursuant to s 601AH(2) of Act and thereupon winding them up – Companies and former director sought writs of certiorari, to quash winding-up orders made by Federal Court, mandamus and prohibition – Whether Federal Court had jurisdiction to wind up companies – Whether Federal Court wound up deregistered companies – Whether Federal Court ordered that winding up take effect from date when companies reinstated – Whether s 601AH(5) of Act requires that company, when reregistered, come back into existence in same form as on deregistration.

Procedural fairness – Whether companies should have been given opportunity to be heard before winding-up orders made – Discretionary nature of relief sought – Whether there was unfairness as matter of substance – Whether opportunity to be heard could have made difference to outcome.

October 2011

Western Export Services Inc v Jireh International Pty Ltd [2011] HCA 45

Precedents – High Court – Statements of principle binding upon intermediate appellate courts and trial courts until reconsidered by High Court.

Contract law – Contractual construction – Whether essential to identify ambiguity in language of contract before court may have regard to surrounding circumstances and object of transaction.

Hargraves v The Queen; Stoten v The Queen [2011] HCA 44

Criminal law – Trial – Directions to jury – Appellants convicted of charges arising from tax avoidance scheme – Appellants' dishonesty only issue at trial – Appellants gave evidence – Prosecution called appellants' accountant as witness – Appellants' counsel cross-examined accountant suggesting he tailored evidence to avoid own prosecution – Trial judge told jury they could evaluate credibility by considering a witness's "interest in the subject matter of the evidence" including "self-protection" – Whether misdirection causing miscarriage of justice – Whether direction deflected jury from need to be persuaded beyond reasonable doubt of appellants' guilt – Whether direction invited jury to test appellants' evidence according to appellants' interest in outcome of trial – Principles applicable to directions about evaluation of evidence.

Commonwealth Director of Public Prosecutions v Poniatowska [2011] HCA 43

Criminal law – Physical element of offence – Omission – Respondent convicted of multiple charges of obtaining financial advantage from Commonwealth entity contrary to s 135.2(1) of Criminal Code (Cth) ("Code") – Respondent failed to advise Centrelink of receipt of payments of commission from employer – Whether omission to perform act that person not under legal obligation to perform can be physical element of offence created by s 135.2(1) of Code – Whether s 4.3 of Code gave expression to common law principle that criminal liability does not attach to omission unless it is omission to perform act that person is under legal obligation to perform.

AB v Western Australia [2011] HCA 42

Statutes – Construction – Gender reassignment – Applications for recognition certificates as males – Reassignment procedures undertaken to alter genitals and gender characteristics – Appellants adopted lifestyle and have physical appearance of males – Retain some female sexual organs – Whether requirement that person have "the physical characteristics by virtue of which a person is identified as male or female" met – Whether adverse social consequences or community standards and expectations permissible considerations.

Tasty Chicks Pty Limited & Ors v Chief Commissioner of State Revenue [2011] HCA 41

State taxation – Pay-roll tax – Taxpayer dissatisfied with Chief Commissioner's determination of objection to assessments may apply to Supreme Court for "review" pursuant to Taxation Administration Act 1996 (NSW), s 97.

Administrative law – Courts – Original jurisdiction upon statutory "appeal" and "review" in respect of administrative decision – Nature, power and duties of court in exercise of that jurisdiction.

Queanbeyan City Council v ACTEW Corporation Ltd [2011] HCA 40

Constitutional law (Cth) – Duties of excise – Water Resources Act 1998 (ACT) and Water Resources Act 2007 (ACT) imposed licence fees upon first respondent for extracting water from Australian Capital Territory water catchments, and Utilities (Network Facilities Tax) Act 2006 (ACT) imposed charge upon first respondent calculated by reference to route length of its water infrastructure network – First respondent passed on cost of imposts to appellant – Territory-owned Corporations Act 1990 (ACT) provided that first respondent was a "territory-owned corporation" and regulated share ownership, corporate decision-making and corporate borrowing of first respondent – Section 8(1) also provided that first respondent is not "the Territory" only because of its status as a "territory-owned corporation" – Whether first respondent identified with government of Australian Capital Territory – Whether imposts are duties of excise – Whether imposts are financial arrangements internal to government of Australian Capital Territory.

Muldrock v The Queen [2011] HCA 39

Criminal law – Sentencing – Mentally retarded appellant pleaded guilty to offence of sexual intercourse with a child under 10 years – Appellant sentenced to nine years' imprisonment and non-parole period of 96 days – Standard non-parole period for offence 15 years – Relevance of statutory provision of a standard non-parole period in sentencing of offenders – Whether "two-stage approach" to sentencing of offenders for offences with standard non-parole periods required or permitted – Whether R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 correctly decided with respect to operation of standard non-parole periods.

Criminal law – Sentencing – Offender suffering mental retardation – Relevance of mental retardation – Relevance of availability of rehabilitative treatment.

Criminal law – Sentencing – Community protection – Relevance of availability of orders under Crimes (Serious Sex Offenders) Act 2006 (NSW).

Shoalhaven City Council v Firedam Civil Engineering Pty Limited [2011] HCA 38

Contract – Construction – Dispute resolution clause – Parties to contract agreed to expert determination of claims for damages for breach of contract – Expert contractually obliged to give reasons – Whether inconsistency in expert's reasons – Whether court has power to review expert's determination made under contract.

Westport Insurance Corporation v Gordian Runoff Ltd [2011] HCA 37

Arbitration – Judicial review of awards – Section 38(5) of Commercial Arbitration Act 1984 (NSW) ("Arbitration Act") provided that the Supreme Court shall not grant leave to appeal on any question of law unless it considers that, having regard to all the circumstances, the determination of the question of law could substantially affect the rights of a party to the arbitration agreement (par (a)), and there is a "manifest error of law on the face of the award" (par (b)(i)) – Reinsurance treaties between respondent and appellants included arbitration agreement which required that any dispute arising thereunder be referred to arbitration to be held in accordance with and subject to Arbitration Act – Appellants appealed to Supreme Court on questions of law arising out of award – Whether leave to appeal should have been granted – Whether error of law manifest on face of award.

Arbitration – Reasons for award – Section 29(1)(c) of Arbitration Act required arbitrator to include in award a statement of reasons for making award, unless parties otherwise agreed in writing – Arbitrators delivered written award accompanied by "Reasons for Award" comprising 96 paragraphs – Nature and extent of reasons for award required by s 29(1)(c) of Arbitration Act – Whether reasons for award must be same standard as judicial reasons – Whether nature and extent of reasons for award depends upon circumstances of particular dispute.

Insurance – Statutory construction – Statutory limitation on exclusion clauses – Section 18B of Insurance Act 1902 (NSW) prevented insurer from avoiding liability by relying upon exclusion clause in contract of insurance where operation of exclusion clause was triggered by event with no relationship to cause of event giving rise to particular loss and claim, unless in all the circumstances it was not reasonable for insurer to be bound to indemnify insured – Respondent sought to rely on s 18B to overcome finding by arbitrators that reinsurance treaties between respondent and appellants did not respond to certain policies of insurance underwritten by respondent – Whether s 18B applicable to reinsurance treaties between respondent and appellants.

September 2011

Lithgow City Council v Jackson [2011] HCA 36

Evidence – Admissibility – Opinion evidence – Section 78 of Evidence Act 1995 (NSW) ("Act") provided that rule excluding evidence of opinion does not apply where "opinion is based on what the person saw, heard or otherwise perceived about a matter or event" and evidence "is necessary to obtain an adequate account or understanding of the person's perception of the matter or event" – Respondent found unconscious and injured in drain – Respondent conceded appellant only liable if respondent fell from vertical retaining wall – Ambulance record contained representation "? Fall from 1.5 metres onto concrete" – Whether representation was admissible under s 78 of Act as opinion that respondent fell from vertical retaining wall.

Evidence – Admissibility – Hearsay evidence – Business records exception under s 69 of Act – Representation was hearsay evidence in business record – Whether representation must also comply with s 78.

Negligence – Causation – Whether circumstantial inferences sufficient to establish causation.

Roy Morgan Research Pty Ltd v Commissioner of Taxation [2011] HCA 35

Constitutional law (Cth) – Taxation – s 51(ii) – Superannuation guarantee charge imposed upon employers who fail to provide to employees a prescribed level of superannuation – Charge debt due to Commonwealth and paid into Consolidated Revenue Fund for benefit of employees – Whether law imposing charge not a law with respect to taxation because charge is not imposed for "public purposes", and because it confers a "private and direct benefit" on employees of those employers who pay charge.

Momcilovic v The Queen [2011] HCA 34

Constitutional law (Cth) – Inconsistency between Commonwealth and State laws – Appellant convicted of trafficking in methylamphetamine contrary to s 71AC of Drugs, Poisons and Controlled Substances Act 1981 (Vic) ("Drugs Act") – Trafficking in methylamphetamine an indictable offence under s 302.4 of Criminal Code (Cth) – Commonwealth offence prescribed lower maximum penalty than State offence and different sentencing regime – Whether State law inconsistent with Commonwealth law and invalid to extent of inconsistency.

Constitutional law (Cth) – Judicial power of Commonwealth – Constitution, Ch III – Functions conferred on State courts by State law – Compatibility with role of State courts under Ch III – Section 32(1) of Charter of Human Rights and Responsibilities Act 2006 (Vic) ("Charter") provided "[s]o far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights" – Section 36(2) of Charter empowered Supreme Court of Victoria to make declaration that statutory provision cannot be interpreted consistently with a human right – Declaration had no effect upon validity of provision or legal rights of any person – Nature of task required by s 32(1) of Charter – Whether s 32(1) reflection of principle of legality – Whether s 32(1) invalid for incompatibility with institutional integrity of Supreme Court – Whether s 36 confers judicial function or function incidental to exercise of judicial power – Whether s 36 invalid for incompatibility with institutional integrity of Supreme Court.

Constitutional law (Cth) – High Court – Appellate jurisdiction – Whether declaration made under s 36 of Charter subject to appellate jurisdiction of High Court conferred by s 73 of Constitution.

Constitutional law (Cth) – Courts – State courts – Federal jurisdiction – Diversity jurisdiction – Appellant resident of Queensland at time presentment filed for offence under Drugs Act – Whether County Court and Court of Appeal exercising federal jurisdiction – Operation of s 79 of Judiciary Act 1903 (Cth) in respect of Charter and Drugs Act.

Criminal law – Particular offences – Drug offences – Trafficking – Possession for sale or supply – Section 5 of Drugs Act provided that any substance shall be deemed to be in possession of a person so long as it is upon any land or premises occupied by him, unless person satisfies court to the contrary – Section 70(1) of Drugs Act defined "traffick" to include "have in possession for sale" – Section 73(2) of Drugs Act provided that unauthorised possession of traffickable quantity of drug of dependence by a person is prima facie evidence of trafficking
by that person – Whether s 5 applicable to offence under s 71AC on basis of "possession for sale" – Whether s 5 applicable to s 73(2) – Whether onus on prosecution to prove appellant had knowledge of presence of drugs – Whether onus on appellant to prove not in possession of drugs.

Statutes – Validity – Severance – Section 33 of Charter provided for referral to Supreme Court of questions of law relating to application of Charter or interpretation of statutory provisions in accordance with Charter – Section 37 of Charter required Minister administering statutory provision in respect of which declaration made under s 36(2) to prepare written response and cause copies of declaration and response to be laid before Parliament and published in Government Gazette – Whether, if s 36 of Charter invalid, ss 33 and 37, and balance of Charter, severable from s 36.

Statutes – Interpretation – Section 7(2) of Charter provided that a human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society – Whether s 7(2) relevant to interpretive process under s 32(1) – Whether s 5 of Drugs Act to be construed to impose evidential rather than legal onus on appellant.

Procedure – Costs – Criminal appeal – Departing from general rule for costs where appeal raised significant issues of constitutional law – Whether appellant entitled to special costs order.

Jemena Asset Management (3) Pty Ltd v Coinvest Limited [2011] HCA 33

Constitutional law (Cth) – Inconsistency between Commonwealth instrument and State law – Appellants employed construction workers and were bound by certain federal industrial instruments ("federal instruments") made under Workplace Relations Act 1996 (Cth) ("Commonwealth Act"), which contained provisions regarding long service leave – Construction Industry Long Service Leave Act 1997 (Vic) ("State Act") provided for scheme of portable long service leave benefits for workers in construction industry – Commonwealth Act provided for paramountcy of industrial instruments made under federal legislation over State laws, to extent of any inconsistency – Whether State Act inconsistent with Commonwealth Act as embodied in federal instruments.

August 2011

Plaintiff M70/2011 v Minister for Immigration and Citizenship; Plaintiff M106 of 2011 v Minister for Immigration and Citizenship [2011] HCA 32

Citizenship and migration – Migration – Refugees – Plaintiffs "unlawful non-citizens" and "offshore entry persons" under Migration Act 1958 (Cth) – Plaintiffs detained under s 189(3) – Each plaintiff claimed asylum under Refugees Convention – Section 198(2) required officer to remove from Australia unlawful non-citizen in detention where no successful visa application made – Section 198A(1) empowered officer to take offshore entry person from Australia to country declared under s 198A(3) – Section 198A(3) empowered Minister to declare that specified country provides access for asylum-seekers to effective procedures for assessing protection needs, provides protection for asylum-seekers and refugees, and meets relevant human rights standards in providing protection – Whether s 198A only source of power to remove plaintiffs from Australia when asylum claims not assessed in Australia – Whether s 198(2) supplied power to remove plaintiffs from Australia.

Citizenship and migration – Migration – Refugees – Minister declared Malaysia under s 198A – Whether criteria in s 198A(3)(a)(i)-(iv) jurisdictional facts – Whether declared country must provide access and protections as matter of domestic or international legal obligation – Whether Minister's declaration valid.

Citizenship and migration – Migration – Refugees – Children – Second plaintiff entered Australia as unaccompanied minor and "non-citizen child" under Immigration (Guardianship of Children) Act 1946 (Cth) – Section 6 had effect that Minister guardian of second plaintiff – Section 6A provided that non-citizen child could not leave Australia except with consent in writing of Minister – No consent given – Whether taking of second plaintiff to another country lawful.

HIH Claims Support Ltd v Insurance Australia Ltd [2011] HCA 31

Equity – Doctrine of contribution – Requirement of co-ordinate liabilities – Sub-contractor insured under insurance policy ("HIH policy") issued by member of HIH corporate group ("HIH") and under insurance policy issued by respondent's predecessor in title – Sub-contractor held liable for damage caused to third party by collapse of scaffold – HIH accepted sub-contractor's claim for indemnity under HIH policy and paid portion of sub-contractor's legal costs – After collapse of HIH corporate group, sub-contractor assigned rights against HIH to appellant as trustee under government assistance scheme and appellant paid 90 per cent of amount HIH would have paid under HIH policy in satisfaction of sub-contractor's liability and defence costs, excluding amounts already paid by HIH – Whether appellant could claim equitable contribution from respondent – Whether liabilities of appellant and respondent co-ordinate.

Cush v Dillon; Boland v Dillon [2011] HCA 30

Defamation – Defence of qualified privilege – Where occasion of qualified privilege existed to communicate existence of rumour – Where defendant published rumour as "common knowledge" – Whether matter published on occasion attracting defence of qualified privilege – Whether distinction between publication of rumour and publication of fact of rumour.

Defamation – Defence of qualified privilege – Rebuttal by express malice – Where defendant did not believe truth of publication – Whether lack of belief in truth of publication sufficient to establish malice.

Nicholas v The Commonwealth [2011] HCA 29

Constitutional law (Cth) – Judicial power of Commonwealth – Constitution, Ch III – Validity of laws – Plaintiff defence force member – Plaintiff convicted of disciplinary offences and sentenced to punishment by Australian Military Court ("AMC") established under Defence Force Discipline Act 1982 (Cth) ("Discipline Act") – Plaintiff subjected to punishment – High Court subsequently held invalid provisions of Discipline Act establishing AMC – Military Justice (Interim Measures) Act (No 2) 2009 (Cth) ("Interim Measures Act"), Sched 1, item 5 applied where AMC had imposed punishment to declare rights and liabilities of all persons to be same as if punishment properly imposed by general court-martial, subject to review under Sched 1, Pt 7 – Whether provisions of Interim Measures Act had prohibited features of bill of pains and penalties – Whether provisions invalid as contrary to Ch III.

Haskins v The Commonwealth [2011] HCA 28

Constitutional law (Cth) – Judicial power of Commonwealth – Constitution, Ch III – Validity of laws – Plaintiff defence force member – Plaintiff convicted of disciplinary offences and sentenced to punishment including detention by Australian Military Court ("AMC") established under Defence Force Discipline Act 1982 (Cth) ("Discipline Act") – Plaintiff subjected to punishment – High Court subsequently held invalid provisions of Discipline Act establishing AMC – Military Justice (Interim Measures) Act (No 2) 2009 (Cth) ("Interim Measures Act"), Sched 1, item 5 applied where AMC had imposed punishment to declare rights and liabilities of all persons to be same as if punishment properly imposed by general court-martial, subject to review under Sched 1, Pt 7 – Whether provisions of Interim Measures Act constituted usurpation of judicial power – Whether provisions had prohibited features of bill of pains and penalties.

Constitutional law (Cth) – Powers of Commonwealth Parliament – Acquisition of property on just terms – Whether acquisition by Commonwealth of plaintiff's cause of action for false imprisonment.

Torts – False imprisonment – Liability of Commonwealth for acts of members of defence force – Detention of plaintiff a disciplinary measure applied by one member of defence force to another – Detention in obedience to command of superior – Command of superior lawful on its face – Whether action for false imprisonment destructive of military discipline – Whether action for false imprisonment available to plaintiff.

Cumerlong Holdings Pty Ltd v Dalcross Properties Pty Ltd [2011] HCA 27

Local government – Town planning – Proprietary rights – Suspension of proprietary rights by planning instrument – Ku-ring-gai Local Environment Plan No 194 ("LEP 194") amended Ku-ring-gai Planning Scheme Ordinance ("Ordinance") to effect rezoning of certain land – Purported effect of rezoning was to render unenforceable a restrictive covenant which burdened land owned by third respondent for benefit of land owned by appellant – Section 28 of Environmental Planning and Assessment Act 1979 (NSW) required that planning instrument which rendered unenforceable a restrictive covenant be approved by Governor acting on advice of Executive Council – Whether LEP 194 "provide[d] that" restrictive covenant "shall not apply" – Whether restrictive covenant unenforceable where failure to comply with s 28 when amending Ordinance.

Byrnes v Kendle [2011] HCA 26

Equity – Trusts and trustees – Express trusts constituted inter vivos – Where respondent by deed declared one half of property held "upon trust" for second appellant – Whether respondent a trustee – Whether evidence extrinsic to deed relevant to intention to create trust.

Equity – Trusts and trustees – Powers, duties, rights and liabilities of trustees – Liability for breach of trust – Where trustee leased trust property – Whether duty to collect rent – Whether breach of duty to fail to collect unpaid rent – Where beneficiary knew trustee failed to collect rent and was told trustee had duty to collect rent – Whether beneficiary consented to or acquiesced in breach – Whether trustee entitled to set-off outgoings and improvements to property in taking of accounts.

June 2011

Wainohu v New South Wales [2011] HCA 24

Constitutional law (Cth) – Judicial power of Commonwealth – Constitution, Ch III – Institutional integrity of State courts – Non-judicial functions conferred upon judges of State courts – Section 5 of Crimes (Criminal Organisations Control) Act 2009 (NSW) ("Act") provided that Attorney-General may, with consent of judge, declare judge of Supreme Court to be an "eligible Judge" for purposes of Act – Section 6(1) provided that Commissioner of Police ("Commissioner") may apply to eligible Judge for declaration that particular organisation is a "declared organisation" for purposes of Act – Section 9(1) provided that eligible Judge may make declaration if satisfied members of particular organisation "associate for the purpose of organising, planning, facilitating, supporting or engaging in serious criminal activity", and that organisation "represents a risk to public safety and order" – Section 13(2) relevantly provided that eligible Judge not required to provide "any grounds or reasons" for making declaration – Part 3 of Act empowered Supreme Court to make, on application by Commissioner, control order against member of particular "declared organisation" – Whether function conferred by Act upon eligible Judge to make declaration without requirement to provide grounds or reasons repugnant to or incompatible with institutional integrity of Supreme Court – Whether substantial impairment of institutional integrity of Supreme Court.

Plaintiff M13-2011 v Minister for Immigration and Citizenship [2011] HCA 23

Immigration – Refugees – Well-founded fear of persecution – Relocation – Plaintiff applied for and delegate of defendant refused to grant Protection (Class XA) visa – Delegate found plaintiff's fear not well-founded due to possibility of relocation within country of residence – Delegate made no finding of where plaintiff had been resident or to where plaintiff could relocate – Delegate did not consider whether relocation was reasonable or practicable for plaintiff – Whether delegate required to consider particular circumstances of plaintiff and impact upon plaintiff of relocation.

Practice and procedure – High Court of Australia – Original jurisdiction – Extension of time for commencing proceeding – Plaintiff sought writ of certiorari to quash decision of delegate of defendant – Proceeding commenced outside period prescribed by s 486A(1) of Migration Act 1958 (Cth) and r 25.06.1 of High Court Rules 2004 – Section 486A(2) of Act allowed extension of time where "necessary in the interests of the administration of justice" – Whether time for commencing proceeding should be extended.

Maurice Blackburn Cashman v Brown [2011] HCA 22

Torts – Negligence – Applicability and effect of legislation – Plaintiff alleged she had suffered injury including psychiatric injury as result of employer's negligence – Plaintiff made claim against employer pursuant to s 98C of Accident Compensation Act 1985 (Vic) ("Act") for compensation for non-economic loss – Pursuant to s 104B(9) of Act, Victorian WorkCover Authority referred questions to Medical Panel about extent of plaintiff's impairment – As result of Medical Panel finding, plaintiff deemed to have a "serious injury" for purposes of Act – As entitled under s 134AB(2) of Act, plaintiff commenced common law proceedings against employer for damages – Section 68(4) of Act provided that "[f]or the purposes of determining any question or matter", opinion of Medical Panel was to be applied by "any court, body or person" – In pleadings, employer denied plaintiff had suffered injury, loss and damage – Whether employer precluded by operation of Act from making that and other contentions in evidence or argument – Whether employer so precluded as a matter of issue estoppel.

Dasreef Pty Ltd v Hawchar [2011] HCA 21

Evidence – Admissibility – Opinion evidence – Section 79(1) of Evidence Act 1995 (NSW) provided that rule excluding evidence of opinion did not apply where "a person has specialised knowledge based on the person's training, study or experience" and person's opinion "wholly or substantially based on that knowledge" – Respondent sued appellant in Dust Diseases Tribunal of New South Wales – Respondent claimed he was negligently exposed to unsafe levels of silica while working for appellant – Witness gave evidence about approximate level of respirable silica to which respondent may have been exposed – Opinion treated as admissible to found calculation of numerical or quantitative level of exposure to respirable silica – Whether opinion admissible for that purpose – Requirements for admissibility.

Procedure – Specialist tribunal – Dust Diseases Tribunal of New South Wales – Ability of judge constituting Tribunal to draw on experience as member of specialist tribunal when making findings of fact – Section 25 of Dust Diseases Tribunal Act 1989 (NSW) required Tribunal to apply rules of evidence – Section 25B provided exception subject to various requirements – Trial judge drew on "experience" that silicosis usually caused by very high levels of silica exposure in concluding that respondent's silicosis caused by exposure to silica – Section 25B neither invoked nor complied with – Whether trial judge entitled to draw on "experience" in making finding of fact.

Procedure – Objection to admissibility of evidence – Evidence taken on voir dire – Trial judge did not rule on objection at conclusion of voir dire – Desirability of ruling on objection to admissibility as soon as possible.

White v Director of Public Prosecutions (WA) [2011] HCA 20

Criminal law – Procedure – Confiscation of proceeds of crime and related matters – Forfeiture and confiscation of property – Section 22 of Criminal Property Confiscation Act 2000 (WA) ("Act") relevantly required court to make crime-used property substitution declaration where crime-used property not available for confiscation because offender did not own, and did not have effective control of, property and more likely than not that offender made criminal use of crime-used property – Section 147 of Act provided offender makes criminal use of property if, alone or with anyone else, offender used or intended to use property in way that brings property within definition of crime-used property – Section 146(1)(c) provided property "crime-used" if any act or omission done, omitted to be done or facilitated in or on property in connection with commission of confiscation offence – Where DPP applied for crime-used property substitution declaration against appellant – Where not disputed that premises leased by appellant "crime-used" within s 146(1)(c) of Act – Whether definition of "criminal use" in s 147 of Act encompassed conduct within definition of "crime-used" in s 146(1)(c) of Act.

Jemena Gas Networks (NSW) Limited v Mine Subsidence Board [2011] HCA 19

Mining – Compensation – Section 12A(1)(b) of Mine Subsidence Compensation Act 1961 (NSW) allowed claims by owners of improvements for payment from Mine Subsidence Compensation Fund ("Fund") for proper and necessary expense incurred or proposed in preventing or mitigating damage that, in opinion of Mine Subsidence Board, owner "could reasonably have anticipated would otherwise have arisen, or could reasonably anticipate would otherwise arise, from a subsidence that has taken place" – Appellant made claim for costs of preventative and mitigatory works performed on pipeline after receiving expert advice that such works would be necessary as result of certain underground longwall mining – Whether appellant entitled to compensation from Fund under s 12A(1)(b) – Whether entitled to compensation only if subsidence occurred before expense incurred in preventing or mitigating damage – Whether "from a subsidence that has taken place" in s 12A(1)(b) refers to actual past occurrence or hypothetical future occurrence of subsidence.

Australian Securities and Investments Commission v Lanepoint Enterprises Pty Ltd (Receivers and Managers Appointed) [2011] HCA 18

Corporations law – Winding up in insolvency – Application for winding up by Australian Securities and Investments Commission – Where respondent presumed insolvent under s 459C(2)(c) of Corporations Act 2001 (Cth) ("Act") – Where principle applying under former companies legislation that company will not be wound up where debt subject of bona fide dispute on substantial ground – Whether principle applicable to Act in light of presumption of insolvency – Whether respondent solvent – Where primary judge did not accept respondent's explanation for alterations to accounts and no further evidence relevant to solvency could be identified by respondent – Whether primary judge's exercise of discretion miscarried in refusing to dismiss or stay proceedings – Whether necessary to join other parties.

Commissioner of Taxation v BHP Billiton Limited; Commissioner of Taxation v BHP Billiton Petroleum (North West Shelf) Pty Ltd; Commissioner of Taxation v The Broken Hill Proprietary Company Pty Ltd; Commissioner of Taxation v BHP Billiton Minerals Pty Ltd [2011] HCA 17

Income tax – Allowable deductions – Funds advanced for construction of plant and facilities – Div 243 of Income Tax Assessment Act 1997 (Cth) ("Act") required taxpayer to include additional amount in assessable income at termination of limited recourse debt arrangement if limited recourse debt used to finance or refinance expenditure and certain other criteria met – "Limited recourse debt" relevantly defined in s 243-20(2) of Act as debt where creditor's rights against debtor in event of default capable of being limited to rights in relation to financed property or property provided as security for debt, having regard to various factors – Wholly-owned subsidiary ("BHPDRI") of parent company ("BHPB") partly financed capital expenditure for processing plant with monies borrowed from other wholly-owned subsidiary ("Finance") – Finance wrote off balance of loan as irrecoverable – BHPDRI and BHPB claimed capital allowance deductions for project expenditure – Appellant applied Div 243 of Act to reduce deductions – Whether loan from Finance to BHPDRI "limited recourse debt" under s 243-20(2) of Act – Whether BHPDRI and Finance dealing at arm's length – Meaning of "capable of being limited" in s 243-20(2) of Act.

May 2011

Insight Vacations Pty Ltd v Young [2011] HCA 16

Trade practices – Conditions and warranties in consumer transactions – Implied warranties – Limitation or preclusion of liability for breach of implied warranty – Section 74(1) of Trade Practices Act 1974 (Cth) ("TPA") provided that in every contract for supply by corporation of services there was an implied warranty that services will be rendered with due care and skill – Section 74(2A) of TPA provided that, where implied warranty breached and law of State was proper law of contract, that State law applied to limit or preclude liability for breach of implied warranty in same way as for breach of another term of contract – Section 5N(1) of Civil Liability Act 2002 (NSW) ("Civil Liability Act") provided that term of contract for supply of recreation services may exclude, restrict or modify liability for breach of implied warranty – Appellant and respondent entered contract for supply by appellant to respondent of tourism services in Europe – Proper law of contract was law of New South Wales – Contract contained clause exempting appellant from liability for claims arising from accident where passenger occupied motor coach seat fitted with safety belt if safety belt not being worn – While travelling by coach respondent left seat to retrieve item from overhead shelf – Coach braked suddenly causing injury to respondent – Respondent claimed damages for breach of implied warranty by appellant – Whether s 74(2A) of TPA picked up and applied State laws as surrogate federal laws – Whether s 74(2A) of TPA picked up and applied s 5N of Civil Liability Act – Whether s 5N a law that applies to limit or preclude liability for breach of contract.

Negligence – Civil Liability Act – Whether provision of transport services in the course of tourism constitutes "recreation services" for purposes of s 5N.
Springfield Land Corporation (No 2) Pty Ltd v Queensland [2011] HCA 15

Real property – Compulsory acquisition – Compensation – Assessment – Section 25(2) of Transport Planning and Coordination Act 1994 (Q) empowered Chief Executive of Department of Main Roads ("Department") to acquire property "for the purposes of transport" – Section 20(3) of Acquisition of Land Act 1967 (Q) ("Acquisition Act") required that, in assessing compensation for acquisition, there be considered any enhancement of value of land adjoining acquired land "by the carrying out of the works or purpose for which the land is taken" – Appellants entered agreement to transfer certain land ("Transfer Land") to respondents for amalgamation with land held by Department in return for payment of compensation set in accordance with Acquisition Act – Nature of purpose for which land is acquired – Whether purpose for which Transfer Land was acquired would enhance value of appellants' adjoining land.

Braysich v The Queen [2011] HCA 14

Criminal law – Evidence – Burden of proof – Defences – Directions to jury – Appellant charged with creating a false or misleading appearance of active trading in securities – Appellant deemed to have created false or misleading appearance of active trading if proved to have caused a sale of securities where, to his knowledge, there was no change in beneficial ownership of securities – Section creating offence included a defence to prove that the purpose or purposes of the trades was not or did not include purpose of creating a false or misleading appearance of active trading ("proscribed purpose") – Where appellant did not give direct evidence of whether subjective purpose or purposes included proscribed purpose – Trial judge ruled defence not raised and withheld defence from jury – Whether character evidence as to honesty and other evidence in defence case sufficient to require defence to be left to jury – Whether, taking evidence at its highest, jury could conclude on balance of probabilities that appellant lacked proscribed purpose.

Corporations – Financial services and markets – Market misconduct and other prohibited conduct – False trading and market rigging.

SKA v The Queen [2011] HCA 13

Criminal law – Appeal – Appeal on ground jury verdict unreasonable, or cannot be supported, having regard to the evidence – Application of test in M v The Queen [1994] HCA 63; (1994) 181 CLR 487 – Whether Court of Criminal Appeal made independent assessment of evidence.

Criminal law – Appeal – Video evidence – Where Court of Criminal Appeal relied on transcript of evidence – Whether sufficient to rely on transcript of evidence.

Criminal law – Appeal – Trial judge's opinion – Where trial judge considered a jury acting reasonably could not have been satisfied beyond reasonable doubt of accused's guilt – Whether regard should be had to trial judge's opinion.

Roach v The Queen [2011] HCA 12

Criminal law – Evidence – Propensity evidence – Admissibility and relevance – Where appellant charged with assault occasioning bodily harm – Where trial judge admitted evidence of other assaults by appellant upon complainant during their relationship pursuant to s 132B of Evidence Act 1977 (Q) ("Act") making admissible relevant evidence of history of domestic relationship – Where s 130 of Act preserved trial judge's discretion to exclude evidence where admission would be unfair to accused – Whether rule in Pfennig v The Queen [1995] HCA 7; [1995] HCA 7; (1995) 182 CLR 461 to be applied in determining admissibility under s 132B or exercising discretion under s 130 – If evidence admitted, whether jury ought to have been directed they could not rely upon evidence unless satisfied of its truth beyond reasonable doubt.

Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11

Negligence – Duty of care – Appellant injured while using high-pressure vacuum hose – Injury occurred after hose passed to appellant – Supplier of hose also directed and supervised appellant – Concession by first respondent of duty of care made in court below – Whether duty of care was dependent on increased risk.

Negligence – Breach – Supplier of hose failed to install break box and failed to issue instructions not to pass hose while power was on – Relevance of subsequent changes to safety systems – Whether changes inordinately expensive or disadvantageous.

Negligence – Causation – Whether evidence as to precisely how injury occurred is necessary before causation can be found – Relevance of ordinary human experience – Relevance of agreement on quantum of damages.

Evidence – Implied admission or circumstantial evidence permitting adverse inference – Trial judge concluded that appellant had withheld evidence in examination-in-chief – Whether trial judge erred in failing to provide reasons for that conclusion – Whether trial judge erred in failing to provide appellant with opportunity to respond to criticism.

April 2011

Lacey v Attorney-General of Queensland [2011] HCA 10

Criminal law – Appeal – Appeal against sentence – Appeal by Crown – Where s 669A(1) of Criminal Code (Q) permitted appeal by Attorney-General against sentence and provided that appellate court "may in its unfettered discretion vary the sentence and impose such sentence as to the Court seems proper" – Where appellate court increased sentence without identifying any error by sentencing judge – Whether Crown must demonstrate error by sentencing judge before discretion to vary sentence enlivened.

Miller v Miller [2011] HCA 9

Negligence – Duty of care – Illegality – Plaintiff and defendant illegally using stolen motor vehicle in contravention of s 371A of The Criminal Code (WA) ("Code") – Plaintiff twice asked defendant to be let out of vehicle – Requests not complied with – Whether plaintiff can recover damages for injuries sustained as result of defendant's negligent driving of vehicle – Whether defendant owed duty of care to plaintiff – Whether statutory purpose of s 371A of Code incongruous with duty of care between joint illegal users of vehicle – Whether plaintiff's requests sufficient to effect withdrawal from joint illegal enterprise – Whether reasonable steps available to plaintiff to prevent commission of offence.

March 2011

Edwards v Santos Ltd [2011] HCA 8

Practice and procedure – Federal Court of Australia – Summary judgment – Applications by defendants to dismiss proceedings summarily under s 31A(2) of Federal Court of Australia Act 1976 (Cth) – Plaintiffs "registered native title claimant" under s 253 of Native Title Act 1993 (Cth) ("NTA") in respect of certain land – Plaintiffs and first and third defendants negotiating Indigenous Land Use Agreement ("ILUA") under NTA that included land first and third defendants claimed was encumbered by "Authority to Prospect" ("ATP") granted by second defendant under Petroleum Act 1923 (Q) – ATP entitled first and third defendants to apply to Minister for grant of lease of encumbered land for purpose of petroleum exploration – Plaintiffs sought declarations that grant of lease to first and third defendants would not be valid and any lease granted would not be a "pre-existing right-based act" within meaning of s 24IB of NTA – Whether plaintiffs have sufficient interest for grant of declaratory and injunctive relief – Whether questions raised by plaintiffs hypothetical – Whether plaintiffs seeking advisory opinion.

Practice and procedure – Federal Court of Australia – Jurisdiction – Section 213(2) of NTA conferred jurisdiction on Federal Court with respect to "matters arising under" NTA – Where determination of whether lease would be valid and whether lease would be a pre-existing right-based act may affect ILUA negotiations – Whether negotiation of ILUA a matter arising under NTA.

Practice and procedure – High Court – Original jurisdiction – Costs – Application pursuant to s 75(v) of Constitution for writs directed to Federal Court to quash orders of that Court – Section 26 of Judiciary Act 1903 (Cth) empowers High Court to award costs in "all matters brought before the Court" – Section 32 empowers High Court in exercise of original jurisdiction to grant all such remedies as parties are entitled to "so that as far as possible all matters in controversy between the parties" may be "completely and finally determined" – Where High Court quashes orders of Federal Court – Whether High Court may make costs order in place of orders quashed.

Stubley v Western Australia [2011] HCA 7

Criminal law – Evidence – Admissibility and relevance – Propensity evidence – Evidence of uncharged acts – Appellant former psychiatrist charged with offences relating to sexual misconduct with two former patients – Evidence of sexual misconduct with three former patients adduced at trial – Whether trial judge erred in ruling evidence of uncharged acts had significant probative value.

Criminal law – Evidence – Admissions – Appellant conceded having consensual sexual activity with both complainants – Whether concession constituted admission for the purposes of s 32 of Evidence Act 1906 (WA) – Whether concession rendered consent the only live issue at trial.

In the matter of an application by Graham Freemantle for leave to issue a proceeding[2011] HCA 6

High Court – Practice and procedure – Leave to issue proceeding – No question arises differing in any material respect from questions arising in another application – Applicant adopts submissions made in that other application – Leave refused in that other application.

In the matter of an application by Andrew Green for leave to issue a proceeding[2011] HCA 5

High Court – Practice and procedure – Leave to issue proceeding – Application for order to show cause against Federal Court sitting as Court of Disputed Returns – Applicant's electoral petition dismissed by Court of Disputed Returns for failure to sufficiently set out facts relied upon to invalidate election as required by Commonwealth Electoral Act 1918 (Cth) ("Act"), ss 355(a) and 355(aa) – Whether application to show cause raises "real question to be determined".

Administrative law – Electoral law – Electoral petitions – Applicant's electoral petition alleged contraventions of ss 184(1), 326(1)(c) and 327(1) of Act and error by Divisional Returning Officer invalidated election – Whether conclusion of Court of Disputed Returns that electoral petition does not sufficiently set out facts relied upon to invalidate election as required by ss 355(a) and 355(aa) of Act attended by doubt

Constitutional law (Cth) – Section 368 of Act provides that decisions of Court of Disputed Returns shall not be questioned in any way – Applicant contends s 368 of Act invalid – Whether question of validity arises.

Hogan v Hinch [2011] HCA 4

Constitutional law (Cth) – Judicial power of Commonwealth – Constitution, Ch III – Institutional integrity of State courts vested with federal jurisdiction – Section 42(1) of Serious Sex Offenders Monitoring Act 2005 (Vic) ("Act") allowed court to make "suppression order" preventing publication of evidence given, contents of documents adduced or information that might enable identification of offender in proceedings under Act, if court satisfied it is "in the public interest" to make order – Section 42(3) made publishing material in contravention of suppression order an offence – Defendant charged with publishing material identifying offenders in proceedings subject to suppression orders – Whether power conferred by s 42(1) impermissibly diminishes institutional integrity of State courts – Whether and to what extent there exists implication derived from Ch III that State and federal courts must be open to public and carry out activities in public.

Constitutional law (Cth) – Implied freedom of political communication – Whether s 42 of Act impermissibly burdens implied freedom of political communication – Whether communication by defendant was communication about government or political matters – Whether implied freedom limited to communications about government or political matters at Commonwealth level – Whether s 42 reasonably appropriate and adapted to serve legitimate end in manner compatible with maintenance of representative and responsible government.

Statutory interpretation – Principle of legality – Charter of Human Rights and Responsibilities Act 2006 (Vic) ("Charter") – Interpretation of s 42 of Act in manner compatible with civil and political rights in Charter.

Marcolongo v Chen [2011] HCA 3

Real property – Conveyancing – Conveyancing Act 1919 (NSW), s 37A – Voluntary alienation to defraud creditors – Appellant sought to set aside registered transfer of land from second respondent to first respondent – Whether intent to defraud creditors satisfied by proof of "actual" or "predominantly" fraudulent intent – Whether satisfied by proof that transfer would "delay, hinder or defraud" creditors – Whether intent may be inferred where transfer is voluntary.

February 2011

British American Tobacco Australia Services Limited v Laurie [2011] HCA 2

Courts and judges – Bias – Reasonable apprehension of bias by reason of pre-judgment – Where judge previously made finding on same issue in unrelated interlocutory proceeding – Knowledge and characteristics to be attributed to fair-minded lay observer – Whether fair-minded lay observer taken to understand rules of evidence and procedure – Whether later statements of judge in recusal application relevant to fair-minded lay observer's assessment – Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288.

Minister for Immigration & Citizenship v Szgur 2011 HCA 1

Immigration – Refugees – Review by Refugee Review Tribunal ("RRT") –Where visa applicant's migration agent asked RRT to arrange "independent assessment of [applicant's] mental health, if required" – Section 427(1)(d) Migration Act 1958 (Cth) gave RRT power to require Secretary to arrange for making of medical examination – Whether duty on RRT to consider exercising power under s 427(1)(d) – Whether general duty to inquire.

January 2011

Plaintiff M168/10 v The Commonwealth; Plaintiff M169/10 v Minister for Immigration and Citizenship; Plaintiff M170/10 v The Commonwealth; Plaintiff M171/10 v Minister for Immigration and Citizenship; Plaintiff M172/10 v The Commonwealth; Plaintiff M173/10 v Minister for Immigration and Citizenship; Plaintiff M174/10 v The Commonwealth; Plaintiff M175/10 v Minister for Immigration and Citizenship [2011] HCA 25

Injunctions – Interlocutory injunctions – Migration – Detention under Migration Act 1958 (Cth) ("Act") – Plaintiffs arrived in Australian waters by boat and treated as unlawful non-citizens under Act – Plaintiffs detained on Christmas Island and transported to mainland to be placed in immigration detention – Plaintiffs sought interlocutory injunctions restraining detention or effecting release, claiming that detention on Christmas Island and subsequent detention on mainland unlawful – Whether prima facie case that continuing detention of plaintiffs on mainland unlawful.