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HIGH COURT OF AUSTRALIA Manager, Public Information 26 August 2009 BRUTON HOLDINGS PTY LTD (IN LIQUIDATION) COMMISSIONER OF TAXATION & ANOR [2009] HCA 32 Today the High Court held that the Commissioner of Taxation could not recover part of a tax debt owing by a company in liquidation by requiring payment from the company's solicitors of monies held in trust for the company. The Commissioner had issued a notice to the solicitors under section 260-5 in Schedule 1 of the Taxation Administration Act 1953 (Cth) requiring payment of money which had been paid into their trust account by the company Bruton Holdings Pty Ltd. Bruton Holdings was incorporated on 27 May 1997, solely to act as trustee of the Bruton Educational Trust. The Commissioner of Taxation refused Bruton’s application for endorsement as a tax exempt entity in April 2006, and Bruton commenced proceedings challenging the refusal. It retained a firm of solicitors, Piper Alderman, to act on its behalf and paid approximately $470,000 into the Piper Alderman trust account in respect of the costs and disbursements of the litigation. On 28 February 2007 the Directors of the company appointed administrators. The appointment of the administrators immediately terminated Bruton’s trusteeship of the Bruton Educational Trust. No replacement trustee was appointed. On 26 March 2007 the Commissioner issued to “the Trustee for Bruton Educational Trust” a notice of assessment for $7,715,873.73 in respect of its tax liability for the 2003/04 financial year. On 30 April 2007 the creditors of Bruton Holdings resolved to place the company into voluntary liquidation. The administrators of Bruton Holdings were appointed liquidators. The Commissioner lodged a formal proof of debt in the winding up for the amount of the assessment issued on 26 March On 8 May 2007 the Commissioner issued a notice under section 260-5 of the Taxation Administration Act to Piper Alderman, requiring the firm to pay to the Commissioner the amount of $447,420.20 held in its trust account to the credit of Bruton Holdings. Bruton Holdings sought declarations in the Federal Court that the notice issued under section 260-5 was void, arguing that section 500(1) of the Corporations Act 2001 (Cth) invalidated it. Bruton Holdings was successful before the primary judge, but the Full Court of the Federal Court allowed the Commissioner’s appeal. The High Court granted Bruton Holdings special leave to appeal. The High Court held that the Commissioner could not use section 260-5 in relation to the debts of a company in liquidation. In the Court’s view, section 260-45 of the Taxation Administration Act provides a specific regime for the collection and recovery of tax liabilities of such companies by requiring liquidators to set aside from available assets of the company, an amount sufficient to pay the Commissioner the amount recoverable as an unsecured creditor in the liquidation. The provisions of section 500 of the Corporations Act, which would invalidate any attachment on the property of a company in liquidation, support the view that section 260-5 does not apply to the recovery of debts owing to companies in liquidation. Were that not the case section 260-5 would have been in conflict with section 500. The High Court allowed Bruton Holdings’ appeal and ordered that the Commissioner’s appeal to the Full Court of the Federal Court be dismissed with costs.

HIGH COURT OF AUSTRALIA 6 April 2016 FISCHER & ORS v NEMESKE PTY LTD & ORS [2016] HCA 11 Today the High Court, by majority, dismissed an appeal from the Court of Appeal of the Supreme Court of New South Wales. The High Court held that a trustee had validly exercised a power to "advance" and "apply" trust capital or income by creating a debt reflecting the value of shares held by the trustee at the time the advance was made. The appellants are beneficiaries of the Nemes Family Trust ("the Trust"), of which the first respondent, Nemeske Pty Ltd, is trustee ("the Trustee"). The Trust's principal assets are shares in a second company, Aladdin Ltd ("Aladdin"). In July 1994, the value of those shares, $3,904,300, was recorded in an "asset revaluation reserve". In September 1994, the Trustee passed a resolution which distributed the whole of the asset revaluation reserve to two other beneficiaries of the Trust, Mr Emery Nemes and Mrs Madeleine Nemes. In August 1995, the Trustee executed a deed purportedly charging the shares in Aladdin in Mr and Mrs Nemes' favour ("the Deed of Charge"). In the Deed of Charge, the Trustee recited that it was indebted to Mr and Mrs Nemes in the sum of $3,904,300, and covenanted that it would pay the amount of that debt upon their demand. Mr and Mrs Nemes both died before any demand was made. Mr Nemes bequeathed all the shares in the Trustee and in Aladdin to the appellants. The residuary estate was left to other persons. The appellants commenced proceedings against the Trustee, the executors of Mr Nemes' estate ("the executors") and other beneficiaries of the Trust, seeking declarations including that the distribution made from the Trust was of no effect or void. The executors cross-claimed, seeking payment of the amount allegedly owing to Mr Nemes' estate. The primary judge in the Supreme Court of New South Wales held that the resolution was a valid exercise of the Trustee's power to advance and apply trust capital or income under the terms of the trust deed. That conclusion was upheld by the Court of Appeal, which also held that although there was no power to charge the shares, the covenant in the Deed of Charge confirmed that the debt owing to Mr and Mrs Nemes was payable on demand. By grant of special leave, the appellants appealed to the High Court. The majority of the High Court dismissed the appeal, holding that the resolution was an effective exercise of the Trustee's power to advance and apply trust capital or income, notwithstanding that there was no change in the beneficial ownership of the shares. The majority held that the resolution created a creditor/debtor relationship, enforceable at law, between Mr and Mrs Nemes and the Trustee. Further, the covenant in the Deed of Charge supported the advance and application made by the Trustee's resolution.

HIGH COURT OF AUSTRALIA 4 September 2019 LEE v LEE & ORS; HSU v RACQ INSURANCE LIMITED; LEE v RACQ INSURANCE LIMITED [2019] HCA 28 Today the High Court unanimously allowed three appeals in relation to a decision of the Court of Appeal of the Supreme Court of Queensland ("the Court of Appeal") arising from a motor vehicle collision ("the collision") in which the appellant in the first appeal ("the appellant") was rendered an incomplete tetraplegic. The High Court held that the Court of Appeal erred in dismissing an appeal against a decision of the Supreme Court of Queensland, which dismissed the appellant's claim against RACQ Insurance Limited ("the RACQ"), the compulsory third-party insurer of the vehicle. At the time of the collision, the appellant was a 17-year-old youth, and was travelling in a Toyota Tarago ("the Toyota") with his mother ("the mother"), his father ("the father"), and his two younger brothers. The collision was caused by the negligence of the driver of the Toyota, which collided with a Nissan Patrol ("the Nissan") travelling in the opposite direction. The appellant brought proceedings in the Supreme Court of Queensland claiming damages for negligence against the father, the mother, and the RACQ. The sole issue at the trial was the identity of the driver of the Toyota. The case pleaded by the appellant was that his father was the driver. The RACQ counterclaimed in deceit against the appellant, the father, and the mother, for the recovery of payments made to each. It was the RACQ's case that the appellant was the driver. Its case depended upon the inference to be drawn from the presence of the appellant's blood on the driver's deflated airbag. The bloodstaining was predominantly on the windscreen side of the airbag (when inflated). The driver of the Nissan, Mr Hannan, estimated that he reached the driver's side of the Toyota within 30 to 90 seconds of the collision. He observed that, at that time, no one was in the driver's seat. The father was standing in the area between the first and second rows of seats. Mr Hannan opened the sliding driver's side passenger door and assisted the father to remove one of the three children from the vehicle. It was the RACQ's case that, in the interval between the collision and Mr Hannan's arrival, the father had lowered the driver's seat and pulled the appellant into the rear passenger seat. It was the appellant's case that the probable explanation for his blood on the airbag was that his father had wiped his hands on it after touching the appellant's bleeding face. The trial judge found that the appellant was driving the Toyota at the time of the collision. The appellant, the father, and the mother appealed to the Court of Appeal. The Court of Appeal identified critical errors in the trial judge's findings and concluded that, save for the inference to be drawn from the blood on the airbag ("the DNA evidence"), it was "much more likely" that the appellant was not the driver. However, the Court of Appeal considered that the DNA evidence substantially weakened the appellant's case and thus that the trial judge's decision was not "glaringly improbable" or "contrary to compelling inferences". The appeals were dismissed. By grant of special leave, the appellant, the father, and the mother appealed to the High Court. The High Court unanimously allowed the appeals. The High Court held that, having rejected the essential planks of the trial judge's reasoning, it was the duty of the Court of Appeal to weigh the conflicting evidence, draw its own inferences, and decide for itself which of the two hypotheses presented at trial was the more probable. The Court of Appeal's acceptance of the trial judge's assessment that the DNA evidence was persuasive overlooked that the assessment was based upon a finding that the appellant was unrestrained by the seatbelt at the time of collision. The Court of Appeal overturned that finding, but did not return to consider the significance of unchallenged expert evidence concerning the operation of the driver's seatbelt pre-tensioners and the rates of inflation and deflation of the airbag. Given that it was largely a circumstantial case, the High Court held it was not appropriate to order a new trial. The High Court agreed with the Court of Appeal's tentative conclusion that it is much more likely that the father was the driver of the Toyota and, in light of the expert evidence of the operation of the seatbelt and the airbag, the High Court did not find that conclusion was weakened by the DNA evidence.

HIGH COURT OF AUSTRALIA Public Information Officer 2 March 2006 TREVOR KINGSLEY FERDINANDS v COMMISSIONER FOR PUBLIC EMPLOYMENT A South Australian police officer sacked after being convicted of a criminal offence did not have a right to appeal to the Industrial Relations Commission of SA, the High Court of Australia held today. The rights of police officers were governed by a separate legislative scheme. In March 2001, Mr Ferdinands was convicted of assaulting a man taken into custody for drink driving. In November 2001, the Police Commissioner terminated his employment as a police officer. Mr Ferdinands applied to the Industrial Relations Commission complaining of wrongful dismissal and seeking reinstatement. Both the Full Court of the Industrial Relations Court and the Full Court of the Supreme Court held that the Industrial Relations Commission had no jurisdiction to deal with Mr Ferdinands' case. The two Courts held that the legislative scheme relating to appointment of police officers under the SA Police Act, and termination of their appointment, was not subject to review under the Industrial and Employee Relations Act (IER Act). Mr Ferdinands appealed to the High Court, which by a 4-1 majority dismissed the appeal. It held that the Police Act impliedly excluded operation of the IER Act, the earlier of the two Acts. The nature of the Police Act and its apparent exhaustive coverage of termination created an incompatibility with the IER Act's provisions on terminations that were harsh, unjust or unreasonable. Section 40 of the Police Act confers a range of powers, from counselling to termination, upon the Police Commissioner if an officer is found guilty of a State, Territory or Commonwealth offence. A decision to dismiss an officer under section 40 is subject to review by the Supreme Court, and the conviction itself is subject to the ordinary avenues of appeal. The Court held that the Police Act should be read as a comprehensive statement of the Commissioner's powers to terminate an officer's appointment, the matters to be taken into account in exercising that power, the availability of review, and the processes for review.

HIGH COURT OF AUSTRALIA 5 October 2005 Public Information Officer SZAYW v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS AND REFUGEE REVIEW TRIBUNAL The presence of SZAYW’s fellow applicants for protection visas did not breach the requirement that hearings to review visa decisions be heard in private, the High Court of Australia held today. SZAYW and three other stateless Palestinians arrived in Australia from Lebanon in 1998 and applied for protection visas, claiming that they would be persecuted by Hezbollah or Islamic Jihad if they returned to Lebanon. The men said they had been involved with Hezbollah and had received military training for the purpose of attacking Israel or Israeli interests in South Lebanon. They had lost enthusiasm for the conflict and left, but feared that if they returned they would suffer reprisals for desertion. The Immigration Department refused their applications for protection visas and they sought a review of that decision by the Refugee Review Tribunal. Present at the hearing were migration agents from the Refugee Advice and Casework Service (Australia) and, for part of the time, the girlfriend of one of the men. The RRT member took evidence from one man in the absence of the others. The member then questioned SZAYW and the other two men together as it was apparent to her from questioning the first man that their claims were all based on shared experiences. No objections were raised about the procedure by either the men or their migration agents. The member affirmed the department’s decision. She rejected their claims that they had a well-founded fear of persecution and did not accept much of their evidence. SZAYW complained that the RRT had not complied with section 429 of the Migration Act because the RRT hearing was not in private. The complaint was upheld by the Federal Magistrates Court, which held that the non-compliance with section 429 constituted jurisdictional error and quashed the RRT’s decision. The magistrate’s finding was reversed by the Full Court of the Federal Court, by majority. SZAYW appealed to the High Court, seeking to reinstate the magistrate’s decision. The High Court unanimously rejected the appeal and upheld the decision of the Full Court of the Federal Court. It held that section 429 of the Act must be understood in the context of section 420 which provides that the RRT is a mechanism that is fair, just, economical, informal and quick. The RRT is not bound by technicalities, legal forms or rules of evidence. Circumstances arise in which the practical content of the requirement of privacy will need to allow for the capacity to meet the objectives of fairness, economy and informality. It was to the men’s advantage to be questioned in each other’s presence as it helped them maintain consistency. SZAYW submitted that only the member, necessary RRT officers, the applicant and their agent should be present when applicants are giving evidence, but the Court held this was an unduly narrow and inflexible interpretation of section 429. The four men were close associates with claims based on shared experiences and were witnesses for each other. They had applied to have their cases heard by the same member and had the same migration agents. There was no suggestion that any of them wished to say something the others should not hear. The Court held that the conduct of the hearing caused no unfairness and was consistent with section 429.

HIGH COURT OF AUSTRALIA 17 June 2004 MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS v SGLB The High Court of Australia today upheld an appeal by the Minister in a case involving an Iranian man’s application for a protection visa. SGLB arrived in Australia by boat in June 2000. He has given different versions of why he left Iran, initially saying he hoped to find a job and a wife and a less monotonous life with no mention of persecution and incarceration. But when he applied for a protection visa he said his family had suffered discrimination, detention and torture because they were Arab in a largely Persian nation. Later, when presented with evidence that Iranian authorities did not discriminate against Arabs, SGLB said he faced harm due to his political opinions and involvement in demonstrations rather than his ethnicity. His application for a protection visa was rejected in December 2000. This rejection has been the subject of numerous proceedings in the Refugee Review Tribunal, the Federal Court and the Federal Magistrates Court. In one proceeding SGLB told the RRT he faced harm as a member of the Hamid tribe which was associated with Iraq during the Iran-Iraq war. In a later proceeding, a differently constituted tribunal was prepared to accept SGLB had post-traumatic stress disorder (PTSD) which affected his ability to give evidence but, based on a psychologist’s report that he did not have a well-founded fear of persecution for either ethnic or political reasons and other evidence, the RRT affirmed the decision to reject the visa application. An application to the Federal Court for judicial review was transferred to the Federal Magistrates Court, which dismissed the application. He then appealed to the Federal Court which was constituted by Justice Bradley Selway, who was also dealing with a separate application in the Court’s original jurisdiction. In the appeal, Justice Selway identified three flaws in the RRT’s decision: no evidence on which the RRT could be satisfied SGLB was suffering from PTSD; no evidence to enable the RRT to assess the effects of PTSD on his credibility; and a failure by the RRT to satisfy itself that he was competent to take part in proceedings. The Minister appealed to the High Court, arguing that the RRT had not erred. In the appeal, SGLB contended that the errors identified by Justice Selway amounted to a denial of procedural fairness, but the Court rejected this contention as the RRT had sought to accommodate SGLB and his concerns during proceedings. The Court held that the RRT’s acceptance of PTSD was actually beneficial to SGLB. The Court held there was also evidence before the RRT for it to assess SGLB’s reliability and the RRT was not obliged to obtain further medical or psychiatric reports. However the Court rejected the Minister’s submission that in any event the RRT’s decision was protected against judicial review unless the RRT had not acted in good faith. The Court, by a 4-1 majority, allowed the appeal. The Minister is to pay SGLB’s costs in accordance with the terms of the grant of special leave to appeal.

HIGH COURT OF AUSTRALIA 4 March 2004 HONG PHUC TRUONG v THE QUEEN A man found guilty of kidnapping and murder was lawfully tried and convicted even though he had been extradited from the United Kingdom on charges of conspiracy to kidnap and to murder, the High Court of Australia held today. Mr Truong was extradited from Britain to face charges of conspiracy to kidnap and conspiracy to murder but was tried in 2000 in the Victorian Supreme Court for kidnap and murder. He was convicted and sentenced to life imprisonment for murder and to 15 years’ imprisonment for kidnapping. On appeal, Mr Truong claimed his trial contravened section 42 of the Extradition Act which prohibits the trial of an extradited person for any offence other than one for which they were returned, a point not raised at his trial. The Court of Appeal dismissed an appeal and Mr Truong appealed to the High Court. Mr Truong, a Vietnamese national, allegedly headed a drug trafficking network whose operations included Hong Kong, Vietnam and Australia. In March 1996, through his sister Truong Thi Van who lived in Melbourne, he met Ha Que Thi Ha, a wealthy Vietnam-based exporter of clothing and footwear. Mr Truong and Mrs Van allegedly tried to recruit Mrs Ha to bring heroin into Australia with her clothing shipments and later demanded $400,000 in protection money. Her refusals were met with threats of harm to her and her family. After Mr Truong left Australia, two Vietnamese criminals living in the United States, arrived in Melbourne. They allegedly kidnapped Mrs Ha’s 21- year-old son Le Anh Tuan from his home in Glen Waverley. His body was found a few weeks later in an aqueduct in Noble Park. The cause of death was a single gunshot to the head. Although Mr Truong was extradited in 1997 on charges that included the kidnapping and murder conspiracy charges but not the substantive charges, four members of the High Court held that in the circumstances of this case that was immaterial, as the acts pointing to the existence of the conspiracies included the actual kidnapping and murder. Both the conspiracy offences and the substantive offences relied on the same evidence. Additionally, three members of the Court held that even if the course of proceedings had been inconsistent with section 42 that did not enable Mr Truong to have his convictions set aside. The High Court, by a 6-1 majority, dismissed the appeal.

HIGH COURT OF AUSTRALIA 19 May 2021 MZAPC v MINISTER FOR IMMIGRATION AND BORDER PROTECTION & ANOR [2021] HCA 17 Today the High Court dismissed an appeal from the Federal Court of Australia concerning the content and proof of "materiality" – a threshold which is ordinarily required to exist for a breach of an express or implied condition of a conferral of statutory decision-making authority to result in jurisdictional error. The appellant, a citizen of India, had applied to the Refugee Review Tribunal ("Tribunal") for merits review of a decision to refuse him a protection visa under the Migration Act 1958 (Cth) ("the Act"). In the context of that review, the Secretary of the Department of Immigration and Border Protection notified the Tribunal that s 438(1)(b) of the Act applied to certain documents, including a "Court Outcomes Report", which revealed that the appellant had been convicted of, among other things, the offence of "state false name". The s 438 notification was not disclosed to the appellant, and the Tribunal's reasons made no reference to the notification nor to any of the documents specified in the notification. The Federal Circuit Court of Australia dismissed an application for judicial review of the Tribunal's decision. The appellant then appealed to the Federal Court. Before the Federal Court, there was no dispute that the Tribunal's failure to disclose the notification to the appellant had breached the implied condition of procedural fairness. The parties were at issue only in relation to the materiality of the conceded breach. The question of materiality, the Federal Court recognised, turned on whether disclosure could realistically have resulted in the Tribunal having made a different decision. The Federal Court accepted that question could not be answered in the affirmative without first finding that the Tribunal had in fact taken information covered by the notification into account in making its decision. Unable to find on the evidence that the Tribunal had taken the information into account, the Federal Court dismissed the appeal. The appellant's primary ground of appeal before the High Court consisted of two strands. First, the appellant disputed that he needed to prove that the Tribunal took information covered by the notification into account in order to establish materiality. He argued that once he had demonstrated by way of reasonable conjecture that the Tribunal could have taken the information covered by the notification into account adversely to him and that, if it did, it could have been persuaded by him to make a different decision if it had disclosed the notification to him, the onus then shifted onto the first respondent to prove that disclosure of the notification could not have resulted in the Tribunal having made a different decision. Second, the appellant contended that the Federal Court independently erred by erecting and acting on a presumption of fact that the Tribunal did not take information covered by the notification into account because there was no reference to the information in its reasons. The High Court was unanimous in dismissing the appeal but did so for different reasons. A majority of four Justices held that the counterfactual question of whether the decision in fact made could have been different had the breach not occurred cannot be answered without first determining the basal factual question of how the decision that was in fact made was in fact made. The majority held that the onus of proof in relation to materiality lies on the plaintiff, who bears the overall onus of proving jurisdictional error. The majority also rejected the second strand of the appellant's primary ground of appeal, holding that no such "presumption" exists. Finding that there was no basis in the evidence to find that the Tribunal took the information into account, the majority ultimately dismissed the appeal. The other three Justices also dismissed the appeal. The principal difference between the judgments concerned the question of which party bears the onus of proof in relation to materiality. Three Justices held that once error is identified by an applicant, the onus of proving that the error is immaterial to the decision that was reached should be on the party who seeks to affirm the decision's validity – namely, the Executive.

HIGH COURT OF AUSTRALIA 1 June 2011 THE COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA v BHP BILLITON LIMITED & ORS [2011] HCA 17 Today the High Court dismissed appeals by the Commissioner of Taxation against the decision of the Full Federal Court of Australia regarding the construction of s 243-20(2) of the Income Tax Assessment Act 1997 (Cth) ("the Act"). The Court held that a debt owed by BHP Billiton Direct Reduced Iron Pty Ltd ("BHPDRI") to BHP Billiton Finance Limited ("Finance") was not a "limited recourse debt" and therefore the respondents were not liable to an increase in assessable income under Div 243 of the Act. BHP Billiton Ltd ("BHPB") is a listed company and its directly or indirectly wholly owned subsidiaries include Finance and BHPDRI. Finance raised, for the purposes of the BHPB group, large sums of money which it loaned to other members of the BHPB group on terms adopted by board resolution and which did not purport to limit the rights of Finance as an unsecured creditor. Finance earned a profit from the interest rates charged on loans to other members of the BHPB group. BHPB's board approved the construction of plant and facilities near Port Hedland in Western Australia for the manufacture of iron briquettes to be undertaken by BHPDRI. BHPDRI was partly funded by a loan provided by Finance on its standard terms. Further capital expenditures required to complete the project were partly funded by advances by Finance which were subsequently partly written off by Finance. The project was not successful and terminated in May The expenditure which BHPDRI incurred on the project gave rise to "capital allowance" deductions claimed by BHPDRI for the years 1996-2002 and by BHPB for the years 2003-2006. In 2007, the Commissioner issued a notice of assessment applying Div 243 of the Act to reduce the capital allowance deductions claimed by BHPDRI for the years 2003-2006. BHPDRI transferred its tax losses in the years 2000-2002 to other companies in the BHPB group ("the transferees") and the Commissioner's adjustments resulted in reductions to those transferred amounts which was reflected in assessments issued to the transferees. BHPB's objection to the Commissioner's assessment was disallowed. BHPB and the transferees appealed to the Federal Court. The primary judge held that limited recourse debt was not used wholly or partly to finance or refinance BHPDRI's expenditure so that Div 243 did not apply. The Full Court dismissed the Commissioner's appeal. The Commissioner appealed, by special leave, to the High Court. The Act provides, inter alia, that Div 243 applies if limited recourse debt has been used to wholly or partly finance or refinance expenditure. The dispute between the parties was whether limited recourse debt had been used. One definition of "limited recourse debt" is found in s 243-20(2). Section 243-20(2) provides that an obligation imposed by law on a debtor to pay an amount to the creditor is limited recourse debt if it is reasonable to conclude that the rights of the creditor as against the debtor in the event of default in payment of the debt or interest are "capable of being limited" in the way mentioned in s 243-20(1) having regard to certain specified matters. It was the operation of this definition which was argued in the High Court. The Commissioner argued that BHPDRI's debt to Finance was a "limited recourse debt" under s 243-20(2) of the Act. The Commissioner contended that s 243-20(2) of the Act was not concerned with current contractual limitations or rights or with economic equivalence but was concerned with a practical capacity or ability to bring about legal limitations on legal rights. The Commissioner also argued that Finance's contractual rights at the inception of each loan were "capable" of restriction should BHPDRI default because the parties were not dealing at arm's length. The High Court held that BHPDRI's debt to Finance was not a "limited recourse debt" within the meaning of Div 243. The Court held that s 243-20(2) is not directed to possibilities for limitation of a creditor's rights of recourse which may arise in the future.

HIGH COURT OF AUSTRALIA 30 March 2010 Manager, Public Information COMMISSIONER OF TAXATION v PHILLIP BAMFORD & ORS PHILLIP BAMFORD & ANOR v COMMISSIONER OF TAXATION [2010] HCA 10 The High Court today dismissed an appeal by the Commissioner of Taxation and an appeal by two taxpayers from a decision of the Full Court of the Federal Court which concerned construction of the phrases “the income of the trust estate” and “that share of the net income of the trust estate”, both found in s 97(1) of the Income Tax Assessment Act 1936 (Cth) (the 1936 Act). In the 2000 and 2002 tax years, Mr Phillip Bamford and Mrs Davina Bamford were directors of P&D Bamford Enterprises Pty Ltd. At the time P&D Bamford Enterprises (the Trustee) acted as trustee of the Bamford Trust. Under the terms of the trust deed it was within the Trustee’s absolute discretion to determine whether receipts were to be treated as income or capital of the trust, and to determine the distribution of the trust income to beneficiaries. In the 2000 tax year, the net income of the Bamford Trust was recorded in its accounts as $187,530. The Trustee determined to distribute the income thus: $643 to each of Mr and Mrs Bamford’s two children; $12,500 to Narconon Anzo Inc; $106,000 to Church of Scientology Inc; $68,000 to Mr and Mrs Bamford to be shared between them equally; and the balance to Church of Scientology Inc. In the event, there was insufficient income to distribute $68,000 to Mr and Mrs Bamford. They each received $33,872 and there was no remaining balance to distribute to the Church of Scientology. In accounting for the net income of the Bamford Trust, the Trustee had claimed certain deductions totalling $191,701 which the Commissioner of Taxation disallowed. Although Mr and Mrs Bamford did not dispute the disallowance of the deductions in the Federal Court or before the High Court, they did dispute the Commissioner’s decision to assess, pursuant to s 97(1) of the 1936 Act, an extra $34,624 against each of them, on the basis that this amount represented a proportion of the $191,701 of disallowed deductions equivalent to the proportion (18.062%) they had each received of the trust’s distributable income of $187,530. Mr and Mrs Bamford argued that they were required to pay tax only on the actual amount of $33,872 which the Trustee had distributed to them. In the 2002 tax year, the Trustee treated a net capital gain of $29,227 arising from the sale of certain trust property as income available for distribution. The capital gain was divided equally and distributed to Mr and Mrs Bamford. They each lodged tax returns for the 2002 tax year which reflected that distribution. The Commissioner, however, considered the capital gain should not be included in the “income of the trust estate”, with the result that there was no “income of the trust estate” to which s 97(1) of the 1936 Act could apply for that income year. Therefore, the Trustee itself was assessed under s 99A of the 1936 Act. Mr and Mrs Bamford lodged objections to the Commissioner’s decisions concerning their 2000 tax year income, and the Trustee lodged an objection against the Commissioner’s decision concerning the 2002 tax year net capital gain. The Commissioner disallowed all objections and the Administrative Appeals Tribunal affirmed the Commissioner’s decisions in all appeals. The Full Federal Court dismissed Mr and Mrs Bamford’s appeals, and allowed the Trustee’s appeal, against the decision of the Administrative Appeals Tribunal, having held that the Trustee was entitled, according to the trust deed, to treat the capital receipts as income and to distribute it to Mr and Mrs Bamford, with the result that it was assessable under s 97(1) of the 1936 Act against them. The High Court granted special leave to Mr and Mrs Bamford and to the Commissioner to appeal the Full Court’s decision. The High Court unanimously dismissed both the Bamfords’ and the Commissioner’s appeals. In relation to the 2000 year of income, the High Court held that reference to “a share of the income of the trust estate” in the opening sentence of s 97(1) refers to a beneficiary’s share of distributable income. The assessable income of a beneficiary who is entitled to a share of distributable income includes “that share of the net income of the trust estate” which is attributable to a period when a beneficiary was a resident. “[N]et income” is defined in s 95(1) of the 1936 Act to mean, essentially, taxable income, that is, income after all allowable deductions have been subtracted. “[T]hat share” refers back to the first reference to “share” and indicates that the same share, meaning proportion, is to be applied to the net income of the trust estate (that is, the notional taxable income of the trust estate) as was applied to the income of the trust estate (that is, the actual distributable income) to determine a beneficiary’s assessable income. In the 2000 year of income, the net income of the Bamford Trust included the amount of $191,701 which had been wrongly claimed as a deduction. Thus, the assessable income of Mr and Mrs Bamford included a share of $191,701 equivalent to the share they each received of the distributable income, an amount of In relation to the 2002 year of income, the High Court noted that “net income” (as part of the phrase occurring in s 97(1) – “net income of the trust estate”) is defined in s 95(1) of the 1936 Act, whereas “income of the trust estate” was undefined. This suggested that the content of the latter phrase was to be found in the general law of trusts. The language of s 97(1) of the 1936 Act also invoked concepts intimately related to the general law of trusts. Thus the word "income" was to be understood as income of the trust estate as understood in trust law. The Trustee had an absolute discretion to treat the net capital gain as income of the Trust, in accordance with the terms of the trust deed. There was no basis upon which the Commissioner should treat it any differently.

HIGH COURT OF AUSTRALIA 5 December 2007 Public Information Officer BLUEBOTTLE UK LIMITED, CRICKET SA, VIRGIN HOLDINGS SA AND BARFAIR LIMITED v DEPUTY COMMISSIONER OF TAXATION AND VIRGIN BLUE HOLDINGS LIMITED Assignments of dividend rights to two foreign shareholders in Virgin Blue were ineffective to displace Virgin Blue’s obligation to retain money to cover the tax liabilities of those shareholders resulting from earlier transactions, the High Court of Australia held today. On 11 November 2005, Virgin Blue’s directors declared a final, fully franked dividend of 25 cents per ordinary share with payment due on 15 December 2005. They fixed 28 November 2005 as the record date. On that date, Cricket held 23 per cent of the issued capital of Virgin Blue and Virgin Holdings held 2.08 per cent. Cricket and Virgin Holdings, both Geneva-based corporations, could expect dividends of about $65 million. The Tax Commissioner alleged that each was liable to pay tax on a capital gain made on disposal of Virgin Blue shares in 2003. The Commissioner attempted to intercept the two companies’ dividend payments and have the amounts applied to their tax liabilities. On 12 December 2005, the Commissioner gave Virgin Blue two notices directing it to retain $72,518,346.06 in respect of Cricket and $20,839,554.45 in respect of Virgin Holdings to cover their tax. (Cricket was later assessed to be liable to pay $64,441,613.86 in tax and interest and Virgin Holdings’ liability was assessed at $20,483,993.56.) The notices were issued pursuant to section 255 of the Income Tax Assessment Act (ITAA). The day after the notices were issued, the two companies assigned their dividend rights to Bluebottle which gave Virgin Blue an irrevocable direction to pay the dividends to Barfair. On 14 December 2005, the Commissioner issued assessment notices to Cricket and Virgin Holdings for the year to 31 March 2004. On 15 December 2005, Bluebottle, Cricket, Virgin Holdings and Barfair commenced proceedings in the New South Wales Supreme Court seeking declarations that the various transactions were effective and that notices issued by the Commissioner had no force or effect in relation to the dividend. Justice Ian Gzell made such declarations but the Commissioner’s appeal to the Court of Appeal was allowed. The Court of Appeal ordered Virgin Blue to pay the Commissioner the dividends that had been declared. The other four companies appealed to the High Court. The Court unanimously dismissed the appeal. It held that in the circumstances of the case the Commissioner’s first notices did not comply with section 255(1) of the ITAA as no assessment had been issued to Cricket or Virgin Holdings so no tax was due by them. By contrast, when the Commissioner’s second notice was given, assessments had been issued to the two companies and tax was then due and payable. Virgin Blue had control of money belonging to its shareholders because it was liable to pay the declared dividend to those who were its shareholders on the record date. Despite the assignments to Bluebottle, Virgin Blue remained liable to pay the dividend to Cricket and Virgin Holdings. Virgin Blue was obliged to retain from the dividends sufficient funds to pay the tax due under each assessment.

HIGH COURT OF AUSTRALIA 9 September 2004 JOHN DAVID RICH AND MARK ALAN SILBERMANN v AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION Proceedings seeking an order disqualifying a person from managing corporations were proceedings for a penalty, so defendants could claim privilege against exposure to penalties to enable them to resist discovery of documents in pre-trial procedures, the High Court of Australia held today. In civil proceedings in the New South Wales Supreme Court, ASIC, pursuant to the Corporations Act, sought declarations that Mr Rich and Mr Silbermann had contravened their duties as directors of One.Tel, orders that they pay One.Tel $93 million in compensation, and orders disqualifying them from managing a corporation. ASIC also sought an interlocutory order that the pair make discovery of documents, but they contended that the material to be disclosed was covered by the privilege against exposure to penalties. Supreme Court Justice Robert Austin ordered Mr Rich and Mr Silbermann to hand over the documents and the NSW Court of Appeal by majority dismissed an appeal. Both Justice Austin and the Court of Appeal held that ASIC’s proceedings were not penal and that disqualification orders were protective rather than punitive. An appeal from Mr Rich and Mr Silbermann to the High Court was heard on 22 April. The Court, by a 6-1 majority, allowed the appeal with costs and ordered ASIC’s application for discovery be dismissed. The Court’s written reasons for judgment were handed down today. ASIC had submitted that because no pecuniary penalty order was sought – only declarations of contravention, compensation orders and disqualification orders – Mr Rich and Mr Silbermann were not exposed to penalties. Mr Rich and Mr Silbermann argued the declarations of contravention and disqualification orders amounted to penalties or forfeiture within the meaning of the privilege to resist discovery of documents. The High Court accepted their argument. The majority held that for ASIC to seek an order disqualifying persons from managing a corporation on the ground that they have contravened the law is to seek a penalty or forfeiture. The order is sought by a regulatory authority, it is founded on demonstration of a contravention of the law, it requires the vacating of office in a corporation, and it imposes a continuing disability for the duration of the order. The majority held that a distinction between “punitive” and “protective” purposes was unhelpful as disqualification may serve both. The question was not what purpose a disqualification order served but what was the nature of the order sought. Whether proceedings had a purpose of protecting the public was not determinative. Seeking to classify proceedings as either protective or penal invited error as the categories were not mutually exclusive and proceedings may bear several characters. Once it was determined that the proceedings exposed a person to penalty or forfeiture, the proper course was to refuse any order for discovery. The civil proceedings brought by ASIC against the One.Tel directors remain on foot in the NSW Supreme Court.

HIGH COURT OF AUSTRALIA 5 October 2011 TASTY CHICKS PTY LIMITED & ORS v CHIEF COMMISSIONER OF STATE REVENUE [2011] HCA 41 Today the High Court held that a review by a judge of the Supreme Court of New South Wales from a decision of the Chief Commissioner of State Revenue ("the Commissioner") disallowing an objection to an assessment for pay-roll tax, was not limited to considering whether the Commissioner had erred on the materials before him and failed to make the objection decision according to law. The High Court allowed an appeal from a decision of the Court of Appeal of the Supreme Court of New South Wales, which had held that the right of review was so limited. The fourth and fifth appellants, Mr and Mrs Souris, conducted in partnership a chicken meat processing business ("the Firm"). The third appellant ("Souris Holdings") owned premises, portions of which were separately let to the Firm, the first appellant ("Tasty Chicks") and the second The Pay-roll Tax Act 1971 (NSW) ("the Pay-roll Tax Act ") and the Taxation Administration Act 1996 (NSW) ("the Administration Act") contain "grouping" provisions. These are designed to counter tax avoidance effected by using additional entities to split business activities so that each entity attracts the benefit of pay-roll tax thresholds. The grouping provisions allow the Commissioner to treat separate entities as a single entity for pay-roll tax purposes. The "de- grouping" provisions could be applied by the Commissioner if it were unreasonable to apply the "grouping" provisions. The appellants objected to assessments under the Pay-roll Tax Act and the Administration Act which related to three periods: 1 July 2001 – 30 June 2003 ("the first period"); 1 July 2003 – 30 June 2005 ("the second period"); and 1 July 2005 – 30 June 2007 ("the third period"). The assessments were based upon the Commissioner's grouping of the appellants. In effect, the appellants challenged the Commissioner's refusal to "de-group" Tasty Chicks, Angelo Transport and the Firm. Section 97 of the Administration Act provided that a taxpayer could apply to the Supreme Court of New South Wales for a "review" if dissatisfied with the Commissioner's determination of an objection made under Div 1 of Pt 10. Section 100(2) of the Administration Act provided that, on an application for review before the Supreme Court, "the applicant's and respondent's cases ... are not limited to the grounds of the objection" that were before the Commissioner. Section 101(1)(b) of the Administration Act relevantly provided that the court or tribunal dealing with the application for review could make an assessment or other decision in place of the assessment or other decision to which the application related. Section 19(2) of the Supreme Court Act 1970 (NSW) had the effect that proceedings in the Supreme Court under s 97 of the Administration Act were an "appeal" for the purposes of the Supreme Court Act if so described in the Administration Act. Section 97(4) of the Administration Act provided that a review by the Supreme Court was taken to be an appeal for the purposes of the Supreme Court Act and the regulations and rules made under that Act, except as otherwise provided by that Act or those regulations or rules. The primary judge set aside the Commissioner's disallowance of the appellants' objections. The primary judge held that the Commissioner was not entitled to apply the "grouping" provisions in relation to the first period. In relation to the second and third periods, the primary judge applied the de-grouping provisions. In applying the de-grouping provisions, the primary judge held that the Court was entitled to re-exercise the Commissioner's powers. The Court of Appeal allowed the Commissioner's appeal, holding that an applicant for review of a decision not to de-group had to establish that the Commissioner erred on the materials before him. The High Court unanimously held that, when all the above provisions were read together, the primary judge's view of the Supreme Court's jurisdiction and powers was correct. The High Court held that the Court of Appeal erred in considering that the jurisdiction and powers conferred upon the Supreme Court required the taxpayers to show that the Commissioner had erred on the materials before him and that the exercise of discretion by the Commissioner was vitiated by error.

HIGH COURT OF AUSTRALIA Public Information Officer 29 May, 2003 KENNETH FRANCIS STANTON v THE QUEEN The High Court of Australia today dismissed Mr Stanton’s appeal against his conviction for the wilful murder of his estranged wife, Marie Ann Stanton, in Lake Clifton, south of Perth, in March 1999. The issue in Mr Stanton’s trial in the Western Australian Supreme Court was intent. He did not deny shooting his wife, but said that when he went to her house with a shotgun loaded with heavy-gauge ammunition he merely intended to frighten her and make her see sense in their Family Court dispute and did not intend to kill her or to cause her grievous bodily harm. The jury was directed that it could find Mr Stanton guilty of either wilful murder, murder or manslaughter, or it could find him not guilty. The only verdicts realistically open on the evidence were wilful murder or manslaughter. The trial judge, Justice Robert Anderson, directed the jury to first consider wilful murder. If they were unanimously of the view that Mr Stanton was not guilty of the offence, they should consider murder, and if they unanimously believed he was not guilty of murder they could then consider manslaughter. If they unanimously found him not guilty of manslaughter they should acquit him. Mr Stanton argued Justice Anderson should not have prescribed the order in which the jury should have addressed alternative verdicts, and in addition the directions he gave effectively reversed the onus of proof. The WA Court of Criminal Appeal held that Justice Anderson erred in his directions to the jury and in his answer later to a jury question but, by majority, decided there was no miscarriage of justice. The High Court, by a 3-2 majority, dismissed the appeal. It held that, taken as a whole, there was no error in Justice Anderson’s directions to the jury.

HIGH COURT OF AUSTRALIA 21 March 2007 Public Information Officer A v STATE OF NEW SOUTH WALES AND JOHN FLOROS Succumbing to pressure to lay a charge with no reasonable and probable cause constituted a malicious prosecution, the High Court of Australia held today. A, a NSW police service employee, was charged in March 2001 with homosexual intercourse with his 12- and 10-year-old stepsons, D and C, when they were aged eight and nine respectively. The boys were placed in foster care after the first interviews in October 2000 which followed a complaint of sexual abuse by an unidentified complainant. Detective Constable Floros was part of the joint investigation team in the Child Protection Enforcement Agency, and interviewed the boys, their mother S, and A. At committal proceedings in August 2001, C admitted his evidence was false and that he lied to help his brother who disliked A intensely. The magistrate discharged A on both counts, concluding there was no reasonable prospect that a jury could convict him. A commenced proceedings for malicious prosecution, unlawful arrest, unlawful imprisonment and abuse of process. The District Court heard that Detective Floros had told A’s solicitor, Greg Walsh, that he felt sorry for A but was under pressure to charge A because he was a police employee. In a second conversation Detective Floros repeated that he had been under pressure to charge A and if it had been up to him he would not have done so. He agreed with Mr Walsh that the boys’ evidence was unreliable. Judge Harvey Cooper dismissed all causes of action apart from the claim of malicious prosecution in relation to the charge concerning C and awarded A $31,250. He held that Detective Floros had acted maliciously by charging A for the improper purpose of succumbing to pressure from Child Protection Enforcement Agency officers to charge A. The Court of Appeal dismissed an appeal by A against Judge Cooper’s decision in relation to the charge concerning D but allowed a cross-appeal by the State and Detective Floros against the decision in relation to the charge concerning C. A appealed to the High Court, which today unanimously allowed the appeal and ordered that Judge Cooper’s decision be restored. The appeal related to two of the required elements for a successful action for damages for malicious prosecution: that the defendant acted maliciously in initiating or maintaining the proceedings, and that the defendant acted without reasonable and probable cause. To constitute malice, the sole or dominant purpose of the prosecutor in bringing the proceedings must be a purpose other than to properly invoke the criminal law. Absence of reasonable and probable cause may be established by showing either that the prosecutor did not honestly believe the case that was instituted and maintained or that the prosecutor had no sufficient basis for such a belief. The Court held that it was open to Judge Cooper to conclude that neither charge was brought for the purpose of bringing a wrongdoer to justice but that the charges were the result of succumbing to pressure. However, absence of reasonable and probable cause was demonstrated only in respect of C, so A had proved malicious prosecution in respect of the charge concerning C. The Court also held that it was open to Judge Cooper to find that Detective Floros either did not form the view that a charge was warranted in respect of C or, if he did form that view, that there was no sufficient basis for doing so. The High Court held that the Court of Appeal had erred in interfering with Judge Cooper’s findings of fact which depended upon his assessment of the credibility of the evidence given respectively by Detective Floros and Mr Walsh.

HIGH COURT OF AUSTRALIA 26 May 2010 Manager, Public Information HAJAMAIDEEN MOHAMED ANSARI v THE QUEEN ABDUL AZEES MOHAMED ANSARI v THE QUEEN [2010] HCA 18 Today the High Court held that a charge, under s 11.5 of the Criminal Code (Cth) ("the Code"), of conspiracy to commit an offence that has recklessness as its fault element is not bad in law. The appellants, Hajamaideen Mohamed Ansari and Abdul Azees Mohamed Ansari, are brothers who operated a money exchange business in Sydney. They arranged for the collection and deposit into various bank accounts of approximately $2 million. Each deposit was for an amount less than $10,000 in cash. The appellants were alleged to have made similar arrangements in relation to a further $2 million to $3 million in cash, though they were arrested before receiving any of the money. Under the Financial Transaction Reports Act 1988 (Cth) ("the FTR Act"), banks and other financial institutions are obliged to report cash transactions involving amounts of $10,000 or more to a Federal Government agency. Pursuant to s 31 of the FTR Act, a person commits an offence if he or she is a party to two or more cash transactions involving less than $10,000 and it would be reasonable to conclude that the person conducted the transaction(s) in a particular manner or form so as to avoid the transaction(s) being reported to the relevant federal agency. The appellants were jointly tried and convicted on charges — under ss 11.5 and 400.3(2) of the Code — of conspiring to deal with money worth $1 million or more, being reckless as to the risk that the money would be used as an instrument of crime. They appealed unsuccessfully to the NSW Court of Criminal Appeal. On 2 October 2009, they were granted special leave to appeal to the High Court from that decision. The appellants' principal argument before the High Court was that the charges against them were bad in law because a criminal conspiracy under the Code could not have as its object an offence an element of which is recklessness. They contended that, were it otherwise, such a charge would require proof that the appellants intended to be reckless as to the fact that there existed a risk that the money would become an instrument of crime. The High Court rejected the argument, holding as incorrect the premise on which it was based — that proof of an intention to commit an offence requires proof of an intention that each physical element of the offence will come into existence and that the fault element specified for that physical element will also come into existence at the same time. What is required, the Court held, is proof of an intention that an act or acts be performed, which, if carried out, would amount to the commission of an offence. The appellants' argument did not take into account that, under the Code, recklessness may be satisfied by proof of intention or knowledge. Provided that the appellants intended that the conduct upon which they agreed would be carried out and that they knew all the facts that made that conduct criminal, it did not matter that the offence that was the object of the conspiracy charge was one for which the fault element is recklessness. A second argument — that the Court of Criminal Appeal mischaracterised the physical and fault elements of the offence of conspiracy under s 11.5 of the Code — was rejected for the reasons given in the Court's decision in R v LK [2010] HCA 17, also handed down today. The High Court dismissed the appeals.

HIGH COURT OF AUSTRALIA 17 August 2017 TRANSPORT ACCIDENT COMMISSION v MARIA KATANAS [2017] HCA 32 Today the High Court unanimously dismissed an appeal from the Court of Appeal of the Supreme Court of Victoria concerning the narrative test of serious injury under s 93(17) of the Transport Accident Act 1986 (Vic) ("the narrative test") laid down in Humphries v Poljak [1992] 2 VR 129. The respondent was involved in a motor vehicle accident in July 2010. Following the accident, she suffered a range of psychological symptoms including lowered mood, nightmares and daytime thoughts of the accident. She also reported restrictions in her social pursuits and difficulties in concentration. The respondent received psychological treatment, and, in April 2013, she was prescribed anti-depressant medication and began to attend on a psychiatrist. Medical evidence indicated that the respondent had suffered a post-traumatic stress disorder and either a major depressive disorder or an adjustment disorder which was substantially related to the accident. On 16 April 2013, the respondent filed an originating motion in the County Court of Victoria seeking leave to commence common law proceedings for a serious injury under s 93(4) of the Transport Accident Act. The primary judge refused leave, holding that, although the respondent had received considerable treatment and medication, she had not been an inpatient in any psychiatric institution "nor suffered the more extreme symptoms of psychological trauma". The respondent appealed to the Court of Appeal contending, inter alia, that the primary judge misdirected himself as to the objective assessment of the severity of her mental disorder by conceiving of severity solely in terms of the extent of treatment necessitated by the disorder. The majority of the Court of Appeal held that although the extent of treatment may cast light on whether the disorder was "severe", it was only one among a range of considerations that needed to be taken into account. By grant of special leave, the appellant appealed to the High Court on the ground that the majority of the Court of Appeal displaced the part of the narrative test from Humphries v Poljak concerning the evaluation of the instant case against the range or spectrum of comparable cases. The High Court unanimously held that the majority of the Court of Appeal did not err in holding that the range as formulated by the primary judge was incomplete because it had regard only to one criterion of the comparative severity of a mental disorder, namely, the extent of treatment. The majority of the Court of Appeal rightly emphasised that, in assessing severity by comparison to the range of comparable cases, a judge must identify and bring to account all of the relevant factors. Accordingly, the majority of the Court of Appeal had not departed from the narrative test. The High Court declined to entertain an alternative contention put by the appellant that the majority of the Court of Appeal had misunderstood the primary judge's formulation of the range.

HIGH COURT OF AUSTRALIA 4 December 2013 WILLMOTT GROWERS GROUP INC v WILLMOTT FORESTS LIMITED (RECEIVERS AND MANAGERS APPOINTED) (IN LIQUIDATION) [2013] HCA 51 Today the High Court, by majority, held that the liquidators of a company had power under Div 7A of Pt 5.6 of the Corporations Act 2001 (Cth) to disclaim leases granted by the company to investors. It also held that disclaimer terminated the landlord's obligations and the tenants' correlative rights arising under the leases. The Court dismissed the appeal from the Court of Appeal of the Supreme Court of Victoria. Willmott Forests Limited (the first respondent) was the manager of forestry investment schemes associated with a group of companies known as the Willmott group. Willmott Forests (or its predecessor) leased to participants in those schemes portions of land which Willmott Forests owned or leased. In September 2010, Willmott Forests (and other companies in the Willmott group) went into voluntary administration. Receivers and managers were also appointed to property which companies in the group had charged. In March 2011, the creditors of Willmott Forests resolved that the company should be wound up. They appointed the second and third respondents as liquidators of the company. The liquidators concluded that the schemes could not continue to operate and, in conjunction with the receivers and managers, sought to sell the assets of Willmott Forests. No one expressed interest in purchasing any of the assets encumbered by the schemes or in becoming the responsible entity or manager of any of the schemes. When sale contracts were concluded, each contract provided that title to the assets the subject of the contract was to pass to the purchaser free from the encumbrances arising out of the schemes. The liquidators applied to the Supreme Court of Victoria for directions and orders about the sales that had been negotiated. Willmott Growers Group Inc (the appellant) acted as a contradictor of the arguments advanced by the liquidators. Relevantly, s 568(1) of the Corporations Act gave the liquidator of a company power to disclaim certain property of the company, including property consisting of a contract. Section 568D(1) provided that a disclaimer was taken to terminate, from the effective date of the disclaimer, the company's rights, interests, liabilities and property in or in respect of the disclaimer property. The Supreme Court held that those provisions did not empower the liquidators to disclaim the leases with the effect of extinguishing the tenants' estates or interests in the land. The Court of Appeal reversed this decision, finding that it was necessary to extinguish the tenants' rights under the leases in order to release Willmott Forests from liability. By special leave, Willmott Growers Group appealed to the High Court. A majority of the Court held that s 568(1) of the Corporations Act gave the liquidator of a company power to disclaim a lease granted by the company to a tenant. A lease granted by the company to a tenant was "a contract" within the meaning of that provision. The effect of s 568D(1) was that, from the effective date of the disclaimer, the tenant's rights arising under the lease were terminated and the tenant's estate or interest in the land was brought to an end. As such, the liquidators had the power to disclaim the leases to investors with the effect of terminating the tenants' estates or interests in the land.

HIGH COURT OF AUSTRALIA 19 October 2022 TL v THE KING [2022] HCA 35 Today, the High Court unanimously dismissed an appeal from a decision of the New South Wales Court of Criminal Appeal. The High Court held that tendency evidence admitted against the appellant at trial was admissible under s 97(1) of the Evidence Act 1995 (NSW). Tendency evidence is evidence of the character, reputation or conduct of a person which is adduced to prove that the person has or had a tendency to act in a particular way or to have a particular state of mind, and is not admissible under s 97(1)(b) unless the court thinks that it will, either by itself or having regard to other evidence, have "significant probative value". The appellant was convicted in the Supreme Court of New South Wales of the murder of his two and a half year old stepdaughter. The victim died as the result of blunt force trauma to her abdomen. There was no dispute that only three people had the opportunity to inflict the fatal injuries. To support its case that the appellant was the perpetrator, the prosecution adduced two categories of tendency evidence to prove that the appellant had a tendency to "deliberately inflict physical harm on the child". The first category concerned burns the victim sustained 10 days prior to the fatal injuries while in the bath in the appellant's care, and the second comprised three pieces of hearsay evidence of statements the victim made to relatives to the effect that the appellant had hurt her neck, caused bruising on her arm, and punched her. The trial judge admitted both categories. The appellant contended that the tendency evidence was wrongly admitted because it was not sufficiently similar to the charged conduct, relying on the observation of the majority in Hughes v The Queen (2017) 263 CLR 338 ("Hughes") that, where tendency evidence is adduced "to prove the identity of the offender for a known offence, the probative value of tendency evidence will almost certainly depend upon close similarity between the conduct evidencing the tendency and the offence". The High Court unanimously held that the majority's observation in Hughes does not establish a general rule requiring close similarity between the conduct evidencing the tendency and the offence in every case where the identity of the offender is in issue. It instead postulates a situation where there is little or no other evidence of identity, and the identity of the perpetrator is at large. The assessment of probative value requires consideration of two interrelated but separate matters: the extent to which the evidence supports the asserted tendency, and the extent to which the tendency makes more likely the fact or facts sought to be proved by the evidence. Here, the evidence supported the existence of the asserted tendency. As there was other strong evidence which went to identity, and there were only two other possible perpetrators, the tendency was sufficiently striking that its existence was capable of being important to a conclusion that the appellant was the perpetrator and, accordingly, the evidence had significant probative value. This was so even without the close similarity insisted upon by the appellant.

HIGH COURT OF AUSTRALIA Public Information Officer 28 September 2006 Comcare must assess compensation for a workplace physical injury and a psychiatric injury separately, rather than treat the second injury as merely a cumulative effect of the first, the High Court of Australia held today. Mr Canute worked for the Department of Defence as a civilian cleaning and maintenance contractor. He injured his back at work in 1997 and again in 1998. He was unable to work for two years after the second incident. Comcare allowed his claim for his back injury. In 1999 Mr Canute lodged a claim for permanent injury compensation. A doctor assessed him as having 15 per cent whole person impairment with respect to his back injury and 10 per cent for his right leg, in which he suffered chronic pain radiating from his back. The doctor assessed that 50 per cent of his condition existed before the work injuries. Comcare accordingly made an award of 12 per cent impairment under section 24 of the Safety, Rehabilitation and Compensation Act, which amounted to $13,731.28, plus $15,876.80 for non- economic loss under section 27 of the Act. In 2002, he lodged a second claim for permanent injury compensation after being diagnosed as having an adjustment disorder with depression. Comcare denied liability on the basis that Mr Canute’s whole person impairment had not increased by at least 10 per cent, as required by section 25(4) of the Act. This states that where Comcare has made a final assessment of an employee’s degree of permanent impairment, no further amounts shall be payable in respect of a subsequent increase in the degree of impairment unless the increase is 10 per cent or more. The Administrative Appeals Tribunal affirmed Comcare’s decision to deny Mr Canute further lump sum compensation for the psychiatric injury. It found that combining the 12 per cent impairment for the back injury with the 10 per cent impairment for the adjustment disorder produced a 21 per cent whole person impairment, which was an increase of less than the 10 per cent required for further compensation. In the Federal Court, Justice Graham Hill overturned the AAT’s determination. He held that the AAT had erred in failing to consider whether the chronic adjustment disorder was itself “an injury” for the purposes of the Act. The fact that the two injuries arose from a single event was not relevant as the Act is concerned with injuries rather than incidents. Justice Hill’s decision was overturned by a majority of the Full Court. Mr Canute then appealed to the High Court. The Court unanimously allowed the appeal and directed that Comcare determine an amount payable to Mr Canute in accordance with sections 24 and 27 of the Act for an adjustment disorder resulting in a degree of permanent impairment of 10 per cent. The Court held that the AAT had misapplied the concept of “injury” as defined by the Act and restored Justice Hill’s decision. It held that the Full Court majority had departed from the terms of section 25(4) and misconstrued the Act by describing the disorder as contributing to a subsequent increase in the degree of impairment attributable to the earlier back injury, rather than as a separate “injury” resulting in an impairment giving rise to a separate liability under section 24. The Court held that the Act makes no distinction between “an injury” and a consequential or secondary injury. As the adjustment disorder was a separate injury, not related to the impairments resulting from the back injury, section 25(4) did not apply.

HIGH COURT OF AUSTRALIA 27 April 2005 STEPHEN BLACKADDER v RAMSEY BUTCHERING SERVICE PTY LTD An Australian Industrial Relations Commission (AIRC) order for reinstatement of an employee required the employer to provide actual work to the reinstated employee, the High Court of Australia held today. Mr Blackadder, a boner at Ramsey’s abattoir in Grafton, was sacked in September 1999 after he refused to undertake hot neck boning instead of his usual hindquarter boning of pre-chilled carcasses. Hot neck boning involves freeing meat from the bones from the neck to the ribs and requires greater rotational force of the elbow and wrist than general boning. Mr Blackadder had an old injury to his right elbow affecting movement in that arm. He refused to do hot neck boning because he had no experience or training in it. He may therefore have been a danger to himself and others in undertaking that work. In March 2000, AIRC Commissioner Bob Redmond found the termination to be unfair, harsh and unreasonable. He ordered that Mr Blackadder be reinstated with all his entitlements and that his lost salary and entitlements be restored. Ramsey wrote to him to say he was required to have a medical assessment before resuming physical work. When Mr Blackadder refused to undergo the examination, because he said Commissioner Redmond’s order did not require it, and he was ready, willing and able to resume his previous boning work, Ramsey stopped his wages. In July 2000 Mr Blackadder commenced action in the Federal Court of Australia to enforce the AIRC orders. Ramsey resumed paying him but refused to provide him with work and arranged a medical examination, to which he was prepared to submit, for February 2001. However the doctor refused to examine him because Mr Blackadder insisted on his wife being present. Ramsey again stopped his wages. Mr Blackadder eventually underwent a medical examination in April 2001. Ramsey resumed paying him but still refused to provide him with work. In the Federal Court in May 2001, Justice Rodney Madgwick held that reinstatement included giving Mr Blackadder his usual work and ordered Ramsey to let him resume chilled boning work. The Full Court of the Federal Court, by majority, allowed in part an appeal by Ramsey. It held that an employer had no obligation to provide work unless a contract of employment specifically required it. The Full Court left the reinstatement order intact except for specifying that he was to work as a boner in the chilled boning room, meaning he could be directed to do hot neck boning. The High Court unanimously allowed an appeal by Mr Blackadder. It held that to pay him, but not to restore him to his usual position in the workplace, was not to reinstate him. The AIRC had power under the Workplace Relations Act to make an order requiring the employer to provide a reinstated worker with actual work to do and the Federal Court had power to enforce an order. The Court held that Mr Blackadder had to be given back his job, performing the same duties on the same terms and conditions, and that reinstatement was not conditional on a medical examination.

HIGH COURT OF AUSTRALIA 9 February 2022 ZG OPERATIONS & ANOR v JAMSEK & ORS [2022] HCA 2 Today, the High Court allowed an appeal from a judgment of the Full Court of the Federal Court of Australia. The appeal concerned whether two truck drivers were engaged by a company as employees or independent contractors. Between 1977 and 2017, Mr Jamsek and Mr Whitby ("the respondents") were engaged as truck drivers by a business run by the second appellant ("the company"). The respondents were initially engaged as employees of the company and drove the company's trucks. However, in 1985 or 1986, the company offered the respondents the opportunity to "become contractors" and purchase their own trucks. The respondents agreed to the new arrangement and set up partnerships with their respective wives. Each partnership executed written contracts with the company for the provision of delivery services, purchased trucks from the company, paid the maintenance and operational costs of those trucks, invoiced the company for its delivery services, and was paid by the company for those services. Income from the work performed for the company was declared as partnership income for the purposes of income tax and split between each respondent and his wife. The respondents commenced proceedings in the Federal Court of Australia seeking declarations in respect of certain entitlements alleged to be owed to them pursuant to the Fair Work Act 2009 (Cth), the Superannuation Guarantee (Administration) Act 1992 (Cth) and the Long Service Leave Act 1955 (NSW). The respondents claimed to be owed those entitlements on the basis that they were employees of the company. The primary judge concluded that the respondents were not employees, and instead were independent contractors. The Full Court overturned that decision and held that, having regard to the "substance and reality" of the relationship, the respondents were employees. The High Court unanimously held that the respondents were not employees of the company. A majority of the Court held that, consistently with the approach adopted in Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1, where parties have comprehensively committed the terms of their relationship to a written contract, the efficacy of which is not challenged on the basis that it is a sham or is otherwise ineffective under general law or statute, the characterisation of that relationship as one of employment or otherwise must proceed by reference to the rights and obligations of the parties under that contract. After 1985 or 1986, the contracting parties were the partnerships and the company. The contracts between the partnerships and the company involved the provision by the partnerships of both the use of the trucks owned by the partnerships and the services of a driver to drive those trucks. The context in which the first contract was entered into involved the company's refusal to continue to employ the drivers and the company's insistence that the only relationship between the drivers and the company be a contract for the carriage of goods. This relationship was not a relationship of employment.

HIGH COURT OF AUSTRALIA Public Information Officer 2 October 2008 MINISTER ADMINISTERING THE CROWN LANDS ACT v NSW ABORIGINAL LAND COUNCIL Steps taken to sell off an old motor vehicle registry in Wagga Wagga did not amount to use of the land, so the site was open to claim by the Aboriginal Land Council, the High Court of Australia held today. On 23 May 2005, the Land Council, on behalf of the Wagga Wagga Local Aboriginal Land Council made a claim under the NSW Aboriginal Land Rights Act to the 815 square metre allotment in the Wagga business district. A derelict two-storey brick building stood on the site. It was used as a motor registry from 1958 to 1985 and afterwards has been used to store old office furniture. After a plan to turn the building into a laboratory was abandoned in 2004, the State government decided to sell the site. Before the land claim was made, a real estate agent was appointed, an identification survey of the land was made, the Register-General issued a certificate of title, reservation of the land for a “government supply department office and workshop” was revoked, and an auction date of 8 July 2005 was fixed. The Minister for Lands refused the claim, concluding that the land was not claimable Crown land because it was lawfully used and occupied by the Department of Lands in preparing it for sale. The Land Rights Act’s definition of “claimable Crown lands” was limited to lands that were “not lawfully used or occupied”. The Land Council appealed to the NSW Land and Environment Court against the refusal of the claim. Justice Peter Biscoe dismissed the appeal and held that the decision to sell the land and the steps taken to do so were an actual use of the land. The Land Council appealed to the Court of Appeal which allowed the appeal, held that the land was not being used when the claim was made, declared that the land was claimable Crown land, and ordered the Minister to transfer the land to the Wagga Land Council. The Minister appealed to the High Court. The Court unanimously dismissed the appeal. It held that sale of the land would amount to exploitation of the land as an asset but it did not follow that exploitation by sale amounted to use of the land. The steps taken to bring about the sale did not amount to lawful use. Nothing was being done on the land when the claim was made and nothing had been done for a considerable time before then. Visits by surveyors and the real estate agent did not amount to a use of the land for the purposes of the Land Rights Act and everything else that was being done towards selling the land occurred elsewhere.

HIGH COURT OF AUSTRALIA 10 June 2015 KING v PHILCOX [2015] HCA 19 Today the High Court unanimously allowed an appeal from a decision of the Full Court of the Supreme Court of South Australia and held that while the Full Court did not err in finding that the appellant owed the respondent a duty of care under s 33 of the Civil Liability Act 1936 (SA), the respondent could not recover damages for mental harm because of the operation of s 53 of the Act. Section 33(1) provides that it is a necessary condition for the establishment of a duty of care not to cause mental harm that "a reasonable person in the defendant's position would have foreseen that a person of normal fortitude in the plaintiff's position might, in the circumstances of the case, suffer a recognised psychiatric illness". Section 33(2) lists circumstances to be considered in applying s 33(1), which, in the case of pure mental harm, include the nature of the relationship between the plaintiff and any person killed, injured or put in peril. Section 53(1) limits the circumstances in which a plaintiff may recover damages for mental harm caused by an accident. If the plaintiff is not a parent, spouse or child of a person killed, injured or endangered in the accident, he or she must have been physically injured in the accident or "present at the scene of the accident when the accident occurred" to recover damages. On 12 April 2005, the respondent's brother was a passenger in a motor vehicle driven by the appellant. Between 4.50pm and 4.55pm, as a result of the appellant's negligence, the vehicle collided with another vehicle at an intersection in Campbelltown, Adelaide. The respondent's brother died while trapped in the vehicle. After the collision, the respondent drove through or turned left at the intersection on five occasions. On the final occasion the accident scene had been cleared. The respondent was told later that evening that his brother had died in a traffic accident. He realised this was the accident at the intersection, the aftermath of which he had witnessed. He visited the accident scene the next day. Subsequently, he developed a major depressive disorder. The respondent brought proceedings in the District Court of South Australia seeking damages for mental harm. The District Court found that the respondent owed the appellant a duty of care, but that the appellant could not recover damages because he had failed to establish causation and did not satisfy the requirements for recovery of damages under s 53. The Full Court of the Supreme Court of South Australia allowed an appeal from that decision and awarded damages. The Full Court held that the respondent satisfied the necessary requirements of duty, breach and causation, and that he was present at the scene of the accident "when the accident occurred", within the meaning of s 53(1)(a). By grant of special leave, the appellant appealed to the High Court. The appellant submitted he did not owe the respondent a duty of care and that even if a duty of care existed, the respondent could not recover damages because of the operation of s 53. The High Court allowed the appeal, holding that while the Full Court did not err in finding that a duty of care was owed to the respondent under s 33, the respondent was not present at the scene of the accident "when the accident occurred", within the meaning of s 53(1)(a). As the respondent could not satisfy the requirements of s 53, he could not recover damages.

HIGH COURT OF AUSTRALIA Public Information Officer 1 February 2007 ALAN DAVID JOHN KLEIN v MINISTER FOR EDUCATION The High Court of Australia today revoked its grant to former Perth security guard Mr Klein of special leave to appeal. Mr Klein worked for Falcon Investigations and Security, which had a contract with the Minister to provide security for designated public schools in the State. On the night of 1 November 1999, while patrolling Perth schools, he was called to a primary school where a youth was smashing windows. Chasing the intruder through knee-high grass in the school grounds, Mr Klein fell. His injuries included a broken kneecap. He was unable to continue to work for Falcon. Mr Klein brought an action against the Minister in the WA District Court under the Occupiers’ Liability Act. The Minister argued he was a deemed employer under section 175(1) of the then Workers’ Compensation and Injury Management Act. He relied on the 2002 decision by the Full Court of the WA Supreme Court, Hewitt v Benale Pty Ltd, that the deeming by section 175(1) of both principal and contractor as employers meant that the constraints on damages in the Act applied to injured workers bringing action, independently of the Act, against a person who was deemed by section 175 to be their employer. Mr Klein argued that, because section 175(3) provided that a principal contractor was not liable unless the work on which the worker was employed was directly a part or process in the principal’s trade or business, the Occupiers’ Liability Act applied. The District Court held that provision of security services was not work which is directly a part or process in the trade or business of the Minister and the Minister had a duty as an occupier of land to protect entrants in respect of the state of the premises under the Occupiers’ Liability Act. Mr Klein was awarded damages of $100,187. The WA Court of Appeal allowed the Minister’s appeal, holding that maintaining government schools, including securing them, was to be treated as the trade or business of the Minister and Mr Klein’s work was directly a part of that trade or business. Mr Klein was then granted special leave to appeal to the High Court in relation to the construction of section 175. The Court, by a 3-2 majority, revoked the special leave to appeal granted to Mr Klein. The minority would not have revoked special leave but would have dismissed the appeal. In 2004, the WA Parliament amended the Act to prevent section 175 curtailing the rights of workers to make claims against such persons independently of the Act. The majority held that the Parliament’s reliance on the correctness of Hewitt v Benale Pty Ltd, coupled with the closing of the class of cases in which issues of the kind raised in this case, make it inappropriate for the High Court now to consider whether to disturb the state of the law as stated in Hewitt.

HIGH COURT OF AUSTRALIA 9 December 2020 UMINISTER FOR HOME AFFAIRS v DUA16 & ANOR; MINISTER FOR HOME AFFAIRS v CHK16 & ANOR [2020] HCA 46 Today the High Court unanimously dismissed the appeal in Minister for Home Affairs v CHK16 & Anor and allowed the appeal in Minister for Home Affairs v DUA16 & Anor. CHK16 and DUA16 each paid a registered migration agent to provide submissions on their behalf to the Immigration Assessment Authority ("the Authority"). The agent acted fraudulently by providing pro forma submissions to the Authority and concealing this fact from her clients in the belief that, if she disclosed this fact, her clients would not have paid for her professional services. In CHK16's case the entirety of the personal circumstances referred to in the submissions concerned the wrong person; they contained no personal information relevant to CHK16's claims. In DUA16's case the submissions contained some personal information that was relevant to DUA16's claims, but they also contained information that related to a different applicant. In both cases the Authority was unaware of the agent's fraud, but noticed that the submissions contained information that concerned another individual and disregarded this information. effect on The Federal Circuit Court set aside the Authority's decision in both cases on the basis that the performance of the Authority's functions had been stultified by the agent's conduct. An appeal to the Full Court of the Federal Court was dismissed by a majority of that Court. The Minister appealed to the High Court on the basis that the agent's fraud had not been shown to have had any the Migration Act 1958 (Cth). By notices of contention each of CHK16 and DUA16 argued that the Full Court's decision should be upheld because it was legally unreasonable for the Authority not to have exercised its power to obtain corrected submissions, involving potentially new information, from the agent when it knew that the submissions concerned the wrong person in whole or in part. the Authority under Pt 7AA of function of statutory The High Court held that the agent's fraud did not vitiate the Authority's decision because it had not been shown that the agent's fraud had affected a particular duty, function, or power of the Authority. However, the Court upheld the notice of contention in CHK16's case, concluding that it was legally unreasonable for the Authority to have failed to request submissions pursuant to s 473DC of the Migration Act in circumstances where it was aware that CHK16 intended to provide submissions, that those submissions might contain new information, and that the submissions in fact provided concerned the personal circumstances of another individual entirely. There was no such unreasonableness in DUA16's case because the Authority drew the reasonable conclusion that the information relating to another individual had been included by mistake.

HIGH COURT OF AUSTRALIA 28 September 2017 ANDREW DAMIEN WILKIE & ORS v THE COMMONWEALTH OF AUSTRALIA & ORS; AUSTRALIAN MARRIAGE EQUALITY LTD & ANOR v MINISTER FOR FINANCE MATHIAS CORMANN & ANOR [2017] HCA 40 Today the High Court published unanimous reasons in two proceedings, each commenced in the Court's original jurisdiction, in which the Court upheld the validity of s 10 of the Appropriation Act (No 1) 2017-2018 (Cth) ("the Act"), the Advance to the Finance Minister Determination (No 1 of 2017-2018) ("the Finance Determination") and the Census and Statistics (Statistical Information) Direction 2017 ("the Statistics Direction"). On 7 September 2017, the High Court dismissed the first proceeding ("the Wilkie proceeding") and gave answers to questions reserved in the second proceeding ("the AME proceeding") rejecting the challenge on its merits. Section 12 of the Act provided that the Consolidated Revenue Fund was appropriated as necessary for the purposes of the Act. Schedule 1 to the Act specified services for which money was appropriated. Section 10 of the Act provided for an "Advance to the Finance Minister", up to a total amount of $295 million, which could be used if the Finance Minister was satisfied that there was an urgent need for expenditure, in the current year, that was not provided for, or was insufficiently provided for, in Schedule 1 because the expenditure was unforeseen until after the last day on which it was practicable to provide for it in the Bill for the Act. The last day on which it was practicable to provide for expenditure in that Bill was 5 May 2017. On 9 August 2017, the Finance Minister announced that the Government would proceed with a voluntary postal plebiscite to ask electors whether the law should be changed to allow same-sex couples to marry. The Finance Minister also announced that he had made the Finance Determination, under s 10 of the Act, to provide $122 million to the Australian Bureau of Statistics ("the ABS") to allow it to conduct the postal plebiscite. On the same day, the Treasurer gave the Statistics Direction, which directed the Australian Statistician to collect statistical information about the proportion of electors who wished to express a view about whether the law should be changed to allow same-sex couples to marry and the proportions of such electors who were in favour of and against the law being changed. The plaintiffs in the Wilkie proceeding submitted that s 10 of the Act was constitutionally invalid as it was not an appropriation for a purpose that Parliament had lawfully determined may be carried out and impermissibly delegated Parliament's power of appropriation to the Finance Minister. The Court held that these arguments were based on a fundamental misconstruction of the Act. The provision of the Act which appropriated the Consolidated Revenue Fund was s 12, not s 10. The power of the Finance Minister to make a determination under s 10(2) was a power to allocate the whole or part of the $295 million specified in s 10(3), which was already appropriated. The Court held that it was for Parliament to determine the degree of specificity with which the purpose of an appropriation is identified and that to appropriate by s 12 the amount specified in s 10(3) to be applied in accordance with a direction by the Finance Minister under s 10(2) was to appropriate that amount for a purpose which Parliament had lawfully determined may be carried out. In addition, the plaintiffs in each proceeding submitted that the Finance Determination was not authorised by s 10 of the Act because the preconditions in s 10 had not been met and because the Finance Minister had erred in law by conflating the statutory question of his satisfaction as to the expenditure being urgent with the distinct statutory question of his satisfaction as to the expenditure being unforeseen. The Court held that whether expenditure was unforeseen was a matter for the Minister's satisfaction. Further, the need for the expenditure did not have to arise from a source external to Government. The Court held that the Finance Minister formed the requisite state of satisfaction and there was no error of law in either his reasoning or his conclusion. The plaintiffs in the Wilkie proceeding also argued that the Statistics Direction exceeded the power of the Treasurer under s 9(1)(b) of the Census and Statistics Act 1905 (Cth). The Court held that the Statistics Direction was valid on the basis that the information to be collected by the Australian Statistician was "statistical information", that the information was "in relation to" matters prescribed in the Census and Statistics Regulation 2016 (Cth), and that there was nothing in s 9(1)(b) to prevent the Treasurer from specifying from whom information was to be collected. An argument that the Australian Electoral Commission was not authorised to assist the ABS in the implementation of the Statistics Direction also failed. The merits of the grounds in each proceeding having been fully argued and the Court having unanimously reached the conclusion that those grounds were without substance, the Court held that it was unnecessary and inappropriate in the circumstances to determine whether the plaintiffs in each proceeding, or any of them, had standing.

HIGH COURT OF AUSTRALIA 30 May 2012 PGA v THE QUEEN [2012] HCA 21 Today the High Court by majority dismissed an appeal from the Full Court of the Supreme Court of South Australia, which had held that a husband could be guilty of rape of his wife in 1963. In 2010, the appellant was charged with a number of criminal offences including two counts of rape. It was alleged that in 1963 the appellant raped his then wife, with whom he lived at the time. In 1963, s 48 of the Criminal Law Consolidation Act 1935 (SA) ("the CLC Act") criminalised rape but did not define the elements of the offence. Those elements were supplied by the common law. Legislative amendments in South Australia, which removed the limitation period in respect of offences against s 48, permitted the prosecution of the appellant despite the lapse of time between 1963 and 2010. A Judge of the District Court of South Australia stayed the trial of the appellant and reserved for determination by the Full Court the following question of law: "Was the offence of rape by one lawful spouse of another ... an offence known to the law of South Australia as at 1963?" A majority of the Full Court answered that the appellant could be guilty of rape of his wife in 1963. By special leave, the appellant appealed to the High Court seeking to set aside this answer to the reserved question of law. In the Full Court and in the High Court, the appellant argued that until the High Court's decision in R v L (1991) 174 CLR 379, the common law with respect to rape in marriage was correctly stated by Sir Matthew Hale. In 1736, Hale wrote that a husband could not be guilty of raping his wife because, by marriage, she gave her irrevocable consent to intercourse. In 1991, the High Court in R v L held that, if it was ever a part of the common law of Australia that by marriage a wife gave irrevocable consent to sexual intercourse with her husband, this was no longer a part of the common law by 1991. A majority of the High Court dismissed the appeal. The majority held that if the marital exemption to rape was ever a part of the common law of Australia, it had ceased to be so at least by the time of the enactment of s 48 of the CLC Act in 1935. Local statute law, including legislation about divorce, property and voting, had removed any basis for the acceptance of Hale's proposition as a part of the common law applicable in Australia in 1963. The majority emphasised that this conclusion involved no retrospective variation or modification of a settled rule of the common law of Australia.

HIGH COURT OF AUSTRALIA 16 June 2021 MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS v DEANNA LYNLEY MOORCROFT [2021] HCA 19 Today, the High Court unanimously allowed an appeal from the Federal Court of Australia. The appeal concerned the construction of para (d) of the definition of "behaviour concern non-citizen" in s 5(1) of the Migration Act 1958 (Cth) ("the Act") and in particular whether "removed ... from Australia" in para (d) means taken out of the country in fact or removed in accordance with the Act. Upon returning to Australia from New Zealand in January 2018, the respondent was automatically granted a special category visa. Her visa was purportedly cancelled the next day and she was taken into immigration detention before being required to depart Australia ("purported cancellation decision"). The purported cancellation decision was subsequently quashed by the Federal Circuit Court of Australia with the result that the cancellation of the respondent's visa was "retrospectively nullified" so that the respondent was not an unlawful non-citizen when she left Australia. When she returned to Australia in January 2019, the respondent's application for a new special category visa was refused on the basis that she was a "behaviour concern non-citizen" due to her removal from Australia in January 2018 ("refusal decision"). The respondent challenged the refusal decision first unsuccessfully in the Federal Circuit Court and then successfully on appeal to the Federal Court. The appellant ("Minister") accepted that there was no power to remove the respondent in January 2018 but contended that this was irrelevant because, as the Federal Circuit Court concluded, "removed" means taken out of Australia in fact. The respondent contended, and the Federal Court agreed, that a non-citizen is not "removed" from Australia unless that removal is effected in accordance with Div 8 of Pt 2 of the Act. The High Court unanimously overturned the Federal Court's decision and concluded that the Minister's contention was correct: "removed ... from Australia" in para (d) means removed in fact. Accordingly, although the purported cancellation decision was quashed, the Court held that this did not change the historical fact that the respondent had been removed from Australia and was therefore a "behaviour concern non-citizen" within the meaning of the Act. The Court reasoned that this interpretation accords with the ordinary literal meaning of para (d) and is supported by the statutory context and purpose of facilitating fast and simple decision-making about whether to grant special category visas. The Court held the respondent's construction of para (d), that "removed" means lawfully or validly removed, may involve delegates of the Minister engaging in a complex and time-consuming evaluative assessment about the circumstances of a person's removal, a task which delegates are likely to be ill-equipped to perform at immigration clearance. The literal construction avoids a result that would require the Executive, on occasion, and ultimately Australian courts, to assess the legality of actions of other governments. The appeal was therefore allowed, and the Federal Court's orders set aside.

HIGH COURT OF AUSTRALIA 7 October 2015 ALCAN GOVE PTY LTD v ZABIC [2015] HCA 33 Today the High Court published its reasons for dismissing an appeal from a decision of the Court of Appeal of the Northern Territory of Australia. The High Court unanimously held that the respondent was not statute-barred from suing the appellant in negligence in respect of mesothelioma he contracted as a result of inhaling asbestos fibres during his employment with the appellant. The respondent was employed as a labourer at the appellant's alumina refinery from 1974 to 1977. Around late 2013 or early 2014, he began to experience symptoms of mesothelioma. The Workers Rehabilitation and Compensation Act (NT) ("the Act") abolished common law actions in negligence with respect to certain workplace injuries and provided for limited statutory rights to compensation for injured workers. Sections 52(1) and 189(1) of the Act provided, in effect, that the respondent could not sue the appellant for damages in negligence unless his cause of action accrued before 1 January 1987. The respondent commenced proceedings in the Supreme Court of the Northern Territory of Australia. The main issue in dispute was whether the respondent had suffered compensable damage before 1 January 1987. The evidence at trial was that the asbestos fibres that the respondent inhaled while working at the refinery caused changes to his mesothelial cells soon after the inhalation, which ultimately culminated in malignant mesothelioma. The changes to the cells were likely to have lain dormant until one to five years before the first manifestation of symptoms. At that point, an unknown "trigger" set off the development of abnormal genetic switches in the respondent's mesothelial cells that resulted in malignancy. The respondent's claim was dismissed at trial, but the Court of Appeal allowed the respondent's appeal. The Court of Appeal held that, with the benefit of hindsight, it was possible to infer that the mesothelial cell changes that occurred soon after exposure to asbestos between 1974 and 1977 led inevitably and inexorably to the onset of mesothelioma. The respondent's cause of action therefore arose before 1 January 1987. By grant of special leave, the appellant appealed to the High Court. On 12 August 2015, the High Court published an order dismissing the appeal. In its reasons published today, the Court unanimously held that, on the evidence given at trial, it could be inferred that the "trigger" which led to mesothelioma was present in the respondent's mesothelial cells when the initial changes to the cells occurred. It followed that, because the mesothelial cell changes were bound to lead to mesothelioma, the respondent had suffered compensable damage at the time of the cell changes. His cause of action in negligence therefore arose before 1 January 1987 and his claim against the appellant was not barred by the Act.

HIGH COURT OF AUSTRALIA 30 March 2011 NOELENE MARGARET EDWARDS & ORS v SANTOS LIMITED & ORS [2011] HCA 8 Today the High Court issued a writ of certiorari to quash decisions of the Federal Court of Australia which had dismissed proceedings instituted by registered native title claimants arising out of negotiations for an Indigenous Land Use Agreement ("ILUA") under the Native Title Act 1993 (Cth) ("the NTA"). The plaintiffs are members of the Wongkumara People. The land the subject of their native title claim is in Queensland and New South Wales. Two of the defendants hold an authority to prospect in respect of land in Queensland falling within the boundaries of the claimed land ("the petroleum defendants"). The authority to prospect was granted by the second defendant, the State of Queensland, under the Petroleum Act 1923 (Q). Section 40 of the Petroleum Act entitled the holder of an authority to prospect to the lease of land for petroleum exploration (a "production lease"). The Wongkumara People and the petroleum defendants negotiated entry into an ILUA in relation to future grants which might be "future acts" within the meaning of the NTA. The petroleum defendants asserted that the authority to prospect which they held pre-dated the NTA and that any production leases emanating from the authority to prospect would be "pre-existing rights based acts" and not subject to the "right to negotiate" under the NTA. The plaintiffs took issue with the contention that the production leases would be pre-existing rights based acts and instituted proceedings in the Federal Court seeking declaratory and injunctive relief. The plaintiffs' claim was summarily dismissed under s 31A(2) of the Federal Court of Australia Act 1976 (Cth) on the ground that the application had no reasonable prospect of success and that the Federal Court did not have jurisdiction to hear the application. The Full Federal Court refused leave to appeal from the orders of the primary judge. Section 33(4B)(a) of the Federal Court of Australia Act precluded the plaintiffs from seeking special leave to appeal to the High Court against the Full Court's decision. Accordingly, the plaintiffs applied, in the High Court's original jurisdiction, for the issue of writs pursuant to s 75(v) of the Constitution in relation to the Federal Court decisions. The High Court held that the Federal Court had jurisdiction to hear and determine the plaintiffs' application because there had been a "matter" arising under a federal enactment, namely, the NTA, the plaintiffs had not sought an advisory opinion and the plaintiffs had standing to seek declaratory and injunctive relief. The Federal Court had wrongfully denied its jurisdiction and thereby fell into jurisdictional error attracting a writ of certiorari to quash its decisions. A majority of the High Court additionally considered that an order in favour of the plaintiffs should be made for the costs of the Federal Court proceedings under the High Court's power in s 32 of the Judiciary Act 1903 (Cth) to grant remedies in the cause or matter before it to completely and finally determine so far as is possible all matters in controversy between the parties.

HIGH COURT OF AUSTRALIA 19 June 2019 [2019] HCA 21 Today the High Court unanimously allowed an appeal from a judgment of the Full Court of the Family Court of Australia concerning parenting orders made under Pt VII of the Family Law Act 1975 (Cth) ("the Act"). In 2006, the appellant provided semen to the first respondent for her to conceive a child by way of artificial insemination. At the time of conception, he believed that he was fathering the child and would thus support and care for her. His name was entered on the child's birth certificate as her father. Although the child lived with the first respondent and later also her de facto partner ("the second respondent"), the appellant continued to have an ongoing role in the child's financial support, health, education and general welfare. He was described by the primary judge as enjoying an extremely close and secure attachment relationship with the child. By 2015, the first and second respondents had resolved to move overseas and take the child with them. The appellant responded by instituting proceedings in the Family Court of Australia for orders under the Act, among other things, conferring shared parental responsibility between himself and the first and second respondents. Section 60H of the Act provides rules in respect of the parentage of children born of artificial conception procedures. The primary judge accepted that the appellant did not qualify as parent under s 60H but held that, because that provision expanded rather than restricted the categories of people who could be parents, and because the appellant was a parent within the ordinary meaning of the word, the appellant was a parent of the child for the purposes of the Act. On appeal, the Full Court of the Family Court agreed that s 60H was not exhaustive, but held that, because the matter was within federal jurisdiction, s 79(1) of the Judiciary Act 1903 (Cth) picked up and applied s 14 of the Status of Children Act 1996 (NSW), under which the appellant was irrebuttably presumed not to be the child's parent. By grant of special leave, the appellant appealed to the High Court. A majority of the High Court held that s 79(1) of the Judiciary Act did not pick up and apply ss 14(2) and 14(4) of the Status of Children Act because the presumption in ss 14(2) and 14(4) operated as a rule of law, determinative of parental status, independently of anything done by a court or other tribunal, in contrast to provisions regulating the exercise of jurisdiction. The majority also held that, even if ss 14(2) and 14(4) were provisions regulating the exercise of State jurisdiction, they could not be picked up by s 79(1) of the Judiciary Act, because the Act had "otherwise provided" within the meaning of s 79(1).. Further, because the tests for contrariety under s 79(1) of the Judiciary Act and s 109 of the Constitution were identical, ss 14(2) and 14(4) did not form a part of the single composite body of law operating throughout the Commonwealth and as such apply of their own force in federal jurisdiction as a valid law of New South Wales. Finally, the majority held that no reason had been shown to doubt the primary judge's conclusion that the appellant was a parent of the child.

HIGH COURT OF AUSTRALIA 9 March 2016 MORETON BAY REGIONAL COUNCIL v MEKPINE PTY LTD [2016] HCA 7 Today the High Court unanimously allowed an appeal from the Court of Appeal of the Supreme Court of Queensland. The High Court held that the respondent ("Mekpine"), the holder of a retail lease in a shopping centre on certain land ("former Lot 6") that was later amalgamated with an adjacent lot of land ("former Lot 1"), did not acquire an interest over the entire amalgamated lot ("new Lot 1"). Accordingly, the High Court held that Mekpine was not entitled to compensation under the Acquisition of Land Act 1967 (Q) when part of new Lot 1 that was previously part of former Lot 1 was resumed by the appellant ("the Council"). Mekpine entered into a retail lease in a shopping centre. The terms of the lease relevantly gave Mekpine an entitlement to use the "Common Areas" of the "Land". "Land" was defined in the lease as former Lot 6. The lessor later purchased former Lot 1. In accordance with planning approval to extend the shopping centre, former Lot 6 was amalgamated with former Lot 1 by the registration of a plan of subdivision that created new Lot 1. Subsequently, the Council resumed a strip of vacant land from part of new Lot 1 that was previously part of former Lot 1 ("the Resumed Land"). The Resumed Land was never part of former Lot 6. Mekpine brought proceedings in the Land Court of Queensland seeking compensation on the basis that it gained an interest in the Resumed Land upon registration of the plan of subdivision that created new Lot 1. In the alternative, Mekpine claimed it had an interest in the Resumed Land because the definition of "Common Areas" in the lease was inconsistent with, and should be substituted by, the broader definition of "common areas" in the Retail Shop Leases Act 1994 (Q) ("the RSLA"). The Land Court upheld Mekpine's claim for compensation. The Land Appeal Court of Queensland allowed the Council's appeal from the Land Court's judgment, concluding that the amalgamation of former Lot 1 with former Lot 6 did not confer on Mekpine any interest beyond the land previously comprised in former Lot 6. Mekpine appealed to the Court of Appeal of the Supreme Court of Queensland and the appeal was allowed. The Court of Appeal held that Mekpine had an interest in the Resumed Land because, on registration of the plan of subdivision that created new Lot 1, the reference to "Land" in the lease became a reference to new Lot 1. It also held that the RSLA, in effect, amended the lease so that the "Common Areas" as defined in the lease became the "common areas" in new Lot 1. By grant of special leave, the Council appealed to the High Court. The High Court unanimously allowed the appeal, holding that, despite the registration of the plan of subdivision that created new Lot 1, the terms of the lease confined Mekpine's interest to so much of new Lot 1 as had previously been comprised in former Lot 6. The Court also held that the RSLA definition of "common areas" did not supplant the definition of "Common Areas" in the lease to give Mekpine a compensable interest in the Resumed Land.

HIGH COURT OF AUSTRALIA 14 June 2017 STATE OF NEW SOUTH WALES v DC & ANOR [2017] HCA 22 Today the High Court revoked a grant of special leave to appeal against a decision of the Court of Appeal of the Supreme Court of New South Wales. The High Court unanimously held that the case was not an appropriate vehicle for considering the scope or extent of the duty of care owed by the State of New South Wales in the exercise of certain powers under child welfare legislation. Two sisters were subjected to sustained physical and sexual abuse by their stepfather for many years. In April 1983, one of the sisters made a complaint about the abuse to the Department of Youth and Community Services ("the Department"), a department of the State. Under the now repealed Child Welfare Act 1939 (NSW) ("the CW Act"), where the Director of the Department had been notified that a child had been assaulted or was a neglected child, the Director was required to take such action as he believed appropriate, "which may include reporting those matters to a constable of police". The Department took immediate steps following the complaint but did not exercise the power to report the abuse to the police. In 2008, the sisters commenced proceedings in negligence in the Supreme Court of New South Wales against the State and one of the Department's officers. They claimed damages for harm caused by continued abuse by their stepfather after the complaint to the Department. The sisters contended that the Department breached its duty of care to them by not reporting the abuse to the police. The primary judge found that the Department had breached its duty of care to the sisters. However, the primary judge was not satisfied that the stepfather had continued to abuse the sisters after the complaint, and therefore found that the breach was not a necessary condition of the harm suffered by the sisters. The Court of Appeal, by majority, allowed an appeal by the sisters. The majority concluded that the abuse continued after the complaint to the Department. The majority also held that the Department breached its duty of care to the sisters. By grant of special leave, the State appealed to the High Court. On 10 May 2017, the High Court revoked special leave in relation to a ground of appeal relating to the vicarious liability of the State. The ground was based on a concession which may not have reflected the true state of the applicable law at the relevant times, because the statute providing for vicarious liability of the Crown was not in force at the time of the complaint. Today the High Court revoked special leave in relation to the remaining ground of appeal, which related to whether the scope of the duty of care owed by the State extended to exercising the power to report the abuse of the sisters to the police. The State accepted that there was a duty to use reasonable care in the exercise of the powers under the CW Act. Further, it accepted that there would be cases where the only reasonable exercise of those powers would be to report abuse to the police. The primary judge had made such a finding in this case. The High Court held that, in light of the course taken by the State, this case was not an appropriate vehicle for considering the scope or extent of the duty of care owed by the State.

HIGH COURT OF AUSTRALIA 21 October 2005 GREG COMBET AND NICOLA ROXON MP v COMMONWEALTH OF AUSTRALIA AND THE HONOURABLE KEVIN ANDREWS MP AND SENATOR THE HONOURABLE The Federal Government’s expenditure on its advertising campaign to promote its proposed industrial relations reforms was permitted by the Appropriation Act (No 1) 2005-2006, the High Court of Australia held today. Prime Minister John Howard announced the workplace reform package on 26 May 2005 and the ACTU immediately began a national campaign of rallies and advertising. On 9 July 2005 the Federal Government began a newspaper, television and radio advertising campaign. Mr Combet, the secretary of the ACTU, and Ms Roxon, the shadow attorney-general, contended that expenditure of public money on the advertisements was unlawful. The High Court handed down its orders on 29 September 2005, after hearing Mr Combet and Ms Roxon’s challenge on 29 and 30 August, and today handed down its written reasons for those orders. The Court, by a 5-2 majority, held that Mr Combet and Ms Roxon had not made out a case for the relief sought. They had sought declarations that paying for the advertisements and the drawing of money for those payments were not authorised and also an injunction restraining any further drawing of money. A majority of the Court held that it had not been shown that the drawings were not covered by the Appropriation Act and, in particular, the terms of Schedule 1 to that Act relating to the Employment and Workplace Relations portfolio.

HIGH COURT OF AUSTRALIA 6 April 2005 NUHA JAMIL KOEHLER v CEREBOS (AUSTRALIA) LIMITED Cerebos was not liable for a psychiatric condition suffered by Ms Koehler as Cerebos had no reason to suspect that her working conditions were a risk to her psychiatric health, the High Court of Australia held today. Ms Koehler, 50, claimed she was unable to cope with the workload she was given in her three-day- a-week job as a merchandiser, setting up displays of goods in Perth supermarkets. She had worked as a full-time sales representative for 18 months, negotiating sales of Cerebos’s products to independent supermarkets. When Cerebos lost the right to distribute a brand of tea, it retrenched Ms Koehler but offered her the part-time merchandising job. On her first day when she was shown the list of stores for which she would be responsible she said she could not possibly cover them all in three days, but her supervisor asked her to try it for a month. Ms Koehler repeatedly complained orally and in writing that she had too big an area, too many stores and too little time, and suggested ways to improve the situation, but never mentioned that the work was affecting her health. After five months in the new position she consulted her doctor about aches and pains from lifting boxes of goods. Ms Koehler was eventually diagnosed with fibromyalgia syndrome, a psycho-physical disorder resulting in severe pain, and a depressive illness, both caused by her work. Ms Koehler sued Cerebos, alleging its failure to take the steps she suggested breached its duty to provide a safe system of work. This duty was a common law duty giving rise to the negligence claim, a duty under the Occupational Safety and Health Act and an implied term of her employment contract. Commissioner Rodney Greaves in the Western Australian District Court found Ms Koehler’s workload was excessive, that Cerebos needed no particular expertise to foresee the risk of the kind of injury suffered, and that Cerebos failed in its duty to ensure all reasonable steps were taken to provide a safe system of work. Ms Koehler was awarded damages of $856,742.81. On appeal, the Full Court of the WA Supreme Court held that Cerebos could not reasonably have foreseen that Ms Koehler’s duties exposed her to a risk of psychiatric injury. Ms Koehler appealed to the High Court. The Court unanimously dismissed the appeal. It held that a reasonable person in the position of Cerebos would not have foreseen the risk of psychiatric injury to Ms Koehler. She had agreed to perform the duties which caused her injury and Cerebos had no reason to suspect that she susceptible to psychiatric injury. Within the bounds of applicable statutes, parties are free to contract so that an employee will do more work than may be the industry standard, often rewarded with higher pay. Employers are entitled to assume, in the absence of signs warning of the possibility of psychiatric injury, that employees can do the job. There was no indication that Ms Koehler had any particular vulnerability. Her complaints suggested an industrial relations problem rather than a health risk. Cerebos was not shown to have breached a duty of care.

HIGH COURT OF AUSTRALIA Public Information Officer 31 July 2008 The High Court of Australia today ordered the New South Wales Court of Criminal Appeal to rehear Mr Burrell’s appeal against conviction for the kidnap and murder of Kerry Whelan in 1997 after the CCA reopened the original appeal hearing to correct an error. Mrs Whelan disappeared on 6 May 1997. Her body has never been found. Mr Burrell had once worked for her husband Bernie Whelan’s company but had been made redundant. Shortly before Mrs Whelan’s disappearance Mr Burrell re-established contact with the Whelans. He was later charged with detaining Mrs Whelan for advantage and with murdering her on or about 6 May 1997. A trial in 2005 ended with a hung jury but Mr Burrell was convicted after a second trial in 2006. He was sentenced to life imprisonment for murder and 16 years’ jail for the kidnapping charge. Mr Burrell appealed to the CCA against his convictions and sought leave to appeal against the sentences. On Friday 16 March 2007, the CCA published reasons for its decision to dismiss the appeal against convictions, grant leave to appeal against the sentences, but dismiss that appeal. That same day, notification to Mr Burrell of the CCA’s orders was prepared in the Court’s Registry, signed on behalf of the Registrar and stamped with the Court’s seal. Particulars of the notification were entered in to the records of the NSW Supreme Court as the court of trial. After the orders were formally recorded, the CCA discovered that its reasons contained substantial factual errors. On Monday 19 March, the matter was called on by the CCA. Chief Judge at Common Law Peter McClellan said that the judgment, which he had written on behalf of the CCA, had some inaccuracies in its recounting of the Crown case. He said he had drawn upon a statement of facts alleged in the Crown case and mistakenly assumed it was correct. In further argument on 21 March, Mr Burrell submitted that the CCA had no power to reopen the appeals and that the matter should be redetermined by a newly constituted Bench because of a reasonable apprehension of bias. In reasons delivered on 23 March, the CCA rejected those submissions and held that it had power to reopen the appeals. It held that because the appeals were not determined in relation to the relevant evidence they had not been finally determined. The CCA ordered that its orders dismissing the appeals should be confirmed. Mr Burrell appealed to the High Court against the first orders made on 16 March 2007 and the second orders made on 23 March 2007. The Court unanimously allowed the appeal. It held that the CCA lacked power to reopen the appeals after the first orders had been formally recorded. The second orders were made without power so must be set aside. As there was no dispute that the first orders were flawed because of the factual errors, those orders must also be set aside. The Court ordered that Mr Burrell’s appeal against conviction and his application for leave to appeal against sentence be remitted to the CCA for rehearing.

HIGH COURT OF AUSTRALIA 13 December 2006 Public Information Officer CELIA KATHLEEN CLAYTON v THE QUEEN JOHN DOUGLAS HARTWICK v THE QUEEN LISA JANE HARTWICK v THE QUEEN The High Court of Australia declined to reopen its earlier decisions on the law relating to what is sometimes called “extended common purpose” in determining criminal responsibility. Three people were convicted of murdering Steven John Borg and intentionally causing serious injury to Mr Borg’s girlfriend, Paula Michelle Rodwell, on 23 May 2001. Ms Rodwell lived in the same street as Lisa Hartwick in Frankston in Melbourne. Lisa and John Hartwick were divorced but Mr Hartwick stayed often and they both knew Mr Borg and Ms Rodwell. Ms Hartwick, accompanied by her friend Celia Clayton, had a verbal dispute with Ms Rodwell, accusing her of calling Mr Hartwick a “dog”, or police informer. The matter was resolved, but when Ms Rodwell related it to Mr Borg he became angry. He drove to Ms Hartwick’s house in a stolen car and smashed his car into the back of Ms Clayton’s rented car. Both cars were seriously damaged and some damage was done to the house. The Hartwicks and Ms Clayton armed themselves with metal poles, wooden poles and a carving knife and went to Ms Rodwell’s house. There is dispute over exactly what happened but the injuries to Mr Borg were consistent with a prolonged attack in which he was severely beaten and stabbed a number of times. One stab wound was fatal. The prosecution’s case at trial was that, although it could not identify who inflicted the fatal stab, each was guilty on one or other of three bases. These were either a joint enterprise through a plan to cause Mr Borg very serious injury; extended common purpose in which each agreed to assault him using weapons and reasonably foresaw the possibility of death or serious injury; or liability as an accessory, that is, aiding and abetting the person who inflicted the fatal would by helping, encouraging or conveying assent to that person. The Victorian Court of Appeal ordered a new trial on the intentionally causing injury charge but dismissed appeals against the murder convictions. The three applied for special leave to appeal to the High Court. Their applications were referred to the whole Court on the limited ground of inviting the Court to reconsider its 1995 decision in McAuliffe v The Queen and its 2003 decision in Gillard v The Queen which affected the extended common purpose basis put by the prosecution. At the end of oral argument on the McAuliffe and Gillard issue, the Court announced it would not reconsider the two decisions and refused each application for special leave. The Court, which refused special leave by a 6-1 majority, today delivered its written reasons. The majority held that it was not demonstrated that the application of the principles in McAuliffe and Gillard had led to any miscarriage of justice in this case or in other homicide cases. Even if the three had not intended the death of Mr Borg, they were guilty of murder if they intended only to do serious injury to him but he instead died. If a party to a joint criminal enterprise foresees the possibility that someone might be assaulted with an intention to kill or cause really serious injury to that person and, despite that foresight, continues to participate in the venture, the criminal culpability lies in the continued participation.

HIGH COURT OF AUSTRALIA Public Information Officer 15 December 2006 CHARLES STUART GORDON v RAYMOND GORDON TOLCHER in his capacity as liquidator of Senafield Pty Ltd (in liquidation) AND SENAFIELD PTY LTD (in liquidation) The New South Wales District Court Rules allowing for orders for extensions of time in a lawsuit had not been displaced by the Commonwealth Corporations Act, the High Court of Australia held today. Charles Stuart Gordon is the father of Hugh Charles Gordon, the sole director and shareholder of Senafield, a rural landholding company. Senafield gave Charles Gordon, for no consideration, mortgages over various properties it owned. Mr Tolcher and Senafield now seek the recovery of money Mr Gordon received from the sale of those properties. On 3 May 2003 they filed a claim in the District Court seeking various declarations and orders, including an order that, pursuant to section 588FF of the Corporations Act, Mr Gordon pay them $522,504.07. Section 588FF provides for the making of court orders in respect of voidable transactions on the application of a company’s liquidator. The statement of claim was never filed on Mr Gordon so no defence was filed. Under the District Court Rules, dormant actions are taken to be dismissed after six months and 28 days and this was the case with the action by Mr Tolcher and Senafield on 1 December 2003. However in January 2004 they sought orders to revive the action, claiming to have had difficulties and delays in obtaining funding for the substantive proceedings. The District Court held that prejudice to Mr Gordon, given his health, in now being called upon to defend the original proceeding, outweighed the relief sought. On 3 May 2005, the Court of Appeal ordered that the time for service of the claim be extended for 60 days to 2 July, 18 months after the matter was taken to have been dismissed. It based its orders on the District Court Rule which states that the Court may extend or abridge any time fixed by the rules or by a judgment or order. Section 79 of the Commonwealth Judiciary Act provides that the laws of each State or Territory shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all courts exercising federal jurisdiction in that State or Territory. Mr Gordon was granted special leave to appeal to the High Court on the issue of whether the Corporations Act “otherwise provides” within the meaning of section 79. The High Court unanimously dismissed the appeal. It held that section 588FF sets a three-year period in which the liquidator’s application may be made to a court vested with federal jurisdiction. Thereafter, the conduct of the litigation is left to the procedures of that court. Section 588FF is not a law of the Commonwealth which “otherwise provides” so as to deny the operation of section 79 to pick up so much of the Rules as supported the orders made by the Court of Appeal.

HIGH COURT OF AUSTRALIA 20 March 2019 DIRECTOR OF PUBLIC PROSECUTIONS REFERENCE NO 1 OF 2017 [2019] HCA 9 Today the High Court unanimously allowed an appeal from a decision of the Court of Appeal of the Supreme Court of Victoria. The High Court held that a direction to a jury determining a criminal trial that it may bring in a verdict of not guilty at any time after the close of the Crown case, commonly known as a Prasad direction, is contrary to law and should not be administered. On 15 November 2016, an accused person entered a plea of not guilty to a charge of murder. A jury of 13 persons was empanelled. The trial judge gave a Prasad direction over the Crown's objection. The direction included instruction on the elements of murder and manslaughter with particular reference to proof of the intent for murder, which was in issue, as well as instruction on self-defence in the context of family violence. A printed copy of the direction, which was at least 20 pages in length, was given to the jury. Before the jury withdrew to consider its response to the direction, a ballot was conducted to reduce the jury to 12 jurors. After retiring to consider the direction, the 12 jurors advised that they wished to hear more. The juror who had been balloted off re-joined the jury, and the trial continued with all 13 jurors present. Following the close of the defence case, but before addresses, the trial judge reminded the jury of the continuing operation of the Prasad direction and gave it a further opportunity to consider whether it wished to hear more. By a second ballot, the jury was reduced to 12 before it withdrew to consider its response to the renewed Prasad direction. On its return to the court, the jury delivered verdicts of not guilty of murder and not guilty of manslaughter. The Director of Public Prosecutions (Vic) ("the Director") referred a point of law to the Court of Appeal of the Supreme Court of Victoria, namely whether a Prasad direction is contrary to law and should not be administered to a jury determining a criminal trial. The reference did not affect the acquittal of the acquitted person. The majority of the Court of Appeal held that there was no reason in principle for holding that a trial judge should not give a Prasad direction in an appropriate case. By grant of special leave, the Director appealed to the High Court. The Court unanimously allowed the appeal. The Court held that a jury does not have a common law right to return a verdict of not guilty at any time after the close of the Crown case. The exercise of the discretion to give a Prasad direction, based on the trial judge's assessment of the cogency of the evidence to support a conviction, was held to be inconsistent with the division of functions between judge and jury. The High Court held that, if the evidence at its highest is capable of sustaining a conviction, it is for the jury as the constitutional tribunal of fact to decide whether guilt has been proved beyond reasonable doubt. The Court answered the point of law to the effect that a Prasad direction is contrary to law and should not be administered to a jury determining a criminal trial between the Crown and an accused person.

HIGH COURT OF AUSTRALIA 2 September 2015 COREY TRAVIS FULLER-LYONS BY HIS TUTOR NITA LYONS v STATE OF NEW SOUTH WALES [2015] HCA 31 Today the High Court unanimously allowed an appeal from the Court of Appeal of the Supreme Court of New South Wales and restored the primary judge's award of damages to the appellant. In 2001, the appellant, who was then aged eight, suffered severe injuries when he fell from a train about two minutes after it departed from Morisset Station. By his representative, the appellant brought proceedings in the Supreme Court of New South Wales, claiming damages in negligence against the State of New South Wales ("the State"), the legal entity operating the rail network. There was no direct evidence of how the appellant fell from the train. It was common ground that the appellant must have fallen through the front doors of the carriage in which he was travelling. The doors were fitted with electro-pneumatic locking motors which were centrally operated by the guard on the train. When the doors were locked, they could not be prised open. It followed that when the appellant fell, the doors could not have been locked, despite the guard having engaged the locking system before the train left Morisset Station. The primary judge found that the only realistic means by which the appellant could have generated sufficient force against the pneumatic power of the locking motors to open the doors far enough to fall out was if he had his back to one door and he pushed with his arms or a leg against the other. The primary judge considered the most likely explanation for how the appellant came to be in this position was that he had been caught between the doors as they closed at Morisset Station, leaving part of his torso and at least one of his arms and legs outside the train. The primary judge held the State vicariously liable for the negligent failure of a railway employee to keep a proper lookout before signalling for the train to depart. The appellant was awarded $1,536,954.55 in damages. The State successfully appealed against the finding of liability. The Court of Appeal accepted the primary judge's inferential finding that, immediately before the fall, the appellant must have been positioned with his back to one door such that he could push against the opposing door. However, the Court of Appeal considered there were equally probable alternative hypotheses available to explain how the appellant came to be in that position which did not entail negligence on the part of railway staff. By grant of special leave, the appellant appealed to the High Court. The Court unanimously allowed the appeal, finding that the Court of Appeal erred in overturning the primary judge's ultimate factual finding. The Court of Appeal's acceptance of the primary judge's anterior factual findings left his Honour's ultimate finding as the most likely inference "by a large measure". It was a correct finding notwithstanding that other possible explanations could not be excluded. The Court also held that it was an error to reject the primary judge's finding on the basis that the appellant had failed to exclude one alternative hypothesis that had not been explored in evidence.

HIGH COURT OF AUSTRALIA 23 June 2010 Manager, Public Information OSLAND v SECRETARY TO THE DEPARTMENT OF JUSTICE [2010] HCA 24 Today the High Court upheld an order of the Victorian Civil and Administrative Tribunal granting Heather Osland access to documents relating to her petition for mercy. In 1996, Mrs Osland was convicted of the murder of her husband and sentenced to 14½ years imprisonment. She submitted a petition for mercy in July 1999 to the Victorian Attorney-General and, in September 2001, the Attorney-General issued a press release announcing that the petition had been refused. The press release referred to a memorandum of joint advice from a panel of three senior counsel that recommended that the petition be denied. The Attorney-General, however, had received advice from several other sources as well. Mrs Osland applied under the Freedom of Information Act 1982 (Vic) for access to all documents relating to the consideration of her petition. Access was refused by the Victorian Department of Justice. Mrs Osland sought a review of the refusal in the Victorian Civil and Administrative Tribunal, which set aside the decision and ordered access to be granted to the documents because the Tribunal was of the opinion that, notwithstanding that the documents were privileged, the public interest required access to be granted. In doing so, it was acting pursuant to s 50(4) of the Freedom of Information Act. On appeal to the Victorian Court of Appeal, the Tribunal's decision was reversed. The High Court granted special leave to appeal against the Court of Appeal's decision on 14 December 2007. On 7 August 2008, the Court allowed the appeal. It did so because the Court of Appeal had not considered the Tribunal's advertence, in its reasons for decision, to the possible existence of differences between the joint advice and other advice received by the Attorney- General in relation to Mrs Osland's petition. On that basis, it was not possible for the Court of Appeal, without inspecting the documents, to conclude that the Tribunal had erred in granting access to those documents. The High Court set aside the orders of the Court of Appeal and remitted the matter to that Court to enable it to inspect the documents. On 7 April 2009, the Court of Appeal, having inspected the documents, again reversed the Tribunal's decision. It did so despite finding that there were relevant and substantive differences between some of the advices received by the Attorney-General. On 12 February 2010, the High Court granted special leave to appeal from this second decision of the Court of Appeal. The High Court today unanimously held that the Court of Appeal's decision on the remitter should be set aside and that the Tribunal's decision granting Mrs Osland access to the documents be upheld. The Court held that the Court of Appeal did not do what was required of it on the remitter. Chief Justice French and Justices Gummow and Bell considered that the Court of Appeal's reasoning was logically independent of the actual contents of the documents to which Mrs Osland sought access. Their Honours held that the Court of Appeal was really addressing the question of law whether the evaluation of differences of any kind or degree between the advices received could attract the operation of the s 50(4). That question was precluded by the terms of the remitter from the High Court on the first appeal. The Court of Appeal should have first determined the question of law whether the actual differences between the advice provided to the Attorney-General could support the formation of an opinion that the public interest required access to be granted. If the formation of such an opinion was supportable, then the Court should have either remitted the matter to the Tribunal for further hearing or, having regard to the protracted nature of the proceedings, considered the public interest question for itself. Justices Hayne and Kiefel (with whom Justice Heydon agreed on this point) considered that, on the remitter, the Court of Appeal was required to consider whether the Tribunal's reasoning about the requirements of the public interest manifested an error of law. Their Honours held that the Court of Appeal had misconceived the limited scope of its jurisdiction on the appeal from the Tribunal, which was in the nature of judicial review and not a rehearing. It did not review what the Tribunal had done for error of law but impermissibly assumed the role of the Tribunal and substituted its own decision.

HIGH COURT OF AUSTRALIA 7 December 2022 ELECTRICITY NETWORKS CORPORATION T/AS WESTERN POWER v HERRIDGE PARTIES & ORS [2022] HCA 37 Today, the High Court unanimously dismissed an appeal from a judgment of the Court of Appeal of the Supreme Court of Western Australia. The appeal relevantly concerned whether the appellant ("Western Power") owed a duty of care in connection with a bushfire which occurred in Parkerville, Western Australia, in January 2014. Western Power was a statutory corporation which, under an interconnected statutory framework, undertook, operated, managed and maintained an electricity distribution system used to deliver electricity to consumers' premises, including that of the fourth respondent ("Mrs Campbell"). A large number of plaintiffs claimed loss and damage resulting from the bushfire which was caused when a wooden point of attachment pole ("PA pole") owned by Mrs Campbell and situated on her land, to which an electrical cable and other apparatus of Western Power were attached, fell to the ground due to fungal decay and termite damage. Western Power contracted the fifth respondent ("Theiss") to undertake works in the vicinity of Mrs Campbell's property in July 2013, which included replacing Western Power's service cable between its termination pole and the PA pole. In undertaking those works, an employee of Thiess did not adequately perform necessary inspection tests on the PA pole to identify signs of deterioration. The trial judge found Thiess and Mrs Campbell liable in negligence and nuisance, and apportioned liability as 70 per cent to Thiess and 30 per cent to Mrs Campbell. All claims against Western Power were dismissed. On appeal, the Court of Appeal held that Western Power owed to persons in the vicinity of its electricity distribution system a duty to take reasonable care to avoid or minimise the risk of injury to those persons, and loss or damage to their property, from the ignition and spread of fire in connection with the delivery of electricity through that system. The Court of Appeal held that Western Power breached that duty by failing to have a system for the periodic inspection of wooden consumer-owned PA poles used to support its system's live electrical apparatus. In the High Court, Western Power challenged the imposition on it of that duty of care. In dismissing the appeal, the High Court held that there is no freestanding common law rule which fixes whether and when a duty of care upon a statutory authority might, or might not, arise, and that the starting point is the terms, scope and purpose of the applicable statutory framework. The critical feature of the appeal was that Western Power exercised specific statutory powers in performing its statutory functions in relation to its electricity distribution system, and pursuant to those powers attached and energised Mrs Campbell's premises to that system. Western Power's exercise of those powers created a relationship between it and all other persons within the vicinity of its system, a critical feature of which was its exercise of those powers in a manner which created or increased the risk of harm to those persons, whom it had the power to protect. Accordingly, the common law imposed the duty of care found by the Court of Appeal which operated alongside the rights, duties, and liabilities created by statute. Further, the duty was not inconsistent or incompatible with the statutory framework, and that framework gave Western Power ample power to discharge the duty.

HIGH COURT OF AUSTRALIA 8 August 2018 THE QUEEN v ROMANO FALZON [2018] HCA 29 Today the High Court published reasons for orders it made on 19 April 2018 allowing an appeal from a decision of the Court of Appeal of the Supreme Court of Victoria. The respondent was convicted by a jury of cultivating a narcotic plant (Cannabis L) in not less than a commercial quantity and trafficking in a drug of dependence (Cannabis L). He was acquitted of a separate charge of trafficking in a drug of dependence. Police had executed search warrants at four properties, including the respondent's home, and found, amongst other things, cannabis plants, dried cannabis and drug paraphernalia. Police also found $120,800 in cash at the respondent's home. At trial, the Crown alleged that the trafficking offences charged were constituted of possession of cannabis on a particular date at three of those properties (not including the respondent's home) for the purpose of sale. The respondent objected to the admission of the evidence of the cash found at his home on the basis that it was irrelevant or alternatively that its prejudicial effect outweighed its probative value. The trial judge ruled the evidence admissible. Evidence of the cannabis and other materials found at the respondent's home, including the cash, was led in proof of each trafficking charge as showing that the respondent was conducting a business in cultivating cannabis for the purpose of sale. The respondent appealed against his convictions to the Court of Appeal on the basis, relevantly, that a substantial miscarriage of justice occurred as a result of the trial judge wrongly admitting the evidence of the cash. The majority of the Court of Appeal allowed the appeal. Their Honours held that the evidence of the cash was irrelevant to the trafficking charges because it could only have gone towards establishing past sales of cannabis, and the prosecution had chosen to put its case on the basis of possession of cannabis for sale on a single day and not on the basis that the respondent was conducting an ongoing drug trafficking business. The majority also observed that the evidence of the cash was inadmissible because it was led for the purposes of propensity or tendency reasoning. The respondent's convictions were set aside. By grant of special leave, the Crown appealed to the High Court on the ground that the majority of the Court of Appeal erred in concluding that a substantial miscarriage of justice had occurred as a result of the trial judge admitting the evidence of the cash found at the respondent's home. The High Court unanimously held that the evidence of the cash found was admissible as an item of circumstantial evidence that, in conjunction with evidence of other indicia of drug trafficking, could show that the respondent was carrying on a business of trafficking in cannabis, and thus that the respondent's purpose in possessing the cannabis was the purpose of sale. The fact that the evidence tended to show the commission of other offences of trafficking did not render it inadmissible because it was relevant to establishing the intent to sell and to counter the respondent's claim that the cannabis was possessed for personal consumption.

HIGH COURT OF AUSTRALIA 16 June 2021 LIBERTYWORKS INC v COMMONWEALTH OF AUSTRALIA [2021] HCA 18 Today, the High Court answered questions stated in a special case concerning whether the Foreign Influence Transparency Scheme Act 2018 (Cth) ("the Act") is invalid, to the extent it imposes registration obligations with respect to communications activities, on the ground that it infringes the freedom of political communication implied by the Constitution ("the implied freedom"). The plaintiff, LibertyWorks Inc, is a private think-tank with 1,290 members in Australia. The American Conservative Union ("the ACU") is a corporation in the United States of America which holds an annual political conference called the "Conservative Political Action Conference" ("CPAC"). In 2018, the President of the plaintiff met with the Executive Director of the ACU and it was agreed that the plaintiff and the ACU would collaborate in a CPAC event to be held in Australia in 2019. In August 2019, the plaintiff was asked by the Attorney-General's Department to consider whether it was required to register its arrangements with the ACU under the Act. The plaintiff has not to date registered under the Act. The Act's stated object is to provide a scheme for the registration of persons who undertake certain activities on behalf of foreign principals in order to improve the transparency of their activities on behalf of those foreign principals. The Act relevantly requires a person to register details about themselves and their foreign principal with the Secretary of the Attorney-General's Department ("the Secretary") where the person undertakes communications activity on behalf of the foreign principal for the purpose of political or governmental influence. A person undertakes communications activity if they communicate or distribute information or material to the Australian public or a section of it. The parties agreed in the special case that, subject to the question of validity, the plaintiff had registration obligations under the Act because it undertakes communications activity, in the form of holding annual CPAC events, on behalf of the ACU, a foreign principal for the purposes of the Act. The High Court, by majority, answered the primary question stated for its opinion to the effect that the provisions of the Act respecting communications activity by a person who acts on behalf of a foreign principal were not invalid on the ground that they infringed the implied freedom. A majority of the Court found that the Act, in its requirement of registration where communications activity is undertaken on behalf of a foreign principal, burdened the implied freedom but held that the burden was justified. The provisions were held to have a legitimate purpose, namely to achieve transparency as a means of preventing or minimising the risk that foreign principals will exert influence on the integrity of Australia's political or electoral processes. The provisions were proportionate to the achievement of that purpose. The majority concluded that other questions, concerning the extent of the Secretary's power to require information from a person prior to or after registration, did not arise for the opinion of the Court in the absence of a case advanced against the validity of the Act on that basis.

HIGH COURT OF AUSTRALIA 10 April 2019 KATHLEEN CLUBB v ALYCE EDWARDS & ANOR; JOHN GRAHAM PRESTON v ELIZABETH AVERY & ANOR [2019] HCA 11 Today the High Court unanimously dismissed so much of two appeals as had been removed from the Supreme Court of Victoria and the Supreme Court of Tasmania. The High Court unanimously rejected the appellants' challenges to two laws whichs prohibit certain communications and activities in relation to abortions in "access zones" around premises at which abortions are provided. Section 185D of the Public Health and Wellbeing Act 2008 (Vic) ("the Victorian Act") relevantly prohibits a person from communicating in relation to abortions in a manner able to be seen or heard by persons accessing or attempting to access premises at which abortions are provided, if the communication is reasonably likely to cause distress or anxiety ("the communication prohibition"). Section 9(2) of Terminations) Act 2013 (Tas) ("the Tasmanian Act") relevantly prohibits protests in relation to terminations that are able to be seen or heard by a person accessing premises at which terminations are provided ("the protest prohibition"). The communication prohibition and the protest prohibition each apply within a radius of 150 metres from premises at which abortions are provided. the Reproductive Health (Access Mrs Clubb was convicted in the Magistrates' Court of Victoria of an offence against s 185D of the Victorian Act. Mr Preston was convicted in the Magistrates Court of Tasmania of an offence against s 9(2) of the Tasmanian Act. The appellants each sought review of their convictions, including on the ground that the provision under which they had been convicted is invalid because it impermissibly burdens the freedom of communication on governmental and political matters which is implied in the Constitution ("the implied freedom"). Those parts of the proceedings in each of the Supreme Courts relating to the implied freedom were removed into the High Court. In relation to the Victorian Act, a majority of the Court considered that the burden imposed by the communication prohibition was justified by reference to its legitimate purposes, including the protection of the safety, wellbeing, privacy and dignity of persons accessing lawful medical services. The other members of the Court considered that the challenge to the communication prohibition should be dismissed without determining the validity of the prohibition because it was not established that Mrs Clubb's conduct involved political communication. In relation to the Tasmanian Act, the Court unanimously held that the burden imposed by the protest prohibition was justified by reference to its legitimate purposes, which include the protection of the safety, wellbeing, privacy and dignity of persons accessing premises at which abortions are provided and ensuring unimpeded access to lawful medical services.

HIGH COURT OF AUSTRALIA THIESS v COLLECTOR OF CUSTOMS & ORS [2014] HCA 12 2 April 2014 Today the High Court dismissed an appeal from a decision of the Court of Appeal of the Supreme Court of Queensland. The High Court held that s 167(4) of the Customs Act 1901 (Cth) ("the Act") operates to bar all actions for the recovery of duty paid to Customs, irrespective of whether a dispute as to the amount or rate of duty payable arises at the time of payment, subject only to two statutory exceptions. The appellant, Mr Alan Thiess, imported a yacht into Australia for home consumption. On 15 December 2004, Mr Thiess' customs agent transmitted a computer import entry on his behalf. The customs agent mistakenly believed that the gross weight of the yacht was 108 tonnes, when in fact it was 160 tonnes. The effect of this error was that Customs' COMPILE computer system automatically calculated that the customs duty payable was $494,472, with an additional $49,447 payable as GST. In fact, yachts exceeding 150 tonnes were duty free. Upon payment by the customs agent, Customs authorised delivery of the yacht. Mr Thiess only discovered the mistake after the expiration of the statutorily prescribed period for making an application for a refund. On 15 December 2010, he brought proceedings in the trial division of the Supreme Court of Queensland seeking to recover the amount of $543,919 as money had and received, relying on the money having been paid under a mistake of fact, and in the alternative as a claim for restitution in equity or equitable compensation. Questions of law were reserved for the consideration of the Court of Appeal. The Court of Appeal held that the Collector of Customs and the Commonwealth had lawful defences to Mr Thiess' claim: by s 167(4) of the Act, in so far as the claim was to recover the amount paid as customs duty; and under s 36 of the Taxation Administration Act 1953 (Cth), in so far as the claim was to recover the GST paid. Mr Thiess sought to argue that s 167(4) had no application because no "demand" had been made and hence no "dispute" had arisen within the meaning of s 167(1) at the time of payment. The Court of Appeal rejected this argument, finding that a demand had been made. By special leave, Mr Thiess appealed to the High Court. The High Court unanimously held that irrespective of whether a dispute has arisen at the time of payment within the meaning of s 167(1) of the Act, s 167(4) operates to bar all actions for the recovery of duty paid to Customs, subject only to either a statutory action for recovery under s 167(2) of the Act, or any action to enforce a right or to compel the exercise of powers under s 163 of the Act. It followed that because the appellant could not recover the amount paid as customs duty, he could not recover the amount paid as GST.

HIGH COURT OF AUSTRALIA 15 March 2023 BARNETT v SECRETARY, DEPARTMENT OF COMMUNITIES AND JUSTICE [2023] HCA 7 Today, the High Court published its reasons for revoking special leave to appeal from a judgment of the Full Court of the Federal Circuit and Family Court of Australia (Division 1). The appellant is the mother of a child born in the Republic of Ireland in 2019. On 30 August 2020, the mother removed the child from Ireland to Australia without the consent of the child's father. At the father's request, the respondent applied to the then Family Court of Australia under the Family Law (Child Abduction Convention) Regulations 1986 (Cth) for orders seeking the return of the child to Ireland and ancillary orders. The primary judge made orders for the child's return to Ireland. The Full Court dismissed the mother's appeal. In doing so, the Full Court relied on a declaration made in April 2021 by the District Court of the Dublin Metropolitan District ("the Irish court") that the father was a guardian of the child under Irish law (the "Declaration"). As the Declaration must have been based on the cohabitation of the mother and father, which ceased on 30 August 2020, the Full Court considered the primary judge was correct to infer from the Declaration that the father had rights of custody in respect of the child before 30 August 2020, and that the mother (as a party to the proceeding in the Irish court) was therefore estopped from asserting to the contrary. The mother was granted special leave to appeal to the High Court. The key consideration underlying the grant of special leave was the Full Court's finding of an issue estoppel based on the bare Declaration, without the Irish court's reasons for making the Declaration having been available to the courts below. However, in January 2023, the respondent filed an application for revocation of special leave, after it belatedly obtained the transcript of the Irish court's reasons for making the Declaration. The High Court unanimously revoked special leave to appeal. Given the Irish court's reasons for the Declaration, the foundation for the grant of special leave was removed. The transcript disclosed that the Irish court found, as an essential element of its reasoning, that the father's guardianship commenced from 23 May 2020, and it necessarily followed that the father had rights of custody under the Regulations at 30 August 2020. It would have been contrary to the interests of the administration of justice to permit the appeal to proceed on the false premise that the Irish court's reasons were unavailable, when those reasons validated the inferences drawn by the courts below. The mother's other arguments about a lack of privity between the father and the respondent and procedural unfairness by the primary judge wrongly assumed that the grant of special leave was based on something more than the finding of the issue estoppel from the bare Declaration. Issues concerning the jurisdiction of the Irish court and the operation of Irish law were best resolved as part of the mother's extant appeal against the Declaration in Ireland.

HIGH COURT OF AUSTRALIA 21 June 2017 GAX v THE QUEEN [2017] HCA 25 Today the High Court unanimously allowed an appeal from the Court of Appeal of the Supreme Court of Queensland. The appellant was tried by jury in the District Court of Queensland on an indictment containing three counts. He was convicted of count three, which charged aggravated indecent dealing with a child, his lineal descendant, and was acquitted of counts one and two, which charged aggravated acts of indecent dealing with the same child. The amended particulars of count three alleged that the appellant touched the complainant on or near her vagina. The complainant, her sister and her mother each gave evidence that the appellant was in bed with the complainant on the occasion charged in count three. The complainant stated, when giving evidence of the incident, that she "was asleep before and ended up finding out what happened". The appellant appealed against his conviction to the Court of Appeal, contending the verdict was unreasonable and that it was inconsistent with the not guilty verdicts on counts one and two. Atkinson J, with whom Morrison JA agreed, reviewed the evidence in support of count three in addressing the inconsistent verdicts argument. Her Honour held that the quality of evidence given on count three, and the support given to it by the mother's and sister's evidence, provided a rational basis for a jury to convict on count three while acquitting on counts one and two. Her Honour held that those matters also showed that the guilty verdict was not unreasonable. The appeal was dismissed. McMurdo P, in dissent, would have allowed the appeal. Her Honour held that the evidence did not suffice to prove beyond reasonable doubt that the appellant had indecently touched the complainant. By grant of special leave, the appellant appealed to the High Court. The Court held that it had not been open to the jury to draw an inference beyond reasonable doubt that there had been indecent touching of the complainant as charged by count three. The real possibility that the complainant's evidence was a reconstruction and not an actual memory could not be excluded beyond reasonable doubt. The Court allowed the appeal, set aside the conviction and entered a verdict of acquittal.

HIGH COURT OF AUSTRALIA 6 October 2004 NT POWER GENERATION PTY LTD v POWER AND WATER AUTHORITY AND GASGO PTY LTD The High Court of Australia today allowed an appeal by NT Power which alleged that the Northern Territory’s Power and Water Authority (PAWA) and its wholly-owned subsidiary Gasgo had engaged in anti-competitive behaviour, contrary to section 46 of the Trade Practices Act (TPA). In 1996, Pegasus Gold Australia contracted with NT Power to operate Pegasus’s gas-powered power station at the Mt Todd gold mine. The following year, Pegasus ceased to operate the mine and NT Power acquired the power station. NT Power wished to sell electricity generated at Mt Todd to the public, including commercial users in Darwin and Katherine. That would have brought NT Power into competition with PAWA which had a monopoly over the retail electricity market. In August 1998 PAWA refused NT Power’s request for access to its transmission and distribution infrastructure to convey electricity from Mt Todd to consumers. NT Power required secure gas supplies for the Mt Todd power station. Gasgo had long-standing agreements with its suppliers under which it enjoyed pre-emptive rights to buy gas offered to other customers. NT Power sought an undertaking from Gasgo that it would not exercise its pre-emptive right but Gasgo refused. NT Power commenced proceedings in the Federal Court, alleging PAWA and Gasgo were in breach of section 46 of the TPA. That provision only binds the Crown in right of the States and Territories where the Crown carries on a business, either directly or through an authority such as PAWA. Justice John Mansfield held that in refusing access to its infrastructure PAWA was not relevantly carrying on a business, so section 46 did not apply. He held that Gasgo’s conduct was also not subject to section 46 because the company enjoyed Crown immunity because the NT Government’s interests would be prejudiced if Gasgo was precluded from exercising its pre- emptive rights. The Full Court of the Federal Court, by majority, upheld the decision. The High Court held that PAWA’s conduct was within the course of carrying on a business pursuant to section 2B of the TPA. PAWA denied access to its infrastructure, not because of a lack of capacity or technical difficulty or safety, but simply to protect its electricity sales revenue. The Court held that PAWA’s decision to refuse access contravened section 46 of the TPA. Its decision had the purpose of excluding NT Power from the retail market. That purpose could not have been achieved but for its power in the transmission and distribution markets where PAWA faced no competition. The Court held that Gasgo did not derive immunity from the Crown because it was not part of the NT Government. Its conduct was therefore open to scrutiny under section 46. The Court, by a 4-1 majority, allowed the appeal and ordered that the proceedings be returned to Justice Mansfield to determine the section 46 claim against Gasgo and to decide what remedies should be granted to NT Power in relation to PAWA’s conduct.

HIGH COURT OF AUSTRALIA 3 December 2008 Public Information Officer COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA v WORD INVESTMENTS LIMITED A company that conducted commercial businesses to raise funds for a missionary organisation was entitled to the status of a tax-exempt charity, the High Court of Australia held today. Since 1986, Word Investments has accepted deposits from the public which were invested at commercial rates of interest. Between 1996 and 2002 it operated a funeral business. Profits generated from the investment and funeral businesses supported Christian activities carried out by Wycliffe Bible Translators (International). The Australian arm, Wycliffe Bible Translators Australia, has had charitable status since 1 July 2000. Wycliffe’s missionaries were mostly active in developing countries. They learned the local language, taught people to read and write their language, translated the Bible into that language, and taught people how to read the Bible. Word was founded by people associated with Wycliffe to raise money in Australia to give to Wycliffe to carry out its purposes. Word does not directly carry out the training or despatching of missionaries overseas, the publishing of the Bible or the preaching of the gospel. The Tax Commissioner rejected Word’s applications for endorsement as an income tax-exempt charity on the basis that it was not an organisation instituted to advance or promote charitable purposes. The Commissioner claimed there were four obstacles to a tax exemption. The first was that Word’s objects were not confined to charitable purposes. The second was that an entity conducting investment, trading or other commercial activity for profit was not a charitable institution even though it was established for the purpose of distributing its profits wholly or mainly to charities. The third was that the bodies to which Word gave its profits were not confined as to the use to which the funds could be put. The fourth was that Word did not have a physical presence in Australia and did not incur its expenditure or pursue its objectives principally in Australia. The Administrative Appeals Tribunal set aside the Tax Commissioner’s refusal to endorse Word as a charity. The Federal Court of Australia dismissed an appeal by the Commissioner and allowed a cross- appeal by Word so that Word’s income tax-exempt status was extended back to 1 July 2000. The Full Court of the Federal Court dismissed the Commissioner’s appeal from those orders. The Commissioner then appealed to the High Court. The Court, by a 4-1 majority, dismissed the appeal. It resolved the issues surrounding the four obstacles in Word’s favour. The Court held that Word’s purposes were charitable, that it was a charitable institution, and that that character was not lost by the fact that it did not advance charitable purposes directly but gave its profits to other institutions which did. It held that Word’s objects in its memorandum of association were for advancing religious charitable purposes and the powers set out in the memorandum did not authorise conduct which did not further those purposes. The goal of making a profit was not an end in itself but was incidental to its charitable purposes. Its commercial activities were not intrinsically charitable but were charitable in character. Wycliffe was not at liberty to spend the money it received from Word on non- charitable objects and there was no evidence that it did. The Court held that Word had a physical presence exclusively in Australia and advanced its money to Wycliffe in Australia. Wycliffe was not required under the Income Tax Assessment Act to spend the money within Australia. The Act only required that Word incur its expenditure and pursue its objectives principally in Australia.

HIGH COURT OF AUSTRALIA Public Information Officer 22 June 2006 HOWARD RODNEY DARKAN v THE QUEEN GWENDOLINE CECILY DEEMAL-HALL v THE QUEEN MARLOW PHILIP ANDREW McIVOR v THE QUEEN An error in a trial judge’s directions to a jury did not amount to a substantial miscarriage of justice and the three appellants’ murder convictions should stand, the High Court of Australia held today. Mr Darkan, 33, Ms Deemal-Hall, 55, and Mr McIvor, 26, were convicted of murdering Ms Deemal-Hall’s former partner, Kalman John Toth, 58, in a park in Mareeba in far north Queensland in January 2003. Ms Deemal-Hall had recruited Mr Darkan, Mr McIvor and Shannon Brian Bowen to give Mr Toth “a touch-up” and to “fix him up”. She paid the three men, who did not know Mr Toth, $50 each, with more money to follow. Ms Deemal-Hall dropped the men at the park then fetched Mr Toth. A fist fight broke out and Mr McIvor, who was wearing steel-capped boots, used a pickaxe handle to hit Mr Toth in the back of the neck, knocking him to the ground. The three men kicked him repeatedly. Mr Darkan used the pickaxe handle to strike Mr Toth from the ankles up to the ribs and to beat him around the head. Mr Toth was crying for help. His body was found the next morning. He had severe bruising all over his body, broken upper and lower jaws and facial bones, and facial lacerations. The cause of death was aspiration of blood due to severe facial trauma. Mr Bowen received a reduced sentence for assault occasioning bodily harm while in company in return for giving evidence for the prosecution. The Queensland Court of Appeal dismissed appeals by Mr Darkan, Ms Deemal-Hall and Mr McIvor. They appealed to the High Court over a direction given by Supreme Court Justice Stanley Jones to the jury on the meaning of “a probable consequence”. Under section 8 of the Criminal Code, when two or more people form a common intention to carry out an unlawful purpose and an offence occurs that was a probable consequence of their actions, each is deemed to have committed the offence. In this case, the allegation was that Mr Darkan, Ms Deemal-Hall and Mr McIvor formed an intention to cause Mr Toth grievous bodily harm, that the acts done for this purpose were of such a nature as to endanger human life, and that death was a probable consequence of those acts. Alternatively, in Ms Deemal-Hall’s case, under section 9 of the Code, when someone counsels another to commit an offence it is immaterial whether the offence actually committed is different or whether it was committed in a different way, provided that the offence committed was a probable consequence of carrying out the counsel. Justice Jones explained probable consequence as “a real possibility or a substantial [chance] or a real chance that the event would happen”. The High Court, by a 4-1 majority, dismissed the appeal. It held that “a probable consequence” was stronger than a real possibility or chance. The Court rejected arguments that Justice Jones should have said nothing about the meaning of the phrase as some explanation to a jury may be desirable or necessary in the circumstances of a particular case. However it was erroneous to use the words he did, which were unduly harsh to the appellants. The consequence must be probable, as distinct from possible, in the sense that it could well happen in prosecuting the unlawful purpose (section 8) or of carrying out the counselling (section 9). Justice Jones’s direction was flawed in that it did not convey the idea that the consequence was a probable or likely outcome. The Court held that no substantial miscarriage of justice resulted from the error. Both Mr Darkan and Mr McIvor’s admissions showed they intended to do grievous bodily harm to Mr Toth, and either one had killed him or aided the other in killing him. There was strong circumstantial evidence that Ms Deemal-Hall wanted the men to inflict grievous bodily harm on Mr Toth and counselled them to carry out the attack in such a manner that murder – an unlawful killing with intent to cause grievous bodily harm – was a probable consequence.

HIGH COURT OF AUSTRALIA 8 September 2005 CHIEF EXECUTIVE OFFICER OF CUSTOMS v GRANITE ARMS PTY LTD AND OMEO WAY PTY LTD This appeal concerned the true identification of the importer of consignments of firearms. Garnet Featherstone is principal of Victorian firearms dealer Granite Arms and Ron Owen the principal of firearms dealer Omeo Way in Queensland. In 2000 Omeo Way organised to buy 3,000 pistols in two batches from a Chinese supplier for US$144,576. Mr Owen had permits for both shipments but Queensland Police rescinded them due to concerns the pistols would be modified by a method that breached weapons laws. He then arranged for the pistols to be consigned to Granite Arms while he paid all expenses including Customs clearance, storage and freight. The first batch of 1,000 pistols arrived in Melbourne in March 2000 and was transported to Omeo Way. The next batch of 2,000 arrived in May and a customs broker arranged for their storage in Melbourne to enable the safety testing of the pistols and repairs to some. Customs then seized the pistols as goods reasonably suspected to be “special forfeited goods” for failing to comply with the Customs (Prohibited Imports) Regulations. Omeo Way as owner of the pistols claimed their return. The Customs Act requires the return of goods unless proceedings are brought in a court of summary jurisdiction for a declaration that they are special forfeited goods and an order that they be forfeited to the Crown. This Customs did. With proceedings pending, the two dealers commenced separate proceedings in the Federal Court seeking a declaration that seizure of the second shipment was unlawful. Customs cross-claimed for a declaration that the pistols were special forfeited goods. The dealers pleaded that Granite Arms was importer as agent of Omeo Way and was at all times entitled to possess the pistols either on its own account or as an agent of Omeo Way. At the parties’ request, the Court heard the cross-claim first and dismissed it. The Full Court dismissed an appeal by Customs, which then appealed to the High Court. The relevant parts of the Regulations were introduced as part of the national firearms controls adopted after the Port Arthur tragedy in 1996. Imports must comply with one of four tests, in this case the police authorisation test, requiring the importer to hold a licence or authorisation under the law of the relevant State or Territory to possess the article. The dealers contend that Granite Arms was the importer of the two shipments and the police authorisation test was satisfied because Granite Arms held a licence to possess the pistols under Victorian law. Customs argued that the police authorisation test was not satisfied and that “the importer” meant one designated entity and Granite Arms could not substitute as “the importer” for Omeo Way. The High Court unanimously allowed the appeal by Customs and held that the handguns were “special forfeited goods”. It held that although Granite Arms lent its name to Omeo Way for the identification of “the consignee” on the air waybill for carriage of Omeo Way’s goods to Australia, Granite Arms was not “the importer”.

HIGH COURT OF AUSTRALIA 11 December 2003 RURAL PRESS LIMITED, BRIDGE PRINTING OFFICE PTY LTD, IAN LAW AND TREVOR McAULIFFE v AUSTRALIAN COMPETITION AND CONSUMER COMMISSION, WAIKERIE PRINTING HOUSE PTY LTD AND PAUL TAYLOR AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v RURAL PRESS LIMITED, BRIDGE PRINTING OFFICE PTY LTD, IAN LAW, TREVOR McAULIFFE, WAIKERIE PRINTING HOUSE PTY LTD AND PAUL TAYLOR The High Court of Australia today dismissed a Rural Press appeal and allowed an ACCC appeal, both relating to an arrangement on South Australian country newspaper markets that allegedly contravened the Trade Practices Act. Rural Press subsidiary Bridge Printing published the Murray Valley Standard while Waikerie Printing published the River News, with very few newspapers sold in each other’s prime circulation areas. When councils in the area were restructured in July 1997, River News extended southwards to take in the township of Mannum, making it a competitor with the Standard. Rural Press and Bridge repeatedly told River News’s owners Paul and Darnley Taylor and managing editor John Pick that they would have to consider reacting commercially, perhaps by establishing a rival newspaper in the Riverland area. The Taylors eventually agreed in April 1998 to revert to a line 40km north of Mannum and Rural Press took no steps to establish a Riverland newspaper. The ACCC alleged that an arrangement was made by which Waikerie Printing committed itself to withdrawing the River News from circulation around Mannum, and Rural Press and Bridge committed themselves not to introduce any new newspapers in competition with the Taylors. The Federal Court held that Rural Press and Bridge had contravened section 45 of the Act by entering into an arrangement which substantially lessened competition and which contained an exclusionary provision, and had contravened section 46 by taking advantage of market power for illegal purposes. The Court also found executives Mr Law and Mr McAuliffe were knowingly involved in these breaches. The Full Court of the Federal Court allowed an appeal by the Rural Press parties on the exclusionary provision and section 46 issues and dismissed the ACCC’s appeal and cross-appeal on penalties. Both the Rural Press parties and the ACCC appealed to the High Court. Rural Press argued there was insufficient evidence to find an arrangement, there was no purpose or effect of substantially lessening competition, and the two executives had insufficient knowledge to make them liable. The ACCC argued the Full Court should have upheld the findings on the exclusionary provision and section 46 breaches. The High Court unanimously held there was an arrangement of the type alleged by the ACCC and that this arrangement had the purpose and effect of substantially lessening competition in the region. The Court dismissed Rural Press’s appeal, allowed the ACCC’s appeal in relation to the exclusionary provision, rejected the ACCC’s appeal in relation to the section 46 issue, and revised the declarations made by the Full Court of the Federal Court.

HIGH COURT OF AUSTRALIA Public Information Officer 3 October 2007 WESTFIELD MANAGEMENT LIMITED v PERPETUAL TRUST COMPANY LIMITED Westfield is not entitled to use an easement to access two extra shopping malls it has acquired next to the one originally serviced by the easement, the High Court of Australia held today. Westfield owns Skygarden and Perpetual the adjacent Glasshouse shopping complex. Both face Pitt Street Mall in Sydney’s CBD, while Glasshouse also fronts King Street. It has a private underground laneway running off King Street behind it and stopping at the boundary of Skygarden. Westfield now owns the neighbouring Imperial Arcade and Centrepoint, which also face Pitt Street Mall, and it wants to redevelop all three sites into a single complex. In 1987, in return for Glasshouse granting Skygarden access via its laneway to help keep the then new Pitt Street Mall pedestrian precinct free of delivery vehicles, Sydney City Council allowed the Glasshouse developers to construct a larger building. In 1988, the original owners of Skygarden and Glasshouse agreed to terms for the easement and it was registered under the Torrens system. Westfield now wishes to use the laneway to access all three of its sites from King Street. In the New South Wales Supreme Court, Westfield successfully sought a declaration that the easement permitted vehicles using the laneway to continue under Skygarden to access driveways, parking spaces and loading docks to be built on the Imperial Arcade and Centrepoint sites. The Court of Appeal allowed an appeal by Perpetual. Westfield appealed to the High Court. The Court unanimously dismissed the appeal. It said that it was significant that the terms of easement did not use the word “across” in relation to Skygarden but the words “to and from”. It rejected Westfield’s argument that the phrase “for all purposes” encompassed the purpose of accessing Skygarden and from there travelling to some further property. The Court held that the phrase had to be read as part of the longer expression “for all purposes with vehicles to and from [Skygarden] or any such part thereof across [Glasshouse]” and did not include going to and from and across Skygarden. It also held that Westfield could not use extrinsic material to ascertain the intention or contemplation of the parties to the grant of the easement beyond the terms of the grant itself. The easement was registered but third parties inspecting the register cannot be expected to look for extrinsic material which might establish facts or circumstances existing at the time of registration of the kind relied upon by Westfield. The use of such material is inconsistent with the definitive nature of the Torrens register.

HIGH COURT OF AUSTRALIA 9 November 2016 [2016] HCA 43 Today the High Court unanimously allowed an appeal from the Full Court of the Federal Court of Australia. The High Court held that the deterioration of the respondent's mental condition was suffered as a result of administrative action undertaken by her employer, and therefore may not constitute an "injury" for which the appellant, Comcare, was liable to pay compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth). The respondent, Ms Martin, was employed by the Australian Broadcasting Corporation as a producer of a local morning radio program. She had a difficult working relationship with her direct supervisor, who she thought was bullying and harassing her. Following a number of attempts to remove herself from his supervision, Ms Martin was appointed to act temporarily in the higher position of cross media reporter. Ms Martin subsequently applied for and was interviewed for permanent appointment to that position. The selection panel informed Ms Martin that she had not been appointed to the permanent role and would be returning to her previous position under the supervision of her previous supervisor. At that point, Ms Martin broke down uncontrollably and subsequently was diagnosed with an adjustment disorder, rendering her unfit for work. Ms Martin made an application for compensation to Comcare, which was refused on the basis that her adjustment disorder was "suffered as a result of reasonable administrative action" and therefore was not an "injury" as defined in s 5A(1) of the Safety Rehabilitation and Compensation Act 1988 (Cth). Ms Martin appealed the merits of Comcare's decision to the Administrative Appeals Tribunal. The Tribunal found that Ms Martin was suffering from an adjustment disorder during the period in which she was acting as cross media reporter and that the adjustment disorder deteriorated as a result of her failure to obtain the permanent position. However, the Tribunal also found that the decision not to appoint Ms Martin had not been taken in a reasonable manner and therefore Comcare was liable to pay compensation. That finding was overturned on an appeal by Comcare to the Federal Court of Australia. An order was made remitting the matter to the Tribunal. Ms Martin then appealed to the Full Court of the Federal Court, which, by majority, allowed her appeal. The Full Court construed the phrase "as a result of" in s 5A(1) as requiring the application of a "common sense" approach to causation, and held that the Tribunal failed to apply that approach. By grant of special leave, Comcare appealed to the High Court. The High Court unanimously allowed the appeal, holding that the Full Court erred in construing the phrase "as a result of" in s 5A(1) as importing a "common sense" notion of causation. The Court held that the causal connection required in s 5A(1) is met if, without the taking of the administrative action, the employee would not have suffered the ailment or aggravation that was contributed to, to a significant degree, by the employee's employment. The High Court allowed the appeal and made orders with the effect that the matter is remitted to the Tribunal to determine, according to law, whether the administrative action was taken in a reasonable manner.

HIGH COURT OF AUSTRALIA Public Information Officer 16 October 2008 SIE SOK v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND MIGRATION REVIEW TRIBUNAL A claim of domestic violence did not have to be raised during initial consideration of an application for a permanent visa but could be raised when a visa refusal was being reviewed by the Migration Review Tribunal (MRT), the High Court of Australia held today. In August 2002, Sie Sok, a citizen of Cambodia, married an Australian woman who sponsored his applications for a temporary visa and a permanent visa. The temporary visa was granted and Mr Sok entered Australia in November 2002. Permanent visas are not granted for at least two years. A condition for the grant of the permanent visa was that the applicant be the spouse of the sponsor. This required the Minister to be satisfied that the couple had a mutual commitment to a shared life as husband and wife to the exclusion of all others, that the relationship was genuine and continuing, and that they live together or do not live apart on a permanent basis. If the relationship had ceased, an applicant would remain entitled to a permanent visa if they had suffered domestic violence committed by the sponsoring spouse. In March 2005, following an interview by an immigration official and visits to two addresses where Mr Sok and his wife were apparently living, the visa was refused on the ground that the official was not satisfied that Mr Sok was the spouse of the sponsor. He applied for a review by the MRT. In February 2006, Mr Sok submitted material to the MRT claiming that he had been the victim of domestic violence. The MRT, without inviting Mr Sok to appear to give evidence or make submissions, recorded a finding that it was not satisfied that he had suffered domestic violence. If the MRT was not satisfied that a claimant had suffered domestic violence it could refer the question to an independent expert. The expert’s opinion was conclusive. In this case, without hearing Mr Sok, the MRT referred the matter to first one independent expert for an opinion, then to a second expert. Both experts concluded that Mr Sok had not suffered domestic violence. A copy of each opinion was sent to Mr Sok. After he received the first opinion he provided further evidence in support of his claim to have suffered domestic violence. In October 2006, the MRT held a hearing at which Mr Sok adduced evidence and presented arguments in support of his claim. The MRT affirmed the official’s decision to refuse him a permanent visa. Mr Sok applied to the Federal Magistrates Court (FMC) for relief. It declared the MRT’s decision to be unlawful, void and of no force and effect, and made orders quashing the decision, prohibiting the MRT and the Minister from giving effect to the decision, and requiring the MRT to rehear the application for review. It held that the MRT was obliged to invite Mr Sok to a hearing before seeking the opinion of an independent expert. The Minister appealed to the Full Court of the Federal Court of Australia, which allowed the appeal. The Full Court held that Division 1.5 of the Migration Regulations relating to domestic violence applied only to the original decision-maker and not to the MRT. It held that a person had to have raised a domestic violence claim when a visa application was considered by the Minister. Mr Sok appealed to the High Court. The Court unanimously allowed the appeal and upheld the FMC’s orders. It held that the MRT must consider a claim of domestic violence made by a visa applicant, even when no such claim was made before the Minister refused to grant the visa. The MRT must invite the applicant for review to appear to give evidence and present arguments before making a decision about whether or not the applicant has suffered domestic violence.

HIGH COURT OF AUSTRALIA 18 March 2020 UCOMMISSIONER OF STATE REVENUE v ROJODA PTY LTD [2020] HCA 7 Today the High Court, by majority, allowed an appeal from the Court of Appeal of the Supreme Court of Western Australia. The majority held that, in relation to two partnerships, a partner held titles to partnership property on trust for their fellow partners, each of whom had a non-specific interest in relation to all of the partnership property. The majority also held that after the partnerships had dissolved, declarations that title to particular partnership property was held on trust in the relevant proportions for each former partner were dutiable transactions within the meaning of s 11(1) of the Duties Act 2008 (WA). The Scolaro family conducted a business of property ownership in Western Australia through two partnerships. One partnership consisted of Mr and Mrs Scolaro and the other consisted of Mr and Mrs Scolaro and their three children. Freehold titles to land, which were part of the partnership property, were held by Mr and Mrs Scolaro as joint tenants. Upon Mr Scolaro's death in 2011, the partnerships dissolved but were not wound up and Mrs Scolaro, as the surviving joint tenant, became registered as proprietor of the freehold titles. In 2013, Mrs Scolaro, her two surviving children, and the successors in title to her deceased son entered into two deeds concerning the freehold titles ("the 2013 Deeds"). The 2013 Deeds declared that Mr and Mrs Scolaro had held the freehold titles on trust for the partnerships, and "confirm[ed]" that Mrs Scolaro, as the sole surviving trustee, continued to hold the freehold titles on trust for the surviving partners, and the legatees of Mr Scolaro and her deceased son, in their respective partnership shares. The 2013 Deeds appointed the respondent, Rojoda Pty Ltd ("Rojoda"), to replace Mrs Scolaro as trustee of the freehold titles. Section 11(1)(c) of the Duties Act provides that a declaration of trust over dutiable property, which includes land in Western Australia, is a "dutiable transaction". The Commissioner imposed duty upon the declarations of trust in each of the 2013 Deeds. The State Administrative Tribunal dismissed an application for review by Rojoda on the basis that the 2013 Deeds declared bare trusts over the freehold titles and thus altered the nature of the partners' interests with respect to the partnership property. The Court of Appeal allowed Rojoda's appeal and held that upon dissolution of the partnerships, since liabilities could be discharged from current assets, equity would treat the nature of the partners' equitable rights as fixed interests in the partnership freehold titles, with the consequence that no duty was payable . The High Court, by majority, held that the declarations of trust were dutiable transactions. Mr and Mrs Scolaro held the freehold titles on trust for their fellow partners during the life of the partnerships and, in relation to Mrs Scolaro, upon their dissolution; prior to the 2013 Deeds, each of the surviving partners and the successors in title to the deceased partners held a non-specific interest in relation to all of the partnership property that was not an interest in, or in relation to, any specific asset, but a right to a share of the net proceeds from the sale of each asset at the completion of the winding up. As the declarations of trust under the 2013 Deeds created new fixed interests in the freehold titles that were different from the prior non-specific interests of the partners, the declarations were dutiable transactions within the meaning of the Duties Act. The majority also rejected the respondent's arguments that the 2013 Deeds were agreements to convert the partnership interests into specific equitable interests or that they involved agreements to transfer partnership property to former partners or their successors within s 78 of the Duties Act. The majority held that the 2013 Deeds extinguished the existing rights held by the former partners and created new equitable rights annexed to the freehold titles.

HIGH COURT OF AUSTRALIA 23 June 2021 MATTHEW WARD PRICE AS EXECUTOR OF THE ESTATE OF ALAN LESLIE PRICE (DECEASED) & ORS v CHRISTINE CLAIRE SPOOR AS TRUSTEE & ORS [2021] HCA 20 Today, the High Court unanimously dismissed an appeal from a judgment of the Court of Appeal of the Supreme Court of Queensland. The principal question on appeal was whether the parties to a mortgage may agree that the mortgagor will not plead the statutory time limitation under the Limitation of Actions Act 1974 (Qld) ("the Act") by way of defence to an action brought by the mortgagee or whether such an agreement was unenforceable as contrary to public policy. That question also concerned the terms of the clause in the mortgages and whether they were effective to prevent the appellants from pleading the statutory time limitation. Another question concerned whether s 24 of the Act operated automatically to extinguish title at the expiry of the time period. Law Partners Mortgages Pty Ltd ("LPM") advanced $320,000 to the appellants in 1998, secured by mortgages over land. The respondents, successors in title to LPM, brought proceedings as mortgagees in which they claimed monies owing under and secured by two mortgages, together with recovery of possession of land the subject of the mortgages. The appellants pleaded that the respondents were statute-barred from bringing the action for debt pursuant to ss 10, 13 and 26 of the Act. It was further alleged that the respondents' title under the mortgages had been extinguished by operation of s 24 of the Act. Section 24 of the Act provided, in effect, that where the relevant time period within which a person "may bring an action" to recover land had expired, "title" to that land "shall be extinguished". In reply, the respondents relied on cl 24 of each mortgage, which they contended amounted to a covenant on the part of the appellants not to plead a defence of limitation. The primary judge dismissed the respondents' application for summary judgment or for a strike out of the defences. The Court of Appeal allowed the appeal from that decision, finding that it was possible to contract out of the defences conferred by the Act and that s 24 did not apply in the circumstances of the case. The High Court unanimously dismissed the appeal. The High Court held that the right to plead the expiry of the relevant time period as a defence was a benefit conferred upon individuals. It was not contrary to public policy for the relevant parties to agree to give up that right and such an agreement was enforceable. Clause 24, properly construed, was intended to apply to a benefit given by statute to a defendant by which the mortgagee's right could be defeated. Further, s 24 does not operate automatically at the end of the relevant time period to extinguish title; instead, it operates by reference to the plea. By agreeing to the terms of cl 24, the appellants effectively gave up the right to plead the expiry of the relevant time period, the respondents were not statute-barred and s 24 of the Act did not operate to extinguish the respondents' title. The Court further found that the respondents were not confined to an action in damages in the event of the appellants breaching cl 24.

HIGH COURT OF AUSTRALIA 6 October 2021 [2021] HCA 28 Today the High Court unanimously dismissed an appeal from a decision of the Court of Criminal Appeal of the Supreme Court of New South Wales. The appeal concerned whether the verdict at trial was affected by a miscarriage of justice within the meaning of s 6(1) of the Criminal Appeal Act 1912 (NSW) in that the prosecution did not provide "full and proper" disclosure of certain data to the appellant prior to trial, contrary to the requirements of ss 141 and 142 of the Criminal Procedure Act 1986 (NSW) ("the Act"). The appellant was convicted by a jury of six counts of aggravated sexual intercourse with a person aged above 10 and under 14 years of age, contrary to s 66C(2) of the Crimes Act 1900 (NSW). The appellant contended that the trial miscarried by reason of the prosecution's failure to provide to his lawyers, in advance of the trial, a hard drive containing a copy of data stored on the appellant's mobile phone ("the Cellebrite Download"), which had been seized by police upon his arrest. The Office of the Director of Public Prosecutions ("the ODPP") informed the appellant's lawyers of the existence of the Cellebrite Download in writing on three occasions prior to the trial but did not serve a copy of the Cellebrite Download or otherwise provide any information from the Cellebrite Download. The appellant's lawyers only became cognisant of the Cellebrite Download after the ODPP served a witness statement on the Friday before the trial was scheduled to commence. The High Court unanimously held that in this case the verdict was not affected by a miscarriage of justice and dismissed the appeal. The majority of the High Court found that there was no prosecutorial duty to disclose a copy of the Cellebrite Download because the appellant, even with the benefit of hindsight, was unable to show how the contents of the Cellebrite Download "would reasonably be regarded as relevant to the prosecution case or the defence case" as required by s 142(1)(i) of the Act or were "relevant to the reliability ... of a prosecution witness" as required by s 142(1)(k) of the Act. The majority found that the appellant's arguments about the forensic value of the Cellebrite Download did not rise above the level of speculation. In any event, the appellant was unable to show any respect in which his entitlement to a fair trial was adversely affected by not being provided with a copy of the Cellebrite Download. The High Court rejected the appellant's argument that, without the Cellebrite Download, he had lost the chance of a different outcome at trial that might have resulted from further investigations, cross-examination and submissions.

HIGH COURT OF AUSTRALIA 16 June 2010 Manager, Public Information HOGAN v AUSTRALIAN CRIME COMMISSION & ORS [2010] HCA 21 Today, the High Court held that the Federal Court should not make orders prohibiting or restricting the publication of documents in evidence before it unless they are necessary to prevent prejudice to the administration of justice. As part of an investigation known as Operation Wickenby, the Australian Crime Commission (ACC) used its powers under the Australian Crime Commission Act 2002 (Cth) to require a firm of accountants to produce documents relating to the appellant, Paul Hogan, and other individuals and entities. An adviser to Mr Hogan commenced proceedings in the Federal Court to restrain the ACC and its Chief Executive Officer from using or disseminating the documents that related to Mr Hogan. Mr Hogan was later joined as a party. The adviser claimed legal professional privilege over the documents on Mr Hogan's behalf; the ACC disputed the claim. One of the ACC's arguments was that the documents were made in furtherance of a crime or fraud such that no privilege existed. During the proceedings, Mr Hogan sought discovery from the ACC in relation to its claim that the documents were made in furtherance of a crime or fraud. An affidavit supporting the discovery application was affirmed by Mr Hogan's solicitor and filed in court. The exhibit to the affidavit contained a schedule produced by the ACC. The schedule detailed inferences, as to Mr Hogan's alleged involvement in tax evasion schemes, that the ACC said could be drawn from the documents it had obtained from the firm of accountants. The exhibit also included file notes and accounting advices that concerned Mr Hogan's taxation and financial affairs. On Mr Hogan's application (which was not opposed by the ACC), the trial judge made orders under s 50 of the Federal Court of Australia Act 1976 (Cth) restricting the publication of the schedule, file notes and accounting advices, among other documents, to the parties and their legal advisers. Section 50 enables the Court to make such order forbidding or restricting the publication of particular evidence or the name of a party or witness as appears to the Court to be necessary in order to prevent prejudice to the administration of justice or the security of the Commonwealth. The ACC later abandoned its reliance on the crime or fraud exception to legal professional privilege, and the proceeding originally brought by Mr Hogan's adviser was eventually dismissed. However, on 15 July 2008, Mr Hogan sought orders that the restrictions on the publication of the documents contained in the exhibit to his solicitor's affidavit remain in force. On 5 August 2008, Nationwide News Pty Limited ("News") and John Fairfax Publications Pty Limited ("Fairfax") made an application for leave to inspect the documents held by the Registry of the Federal Court in relation to the proceeding. They also sought the vacation of all orders under s 50 of the Federal Court of Australia Act restricting the publication of documents relating to the proceeding. The trial judge refused Mr Hogan's application, vacated all orders restricting the publication of the documents and gave leave to News and Fairfax to inspect and copy the documents, including the schedule, file notes and accounting advices. The Full Court of the Federal Court by majority dismissed an appeal by Mr Hogan from the vacation of the order that restricted the publication of the schedule, file notes and accounting advices. By special leave, Mr Hogan appealed to the High Court seeking relief that would have reinstated the s 50 order in relation to the documents and would have dismissed the application made by News and Fairfax for leave to inspect and copy them. Mr Hogan claimed that the trial judge and the Full Court had failed to recognise the inherently confidential nature of the documents. The High Court today unanimously dismissed Mr Hogan's appeal. The Court did not agree that the material was inherently confidential. The question was whether an order under s 50 was necessary to prevent prejudice to the administration of justice by the Federal Court. In this context, the Court held that the administration of justice includes not only the generally recognised interest in open justice openly arrived at but also restraints upon disclosure where this would prejudice the proper exercise of the Federal Court's adjudicative function. The High Court noted that Mr Hogan had not adduced evidence of any specific prejudice that would or might flow from disclosure of the material, nor was he relying on a claim of legal professional privilege over the material. The placing of the material in evidence was a forensic decision. In relation to the application made by News and Fairfax, the Court held that leave was properly granted to inspect and copy documents held by the Registry because Mr Hogan had adduced no evidence of apprehended particular or specific harm or damage.

HIGH COURT OF AUSTRALIA 6 October 2005 GLORIA JEANETTE YORK v THE QUEEN The Queensland Court of Appeal was not justified in overruling a primary judge’s decision to suspend a prison sentence imposed on Ms York, the High Court of Australia held today. Ms York, 59, pleaded guilty to drugs charges in June 2004. She had an extensive criminal history. Justice Roslyn Atkinson sentenced her to five years’ imprisonment but suspended the sentence for five years. Justice Atkinson said a head sentence of 10 to 12 years was appropriate but she discounted this by 60 per cent as Ms York had not offended since her arrest in April 2001 and, more importantly, had given extensive assistance to the police resulting in the conviction of a major drug dealer, Alan John Lace, for an execution-style murder in 1999. Her conduct, throughout Mr Lace’s original trial and a subsequent retrial, was described by Justice Atkinson as very brave. She said Ms York, who had received death threats, faced a high risk of violent retribution in prison, but that she would have no compunction in sending Ms York to prison if she re-offended within five years. Threats included a visit after Mr Lace’s committal from a masked and armed former prisoner who told her she would be shot if she testified against Mr Lace. Further threats were made after the first trial and after his appeal. Ms York refused witness protection. The Crown appealed on the ground that the sentence was manifestly inadequate. In the Court of Appeal, the Attorney-General submitted information from the Department of Corrective Services that options to be considered for Ms York were a protection unit at the Brisbane Women’s Correctional Centre or the Townsville jail. The Court of Appeal, by majority, held that, despite the uncontradicted findings about the risks to Ms York’s safety, it could not bow to pressure from criminals, and that jail was the only appropriate penalty, despite her cooperation with authorities and her guilty plea. It sentenced her to five years’ imprisonment to be suspended after she served two years. That sentence has not taken effect, pending the outcome of her appeal to the High Court. The Court unanimously allowed her appeal. It held that Justice Atkinson was entitled to take Ms York’s safety in prison into account and that it was within the scope of her discretion to sentence her as she did.

HIGH COURT OF AUSTRALIA 8 December 2021 DEPUTY COMMISSIONER OF TAXATION v CHANGRAN HUANG [2021] HCA 43 Today the High Court allowed an appeal from a decision of the Full Court of the Federal Court of Australia. The appeal concerned the Federal Court's power to make an order restraining a person from disposing of, dealing with or diminishing the value of assets, including assets located in or outside Australia (a "Worldwide Freezing Order") conferred by r 7.32 of the Federal Court Rules 2011 (Cth) ("the Rules"). Rule 7.32(1) states that the purpose of the order must be "preventing the frustration or inhibition of the Court's process" and the order must serve that purpose "by seeking to meet a danger that a judgment or prospective judgment of the Court will be wholly or partly unsatisfied". The respondent, Mr Huang, was a tax resident of Australia for a number of years. In December 2018, he left Australia for the People's Republic of China ("the PRC") while the Australian Taxation Office was conducting an audit into his income tax affairs. Subsequently, the Commissioner of Taxation issued to Mr Huang assessments for tax liabilities and a shortfall penalty totalling almost $141 million. On application by the Deputy Commissioner of Taxation the primary judge made a Worldwide Freezing Order against Mr Huang until further order. Mr Huang sought leave to appeal against the freezing order to the extent it applied to his assets located outside Australia. The Full Court granted leave and set aside the Worldwide Freezing Order on the basis that there was presently no realistic possibility of enforcement of any judgment obtained by the Deputy Commissioner against Mr Huang's assets in the PRC or Hong Kong. The High Court by majority held that the power in r 7.32 of the Rules is not constrained by a precondition that it may only be exercised if there is proof of a realistic possibility of enforcement of a judgment debt against the person's assets in each foreign jurisdiction to which the proposed order relates. Provisions granting powers to a court are not to be read down by making implications or imposing limitations which are not found in the express words. The power conferred by r 7.32 is broad and flexible. It is the court's authority to make orders against a person who is subject to the court's jurisdiction that is relevant to the power to make a freezing order, rather than the location of the person's assets. Requiring proof of a realistic possibility of enforcement in each jurisdiction would render the power to make a freezing order largely impotent to protect the Federal Court's process from frustration by defendants who are able to secrete assets or move them almost instantaneously across international borders. Further, such a precondition is effectively inconsistent with the power to make a Worldwide Freezing Order as it would necessitate identification of the defendant's foreign assets as well as potential means of enforcement in a relevant foreign jurisdiction. However, the likely utility of a freezing order is undoubtedly relevant to the exercise of the court's discretion to grant a Worldwide Freezing Order.

HIGH COURT OF AUSTRALIA 7 September 2012 P T GARUDA INDONESIA LTD v AUSTRALIAN COMPETITION & CONSUMER COMMISSION [2012] HCA 33 Today the High Court unanimously dismissed an appeal by P T Garuda Indonesia Ltd ("Garuda") and held that Garuda had no claim to immunity under the Foreign States Immunities Act 1985 (Cth) ("the Act") from proceedings brought in the Federal Court by the Australian Competition and Consumer Commission ("the ACCC"). The ACCC alleged that, with respect to commercial freight services to Australia, Garuda and several other airlines had engaged in anti-competitive conduct which contravened s 45 of the Trade Practices Act 1974 (Cth) ("the TPA"). The remedies sought by the ACCC included an injunction, declaration and pecuniary penalties under the TPA. It was not disputed in the High Court that Garuda was a "separate entity" of the Republic of Indonesia. The High Court held however, that Garuda could not claim immunity because the proceedings against it concerned a commercial transaction within the meaning of s 11(1) of the Act. The conduct alleged by the ACCC against Garuda comprised dealings of a commercial trading and business character. It was no answer to the denial of immunity that the ACCC proceedings were not brought to vindicate private law contractual rights.

HIGH COURT OF AUSTRALIA 4 May 2011 KUHL v ZURICH FINANCIAL SERVICES AUSTRALIA LTD & ANOR [2011] HCA 11 Today the High Court allowed an appeal against a decision of the Court of Appeal of the Supreme Court of Western Australia and held that Zurich Financial Services Australia Ltd ("Zurich") was liable in negligence to Mr Geoffrey Lawrence Kuhl. In 1999 Mr Kuhl, an employee of Transfield Construction Pty Ltd, suffered injuries on a work site when his left arm was sucked into a vacuum hose after the hose was passed to him by another person. Mr Kuhl commenced an action in negligence against Zurich and QBE Insurance Services Australia Ltd ("QBE") in the District Court of Western Australia. Mr Kuhl alleged that WOMA (Australia) Pty Ltd ("WOMA") and Hydrosweep Pty Ltd ("Hydrosweep") were liable in negligence for his injuries. Zurich and QBE were the respective insurers of these two companies. The District Court held that neither Zurich nor QBE were liable to Mr Kuhl in negligence. Mr Kuhl appealed to the Court of Appeal. The Court of Appeal dismissed the appeal on the basis that neither Zurich nor QBE owed Mr Kuhl the duties of care contended for, and that there was no breach of duty in any event. A majority of the High Court allowed the appeal, and made an order setting aside the orders of the Court of Appeal and the District Court in respect of Zurich and entering judgment against Zurich in the amount of $265,000. The High Court held that WOMA had a duty of care to users of the hose which extended to risks in relation to the passing of the hose. The Court further held that WOMA had breached that duty by failing to issue instructions not to pass the hose while the power was turned on and by failing to install a "break box" close to the head of the hose which could be employed to break the vacuum pressure, and that each of these breaches had caused Mr Kuhl's injuries. The High Court also held that the trial judge erred in drawing an inference adverse to Mr Kuhl, on the basis of Mr Kuhl's oral evidence, that some action by him subsequent to the passing of the hose caused his arm to be drawn in to the hose. The nature of this error was the trial judge's failure to give reasons for his inference and his failure to give Mr Kuhl an opportunity to address the point. The High Court upheld the orders of the District Court and the Court of Appeal in favour of QBE.

HIGH COURT OF AUSTRALIA 15 August 2012 MINISTER FOR HOME AFFAIRS OF THE COMMONWEALTH & ORS v CHARLES ZENTAI & ORS [2012] HCA 28 Today the High Court dismissed an appeal from a decision of the Full Court of the Federal Court of Australia, which had held that the first appellant, the Minister, could not determine to surrender the first respondent, Charles Zentai, to the Republic of Hungary for an offence which was not an offence under Hungarian law at the time the acts alleged to constitute it were committed. Mr Zentai is an Australian citizen. On 23 March 2005, Hungary requested his extradition for the offence of "war crime". The acts said to constitute the offence occurred on 8 November 1944 and involved a fatal assault on a young Jewish man. At that time, in Hungary, there was no offence of "war crime" but there was an offence of murder, however Hungary did not request Mr Zentai's surrender for the crime of murder. On 8 July 2005, the former Minister for Justice and Customs issued a notice of receipt of the extradition request. Mr Zentai was arrested on a provisional warrant and granted conditional bail. On 20 August 2008, the second respondent, a magistrate, determined that Mr Zentai was eligible for extradition to Hungary and issued a warrant committing him to prison. On 12 November 2009, the Minister determined that Mr Zentai was to be surrendered to Hungary under s 22(2) of the Extradition Act 1988 (Cth) ("the Act"). Section 22(2) of the Act requires the Attorney-General (in this case, the Minister) to determine as soon as is reasonably practicable after a person becomes an "eligible person" whether the person is to be surrendered in relation to a qualifying extradition offence. Section 11 of the Act provides that regulations may state that the Act applies in relation to a specified extradition country subject to such limitations, conditions, exceptions or qualifications as are necessary to give effect to a bilateral extradition treaty. The Extradition (Republic of Hungary) Regulations (Cth) declare Hungary to be an extradition country and provide that the Act applies in relation to Hungary subject to the Treaty on Extradition between Australia and the Republic of Hungary ("the Treaty"). Article 2.5(a) of the Treaty states that extradition may be granted irrespective of when the offence in relation to which extradition is sought was committed, provided that "it was an offence in the Requesting State at the time of the acts or omissions constituting the offence". The Act precludes surrender of an eligible person in a case in which it applies in relation to an extradition country subject to a condition having the effect that surrender shall be refused in certain circumstances, unless the Minister is satisfied that those circumstances do not exist. Mr Zentai commenced proceedings in the Federal Court claiming an order quashing the Minister's determination. McKerracher J found that it had not been open to the Minister to surrender Mr Zentai for extradition because "war crime" was not an offence in Hungary at the time the acts alleged to constitute it were committed. The appellants appealed to the Full Court of the Federal Court, which allowed the appeal in part and varied the primary judge's orders, but otherwise dismissed the appeal. A majority concluded that McKerracher J was correct in holding that the offence for which extradition was sought must have been an offence under Hungarian law at the time of the acts alleged to constitute it. The appellants appealed, by special leave, to the High Court of Australia. The High Court dismissed the appeal. By majority, it held that the inquiry to which Art 2.5(a) directed attention was not whether the acts or omissions particularised in the request were capable of giving rise to any form of criminal liability under the laws of the Requesting State at the time they were committed, but whether, at that time, those acts or omissions constituted the offence for which extradition was sought. The Minister was precluded from surrendering Mr Zentai for extradition unless he was satisfied that the offence of "war crime" was an offence against the law of Hungary on 8 November 1944.

HIGH COURT OF AUSTRALIA 7 September 2022 [2022] HCA 31 Today, the High Court allowed an appeal from a judgment of the Court of Criminal Appeal of New South Wales. The appeal concerned the scope of operation of s 80AF of the Crimes Act 1900 (NSW), a provision intended to facilitate the prosecution of historic sexual offences, and whether that provision could apply after an accused's trial had commenced. On 29 November 2018, the appellant, Mr Stephens, was arraigned in the District Court of New South Wales and pleaded not guilty to each count on an 18-count indictment, which alleged sexual offences by Mr Stephens against a complainant from the time that the complainant was 10 years old until the complainant was approximately 15 years old. In respect of four instances of alleged conduct, the Crown was uncertain whether the alleged conduct occurred (i) before 8 June 1984, at which time s 81 of the Crimes Act was in force, or (ii) on or after 8 June 1984, at which time s 81 had been repealed but s 78K of the Crimes Act was in force. These four instances were formulated in pairs of alternative counts under ss 81 and 78K. On 1 December 2018, s 80AF of the Crimes Act came into force. It relevantly provided that, in circumstances where it is uncertain as to when during a period conduct is alleged to have occurred and, due to a change in the law, the alleged conduct would have constituted more than one sexual offence during that period, the prosecution can rely, in relation to the entirety of the period, on whichever offence carries the lesser maximum penalty. In Mr Stephens' case, the practical effect of s 80AF was to extend the period during which s 81 was in force, for conduct that constituted an offence under both ss 81 and 78K, from 8 June 1984 until 13 June 2003. Section 80AF displaced authority requiring the Crown to prove beyond reasonable doubt, on each count under s 81 or s 78K, that the alleged conduct was committed at a time when the relevant section was in force. On 5 February 2019, the Crown was granted leave to amend the indictment to take the benefit of s 80AF. Following further amendments to the indictment, Mr Stephens was convicted of seven counts of sexual offences against the complainant, four of which he appealed to the Court of Criminal Appeal. A majority of the Court of Criminal Appeal quashed his conviction on one of those counts only, concluding that s 80AF applied retroactively including to trials that had already commenced. By majority, the High Court held that s 80AF did not operate with respect to trials that had already commenced when the provision came into force and it could not be invoked after the commencement of a trial. To interpret s 80AF as being completely retroactive would significantly disturb reasonable expectations about the manner in which the law is implemented, and retroactively alter the law for extant proceedings where forensic decisions may have been made in reliance upon the previous law. An interpretation of s 80AF which restricted its retroactive effect, by requiring the Crown to elect to take advantage of the provision before the commencement of the trial, was supported by textual indications and reasonable expectations of its operation.

HIGH COURT OF AUSTRALIA Public Information Officer 27 March 2008 GUMLAND PROPERTY HOLDINGS PTY LTD v DUFFY BROS FRUIT MARKET (CAMPBELLTOWN) PTY LTD, FERDINANDO PISCIUNERI AND NATALE PISCIUNERI A commercial lease was validly terminated on account of the lessee’s failure to pay rent and the lessor was entitled to damages as well as unpaid rent and outgoings, the High Court of Australia held today. In 1993, Duffy Bros leased almost 20 per cent of the Marketfair Campbelltown shopping centre for 15 years from Transit Management Pty Ltd to operate a fruit, vegetable and meat market. The base rent was $245,343 per annum, subject to Consumer Price Index increases and five-yearly reviews, plus almost 20 per cent of Transit’s outgoings. In 1994, the Pisciuneris entered into a guarantee to pay all costs for occupation of the premises or arising out of any breach of the lease agreement. By 1999, Duffy Bros was experiencing difficult trading conditions and had fallen into arrears with rent and outgoings. Duffy Bros and Transit entered a deed which reduced the rent to $156,000 per annum and allowed the creation of a sub-lease over part of the premises. Duffy Bros sub-leased the portion of the premises to Austie Nominees Pty Ltd which in 2001 transferred its interest to Woolworths Ltd. Transit sold the shopping centre to Gumland Property Holdings in 2001 and transferred all its rights under the lease and the 1999 deed to Gumland. The sub-lease expired in 2002 and Woolworths told Duffy Bros that it did not wish to renew. However it remained in occupation while opting unilaterally to pay only half the rent. This put Duffy Bros into breach of the deed since it did not pay the shortfall itself. Gumland served notice on Duffy Bros stating that the shortfall in rent was a breach entitling it to terminate the lease. It demanded payment of $57,893.55. Duffy Bros did not pay and on 1 August 2003 Gumland gave notice terminating the lease. In 2004, Gumland began proceedings seeking arrears of rent up to the date of termination, loss of bargain damages for the rest of the 15-year term, expiring on 29 March 2008, and reinstatement damages (the costs of reletting the premises). It also sued the Pisciuneris as guarantors of Duffy Bros’ obligations under the lease. In the NSW Supreme Court, Associate Justice Richard Macready held that the lease was validly terminated due to the failure to pay rent. The failure to make up the shortfall in Woolworths’ rent gave rise to a right to loss of bargain damages as well as rent arrears. Associate Justice Macready gave judgment for Gumland of $2,096,514, including interest, made up of the Woolworths’ shortfall ($78,635); arrears of rent and outgoings ($283,597); loss of bargain damages – the difference between rent and outgoings payable between 1 August 2003 and 29 March 2008 and that paid by new tenants ($1,624,737); and reinstatement damages ($109,545). The Court of Appeal held that Gumland was not entitled to terminate the lease because Duffy Bros’ failure to pay the shortfall was only a breach of the deed, not a breach of an essential term in the lease. Therefore Gumland was not entitled to loss of bargain damages or reinstatement damages, reducing the judgment to $362,232. Gumland appealed to the High Court. The High Court unanimously allowed the appeal and restored the judgment sum awarded by Associate Justice Macready. It held that Duffy Bros had breached the deed and that Gumland had a clear right of action under the deed against Duffy Bros for rent not paid by Woolworths. Once part of the store was sub- leased, Duffy Bros was liable for the rent and outgoings under any sub-lease. The deed was not a side agreement to the lease or a suspension of the lease, but a variation of it. Hence the failure to pay these amounts was a failure to comply with the lease covenant to pay all rent and outgoings. The lease covenant was an essential term and breach of an essential term entitled Gumland to terminate the lease and obtain an award of loss of bargain damages.

HIGH COURT OF AUSTRALIA 11 February 2016 CGU INSURANCE LIMITED v ROSS BLAKELEY, MICHAEL RYAN & QUENTIN OLDE AS JOINT AND SEVERAL LIQUIDATORS OF AKRON ROADS PTY LTD (IN LIQ) & ORS [2016] HCA 2 Today the High Court dismissed an appeal from the Court of Appeal of the Supreme Court of Victoria. The High Court held that the federal jurisdiction invested in the Supreme Court of Victoria authorised that Court to grant a declaration in favour of a plaintiff against a defendant's insurer that the insurer is liable to indemnify the defendant. The first respondents are liquidators of the second respondent, Akron Roads Pty Ltd ("the company"). They commenced proceedings in the Supreme Court seeking an order under s 588M(2) of the Corporations Act 2001 (Cth) ("the Act") that the directors of the company, including Mr Trevor Crewe and Crewe Sharp Pty Ltd ("the directors"), pay to them as a debt due to the company, an amount equal to the amount of loss or damage suffered by creditors of the company due to alleged insolvent trading in breach of s 588G of the Act. Crewe Sharp made a claim on a professional indemnity policy with the appellant, CGU Insurance Ltd ("CGU"). Mr Crewe was also insured under that policy. CGU denied the claim on the basis that the insurance policy did not cover the liability asserted by the directors as a result of various exceptions in the policy. The directors were not in a position to challenge CGU's denial of liability. In the interlocutory stages of the proceedings, the liquidators sought an order to join CGU as a defendant and for leave to file and serve amended points of claim seeking a declaration that CGU was liable to indemnify the directors under the policy. In contending that they had a sufficient interest in the determination of CGU's liability to support their claim for a declaration and joinder, the liquidators relied on s 562 of the Act. Section 562 afforded the liquidators a priority in respect of any insurance proceeds payable by CGU to Crewe Sharp. Section 117 of the Bankruptcy Act 1966 (Cth) would have imposed a similar priority, if Mr Crewe were to become bankrupt. The primary judge in the Supreme Court made the orders sought, and the Court of Appeal dismissed CGU's appeal. By grant of special leave, CGU appealed to the High Court, submitting that the Supreme Court lacked jurisdiction to join CGU and to grant declaratory relief at the suit of the liquidators regarding the effect of the private insurance contract between CGU and the directors, where the directors were not in a position to pursue any claim against CGU. In relation to federal jurisdiction, CGU's argument reduced to the proposition that there was no justiciable controversy between the liquidators and CGU and therefore no "matter" on which to found federal jurisdiction. The High Court dismissed the appeal, holding that the liquidator's claim for relief was within the subject matter area of federal jurisdiction and constituted a justiciable controversy between the liquidators and CGU. It was confirmed that the Supreme Court had federal jurisdiction to entertain the liquidators' claim and grant the declaration sought.

HIGH COURT OF AUSTRALIA 18 May 2005 SAAP AND SBAI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS AND REFUGEE REVIEW TRIBUNAL A decision by the Refugee Review Tribunal to uphold the refusal to grant protection visas to Iranian asylum seekers SAAP and SBAI was invalid because it had not fully complied with a mandatory provision of the Migration Act, the High Court of Australia held today. SAAP and SBAI, a mother born in 1956 and her daughter born in 1993, are of the minority pre- Christian Sabian Mandean faith. They arrived in 2001 by boat from Indonesia, were taken into immigration detention, and sought protection visas on the ground of religious persecution. SAAP’s husband and three other children remained in Iran. SAAP is illiterate and speaks little English. Her eldest daughter was already in Australia and had been granted a protection visa. The Immigration Department refused SAAP and SBAI’s applications. That decision was affirmed by the RRT, which was not satisfied that their experiences amounted to persecution. In her visa application, SAAP described incidents of alleged persecution by the Muslim majority, including her children denied admission to school, being prevented from working as a hairdresser, an attempt to abduct the eldest daughter to forcibly convert her to Islam, and her husband losing the sight of one eye from a rock throwing. At the RRT hearing, conducted via video-link, the eldest daughter was asked about these incidents with SAAP out of the room in Woomera and her migration agent present in the hearing room in Sydney. The RRT member asked SAAP about her daughter’s responses to questions about SAAP’s husband loss of sight and the children’s attendance at school. The RRT member said he would write to SAAP about other answers given by her daughter on which he would like to receive written submissions. This did not happen. Section 424A of the Migration Act requires the RRT to give an applicant particulars in writing of any information that the RRT considers would be a reason for affirming the department’s decision and to invite the applicant to comment. In the Federal Court, Justice John Mansfield found that the RRT had failed to fulfil these two aspects of section 424A, but held that this failure did not deprive SAAP of the opportunity to learn of material adverse to her claim and to comment on it because her migration agent was present when the daughter gave evidence, the RRT asked SAAP about certain aspects of that evidence and SAAP had the opportunity to make submissions. The Full Court upheld Justice Mansfield’s decision declaring that the RRT had not erred in dismissing SAAP and SBAI’s claim for protection visas. They appealed to the High Court. The Court held, by a 3-2 majority, that the RRT failed to comply with section 424A of the Act, which it held set out mandatory steps to accord procedural fairness. The RRT was bound to give SAAP and SBAI written notice of the information it had obtained from the eldest daughter and to ensure as far as reasonably practical that they understood its relevance to the review. Failure to do so gave rise to jurisdictional error, rendering the RRT’s decision invalid. The Court ordered that the RRT’s decision be quashed and that the RRT review according to law the Immigration Department’s decision to refuse SAAP and SBAI protection visas.

HIGH COURT OF AUSTRALIA Public Information Officer 28 August 2008 PAUL ANTHONY IMBREE v JESSIE McNEILLY AND QANTAS AIRWAYS LIMITED A 16-year-old without a driver’s licence or learner’s permit who had taken a turn at driving in central Australia had the same duty as any other driver to take reasonable care to avoid injury to others, including a passenger supervising him, the High Court of Australia held today. The Court overturned its 1986 decision in Cook v Cook, in which the Court held that the standard of care owed was what was reasonably expected of an unqualified and inexperienced driver. Mr Imbree was left a tetraplegic when his four-wheel-drive crashed while Jesse McNeilly (spelled “Jessie” in the title of the appeal) was driving on Larapinta Drive, a gravel road between Kings Canyon and Hermannsburg in the Northern Territory in April 2002. Mr Imbree was accompanied by his friend Ben Watson, his sons Paul and Reece, and Paul’s friend Jesse. Paul and Jesse were both 16. Paul had a learner’s permit but Jesse did not. On the trip from New South Wales to the NT, Mr Imbree allowed Paul and Jesse to drive from time to time. After visiting Ayers Rock and Kings Canyon, the group headed towards Hermannsburg and Alice Springs on Larapinta Drive. At first the road was hilly and corrugated and Mr Imbree and Mr Watson drove. When the road became wider and smoother Mr Imbree allowed Paul then Jesse to drive. When they came across tyre debris, instead of straddling and driving over it, Jesse veered to the right. Mr Imbree yelled at him to brake but he did not. When the vehicle was on the far right-hand side of the road, Jesse turned sharply to the left and accelerated, causing the vehicle to overturn. Mr Imbree brought proceedings in the NSW Supreme Court against Mr McNeilly as driver and Qantas as owner of the vehicle. He worked for Qantas and had a company vehicle. Justice Timothy Studdert gave judgment for Mr Imbree. He found that Mr McNeilly had behaved with carelessness beyond mere inexperience and rejected the argument that Mr Imbree had assumed the risk of injury, but found that he had been contributorily negligent. Mr Imbree’s damages, assessed at more than $9.5 million, were therefore reduced by 30 per cent. Mr McNeilly and Qantas appealed to the Court of Appeal, which held that the damages should be reduced by two-thirds for contributory negligence. The Court of Appeal treated Cook v Cook as establishing that actions resulting from inexperience, rather than carelessness, did not constitute a breach of the duty of care which a learner driver owed to a supervising licensed driver, but the majority found that Mr McNeilly had been careless by swerving off the road. Mr Imbree appealed to the High Court. The Court unanimously allowed the appeal and restored the 30 per cent reduction to the damages award in place of the two-thirds reduction. By a 6-1 majority, the Court held that Cook v Cook should no longer be followed. It held that there should not be different standards of care, depending on whether a plaintiff was supervising the defendant’s driving or not, and such a distinction in Cook v Cook was unwarranted. If a supervising passenger failed to take reasonable care for their own safety, for example in failing to exercise reasonable supervision, principles of contributory negligence would apply, but the learner driver was still subject to the same objective standard of care as any other driver rather than a lesser standard which varied according to experience and perhaps a variety of other factors personal to the driver. The Court dismissed an application by Mr McNeilly and Qantas for special leave to appeal against the Court of Appeal’s finding that Mr McNeilly had driven carelessly.

HIGH COURT OF AUSTRALIA 26 September 2008 PAUL ANTHONY IMBREE v JESSIE McNEILLY AND QANTAS AIRWAYS LIMITED JESSIE McNEILLY AND QANTAS AIRWAYS LIMITED v PAUL ANTHONY IMBREE The High Court of Australia today increased the damages awarded to a passenger left a tetraplegic in an accident when a 16-year-old learner driver was driving. Mr Imbree’s four-wheel-drive crashed while his son’s friend, 16-year-old Jesse McNeilly (spelled “Jessie” in the title of the appeal), was driving on a gravel road in the Northern Territory in April 2002. Both boys were sometimes allowed to drive on the trip from New South Wales to the NT. Mr Imbree, a Qantas employee, brought proceedings in the NSW Supreme Court against Mr McNeilly as driver and Qantas as owner of the vehicle. Justice Timothy Studdert gave judgment for Mr Imbree. He found Mr McNeilly had been careless, but that Mr Imbree had been contributorily negligent. His damages, assessed at more than $9.5 million, were therefore reduced by 30 per cent. Mr McNeilly and Qantas appealed to the Court of Appeal, which held that the damages should be reduced by two-thirds for contributory negligence. Mr Imbree appealed to the High Court, which on 28 August 2008 allowed the appeal and restored the 30 per cent reduction to the damages award. The Court overturned its 1986 decision in Cook v Cook, in which it held that the standard of care owed was what was reasonably expected of an unqualified and inexperienced driver. Instead, the Court held that a learner driver was subject to the same objective standard of care as any other driver rather than to a lesser standard based on experience. Mr Imbree made three offers of compromise ahead of the trial, the appeal to the Court of Appeal and the appeal to the High Court. All were refused. The first offer to settle was for $7.1 million plus costs, the second $7.55 million plus costs, and the third was to settle for a little less than $7.225 million. The third offer was based on damages of $11,115,290, reduced by 35 per cent for contributory negligence, together with interest and the costs of the trial and High Court proceedings, with each party bearing its own costs in the Court of Appeal. The parties have since agreed on the quantum of damages, the amount of interest, the amount for which Mr McNeilly and Qantas should have credit for the amount already paid to Mr Imbree, and that Mr Imbree should have his costs in the Supreme Court on an ordinary basis up to 22 March 2006 and then on an indemnity basis. Mr McNeilly and Qantas accepted that Mr Imbree should have his costs of the Court of Appeal and High Court proceedings but that they should be on an ordinary basis and not on an indemnity basis. The High Court held that the consequential orders upon which the parties were now agreed meant that Mr Imbree would have judgment of $7,926,535.72, which was more than his three offers. It held that in these circumstances he should have his costs of the trial after the first offer of compromise and the appeals to the Court of Appeal and the High Court on an indemnity basis. The Court set aside Justice Studdert’s judgment and ordered that Mr Imbree’s damages be assessed at $11,323,622.46, reduced by 30 per cent for contributory negligence to $7,926,535.72, plus interest calculated up to 12 September 2008 of $875,000 and then $1,100 a day until payment, and that Mr McNeilly and Qantas have credit of $3,744,060.84 for amounts already paid.

HIGH COURT OF AUSTRALIA 26 May 2005 APPLICANT NABD OF 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL The finding of the Refugee Review Tribunal that an Iranian Christian convert would not have a well-founded fear of persecution should he be returned to Iran was not affected by jurisdictional error, the High Court of Australia held today. NABD, 36, claimed that in Indonesia before arriving in Australia he had embraced the Christian faith and that he feared he would be executed by the authorities because he had converted from Islam to Christianity. NABD was refused a protection visa in 2001, a decision affirmed by the RRT. Following his successful application to the Federal Court of Australia for judicial review, a differently constituted tribunal also affirmed the decision to refuse him a visa. The RRT did not accept that NABD, a frequent traveller on business, had to flee to Turkey with a people smuggle rather than leaving legally on his own passport, or that authorities raided a house of a friend who was encouraging him to convert. It did accept, however, that NABD had been baptised in Indonesia, joined the Uniting Church, undertaken a Bible study course, attended religious gatherings in Indonesia and in immigration detention, distributed pamphlets, spoken to others about his faith, and encouraged others to attend church services. The RRT concluded from Australian and American official country information on Iran that Christians do not suffer persecution unless they engage in aggressive outreach or conspicuous proselytising. It held that in Iran NABD would be able to practise as a Christian in the same ways he had done so in Australia without facing a real chance of persecution. It did not accept that his activities since leaving Iran constituted proselytisation rather than quiet sharing of his faith so he would be unlikely to behave more openly or aggressively back in Iran. NABD applied to the Federal Court for writs to quash the RRT’s decision, to compel it to review its decision, and to prevent the Minister giving effect to the decision. The Federal Court dismissed the application and the Full Court of the Federal Court dismissed an appeal. NABD appealed to the High Court, arguing that the RRT paid insufficient regard to his individual circumstances and had fallen into jurisdictional error by attaching significance to different forms of behaviour. The High Court, by a 3-2 majority, dismissed the appeal. It held that the RRT had correctly addressed the fundamental question of whether NABD had a well-founded fear of persecution on the ground of religion. The Court held that the RRT had properly considered NABD’s individual circumstances in the light of the available information.

HIGH COURT OF AUSTRALIA 1 December 2011 MICHAEL WILSON & PARTNERS LTD v ROBERT COLIN NICHOLLS [2011] HCA 48 The High Court today held that a trial judge had been correct not to disqualify himself from hearing a proceeding in the Supreme Court of New South Wales and that the proceeding was not an abuse of the process of the court. The High Court thus allowed the appeal and remitted the matter for further hearing by the Court of Appeal of issues which that Court had not decided. Michael Wilson & Partners Ltd ("MWP"), the appellant, was a law firm and business consultancy in Kazakhstan. MWP employed a solicitor, Mr Emmott, in effect as a partner, and two of the respondents, Messrs Nicholls and Slater, as lawyers. A few years later, Messrs Emmott, Nicholls and Slater left MWP. MWP claimed that each of them had wrongfully caused it loss by taking clients with them or by assisting or conspiring with others to do so. Mr Emmott's contract of employment required arbitration of any dispute with MWP. MWP commenced an arbitration in London against Mr Emmott. MWP claimed, among other things, that Mr Emmott breached a fiduciary duty owed to MWP. MWP then commenced the proceeding in the Supreme Court against the respondents, including Messrs Nicholls and Slater. MWP alleged that they had knowingly assisted Mr Emmott's breach of fiduciary duty and were liable to MWP on that basis as well as in tort. The claims of loss in both proceedings were substantially the same. Before the trial, MWP applied, without notice to the respondents, for permission to use, for foreign proceedings and criminal investigations, affidavits of Messrs Nicholls and Slater in the Supreme Court proceeding. The judge granted MWP's application and six similar applications over approximately a year, relying on MWP's uncontested affidavit evidence. On each occasion, the application was heard in closed court and orders were made preventing the respondents from knowing, or knowing fully, about MWP's applications. These confidentiality orders (with some variations) stood for about a year. When, before trial, the confidentiality orders were lifted, the respondents became aware of MWP's applications and applied to the judge to disqualify himself from hearing the case further. The judge refused their applications and tried the action. The trial judge gave judgment for MWP against the respondents. The arbitrators in London later delivered an award on Mr Emmott's liability to MWP. The trial judge and the arbitrators made differing findings about what losses MWP had suffered. The Court of Appeal held that the trial judge should have disqualified himself and that the Supreme Court proceeding brought by MWP was, in any case, an abuse of process. The High Court overturned the Court of Appeal's decision. The High Court held that the trial judge had been correct not to disqualify himself. A fair-minded lay observer could not reasonably have apprehended that the trial judge might not bring an impartial mind to the case due to what had occurred in connection with MWP's applications without notice. The trial judge had not decided any issue arising at trial, nor were the confidentiality orders themselves enough to found a reasonable apprehension of bias. The High Court also held that neither the institution nor the prosecution to judgment of the Supreme Court proceeding was an abuse of process. The Supreme Court proceeding was not a collateral challenge to the arbitration. Further, because the respondents' liability to MWP was not necessarily limited by Mr Emmott's liability to MWP, the differing findings about loss did not make the Supreme Court proceeding an abuse.

HIGH COURT OF AUSTRALIA 31 August 2005 MOHAMMAD ARIF RUHANI v DIRECTOR OF POLICE (THROUGH THE SECRETARY OF JUSTICE AS DIRECTOR OF PUBLIC PROSECUTOR) The High Court of Australia today published its reasons for holding that it has the jurisdiction to hear appeals from the Supreme Court of Nauru. Mr Ruhani was one of a number of asylum seekers brought to Nauru by Australian sea transport on 21 December 2001 and housed in two camps, Topside and Former State House. Mr Ruhani instituted habeus corpus proceedings in the Supreme Court of Nauru in April 2004, alleging he was held at Topside against his will by or on behalf of the Director of Police, but was unsuccessful. Mr Ruhani appealed to the High Court of Australia. As a preliminary issue, the Director of Police contended that the High Court lacks jurisdiction to hear the appeal because the Nauru (High Court Appeals) Act is not a valid law of the Commonwealth. The High Court, by a 5-2 majority, disallowed the Director’s objection to competency last December and today released its written reasons. From 1965 until Nauru became independent in 1968 the High Court, by leave, heard appeals from Nauru. In 1976 the governments of Nauru and Australia agreed that the High Court would again hear certain appeals from the Supreme Court of Nauru in respect of both the Supreme Court’s original and appellate jurisdiction and the Commonwealth Parliament passed the Nauru (High Court Appeals) Act. Mr Ruhani submitted that the provisions of the Act are laws made by the Parliament in exercise of its authority under section 76(ii) of the Constitution to make laws conferring original jurisdiction on the High Court in any matter arising under any laws made by the Parliament. He also submitted that the Act is also an exercise of Parliament’s powers to make laws with respect to external affairs (section 51(xxix)) and the relations of the Commonwealth with Pacific islands (section 51(xxx)). The majority of the High Court accepted that the Commonwealth legislation was constitutionally valid.

HIGH COURT OF AUSTRALIA 12 November, 2003 PALIFLEX PTY LTD v CHIEF COMMISSIONER OF STATE REVENUE SOUTH SYDNEY CITY COUNCIL v PALIFLEX PTY LTD Land formerly owned by the Commonwealth became subject to New South Wales land tax and to council rates after its sale to Paliflex in 1998, the High Court of Australia unanimously held today. Paliflex bought the property in the Sydney harbourside suburb of Elizabeth Bay for $9 million. Paliflex challenged the charging of land tax and rates on the basis of section 52(i), which states that Federal Parliament has exclusive powers to make laws for the peace, order and good government of the Commonwealth with respect to places acquired by the Commonwealth for public purposes. Objections to two assessments for land tax were disallowed and the Supreme Court and a unanimous Court of Appeal dismissed Paliflex’s appeals. Paliflex appealed to the High Court. The Court unanimously dismissed Paliflex’s appeal. It held that the land ceased to have the character of a place acquired by the Commonwealth for public purposes on the registration of the transfer of title to Paliflex in 1998. In their application to the land on the dates of land tax imposition, the NSW Land Tax Act and Land Tax Management Act were not laws with respect to a place acquired by the Commonwealth for public purposes. In a related judgment, the High Court also unanimously held that the Local Government Act did not operate with respect to the land while it was a Commonwealth place. There was no invalidity when rates and waste management charges were imposed by the Council after Paliflex acquired the land.

HIGH COURT OF AUSTRALIA 5 April 2006 Public Information Officer NOMINAL DEFENDANT v GLG AUSTRALIA PTY LTD, SALIM FAHD TLEYJI AND READY WORKFORCE PTY LIMITED The High Court of Australia today ordered GLG Australia to reimburse the Nominal Defendant for its contribution to a payout to an injured worker. In August 1999, Mr Tleyji was injured when vibration from a forklift caused a stack of boxes to fall on him. He was employed by Ready Workforce, a labour hire company, which had hired him out to GLG. He worked on unloading containers of goods at GLG’s Sydney warehouse. Workers placed boxes from a container on to a pallet on a landing in front of the container. A forklift would go up a ramp to the landing, pick up a pallet and reverse down the ramp. As the forklift went up the ramp its vibration could be felt through the ramp, the landing and the container. Mr Tleyji was injured when boxes dislodged by the vibration fell on him as he stood inside the container. He sued both Ready Workforce and GLG for breaching their respective duties of care to him. The forklift was insured by CIC Insurance Ltd, which had gone into liquidation by the time of the District Court trial. Its liabilities were being dealt with by the Nominal Defendant. The policy insured against liability for injury caused by the fault of a vehicle’s owner or driver, but the Nominal Defendant argued that the insurer had no obligation under the policy to indemnify GLG because Mr Tleyji’s injury did not fall within the definition of injury in the NSW Motor Accidents Act. The Act defined injury as one caused by the fault of the owner or driver in the use or operation of the vehicle if, and only if, the injury resulted from the driving of the vehicle, a collision or action to avoid collision, the vehicle’s running out of control, or a vehicle defect. In the NSW District Court in April 2003, Judge Norman Delaney found both Ready Workforce and GLG liable and held that Mr Tleyji’s injuries were not caused by negligent driving of the forklift but by GLG’s system of work. Judge Delaney ordered GLG and Ready Workforce to pay damages, with the final judgment amounts being $264,740.69 against GLG and $72,541.98 against Ready Workforce. He held that the Nominal Defendant was not obliged to indemnify GLG because the injury was not one within the Motor Accidents Act for which CIC Insurance would have been liable. GLG successfully appealed to the NSW Court of Appeal which held that the injury was caused by the fault of the owner in the use or operation of the vehicle caused during the driving of the vehicle, thereby meeting the definition of injury under the Motor Accidents Act. The finding that the Act was applicable reduced Mr Tleyji’s damages by a further $51,409.77. The Court of Appeal ordered the Nominal Defendant to indemnify GLG for the award of damages payable to Mr Tleyji. The Nominal Defendant appealed to the High Court. The Court, by a 4-1 majority, allowed the appeal. It upheld Judge Delaney’s finding that GLG was at fault, not in relation to the driving of the forklift, but for failing to devise a safe system of unloading containers. It also upheld his finding that the Nominal Defendant was not obliged to indemnify GLG. The Court ordered GLG to repay the $132,370.34 that it had already received, plus interest, to the Nominal Defendant, with this order suspended for seven days to allow for further written submissions.

HIGH COURT OF AUSTRALIA 14 August 2013 CONSTRUCTION FORESTRY MINING & ENERGY UNION v MAMMOET AUSTRALIA PTY LTD [2013] HCA 36 Today the High Court unanimously allowed an appeal from a decision of the Federal Court of Australia, which held that the provision of accommodation to employees during a period of "protected industrial action" would have constituted a "payment" by their employer that was prohibited by s 470(1) of the Fair Work Act 2009 (Cth) ("the Act"). The appellant represents the industrial interests of a number of the respondent's employees, who worked on construction at the Woodside Pluto Liquefied Natural Gas Project on the Burrup Peninsula in Western Australia. The employees worked on a "fly in/fly out" basis. Under the terms of an enterprise agreement ("the Agreement"), the respondent was required to provide its employees with suitable accommodation or to pay them a living away from home allowance, while they were on location. The respondent elected to provide the former. On 21 April 2010, the respondent was notified that some of its employees intended to take "protected industrial action" for a period of 28 days as part of the process of negotiating a new enterprise agreement. The respondent informed the employees that for the duration of that period it would cease to pay for their accommodation. The appellant applied to the Federal Magistrates Court, seeking relief on the basis that the respondent's refusal to provide accommodation breached the terms of the Agreement and constituted "adverse action" contrary to s 340(1) of the Act. The respondent argued that it was obliged to cease providing accommodation pursuant to s 470(1) of the Act, which provides that if an employee engages in "protected industrial action ... the employer must not make a payment to an employee in relation to the total duration of the industrial action on that day." The respondent's contention was accepted in the Federal Magistrates Court and on appeal to the Federal Court. The High Court unanimously held that the provision of accommodation would not have constituted a "payment ... in relation to the total duration of the industrial action." It held that when s 470(1) speaks of "payment" it means a payment in money and not simply the transfer of any economic benefit by an employer to an employee. The Court held that the section was principally concerned to prohibit the payment of "strike pay". The Court also dismissed the respondent's argument that because the employees were not ready, willing and available to work, they were not entitled to accommodation under the terms of the Agreement. In the absence of an express or implied term to the contrary, the Court held that the employees' entitlement to accommodation was dependent only upon the continuation of the employer-employee relationship and the presence of the employees on location at the respondent's direction. The Court ordered that the application should be remitted to the Federal Circuit Court to be heard and determined according to law.

HIGH COURT OF AUSTRALIA 29 March 2017 ECOSSE PROPERTY HOLDINGS PTY LTD v GEE DEE NOMINEES PTY LTD [2017] HCA 12 Today the High Court, by majority, allowed an appeal from a decision of the Court of Appeal of the Supreme Court of Victoria. The High Court held that a clause in an unusual lease obliged the lessee to pay all rates, taxes, assessments and outgoings in respect of the leased land, and not merely those imposts levied on the lessee in its capacity as tenant. The original lessor and lessee recorded their agreement in a standard form printed farm lease to which they made amendments. Due to planning restrictions affecting subdivision, the owner of the land the subject of the lease could not sell it to the lessee. Clause 13 provided that: The parties acknowledge that it was the intention of the Lessor to sell and the Lessee to purchase the land and improvements hereby leased for the consideration of $70,000.00 and as a result thereof the parties have agreed to enter into this Lease for a term of ninety-nine years in respect of which the total rental thereof is the sum of $70,000.00 which sum is hereby acknowledged to have been paid in full. As amended, cl 4 imposed an obligation on the lessee in these terms: AND also will pay all rates taxes assessments and outgoings whatsoever excepting land tax which during the said term shall be payable by the Landlord or tenant in respect of the said premises (but a proportionate part to be adjusted between Landlord and Tenant if the case so requires). In 2013, the lessor commenced proceedings in the Supreme Court of Victoria seeking a declaration that the lease requires the lessee to pay all rates, taxes, assessments and outgoings in respect of the land. The primary judge made the declaration sought. The Court of Appeal, by majority, allowed an appeal by the lessee and set aside the orders of the primary judge. By grant of special leave, the lessor appealed to the High Court. The lessor argued that cl 4 obliged the lessee to pay all rates, taxes, assessments and outgoings in respect of the land. The lessee argued that cl 4 obliged it to pay only those imposts that are levied on the lessee in its capacity as tenant, leaving the lessor to pay those imposts that may be levied on it as owner of the land. It was not in issue on the appeal that cl 4 is ambiguous and that, in the circumstances, the Court could have regard to words struck out in the standard form document, and which remained legible on the face of the document, as an aid to construction. Allowing the appeal, the majority in the High Court held that the lessor's construction of cl 4 is to be preferred. The Court approached the question of the proper construction of cl 4 on the basis that the parties were to be understood as having intended to produce a result consistent with the commercial object of the agreement. The majority said that the parties' intended to recreate, as far as possible, in a lease, the conditions which would have existed following a sale. The majority held that it made no commercial sense, having regard to that objective, for the lessor to remain liable for the payment of rates, taxes and other outgoings over the term of the lease. The orders of the Court of Appeal were set aside, with the effect that the declaration of the primary judge was reinstated.

HIGH COURT OF AUSTRALIA 16 March 2022 WELLS FARGO TRUST COMPANY, NATIONAL ASSOCIATION (AS OWNER TRUSTEE) & ANOR v VB LEASECO PTY LTD (ADMINISTRATORS APPOINTED) ACN 134 268 741 & ORS [2022] HCA 8 Today, the High Court unanimously dismissed an appeal from a decision of the Full Court of the Federal Court of Australia ("the Full Court"). The primary issue in the appeal concerned the content of the obligation to "give possession" under a treaty which had the force of law in Australia: the Protocol to the Convention on International Interests in Mobile Equipment on Matters Specific to Aircraft Equipment ("the Protocol"). The first respondent in the appeal ("Leaseco"), part of the Virgin Australia group, leased aircraft engines from the first appellant ("Wells Fargo"). In April 2020, Leaseco went into administration. The lease agreements specified that on an event of default, being here the appointment of administrators, Wells Fargo could demand redelivery of the aircraft engines to a location in Florida. These contractual rights were preserved by the Convention on International Interests in Mobile Equipment ("the Convention") but their enforcement was relevantly constrained as a matter of domestic law by the operation of s 440B of the Corporations Act 2001 (Cth). Article XI(2) of the Protocol also imposed an obligation on Leaseco's administrators to "give possession" of the aircraft engines to Wells Fargo within a specified time frame. In June 2020, Wells Fargo made a demand to Leaseco's administrators for redelivery of the aircraft engines to a location in Florida. In response, Leaseco's administrators offered the beneficial owner of the aircraft engines (and, therefore, in effect Wells Fargo) an opportunity to take control of the aircraft engines where they happened to be located in Australia. This offer was rejected, and Wells Fargo commenced proceedings in the Federal Court seeking orders to compel Leaseco's administrators to redeliver the aircraft engines to the location in Florida. Wells Fargo was successful at first instance in the Federal Court. The Full Court allowed the appeal. After the Full Court's decision, the aircraft engines were returned to the United States. Underlying the question in the appeal to this Court was a question of general importance to the aviation industry as to the content of the obligation to "give possession" under Art XI(2) of the Protocol. The practical effect of the Court's answer to that underlying question determined who would pay the costs that had been incurred in returning the aircraft engines to the United States. The Court held that the content of the obligation to "give possession" under Art XI(2) of the Protocol, having particular regard to matters of context, was for Wells Fargo to be "given the opportunity to take possession" – it was for Leaseco's administrators to take whatever steps may be necessary to provide an opportunity to Wells Fargo to exercise its right under the Convention to take possession. Leaseco's administrators' invitation to Wells Fargo to take control of the aircraft engines in Australia fulfilled that obligation. Article XI(2), construed in this way, operated consistently with the underlying realities of modern structured finance, particularly to facilitate capital market financing.

HIGH COURT OF AUSTRALIA Manager, Public Information 26 August 2009 MINISTER FOR IMMIGRATION AND CITIZENSHIP v SZKTI & ANOR [2009] HCA 30 MINISTER FOR IMMIGRATION AND CITIZENSHIP v SZLFX & ANOR [2009] HCA 31 The High Court today held that the Refugee Review Tribunal (RRT) may, under section 424(1) of the Migration Act 1958 (Cth), get information, relevant to a review, by telephone without first sending a written invitation. Procedural restrictions on the specific power to invite a person to give additional information contained in sections 424(2) and (3), and 424B of the Act do not apply to the general power, contained in section 424(1) of the Act, to get any information the RRT considers relevant. The Minister’s appeals in relation to SZKTI and SZLFX were heard together by the High Court because both cases concerned the issue of whether the RRT may obtain information by telephone from a person without writing to that person to invite him or her to provide the information. SZKTI arrived in Australia on 23 April 2006 and applied for a protection visa one month later. He claimed to fear persecution in China because he is a member of a religious group which the Chinese Communist Party refers to as the ‘Shouters’, but which its members call the ‘Local Church’. He alleged that if he returned to China he would be arrested because of his membership of the Local Church. The Minister’s delegate refused to grant SZKTI a protection visa and he applied to the RRT for review of the delegate’s decision. SZKTI provided information concerning his membership of the Local Church in Australia to the RRT, including mobile phone contact details for an Elder of the Local Church. The RRT rang the Elder and obtained certain information which, in the RRT’s view, tended to indicate that SZKTI had not been an adherent of the Local Church in China and had only commenced attending the Local Church following his arrival in Australia. The RRT notified SZKTI of the information provided by the Local Church Elder and the preliminary conclusions the RRT had drawn from it, and invited SZKTI to comment on the information. Having considered the evidence, including SZKTI’s response to the invitation to comment, the RRT affirmed the delegate’s decision to refuse the protection visa. A Federal Magistrate dismissed SZKTI’s appeal, however the Full Court of the Federal Court allowed an appeal and ordered the RRT to reconsider the original application for review. The High Court granted the Minister special leave to appeal. SZKTI argued that, when obtaining the information from the Local Church Elder, the RRT was obliged by sections 424(2) and (3), and 424B of the Act to give, in one of the ways specified in section 441A of the Act, a written invitation to the Elder to provide the requested information. He argued that when the RRT obtained the information via a phone call, it failed to comply with those obligations. The High Court however accepted the Minister’s submissions that section 424(1) of the Act empowered the RRT to “get any information” that it considered relevant without limiting the ways in which the RRT might get the information. Section 424(2) was concerned with how information should be obtained in the specific circumstance when a person was “invited … to give additional information”. In the view of the Court the RRT, when it called the Local Church Elder to make enquiries about SZKTI, had not breached its obligations in relation to the way in which it may obtain information. The Court also held that the information provided by the Local Church Elder did not raise new issues requiring a further hearing under section 425 of the Act. The High Court allowed the Minister’s appeal and reinstated the RRT’s decision to affirm the decision to refuse SZKTI’s application for a protection visa. SZLFX arrived in Australia on 16 October 2002, on a student visa. He was arrested in March 2007 because his student visa had expired. SZLFX applied for a protection visa on 10 April 2007, claiming to fear persecution if he returns to China because he is a Falun Gong practitioner. In his application SZLFX described having started to practise Falun Gong with a group of practitioners every morning in Belmore Park in Sydney in January 2005. He stopped practising for a period but took it up again and continued to practise thereafter. The Minister’s delegate refused to grant SZLFX a protection visa and SZLFX applied to the RRT for review of the delegate’s decision. Before the RRT hearing an RRT employee telephoned regarding Belmore Park Falun Gong activities and filed a note recording the details of the call. SZLFX was not notified of the existence of the file note. The RRT affirmed the delegate’s decision, however a Federal Magistrate allowed SZLFX’s appeal. The Full Court of the Federal Court followed the Full Court’s decision in SZKTI v Minister for Immigration & Citizenship concerning the RRT’s obligation to obtain information in the manner set out in sections 424(2) and (3), and 424B of the Act and dismissed the Minister’s appeal. The Minister sought and obtained special leave to appeal to the High Court. For the reasons set out in relation to the case of SZKTI, the Court held that the RRT had not breached its obligations in relation to the way it obtains information. The Court also held that the RRT had not breached section 424A of the Act in respect of giving notice of adverse information. The High Court allowed the appeal and reinstated the RRT’s decision to affirm the delegate’s refusal of a protection visa for SZLFX.

HIGH COURT OF AUSTRALIA 8 February 2017 WESTERN AUSTRALIAN PLANNING COMMISSION v SOUTHREGAL PTY LTD & ANOR; WESTERN AUSTRALIAN PLANNING COMMISSION v TREVOR NEIL LEITH [2017] HCA 7 Today the High Court, by majority, allowed two appeals from the Court of Appeal of the Supreme Court of Western Australia. Part 11 of the Planning and Development Act 2005 (WA) ("the PD Act") makes provision for a landowner to be compensated in circumstances where land has been injuriously affected by a planning scheme. The High Court held, by majority, that the owner of land at the date it is reserved for a public purpose under a planning scheme is entitled to compensation under the PD Act, but a subsequent purchaser of injuriously affected land is not so entitled. Section 173 of the PD Act provides that any person whose land is injuriously affected by the making or amendment of a planning scheme is entitled to obtain compensation from the responsible authority. Section 177(1) provides that no compensation is payable until the land is first sold following the date of reservation (s 177(1)(a)); or the responsible authority refuses a development application (or grants it on unacceptable conditions) (s 177(1)(b)). Section 177(2) provides that compensation is payable only once, and is payable under s 177(1)(a) to the person who was the owner of the land at the date of reservation (s 177(2)(a)); or is payable under s 177(1)(b) to the person who was the owner of the land at the date of the development application (s 177(2)(b)). The Peel Region Scheme is a planning scheme which came into effect in March 2003 and reserved certain land, including the land in question in these appeals, for a public purpose. In October 2003, the respondents in the first appeal purchased land affected by the reservation and in 2008 applied to develop it. In June 2003, the respondent in the second appeal purchased land affected by the reservation and in 2009 applied to develop it. Both applications were refused. The respondents each claimed compensation pursuant to the provisions of Pt 11 of the PD Act. The claims were refused by the appellant, the Western Australian Planning Commission, on the basis that compensation under the PD Act was available only to a person who owned land at the date of its reservation. The respondents each brought proceedings in the Supreme Court of Western Australia, in which they claimed to be entitled to compensation. Special cases were prepared, the question arising in each special case being whether a person can be entitled to compensation under the PD Act in circumstances where the land has been sold following the date of the reservation, and where no compensation has been previously paid under the PD Act. The primary judge held that a person to whom compensation may be payable under s 177(2)(b) includes a person who is the owner at the date of the development application and was not the owner at the date of reservation. The primary judge thus answered the question in the special case in the affirmative. The Court of Appeal upheld that decision. By grants of special leave, the Western Australian Planning Commission appealed to the High Court. A majority of the High Court allowed the appeals. The majority considered that once land is sold following its reservation, even where the original owner has not claimed compensation, later refusal to grant a development application does not give rise to an entitlement to compensation. Accordingly, the respondents were not entitled to compensation. The High Court therefore held that the question of law stated for determination in each special case should be answered "no".

HIGH COURT OF AUSTRALIA 14 December 2016 AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v FLIGHT CENTRE TRAVEL GROUP LIMITED [2016] HCA 49 Today the High Court allowed an appeal from the Full Court of the Federal Court of Australia. By majority, the High Court held that the respondent ("Flight Centre") was in competition with Singapore Airlines, Malaysia Airlines and Emirates ("the airlines") when it attempted to induce the airlines to agree not to discount the price at which they offered international airline tickets directly to customers, and therefore that Flight Centre had engaged in restrictive trade practices contrary to s 45(2)(a)(ii) of the Trade Practices Act 1974 (Cth) ("the Act"). Flight Centre operated a travel agency business. Pursuant to an agreement entered into with the International Air Transport Association on behalf of its member airlines, Flight Centre sold international airline tickets on behalf of the airlines. The airlines published fares to Flight Centre and other travel agents through an electronic system. Upon issuing an international airline ticket, Flight Centre was obliged to pay to the relevant airline an amount published by the airline to travel agents less a commission. Although required to remit that amount, Flight Centre was free to sell the airline ticket at any price. Flight Centre employed as part of its marketing strategy a "price beat guarantee", advertising that it would better the price of an airline ticket quoted by any other Australian travel agent or website, including a website operated by an airline, by $1, and would give the customer a voucher for $20. At times, the airlines offered international airline tickets directly to customers at prices lower than the fares published to travel agents. Between 2005 and 2009, Flight Centre sent a series of emails to the airlines, in which it tried to get each airline to stop offering international airline tickets directly to customers at prices lower than the fares published to travel agents. It threatened to stop selling the tickets of each airline if that airline did not agree. In 2012, the appellant ("the ACCC") commenced proceedings for the recovery of pecuniary penalty in the Federal Court of Australia. The ACCC alleged that, by sending the emails, Flight Centre had attempted to induce each airline to enter into a contract, arrangement or understanding which had the purpose or likely effect of substantially lessening competition contrary to s 45(2)(a)(ii) of the Act. The primary judge made declarations of contravention and ordered that Flight Centre pay pecuniary penalty. Flight Centre appealed to the Full Court. The Full Court allowed the appeal, holding that Flight Centre was not relevantly in competition with the airlines for which it sold airline tickets as an agent. By grant of special leave, the ACCC appealed to the High Court. A majority of the High Court held that Flight Centre was in competition with the airlines when it attempted to induce each airline to agree not to discount the price at which that airline offered international airline tickets directly to customers. The competition was in a market for the supply, to customers, of contractual rights to international air carriage via the sale of airline tickets. Flight Centre and the airlines competed in that market. The Court made orders setting aside the orders of the Full Court, reinstating the trial judge's declarations of contravention with adjustments to reflect the High Court's reasons, and remitting the matter to the Federal Court for the determination of penalty.

HIGH COURT OF AUSTRALIA Public Information Officer 13 December 2007 CHANNEL SEVEN ADELAIDE PTY LTD v DR COLIN MANOCK The High Court of Australia today ruled against a defence of fair comment on a matter of public interest which Channel Seven sought to raise in a defamation action. Dr Manock is a forensic pathologist who gave evidence for the prosecution in the trial and retrial of Henry Vincent Keogh for the murder of his fiancé Anna-Jane Cheney in 1994. Mr Keogh was convicted in 1995 and sentenced to life imprisonment, with a 25-year non-parole period. He has brought an appeal to the South Australian Court of Criminal Appeal, brought two applications for special leave to appeal to the High Court (in October 1997 and November 2007), and two petitions to the SA Governor for mercy, all without success. On 5 March 2004, during Seven’s Today Tonight program, a promotion ran for an upcoming edition of the program. The promotion said in part: “The new Keogh facts. The evidence they kept to themselves. The data, dates and documents that don’t add up. The evidence changed from one Court to the next.” While these words were said, a picture of Dr Manock was displayed in the background. On 22 March 2004, Dr Manock began proceedings in the SA District Court for defamation. The case is yet to go to trial. He alleged that the promotion imputed that he had deliberately concealed evidence. Channel Seven pleaded a number of defences including fair comment on a matter of public interest. The particulars of the fair comment defence alleged he had conducted an inadequate investigation and given inaccurate evidence. Dr Manock sought to have paragraphs 3.18 to 3.39 of the fair comment defence struck out. His application to Judge Geoffrey Muecke was partly successful. Dr Manock appealed to the Supreme Court and the Full Court ordered that all of paragraphs 3.18 to 3.39 be struck out. Seven appealed to the High Court seeking to have the paragraphs reinstated. The High Court unanimously dismissed the appeal, granted special leave to Dr Manock to cross- appeal and allowed the cross-appeal. It held that statements in the promotion, taken separately or together, were presented as fact and not recognisable as comment. The alleged comment was also not based on facts which were either expressly stated, sufficiently referred to or notorious. The Court held that the fair comment defence should be struck out.

HIGH COURT OF AUSTRALIA 24 February 2021 PALMER v THE STATE OF WESTERN AUSTRALIA [2021] HCA 5 On 6 November 2020 the High Court answered questions referred to it in a special case concerning whether the Quarantine (Closing the Border) Directions (WA) ("the Directions") and/or the authorising Emergency Management Act 2005 (WA) ("the Act") were invalid (in whole or in part) for impermissibly infringing s 92 of the Constitution. Today the Court published its reasons for joining in those answers. On 15 March 2020 the Minister for Emergency Services for Western Australia declared a state of emergency in Western Australia in respect of the COVID-19 pandemic. Section 56 of the Act empowered the Minister to declare a state of emergency provided, among other things, they were satisfied of the occurrence of an emergency and that extraordinary measures were required to prevent or minimise "loss of life, prejudice to the safety, or harm to the health, of persons". Section 67 relevantly empowered an authorised officer, "[f]or the purpose of emergency management" during a state of emergency, to direct or prohibit the movement of persons into an emergency area. The Directions, issued by the State Emergency Coordinator, took effect from 5 April 2020. Pursuant to paras 4 and 5, they prohibited entry of persons into Western Australia unless they were the subject of exemption. In proceedings commenced on 25 May 2020 in the original jurisdiction of the High Court, the plaintiffs sought a declaration that the Act and/or the Directions were invalid, either wholly or in part, by reason of s 92 of the Constitution. Section 92 relevantly provides that "trade, commerce, and intercourse among the States ... shall be absolutely free". The plaintiffs claimed that the Directions imposed an effective burden on the freedom of intercourse by prohibiting cross-border movement, or alternatively that the Directions imposed an effective discriminatory burden with protectionist effect and, as a consequence, contravened the freedom of trade and commerce. On 6 November 2020, the High Court answered the principal question stated for its opinion to the effect that ss 56 and 67 of the Act in their application to an emergency constituted by the occurrence of a hazard in the nature of a plague or epidemic complied with each limb of s 92, that the exercise of the power to make paras 4 and 5 of the Directions did not raise a constitutional question, and that as no issue about the authorisation of the Directions by the statutory provisions was raised, there was no other question for determination by a court. Today the High Court unanimously, in separate judgments, found that the principal question reserved could be answered by reference to the provisions of the Act authorising the Directions. Section 92 was concerned with freedom from unjustified burdens of a discriminatory kind. The Court accepted that s 67 did impose a burden on interstate intercourse. However, by reference to the purpose of the provisions and the statutory constraints on the declaration of a state of emergency and the making of directions, the Court found that the burden was justified and the provisions, at least in their application to an emergency constituted by a hazard in the nature of a plague or epidemic, did not infringe the constitutional limitation in s 92.

HIGH COURT OF AUSTRALIA Public Information Officer 13 June 2006 XYZ v THE COMMONWEALTH OF AUSTRALIA Laws prohibiting Australians from engaging in sexual activity with children in other countries were constitutionally valid, the High Court of Australia held today. A Melbourne man, now 62, known as XYZ, was arrested by the Australian Federal Police in Melbourne in 2002 in relation to offences said to have been committed in Thailand in 2001. He was charged with engaging in sexual intercourse, attempting to engage in sexual intercourse and committing an act of indecency with a child under 16, contrary to sections 50BA and 50BC of the Crimes Act. The child was not a citizen or resident of Australia. Before his trial in the Victorian County Court was to due to be heard, XYZ instituted an action in the High Court seeking a declaration that sections 50BA and 50BC are not valid laws of the Commonwealth. At the conclusion of a hearing on 17 November 2005, the Court held that both sections are laws with respect to external affairs, within section 51(xxix) of the Constitution. The Court handed down its written reasons today for the decision by a 5-2 majority. XYZ’s trial is now due to start in July. The Court held that sections 50BA and 50BC, which relate to conduct outside Australia but are limited in operation to the conduct of Australian citizens or residents, were within the legislative competence of the Commonwealth Parliament as being laws for the peace, order and good government of Australia with respect to external affairs. XYZ had argued that Parliament’s power to make laws with respect to external affairs is limited to making laws with respect to relations between Australia and other countries. The Court held that to do this it would have to depart from its 1991 decision in Polyukhovich v The Commonwealth which held that the War Crimes Amendment Act was a valid law. (Ivan Polyukhovich was charged in 1990 with war crimes committed in Nazi-occupied Ukraine during World War II. He moved to Australia in 1949 and in 1958 became a citizen.) In Polyukhovich, the Court held that the external affairs power was not limited to Australia’s relations with other countries but includes a power to make laws with respect to places, persons, matters or things outside Australia’s geographical limits. This Court declined to depart from the decision in Polyukhovich which was now established doctrine on the scope of the external affairs power. The conduct prohibited under sections 50BA and 50BC involved places, persons, matters or things outside Australia so fell within the meaning of “external affairs”.

HIGH COURT OF AUSTRALIA 6 August 2004 MAHRAN BEHROOZ v SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS, ATTORNEY-GENERAL FOR THE COMMONWEALTH OF AUSTRALIA, AUSTRALASIAN CORRECTIONAL MANAGEMENT PTY LTD AND AUSTRALASIAN CORRECTIONAL SERVICES PTY LTD Harsh conditions of detention did not provide a defence to a charge of escaping from immigration detention, the High Court of Australia held today. Mr Behrooz, Mahmood Gholani Moggaddam and Davood Amiri were among six detainees who allegedly escaped from the Woomera Detention Centre in South Australia on 18 November 2001. Since the three men were granted special leave to appeal last August Mr Moggaddam and Mr Amiri have been deported and the criminal charges against them dropped, so the Court rescinded their leave to appeal. Mr Behrooz, an Iranian national, remained the sole appellant. In Port Augusta Magistrates Court the three men were charged with escaping from immigration detention contrary to section 197A of the Migration Act. They argued that conditions at Woomera were such that detention was punitive and not a form of detention authorised by the Migration Act, therefore escape did not contravene section 197A. The magistrate granted their application to have summonses issued seeking material dating back to December 1999 about conditions at Woomera, which has since closed. The respondents unsuccessfully sought to have the summonses set aside on the ground that they were an abuse of process because the material had no evidentiary value. The respondents appealed to the SA Supreme Court which upheld the appeal and set aside the summonses. The Full Court of the Supreme Court, by majority, refused leave to appeal, concluding that even if the documents were to show that conditions at Woomera were harsh, this was no defence to charges under section 197A. The three men then appealed to the High Court. The Court held that Mr Behrooz had no right to escape from Woomera, even if he could show that conditions of detention were harsh. The Court held that Mr Behrooz would be entitled to seek legal redress for any civil wrong or criminal offence committed against him. The information yielded by the summonses may have assisted Mr Behrooz to demonstrate that his conditions of detention gave him a case for such redress, but it would not assist his argument that he was not in immigration detention, or that he was entitled to escape. Therefore the summonses did not have a legitimate forensic purpose. The Court, by a 6-1 majority, dismissed the appeal with costs.

HIGH COURT OF AUSTRALIA Public Information Officer 1 May, 2003 TRUST COMPANY OF AUSTRALIA LIMITED v COMMISSIONER OF STATE REVENUE The High Court of Australia today allowed an appeal against the double imposition of stamp duty on the acquisition of a parcel of Brisbane riverside land for a managed investment scheme. Stamp duty of $654,475 was charged twice – on a contract for sale for $17.5 million of the land on Coronation Drive, Milton, and on the transfer to Trust Company of Australia of the land. Under Commonwealth law, such schemes require the appointment of an independent party to acquire and hold scheme property. The contract was between three parties: the vendor, the scheme investment manager Cromwell Property Securities Ltd to act as custodian of the scheme’s assets, and TCA. TCA held the registered title to the land on trust for Cromwell which in turn was trustee for the syndicate of investors whose money funded the purchase of the land. The Commissioner assessed stamp duty on the basis that Cromwell, not TCA, was the purchaser under the contract but the transfer was to TCA. The question was whether the transfer to TCA was a transfer to the purchaser within the meaning of section 54(6) of the Queensland Stamp Act. If so, only one amount of stamp duty was payable; if not, then stamp duty was payable on both the purchase and the transfer. The Queensland Court of Appeal agreed with the Commissioner, holding that TCA was not the purchaser for the purposes of the Stamp Act. The High Court, by a 4-1 majority, allowed the appeal and held that for the purposes of the Stamp Act the transfer was to the purchaser.

HIGH COURT OF AUSTRALIA 10 December 2003 BARRY THOMAS BLUNDEN v COMMONWEALTH OF AUSTRALIA The High Court of Australia today unanimously held that an action arising from the Voyager disaster was subject to a limitation regime, in this case the provisions of the ACT Limitation Act. On the night of 10 February 1964, aircraft carrier HMAS Melbourne and the destroyer HMAS Voyager collided during exercises about 30km off Jervis Bay. The Voyager sank, with 82 lives lost. Mr Blunden was serving as an able seaman on the Melbourne. In 1998 he instituted proceedings in the ACT Supreme Court – exercising federal jurisdiction – against the Commonwealth for negligence, seeking damages for injuries including post-traumatic stress disorder, severe depression and alcohol abuse. In March 2003 the part of his action concerning time limits was removed into the High Court for identification of the applicable statute of limitation, if any. The Commonwealth claimed Mr Blunden’s action was barred, extinguished or not maintainable. Mr Blunden argued that the common law, without modification by the ACT Limitation Act, applied to his case. The High Court held that the ACT Limitation Act applied. The Act provides for a six-year limitation period, but section 36 empowers the Supreme Court to order extensions. The Supreme Court initially declined to grant an extension. However, an appeal to the Full Court of the Federal Court from that refusal was allowed, although that court is yet to finalise orders flowing from Mr Blunden’s successful appeal. In the meantime the High Court has established that the ACT Limitation Act is applicable to his action.

HIGH COURT OF AUSTRALIA 7 April 2021 DQU16 & ORS v MINISTER FOR HOME AFFAIRS & ANOR [2021] HCA 10 Today, the High Court dismissed an appeal from a judgment of the Federal Court of Australia. The sole question for determination was whether, in assessing a claim for a protection visa under the complementary protection criterion in s 36(2)(aa) of the Migration Act 1958 (Cth), a decision-maker commits a jurisdictional error in failing to apply the principle stated in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 ("Appellant S395"). In Appellant S395, this Court held that, in assessing a claim for a protection visa under the refugee criterion in what became s 36(2)(a) of the Migration Act, an asylum seeker cannot be expected to hide or change behaviour that is the manifestation of a protected characteristic under the Convention relating to the Status of Refugees as modified by the Protocol relating to the Status of Refugees in order to avoid persecution. Section 36(2) of the Migration Act relevantly provides two criteria for the grant of a protection visa: that the applicant is a non-citizen in Australia "in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee" under s 36(2)(a); and, if the person does not satisfy that criterion, that the applicant meets the complementary protection criterion under s 36(2)(aa), which gives effect to some of Australia's non-refoulement obligations under the International Covenant on Civil and Political Rights and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Section 36(2)(aa) asks whether there is a real risk that a person will suffer "significant harm" as a "necessary and foreseeable consequence" of the person's return to a receiving country. The first appellant, an Iraqi national, sought a protection visa on the basis that he feared persecution (relying on s 36(2)(a)), and would suffer significant harm (relying on s 36(2)(aa)), if returned to Iraq because he sold alcohol while in Iraq, which is banned by local law in some parts of Iraq and considered "immoral" and "un-Islamic" by Sunni and Shi'ite extremists. The second and third appellants are the wife and child of the first appellant. When considering the first appellant's claim for complementary protection under s 36(2)(aa), the Immigration Assessment Authority ("the Authority") found that the first appellant did not face a real risk of significant harm if returned to Iraq because he would not continue to sell alcohol upon his return. An application for judicial review of the Authority's decision in the Federal Circuit Court of Australia was dismissed. An appeal to the Federal Court on the ground that the Authority committed jurisdictional error by failing to apply the principle in Appellant S395 when considering the complementary protection criterion under s 36(2)(aa) was also dismissed. The appellants were granted special leave to appeal. Dismissing the appeal, the High Court unanimously held that the differences in the text, context and purpose of s 36(2)(a) and s 36(2)(aa) compel the conclusion that the principle in Appellant S395 does not apply to the statutory task when considering the complementary protection criterion in s 36(2)(aa). The statutory question and the nature of the harm at which each provision is directed is different. Assessment of the risk of harm under s 36(2)(a)(a) requires an assessment of the "necessary and foreseeable consequence[s]" of a person's return to a receiving country. It does not involve finding a nexus between the harm feared by a person and that person's beliefs, attributes, characteristics or membership of a particular social group. To the extent that the factual bases for claims under s 36(2)(a) and s 36(2)(aa) overlap, a decision-maker is entitled to refer to and rely on any relevant findings made under the refugee criterion when considering the complementary protection criterion. The Authority's approach to, and determination of, the first appellant's claims under s 36(2)(a) was not in issue in the Federal Court or this Court.

HIGH COURT OF AUSTRALIA 12 October 2022 SDCV v DIRECTOR-GENERAL OF SECURITY & ANOR [2022] HCA 32 Today, the High Court dismissed an appeal from a decision of the Full Court of the Federal Court of Australia. The appeal concerned a challenge to the validity of s 46(2) of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act") on the basis that it was contrary to Ch III of the Constitution. The appellant's visa was cancelled in consequence of an adverse security assessment certified by the Director-General of Security on behalf of the Australian Security Intelligence Organisation ("the ASA certificate"). The ASA certificate was accompanied by a statement of grounds (together, "the ASA decision"). The appellant applied to the Administrative Appeals Tribunal for merits review of the ASA decision. The Minister administering the Australian Security Intelligence Organisation Act 1979 (Cth) issued certificates under s 39B(2)(a) of the AAT Act stating that disclosure of some of the contents of documents relating to the ASA decision would be contrary to the public interest because it would prejudice the security of Australia ("the certificated matter"). The Tribunal was provided with the certificated matter, but it was not disclosed to the appellant or his legal representatives. The Tribunal affirmed the ASA decision. The appellant appealed to the Federal Court of Australia pursuant to s 44 of the AAT Act, including on the ground that the Tribunal's decision was not open on the evidence before it. The appeal was heard in the original jurisdiction of the Federal Court by a Full Court. By reason of s 46(1) of the AAT Act, the Federal Court was allowed to have regard to the certificated matter in determining the appeal, but the Federal Court was required not to disclose the certificated matter to the appellant or his legal representatives. In that regard, s 46(2) provided that the Federal Court "shall … do all things necessary to ensure that the [certificated] matter is not disclosed to any person other than a member of the court as constituted for the purposes of the proceeding". In the course of the appeal, the appellant also challenged the constitutional validity of s 46(2). The Federal Court rejected the constitutional challenge and dismissed the appeal. The High Court, by majority, held that s 46(2) of the AAT Act was a valid law. There is no "minimum requirement" of procedural fairness applicable to all proceedings in a Ch III court; the ultimate question is whether, taken as a whole, the court's procedures for resolving the dispute accord both parties procedural fairness and avoid practical injustice. An appeal under s 44, to which s 46 applies, is additional to the available remedies under s 75(v) of the Constitution or s 39B of the Judiciary Act 1903 (Cth). As a practical matter, any "disadvantage" occasioned by s 46(2) would have been avoided by the choice of proceedings under these other remedies. But such a choice would have denied the appellant, by the likely operation of the rules of public interest immunity, the forensic advantage offered by s 46(1) in having the certificated matter provided to the Court. Section 46(2) operated inseparably from s 46(1) to provide the appellant with forensic advantages different from those otherwise provided by law. The appellant, having chosen to pursue the remedy that afforded those advantages, suffered no practical injustice.

HIGH COURT OF AUSTRALIA Public Information Officer 21 March 2007 THE QUEEN v MOTEKIAI TAUFAHEMA A man convicted of the shooting murder of a police officer although he fired no shots himself should have faced a retrial rather than being acquitted on appeal, the High Court of Australia held today. Mr Taufahema, 30, was the unlicensed driver of a stolen car carrying his brother John, Meli Lagi and Sione Penisini, who fired the shot that killed Senior Constable Glenn McEnallay on 27 March 2002 in Hillsdale in Sydney’s south. The car was being driven erratically at excessive speed. Senior Constable McEnallay briefly pursued the car until it struck a gutter and stopped. While he called for back-up, the men, each carrying a loaded gun, leaped from the car. Mr Penisini fired five shots into the police car windscreen, four of which hit Senior Constable McEnallay, one of which caused fatal head wounds. Mr Taufahema was arrested after hiding his gun behind flowerpots, his brother and Mr Penisini were caught after attempting to carjack a passing vehicle, and Mr Lagi was arrested a few days later. Gloves, a hockey mask and bullets were found in the car. Mr Taufahema was convicted of murder and of unlawful possession of a Smith & Wesson .357 revolver. He was sentenced to 23 years’ jail with a non-parole period of 16 years. Mr Penisini pleaded guilty to murder, unauthorised use of a firearm and attempted carjacking. John Taufahema was convicted of murder, attempted carjacking, using a firearm to evade apprehension and using a prohibited firearm. Mr Lagi was acquitted of murder but found guilty of two firearms offences. All four were on parole at the time of the shooting. At Mr Taufahema’s trial, the prosecution contended that he was party to a joint criminal enterprise of using a firearm to prevent arrest of the four men, but by the end of the trial this contention had changed to a joint enterprise to evade arrest, involving the shooting of a police officer as a foreseen possibility. In the Court of Appeal, the prosecution suggested that the joint enterprise was hindering a police officer in the execution of his duty. The Court allowed an appeal by Mr Taufahema against the murder conviction and ordered an acquittal rather than a new trial. Its reasons included flaws in the trial judge’s directions, evading arrest not actually being a crime, and the evidence not supporting that any agreement was made to hinder a police officer. The prosecution sought special leave to appeal against the order of acquittal, even though it had not argued for a new trial at the Court of Criminal Appeal. The application was referred to a Full Court and argued as on appeal. By a 4-3 majority, the High Court granted special leave to appeal, allowed the prosecution appeal, and ordered that the verdict of acquittal be set aside and a new trial held. The prosecution argued that at a retrial it would submit that the four men were engaged in a joint criminal enterprise of armed robbery and that shooting another person was foreseen as a possible incident of that joint enterprise. This issue had not been argued at the trial and arose for the first time in the High Court. The majority said this was regrettable but there was no absolute bar to either side raising fresh points. It held that the prosecution was not prevented from requesting a new trial to be conducted on a different basis, provided the difference was not substantial. The prosecution proposed to rely on the same evidence in a second trial but to characterise it in a different way. The majority held that at the first trial the criminal enterprise revealed by the evidence was not identified as armed robbery but the evidence was capable of supporting an inference that it was. It held that that interpretation should be decided by a second jury.

HIGH COURT OF AUSTRALIA 25 March 2022 [2022] HCA 9 On 9 March 2022, the High Court answered questions stated in a special case concerning whether items 7, 9, 11 and 14 of Sch 1 to the Electoral Legislation Amendment (Party Registration Integrity) Act 2021 (Cth) ("the 2021 Amendments") which amended the Commonwealth Electoral Act 1918 (Cth) were invalid, in whole or in part, on the grounds that they infringed the implied freedom of communication on government or political matters, or precluded the direct choice by the people of senators and members of the House of Representatives contrary to ss 7 and 24 of the Constitution. Today, the High Court published reasons for that decision. The Commonwealth Electoral Act permitted registered parties to have their name, abbreviation and logo printed on the ballot paper next to the name of a candidate endorsed by the party. Items 7 and 9 of the 2021 Amendments imposed a requirement that the name, abbreviation or logo of a party applying for registration must not, subject to limited exceptions, contain a word that is in the name or abbreviation of a prior registered party without that party's consent. By items 11 and 14, an existing party could not remain registered under its name if an earlier registered party objected to the existing party's name or logo and that name or logo contained a word that was in the name or abbreviation of the earlier registered party. The special case concerned the application of the 2021 Amendments to the Liberal Democratic Party. If applied to the Liberal Democratic Party, it would be precluded from using "Liberal" on the ballot paper in a federal election. The plaintiff, Mr Ruddick, is the lead Senate candidate endorsed by the Liberal Democratic Party for New South Wales. In the 2013 federal election, the Liberal Democratic Party appeared first on the New South Wales Senate ballot paper, and substantially to the left of the "Liberal & Nationals". In that election, the Liberal Democratic Party received approximately three times the vote share it received in its next best election and exceeded its expected vote share by 5.5 percentage points, or almost 241,000 votes. Mr Ruddick admitted, in his pleading, that some voters unintentionally voted for the Liberal Democratic Party instead of the Liberal Party because they were confused as to the party affiliation of Liberal Democratic Party candidates. An issue was whether it could be inferred that a significant part of the increase in that vote was due to the confusion caused by the similar party names. The Court, by majority, held that items 11 and 14 did not infringe the implied freedom or preclude the direct choice by the people of senators and members of the House of Representatives. A threshold issue was whether the 2021 Amendments burdened informed electoral choice or the ability to communicate on government or political matters. The constraint implied by the requirement of "choice" is that the people must have the ability to make an informed choice. Proof that a law burdens the implied freedom requires that the existing freedom is curtailed or restricted in some way. The purpose of the 2021 Amendments was to reduce voter confusion, and their likely effect was to improve the clarity, and hence the quality, of electoral choice and communication on government or political matters. As none of the facts stated in the special case addressed items 7 or 9, it was unnecessary for the Court to answer the stated questions in respect of those items.

HIGH COURT OF AUSTRALIA 22 February 2007 Public Information Officer COMMISSIONER OF TAXATION v HELEN MARY McNEIL Proceeds of a share buyback scheme are taxable income, the High Court of Australia held today. Ms McNeil’s case is a test case affecting more than 80,000 taxpayers. The costs of the appeal were borne by the Tax Commissioner. In 1987, Ms McNeil acquired a parcel of St George Building Society shares, which in 1992 were converted into ordinary shares in St George Bank Ltd when St George changed from a building society to a banking corporation. St George’s profitability increased and in 2001 St George announced a buy-back of ordinary shares worth $375 million. For every 20 shares held, St George would issue one “sell-back right”, which was an option to oblige St George to buy back one share for $16.50, higher than market value. Ms McNeil held 5,450 shares, meaning she had 272 sell-back rights. The difference between the share buy-back price and the market price meant the value of Ms McNeil’s sell-back rights at the listing date was $514. Shareholders could elect either to obtain legal title to their sell-back rights in order to sell their shares back to St George or to sell the sell-back rights on the Australian Stock Exchange. Ms McNeil made no election. This meant that St George Custodial, holding the sell-back rights as trustee, was obliged to sell those rights to merchant bank Credit Suisse First Boston. Shareholders could buy extra sell-back rights on the ASX, thereby increasing the number of their shares to be acquired by St George, so a market was created for the sell-back rights separately from the shares themselves. Eleven million sell-back rights were sold to CSFB on 20 February 2001 and these were then sold by CSFB on the ASX. Shareholders such as Ms McNeil who gave no directions about their entitlements were paid the proceeds of trading the sell-back rights on their behalf by CSFB and retained their shares. On 2 April 2001, Ms McNeil received her portion of the proceeds, $576.64. Of that amount, $62.64 was the increase in the realisable value of the sell-back rights and Ms McNeil concedes that this was assessable income as a capital gain. The Tax Commissioner argues that the remaining $514 is also subject to tax, either as income or as a capital gain. Ms McNeil succeeded in the Federal Court of Australia and the Full Court, by majority, dismissed an appeal by the Commissioner. The Commissioner appealed to the High Court, which allowed the appeal by a 4-1 majority. The Court held that the majority of the Full Court erred in applying principles relating to the derivation of income. It held that whether money received has the character of income depends upon its quality in the hands of the recipient, not upon the character of the expenditure by the other party. The character of the sell-back rights held for Ms McNeil is not determined by her entitlement arising from St George’s decision to undertake a share buy-back. Her sell-back rights, which were turned to account on her behalf, did not represent any portion of her existing rights as a shareholder under St George’s constitution, but rather were generated by the execution and performance of covenants in the deeds poll establishing the buy-back scheme. The Court held that on the listing date, 19 February 2001, when Ms McNeil’s sell-back rights were granted by St George to St George Custodial for her benefit, there was a derivation of income by her, represented by the market value of her rights, namely $514.

HIGH COURT OF AUSTRALIA 15 August 2018 CHETAN SHRESTHA v MINISTER FOR IMMIGRATION AND BORDER PROTECTION & ANOR; BISHAL GHIMIRE v MINISTER FOR IMMIGRATION AND BORDER PROTECTION & ANOR; SHIVA PRASAD ACHARYA v MINISTER FOR IMMIGRATION AND BORDER PROTECTION & ANOR [2018] HCA 35 Today the High Court unanimously dismissed three appeals from a judgment of the Full Court of the Federal Court of Australia which rejected the appellants' respective challenges to decisions of the Migration Review Tribunal. In each case, the Tribunal affirmed a decision of a delegate of the Minister for Immigration and Border Protection to cancel the visa holder's student visa pursuant to s 116(1)(a) of the Migration Act 1958 (Cth). Section 116(1)(a) provided that "the Minister may cancel a visa if he or she is satisfied that ... any circumstances which permitted the grant of the visa no longer exist". Each appellant was granted a student visa on the basis that they satisfied the definition of an "eligible higher degree student" under the Migration Regulations 1994 (Cth). That definition required that, if the applicant proposed to undertake a preliminary course of study before and for the purposes of a principal course of study, the applicant had to be enrolled in that preliminary course of study. In each case, the Tribunal found that the visa holder had been enrolled in a preliminary course of study at the time that person was granted a student visa, but was no longer enrolled in that course of study. The Tribunal concluded that the visa holder therefore no longer met the definition of an "eligible higher degree student" and that a "circumstance" within the meaning of s 116(1)(a) no longer existed. The Tribunal in each case decided to cancel the visa holder's visa. Each visa holder applied to the Federal Circuit Court of Australia for judicial review of the Tribunal's decision. In each case, the Federal Circuit Court dismissed the application. Each visa holder appealed to the Federal Court, where their appeals were heard together. The Full Court of the Federal Court held, by majority, that the word "circumstances" in s 116(1)(a) referred to a state of affairs rather than a legal characterisation of a state of affairs, and that in each case the Tribunal had made a legal error by focusing on whether the visa holder met the definition of an "eligible higher degree student" instead of whether the visa holder remained enrolled in that course of study. The majority held that the error was jurisdictional in nature, but that the Tribunal's decisions should not be set aside because the error could have had no impact on the decisions. By special leave, the visa holders appealed to the High Court. A plurality of the Court held that the appeals should be dismissed on the basis that, even if the Tribunal had in each case made the alleged error, that error could have had no impact on the Tribunal's decisions because at most the error caused the Tribunal to ask a superfluous question. Accordingly, the alleged error was not jurisdictional in nature and could not invalidate the Tribunal's decisions.

HIGH COURT OF AUSTRALIA 13 May 2016 DAY v AUSTRALIAN ELECTORAL OFFICER FOR THE STATE OF SOUTH AUSTRALIA & ANOR; MADDEN & ORS v AUSTRALIAN ELECTORAL OFFICER FOR THE STATE OF TASMANIA & ORS [2016] HCA 20 Today the High Court unanimously upheld amendments to the Commonwealth Electoral Act 1918 (Cth) ("the Act") concerning the new form of the Senate ballot paper and the process for marking it. The Act provides for voting either above or below the dividing line on the Senate ballot paper. Under the new process, electors who wish to vote above the dividing line are required to number at least six squares sequentially. On request, a group of candidates may be granted a square above the line next to which, if they choose, will appear the name of the political party that endorsed them and its logo. The numbering of squares above the line indicates the elector's preference for the candidates in the first numbered group or party in the order in which they appear below the dividing line, followed by the candidates of the second numbered group or party and so on up to the number of the elector's choices. The new process requires electors who vote below the dividing line to number at least twelve candidates in order of preference. Two applications were brought in the original jurisdiction of the High Court challenging the amendments. The plaintiff in the first application is a Senator for the State of South Australia. The first plaintiff in the second application is a candidate for the next Senate election in Tasmania. Each of the remaining plaintiffs in the second application is an elector for one of the States or Territories other than South Australia and Tasmania. The plaintiffs contended, first, that the new form of the ballot paper and the alternative means for marking it above and below the line prescribed more than one method of choosing senators contrary to s 9 of the Constitution. Secondly, that by allowing electors to indicate a vote for a party or group designated above the line on the ballot paper the Act departed from the requirement in s 7 of the Constitution that senators be "directly chosen by the people". Thirdly, that the interaction of those provisions with the prescription of a quota of votes upon which a candidate will be taken to have been elected infringed a principle of "directly proportional representation" and effectively disenfranchised some electors. Fourthly, that the form of the ballot paper misled electors about their voting options and thereby infringed the implied freedom of political communication. Finally, the amendments were said to impair, in a general way, the implied freedom of political communication and the system of representative government provided for in the Constitution. The High Court unanimously dismissed both applications. The High Court held that the term "method" in s 9 of the Constitution is to be construed broadly, allowing for more than one way of indicating choice within a single uniform electoral system. The High Court further held that a vote above the line was a direct vote for individual candidates consistent with s 7 of the Constitution. Finally, there was no disenfranchisement in the legal effect of the voting process and there was no infringement of the implied freedom of political communication or the system of representative government.

HIGH COURT OF AUSTRALIA 11 May 2011 BRAYSICH v THE QUEEN [2011] HCA 14 Mr Braysich, a stockbroker, was convicted by a jury of 25 counts of creating a false or misleading appearance of active trading in securities on the stock market. The prosecution case before the District Court of Western Australia on each count was that Mr Braysich caused a sale of listed shares to be made in circumstances in which, to his knowledge, there was no change in the beneficial ownership of the shares. If the prosecution established that fact, Mr Braysich was, under the relevant legislation, deemed to have created a false or misleading appearance of active trading in the shares. Mr Braysich sought to rely on a statutory defence, that the purpose or purposes for which he caused the relevant trades to take place was not, or did not include, the purpose of creating a false or misleading appearance of active trading ("the proscribed purpose"). Mr Braysich did not give direct evidence as to the presence or absence of the proscribed purpose. The evidence put forward included character evidence bearing on his honesty, evidence of his awareness of the ASX business rules requiring him to consider whether a client might have an interest in bringing about a false or misleading appearance of active trading, evidence that he acted only upon instructions from people known to him to be reputable business people, and a statement that it did not cross his mind that his co-accused, a client giving instructions on the relevant trades, had an interest in creating a false appearance of active trading. At the close of Mr Braysich's testimony, the trial judge ruled that he had not raised the statutory defence, and on that basis refused to allow him to call expert evidence to rebut an expert witness which the prosecution had called in anticipation of the statutory defence. Counsel for Mr Braysich was not permitted to address the jury on the statutory defence, and the jury was told that it had no application to Mr Braysich. Mr Braysich's appeal to the Court of Appeal of the Supreme Court of Western Australia was dismissed. The Court of Appeal observed that to establish the statutory defence, it was necessary that he prove a negative proposition about his subjective state of mind. It held that Mr Braysich's failure to lead direct evidence as to purpose was a "critical omission", and that the circumstantial evidence was not sufficient to require the trial judge to leave the defence to the jury. Today the High Court, by majority, allowed Mr Braysich's appeal. It held that taking the evidence at its highest, it would be open to a reasonable jury to conclude that, on the balance of probabilities, Mr Braysich did not have the proscribed purpose, and ought therefore to be acquitted. The Court noted that the statutory defence raises an issue of honesty, and that the proscribed purpose is a dishonest purpose. The Court of Appeal therefore erred in dismissing evidence of Mr Braysich's good character, and other evidence upon which he relied, as evidence which did not address his subjective purpose or purposes. The Court quashed his convictions and remitted the matter for retrial in the District Court.

HIGH COURT OF AUSTRALIA 8 March 2017 MINISTER FOR IMMIGRATION AND BORDER PROTECTION v KUMAR & ORS [2017] HCA 11 Today the High Court, by majority, allowed an appeal from a decision of the Federal Court of Australia. The High Court held that the Federal Court erred in holding that s 36(2) of the Acts Interpretation Act 1901 (Cth) ("the AIA") operated to allow the first respondent's application for a Subclass 572 (Vocational Education and Training Sector) visa ("572 visa") to be assessed as if it had been made before the expiry of his Subclass 485 (Temporary Graduate) visa ("485 visa"). The first respondent applied for a 572 visa. The application was received at an office of the Department of Immigration and Border Protection on Monday 13 January 2014. Clause 572.211 of Schedule 2 to the Migration Regulations 1994 (Cth) specified criteria that had to be satisfied at the time of the making of an application for a 572 visa. The first respondent would have met those criteria if he held a valid 485 visa at the time of the making of his application for a 572 visa. The first respondent's 485 visa had expired on Sunday 12 January 2014. In May 2014, a delegate of the Minister for Immigration and Border Protection refused to grant the 572 visa because, at the date the application was made, the first respondent did not meet the criteria in cl 572.211 in that, as of Monday 13 January 2014, he was not the holder of a 485 visa. The Migration Review Tribunal affirmed that decision, agreeing that the first respondent did not satisfy the criteria in The first respondent sought judicial review in the Federal Circuit Court of Australia, arguing that s 36(2) of the AIA operated so that the first respondent continued to meet the requirements of cl 572.211 on Monday 13 January 2014. Section 36(2) provides that if an Act "requires or allows a thing to be done" and "the last day" for the doing of the thing is a Saturday, Sunday or holiday, then the thing may be done on the next day that is not a Saturday, Sunday or holiday. The Federal Circuit Court, in dismissing the application, held that, because cl 572.211(2) identified a state of affairs that must exist as a criterion for the making of an application, rather than prescribed or allowed a thing to be done, s 36(2) of the AIA had no operation. On appeal, the Federal Court of Australia quashed that decision. The Federal Court held that, because the last day for the first respondent to apply for the 572 visa was, as a matter of fact, Sunday 12 January 2014, s 36(2) operated to allow the application to be made on Monday 13 January 2014. By grant of special leave, the Minister appealed to the High Court. The Court held, by majority, that s 36(2) of the AIA, properly construed, was not engaged. This was because no time limit is imposed expressly, or by implication, under the Migration Act 1958 (Cth) and the Migration Regulations on the making of an application for a 572 visa. Section 36(2) could not deem a thing to be done as if it were done on the earlier date, nor could it deem a state of affairs that existed on the earlier date to exist on the later date. As the first respondent did not meet the criteria for the grant of the 572 visa at the date of his application, the Court made orders effecting a reinstatement of the orders of the Federal Circuit Court.

HIGH COURT OF AUSTRALIA 7 October 2004 WACB v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS An asylum seeker was not notified that his application for a protection visa had been rejected until he physically received the written decision, pursuant to section 430 of the Migration Act, the High Court of Australia held today. His 28 days in which to lodge an appeal had therefore not started running until he was given this document. WACB claimed he was born in Afghanistan in about 1985 and was of Hazara ethnicity. He had no education apart from lessons in the Koran at his local mosque and spent his life tending sheep. His father, who had supported an anti-Taliban group, had disappeared. His mother arranged with a people smuggler for WACB to escape Afghanistan to avoid either the same fate or being drafted to fight for the Taliban. He arrived in Australia by boat in December 2000 and applied for a protection visa. The Immigration Department and the Refugee Review Tribunal refused the application. On 16 March 2001, the RRT faxed its 14-page decision to the Curtin detention centre in Western Australia where WACB was being held. A covering letter explained he had 28 days to seek judicial review by the Federal Court, pursuant to section 478 of the Migration Act. The Curtin manager told him through an interpreter of the refusal and the 28-day appeal period. A Dari-speaking counsellor explained that the RRT did not believe he was an Afghan. According to WACB, she held on to the document until he asked for it weeks later. He filed his application to the Federal Court on 3 May 2001 for judicial review but the Court held that it was out of time. The Full Court of the Federal Court agreed. WACB then appealed to the High Court. The Migration Act provides five methods by which applicants may be notified of decisions, depending on whether they are in immigration detention and whether they have a representative. Where an applicant is in detention, as in WACB’s case, the RRT must give the applicant and the Department Secretary a copy of the written statement within 14 days of the decision. The High Court held that notification of the decision did not occur until the counsellor gave WACB the written statement. Telling the applicant that the document had arrived or communicating the gist of the document or reading the document to the applicant is insufficient. The written statement must be physically given to the applicant. Only then does the 28-day appeal period begin to run. The Court, by a 4-1 majority, allowed the appeal, and WACB’s substantive application for review can now proceed for hearing and determination.

HIGH COURT OF AUSTRALIA 5 October 2012 HARBOUR RADIO PTY LIMITED v TRAD [2012] HCA 44 Today the High Court held, by majority, that Harbour Radio Pty Limited ("2GB") established the defence of qualified privilege at common law with respect to a number of imputations defamatory of Mr Trad. The Court granted Mr Trad special leave to cross-appeal on particular grounds but dismissed parts of the cross-appeal. The result was that each side enjoyed partial success. Approximately one week after what have become generally known as the "Cronulla Riots", Mr Trad attended a "peace rally" in Hyde Park, Sydney. Mr Trad spoke at the rally placing at least part of the blame for the Cronulla Riots on 2GB. At about 10:15am the next day 2GB made a broadcast which lasted 11 minutes purportedly responding to the comments made by Mr Trad at the peace rally. Mr Trad commenced proceedings in the Supreme Court of New South Wales alleging that the broadcast conveyed imputations which were defamatory. A jury found eight imputations were conveyed in the 2GB broadcast which were defamatory of Mr Trad. 2GB defended their broadcast relying on the substantial truth and contextual truth of the statements made, on the defence of fair comment on a matter of public interest and also argued that each imputation was published on occasion of qualified privilege at common law. Mr Trad was successful before the primary judge but the decision was reversed in part by the Court of Appeal. The issues before the High Court included whether or not the defence of qualified privilege was available and if so how the defence then applied with respect to each imputation. Mr Trad argued that the defence of qualified privilege should have been rejected because of malice. As to the substantial truth and the contextual truth defences, 2GB submitted that the relevant test was that of a "right-thinking" person as reflective of a community standard. Mr Trad sought to challenge this submission as a matter of law and disputed the factual findings upon which the primary judge found four imputations to be substantially true and related to a matter of public interest. The High Court held, by majority, that qualified privilege applied to a response to an attack where it was commensurate with the attack and when it was made bona fide for the purpose of vindicating one's reputation. The majority held a sufficient connection can be established upon any one of several considerations including the content of the attack, the credibility of the attack or the credibility of the attacker. The majority concluded that the defence of qualified privilege applied to six of the eight imputations relied on by Mr Trad. Mr Trad sought leave to file a notice of cross- appeal which contended that the defence of qualified privilege must fail because of the malice of 2GB. The majority refused to grant such leave. With respect to the defences of substantial truth and contextual truth, the majority preferred an audience composed of ordinary decent persons as opposed to "right-thinking" persons. The Court, by majority, remitted four imputations to the Court of Appeal for consideration of the substantial truth defence, and a further two imputations for consideration of the contextual truth defence. As both sides had some limited success, no order was made as to the costs of the appeal or the cross-appeal.