Graham v The Queen

The High Court has dismissed an appeal against the Queensland Court of Appeal on the effect of jury misdirections in the context of self-defence. The appellant shot and wounded a rival bike gang member, Teamo, and a bystander at a shopping centre, after Teamo produced a flick knife. The appellant was convicted by the jury of attempted murder and of wounding the bystander with intent to wound Teamo. The appellant contended that Continue reading

Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd

The High Court has allowed an appeal against a decision of the Victorian Court of Appeal on collateral contracts and estoppel. Crown leased two premises to Cosmopolitan for five years on the understanding that Cosmopolitan would complete significant refurbishments and, allegedly, that in exchange for the refurbishment Cosmopolitan would receive an extension of the lease for another five years. After the leases expired, Crown did Continue reading

Betts v The Queen

The High Court has dismissed an appeal against a sentencing decision of the New South Wales Court of Criminal Appeal after it allowed an appeal against sentence because of errors in the characterisation of aggravating factors. The appellant was convicted of attempted murder and kidnapping following a murder-suicide attempt on his former partner, in which he repeatedly stabbed her over a prolonged period of time, and sentenced to 16 years imprisonment with a non-parole period of 11 years. Continue reading

Alqudsi v The Queen

The High Court has dismissed a motion on a cause removed from the New South Wales Supreme Court relating to constitutional requirements for trials in the context of a trial for terrorism recruitment offences. The applicant is charged with seven offences against s 7(1)(e) of the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth), which makes it an offence for a person to give money, goods or services to a person or body for the purpose of supporting or promoting the commission of an incursion into a foreign country to engage in hostilities (on which see also s 6 of the Act). Pursuant to s 132 of the Criminal Procedure Act 1986 (NSW), the applicant made a motion to be tried by a judge only. Section 80 of the Commonwealth Constitution, however, provides that trials on indictment for Commonwealth offences ‘shall be by jury’. Following an application by the Commonwealth Attorney-General, French CJ ordered that part of the cause be removed into the High Court to determine the following question:

Are ss 132(1) to (6) of the Criminal Procedure Act 1986 (NSW) incapable of being applied to the Applicant’s trial by s 68 of the Judiciary Act 1903 (Cth) because their application would be inconsistent with s 80 of the Constitution?

Continue reading

Hall v Hall

The High Court has dismissed an appeal from the Full Family Court on spousal maintenance and the meaning of support and ‘financial resources’ under the Family Law Act 1975 (Cth). In late 2013, the primary judge made an interim spousal maintenance order of approximately $10,000 per month pending the final determination of a property settlement and maintenance proceedings between the appellant wife and respondent husband, on the basis that the wife was ‘unable to support herself adequately’ as per s 72 of the Family Law Act. The recently deceased father of the wife had expressed a ‘wish’ that she be paid $150,000 per year Continue reading

Robinson Helicopter Co Inc v McDermott

The High Court has allowed an appeal against a decision of the Queensland Court of appeal on negligence and manufacturer’s liability for defective goods in the context of a helicopter crash. The first respondent was severely injured in 2004 when a helicopter manufactured by the appellant crashed due to a loose bolt in the helicopter’s flexplate. The respondents claimed that the maintenance manual provided by the appellants gave inadequate instructions on the method for checking the tightness of the bolts, contrary to the law of negligence and ss 75AD and AE of the Trade Practices Act 1974 (Cth). The trial judge found that the manual was adequate in requiring torque seals Continue reading

Bell Group NV (in liq) v Western Australia; WA Glendinning and Associates Pty Ltd v Western Australia; Maranoa Transport Pty Ltd (in liq) v Western Australia

The High Court has decided a constitutional matter on the validity of a state law, the Bell Group Companies (Finalisation of Matters and Distribution of Proceeds) Act 2015 (WA), which aimed at providing a legislative framework for the dissolution and administration of the property of the Bell Group Ltd (the Bell Act). Following the collapse of the Bell Group and a number of its subsidiaries (the WA Bell Companies), the Western Australian parliament enacted a law to collect the remaining property of each of these companies to be then transferred to and vested in a fund that was to be administered by a statutory authority (see [20]ff). The Commonwealth was a substantial creditor of several WA Bell Companies, including for pre-liquidation tax debts and post-liquidation liabilities. The Bell Act required the Authority to determine the property and liabilities of each Continue reading

Murphy v Electoral Commissioner

The High Court has decided a constitutional matter challenging the Commonwealth Parliament’s power to legislate to suspend the processing of claims for enrolments to vote and transfers of enrolments to vote from seven days after the issue of writs for an election. The plaintiffs argued that Rowe v Electoral Commissioner [2010] HCA 46, in which the Court held that Parliament could not close the rolls on the day the writs are issued, should be extended up to polling day (or, at least, more than the current seven day period), and that the current arrangements contravene the requirements contained in ss 7 and 24 of the Constitution. Central Continue reading

Day v Australian Electoral Officer for the State of South Australia; Madden v Australian Electoral Officer for the State of Tasmania

The High Court has dismissed a constitutional matter challenging changes to the ballot papers to be used in the election of Federal Senators. Recent amendments to the Electoral Act 1918 (Cth) allowed electors to vote ‘above the line’ on the Senate ballot paper by numbering at least six squares sequentially. The list of candidates marked ‘1’ will be allocated preferences in the order in which they appear, then followed by the list of candidates marked ‘2’, and so on. Continue reading

Military Rehabilitation and Compensation Commission v May

The High Court has allowed an appeal against a decision of the Full Federal Court on workers compensation and the meaning of ‘injury’ in the Safety, Rehabilitation and Compensation Act 1988 (Cth). The appellant, a former RAAF officer cadet, began to experience symptoms similar to vertigo that could not be diagnosed specifically, and which gradually arose after he received various vaccinations during the course of his employment. The FCAFC held that the Tribunal and a single Federal Court judge erred in concluding that the established definition of injury as a Continue reading

Badenach v Calvert

The High Court has allowed an appeal against a decision of the Supreme Court of Tasmania on the professional duties of lawyers in the context of a will dispute. The first appellant, a solicitor, prepared a will that was to pass all of the testator’s estate to the respondent. After the testator died it emerged that the appellant’s firm (the second appellant here) had prepared two wills in 1984, one of which included a bequest to an estranged daughter. The daughter successfully sued for a maintenance provision out of the estate and was awarded a significant portion of it plus legal costs. The respondent then Continue reading

Attwells v Jackson Lalic Lawyers Pty Ltd

The High Court has allowed an appeal against a decision of the New South Wales Court of Appeal on advocates immunity from negligence actions in the context of out of court settlements. ANZ Bank sought to enforce a guarantee of approximately $1.75 million on a loan taken out by the appellants. An employee of the respondent law firm allegedly negligently advised the appellants to settle the claim and also accept liability for a larger amount (approximately $3.4 million) because it ‘would not make any difference’ whether they defaulted for $3.4 million or the lesser sum. The Court of Appeal held that the trial judge should not have refused the appellants’ application to first determine Continue reading

Nguyen v The Queen

The High Court has dismissed an appeal against a sentencing decision of the New South Wales Court of Criminal Appeal relating to excessive self-defence. The appellant, a drug addict and dealer, was convicted of manslaughter and wounding with intent to cause grievous bodily harm after a shootout with plain clothes police, in which the appellant wounded one office, and another was accidentally shot by the injured officer and mortally wounded. The NSWCCA held that the trial judge erred in finding that the appellant’s mistaken belief that the police officers were robbers was a mitigating factor in sentencing, because that belief was already implicit in the conviction for manslaughter, rather than murder, and in finding that sentences should be served concurrently because each involved distinct consequences and criminality. The NSWCCA raised the sentence from 9 years and 6 months to 16 years Continue reading

Coverdale v West Coast Council

The High Court has dismissed an appeal from the Full Court of the Supreme Court of Tasmania in a matter relating to the meaning of ‘land’ in the context of local government land valuations. West Coast Council sought a declaration that the Valuation of Land Act 2001 (Tas), the Local Government Act 1993 (Tas) and the Marine Farming Planning Act 1995 (Tas) required the Valuer-General to issue a valuation for several areas in Macquarie Harbour that are subject to marine leases, which would allow the Council to levy rates. At trial, Blow CJ held that while the areas would constitute ‘land’ under the Crown Lands Act 1976 (Tas), for the purposes of the LGA they were not liable to be rated (see at [24]). A majority of Continue reading

IMM v The Queen

The High Court has allowed an appeal against a decision of the Northern Territory Court of Criminal Appeal on complaint and tendency evidence and probative value in the context of child sexual assault. The appellant was convicted of sexually abusing his step-grandchild on three occasions. The NTCCA upheld the trial judge’s decision to admit evidence from the complainant’s friend and relatives, to direct the jury that if they were satisfied of that complaint evidence they could use it as ‘some evidence that an offence did occur’, and to admit tendency evidence from the complainant about the appellant’s conduct during a massage that indicated his sexual interest in her. Before the High Court the appellant argued that the NTCCA Continue reading

Mok v DPP (NSW)

The High Court has dismissed an appeal against a decision of the New South Wales Court of Appeal on applicable jurisdiction in the context of a cross-State prison transfer escape. The appellant briefly escaped custody in the course of being transferred from Victoria to New South Wales at Tullamarine Airport, a ‘Commonwealth place’. His transfer took place under a federal law, the Service and Execution of Process Act 1992 (Cth), s 89(4) of which states that the law in force in the place of issue of a warrant relating to the liability of a Continue reading

Fischer v Nemeske Pty Ltd

The High Court has dismissed an appeal against a decision of the New South Wales Court of Appeal on directors powers in the context of family trust dispute. In 1994, the directors of Nemeske Pty Ltd, a trustee company, resolved to make a final distribution of the trust monies to the beneficiaries, Mr and Mrs Nemes. That resolution was purportedly made pursuant to cl 4(b) of the trust deed, which provided that the trustee may ‘advance or raise any part or parts of the whole of the capital or income of the Trust Funds and to pay or to apply the same as the Trustee shall think fit for the maintenance, education, advancement in life or Continue reading

Zaburoni v The Queen

The High Court has allowed an appeal against a decision of the Queensland Court of Appeal on the test for intent and foresight of consequences in the context of HIV transmission. After the appellant was diagnosed with HIV in April 1998, he commenced a sexual relationship with the complainant in December 2006 involving unprotected sex, and in 2009, after the relationship had ended, she was diagnosed with HIV. Throughout this time, the appellant denied on multiple occasions that he had HIV, claimed that he only knew about Continue reading

Moreton Bay Regional Council v Mekpine Pty Ltd

The High Court has allowed an appeal against a decision of the Queensland Court of Appeal on compensation for resumed land in the context of commercial tenancies. In March 1999 the Mekpine entered into a retail shop lease in respect of Lot 6 within a retail shopping centre, which, after an expansion of the area in 2007, led to amalgamation of Lot 6 with Lot 1 and newly named ‘New Amalgamated Lot 1’. In 2008 the Council resumed part of New Amalgamated Lot 1, which had previously been part of Lot 1. Mekpine then brought a claim for Continue reading

R v Independent Broad-Based Anti-Corruption Commissioner

The High Court has dismissed an appeal against a decision of the Victorian Court of Appeal on the powers of Victoria’s anti-corruption commission. IBAC sought to hold a public examination of the appellants, who are two police officers accused of assaulting a woman in custody and who face criminal charges in relation to that incident, pursuant to s 115 of the Independent Broad-Based Anti-Corruption Commission Act 2011 (Vic). The VSCA upheld the Continue reading

Victoria v Tatts Group Ltd

The High Court has allowed an appeal against a decision of the Victorian Court of Appeal relating to state contracts on gaming operator’s licences in Victoria. After gaming machines were legalised in Victoria in 1991, the State created a duopoly between TAB (then a statutory corporation) and the trustees of an estate which would later become Tatts Group Ltd by issuing them with gaming licences. After TAB was privatised (becoming Tabcorp) and listed on the ASX, Victoria granted it a statutory right to a payment if new licences were granted after the expiry of its licence. Similar arrangements were made with the trustees, Continue reading

The Queen v GW

The High Court has allowed an appeal against a decision of the ACT Court of Appeal on unsworn evidence given by children. GW was convicted of several counts of committing acts of indecency upon or in the presence of R and H, his children. In a pre-trial hearing, pursuant to s 13 of the Evidence Act 2011 (ACT), Burns J ruled that R, a six year old, was not competent to give sworn evidence on the basis that while she said she understood the difference between truth and falsehood and the obligation to tell the truth, Burns J was ‘not satisfied’ that she had the capacity to understand that giving evidence involves the obligation to give truthful evidence. Defence counsel did not make any objection to Burns J’s statement or decision at the pre-trial stage, but requested at the trial stage before Penfold J that her Honour advise the jury that R was not giving sworn evidence. Continue reading

Tabcorp Holdings Ltd v Victoria

The High Court has dismissed an appeal against a decision of the Victorian Court of Appeal relating to state contracts on gaming operator’s licences in Victoria. After gaming machines were legalised in Victoria in 1991, the State created a duopoly between TAB (then a statutory corporation) and the trustees of an estate which would later become Tatts Group Ltd by issuing them with gaming licences. After TAB was privatised (becoming Tabcorp) and listed on the ASX, Victoria granted it a statutory right to a payment Continue reading

Plaintiff M68/2015 v Minister for Immigration and Border Protection

The High Court has decided a constitutional matter on the detention of asylum seekers in the Nauru Regional Processing Centre, and upheld the validity of the scheme (see below table for the full order). The plaintiff, a former detainee at the Nauru RPC who is set to be returned to Nauru, contends that the contractual arrangements between the Commonwealth government and Transfield Services (Australia) Pty Ltd relating to that detention are not supported by a valid statutory provision — here, s 198AHA of the Migration Act 1958 (Cth) which relates to regional Continue reading

Wei v Minister for Immigration and Border Protection

The High Court has decided a special case challenge the Minister for Immigration and Border Protection’s decision to cancel a international student visa. The plaintiff completed a tertiary program at Macquarie University while on a student visa. The University, however, allegedly did not issue a confirmation of enrolment as required by s 19 of the Education Services for Overseas Students Act 2000 (Cth) until after the completion of the course, and the plaintiff’s enrolment was not recorded on the relevant system at the Department. Having recognised apparent grounds for cancelling the visa due to non-enrolment, the Minister’s delegate Continue reading

Plaintiff M64/2015 v Minister for Immigration and Border Protection

The High Court has decided a special case relating to a decision by the Minister for Immigration and Border Protection to deny a refugee and humanitarian visa to the family of an unaccompanied Afghan minor who was granted a protection visa in August 2011. The Minister’s delegate refused the ‘split family’ application on the basis that the delegate was not satisfied that there were compelling reasons for giving special consideration to granting the visa (as required by cl 202.222(2) of the Migration Regulations), and noted that only a small number of applicants could be successful under the government’s Special Humanitarian Programme and the ‘processing priorities’ of the policies associated with that programme. The plaintiff sought to Continue reading

Commissioner of Taxation v Australian Building Systems Pty Ltd (in liq); Commissioner of Taxation v Muller

The High Court has dismissed two appeals against a decision of the Full Federal Court on liquidators’ obligations to retain from the proceeds of sale an amount sufficient to pay tax on the sale of a property. The liquidators of ABS sold a property on which ABS made a $1.12m capital gain, which became part of ABS’s assessable income for that year. That assessment would be issued to ABS not the liquidators in their capacity as liquidators. The central issue was whether s 254(1)(d) of the Income Tax Assessment Act 1936 (Cth), which relates to Continue reading

Commonwealth v Director, Fair Work Building Industry Inspectorate; Construction, Forestry, Mining and Energy Union v Director, Fair Work Building Industry Inspectorate

The High Court has allowed two appeals against a decision of the Full Federal Court on civil penalty provision ranges and the effect of the High Court’s decision early last year in Barbaro v The Queen [2014] HCA 2, in which the Court held that prosecution submissions on appropriate sentencing ranges are merely opinions and not submissions of law. Following unlawful industrial action by the second and third respondent unions, the first respondent, the building industry employment regulator, sought Continue reading

Allen v Chadwick

The High Court has allowed in part an appeal against two decisions of the Full Court of the Supreme Court of South Australia relating to the tort of negligence and statutory reductions for contributory negligence. Chadwick suffered catastrophic injuries after being thrown from a car driven by her partner, Allen, who had a blood alcohol reading of 0.22. The Full Court allowed an appeal against the trial judge’s decision to apply a 25 per cent reduction in damages Continue reading

Macoun v Commissioner of Taxation

The High Court has dismissed an appeal against a decision of the Full Federal Court on income tax on pensions from foreign retirement plans. The appellant worked as a sanitary engineer for the International Bank for Reconstruction and Development, a sub-organisation of the World Bank, during which time he participated in the World Bank’s Staff Retirement Plan. Following his retirement, he received monthly payments from this plan which he initially declared as assessable income for tax purposes, though he later amended those assessments to exclude them. The Administrative Appeals Tribunal set aside the Commissioner’s decision Continue reading

Firebird Global Master Fund II Ltd v Republic of Nauru

The High Court has substantively dismissed an appeal against the decision of the NSWCA relating to the recognition and enforcement of foreign judgments and sovereign immunities. Firebird sought enforcement by the NSWCA of a Tokyo District Court judgment for ¥1.3 billion relating to Nauru’s refusal to honour its obligations as a guarantor of bonds issued through the Republic of Nauru Finance Corporation, most of which are held by Firebird, under the Foreign Judgments Act 1991 (Cth). The NSWCA declined to Continue reading

Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd

The High Court has allowed an appeal from a decision of the Full Federal Court on employee and independent contractor indicia. The Fair Work Ombudsman applied for a penalty order against Quest South Perth for allegedly making a false statement that two of its housekeeping employees were independent contractors, contrary to s 357(1) of the Fair Work Act 2009 (Cth). The Full Federal Court held that while the housekeepers remained employees no penalty was payable because the misrepresentation was about the existence of a contract Continue reading

North Australian Aboriginal Justice Agency Ltd v Northern Territory

The High Court has decided a matter relating to the constitutionality of the Northern Territory’s new police arrest and detention powers, holding by majority that the powers are not invalid. Division 4AA of the Police Administration Act (NT), inserted into the Act in December 2014, empowers a police officer to arrest a person without a warrant where the office believes, on reasonable grounds, that the person has committed, was committing, or about to commit an ‘infringement notice offence’: 35 different offences fall under this definition, many of which are minor or public order type offences. A person can be held for four hours (or longer if the officer believes the person is intoxicated) after which time they may be released unconditionally, released with an issue of an infringement notice, Continue reading

Minister for Immigration and Border Protection v WZARH

The High Court has dismissed an appeal from a decision of the Full Federal Court relating to procedural fairness and merits reviewer procedures and replacements in the assessment of protection visas. WZARH, a Sri Lankan Tamil, entered Australia by boat in November 2010 and was classed as an offshore entry person. Following an adverse refugee status determination, WZARH sought independent merits review of the decision. A recording and transcript of an interview Continue reading

R v Pham

The High Court has allowed an appeal against the decision of the Victorian Court of Appeal on manifestly excessive sentencing in the context of a drug importation offence. Pham pleaded guilty to importing a marketable quantity of heroin and was sentenced to eight years and six months with a non-parole period of six years. The Court of Appeal allowed Pham’s appeal against the sentence on the basis that the initial sentence was outside the range reasonable open to a Continue reading

R v Beckett

The High Court has allowed an appeal against the decision of the New South Wales Court of Appeal relating to perverting the course of justice and making false statements under oath. Beckett was committed for trial on indictment in the NSW District Court on a charge of perverting the course of justice (s 319 of the Crimes Act 1900 (NSW)) and on an alternative charge of making a false statement Continue reading

PT Bayan Resources TBK v BCBC Singapore Pte Ltd

The High Court has dismissed an appeal against a decision of the Court of Appeal of the Supreme Court of Western Australia regarding Mareva asset freezing orders and prospective foreign judgments and whether the WASC’s powers are inconsistent with the Foreign Judgments Act 1991 (Cth) by the operation of s 109 of the Australian Constitution. The appellant Continue reading

Wright Prospecting Pty Ltd v Mount Bruce Mining Pty Ltd; Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd

The High Court has decided an appeal and cross-appeal arising out of two decisions of the New South Wales Court of Appeal relating to mining royalty liabilities, finding in favour of Wright Prospecting in both matters. In 1970, Mount Bruce Mining (MBM) entered into an agreement with Hanwright (a partnership formed by Wright Prospecting Pty Ltd and Hancock Prospecting Pty Ltd) to purchase Continue reading

D’Arcy v Myriad Genetics Inc

The High Court has unanimously allowed an appeal from the Full Federal Court on the validity of a gene patent. The patent relates to a particular DNA or RNA sequence named BRCA1 that has been isolated (or removed) from its ordinary cellular environment and is an indicator of breast or ovarian cancer. Dismissing the appeal from the trial judge’s decision, the Full Federal Continue reading

Alcan Gove Pty Ltd v Zabic

The High Court has unanimously dismissed an appeal against the decision of the Court of Appeal of the Northern Territory on the tort of negligence in the context of asbestos exposure and statute barring. Zabic was exposed to asbestos dust during three years of working for Alcan, and was recently diagnosed with terminal mesothelioma. Zabic claimed common law damages Continue reading

Astrazeneca AB v Apotex Pty Ltd; Astrazeneca AB v Watson Pharma Pty Ltd; Astrazeneca AB v Ascent Pharma Pty Ltd

The High Court has unanimously dismissed an appeal from a decision of the Full Federal Court relating to novelty and the inventive step in s 7 of the Patents Act 1990 (Cth). Astrazeneca holds the patent relating to a method of treating high blood cholesterol using a compound called rosuvastatin, marketed under the drug name Crestor. The respondent drug companies produce and sell Continue reading

Tomlinson v Ramsey Food Processing Pty Ltd

The High Court has allowed an appeal against a decision of the New South Wales Court of Appeal relating to issue estoppel in the context of employment law. Tomlinson was injured while working at an abattoir operated by Ramsey Food. Tomlinson claims he was an employee of another company, Tempus Holdings Pty Ltd, during the time of the injury. Ramsey argued Continue reading

Ausnet Transmission Group Pty Ltd v Commissioner of Taxation

Miranda Stewart, ‘Tax and Power in the High Court: The Capital Cost of an Electricity Monopoly: Ausnet Transmission Group Pty Ltd v Federal Commissioner of Taxation‘ (26 November 2015).

The High Court has dismissed an appeal from a decision of the Full Federal Court on the deductability of imposts. The appellant company held an electricity transmission licence in Victoria. Pursuant to an Order of the Governor in Council made under s 163AA of the Electricity Industry Act 1993 (Vic), as a ‘holder of a licence’ and as part of its acquisition of another company under a privatisation scheme, it was required to pay a series of imposts to the State. The appellant claimed that the imposts were deductible Continue reading

Smith v The Queen

The High Court has unanimously dismissed an appeal from a decision of the Queensland Court of Appeal on procedural fairness and majority jury verdicts. The appellant was convicted of rape by a majority jury verdict of 11:1. After several hours of deliberation on the issue of whether the appellant had an honest and reasonable mistaken belief as to consent, the jury disclosed to the Court its voting pattern, which the trial judge Continue reading

Plaintiff B15a v Minister for Immigration and Border Protection

Kiefel J has dismissed an application made on behalf of two infants — the father of whom was an unauthorised maritime arrival under s 5(1) of the Migration Act 1958 (Cth) and the mother of whom had entered Australia via the mainland and was not a UMA — for an order requiring the Minister for Immigration and Border Protection to show cause why a writ of certiorari should not issue Continue reading

Queensland v Congoo

Jeremy Gans, ‘News: The High Court Splits Evenly Again’ (13 May 2015).

The High Court has dismissed an appeal from the decision of the Full Federal Court, in which the FCAFC held that military orders made during the Second World War did not extinguish native title rights.The Court split 3:3, which, due to s 23 of the Judiciary Act 1903 (Cth), means the FCAFC’s decision dismissing Queensland’s appeal stands. Continue reading

Lindsay v The Queen

The High Court has allowed an appeal from a decision of the South Australian Supreme Court relating to the provocation defence. The appellant was convicted of murdering Mr Negre who had made homosexual advances towards him, and was sentenced to life imprisonment. Lindsay’s primary line of defence was that it had not been proved beyond reasonable doubt that Continue reading

Cascade Coal Pty Ltd v New South Wales; Duncan v New South Wales; NuCoal Resources Ltd v New South Wales

The High Court has decided three related matters each challenging the constitutional validity of sch 6A of the Mining Act 1992 (NSW) on various bases. Following a finding by the Independent Commission Against Corruption that directors and shareholders of Cascade Coal Continue reading

Independent Commission against Corruption v Cunneen

A majority of the High Court has dismissed appeal from the decision of the NSWCA relating to the powers of the Independent Commission against Corruption (ICAC) under the Independent Commission against Corruption Act 1988 (NSW). Following a motor vehicle accident, the first and second respondents allegedly advised the third respondent to pretend Continue reading

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Queensland Rail Ltd

The High Court has decided a constitutional matter involving members of ten Queensland unions who were employed by Queensland Rail Ltd. Those unions had concluded two industrial relations agreements with Queensland Rail Ltd under Continue reading

CGU Insurance Ltd v Blakeley

The High Court has dismissed an appeal from a decision of the Victorian Court of Appeal on jurisdiction to make declarations sought by parties outside of a contract. The first respondents were appointed liquidators of the second respondent (Akron Roads) and later commenced proceedings against the remaining respondents for insolvent trading as directors of Akron Roads. One of those respondents, Crewe Sharp Pty Ltd, claimed indemnity to those claims under an insurance policy it had with the appellant. After the appellant denied liability, Continue reading

Plaintiff S297/2013 v Minister for Immigration and Border Protection; Plaintiff M150/2013 v Minister for Immigration and Border Protection

The High Court has issued a writ of peremptory mandamus commanding the Minister to grant the plaintiff a permanent protection visa. In June 2014, the High Court upheld a challenge to the validity of the Migration Amendment (Unauthorised Maritime Arrival) Regulation 2013 (Cth), known as the PPV Regulation, in two related matters. The Court held the Minister’s determinations in relation to Plaintiffs S297/2013 and M150/2013 were invalid and issued a writ of mandamus in each instance directing the Minister to consider and determine each visa application according to law. Continue reading

CPCF v Minister for Immigration and Border Protection

Jeremy Gans, ‘Sri Lankan Case Becomes Less Urgent’ (29 July 2014).

Jeremy Gans, ‘News: Progress in Two Major Upcoming Cases’ (25 July 2014).

Jeremy Gans, ‘News: Court Reportedly Issues Interim Injunction in Sri Lankan Asylum Matter’ (7 July 2014).

The High Court has decided a special case relating to the Government’s attempt to return up to 153 asylum seekers to Sri Lanka. On 7 July 2014 Crennan J issued an injunction to prevent Continue reading

Argos Pty Ltd v Minister for the Environment and Sustainable Development

The High Court has partly allowed an appeal from the ACT Court of Appeal on whether corporate appellants have standing to bring an application under the s 5(1) of the Administrative Decisions (Judicial Review) Act 1989 (ACT). Continue reading

Commissioner of Taxation v MBI Properties Pty Ltd

The High Court has unanimously allowed an appeal from a decision of the Full Federal Court on ‘increasing adjustments’ and the meaning of ‘supply’ under s 135-5 of the A New Tax System (Goods and Services Tax) Act 1999 (Cth). Continue reading

Kuczborski v Queensland

Jeremy Gans, ‘News: Qld Bikie Laws Challenge Set for Lengthy Hearing in September’ (30 June 2014).

The High Court has decided a special case on the constitutional validity of Queensland’s Vicious Lawless Association Disestablishment Act 2013 (Qld) and related provisions under various other law enforcement statutes dealing with restrictions on public association, licensing and clothing aimed at motorcycle clubs. Continue reading

Minister for Immigration and Border Protection v SZSCA

James C Hathaway, ‘The Conundrum of Concealment: Minister for Immigration and Border Protection v SZSCA‘ (9 November 2014) (reposted from Reflaw)

A majority of the High Court has dismissed the Minister for Immigration and Border Protection’s appeal against the decision of the Full Federal Court in SZSCA. SZSCA fled Afghanistan after the Taliban threatened to kill him in retaliation for working as a truck driver for various aid agencies. Continue reading

Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd

A 3:2 majority of the High Court has dismissed an appeal from a decision of the Full Federal Court relating to the dismissal of an employee engaged in industrial action who held a sign that read ‘No principles, SCABS, No guts’ which was deemed to be ‘offensive’ and contrary to BHP’s code of conduct. Continue reading

Brookfield Multiplex Ltd v The Owners — Strata Plan No 61288

Matthew Bell, Wayne Jocic and Rami Marginean, ‘Mind the Gaps! High Court Confirms Negligence Will Not Protect Economic Interests where Contractual Protection is Available’, 17 December 2014.

The High Court has unanimously allowed an appeal against the decision of the NSW Court of Appeal, in The Owners — Strata Plan No 61288 v Brookfield Australia Investments Ltd. Continue reading

Tajjour v State of New South Wales; Hawthorne v State of New South Wales; Forster v State of New South Wales

The High Court has held that s 93X of the Crimes Act 1900 (NSW) is not invalid. That section makes it an offence for a person to continue to ‘habitually consort’ with convicted offenders after receiving an ‘official warning’, either verbally or in writing, from a police officer. Continue reading

Commonwealth Bank of Australia v Barker

Adriana Orifici, ‘High Court to Examine Whether There is an Implied Term of Mutual Trust and Confidence in Australian Employment Contracts’ (28 January 2014).

The High Court has allowed an an appeal from the decision of the Full Federal Court which recognised the existence in Australian law of an implied term of mutual trust and confidence between employers and employees. Continue reading

Pollentine v Attorney-General (Qld)

The High Court has decided a special case and upheld the validity of s 18 of the Criminal Law Amendment Act 1945 (Qld), which relates to continued detention of child sex offenders after the expiry of sentence, ‘at her Majesty’s pleasure’, on the grounds that the ‘offender is incapable of exercising proper control over the offender’s sexual instincts’. Continue reading

FTZK v Minister for Immigration and Citizenship

The High Court has allowed an appeal against the decision of the Full Federal Court in FTZK. FTZK is an asylum seeker who was accused of involvement in a kidnapping-murder while he was in China, an accusation he claims was motivated by his religious practices. Continue reading

Williams v Commonwealth

Thomas Bland, ‘Williams [No 2] Symposium: Thomas Bland on the Plaintiff’s Standing and the Commonwealth’s Attempt to Re-Open Williams [No 1]‘ (25 June 2014).

Cheryl Saunders, ‘Williams [No 2] Symposium: Cheryl Saunders on the Executive Power of the Commonwealth after Williams [No 2]‘ (25 June 2014).

Simon Evans, ‘Williams [No 2] Symposium: Simon Evans on Benefits to Students’ (23 June 2014).

Graeme Hill, ‘Williams [No 2] Symposium: Graeme Hill on Narrowing the Issues’ (23 June 2014).

Jeremy Gans, ‘News: Chaplaincy Hearing Reaches Its Fourth Day’ (9 May 2014).

The High Court has decided the special case arising out of and brought by the same applicant in the recent landmark constitutional law decision, Williams v Commonwealth [2012] HCA 23, and has ruled that the SUQ Funding Agreement is not supported by the legislative or executive power of the Commonwealth.

Both the present challenge and Williams [No 1] revolved around the Commonwealth’s power to enter into an agreement to fund the public company Scripture Union Queensland’s (SUQ) delivery of chaplaincy services to the Darling Heights State Primary School (attended by Mr William’s children). In Williams [No 1], a majority of the Court held that the executive power of the Commonwealth could not support its entry into the agreement with SUQ in order to fund the chaplaincy program because the executive does not have a broad power to enter into contracts or spend public money without the support of legislation (absent another recognised source of power).

This challenge related to the new funding arrangement with SUQ for the renewed and renamed chaplaincy program, funded by a new series of appropriations acts (which also purportedly support the Commonwealth’s entry into the arrangement). Following the decision in Williams No 1, the Commonwealth Parliament inserted s 32B into the Financial Management and Accountability Act 1997 (Cth), which (in conjunction with associated regulations) purports to grant the Commonwealth a general power to make, vary or administer arrangements and grants, where those arrangements or grants are specified in regulations.

The stated case raised eight questions to be answered by the Full Court. The central issues are whether the Commonwealth’s entry into the SUQ funding agreement is authorised by various appropriation acts, and if not, whether s 32B (and its associated regulations) is wholly invalid as going beyond the ambit of the Commonwealth’s executive power, and if not, whether those provisions are supported by a head of legislative power in the Australian Constitution (specifically, ss 51(xxiiiA), 51(xx) or 51(xxxix), operating in conjunction with s 61).

The Court held that the scheme was not supported by s 51(xxiiiA) because the provision of chaplaincy services is not a ‘benefit’ within the meaning of s 51(xxiiiA) in the sense of material aid (as interpreted by the Court in British Medical Association v Commonwealth [1949] HCA 44 or Alexandra Private Geriatric Hospital Pty Ltd v Commonwealth [1987] HCA 6) directly made to students. Payments to be applied as wages to chaplains who are to ‘support the wellbeing’ of students are not ‘benefits’ to students within the meaning of s 51(xxiiiA): at [47]. Nor was it supported by s 51(xx) as the scheme does not regulate or permit any act by or on behalf of a corporation: ‘[t]he corporation’s capacity to make the agreement and receive and apply the payments is not provided by the impugned provisions’ (at [50]). The Court also declined to reopen Williams [No 1] on the basis that the Commonwealth’s submissions here were ‘no more than a repetition of the “broad basis” submissions’ on executive power rejected by the majority in Williams [No 1], and noting that the Commonwealth’s arguments rested on a ‘false assumption’ about the ambit of federal executive power (see at [78]–[83]). Finally, the Court rejected the s 51(xxxix) argument as being contrary to Pape v Commissioner of Taxation [2009] HCA 23 and Williams [No 1]: appropriations do not necessarily bring the expenditures within the power of the Commonwealth. Crennan J agreed with the majority but made a reservation regarding s 51(xxiiiA) noting that it was unnecessary for the Court to come to any conclusions on the wisdom of the scheme (at [101]); instead it was only necessary to find that the scheme did not provide government assistance to or for students as prescribed and identifiable beneficiaries: [102], [110].
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Plaintiff S156/2013 v Minister for Immigration and Border Protection

Houston Ash, ‘The High Court Upholds the “PNG Solution”: Plaintiff S156/2013‘ (11 July 2014).

The Full Court has decided the special case in Plaintiff S156/2013 v Minister for Immigration and Border Protection, and has upheld the validity of the challenged legislation and the Minister’s designation of Papua New Guinea as a regional processing country. Continue reading

Howard v Commissioner of Taxation

Michael Crawford, ‘Question: When Does a Litigant Want to be a Fiduciary? Answer: When It Involves Tax Law: Howard v Commissioner of Taxation‘ (23 June 2014).

The High Court has unanimously dismissed an appeal against the decision of the Full Federal Court in Howard v Commissioner of Taxation, which involved three appeals to the Federal Court relating to the appellant’s 2005 and 2006 taxable income. Continue reading