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HIGH COURT OF AUSTRALIA 20 April 2005 IN THE MATTER OF AN APPLICATION BY THE CHIEF COMMISSIONER OF POLICE (VIC) (four matters) No grounds existed for the permanent suppression of aspects of police operations which led to two murder convictions, the High Court of Australia held today. At the conclusion of an August 2004 hearing, the Court unanimously dismissed all four applications for the identities of undercover police and covert police methods to be permanently suppressed. The Court issued its reasons today. During two unrelated trials of Alipapa Tofilau and Lorenzo Favata for murder in the Victorian Supreme Court in September-October 2003, evidence was presented that had been gathered by undercover police. In each case the trial judge made an order prohibiting publication of the methods used and of any material that would identify the officers involved but the orders had specific expiry dates. The Victorian Court of Appeal dismissed the Commissioner’s two applications for leave to appeal and held that indefinite suppression would be both offensive to the principle of open justice and ineffective in practice. By special leave, the Commissioner appealed to the High Court against each order on the grounds that the Court of Appeal erred in failing to hold that she had an appeal as of right, and that the Court of Appeal had denied her procedural fairness because she was allegedly denied the opportunity to present argument on whether the trial judges were in error in making only limited suppression orders. In the event that the Court of Appeal had no jurisdiction to hear appeals (whether as of right or by leave) against the trial judges’ orders, the Commissioner also applied for further special leave to appeal from those orders. The original suppression orders were extended until the matters were dealt with by the High Court. Those additional applications for special leave were heard by the Court along with the appeals. At the end of the hearing, the Court ordered that both appeals and both applications for special leave be dismissed and that the Commissioner pay the costs of The Age newspaper which had been given leave to intervene. The special leave applications were dismissed because an appeal was deemed to have insufficient prospects of success to warrant the grant of special leave. The Court held that no appeal by the Commissioner lay as of right to the Court of Appeal. If an appeal lay at all to the Court of Appeal it lay only by leave. Orders made by the trial judges did not finally dispose of any rights and no exceptions set out in the Supreme Court Act were engaged. The Court held that the Commissioner had not been denied procedural fairness and that the Court of Appeal had not confined argument to the question about its jurisdiction. It was for the Commissioner to demonstrate to the Court of Appeal why leave should be granted. What arguments were advanced and what evidence was relied on was a matter for her. Filing further evidence and submissions without leave after argument had concluded, as the Commissioner did, did not demonstrate any want of procedural fairness.

HIGH COURT OF AUSTRALIA 8 December 2021 PORT OF NEWCASTLE OPERATIONS PTY LIMITED v GLENCORE COAL ASSETS AUSTRALIA PTY LTD [2021] HCA 39 Today, the High Court dismissed an appeal from a decision of the Full Court of the Federal Court of Australia ("the Full Court") on an appeal from a determination of the Australian Competition Tribunal ("the Tribunal") concerning the terms of access to a declared service under Pt IIIA of the Competition and Consumer Act 2010 (Cth) ("the Act") at the Port of Newcastle ("the Port"). The High Court held the Full Court was correct to set aside the Tribunal's determination and remit the matter to the Tribunal, but confined the scope of the Tribunal's task on remitter. Since 2014, Port of Newcastle Operations Pty Limited ("PNO") has been the lessee from the State of New South Wales of the Port and has been the "operator" of the Port under the Ports and Maritime Administration Act 1995 (NSW) ("the PMA Act"). PNO relevantly controls the use by others of the Port's loading berths and shipping channels and the PMA Act limits PNO to fixing and recovering a "navigation service charge" for the use of those facilities. Glencore Coal Assets Australia Pty Ltd ("Glencore") exports its coal through the Port. Glencore sells most of its coal to overseas buyers under "free on board" ("FOB") contracts whereby the seller delivers the goods onto a ship nominated by the buyer and typically, the buyer charters the coal transport ship contracting separately with the ship's owner or operator. In 2016, the Tribunal declared a service under Pt IIIA of the Act for the provision of the right to access and use the Port's shipping channels and loading berths ("the Service"). In 2018, the Australian Competition and Consumer Commission ("the ACCC") determined an access dispute about the Service between Glencore and PNO. Glencore applied to the Tribunal for review of the ACCC's determination. Before the Tribunal two aspects of the navigation service charge were controversial. First, the scope of the charge: did Glencore have the right to negotiate about the charge when it sold FOB and did not have a contract with the ship's owner or charterer? Second, the amount of the charge: should one of the components upon which the charge was calculated be adjusted down to account for historical works undertaken by the State in creating the shipping channels? In answering these questions, the Tribunal varied the navigation service charge determined by the ACCC. On appeal the Full Court found the Tribunal's reasoning as to both issues was affected by errors of law. The High Court held that the Tribunal had erred in treating the permissible scope of its determination as confined to circumstances where Glencore exercised some measure of control over the physical activity of moving a vessel through a shipping channel. Glencore is a person who wants "access" to the Service and is thereby a "third party" under Pt IIIA and, by operation of the declaration of the Service, Glencore had a right to negotiate with PNO about the amount of the navigation service charge, including when it sells FOB. This conclusion accords with the ordinary meaning of "access" in Pt IIIA of the Act being the right or opportunity to benefit from or use a service. The High Court otherwise held that the Full Court was wrong in finding the Tribunal erred in determining the amount of the navigation service charge. The approach the Tribunal took on this issue was open to it.

HIGH COURT OF AUSTRALIA Public Information Officer 9 February 2006 WARREN HALLORAN AND THE PERSONS NOMINATED IN THE ATTACHED SCHEDULE OF OWNERSHIP v MINISTER ADMINISTERING NATIONAL PARKS AND WILDLIFE ACT 1974 A series of steps taken to produce certain stamp duty consequences in connection with changes in the ownership of land the subject of claims for compensation were not effective to achieve their purpose, the High Court of Australia held today. In 1998, the Minister acquired parcels of land totalling about 2,639 hectares to establish the Jervis Bay National Park on the New South Wales south coast. Section 37 of the Land Acquisition (Just Terms Compensation) Act entitles land owners to compensation from the State of NSW when land is resumed. Land in NSW adjacent to the Commonwealth Territory of Jervis Bay, formed in 1915, was subdivided for the building of a town to support a proposed port in the Territory but the town never proceeded. Before the resumption, Mr Halloran and the other appellants sought to transfer lots held by several companies to 770 different owners and claimed more than $46.7 million in compensation under section 37. The transfers were done in May 1998 by way of a 23-step scheme that included the execution of 770 trust deeds, with each trust settled for $10. No stamp duty was paid on the transfers. The Minister disputed that the scheme achieved its intended purpose. In the NSW Land and Environment Court, Justice Angus Talbot found in favour of the parties to the scheme. The Minister successfully appealed to the NSW Court of Appeal, which held that the purported transactions had not in fact occurred. In an appeal to the High Court, the appellants claimed the Court of Appeal erred in concluding that they had not established that equitable interests had been created or acquired so as to attract an entitlement to compensation when the land was resumed. The High Court unanimously dismissed the appeal. It held that the steps taken were ineffective to avoid stamp duty and, because no stamp duty was paid, proof of the transactions was denied by the Stamp Duties Act.

HIGH COURT OF AUSTRALIA 15 April 2015 INDEPENDENT COMMISSION AGAINST CORRUPTION v MARGARET CUNNEEN & ORS [2015] HCA 14 Today the High Court held, by majority, that the New South Wales Independent Commission Against Corruption ("ICAC") has no power to conduct an inquiry into allegations that were made against the respondents, because the alleged conduct was not "corrupt conduct" as defined in s 8(2) of the Independent Commission Against Corruption Act 1988 (NSW) ("the ICAC Act"). The first respondent is a Deputy Senior Crown Prosecutor of the State of New South Wales. In late 2014, ICAC summoned the respondents to give evidence at a public inquiry. The purpose of the inquiry was to investigate an allegation that the first and second respondents had, with the intention to pervert the course of justice, counselled the third respondent to pretend to have chest pains in order to prevent police officers from obtaining evidence of the third respondent's blood alcohol level at the scene of a motor accident. The respondents commenced proceedings in the Supreme Court of New South Wales seeking, amongst other orders, a declaration that ICAC did not have power to conduct the inquiry. The Supreme Court dismissed the proceedings. But the Court of Appeal allowed an appeal and declared that ICAC did not have power to conduct the inquiry because the alleged conduct was not "corrupt conduct" as defined in the ICAC Act. ICAC applied for special leave to appeal to the High Court, and the application was referred to a Full Court to be heard as on an appeal. Section 8(2) of the ICAC Act relevantly provides that "corrupt conduct" is "any conduct of any person ... that adversely affects, or that could adversely affect, either directly or indirectly, the exercise of official functions by any public official" and which could involve certain kinds of misconduct listed in the sub-section, including perverting the course of justice. The alleged conduct did not concern the exercise of the first respondent's official functions as a Crown Prosecutor. ICAC contended that the alleged conduct was corrupt conduct because it could adversely affect the exercise of official functions by the investigating police officers and by a court that would deal with any charges arising from the motor vehicle accident. The High Court unanimously granted special leave but, by majority, dismissed the appeal. The majority held that the expression "adversely affect" in s 8(2) refers to conduct that adversely affects or could adversely affect the probity of the exercise of an official function by a public official. The definition of "corrupt conduct" does not extend to conduct that adversely affects or could adversely affect merely the efficacy of the exercise of an official function by a public official in the sense that the official could exercise the function in a different manner or make a different decision. The alleged conduct was not conduct that could adversely affect the probity of the exercise of an official function by a public official. The alleged conduct was therefore not corrupt conduct within the meaning of s 8(2) of the ICAC Act and ICAC has no power to conduct the inquiry.

HIGH COURT OF AUSTRALIA 11 March 2004 NETWORK TEN PTY LIMITED v TCN CHANNEL NINE PTY LIMITED, QUEENSLAND TELEVISION LIMITED AND GENERAL TELEVISION CORPORATION PTY LIMITED The High Court of Australia today held that the Ten network had not infringed copyright laws with its use of snippets from the Nine network’s programs on its weekly comedy chat show, The Panel. The Panel ran extracts from other networks’ programs, including pieces ranging from eight to 42 seconds from Nine’s shows including the news, The Today Show, Midday, Sunday, Wide World of Sports, A Current Affair, Australia’s Most Wanted, Crocodile Hunter, Days of Our Lives, the Academy Awards, and the Allan Border Medal Dinner. The 20 extracts were run on 15 episodes of The Panel broadcast in 1999 and 2000. Nine sought an injunction to restrain Ten from re- broadcasting such segments without consent and claimed a declaration of infringement of the broadcast copyright of Nine in its programs. In the Federal Court of Australia Justice Richard Conti held that Ten had not taken the whole or a substantial part of any of Nine’s broadcasts. He defined “a television broadcast” in the Copyright Act as a broadcaster’s program or discrete segments of a program. The Full Court reversed his decision, holding that every image seen on a television screen and the accompanying sound was a television broadcast in which copyright subsisted. It held that Ten had infringed Nine’s copyright under section 87(a) – subject to fair dealing defences for some segments that did not arise for consideration in the High Court. In the High Court Ten argued that the Full Court of the Federal Court had misread the term “a television broadcast” in the Act and had erred in holding that it had infringed copyright. It also argued that the Full Court’s decision expanded the ambit of copyright monopoly beyond the interests the legislation sought to protect. The High Court, by a 3-2 majority, accepted Ten’s arguments. The majority held that there was no indication that legislative protection was provided for each and every image discernible by viewers, as this would place broadcasters in a position of advantage over other copyright stakeholders, such as the owners of cinema films and sound recordings. It held that to understand “a television broadcast” as a tiny portion of the signal transmitted virtually continuously gave the term a very artificial meaning but did not decide whether a segment of a news or current affairs program constituted a broadcast. The Court allowed the appeal and remitted the case to the Full Court of the Federal Court to determine the remaining grounds of appeal to that Court.

HIGH COURT OF AUSTRALIA 3 November 2021 HAMILTON (A PSEUDONYM) v THE QUEEN [2021] HCA 33 Today, the High Court dismissed an appeal from a judgment of the Court of Criminal Appeal of the Supreme Court of New South Wales. The appellant was convicted of ten counts of aggravated indecent assault contrary to s 61M(2) of the Crimes Act 1900 (NSW), which were alleged to have been committed on separate occasions against three of his five children. The appeal to this Court concerned whether the trial of the appellant miscarried because the trial judge did not give the jury an "anti-tendency direction", namely, that the jury must not reason, from a finding that the appellant was guilty of one charged offence, to conclude that he was guilty in respect of other charged offences because he was the kind of person who engaged in that kind of misconduct. At trial, the defence had not sought to have the counts tried separately. Rather, the defence embraced the opportunity to have all ten counts tried together as part of a strategy of inviting the jury to consider the evidence of all the complainants on all counts and, from a consideration of the totality of the evidence, to conclude that the children fabricated their allegations against him at the urging of their mother, the appellant's former wife. Defence counsel had not sought an anti-tendency direction. Defence counsel did, however, secure a direction from the trial judge that the jury could not convict the appellant on any count unless they were satisfied beyond a reasonable doubt that the evidence of each child was honest and reliable in relation to each of the counts concerning that child (a "Murray direction"). The trial judge also relevantly directed the jury that they were required to give separate consideration to each count. The majority of the High Court held that, on the issues tendered by the parties to the jury in this case, an anti-tendency direction was not necessary to ensure that the jury did not reason to guilt by reliance on impermissible tendency reasoning. The issue of credibility as between the appellant on the one hand, and each of the complainants and their mother on the other hand, was overwhelmingly likely to be decisive of the appellant's guilt on any count. Confronted with that stark contest of credibility, and in circumstances where the jury had been instructed to consider each count separately and had been given a Murray direction, the jury would have no occasion to resort to tendency reasoning. The jury's satisfaction that each complainant was honest and reliable would lead directly to guilty verdicts. The circumstance that the Crown was scrupulous to put its case to the jury with the evidence of each complainant, and the arguments in favour of accepting that evidence as honest and reliable, summarised separately as to each complainant and as to each count, made the risk of the jury engaging in tendency reasoning even more remote. That view was confirmed by the failure of the defence counsel to seek an anti-tendency direction. Counsel's decision can be seen to have been a deliberate decision based on the circumstance that he did not consider that such a direction was necessary to ensure a fair trial of the appellant. The majority held that the Court of Criminal Appeal was correct in concluding that there was no miscarriage of justice at trial.

HIGH COURT OF AUSTRALIA 9 October 2019 CONNECTIVE SERVICES PTY LTD & ANOR v SLEA PTY LTD & ORS [2019] HCA 33 Today the High Court unanimously dismissed an appeal from the Court of Appeal of the Supreme Court of Victoria which concerned the scope of s 260A(1) of the Corporations Act 2001 (Cth). In 2003, the appellant companies were incorporated to conduct a mortgage aggregation business ("the Connective companies"). At all relevant times, the shareholders in the Connective companies were Slea Pty Ltd ("Slea"), Millsave Holdings Pty Ltd ("Millsave") and Mr Haron. The constitution of each Connective company contained an identical pre-emption clause. In May 2009, Mr Tsialtas, the sole director and shareholder of Slea, entered into an agreement with Minerva Financial Group Pty Ltd ("Minerva") for the sale of Mr Tsialtas' shares in Slea. A second agreement was entered into by Slea, Minerva and Mr Tsialtas in August 2010. The Connective companies instituted proceedings against Slea and Minerva, also joining Millsave and Mr Haron as defendants claiming that these agreements breached the pre-emptive rights provisions. Slea and Minerva applied to have these proceedings dismissed or stayed and sought, amongst other forms of relief, an injunction under s 1324 of the Corporations Act to restrain the Connective companies from prosecuting the proceedings on the basis that by doing so they were in contravention of the implied prohibition in s 260A(1) of the Corporations Act against financial assistance. Section s 260A(1) of the Corporations Act relevantly provides that a company may financially assist a person to acquire shares in the company only if giving the assistance does not materially prejudice the interests of the company or its shareholders, or the company's ability to pay its creditors. Section 1324(1B)(a) provides that where the ground relied on in an application for an injunction under s 1324 is an alleged contravention of s 260A(1)(a), the Court must assume that the conduct constitutes or would constitute a contravention of s 260A(1)(a) unless the company or person proves otherwise. In order to vindicate their pre-emptive rights, Millsave and Mr Haron were required to bring legal proceedings against Slea. If those proceedings had been commenced by Millsave and Mr Haron, then it would plainly have been financial assistance for the Connective companies to fund those proceedings. Instead, the proceedings were commenced at the expense of the Connective companies, in which Millsave and Mr Haron hold 66.67% of the shareholding. The primary judge held that this did not amount to financial assistance in contravention of s 260A. The Court of Appeal allowed the appeal from that decision. By grant of special leave, the Connective companies appealed to this Court. The High Court held that the commencement of the pre-emptive rights proceeding was financial assistance within the meaning of s 260A(1), and that the Connective companies did not discharge their onus of proving that there was no material prejudice to the Connective companies or their shareholders. The Connective companies eased a financial burden in the process of any acquisition of shares by Millsave and Mr Haron. The commencement of the proceedings by the Connective companies, at their expense, was financial assistance to Millsave and Mr Haron. Further, costs would be incurred by the Connective companies in conducting the proceedings that would not, even if they succeed, be entirely recoverable. Section 260A(1) of the Corporations Act was therefore contravened and an injunction must issue.

HIGH COURT OF AUSTRALIA 13 August 2014 DANIEL GLENN FITZGERALD v THE QUEEN [2014] HCA 28 On 19 June 2014, the High Court unanimously allowed an appeal against a decision of the Court of Criminal Appeal of the Supreme Court of South Australia, which had upheld the appellant's convictions for murder and aggravated causing serious harm with intent to cause serious harm contrary to ss 11 and 23(1) respectively of the Criminal Law Consolidation Act 1935 (SA). The High Court allowed the appeal, quashed the appellant's convictions and directed that a judgment and verdict of acquittal be entered. Today, the High Court delivered reasons for making those orders. On 19 June 2011, a group of men forced their way into a house in Elizabeth South in South Australia and attacked two of the occupants with weapons including a gardening fork and a pole. One victim died four days after the attack and another sustained serious brain injuries. After a trial before a judge and jury in the Supreme Court of South Australia, the appellant was convicted and was sentenced to a term of life imprisonment with a non-parole period of 20 years. At the appellant's trial, the prosecution contended that the appellant was a member of the group that had forced entry into the house armed with weapons and was a party to a common plan to cause grievous bodily harm to persons inside the house. There was no direct evidence that the appellant inflicted harm on the deceased or the other victim. The prosecution relied on DNA evidence obtained from a sample taken from a didgeridoo found at the crime scene to establish the appellant's involvement in the attack. The prosecution's circumstantial case was that the DNA in the sample derived from the appellant's blood and was transferred by him to the didgeridoo at the time of the attack. The appellant argued that alternative hypotheses consistent with his innocence were open on the evidence. One such hypothesis was that a member of the group who was present at the crime scene had transferred the appellant's DNA onto the didgeridoo, after the two men shook hands the night before the attack. The appellant appealed unsuccessfully against his convictions to the Court of Criminal Appeal, arguing that the verdicts were unreasonable and could not be supported by the evidence. By special leave, the appellant appealed to the High Court. The High Court unanimously held that the prosecution's main contention, that the appellant's DNA in the sample obtained from the didgeridoo derived from his blood, was not made out beyond reasonable doubt. Further, the recovery of the appellant's DNA from the didgeridoo did not raise any inference about the time when or circumstances in which the DNA was deposited there. The Court held that it could not be accepted that the evidence relied on by the prosecution was sufficient to establish beyond reasonable doubt that the appellant was present at, and participated in, the attack. The jury, acting reasonably, should have entertained a reasonable doubt as to the appellant's guilt. As the evidence was not capable of supporting the appellant's conviction for either offence, no question of an order for a new trial arose.

HIGH COURT OF AUSTRALIA 12 May 2021 JOHN SHI SHENG ZHANG v THE COMMISSIONER OF POLICE & ORS [2021] HCA 16 Today the High Court unanimously answered questions stated in a special case concerning the validity of s 92.3(1) and (2) of the Criminal Code (Cth), which criminalise reckless foreign interference, and the validity of three search warrants and corresponding orders issued in respect of suspected offences against s 92.3(1) and (2). The plaintiff ("Mr Zhang"), an Australian citizen born in the People's Republic of China, was employed at the New South Wales Parliament. In the context of an ongoing investigation, officers of the Australian Federal Police ("the AFP") obtained search warrants issued under s 3E of the Crimes Act 1914 (Cth) purporting to authorise search and seizure of material relevant to offences against s 92.3(1) and (2) of the Criminal Code. Corresponding orders relating to material seized were made under s 3LA of the Crimes Act following execution of those warrants. In a proceeding in the High Court's original jurisdiction, Mr Zhang sought writs of certiorari quashing each warrant and each order together with a mandatory injunction requiring the destruction or return of the seized and copied material. He also sought declarations of invalidity of s 92.3(1) and (2) of the Criminal Code on the basis that they infringed the implied freedom of political communication. Mr Zhang's challenge to the validity of each warrant was on two grounds. The first was that each warrant failed to comply with s 3E(5)(a) of the Crimes Act because it did not identify the substance of the offences with sufficient precision. The second was that each warrant failed to authorise search and seizure of "evidential material" because of the invalidity of s 92.3(1) and (2). The challenge to each order was derivative upon the challenge to the corresponding warrant. By special case in the proceeding, Mr Zhang and the Commissioner of Police agreed in stating questions of law for the opinion of the Full Court. Because Mr Zhang accepted that each warrant was severable and the totality of the search and seizure that occurred pursuant to each warrant was authorised if the warrant was valid in relation to offences against either provision, it was sufficient for the Court to concentrate on the challenge relevant to offences against s 92.3(1). Section 92.3(1) relevantly made it an offence to engage in conduct "on behalf of ... a foreign principal" in circumstances where "the person is reckless as to whether the conduct will: ... influence a political or governmental process of the Commonwealth or a State or Territory; or ... influence the exercise (whether or not in Australia) of an Australian democratic or political right or duty" and "any part of the conduct ... is covert". The High Court unanimously held that Mr Zhang's argument that each warrant failed to comply with s 3E(5)(a) of the Crimes Act because it was "unclear" as to the identity of the foreign principal was untenable. As to the constitutional challenge, the Court found that Mr Zhang, in failing to assert that the word "covert" would be incapable of being read down to ensure validity, implicitly acknowledged that parts of s 92.3(1) supporting the offences against s 92.3(1) to which each warrant related had some valid operation. That being so, his argument that those offences do not exist was rejected without need of determining the constitutional argument he presented. Accordingly, the Court held that the warrants were not wholly invalid on any of the identified grounds and otherwise that the remaining substantive questions reserved were unnecessary or inappropriate to answer.

HIGH COURT OF AUSTRALIA Public Information Officer 18 June 2008 MZXOT v MINISTER FOR IMMIGRATION AND CITIZENSHIP It was not necessary and incidental to the exercise of the High Court of Australia’s original jurisdiction that, in the absence of a law made by Parliament conferring the relevant jurisdiction on the Federal Magistrates Court, the High Court had the power to decline to exercise its jurisdiction and remit a matter to the FMC, the High Court held today. MZXOT, a Nigerian national, entered Australia in 2006 on a business (short stay) visa. He applied for a protection visa on the basis of persecution due to his religion. The Immigration Department refused the application in April 2006 and sent a letter to his last known address. MZXOT only learned of the decision in January 2007. In February 2007 he applied for judicial review of the decision in the FMC and was given a copy of the letter. The Minister filed an objection to the competency of the application and the proceeding was discontinued. MZXOT also applied to the Refugee Review Tribunal which determined it had no jurisdiction because the application was outside the 28-day time limit. He was deemed to have received the letter 10 days after the letter was posted and the 28-day period for lodging an application expired on 26 May 2006. The Migration Act was amended in 2005 to impose short time limits upon applications to the Federal Magistrates Court, the Federal Court and the High Court. In 2007, the High Court held that the time limits on applications in the Court’s original jurisdiction were invalid. MZXOT then invoked the original jurisdiction of the High Court conferred by section 75(v) of the Constitution to seek orders for certiorari to quash the department’s decision and mandamus to direct the Minister to determine his visa application. He wanted the High Court, where he was not necessarily barred by time limits, to remit these proceedings for constitutional relief to the FMC where he would be eligible for legal aid. Last November High Court Justice Kenneth Hayne stated a case for the Full Court. This asked questions concerning the validity of provisions of the Migration Act and the Judiciary Act in so far as they impaired or frustrated the exercise of what MZXOT argued was an implied power in the High Court to remit his application to another court. The Court unanimously held that remitting MZXOT’s application for constitutional relief to the FMC was not possible under the legislation. Section 44 of the Judiciary Act would empower the Court to remit the application to the FMC, but section 476B of the Migration Act states that the Court must not remit migration matters unless the FMC had jurisdiction under section 476. Section 476 provides that the FMC has the same original jurisdiction under section 75(v) as the High Court, but it has no jurisdiction in relation to “primary decisions” about protection visas that had been reviewed by the RRT if applications were not made within the specified time. The department’s decision was a “primary decision”. The Court held that the power to invest the Court’s original jurisdiction in another court was entirely a matter for Parliament and under section 77 of the Constitution Parliament can define the jurisdiction of any federal court other than the High Court. The FMC lacked authority to deal with the subject matter and accordingly the High Court lacked the authority to remit the matter to the FMC. Because the time limits in relation to the High Court’s original jurisdiction have already been held to be invalid, only the High Court may hear cases such as MZXOT’s. Four Justices held that the burden of exclusive determination of applications made outside the 2005 Act time limits did not sufficiently impair the discharge of the High Court’s constitutional functions so as to call into question the validity of the changes made by that Act.

HIGH COURT OF AUSTRALIA 16 November 2005 TRAVEL COMPENSATION FUND v ROBERT TAMBREE trading as R Tambree and Associates, PHILLIP ROSEBY trading as PJ Roseby & Co, RENEE JULIE FRY, TREVOR FRY Illegality on the part of a travel agent who had lost her licence did not prevent the Travel Compensation Fund from succeeding in its claim for damages against an accountant and an auditor who had engaged in misleading or deceptive conduct, the High Court of Australia held today. Under a national scheme for regulation of travel agents, a compensation fund reimburses people who suffer loss through an act or omission of a travel agent. Under the New South Wales Travel Agents Act, all travel agents must be licensed and a condition of a licence is that the licensee be a participant in the Travel Compensation Fund (TCF). Continued eligibility depends on financial viability so agents are required periodically to submit audited financial statements. Renee Fry’s Parramatta travel agency, The Travel Shop International, specialising in travel to Fiji and Bali, opened in early 1997. She was a participant in the TCF and obtained an agent’s licence. Her father, Trevor Fry, looked after the accounts. The firm’s financial statements for 1996-97 and 1997-98 were prepared by Mr Tambree, and audited by Mr Roseby and submitted to the TCF. The travel agency collapsed in 1999 after the TCF conducted a field audit in response to complaints from creditors. The financial statements had failed to disclose substantial liabilities and reported a net profit. By 30 June 1998, the firm owed Metro Travel, a wholesaler of airline tickets, $152,615, but a net profit of $8,337 was reported. In February 1999 Ms Fry wrote to the TCF to resign from the scheme, but she continued to trade without a licence until the Department of Fair Trading changed the locks two months later. The TCF arranged for another agency to take over all bookings and paid $143,050 to claimants, with most of the losses accrued between February and April 1999. The TCF began proceedings in the NSW Supreme Court, seeking recovery of the money it had paid out. Justice Robert Austin held that Mr Tambree failed to meet the standard of care required of an accountant, Mr Roseby’s conduct amounted to negligent misrepresentation, and there was a causal connection between their conduct and the TCF’s losses. He held that the TCF’s reliance on the financial statements was reasonable. Mr Tambree and Mr Roseby appealed. They denied their conduct caused the TCF’s losses as most of the TCF claim related to when Ms Fry was trading illegally. The Court of Appeal held that Mr Tambree and Mr Roseby owed the TCF a duty of care and breaching that duty caused the TCF’s losses. However, it held that the illegal trading broke the causal connection as Ms Fry’s conduct was not a normal occurrence so the TCF could not recover the compensation payout from Mr Tambree or Mr Roseby, apart from $13,320 for consumers who made payments for holidays while Ms Fry was still licensed. The TCF appealed to the High Court. The Court unanimously allowed the appeal. It held that the illegal trading did not sever causation. The Court held that the very purpose of the scheme is to protect the public against loss resulting from dealing with defaulting agents. Such default commonly results from financial failure which may lead to some form of illegality while businesses try to trade their way out of difficulty. The TCF required information about the financial position of agents to protect it from the risk of paying compensation to customers of agents who lost their licence. That was the kind of risk against which the TCF sought to protect itself by obtaining audited financial statements from agents.

HIGH COURT OF AUSTRALIA 8 December 2004 APPLICANT NAFF OF 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS AND REFUGEE REVIEW TRIBUNAL A Refugee Review Tribunal member failed to accord an asylum seeker procedural fairness when she did not send him further questions to clear up apparent inconsistencies in his story, the High Court of Australia held today. NAFF, a Muslim Tamil claiming to have a well-founded fear of political persecution in India, arrived in Australia in 1999. He said he was active in the Indian Union Muslim League and in a committee of the Jihad Movement and was president of an organisation in his village associated with a movement led by Muslim industrialist Dawood Ibrahim. NAFF and other Muslims were arrested in December 1998 and accused of planning bombings. He said he was arrested three times and each time was severely beaten by police or tortured. The Immigration Department rejected those contentions and refused his application for a protection visa. NAFF applied to the RRT for review of that decision. The RRT held a hearing into NAFF’s case on 5 February 2002. NAFF spoke in Tamil using an RRT interpreter. Questioning by the RRT member revealed various inconsistencies in his evidence, including the dates he was detained and the number of detentions. At the end of the hearing, the member told NAFF that given these inconsistencies she would have to write to him and he would have 21 days to answer her questions and to provide any more information. However she never wrote to NAFF. Instead the RRT later wrote to say it would hand down its decision on 19 March. The RRT member rejected his story, saying Dawood Ibrahim was regarded by Indian authorities as a gangster so he was unlikely to have travelled to India and met NAFF. She doubted that NAFF would have been involved at a high level in Dawood Ibrahim’s movement for five years, yet not attract adverse attention until 1998. She said belonging to the Jihad Movement contradicted his claim of opposing violence. He said he was involved with Jihad’s executive committee before that committee had been formed. The member accepted NAFF was in the Muslim League but found it unlikely he was persecuted for belonging to a moderate party. The Federal Court of Australia dismissed his application for orders quashing the RRT decision and requiring the RRT to redetermine his case. The Full Court, by majority, dismissed an appeal. The High Court granted NAFF special leave to appeal concerning the RRT member’s undertaking to write to him about his detentions. The Court held that with her closing remarks the member was herself acknowledging that the review’s purposes had not been completely fulfilled. Failure to complete the process was a failure to comply with the duty imposed by section 414(1) of the Migration Act to conduct the review and the duty under section 425(1) to hear from NAFF. No provisions permitted the affirming of the department’s decision and the handing down of reasons before the review process was complete. The Court held that depriving NAFF of the opportunity to answer questions was a breach of procedural fairness and unanimously allowed NAFF’s appeal. It quashed the RRT’s review decision and ordered it to redetermine the application for review.

HIGH COURT OF AUSTRALIA 3 November 2010 THE QUEEN v NGUYEN [2010] HCA 38 The HIGH COURT OF AUSTRALIA today granted the prosecution special leave to appeal against the decision of the Court of Appeal of the Supreme Court of Victoria to quash Dang Quang Nguyen's jury convictions on one count of murder and one count of attempted murder. The High Court unanimously allowed the prosecution's appeal. The High Court also unanimously allowed a cross- appeal brought by Dang Quang Nguyen. The High Court found that the trial judge misdirected the jury on the charge of murder by failing to leave open the alternative verdict of manslaughter. The High Court ordered a new trial. In the early hours of 8 November 2004, Dang Quang Nguyen went to a flat in Carlton, Victoria, with Dang Khoa Nguyen and Bill Ho, allegedly to collect a drug debt. Seven young people were in the flat. Dang Quang Nguyen waved a sword about in the lounge room of the flat, cutting two or three people. Bill Ho shot two men: one of those men survived, but the other died. Dang Quang Nguyen, Dang Khoa Nguyen and Bill Ho were each charged with one count of murder and one count of attempted murder. Dang Quang Nguyen was charged on the basis that he had been complicit in crimes committed by Bill Ho. On 13 October 2007, after a Supreme Court trial that lasted several weeks, a jury found all three men guilty on both counts. Dang Quang Nguyen appealed against his convictions. In December 2009, two years after the men had been sentenced, the Court of Appeal allowed Dang Quang Nguyen's appeal, quashed his convictions and directed that he be acquitted. In its reasons, published in February 2010, the Court of Appeal held that Dang Quang Nguyen's convictions could not be supported by the evidence, and were therefore unsafe or unsatisfactory. The High Court today granted the prosecution special leave to appeal against the Court of Appeal's decision to quash Dang Quang Nguyen's convictions, and allowed that appeal. The Court held that, on the whole of the evidence presented at trial, it was open to the jury to be satisfied beyond reasonable doubt that Dang Quang Nguyen agreed in the use of deadly force, contemplated that it might be used, or encouraged its use. The Court of Appeal was therefore wrong to find that the verdicts of the jury in respect of Dang Quang Nguyen were unsafe or unsatisfactory. The High Court also granted Dang Quang Nguyen's application for special leave to cross-appeal in relation to the sufficiency of the directions given by the trial judge to the jury, and allowed that appeal. The Court held that the trial judge's directions did not sufficiently leave manslaughter to the jury as an alternative verdict in respect of Dang Quang Nguyen's murder charge. The Court held that it was open to the jury to conclude that, even though the principal offender Bill Ho was guilty of murder, Dang Quang Nguyen was guilty of the lesser crime of manslaughter because he agreed in, contemplated or encouraged only the infliction of some harm, and not the infliction of really serious injury or death. The Court held that the misdirection constituted a wrong decision on a question of law and that it could not be said that there was no substantial miscarriage of justice in the trial of Dang Quang Nguyen. The Court held that, despite the undue protraction of Dang Quang Nguyen's case in the courts below, the orders of the Court of Appeal should be set aside, Dang Quang Nguyen's convictions quashed, and a new trial had.

HIGH COURT OF AUSTRALIA 12 August 2021 FREDERICK CHETCUTI v COMMONWEALTH OF AUSTRALIA [2021] HCA 25 Today, the High Court by majority dismissed an appeal from a final judgment given by a single justice of the High Court after a trial on agreed facts in a proceeding in the original jurisdiction of the High Court. The appellant had challenged his detention under the Migration Act 1958 (Cth) on the ground that he was not within the reach of the legislative power concerning aliens conferred by s 51(xix) of the Constitution ("the aliens power"). The appellant was born in Malta on 8 August 1945, then still a colony of the United Kingdom, and arrived in Australia on 31 July 1948. At the time of his arrival, the appellant had the status of a British subject under the Nationality Act 1920 (Cth) and he subsequently retained that status under the Australian Citizenship Act 1948 (Cth) from its commencement on 26 January 1949 through to the abolition of that status on 1 May 1987 (other than during a short period between 1964 and 1965). In 2017 by reference to the appellant's conviction in 1993 of murder, and after having served a 24 year term of imprisonment, a decision was made to cancel the appellant's visa under the Migration Act and the appellant was subsequently taken into detention. In challenging his detention, the appellant argued for an exception to the settled understanding that it is in general open to the Parliament to treat as an alien any person who was born outside Australia, whose parents were not Australians, and who has not been naturalised as an Australian. The exception contended for by the appellant was in respect of a person who was a natural born British subject and who commenced residing permanently in Australia before 26 January 1949. The appellant argued that the status of a non-alien attaches indelibly to a person in that category either by reason of the person having been born within the allegiance of an as yet undivided Imperial Crown or by reason of the Parliament having once and for all determined the person not to be an alien under the Nationality Act. At first instance, the single justice concluded that the appellant was within the reach of the aliens power and gave judgment for the respondent. The High Court, by majority, dismissed the appeal. By majority, the High Court held that it was open to the Parliament in the exercise of the aliens power, through prescription of the criteria for the conferral of Australian citizenship set out in the Australian Citizenship Act, to deny the appellant the status of an Australian citizen and thereby to treat him as an alien in the transition that occurred on the commencement of that Act on 26 January 1949. The appellant's problem was that he did not take the available course of action under the Australian Citizenship Act to become an Australian citizen after that date.

HIGH COURT OF AUSTRALIA Public Information Officer 11 September, 2003 DOVURO PTY LIMITED v ROBERT JOHN WILKINS, EILEEN JOYCE WILKINS, TREVOR IAN WILKINS, SUSAN CAROLINE WILKINS AND LOCHIEL NOMINEES PTY LIMITED AS TRUSTEE FOR THE R & E WILKINS FAMILY TRUST; CROP MARKETING NEW ZEALAND SOCIETY LIMITED; AND QBE INSURANCE (INTERNATIONAL) LIMITED The High Court of Australia today allowed an appeal by canola seed distributor Dovuro against a finding of negligence after seed it imported contained weed seeds that were declared prohibited species by Western Australian agricultural authorities. Dovuro imported New Zealand-grown canola seed that was cleared by the Australian Quarantine Inspection Service. The seed contained small amounts of seeds from three common weeds, a common occurrence with such a product. The canola was sold in bags labelled “minimum 99% purity”. The weeds were not noxious for humans or animals, and canola seed containing the weed seeds was not prohibited anywhere in Australia. But after Dovuro imported it, distributors had sold it and farmers planted it in 1996, the WA government decided in July 1996 that farmers should take steps to prevent the growth of the weeds and to eradicate any that did grow. None of the many farmers who sowed Dovuro’s seed reported growth of any of the weeds or reported harm to their crops or their land, but they suffered financial loss and expense in preventive measures which they sued to recover. Declarations for two of the three weeds were cancelled in May 1998. The Wilkinses, who planted one tonne of Dovuro’s canola seed in April and May 1996, brought action in the Federal Court against Dovuro claiming damages and alleging negligence and contravention of section 52 of the Trade Practices Act. They brought the action as a class action on behalf of WA canola growers who had bought and planted Dovuro seed in 1996. Justice Murray Wilcox held that Dovuro had been negligent but had not contravened section 52. The Full Court of the Federal Court, by majority, dismissed Dovuro’s appeal and Dovuro appealed to the High Court. The Court, by a 5-2 majority, allowed Dovuro’s appeal. The Court held that Dovuro did have a duty of care not to expose the farmers to harm, including financial loss, but the majority held that it did not breach its duty of care. Where none of the seeds were known to be dangerous or had been prohibited, Dovuro could not reasonably have foreseen the actions of the WA government.

HIGH COURT OF AUSTRALIA 30 January 2008 Public Information Officer DLSHAD HAMAD MAHMOOD v STATE OF WESTERN AUSTRALIA A judge in a murder trial failed to give a jury appropriate instruction in response to a prosecutor’s argument as to the use that could be made of certain evidence, the High Court of Australia held today. In February 2006, Mr Mahmood was convicted in the WA Supreme Court of the wilful murder of his wife, Chnar Dabag, on 4 July 2004 at their restaurant, the Kebabistan Restaurant, in Mt Lawley in Perth. Mr Mahmood testified that he was cleaning when Ms Dabag visited the toilet. When she did not return he went to find her. She was lying in a passageway bleeding. Her throat had been cut. Mr Mahmood picked his wife up but she was not breathing. He went outside to see if the person responsible was still there but saw no-one. In a distressed state, he called an ambulance. A police record of interview was videotaped that same day. A week later Mr Mahmood did a walk-through of the events for police which was also videotaped. No weapon was ever found. The case against Mr Mahmood was circumstantial, based on his belief that Ms Dabag had been unfaithful. Defence counsel sought to tender a brief extract – showing Mr Mahmood demonstrating how he knelt down and lifted his wife’s body on to his knee – from the video recording. Defence counsel expressed willingness to tender the whole video. The prosecutor did not consent. He told the jury that in the portion of the video tendered, Mr Mahmood’s reaction and demeanour were cold-blooded and clinical. Defence counsel applied to re-open the defence case to tender additional parts of the video to counter that impression. Justice Lindy Jenkins refused the application. Instead she told the jury they would be unwise to draw any adverse view of Mr Mahmood’s demeanour in the walk-through as they had seen only a small portion of the video which was made a week after the murder. The Court of Appeal dismissed an appeal against conviction. Mr Mahmood appealed to the High Court over the treatment of the video recording and the significance of blood stains on his clothes. The Court unanimously allowed the appeal on the first ground and remitted the matter to the Court of Appeal to consider whether or not there had been a substantial miscarriage of justice. It held that while a sufficiently firm direction to the jury may have overcome the prejudicial effects of the prosecutor’s remarks about Mr Mahmood’s demeanour, Justice Jenkins had merely given comment. The Court held that the jury should have been directed unequivocally that they knew so little of the context of the video segment that they should ignore the prosecutor’s remarks. A scientific report referred to the presence of Ms Dabag’s blood in Mr Mahmood’s trouser pocket but expert witnesses were not asked whether this was consistent with a knife being in the pocket. Mr Mahmood denied in cross-examination that he had put the knife in his pocket before disposing of it outside. The High Court held that Mr Mahmood had had the opportunity to explain the presence of blood in his pocket but did not do so. Justice Jenkins’s directions conveyed to the jury that they could not draw the inference suggested by the prosecution so this ground of appeal failed.

HIGH COURT OF AUSTRALIA 24 August 2016 DEAL v FATHER PIUS KODAKKATHANATH [2016] HCA 31 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 the majority of the Court of Appeal erred in finding that the primary judge was correct to remove from the jury's consideration allegations that the respondent had breached its statutory duties under the Occupational Health and Safety Regulations 2007 (Vic) ("the Regulations"). The appellant ("Ms Deal") was employed by the respondent as a primary school teacher. In 2007, Ms Deal injured her knee in the course of using a step ladder to remove papier mâché displays from a pin-board on a classroom wall. She was descending backwards down the step ladder, carrying multiple displays with both hands, as they were prone to buckle if not supported. Her view of the step ladder was obscured by the displays. She missed a step and fell to the floor, injuring her knee. Ms Deal brought proceedings in the County Court of Victoria alleging that her injury was caused by the respondent's negligence or breach of statutory duty. The Regulations required employers, so far as reasonably practicable, to identify tasks involving hazardous manual handling (reg 3.1.1); control the risk of a musculoskeletal disorder associated with a hazardous manual handling task (reg 3.1.2); and review any risk control measures (reg 3.1.3). Relevantly, hazardous manual handling tasks included the manual handling of unstable loads, or loads that are difficult to hold. The primary judge determined that Ms Deal was not engaged in hazardous manual handling. Consequently, Ms Deal's reliance on the Regulations could not be put to the jury and the trial proceeded on the question of negligence only. The jury returned a verdict for the respondent. Ms Deal appealed. The majority of the Court of Appeal found that, although Ms Deal was engaged in hazardous manual handling, there was no "close connection" between the risk of harm and the injury such that the injury could be said to be "associated with a hazardous manual handling task". Their Honours also held it was not reasonably practicable for an employer considering the generic task of removing the displays to identify the task as one involving hazardous manual handling. By grant of special leave, Ms Deal appealed to the High Court. The High Court allowed the appeal, holding that the Court of Appeal misconstrued the phrase "associated with a hazardous manual handling task" in reg 3.1.2. That regulation extends to the risk of a musculoskeletal disorder caused, in whole or part, by a task meeting the description of hazardous manual handling. On that basis, the High Court held it would have been open to the jury to conclude that the risk of Ms Deal falling from the step ladder, while carrying displays that were unstable or difficult to hold, was a risk "associated with a hazardous manual handling task". The High Court further held that there was evidence from which the jury could have inferred that it was reasonably practicable for the respondent to identify the task as involving hazardous manual handling, and to take steps to eliminate or control the kind of risk which eventuated. The High Court remitted the matter to the Court of Appeal to be dealt with according to law.

HIGH COURT OF AUSTRALIA 9 September 2020 PRIVATE R v BRIGADIER MICHAEL COWEN & ANOR [2020] HCA 31 Today the High Court unanimously dismissed an application which challenged the jurisdiction of a Defence Force magistrate to try a charge against a member of the Australian Defence Force ("ADF"). The application concerned the extent to which the defence power conferred on the Commonwealth Parliament by s 51(vi) of the Constitution supports the conferral of jurisdiction by the Defence Force Discipline Act 1982 (Cth) ("the Act") upon military service tribunals to hear and determine charges relating to conduct that also constitutes an offence under ordinary criminal law and that is committed in a time of peace when civil courts are reasonably available. On 12 June 2019, the plaintiff was charged by the Director of Military Prosecutions ("DMP") with one count of assault occasioning actual bodily harm against a woman with whom he had previously been in an intimate relationship. The alleged offending occurred after a birthday party in Fortitude Valley, Brisbane. It was alleged that, throughout the night, the plaintiff had made unwanted advances towards the complainant. At the end of the evening in a hotel room, the plaintiff, who was intoxicated and angry, allegedly threw the complainant's phone across the room, grabbed her by the throat and pushed her against the wall, shaking her and yelling at her. After the complainant broke free, the plaintiff tackled her to the ground, placed his knees on her chest and choked her until two security guards entered the room. The plaintiff was and is a member of the ADF and the complainant, at the time of the alleged assault, was a member of the ADF. Neither was on duty or in uniform at the time of the alleged offending. On 26 August 2019, the plaintiff appeared before a Defence Force magistrate on a charge under s 61(3) of the Act, which provides that a defence member is guilty of an offence if the person engages in conduct outside the Jervis Bay Territory and that conduct would be an offence if it took place in the Jervis Bay Territory. Assault occasioning actual bodily harm is an offence under s 61(3) by reason of s 24 of the Crimes Act 1900 (ACT). The plaintiff objected to the Defence Force magistrate's jurisdiction to hear the charge. The Defence Force magistrate dismissed the objection on the basis that it is sufficient to confer jurisdiction on a service tribunal that the accused was a member of the armed forces when the charged offence was allegedly committed. The plaintiff commenced proceedings in the original jurisdiction of the High Court seeking prohibition to prevent the Defence Force magistrate hearing the charge against him. The Court unanimously held that the Defence Force magistrate had jurisdiction to hear the charge. Five Justices of the Court held that s 61(3) of the Act, in obliging defence members to obey the law of the land, is, in all its applications, a valid exercise of the defence power. Two Justices of the Court held that s 61(3) is valid only in its application to offences which, because of their nature or circumstances of commission, have a proven connection with defence force discipline, and that such a threshold was satisfied in the present case.

HIGH COURT OF AUSTRALIA 13 December 2019 [2019] HCA 48 Today the High Court, by majority, dismissed an appeal from the Court of Appeal of the Supreme Court of Queensland. The appeal concerned whether the trial judge should have given the jury a direction of the type proposed in Liberato v The Queen (1985) 159 CLR 507, known as a "Liberato direction". A Liberato direction is a direction typically given in cases which turn on the conflicting evidence of a prosecution witness and a defence witness. It is to the effect that, even if the jury does not positively believe the defence witness and prefers the evidence of the prosecution witness, they should not convict unless satisfied that the prosecution has proved the defendant's guilt beyond reasonable doubt. The appellant was convicted by a jury of one count of rape. The prosecution case at trial was dependent upon acceptance of the complainant's evidence. The appellant did not give, or call, evidence. A recorded interview between the appellant and the police, in which the appellant denied the offending, was in evidence in the prosecution case. The trial judge was not asked to give, and did not give, a Liberato direction. The appellant appealed against his conviction to the Court of Appeal, arguing that a miscarriage of justice occurred by reason of the trial judge's failure to give a Liberato direction. The Court of Appeal held that, as the appellant had not given sworn evidence before the jury, there was no need for the trial judge to give a Liberato direction. By grant of special leave, the appellant appealed to the High Court. A majority of the Court observed that in some cases it may be appropriate to give a Liberato direction, notwithstanding that the accused's conflicting version of events is not before the jury on oath. The majority explained that a Liberato direction serves to clarify and reinforce directions on the onus and standard of proof in cases in which there is a risk that the jury may be left with the impression that the evidence upon which the accused relies will only give rise to a reasonable doubt if they believe it to be truthful, or that a preference for the evidence of the complainant suffices to establish guilt. As such, a Liberato direction should be given in cases in which the trial judge perceives that there is a real risk that the jury might view their role in this way, whether or not the accused's version of events is on oath or in the form of answers given in a record of police interview. In dismissing the appeal, the majority of the High Court found that a Liberato direction was not needed in the circumstances of this case. The trial judge had given repeated, correct directions as to the onus and standard of proof. Nothing in the summing-up suggested that the jury might have been left with the impression that its verdict turned on a choice between the complainant's evidence and the appellant's account in the interview. In the result, the trial did not miscarry by reason of the omission of a Liberato direction.

HIGH COURT OF AUSTRALIA 6 September 2017 AARON JOE THOMAS GRAHAM v MINISTER FOR IMMIGRATION AND BORDER PROTECTION; MEHAKA LEE TE PUIA v MINISTER FOR IMMIGRATION AND BORDER PROTECTION [2017] HCA 33 Today the High Court held by majority that s 503A of the Migration Act 1958 (Cth) ("the Act") is invalid to the extent that s 503A(2)(c) would apply to prevent the Minister for Immigration and Border Protection ("the Minister") from being required to divulge or communicate certain information to the High Court when the Court is exercising its jurisdiction under s 75(v) of the Constitution, or to the Federal Court when the Court is exercising its jurisdiction under s 476A(1)(c) and (2) of the Act, to review a purported exercise of power by the Minister under s 501, 501A, 501B or 501C of the Act, to which the information was relevant. Mr Graham is a New Zealand citizen who has resided in Australia since 1976. Mr Te Puia is also a New Zealand citizen and has resided in Australia since 2005. The Minister cancelled Mr Graham's visa and Mr Te Puia's visa under s 501(3) of the Act. Section 501(3) confers power on the Minister to cancel or refuse a visa if the Minister reasonably suspects that the person does not pass the character test set out in the Act, and if the Minister is satisfied that cancellation or refusal is in the national interest. In making each decision, the Minister considered information purportedly protected from disclosure by s 503A of the Act. Section 503A(2)(c) prevents the Minister from being required to divulge or communicate information to a court or a tribunal (among other bodies) when reviewing a purported exercise of power by the Minister under s 501, 501A, 501B or 501C of the Act, to which the information is relevant. Mr Graham brought proceedings in the High Court's original jurisdiction seeking writs of prohibition to prevent the Minister taking action on his decision to cancel his visa, and a writ of certiorari quashing the decision. Mr Te Puia sought to have the Minister's decision set aside. The parties stated a special case and questions of law arising for the opinion of the Full Court. The questions of law included whether s 503A(2) of the Act was invalid on the ground that it required a federal court to exercise judicial power in a manner inconsistent with the essential character of a court or the nature of judicial power, or on the ground that it so limited the right or ability of affected persons to seek relief under s 75(v) of the Constitution as to be inconsistent with the place of that provision in the constitutional structure. A majority of the High Court held that Parliament cannot enact a law which denies to the High Court when exercising jurisdiction under s 75(v) of the Constitution (or to another court when exercising jurisdiction conferred under s 77(i) or (iii) by reference to s 75(v)) the ability to enforce the legislated limits of an officer's power. The practical impact of s 503A(2)(c) was to prevent the High Court and the Federal Court from obtaining access to a category of information which was relevant to the purported exercise of the power of the Minister that was under review, and which was for that reason relevant to the determination of whether or not the legal limits of that power and the conditions of the lawful exercise of that power had been observed. To that extent, s 503A(2)(c) amounted to a substantial curtailment of the capacity of a court exercising jurisdiction under or derived from s 75(v) to discern and declare whether or not the legal limits of power conferred on the Minister by the Act have been observed. The High Court also held by majority that the decisions of the Minister to cancel Mr Graham's visa and Mr Te Puia's visa were invalid by reason that the Minister acted on a wrong construction of s 503A(2), as the Minister wrongly understood the provision to prevent the Minister from in any circumstances being required to divulge or communicate certain information including to a court engaged in judicial review of the impugned decisions.

HIGH COURT OF AUSTRALIA Manager, Public Information 23 September 2009 ROBYN CHRISTINE FELLOWES MILITARY REHABILITATION AND COMPENSATION COMMISSION [2009] HCA 39 Under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) a person who suffers permanent impairment as a result of a work-related injury is entitled to receive compensation, the amount of which is determined under the Guide to the Assessment of the Degree of Permanent Impairment (the Guide). Where the person suffers a subsequent work- related injury which results in a similar kind and degree of permanent impairment, she is nonetheless entitled to compensation for the subsequent injury, the High Court held today. Robyn Fellowes enlisted in the Australian Army in November 1986. In 1986 she suffered a work-related injury to her left knee, and in 1987 she suffered a work-related injury to her right knee. Ms Fellowes claimed compensation for her injuries under the SRC Act, which at that time was the legislation under which the Military Rehabilitation and Compensation Commission (the Commission) assessed claims for compensation. The Commission determined that Ms Fellowes suffered a degree of permanent impairment assessed at 10% as a result of the injury to her left knee and paid her compensation in respect of the permanent impairment. However, although Ms Fellowes suffered a degree of permanent impairment assessed at 10% resulting from the right knee injury, the Commission determined that under the SRC Act and the Guide it was not liable to pay compensation for that permanent impairment because it had already compensated Ms Fellowes for a degree of permanent impairment assessed at 10%. A Commission review officer affirmed the determination on review, as did the Administrative Appeals Tribunal. Ms Fellowes appealed to the Federal Court of Australia against the Tribunal’s decision and a Full Court of the Federal Court dismissed her appeal. The High Court granted her special leave to appeal. Under section 24 of the SRC Act, where a work-related injury results in a permanent impairment, the Commission was liable to pay compensation in respect of the injury. No compensation was payable if the degree of permanent impairment resulting from the injury was less than 10%. Section 24(5) provides that the degree of permanent impairment resulting from the injury should be determined under the provisions of the Guide approved under section 28 of the SRC Act. The Guide contains Tables which set out criteria against which the degree of permanent impairment is assessed. Under Table 9.5 - “Limb Function – Lower Limb” - the criterion “[c]an rise to standing position and walk BUT has difficulty with grades and steps” described the impairment resulting from each of Ms Fellowes’ injuries. According to the Guide, this criterion was equivalent to a 10% degree of impairment. The issue for the Court to determine was whether separate compensation was payable in respect of each injury; or whether, having already been assessed as having a 10% permanent impairment under Table 9.5 as a result of the left knee injury, Ms Fellowes should be assessed as having a 0% impairment resulting from the right knee injury because the degree of her impairment under Table 9.5 had not increased beyond the level at which she had previously been assessed under that Table. A majority of the Court considered that permanent impairment resulting from an injury is to be identified by the effect of the injury on the functional capacity of a normal healthy person, and not by reference to the pre-existing capacities of the particular applicant for compensation. In the case of Ms Fellowes two separate injuries led to two separate losses of use of, or damage to, two separate parts of her body. The majority concluded that, as the impairment resulting from the injury to Ms Fellowes’ right knee satisfied the criterion “[c]an rise to standing position and walk BUT has difficulty with grades and steps” then, irrespective of the impairment assessment made in relation to her left knee injury, the degree of permanent impairment resulting from the right knee injury should be assessed as 10%. The High Court set aside the decisions of the Federal Court and the Administrative Appeals Tribunal and directed the Commission to determine the lump sum compensation amount payable to Ms Fellowes in respect of the right knee injury on the basis of her having a 10% degree of permanent impairment.

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 12 August 2015 FILIPPOU v THE QUEEN [2015] HCA 29 Today the High Court unanimously dismissed an appeal from the Court of Criminal Appeal of the Supreme Court of New South Wales ("the CCA") against the convictions and sentence imposed upon the appellant, Christopher Angelo Filippou, for two counts of murder. In 2010, the appellant shot and killed two brothers, Sam and Luke Willis. During a dispute, the brothers confronted the appellant outside his house. The appellant shot them at close range. The next day, the appellant admitted to police that he had killed the brothers. But he claimed that Luke Willis had pulled out the gun, and that he had taken the gun from Luke before shooting the brothers. The appellant was charged with two counts of murder. To each count, he pleaded not guilty of murder but guilty of manslaughter by reason of provocation. He was tried before a judge of the Supreme Court of New South Wales, sitting without a jury. The sole issue at trial was provocation. The prosecution alleged that the appellant, not one of the brothers, brought the gun. The judge found that the allegation was not proved beyond reasonable doubt. Nevertheless, the judge found that there was no reasonable possibility that the appellant had lost self-control before he shot the brothers, and therefore the partial defence of provocation failed. The appellant was found guilty and convicted of both counts of murder. In sentencing, the trial judge was neither satisfied beyond reasonable doubt that the appellant brought the gun nor satisfied on the balance of probabilities that one of the brothers brought the gun. The origin of the gun was, therefore, not proved to the standard required of either an aggravating factor or a mitigating factor in sentencing. Accordingly, the trial judge sentenced the appellant on the basis that the origin of the gun was unknown. On appeal, the CCA held that the trial judge erred in fact as to the sequence of events before the killings, and possibly erred in law in directing herself as to the requirements of the partial defence of provocation, but that there was no miscarriage of justice because the appellant had been proved guilty beyond reasonable doubt of murder. The CCA found no error in the appellant's sentence. By grant of special leave, the appellant appealed to the High Court against his convictions and sentence. The Court unanimously dismissed the appeal. In relation to the appeal against conviction, the plurality held that the alleged errors of the trial judge were either not made out or of no consequence, and therefore there was no miscarriage of justice that would warrant allowing the appeal and remitting the matter to the CCA. On the appeal against sentence, the Court held that the judge was not bound to adopt the view of the facts most favourable to the appellant, and was therefore correct in sentencing on the basis that the origin of the gun was unknown.

HIGH COURT OF AUSTRALIA 8 March 2012 EQUUSCORP PTY LTD (FORMERLY EQUUS FINANCIAL SERVICES LTD) v EQUUSCORP PTY LTD (FORMERLY EQUUS FINANCIAL SERVICES LTD) v EQUUSCORP PTY LTD (FORMERLY EQUUS FINANCIAL SERVICES LTD) v CUNNINGHAM'S WAREHOUSE SALES PTY LTD [2012] HCA 7 Today the High Court, by majority, dismissed five appeals from the Court of Appeal of the Supreme Court of Victoria, which had held that Ian Alexander Haxton, Robert Samuel Bassat and Cunningham's Warehouse Sales Pty Ltd ("the respondents") were not liable to repay funds advanced under loans held by Equuscorp Pty Ltd ("Equuscorp"). Equuscorp was not a party to the original loan agreements with the respondents, but was assigned the loan agreements as an arms length financier. The respondents had invested in tax driven blueberry farming schemes promoted by Anthony and Francis Johnson ("the schemes"), by which members of the public could claim tax deductions for amounts invested in farming enterprises. The farming activities were conducted in north-east New South Wales. Under the schemes, each of the respondents executed a management agreement, by which Johnson Farm Management Pty Ltd, a company controlled by the Johnsons, agreed to perform the respondents' farm maintenance and harvesting obligations for an annual fee. Fees could be prepaid in whole or in part, and it was expected that these fees were tax deductible. Each of the respondents also entered into a loan agreement with Rural Finance Pty Ltd ("Rural"), a company also controlled by the Johnsons, to finance their prepayment of the management fees. Contrary to s 170(1) of the Companies Code ("the Code") of each respondent's home State, no valid prospectus in respect of the schemes had been registered when the respondents were offered what was a "prescribed interest" within the meaning of that section. None of the respondents received any proceeds from the sales of farm produce after 1 July 1991 and no repayments were made in reduction of the loans. In 1995, Equuscorp, which had previously granted loan facilities to the group of companies controlled by the Johnsons, sold the farm land as mortgagee in possession. Rural sold the loan agreements between itself and the respondents to Equuscorp in May 1997, under an asset sale agreement. Pursuant to this agreement, Rural executed a deed assigning to Equuscorp its interests under the loan agreements and the amounts of the debts owing ("the Deed"). The Deed was expressed to include an "absolute assignment" of the legal right to debts and interests under the loan agreements and "all legal and other remedies". Between November 1997 and March 1998, Equuscorp commenced proceedings against investors, including the respondents, under the loan agreements. Due to the breach of s 170(1) of the Code, the primary judge held that the loan agreements were unenforceable, on account of the illegality of the investment schemes. As an alternative to claiming under the loan agreements, Equuscorp sought restitution of the funds advanced as money had and received. In relation to that claim, the primary judge held that the respondents were liable to make restitution to Rural, and that the Deed assigned to Equuscorp the benefit of the respondents' liability to make restitution. On appeal, the Court of Appeal held that the right to claim for restitution had not been available to Rural and was therefore unavailable to Equuscorp, and, in any event, the Deed did not effectively assign such relief. Equuscorp appealed, by special leave, to the HIGH COURT OF AUSTRALIA. The scope of the appeals was limited to the availability of restitution; it was not disputed that the loan agreements were unenforceable for illegality. The High Court, by majority, dismissed the appeals, with the result that the respondents are not liable to repay Equuscorp the funds advanced under the loan agreements. Equuscorp characterised its claim as arising from a "failure of consideration", contending that Rural had advanced funds under the loans on the basis that the agreements were enforceable. As that state of affairs did not exist, it was contended that the respondents would be unjustly enriched if they did not make restitution. By majority, the High Court rejected this submission, holding that an entitlement to restitution from the respondents would stultify the policy and objects of the Code, being the protection of investors in the position of the respondents. There was therefore no cause of action available for Rural to assign to Equuscorp. The High Court held further that, if Rural had a right to restitution, such a right was capable of being assigned to Equuscorp. The decision of the Court was evenly divided on the question of whether the Deed assigned Equuscorp any right to restitution.

HIGH COURT OF AUSTRALIA 6 May 2015 [2015] HCA 16 Today the High Court unanimously allowed an appeal from the Court of Criminal Appeal of the Supreme Court of South Australia ("the CCA"), quashed the appellant's conviction for murder and ordered a new trial. The appellant, an Aboriginal man, was tried before a jury for the murder of Andrew Roger Negre. The appellant, his de facto wife and a friend met the deceased, who was not previously known to them, at a hotel. When they left the hotel, all four went to the appellant's home to have some further drinks. It was open to the jury to find that the deceased made sexual advances towards the appellant at the appellant's home and these culminated in an offer, made in the presence of the appellant's de facto wife and others, to pay the appellant for sex. It was also open to find that the appellant killed the deceased in a state of loss of self-control following the making of that offer. In South Australia, the partial defence of provocation under the common law operates to reduce murder to manslaughter. The trial judge directed the jury that it was incumbent on the prosecution to prove that the appellant was not acting under provocation at the time of the killing. The appellant was convicted of murder. On appeal, a majority of the CCA held that the directions given to the jury on provocation were flawed in respects that amounted to a miscarriage of justice. However, the CCA concluded that the evidence taken at its highest could not satisfy the objective limb of the partial defence of provocation – that is, that no reasonable jury could fail to find that an ordinary person provoked to the degree that the appellant was provoked could not have so far lost his self-control as to form the intention to kill or inflict grievous bodily harm and to act as the appellant did. The CCA majority held that provocation should therefore not have been left for the jury's consideration and it followed that the erroneous directions had not occasioned a substantial miscarriage of justice. The CCA dismissed the appeal under the proviso to s 353(1) of the Criminal Law Consolidation Act 1935 By grant of special leave, the appellant appealed to the High Court. The Court unanimously allowed the appeal, holding that the trial judge was right to leave provocation to the jury. The High Court said there is a need for caution before a court determines as a matter of law that contemporary attitudes to sexual relations are such that conduct is incapable of constituting provocation. The gravity of the provocation must be assessed from the standpoint of the accused. The High Court said it was open to a reasonable jury to consider that an offer of money for sex made by a Caucasian man to an Aboriginal man in the latter's home and in the presence of his wife and family may have had a pungency that an unwelcome sexual advance made by one man toward another in other circumstances would not have. The assessment of the gravity of the provocation and its capacity to satisfy the objective limb of the test were issues for the jury. Accordingly, it was wrong for the CCA to dismiss the appeal under the proviso. The appropriate consequential order was for a new trial.

HIGH COURT OF AUSTRALIA 8 August 2018 [2018] HCA 32 Today the High Court unanimously allowed an appeal from the Court of Criminal Appeal of the Supreme Court of New South Wales. Following a trial before a jury, the appellant was convicted of the murder of a 15-year-old school girl, TB. The appellant was 16 years old at the time of the offence. The offence took place shortly after TB alighted from her school bus as she was making her way home. TB suffered 48 stab wounds, including to the head, face, chest and back. In interviews, the appellant either denied involvement in the murder or stated he had no memory of it. No defence of mental illness or partial "defence" of substantial impairment by abnormality of mind was run at trial. At the sentencing hearing, psychiatric evidence was led by both the prosecution and the appellant. An expert called by the appellant opined that, at the time of the offence, the appellant had been in an early phase of schizophrenia. The evidence led by the prosecution considered that there might be another, non-psychotic but irrational, reason for the offence. The primary judge favoured the evidence adduced by the appellant, finding that it was probable that the appellant was acting under the influence of some psychosis at the time of the offence. The primary judge found that the evidence did not prove beyond reasonable doubt that the killing was intentional or premeditated, finding instead that there was "much irrationality about what occurred". The appellant was sentenced to a term of 22 years' imprisonment, with a non-parole period of 17 years. The appellant appealed to the Court of Criminal Appeal on the basis that the primary judge had erred in giving primary significance to the standard non-parole period in the determination of the appropriate sentence to be imposed. That error was conceded and the Court of Criminal Appeal's power to re-sentence was enlivened. At the hearing before the Court of Criminal Appeal the parties tendered further evidence on "the usual basis" – a reference to the practice of receiving new evidence on a sentence appeal to enable the Court to assess the offender's progress towards rehabilitation in the period since the original sentencing. The prosecution did not seek to disturb the primary judge's factual findings on the appeal. However, in re-sentencing the appellant, the Court of Criminal Appeal (by majority) proceeded on the footing that it was not bound by those findings and might take into account the new evidence in assessing the appellant's criminality for the offence. While noting that the primary judge's findings had been open, the Court of Criminal Appeal rejected them and found that the appellant intended to kill TB. In the circumstances, the Court of Criminal Appeal concluded that no lesser sentence was warranted and the appeal was dismissed. By grant of special leave, the appellant appealed to the High Court. The High Court found that the Court of Criminal Appeal had denied the appellant procedural fairness in failing to put him on notice that it was minded to depart from the primary judge's factual findings and give him an opportunity to deal with the matter by evidence or submissions. In the absence of such an indication, the High Court said it was reasonable for the appellant to act on the assumption that the prosecution's concession, that it did not seek to disturb the primary judge's findings, would be accepted and acted upon. The failure to accord procedural fairness to the appellant was held to amount to a miscarriage of justice. The appeal was allowed and the matter remitted to the Court of Criminal Appeal for consideration of the re-sentencing of the appellant.

HIGH COURT OF AUSTRALIA 14 February 2014 MILNE v THE QUEEN [2014] HCA 4 Today the High Court unanimously allowed an appeal from a decision of the Court of Criminal Appeal of the Supreme Court of New South Wales which had upheld the conviction of Michael John Milne for money laundering under s 400.3(1) of the Criminal Code (Cth) ("the Code"). Mr Milne was the sole director and shareholder of Barat Advisory Pty Ltd. Barat Advisory owned shares in a company called Admerex Ltd. In February 2005, Mr Milne arranged for certain Admerex shares to be swapped for shares in another company, Temenos Group AG. He intended at that time that Barat Advisory would not declare, in its income tax return, the capital gain derived from that transaction. An intentional failure by Barat Advisory to declare the capital gain would be an offence against the Code. In November 2006, Mr Milne caused an income tax return to be lodged for Barat Advisory that did not declare the capital gain derived from the swap of Admerex shares. Mr Milne was convicted of money laundering under s 400.3(1) of the Code after a trial by jury in the Supreme Court of New South Wales. Section 400.3(1) makes it a crime for a person to deal with property worth $1,000,000 or more intending that it "will become an instrument of crime". An "instrument of crime" is defined in s 400.1(1) as property that is "used in the commission of, or used to facilitate the commission of, an offence". Mr Milne's appeal against that conviction to the Court of Criminal Appeal was dismissed. By special leave, he appealed to the High Court. He argued that the Court of Criminal Appeal erred in its interpretation of the definition of "instrument of crime" and wrongly held that the Admerex shares were capable of falling within that definition in the circumstances of the case. The question in this appeal was whether the Admerex shares upon which the capital gain was made could be said to have been intended to become an "instrument of crime". Allowing the appeal, the High Court held that s 400.3(1) requires that there be a dealing with the property and an intended future use of the property. On the Crown case, there could not be an intended future use of the Admerex shares after they were swapped for the Temenos shares. The Court quashed Mr Milne's conviction for money laundering and entered a verdict of acquittal on that charge.

HIGH COURT OF AUSTRALIA 15 February 2023 STANLEY v DIRECTOR OF PUBLIC PROSECUTIONS (NSW) & ANOR [2023] HCA 3 Today, the High Court published its reasons for allowing, by majority, an appeal from a decision of the New South Wales Court of Appeal. The appeal concerned whether the sentencing judge failed to consider community safety, assessed by reference to the relative merits of full-time detention as against intensive correction in the community in addressing an offender's risk of reoffending, before declining to make an intensive correction order ("ICO") under the Crimes (Sentencing Procedure) Act 1999 (NSW) ("Sentencing Procedure Act"), and whether the failure to do so is a jurisdictional error of law. The appellant pleaded guilty in the Local Court of New South Wales to various contraventions of the Firearms Act 1996 (NSW), and was sentenced to an aggregate term of imprisonment of three years with a non-parole period of two years. She appealed to the District Court of New South Wales against the severity of the sentence. On appeal, conducted by way of a rehearing, the appellant asked the District Court to make an ICO that would have directed that her sentence of imprisonment be served "by way of intensive correction in the community". Section 66(1) of the Sentencing Procedure Act provides that community safety must be the "paramount consideration" when deciding whether to make an ICO. Section 66(2) provides that, when considering community safety, the court is to assess whether making the ICO or serving the sentence by way of full-time detention is more likely to address the offender's risk of reoffending. The District Court confirmed the original sentence and dismissed the appeal. The Court's reasons failed to make any express reference to, or findings in relation to, the assessment in s 66(2). Having no further appeal rights, the appellant sought relief in the nature of certiorari from the Court of Appeal quashing the decision of the District Court. The Court of Appeal concluded, by majority, that non-compliance with s 66(2) was not a jurisdictional error of law and that its jurisdiction consequently did not extend to the correction of such an error. The High Court, by majority, allowed the appeal. The Court held that the jurisdiction to make an ICO calls for a subsequent and separate decision to be made after a sentence of imprisonment is imposed. Properly construed, s 66 imposes a limit upon the jurisdiction of the sentencing court to decide whether a sentence of imprisonment is to be served by way of full-time detention or intensive correction in the community. The failure to consider the paramount consideration in s 66(1) by reference to the assessment of community safety in s 66(2) demonstrates a misconception of the function being performed when deciding whether to make an ICO by failing to ask the right question within jurisdiction. Such an error of law does not invalidate a sentence of imprisonment, but means that the court's discretion (and duty) in deciding whether or not to make an ICO has not been exercised. Here, the District Court failed to undertake the assessment required by s 66(2) and thereby fell into jurisdictional error.

HIGH COURT OF AUSTRALIA 13 December 2017 DWN042 v THE REPUBLIC OF NAURU [2017] HCA 56 Today the High Court unanimously allowed an appeal from the Supreme Court of Nauru. The High Court held that the Supreme Court had failed to accord the appellant procedural fairness by failing to consider a notice of motion. In August 2013, the appellant, a Sunni Muslim of Pashtun ethnicity and a Pakistani national, arrived by boat at Christmas Island. In September 2013, he was transferred to the Republic of Nauru ("the Republic") under a Memorandum of Understanding reached between Australia and the Republic. In November 2013, the appellant attended a transfer interview. As part of that interview, a form was completed which was not signed by the appellant. In December 2013, the appellant applied to the Secretary of the Department of Justice and Border Control of Nauru ("the Secretary") for refugee status. As part of the application, the appellant claimed that he was at risk of arbitrary deprivation of life at the hands of the Taliban. His application was refused by the Secretary. The appellant applied unsuccessfully to the Refugee Status Review Tribunal ("the Tribunal") for review of the Secretary's determination. The Tribunal concluded that there was a less than reasonable possibility that the appellant would be targeted by the Taliban in the reasonably foreseeable future. The appellant appealed from the decision of the Tribunal to the Supreme Court. At the appeal hearing, counsel for the respondent sought to be heard on a motion to strike out grounds 1 and 2 of the amended notice of appeal. The primary judge struck out those grounds, with reasons to be given at a later date. Arguments proceeded on grounds 3 and 4, and judgment was reserved on those grounds. On 20 May 2016, the primary judge gave his reasons for striking out grounds 1 and 2, which both parties accepted were "plainly wrong". The appellant sought leave to appeal to the High Court from the interlocutory decision of the primary judge striking out grounds 1 and 2. In light of assurances given to the High Court by the respondent, and due to the interlocutory nature of the application, the High Court refused leave to appeal. On 6 February 2017, the day before final judgment on grounds 3 and 4 was to be delivered, the appellant filed a notice of motion to reinstate grounds 1 and 2, and to reopen the appeal to further amend those grounds. On 7 February 2017, the primary judge delivered final judgment without hearing that notice of motion. The appellant appealed to the High Court as of right on five grounds. The first ground alleged error by the primary judge in failing to consider the appellant's notice of motion. The second and third grounds concerned the allegedly unconstitutional nature of the appellant's detention at the time of the Tribunal hearing. The fourth ground alleged error by the primary judge in failing to conclude that the Tribunal erred in failing to consider part of the appellant's claim to complementary protection. The fifth ground alleged that the primary judge erred in failing to conclude that the Tribunal erred by relying on the appellant's unsigned and unsworn transfer interview form. The High Court dismissed four of the five grounds of appeal but held that, in all of the circumstances of the case, the Supreme Court's failure to consider the appellant's notice of motion involved a denial of procedural fairness. The High Court therefore allowed the appeal, set aside the order made by the Supreme Court and ordered that the matter be remitted to the Supreme Court of Nauru for reconsideration according to law.

HIGH COURT OF AUSTRALIA 5 March 2014 ELECTRICITY GENERATION CORPORATION T/AS VERVE ENERGY v WOODSIDE ENERGY LTD & ORS; WOODSIDE ENERGY LTD & ORS v ELECTRICITY GENERATION CORPORATION T/AS VERVE ENERGY [2014] HCA 7 Today the High Court, by majority, held that Woodside Energy Ltd and other gas suppliers in Western Australia ("the Sellers") did not breach their obligation to use "reasonable endeavours" to make a certain quantity of gas available to Electricity Generation Corporation t/as Verve Energy ("Verve") under a long term gas supply agreement. The High Court dismissed Verve's appeal against a decision of the Court of Appeal of the Supreme Court of Western Australia and allowed an appeal from that decision brought by the Sellers. Verve, a statutory corporation, is the major generator and supplier of electricity to a large area in the southwest of Western Australia, including Perth. Verve purchased natural gas from the Sellers for use in its power stations. Under cl 3.3(a) of the agreement, the Sellers were obliged to use "reasonable endeavours" to make available to Verve a supplemental maximum daily quantity of gas ("SMDQ"), in addition to the gas they were ordinarily required to supply to Verve each day. In determining whether they were able to supply SMDQ, cl 3.3(b) provided that the Sellers could take into account "all relevant commercial, economic and operational matters". On 3 June 2008, an explosion occurred at a gas plant on Varanus Island in Western Australia. That explosion caused the cessation of gas production at the plant and effected a temporary reduction in the supply of natural gas to the Western Australian market, which led to demand exceeding supply. After the explosion, the Sellers informed Verve that they would not supply SMDQ to Verve under the agreement between June and September 2008. However, the Sellers offered to supply Verve with an equivalent quantity of gas for the period at a price higher than that applicable to SMDQ, which they were offering to other customers in the Western Australian market. Under protest, Verve agreed to purchase gas from the Sellers at the higher price, which was the prevailing market price. Verve commenced proceedings against the Sellers in the Supreme Court of Western Australia, arguing that the Sellers had breached their obligation to use "reasonable endeavours" to supply SMDQ to Verve. The primary judge found that the Sellers had not breached their obligation to use "reasonable endeavours" to supply SMDQ to Verve between June and September 2008. His Honour found that cl 3.3(b) of the agreement allowed the Sellers to take into account commercial matters, including the sale of gas to other customers and the profitability of such sales, in determining whether they were able to supply SMDQ to Verve. Verve successfully appealed to the Court of Appeal, which held, amongst other things, that the Sellers had breached their obligation under cl 3.3. By special leave, both Verve and the Sellers appealed to the High Court. The High Court, by majority, held that contractual obligations to use "reasonable endeavours" are not absolute, but are conditioned by what is reasonable in the circumstances. What was a "reasonable" standard of endeavours obliged by cl 3.3(a) of the agreement was conditioned by the Sellers' responsibilities to Verve in respect of SMDQ, as well as their express entitlement to take into account "relevant commercial, economic and operational matters". The Court held that the Sellers were not obliged to forego or sacrifice their business interests when using reasonable endeavours to make SMDQ available for delivery to Verve. Accordingly, cl 3.3 did not oblige the Sellers to supply SMDQ to Verve when the explosion at Varanus Island occasioned business conditions which led to a conflict between the Sellers' business interests and Verve's interest in obtaining SMDQ at the price stipulated in the agreement. As the Sellers' construction of the agreement was accepted by the Court, it was unnecessary to consider other issues raised by the appeals.

HIGH COURT OF AUSTRALIA 6 September 2006 Public Information Officer MICHAEL McKINNON v SECRETARY, DEPARTMENT OF TREASURY No error of law was made by the Administrative Appeals Tribunal in rejecting Mr McKinnon’s claim that he is entitled to receive certain Treasury documents under the Freedom of Information Act, the High Court of Australia held today. In 2002, Mr McKinnon, The Australian newspaper’s FOI editor, requested material relating to “bracket creep” in the income tax system and to the First Home Owners Scheme, including possible fraudulent use of the scheme and the take-up of the $7,000 first home owners’ grant by wealthy individuals. Treasury provided lists of the documents falling within the scope of those requests. Of 40 related to bracket creep all but one were claimed to be exempt. Most of the 47 concerning the First Home Owners Scheme were claimed to be wholly or partly exempt. Under section 36(1) of the FOI Act, internal working documents are exempt from FOI access if disclosure would be contrary to the public interest. Such documents may include opinion, advice or recommendation in the course of, or for the purposes of, the deliberative processes involved in the functions of an agency or minister or of the Commonwealth Government. Section 36(3) provides that a minister, if satisfied that disclosure of such a document would be contrary to the public interest, may sign a certificate specifying the ground of public interest. An internal review upheld the decisions refusing access so Mr McKinnon applied to the AAT for review of those decisions. Section 58(5) of the FOI Act provides that the AAT shall determine whether there exist reasonable grounds for the claim that the disclosure of the document would be contrary to the public interest. Shortly before the case came before the AAT, Treasurer Peter Costello signed two certificates, one covering 36 of the 40 bracket creep documents and the other covering parts of or all of 13 of the 47 First Home Owners Scheme documents. Each certificate set out seven grounds which fell into two broad categories, one that disclosure would compromise confidentiality and candour and the other that disclosure would be likely to mislead due to the provisional nature of the documents and their use of jargon, acronyms and unexplained methodology. The AAT determined that two documents did not fall within section 36(1) but determined that reasonable grounds existed for the claim that disclosure of the other documents covered by the Treasurer’s certificates would be contrary to the public interest. The Full Court of the Federal Court dismissed an appeal. Mr McKinnon then appealed to the High Court. The Court, by a 3-2 majority, dismissed the appeal. Mr McKinnon had argued that section 58(5) of the FOI Act required the AAT to consider and balance competing facets of the public interest. However, the Court held that section 58(5) does not permit the AAT to substitute its opinion about whether the disclosure of particular documents would be contrary to the public interest or to assess for itself what the public interest required. There is no scope for a full merits review. Instead, section 58(5) requires the AAT to answer the question whether there are reasonable grounds for the claim that the disclosure would be contrary to the public interest. The Court held that the AAT had not committed error in this task and it had properly considered the documents in issue and all the grounds said to support the claim.

HIGH COURT OF AUSTRALIA 3 February 2021 WESTPAC SECURITIES ADMINISTRATION LTD & ANOR V AUSTRALIAN SECURITIES AND INVESTMENTS COMISSION [2021] HCA 3 Today the High Court dismissed an appeal from a judgment of the Full Court of the Federal Court of Australia. The appeal concerned whether financial product advice given by the appellants (collectively, "Westpac") to members of superannuation funds of which they are trustees was "personal advice" within the meaning of s 766B(3)(b) of the Corporations Act 2001 (Cth) (the "Act"). During a campaign, Westpac had contacted members via phone and advised each to accept an offer to roll over their external superannuation accounts into their account with Westpac. Section 766B(3)(b) of the Act defines "personal advice" so as to include "financial product advice" given or directed to a person in circumstances where a reasonable person might expect the provider to have considered one or more of the person's objectives, financial situation and needs. Section 766B(4) defines "general advice" as financial product advice that is not personal advice. The Act imposes more onerous obligations on an adviser who provides personal advice, obligations Westpac accepted they had breached if they had provided personal advice. The Court held that Westpac had provided personal advice to the members during their campaign. "Considered" in s 766B(3) refers not to an active process of evaluation and reflection but rather means "took account of", consistent with its counterpoint in s 949A(2)(a) and the protective purpose of s 766B(3). The words "one or more of the person's objectives, financial situation and needs" in s 766B(3) contemplate that consideration be of at least one aspect of the client's objectives, financial situation or needs. A reasonable person in the position of each of the members called by Westpac might expect Westpac to have in fact taken into account at least one aspect of the member's objectives, financial situation or needs. This expectation was engendered by the fact that Westpac had elicited from each member, with whom Westpac had a pre-existing relationship, an indication of his or her personal objectives of saving on fees and improving the manageability of superannuation; proceeded to confirm the validity of the expressed objectives and appropriateness of the roll-over service to achieve them; and then segued into an offer to effect the roll-over. That the members' objectives were "generic" or generally applicable did not mean they ceased being personal objectives capable of giving rise to that expectation.

HIGH COURT OF AUSTRALIA 20 October 2010 POLLOCK v THE QUEEN [2010] HCA 35 Today, the High Court quashed Andrew Murray Pollock's conviction for murder and ordered that a new trial be held. In November 2008, Mr Pollock was convicted in the Supreme Court of Queensland of murdering his father. The key issue at trial was whether the prosecution excluded the defence of provocation in s 304 of the Queensland Criminal Code. This was a retrial. His conviction for murder at an earlier trial was overturned on appeal to the Queensland Court of Appeal. The deceased died at his home early in the morning of 31 July 2004. Mr Pollock had spent the previous night before at the deceased's home drinking with a group of people. The group included the deceased, an ex-girlfriend of Mr Pollock and a female friend of hers, Mr Pollock's brother, and a woman that Mr Pollock had met earlier in the evening. During the evening and the early hours of the following morning several events occurred. Mr Pollock told his brother he had been sexually abused as a small boy by the deceased. Mr Pollock and the deceased, who had consumed a significant amount of alcohol, exchanged hostile words. One of the women present engaged in sexual intimacies with the deceased. This last event was said to have upset Mr Pollock significantly and he demanded that the woman and Mr Pollock's ex-girlfriend leave the premises. When the deceased was told of this demand, he became very angry and threatened to kill Mr Pollock. There was physical evidence pointing to a fight having taken place in Mr Pollock's bedroom. There were at least two versions of how the fight may have progressed. The first was that it started in the bedroom, proceeded outside and, during its course, Mr Pollock picked up a rock and struck the deceased. On another version of events, based on admissions made by Mr Pollock to his ex- girlfriend, the deceased had entered his bedroom, they wrestled, Mr Pollock injured the deceased's face and the deceased had gone into the bathroom. Mr Pollock banged on the bathroom door, the deceased jumped out of the bathroom window, Mr Pollock and the deceased fought outside, Mr Pollock picked up a rock and the deceased challenged him in strong language to use the rock. The judgment of the Court of Appeal setting aside Mr Pollock's earlier conviction had set out a seven-part test, any element of which it was said would, if proved beyond reasonable doubt, exclude the defence of provocation. The fifth element was that "the loss of self-control was not sudden". The seventh element was that, when Mr Pollock had killed, "there had been time for his loss of self-control to abate". At Mr Pollock's retrial in 2008, the jury was directed in terms of this test. The prosecution submitted that the interval while the deceased was in the bathroom made out the fifth and seventh elements of the seven-part test. The High Court held that the directions given to the jury wrongly invited them to exclude provocation as a partial defence available to Mr Pollock if they found that there had been any interval between the provocative conduct and the act causing death. The Court ordered that the appeal be allowed, that Mr Pollock's conviction be quashed and that a new trial be held.

HIGH COURT OF AUSTRALIA 13 June 2018 AMACA PTY LIMITED v LATZ; LATZ v AMACA PTY LIMITED [2018] HCA 22 Today, the High Court published its reasons for orders it made on 11 May 2018, allowing in part, an appeal brought by Amaca Pty Limited ("Amaca") from a decision of the Full Court of the Supreme Court of South Australia, and dismissing an appeal brought by Mr Anthony Latz from that decision. Mr Latz is 71 years old and has been diagnosed with terminal malignant mesothelioma. At the time of his diagnosis, in October 2016, Mr Latz had retired from the public service and was receiving both a superannuation pension under Pt 5 of the Superannuation Act 1988 (SA) ("the superannuation pension") and an age pension under Pt 2.2 of the Social Security Act 1991 (Cth) ("the age pension"). Mr Latz commenced proceedings against Amaca, the manufacturer of asbestos fencing he had cut and installed some 40 years earlier. Mr Latz contended that, but for the negligence of Amaca, he would have continued to receive both the superannuation pension and the age pension for the remainder of his pre-illness life expectancy – around a further 16 years. The Full Court held, by majority, that the value of the superannuation pension and the age pension were compensable losses but reduced the damages award to take into account a reversionary pension payable to Mr Latz's partner on his death under s 38(1)(a) of the Superannuation Act. By grants of special leave, Amaca appealed the holdings of compensable loss in relation to both the superannuation pension and the age pension, and Mr Latz appealed the deduction of the reversionary pension. A majority of the High Court held that the Full Court was correct to include in Mr Latz's damages award an allowance for the superannuation pension that he would have received for the remainder of his pre-illness life expectancy, less the reversionary pension. The majority held that superannuation benefits are intrinsically linked to earning capacity and, like wages, are the product of exploitation of a claimant's "capital asset". On his retirement, Mr Latz had, as a result of the exploitation of his capital asset, a superannuation pension under the Superannuation Act. The value of the capital asset constituted by Mr Latz's rights under the Superannuation Act was diminished by the injury caused by Amaca. Had Mr Latz's illness presented itself before he retired, he would have been awarded the value of those rights. The majority held that there was no principled basis for denying Mr Latz that compensation just because the illness which occasioned his loss became apparent only after he commenced retirement. In valuing Mr Latz's loss, credit should be given for the reversionary pension as it is an offsetting or collateral benefit. The Court unanimously dismissed Mr Latz's appeal regarding the reversionary pension. The Court unanimously held that the loss of expectation of receiving the age pension is not compensable loss. The majority considered that, unlike the superannuation pension, it is not a capital asset. It is not a result of, or intrinsically connected to, a person's capacity to earn. It is also not a form of property. An allowance for the loss of expectation of receiving the age pension should not have been included in Mr Latz's damages award.

HIGH COURT OF AUSTRALIA 10 December 2020 GERNER & ANOR v THE STATE OF VICTORIA [2020] HCA 48 Today the High Court published unanimous reasons for allowing the defendant's demurrer to the plaintiffs' claim in this proceeding on 6 November 2020. The demurrer concerned whether the Constitution implicitly guarantees a freedom of movement. The Public Health and Wellbeing Act 2008 (Vic) ("the Act") empowers authorised officers to exercise emergency powers when a state of emergency has been declared by the Minister for Health. A state of emergency was declared to exist in the whole of Victoria by reason of the serious risk to public health posed by the COVID-19 pandemic. Directions restricting the movement of people within Victoria ("the Lockdown Directions") had been made from time to time in exercise of emergency powers conferred by s 200(1)(b) and (d) of the Act, and remained in force on 6 November 2020. The plaintiffs sought declarations that s 200(1)(b) and (d) of the Act and the Lockdown Directions made thereunder were invalid as an infringement of a guarantee of freedom of movement said to be implicit in the Constitution. The defendant demurred to the plaintiffs' claim on the ground that the Constitution does not imply the freedom of movement for which the plaintiffs contended. The High Court held that no freestanding guarantee of freedom to move wherever one wishes for whatever reason is implicit in the Constitution on any of the three grounds contended for by the plaintiffs. First, the Court held that such a limitation on the legislative and executive power of the Commonwealth and States could not be implied from the fact of federation. Rather, the legal nature and effect of the federation established by the Constitution can be known only from the terms and structure of the Constitution itself; those terms and that structure provide no support for the limitation on power for which the plaintiffs contended. Secondly, the Court held that while legislated limits on movement that burden political communication may infringe the implied freedom of political communication, a limit on movement which does not have a political character will not. Thirdly, the Court held that s 92 of the Constitution does not imply a freedom of movement of the kind for which the plaintiffs contended. Such an implication would render otiose the delineation clearly drawn by the text of s 92 between protected interstate intercourse and intrastate intercourse which it does not purport to protect. It would also attribute to the text a meaning rejected by the framers of the Constitution.

HIGH COURT OF AUSTRALIA Public Information Officer 16 July, 2003 STEPHEN ALFRED CATTANACH AND THE STATE OF QUEENSLAND v KERRY ANNE The High Court of Australia today dismissed an appeal by Dr Cattanach and the State of Queensland against an award of damages requiring them to pay the costs of bringing up an unplanned child conceived as a consequence of medical negligence. After having two daughters in 1985 and 1988, Mrs Melchior wanted no more children and consulted Dr Cattanach, an obstetrician and gynaecologist, about sterilisation. She told him that at age 15 her right ovary and fallopian tube had been removed during an appendectomy. When Dr Cattanach performed a tubal ligation on Mrs Melchior in 1992, what he saw was consistent with that history, so he attached a filshie clip to the left fallopian tube. In fact, only the right ovary had been removed, due to a blood clot, but the right fallopian tube had not. Mrs Cattanach became pregnant at age 44 and gave birth to a son on May 29, 1997. Experts for both sides were present at the birth and after a caesarean delivery her uterus was lifted out, showing the right fallopian tube still intact, although twisted out of its normal position. Mrs Cattanach appeared to have conceived by transmigration of an egg from the left ovary to the right fallopian tube. The Melchiors sued both Dr Cattanach and the State of Queensland, as the sterilisation was performed in the Redland Hospital, a public hospital in Brisbane. In a trial in the Queensland Supreme Court, Justice Catherine Holmes held Dr Cattanach was negligent in uncritically accepting Mrs Melchior’s assertion that her right fallopian tube had been removed, failing to inform Mrs Melchior of the risk of pregnancy if the tube was still there, and failing to inform her of a procedure that would reveal the existence of a functioning fallopian tube. But Justice Holmes did hold that Dr Cattanach’s failure to observe the right fallopian tube during the sterilisation procedure was not negligent. She awarded Mrs Melchior $103,672.39 in damages related to the pregnancy and birth, Mr Melchior $3,000 for loss of consortium as a result of his wife’s pregnancy, and Mr and Mrs Melchior jointly $105,249.33 for the costs of raising and maintaining a child to age 18. Dr Cattanach and the State appealed against the awarding of the third category of damages, but the Court of Appeal, by majority, dismissed their appeal. They then appealed to the High Court in relation to the third head of damages. By a 4-3 majority, the High Court also dismissed their appeal. The majority held that the costs of the child’s upbringing were directly connected to Dr Cattanach’s negligence and constituted legally recognisable damage to Mr and Mrs Melchior. The majority also held that the arrival of a healthy child could not be treated as a benefit to be offset against the financial burden suffered as a consequence of negligence.

HIGH COURT OF AUSTRALIA 15 June 2022 HORE v THE QUEEN; WICHEN v THE QUEEN [2022] HCA 22 Today, the High Court unanimously allowed appeals from two judgments of the Court of Appeal of the Supreme Court of South Australia. The appeals concerned the operation of s 59 of the Sentencing Act 2017 (SA) ("the Act"), under which the Supreme Court of South Australia may authorise the release "on licence" (that is, with conditions attached) of a person subject to an order for indefinite detention. Under Div 5 of Pt 3 of the Act, s 57 provides that the Supreme Court may order that a person who has been convicted of certain sexual offences be detained in custody until further order. Section 58 empowers the Court to discharge the detention order and allow a person to be released from custody, and s 59 empowers the Court to release such a person on licence. Section 59(1a)(a) provides that a person cannot be released on licence unless the person satisfies the Court that the person is, relevantly, "both capable of controlling and willing to control [his or her] sexual instincts". "Willing" is not defined in the Act, but s 57(1) provides that, in that section, a person to whom s 57 applies "will be regarded as unwilling to control [his or her] sexual instincts if there is a significant risk that the person would, given an opportunity to commit a relevant offence, fail to exercise appropriate control of the person's sexual instincts". Before determining an application under s 59, the Court must obtain medical reports as to whether the person is "unwilling" to control his or her sexual instincts, and must consider, relevantly, a report from the Parole Board as to the probable circumstances of the person if he or she were to be released on licence. Each of the appellants is subject to a detention order made under the predecessor to s 57 of the Act. Each appellant applied for, and was refused, release on licence. The primary judge in each application held that "willing" in s 59(1a)(a) means the converse of "unwilling" in s 57(1) ("the first issue"). Each primary judge also held that the Supreme Court, in considering whether to release a person on licence, may not have regard to the likely effect of any conditions of release on licence upon the person's willingness to control his or her sexual instincts ("the second issue"). The Court of Appeal dismissed each appellant's appeal. On the first issue, the High Court held that the construction of "willing" adopted by the courts below was correct. There would be no point in requiring the Supreme Court to obtain and act upon the medical reports if those reports were not directed to the task required of the Court by s 59(1a). The term "significant risk" in the deemed meaning of "unwilling" in s 57(1) serves to establish the level of risk by reference to which the regime is engaged in s 57 or relaxed under s 58 or s 59. On the second issue, the High Court held that the courts below erred in construing s 59(1a)(a) as if it required a determination of "willingness" as a condition precedent to final consideration of the application for release on licence. The text of s 59(1) is clear that there is but one determination to be made, being whether the person should be granted release on licence. The context in which s 59(1a)(a) is found, in particular the requirement to consider the report from the Parole Board, confirms the relevance of the probable circumstances of the person to the determination contemplated by s 59(1a)(a). This conclusion was not inconsistent with the purpose of the amendments which introduced s 59(1a)(a).

HIGH COURT OF AUSTRALIA 9 October 2019 PETER MANN & ANOR v PATERSON CONSTRUCTIONS PTY LTD [2019] HCA 32 Today the High Court unanimously allowed an appeal from a judgment of the Court of Appeal of the Supreme Court of Victoria concerning remuneration for work and labour done under a contract to which the Domestic Building Contracts Act 1995 (Vic) ("the Act") applied. Mr and Mrs Mann ("the Owners") entered into a "major domestic building contract" (as defined in the Act) with Paterson Constructions Pty Ltd ("the Builder") for the construction of two townhouses on the Owners' land at a fixed price. The contract provided for "progress payments" to be made at the completion of certain stages of the work. During the course of the work, the Owners orally requested 42 variations without giving any written notice in accordance with the contract and as required by s 38 of the Act, and the Builder carried out the requested variations, also without giving written notice as required by s 38. Section 38 relevantly provides that a builder is not entitled to recover any money in respect of a variation unless the builder has complied with the notice requirements of the section (s 38(6)(a)) or the Victorian Civil and Administrative Tribunal ("VCAT") is satisfied: that there are exceptional circumstances or that the builder would suffer significant or exceptional hardship; and that it would not be unfair to the building owner for the builder to recover the money (s 38(6)(b)). After an invoice claiming an amount for variations was raised, the Owners repudiated the contract, and the Builder accepted the repudiation as bringing the contract to an end. The Builder brought a claim in VCAT for damages for breach of contract or alternatively restitution for work and labour done and materials supplied. VCAT upheld the Builder's claim to a restitutionary remedy for an amount reflecting the value of the benefit conferred on the Owners, which was assessed as being the reasonable value of the work and materials requested and the benefit which the Owners received. That was considerably more than the Builder might have recovered had the claim been confined to one for breach of contract. VCAT held that s 38 of the Act did not apply to a claim for restitution. An appeal by the Owners to the Supreme Court of Victoria was substantially dismissed, and the Owners' further appeal to the Court of Appeal of the Supreme Court of Victoria was dismissed, on essentially similar bases. By grant of special leave, the Owners appealed to the High Court. The High Court unanimously held that s 38 of the Act excluded the availability of restitutionary relief for variations implemented otherwise than in accordance with that section, and thus that the Builder's only right of recovery for variations would be under s 38(6)(b) of the Act for the amounts prescribed by s 38(7). As to the remainder of the Builder's claim not in respect of variations, the Court unanimously held: (i) that the Builder's only right to recovery in respect of any stage of the contract completed by the time of termination was for the amount due under the contract on completion of that stage and any damages for breach of contract; and (ii) that, in respect of any uncompleted stage of the contract, the Builder was entitled to claim damages for breach of contract. A majority of the Court further held: (iii) that the Builder was entitled, in the alternative, to recover restitution for work and labour done and materials supplied in respect of uncompleted stages (other than for variations); but (iv) that the amount so recoverable should not in this case exceed a fair value calculated in accordance with the contract price or the appropriate part of the contract price.

HIGH COURT OF AUSTRALIA 14 August 2013 LEGAL SERVICES BOARD v SIMON GILLESPIE-JONES [2013] HCA 35 Today the High Court unanimously allowed an appeal from a decision of the Court of Appeal of the Supreme Court of Victoria, which had held that the respondent was entitled to make a claim for compensation against the Legal Practitioners Fidelity Fund ("the Fidelity Fund"). The respondent, a barrister, was briefed by a solicitor to appear for a client in criminal proceedings. The client made a series of payments to the solicitor on account of his legal costs, including barristers' fees. However, the solicitor misappropriated most of this money, such that the amount remaining was insufficient to meet the respondent's fees. The respondent made a claim against the Fidelity Fund, which is maintained by the Legal Services Board ("the Board") under the Legal Profession Act 2004 (Vic) ("the Act"). The respondent argued that his claim should be allowed under Pt 3.6 of the Act, on the basis that he had suffered a pecuniary loss as a result of the solicitor's default. The default was said to be that the solicitor had failed to pay or deliver trust money to the respondent. The Board rejected the respondent's claim. The respondent then successfully appealed to the County Court of Victoria. The County Court held that the respondent had suffered a pecuniary loss as a result of the solicitor's default, constituted by the solicitor's failure to pay or deliver trust money to the respondent in accordance with a direction given by the client. The County Court's decision was upheld by the Court of Appeal, which would have allowed the respondent's claim on the basis that the solicitor had failed to pay him money to which he was beneficially entitled. By special leave, the Board appealed to the High Court. The High Court allowed the Board's appeal. The joint reasons of French CJ, Hayne, Crennan and Kiefel JJ held that the respondent's claim against the Fidelity Fund should be disallowed, because he had not suffered a relevant pecuniary loss. There can be no failure to pay or deliver trust money unless there is an instruction to the solicitor to pay or deliver the money, and it is not complied with. The County Court had not made any finding that the instructions the client gave to the solicitor amounted to an instruction to pay the respondent. That Court's findings were not challenged in the Court of Appeal, and could not be revisited by the High Court. Therefore, the joint reasons held that it could not be said that the solicitor had failed to pay or deliver trust money to the respondent. In the reasons of Bell, Gageler and Keane JJ, the respondent had no entitlement to, or expectation of, payment of trust money and suffered no loss by reason of the failure of the solicitor to pay or deliver trust money to him.

HIGH COURT OF AUSTRALIA 10 March 2005 RYAN D’ORTA-EKENAIKE v VICTORIA LEGAL AID AND IAN DENIS McIVOR Declining to depart from a 1988 decision of the Court, the High Court of Australia today upheld advocates’ immunity from lawsuits for negligence in the conducting of cases and in making decisions about such conduct. In 1996 Mr D’Orta-Ekenaike was charged with rape. He sought legal assistance from Victoria Legal Aid which retained Mr McIvor as his barrister. At the committal proceeding Mr D’Orta- Ekenaike entered a plea of guilty, but on arraignment in the County Court he pleaded not guilty. His guilty plea was led in evidence during the trial. He was convicted and sentenced to three years’ jail. The Victorian Court of Appeal allowed an appeal and ordered a retrial on the ground that the trial judge had failed to give proper directions about the use the jury might make of the original guilty plea. At the retrial evidence of the guilty plea was not admitted and Mr D’Dorta-Ekenaike was acquitted. He then sued VLA and Mr McIvor who had allegedly advised him during conferences before the committal that he had no defence to the rape charge, a guilty plea would earn him leniency. Mr D’Orta-Ekenaike alleged that undue pressure was exerted upon him by both Mr McIvor and Robyn Greensill from the VLA. He claimed that he suffered loss and damage including being jailed between his conviction and the quashing of that conviction, lost income, psychotic illness, and the expense of the appeal, retrial and the civil proceeding. Judge Thomas Wodak in the County Court ordered a permanent stay of proceedings. The Court of Appeal refused leave to appeal. In the High Court, Mr D’Orta-Ekenaike’s application for special leave to appeal was argued as though on appeal. The Court unanimously granted special leave but by a 6-1 majority dismissed the appeal. It declined to depart from the Court’s 1988 decision in Giannarelli v Wraith that an advocate cannot be sued by a client for negligence in the conduct of a case or in out-of-court work affecting the conduct of the case. The Court held that the central concern is the finalisation of controversies which are not to be reopened except in a few narrowly defined circumstances. The judicial system’s concerns are wider than the concerns of the particular parties to the controversy in question. Restraints on the nature and availability of appeals, rules about what points may be taken on appeal and rules about when fresh evidence may be called are all based on the finality principle. Other rules, affecting persons other than the parties in a case, including immunity from suit, are also justified by the need for finality in judicial decisions. Along with advocates, judges, witnesses and jurors enjoy immunity from suit. The Court held that the immunity also extends to advice leading to a decision (such as a guilty plea) which affects the conduct of a case in court.

HIGH COURT OF AUSTRALIA 20 June 2018 CRAIG WILLIAM JOHN MINOGUE v STATE OF VICTORIA [2018] HCA 27 Today the High Court held, in answer to questions stated in a special case, that s 74AAA of the Corrections Act 1986 (Vic) ("the Act") does not, on its proper construction, apply to the plaintiff, In 1988 the plaintiff was sentenced by the Supreme Court of Victoria to a term of life imprisonment with a non-parole period of 28 years for the murder of Angela Rose Taylor, a constable in the Victorian police force. Constable Taylor was killed following the detonation of an explosive device contained in a car parked in the vicinity of a number of public buildings in Melbourne, including the Russell Street Police Complex and the Melbourne Magistrates' Court building. The plaintiff's non-parole period expired on 30 September 2016 and, on 3 October 2016, he submitted an application for parole. On 20 October 2016, the Adult Parole Board of Victoria ("the Board") decided to proceed with parole planning to consider the plaintiff's suitability for release on parole. On 14 December 2016, s 74AAA was inserted into the Act. Section 74AAA relevantly provides that the Board must not make a parole order in respect of a prisoner "convicted and sentenced" to a term of imprisonment "for the murder of a person who the prisoner knew was, or was reckless as to whether the person was, a police officer" unless the Board is satisfied that the prisoner is in imminent danger of dying or is seriously incapacitated. On 20 December 2017, s 127A was inserted into the Act. Section 127A relevantly provides that s 74AAA applies regardless of whether, before the commencement of s 74AAA, the prisoner had become eligible for parole, the prisoner had taken any steps to ask the Board to grant parole, or the Board had begun consideration of whether the prisoner should be granted parole. Before s 127A was enacted, the plaintiff commenced proceedings in the original jurisdiction of the High Court. After commencing his proceedings, the plaintiff asked the Board not to take any further action in relation to his application for parole until the determination of these proceedings. The Board acceded to that request. In answering questions stated in the special case, the High Court held that s 74AAA, on its proper construction, applies to a prisoner sentenced on the basis that the prisoner knew, or was reckless as to whether, the person murdered was a police officer. The plaintiff was not sentenced on that basis. The remarks of the sentencing judge contain no reference to the plaintiff's state of mind concerning the identity of the police constable who was killed. The offence committed was indiscriminate and no particular person or class of persons was targeted. Therefore, the Court concluded that s 74AAA does not apply to the plaintiff.

HIGH COURT OF AUSTRALIA 6 October 2021 G CHARISTEAS v Z V CHARISTEAS & ORS [2021] HCA 29 Today the High Court unanimously allowed an appeal from a judgment of the Full Court of the Family Court of Australia dismissing an appeal from the Family Court of Western Australia. The questions for determination were whether the Family Court's orders should be set aside on the ground of apprehended bias and whether the Family Court had power to make orders for the settlement of property under s 79 of the Family Law Act 1975 (Cth) ("the Act"). The appellant ("the husband") and the first respondent ("the wife") married in 1979 and separated in 2005. In 2006, the husband commenced proceedings under s 79 of the Act for orders settling the property of the parties to the marriage. In 2011, Crisford J of the Family Court made orders for the settlement of property ("the 2011 Property Orders"), which included orders providing for the early vesting of an identified trust ("the Early Vesting Orders"). On appeal, a Full Court of the Family Court set aside the Early Vesting Orders but did not make any consequential orders, whether remitting that issue for rehearing or otherwise. In 2015, Walters J of the Family Court ("the trial judge") held that the 2011 Property Orders were not final orders and the Court retained power to make orders under s 79 of the Act. On 12 February 2018, the trial judge purported to make orders under s 79 of the Act which did not set aside or vary the 2011 Property Orders but were inconsistent with them ("the 2018 Property Orders"). In May 2018, in response to an enquiry from the husband's solicitor, the wife's barrister disclosed that, between March 2016 and February 2018, she had communicated with the trial judge in person, by telephone and by text, although she said they had not discussed the substance of the case. The communications took place otherwise than in the presence of or with the previous knowledge and consent of the other parties to the litigation. The husband appealed the 2018 Property Orders on the grounds of apprehended bias and absence of power to make property settlement orders. By majority, the Full Court dismissed the appeal. The High Court held that the 2018 Property Orders should be set aside on the ground of apprehended bias. The apprehension of bias principle is that a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. Once a case is underway or about to get underway, ordinary judicial practice is that, save in the most exceptional of cases, there should be no communication or association between the judge and one of the parties (or the legal advisers or witnesses of such a party), otherwise than in the presence of or with the previous knowledge and consent of the other party. There were no exceptional circumstances in this case. The communications should not have taken place. A fair-minded lay observer would reasonably apprehend that the trial judge might not bring an impartial mind to the resolution of the questions his Honour was required to decide. The High Court held that the matter must be remitted for rehearing before a single judge of the Family Court and that the Family Court retained power under s 79 of the Act to deal with the property the subject of the Early Vesting Orders.

HIGH COURT OF AUSTRALIA Public Information Officer 14 June 2007 JOHN FAIRFAX PUBLICATIONS PTY LTD AND MATTHEW EVANS v ALEKSANDRA GACIC, LJILJANA GACIC AND BRANISLAV CIRIC The jury in proceedings in a defamation action found that a newspaper had published in a review of the Coco Roco restaurant that its food was unpalatable and the service sometimes bad. However the jury found that the review did not have the tendency to injure the restaurant owners’ business reputation. The NSW Court of Appeal found that the jury’s decision was unreasonable and directed an answer in favour of the restaurant owners on the question put to the jury. The High Court of Australia today upheld the Court of Appeal’s decision. The Coco Roco restaurant complex – comprising the fine dining Coco and the Roco bistro – opened at King Street Wharf at Darling Harbour in Sydney in 2003 after a $3 million fitout. After two dinners at Coco, Sydney Morning Herald restaurant critic Matthew Evans gave it a score of nine out of 20 and said Coco was expensive, with many unpalatable flavours, a menu flawed in concept and execution, and good and bad service, and that the best thing was the view. Coco Roco subsequently closed. The owners sued The Sydney Morning Herald’s publisher, John Fairfax Publications, and Mr Evans for defamation. Before the trial of any issue by a jury, the NSW Supreme Court ruled that four imputations could be drawn from the review and they were reasonable capable of bearing a defamatory meaning: (a) Coco Roco’s owners sell unpalatable food; (b) they charge excessive prices; (c) they provide some bad service; and (d) they are incompetent as restaurant owners because they employ a chef who makes poor-quality food. At the trial, the jury found that imputations (a) and (c) were conveyed but were not defamatory and (b) and (d) were not conveyed. The restaurant owners appealed to the Court of Appeal in respect of the findings on imputations (a), (c) and (d), arguing that the jury’s answers were unreasonable. The Court of Appeal upheld the appeal, finding for the owners on (a) and (c) and remitting (d) for reconsideration by a jury. Fairfax and Mr Evans appealed to the High Court in relation to imputations (a) and (c), arguing that the Court of Appeal exceeded its powers under section 108(3) of the Supreme Court Act. This provides that where it appears to the Court of Appeal that upon the evidence a party is entitled as a matter of law to a verdict in the proceedings the Court may direct a verdict and give judgment accordingly. The Court of Appeal concluded that no reasonable jury, properly instructed, could find that imputations (a) and (c) were not defamatory. The High Court, by a 6-1 majority, dismissed the appeal and upheld the decision of the Court of Appeal. It held that the Court of Appeal properly exercised the power conferred by section 108(3) of the Act to correct unreasonable jury verdicts. As well as the defamatory nature of imputation (d), further litigation will determine any defences available to Fairfax and Mr Evans and questions of damages.

HIGH COURT OF AUSTRALIA 6 December 2017 ALDI FOODS PTY LTD v SHOP, DISTRIBUTIVE & ALLIED EMPLOYEES ASSOCIATION & ANOR [2017] HCA 53 Today the High Court unanimously allowed, in part, an appeal from the Full Court of the Federal Court of Australia. The High Court held that the Full Court erred in holding that the Fair Work Commission ("the Commission") cannot approve an enterprise agreement under s 186(2)(a) of the Fair Work Act 2009 (Cth) ("the Act") for a new enterprise where the agreement is made with existing employees of an employer who have agreed, but have not yet started, to work as employees in the new enterprise. The High Court further held, however, that the Full Court was correct to hold that the Commission fell into jurisdictional error in being satisfied that the enterprise agreement in this case passed the "better off overall test" ("the BOOT") for the purposes of s 186(2)(d) of the Act. In early 2015, ALDI Foods Pty Ltd ("ALDI") was in the process of establishing a new undertaking in Regency Park in South Australia. It sought from its existing employees in its stores in other regions expressions of interest to work in the Regency Park region. Seventeen employees subsequently accepted offers of employment in the new undertaking. ALDI then commenced a process of bargaining with those employees, without the involvement of any union. That process culminated in the making, under s 172(2)(a) of the Act, of the ALDI Regency Park Agreement ("the Agreement"), in favour of which 15 employees voted. At the time the vote was conducted, the Distribution Centre at Regency Park was still under construction, and trading in the region had not commenced. ALDI applied to the Commission for approval of the Agreement, and the Agreement was approved. Both the Shop, Distributive & Allied Employees Association ("the SDA") and the Transport Workers' Union of Australia filed notices of appeal to the Full Bench of the Commission, contending that the Agreement should have been made as a "greenfields agreement" under s 172(2)(b) of the Act, because ALDI was establishing a new enterprise and had not employed in that new enterprise any of the persons who would be necessary for the normal conduct of that enterprise. It was also argued that the Agreement did not pass the BOOT. The Full Bench rejected both contentions, and dismissed the appeal. The SDA applied to the Full Court for judicial review. Granting the relief sought, the Full Court held by majority, first, that it was not open for the Commission to be satisfied that the Agreement had been genuinely agreed to by the employees "covered by" the agreement in accordance with s 186(2)(a) of the Act, as no employee could be covered until the Agreement came into operation, and second, that the Commission had erred in considering whether the employees were "no worse off", rather than applying the BOOT. By grant of special leave, ALDI appealed to the High Court. The High Court held that the Full Court's reasoning on the coverage issue could not accommodate the distinction expressly drawn by ss 52 and 53 of the Act between coverage and application, and could not stand with the plain and ordinary meaning of s 172(2) and (4), which contemplate the making of non-greenfields agreements with persons already employed. It was held that, once the Agreement was made, the employees were accurately described as being covered by it, even though it did not yet apply to them in the sense of being in operation so as to create rights and liabilities in relation to work actually performed under it. On the BOOT issue, the High Court upheld the Full Court's conclusion, holding that the Full Bench did not engage in any comparison between the Agreement and the modern award, but rather treated a clause in the Agreement granting employees a right to payment of any shortfall in what they would be entitled to under the modern award as showing that the Agreement passed the BOOT. The High Court accordingly allowed the appeal in part, and issued a writ of mandamus requiring the Full Bench to determine the appeal against the Commission's decision according to law.

HIGH COURT OF AUSTRALIA 1 December 2010 COMMISSIONER OF STATE TAXATION v CYRIL HENSCHKE PTY LTD & ORS [2010] HCA 43 Today the High Court held that a deed of retirement ("the Deed") giving effect to the retirement of one partner from a partnership that carried on a business, which was to be carried on by the other partners after her retirement, attracted stamp duty under the Stamp Duties Act 1923 (SA) ("the Act"). A winemaking business trading as CA Henschke & Co was conducted, prior to execution of the Deed, as a partnership ("the Partnership") comprising four partners. The Deed provided for the retirement of one partner from the Partnership, and stated that the remaining partners "shall continue the Partnership under the Partnership Agreement (without purchasing [the retiring partner's] interest in the Partnership and without the Partnership being dissolved)". It provided for a payment to the retiring partner "in full satisfaction of all claims she has against the Partnership", and a release and indemnity by the remaining partners in favour of the retiring partner. The Deed purported to reallocate the interests in the Partnership to the remaining partners. Under the Act, stamp duty is charged on a conveyance or transfer on sale of any property. A conveyance is defined to include every instrument "by which or by virtue of which or by the operation of which … any … personal property or any estate or interest in any such property is assured to, or vested in, any person". The Treasurer of South Australia upheld an assessment of stamp duty on the Deed made by the Commissioner of State Taxation, which had determined that the Deed conveyed the retiring partner's interest in the partnership property to the remaining partners. In the South Australian Supreme Court, the trial judge upheld the Commissioner's assessment, but this was reversed on appeal to the Full Court of the Supreme Court. The Full Court considered that the effect of the Deed was not to convey the retiring partner's interest but rather to convert her existing partnership interest (an equitable chose in action) into an entitlement to payment of a specific amount. It held that as her interest was not transferred, the transaction was not, and did not effect, a conveyance on sale. The High Court unanimously held that the Deed had the legal effect of dissolving the Partnership, and constituting a new partnership between the remaining partners. The Court accepted that a partner's interest in partnership assets is an equitable chose in action. The Deed extinguished the retiring partner's existing equitable chose in action against the remaining partners, and created a new partnership through which equitable choses in action representing the remaining partners' "reallocated" partnership interests were vested. On this basis, the Deed was a conveyance and attracted stamp duty under the Act. The respondents were ordered to pay the Commissioner's costs.

HIGH COURT OF AUSTRALIA 6 February 2013 GOOGLE INC v AUSTRALIAN COMPETITION AND CONSUMER COMMISSION [2013] HCA 1 Today the High Court unanimously allowed an appeal from a decision of the Full Court of the Federal Court of Australia, in which it was found that Google Inc ("Google") had engaged in misleading or deceptive conduct contrary to s 52 of the Trade Practices Act 1974 (Cth) ("the Act") by displaying certain internet search results. The Google search engine displayed two types of search results in response to a user's search request: "organic search results" and "sponsored links". Organic search results were links to web pages that were ranked in order of relevance to the search terms entered by the user. A sponsored link was a form of advertisement. Each sponsored link was created by, or at the direction of, an advertiser, who paid Google to display advertising text which directed users to a web site of the advertiser's choosing. The Australian Competition and Consumer Commission ("the ACCC") claimed that particular sponsored links displayed by the Google search engine between 2005 and 2008 had conveyed misleading and deceptive representations. By publishing or displaying those search results, Google was said to have contravened s 52 of the Act, which provided that a corporation shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive. At first instance, the primary judge found that although the impugned representations were misleading and deceptive, those representations had not been made by Google. Ordinary and reasonable members of the relevant class of consumers who might be affected by the alleged conduct would have understood that sponsored links were advertisements and would not have understood Google to have endorsed or to have been responsible in any meaningful way for the content of those advertisements. The ACCC successfully appealed to the Full Court of the Federal Court, which unanimously found that Google had itself engaged in misleading or deceptive conduct by publishing and displaying the sponsored links. By special leave, Google appealed to the High Court. The High Court unanimously allowed the appeal. Google did not create the sponsored links that it published or displayed. Ordinary and reasonable users of the Google search engine would have understood that the representations conveyed by the sponsored links were those of the advertisers, and would not have concluded that Google adopted or endorsed the representations. Accordingly, Google did not engage in conduct that was misleading or deceptive.

HIGH COURT OF AUSTRALIA 14 November 2012 BRADLEY DOUGLAS COOPER v THE QUEEN [2012] HCA 50 Today a majority of the High Court allowed an appeal by Mr Bradley Douglas Cooper against the decision of the Court of Criminal Appeal of the Supreme Court of New South Wales to uphold his conviction for murder. The appellant was charged with murder. Post mortem examination showed that the deceased had four wounds to the head. At trial, the prosecution presented two alternative cases. The prosecution alleged that either the appellant alone hit and killed the deceased or the appellant's partner struck and killed the deceased as part of a joint criminal enterprise with the appellant to kill the deceased. The appellant was convicted of murder. The appellant appealed to the Court of Criminal Appeal of the Supreme Court of New South Wales. That Court held that there had been an error in the trial because there was no evidence of a joint criminal enterprise, and so the jury should not have been directed to consider that alternative case. But the Court of Criminal Appeal upheld the appellant's conviction on the basis that the error did not result in a "substantial miscarriage of justice" under s 6(1) of the Criminal Appeal Act 1912 (NSW). By special leave, the appellant appealed to the High Court. A majority of the Court allowed the appeal. The majority concluded that, on the evidence admitted at trial, an appellate court could not be satisfied beyond reasonable doubt that only one weapon had been used or that the appellant struck the blow which caused the deceased's death. An appellate court could not therefore be satisfied beyond reasonable doubt that the appellant was guilty of murder. The Court quashed the appellant's conviction and ordered a retrial.

HIGH COURT OF AUSTRALIA 22 May 2007 Public Information Officer STATE OF NEW SOUTH WALES v GEMMA FAHY The State of New South Wales was not liable in damages for negligence when a police officer was left unassisted with a seriously injured man and later developed post-traumatic stress disorder, the High Court of Australia held today. Gemma Fahy was 25 and had been a police constable for three-and-a-half years when she and her colleague, Senior Constable Steve Evans, were called to a hold-up at the Edensor Park Shopping Centre in western Sydney on 25 August 1999. The video store proprietor had been stabbed and had walked to a nearby medical centre. Ms Fahy went into the treatment room but Mr Evans did not. The victim was drenched in blood and a doctor was dealing with a stab wound to the chest. She asked what she could do to help and he asked her to check the victim’s left side as he was complaining of pain. The victim had a deep laceration from his armpit to his waist and was bleeding profusely. Ms Fahy tried to stop the bleeding by applying medical pads and holding the wound together. At the same time she used her radio to call for an ambulance and to relay descriptions of the two assailants. The victim, who survived the attack, gave her messages for his wife and children and she kept him talking. Ms Fahy then assisted the ambulance officers. The senior officer on the scene, Inspector Alan Whitton, looked in but left immediately and later told her to put hat on as the media were there. She then went to inform the victim’s wife, who collapsed, then returned to help secure the scene from contamination until Inspector Whitton ordered her home because he was not going to pay her overtime. In 2001, Ms Fahy succeeded in an action in the NSW District Court, and was awarded damages for negligence of $469,893. She claimed she had developed post-traumatic stress disorder due to being unreasonably left in a traumatic situation without the support of a fellow police officer, and her injury was in consequence of a breach of duty by her employer to take reasonable care for her safety. Ms Fahy had attended an unusually high number of fatalities but said she always coped because a partner was with her and they could share the tasks. An appeal by the State to the NSW Court of Appeal failed on liability but succeeded on the question of damages. The Court of Appeal remitted the case back to the District Court to reassess damages in light of Ms Fahy’s failure to take prescribed anti-depressants, but the State appealed to the High Court in relation to liability. The Court, by a 4-3 majority, allowed the appeal. The majority held that Ms Fahy had failed to establish that the State breached its duty of care and that it was not sufficient merely to allege that the State should have instructed police officers working in pairs that they should whenever possible remain together and that they should provide psychological support to each other during traumatic incidents. Many circumstances would require them to separate and the support they could give one another varies with the individuals concerned and the situation. An obligation to stay together would create tension between an officer’s duties at a crime scene – which are mandated in the Police Service Act – and the need to protect a fellow officer. The majority held that the system of work was not deficient.

HIGH COURT OF AUSTRALIA 4 May 2022 CITTA HOBART PTY LTD & ANOR v CAWTHORN [2022] HCA 16 Today, the High Court allowed an appeal from the Full Court of the Supreme Court of Tasmania. The primary issue in the appeal concerned whether the Anti-Discrimination Tribunal had jurisdiction under the Anti-Discrimination Act 1998 (Tas) ("the State Act") to determine a complaint made by the respondent that he had been discriminated against by the appellants, in circumstances where the appellants had asserted that parts of the State Act were inconsistent with the Disability Discrimination Act 1992 (Cth) ("the Commonwealth Act") and a standard made under the Commonwealth Act, and were therefore inoperative by force of s 109 of the Constitution. This issue arose against the background of the High Court's decision in Burns v Corbett (2018) 265 CLR 304, which held that a State Parliament lacks legislative capacity to confer on a State tribunal that is not a court of a State within the meaning of the Constitution judicial power with respect to any matter of a description in ss 75 and 76 of the Constitution including, relevantly, ss 76(i) (matters arising under the Constitution) and 76(ii) (matters arising under a Commonwealth law). The first appellant is undertaking the development of Parliament Square in Hobart on land owned by the second appellant. When the development is completed, one of the entrances will provide access only by way of stairs. The respondent, who relies on a wheelchair for mobility, made a complaint to the Tribunal that this entrance constituted direct and indirect disability discrimination under certain provisions of the State Act. The appellants, as part of their defence ("the constitutional defence"), argued that these provisions were inconsistent with the federal scheme for disability access and that, as a result of this inconsistency, those provisions of the State Act were rendered inoperative because of s 109 of the Constitution. Applying Burns v Corbett, the Tribunal formed the opinion that if it determined the complaint it would be exercising judicial power and, as it was not a court of a State, it did not have jurisdiction to hear the matter because the constitutional defence arose under the Constitution or arose under a law made by the Commonwealth Parliament and was "not colourable". Accordingly, without considering the merits of the constitutional defence, the Tribunal dismissed the complaint for want of jurisdiction. The Full Court, on appeal, addressed the merits of the constitutional defence and rejected it. The Full Court set aside the order of the Tribunal dismissing the complaint and remitted the complaint to the Tribunal for hearing and determination. The High Court held that the Tribunal had reached the correct conclusion on the primary issue of its jurisdiction. The Tribunal exercises judicial power in hearing and determining a complaint under the State Act. The Court, by majority, held that for a claim or defence in reliance on the Constitution or a Commonwealth law to give rise to a matter of a description in ss 76(i) or 76(ii) of the Constitution, it is enough that the claim or defence be genuinely raised and that it not be incapable on its face of legal argument. The constitutional defence had been genuinely raised in answer to the complaint in the Tribunal and, whatever its merits, it was not incapable on its face of legal argument. On that basis, the Tribunal was correct to order that the complaint be dismissed for want of jurisdiction.

HIGH COURT OF AUSTRALIA 3 August 2006 Public Information Officer DRAGAN VASILJKOVIC v COMMONWEALTH OF AUSTRALIA; MINISTER FOR JUSTICE AND CUSTOMS; THE GOVERNOR, PARKLEA CORRECTIONAL CENTRE; AND MAGISTRATE MOORE, CENTRAL LOCAL COURT, SYDNEY Parliament can decide the conditions under which extradition is carried out and the rules laid down in the Commonwealth Extradition Act conform with both international practice and the Constitution, the High Court of Australia held today. Mr Vasiljkovic, 51, a resident of Perth, is a citizen of both Australia and Serbia, having arrived in Australia with his family from Belgrade in 1954 and taking out Australian citizenship in 1975. He allegedly carried out three offences against the Basic Criminal Code of the Republic of Croatia during the conflict between Croatian armed forces and Serbian paramilitary troops in which he was a captain. Mr Vasiljkovic is alleged to have tortured and murdered civilians and prisoners of war in 1991 and 1993. The offences carry a maximum penalty of 20 years’ imprisonment. A Croatian court issued a warrant for Mr Vasiljkovic’s arrest last December and Croatia sought his extradition. In January a Perth magistrate issued a warrant. Mr Vasiljkovic was then arrested by Australian Federal Police while visiting Sydney and has been in custody at Parklea Correctional Centre in Sydney since. Before extradition proceedings before Magistrate Allan Moore began, Mr Vasiljkovic, by application to the High Court, challenged his detention and the validity of Part II of the Extradition Act to the extent that it confers a power to deprive an Australian citizen of liberty other than in the exercise of the judicial power of the Commonwealth. He also claimed Part II of the Act, read together with the Extradition (Croatia) Regulations, is invalid to the extent to which it confers a power to deprive a citizen of liberty other than upon a finding of a prima facie case of the commission of offences alleged by the State seeking extradition. On 15 June the High Court, by a 4-1 majority, upheld the validity of the Act and the Regulations as they related to Mr Vasiljkovic. Today the Court published reasons for its orders. The Court held that the Act and the Regulations for the treatment of fugitive offenders properly fell within Parliament’s power to make laws related to external affairs, conferred by section 51(xxix) of the Constitution. Australia has no extradition treaty with Croatia, but extradition does not rely upon the existence of a treaty and the Regulations declare Croatia to be an extradition country. Extradition involves no determination of guilt or innocence. The Court held that the Constitution, either expressly or impliedly, did not prevent the “no-evidence” model of extradition from being a valid legislative choice. A magistrate determines whether a person is eligible for extradition – an administrative rather than a judicial process – and the person is only to be surrendered if the Attorney-General is satisfied that there is no extradition objection and if he or she is satisfied that the person will not face torture or the death penalty and will not be tried for additional or alternative offences. Although the Administrative Decisions (Judicial Review) Act does not apply to the extradition process, the Court said extradition decisions are subject to judicial scrutiny in the Federal Court. In accordance with international practice, Parliament has given the executive, subject to the requirements of the Act, the ultimate discretion to decide whether and upon what conditions a person shall be surrendered. The Court held that it is for Parliament to determine criteria for eligibility for surrender. It held that detention is not undertaken as punishment but as a necessary part of the extradition process due to a well-founded fear of flight by those facing extradition and to assist guilt or innocence to be determined in the requesting State.

HIGH COURT OF AUSTRALIA 12 December 2013 AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v TPG INTERNET PTY LTD [2013] HCA 54 Today a majority of the High Court allowed an appeal from a decision of the Full Court of the Federal Court of Australia, holding that TPG Internet Pty Ltd ("TPG") engaged in misleading and deceptive conduct under the Trade Practices Act 1974 (Cth) ("the TPA") and the Australian Consumer Law in Schedule 2 of the Competition and Consumer Act 2010 (Cth) ("the ACL"). Between 2010 and 2011, TPG deployed a multi-media advertising campaign. The advertisements displayed a prominent offer of unlimited ADSL2+ service for $29.99 per month. Much less prominently, the advertisements displayed the requirement that consumers bundle that service with a home telephone service provided by TPG for an additional $30 per month for a minimum of six months. Further, a setup fee of $129.95 and a $20 deposit for telephone charges also applied. The Australian Competition and Consumer Commission ("the ACCC") claimed that the advertisements were misleading and deceptive contrary to s 52 of the TPA and s 18 of the ACL by reason of the disparity between the prominent headline offer and the less prominent terms qualifying that offer. The ACCC also claimed that some of the advertisements contravened s 53C(1)(c) of the TPA by failing to specify, in a prominent way and as a single figure, the single price for the package of services offered. The primary judge upheld the ACCC's claims and imposed a pecuniary penalty of $2 million. TPG appealed to the Full Court which set aside all but three of the primary judge's findings. The pecuniary penalty was reduced to a total of $50,000. In the High Court, the ACCC argued that it was not open to the Full Court, in the proper exercise of its appellate function, to hold that the advertisements were not misleading. Further, the ACCC contended that the penalty imposed by the primary judge should be restored, given the circumstances of TPG's offending and the need for the penalty to reflect the important considerations of general and specific deterrence. A majority of the High Court held that the Full Court erred, first, in holding that the primary judge was wrong to regard the "dominant message" of the advertisements as critically important; and secondly, in failing to appreciate that the tendency of TPG's advertisements to mislead was not neutralised by the Full Court's attribution to members of the target audience of knowledge that ADSL2+ services may be offered as a "bundle". A majority held that these errors, reflecting differences in point of principle with the approach taken by the primary judge, led the Full Court into error in the performance of its appellate function. The pecuniary penalty of $2 million imposed by the primary judge was reinstated.

HIGH COURT OF AUSTRALIA 31 August 2016 THE QUEEN v BADEN-CLAY [2016] HCA 35 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 Court of Appeal erred in concluding that the jury's verdict of guilty of murder was unreasonable on the basis that the prosecution had failed to exclude the hypothesis that the respondent unintentionally killed his wife. On 15 July 2014, following a trial in the Supreme Court of Queensland before Byrne SJA and a jury, the respondent was found guilty of the murder of his wife. The respondent gave evidence that he, his wife and their three daughters were at home on the night of 19 April 2012. The respondent said that he went to bed at about 10 pm, leaving his wife in the living room; the next morning, she was not at home. He said that his wife often went for an early morning walk. He said that after a period of time, he attempted to contact his wife, went driving around the suburb looking for her, and finally called 000 to report her missing. On 30 April 2012, the deceased's body was found under a bridge on a bank of Kholo Creek. The respondent had been involved in a sexual relationship with another woman, Ms Toni McHugh, since August 2008. His wife believed that the affair had ended in 2011. On 16 April 2012, on the advice of a counsellor, the respondent's wife spent some time "venting and grilling" the respondent about his affair with Ms McHugh. On the day before the deceased's disappearance, Ms McHugh told the respondent that she would be attending a conference that the deceased was also planning to attend. The respondent had told Ms McHugh that he would be out of his marriage by 1 July. Following the deceased's disappearance, injuries to the respondent's right cheek were examined. He said he cut himself shaving. Three experts gave evidence that one set of scratches was most likely caused by fingernails. The respondent appealed against his conviction to the Court of Appeal on the ground that the jury's verdict was unreasonable. The Court of Appeal upheld the appeal, set aside the respondent's conviction on the charge of murder, and substituted a verdict of manslaughter. The Court held that, although it was open to the jury to find that the respondent had killed his wife, the evidence did not allow the jury to be satisfied beyond reasonable doubt that the respondent intended to kill her, or to cause her grievous bodily harm. In particular, the Court accepted the respondent's submission, made for the first time on appeal, that the prosecution had not excluded the hypothesis that there was a physical confrontation between the appellant and his wife in which he delivered a blow which killed her (for example, by the effects of a fall hitting her head against a hard surface) without intending to cause serious harm. By grant of special leave, the Crown appealed to the High Court. It was common ground on the appeal that the respondent killed his wife. The High Court held that the hypothesis on which the Court of Appeal acted was not available on the evidence. At the trial, the respondent denied that he had fought with his wife, killed her and disposed of her body. His evidence, being the evidence of the only person who could give evidence on the issue, was inconsistent with that hypothesis. Further, the jury were entitled to regard the whole of the evidence as satisfying them beyond reasonable doubt that the respondent acted with intent to kill or cause grievous bodily harm when he killed his wife. The Court ordered that the respondent's conviction for murder be restored.

HIGH COURT OF AUSTRALIA 16 June 2005 POLYAIRE PTY LTD v K-AIRE PTY LTD, KEMALEX PTY LTD, RICHARD KEMPLEY COLEBATCH, BRUCE VICTOR BENFIELD, K-AIRE SALES PTY LTD, K-AIRE WHOLESALE PTY LTD, CONNECT AIRE PTY LTD AND ACN 079 795 814 PTY LTD K-Aire had infringed copyright of a new kind of air-conditioning outlet, even though some of the design features had been changed, the High Court of Australia held today. Polyaire, a South Australian manufacturer and seller of air-conditioning components, had a registered design for a new grille, which directs the flow of air from the air-conditioning unit into a room. It brought proceedings against K-Aire and the other respondents for infringement of its design. In the SA Supreme Court, Justice Anthony Besanko held that the respondents’ outlet director was a fraudulent imitation of Polyaire’s design. After a K-Aire grille, known as KA1, appeared on the market, Polyaire complained, and a different grille, KA2, appeared in its place. Justice Besanko held that both KA1 and KA2 were fraudulent imitations. He found that industrial designer Andrew Rogers, whom Mr Colebatch asked to design an air-conditioning outlet for Kemalex, had reason to suspect that any outlet director produced by Polyaire was subject to a registered design. Mr Colebatch wanted certain features that were part of Polyaire’s design. Justice Besanko found that KA1 was not distinctly different from Polyaire’s grille. KA1 lacked a chamfered lip and vertical ribs on the outside of the frame but a snap-fit mechanism, control bars and the blade ends including the spigots had been copied. K-Aire successfully appealed to the Full Court of the Federal Court. (Under the Design Act 1906, repealed 12 months ago, appeals lay to the Federal Court from a “prescribed court” which included the Supreme Court.) Polyaire then appealed to the High Court. The appeal turned on the construction of section 30(1)(a) in the Design Act which deemed that a person infringed a registered design if, without permission, they applied the design or any fraudulent or obvious imitation of it to any article in respect of which the design is registered. As Justice Besanko found no obvious imitation in KA1 and KA2 it was necessary for him to decide whether there was nevertheless a fraudulent imitation. The Court upheld Justice Besanko’s judgment that there had been copying of features giving the Polyaire design its distinctive appearance. It held that fraudulent imitation could include a copy with significant differences but which have been made merely to disguise the copying. The Court unanimously allowed the appeal.

HIGH COURT OF AUSTRALIA 9 March 2021 H. LUNDBECK A/S & ANOR v SANDOZ PTY LTD CNS PHARMA PTY LTD v SANDOZ PTY LTD [2022] HCA 4 Today, the High Court delivered judgment in two related appeals from a decision of the Full Court of the Federal Court of Australia ("the Full Court") each on appeal from a single justice of that Court concerning the extension under the Patents Act 1990 (Cth) ("the Act") of the term of a patent relating to the pharmaceutical substance escitalopram ("the Patent"). The Court unanimously allowed one appeal ("the Lundbeck appeal") primarily on the basis that the Full Court misconstrued the effect of a settlement clause between the parties. The Court unanimously dismissed the other appeal ("the Pharma appeal") holding that the Full Court was correct to find that the respondent had not engaged in misleading or deceptive conduct. The appellants in the Lundbeck appeal were H. Lundbeck A/S ("Lundbeck Denmark") a Danish pharmaceutical company and its Australian subsidiary ("Lundbeck Australia"). Lundbeck Denmark was the owner of the Patent. Lundbeck Australia held an exclusive licence of the Patent. The appellant in the Pharma appeal, CNS Pharma Pty Ltd ("Pharma"), was a subsidiary of Lundbeck Australia, which sold a generic product containing escitalopram in Australia. The respondent in both appeals, Sandoz Pty Ltd ("Sandoz") was a supplier of generic pharmaceuticals products. When the Patent was due to expire in June 2009 Lundbeck Denmark applied under the Act to extend the term until December 2012; this extension was subsequently granted in 2014. During the extended term Sandoz sold generic escitalopram products. In 2014 Lundbeck Denmark and Lundbeck Australia commenced proceedings against Sandoz claiming that Sandoz had infringed the Patent by selling escitalopram during the extended term. Pharma also commenced proceedings against Sandoz claiming that Sandoz had engaged in misleading or deceptive conduct during the extended term by failing to warn its customers that their supply of generic escitalopram might infringe the Patent. The primary judge found against Sandoz in both proceedings. The Full Court allowed the appeals holding that none of Sandoz's sales amounted to acts of infringement as Sandoz held a non-exclusive licence to exploit the Patent through the operation of a settlement clause in an agreement that Sandoz had entered into with Lundbeck Denmark and Lundbeck Australia in 2007. In the Lundbeck appeal, the High Court held that the Full Court had erred in its construction of the settlement clause. Properly construed, the settlement clause gave permission to Sandoz to sell the escitalopram products for the two week period before the expiry of the Patent's original term. Section 79 of the Act operated to confer substantive and exhaustive rights only on Lundbeck Denmark as the patentee to start proceedings against persons who had infringed an exclusive right to exploit the Patent during the extended term. Further, Lundbeck Denmark's cause of action under s 79 of the Act only accrued on the grant of the extension of the Patent in 2014. In the Pharma appeal, the Court held Sandoz's conduct did not amount to misleading or deceptive conduct as the evidence did not establish that its customers had the requisite reasonable expectation that they might be exposed to patent infringement proceedings for supplying Sandoz's escitalopram products.

HIGH COURT OF AUSTRALIA 28 September 2011 ROY MORGAN RESEARCH PTY LTD v COMMISSIONER OF TAXATION & ANOR [2011] HCA 35 Today the High Court dismissed an appeal by Roy Morgan Research Pty Ltd against the decision of the Full Court of the Federal Court of Australia which had upheld the constitutional validity of the Superannuation Guarantee (Administration) Act 1992 (Cth) ("the Administration Act") and the Superannuation Guarantee Charge Act 1992 (Cth) ("the Charge Act"). The challenged legislation imposes the superannuation guarantee charge ("the Charge") on an employer who fails to provide to all employees a prescribed minimum level of superannuation, specified in the Administration Act. Any shortfall created by the employer's failure to meet the minimum level in full becomes the Charge, which is levied on the employer by the Charge Act. The Charge Act does no more than impose the Charge and fix its rate. The Administration Act deals with the incidence, assessment and collection of the Charge. The Charge is a debt due to the Commonwealth and payable to the respondent, the Commissioner of Taxation. It includes a component for interest and an administration cost. The revenue raised by the Charge is to be paid into the Consolidated Revenue Fund. The lesser of the employee's entitlement and the amount of the Charge actually paid by the employer is then to be paid out to a superannuation fund for the benefit of the relevant employee. The result is to supply an incentive to employers to make contributions to superannuation for their employees without incurring the Charge. The appeal to the High Court concerned the power of the Parliament to make laws with respect to taxation under s 51(ii) of the Constitution. The appellant challenged the validity of the provisions in the Administration Act and the Charge Act dealing with the Charge. The appellant argued that the Charge was not a "tax" because it was not imposed for "public purposes". This was said to be because the Charge conferred "a private and direct benefit" on the relevant employees. It followed, the appellant argued, that neither the Charge Act nor the Administration Act was a law with respect to taxation within the meaning of s 51(ii), and that the legislation establishing the Charge and providing for its administration was invalid. The High Court held unanimously that the Charge was a tax, and that the appellant's constitutional challenge to the Administration Act and the Charge Act failed. The receipt of funds into the Consolidated Revenue Fund established that the Charge was imposed for "public purposes". Once the Charge is paid into the Consolidated Revenue Fund its identity is lost. The funds raised by the Charge are thereafter available under s 83 of the Constitution for an appropriation to be spent on any purpose for which the Commonwealth may lawfully spend money. Where other necessary constitutional criteria of a tax are met, as they were in this case, the receipt of funds into the Consolidated Revenue Fund establishes the character of the Charge as a valid tax.

HIGH COURT OF AUSTRALIA Public Information Officer 14 May 2008 ROADS AND TRAFFIC AUTHORITY OF NSW v The Roads and Traffic Authority (RTA) was not to blame for a car crash that occurred at an alleged highway black spot as the drivers themselves were at fault, the High Court of Australia held today. Mr Smurthwaite was crossing the northbound lanes of a divided section of the Pacific Highway from Bago Road, just north of Herons Creek, south of Port Macquarie, on 12 March 2001 when his car was struck by a car driven by Mr Royal. Mr Smurthwaite had stopped at a Stop sign where Bago Road met the highway. George Hubbard drew up immediately behind him. Anthony Relf, driving a Telstra van, was behind Mr Royal’s car travelling north. Mr Hubbard and Mr Relf each gave evidence about the actions of the drivers they followed. Mr Royal said he did not expect Mr Smurthwaite to cross the highway in the face of oncoming vehicles. He had his cruise control set at 105kmh while the highway had a maximum speed of 100kmh with an 85kmh advisory sign 300 metres before the intersection. Bago Road crossed the highway’s northbound lanes during a long curve away from the straight southbound lanes. Mr Royal had just moved into the right lane, indicating as he did so, then appeared to cut the curve by driving through the intersection in the right turning lane, the point at which the collision occurred. Mr Smurthwaite was seriously injured and remembered little of the lead-up to the crash. He sued Mr Royal and the RTA for negligence. Both Mr Royal and the RTA denied negligence, alleged contributory negligence by Mr Smurthwaite, and cross-claimed against each other. District Court Judge Joseph Phelan found that the primary cause of the collision was Mr Royal’s breach of his duty of care to Mr Smurthwaite, but reduced Mr Smurthwaite’s damages by one-third to $871,019.50 on account of his contributory negligence. Judge Phelan dismissed the claim and cross-claim against the RTA. The NSW Court of Appeal, by majority, allowed Mr Royal’s appeal against Judge Phelan’s dismissal of his cross-claim against the RTA. The Court held that the RTA knew the intersection was an accident black spot and should have taken steps to change the configuration. It held that the RTA should bear one-third of the damages judgment. The RTA was granted special leave to appeal to the High Court, limited to the question of whether a breach of its duty of care caused Mr Smurthwaite’s injury. Mr Smurthwaite was joined as a second respondent but he filed a submitting appearance as his interests were not affected either way. The High Court, by a 4-1 majority, allowed the appeal. The majority held that any fault in the design of the intersection did not contribute to the particular accident. The cause was error by both drivers. Mr Smurthwaite failed to observe the approaching car. Both Mr Royal and Mr Relf said they had seen Mr Smurthwaite’s car and Mr Hubbard could see Mr Royal approaching, so there was no evidence that Mr Royal’s car was obscured by another vehicle. Mr Royal took no evasive action and his cutting the corner by driving through the right-hand turning lane may have misled Mr Smurthwaite into thinking he was slowing down to turn right off the highway, giving him enough time to cross. The Court held that both drivers were in a position to see each other in time to avoid the collision.

HIGH COURT OF AUSTRALIA 11 March 2004 JACK PLEDGE v ROADS AND TRAFFIC AUTHORITY, BLUE MOUNTAINS CITY COUNCIL AND NADIA CATHERINE RYAN by her tutor Heather Ryan NADIA CATHERINE RYAN by her tutor Heather Ryan v JACK PLEDGE, BLUE MOUNTAINS CITY COUNCIL AND ROADS AND TRAFFIC AUTHORITY The High Court of Australia today overturned a judgment of the New South Wales Court of Appeal and ordered that the Court of Appeal reapportion liability among Mr Pledge, the RTA and Blue Mountains Council. Nine-year-old Nadia Ryan was severely injured when struck by Mr Pledge’s vehicle on a service road beside the Great Western Highway at Blaxland in the Blue Mountains as she and her father and sister were about to cross the road in July 1994. They had walked through thick shrubbery planted on a nature strip between the service road and the highway. Ryan momentarily released his daughter’s hand and Nadia walked forward on to the roadway. The RTA designed the service road, the Council designed the parking beside the service road and both bodies were responsible for the nature strip. The vegetation prevented the family and Mr Pledge from seeing each other properly. Mr Pledge also claimed he was distracted by another car reversing from a parking space. Nadia sued Mr Pledge, the RTA and the Council for negligence. NSW Supreme Court Justice John Dunford, who visited the service road during the trial, held that Mr Pledge was negligent in driving too fast, although he was within the speed limit, and failing to keep a proper lookout, that the RTA was negligent in the design and construction of the nature strip, and that the Council was negligent in not properly maintaining the vegetation and allowing parking bays at a 90-degree angle. He held that a traffic sign warning drivers of pedestrians or suggesting a slower speed was needed. Justice Dunford ordered Mr Pledge to pay $2,925,000 in damages and the RTA and the Council a total of $3,712,500, adjusted to $4,781,250 against Mr Pledge and $1,856,250 against the RTA and the Council after judgment on cross-claims. Nadia’s damages were reduced by 10 per cent because of her contributory negligence in failing to look both ways before crossing. The High Court held that the Court of Appeal erred in three respects in absolving the RTA and the Blue Mountains Council from responsibility for Nadia’s injuries. The errors were: having no proper basis for preferring photos of the scene over the evidence of witnesses; reliance on time, speed and distance calculations that were too uncertain to be more than mere speculation; and failing to give sufficient weight to the advantage that Justice Dunford had by visiting the accident site. The High Court did however uphold the Court of Appeal’s findings that the absence of traffic signs and provision of perpendicular parking spaces did not amount to negligence by the RTA and the Council. The High Court unanimously allowed both appeals and remitted proceedings to the Court of Appeal for reapportionment of liability between Mr Pledge, the RTA and the Council and for determination of remaining issues not decided by the High Court, including costs.

HIGH COURT OF AUSTRALIA 7 October 2015 McCLOY & ORS v STATE OF NEW SOUTH WALES & ANOR [2015] HCA 34 Today the High Court upheld the validity of certain provisions of the Election Funding, Expenditure and Disclosures Act 1981 (NSW) ("the EFED Act"), which impose caps on political donations, prohibit property developers from making such donations, and restrict indirect campaign contributions. Division 2A of Pt 6 of the EFED Act ("Div 2A") provides for general caps on the amount of political donations which a person can make to or for the benefit of a particular political party, elected member, group, candidate or third-party campaigner. Division 4A of Pt 6 ("Div 4A") prohibits the making or acceptance, directly or indirectly, of a political donation by a "prohibited donor" or the soliciting of a person by or on behalf of a "prohibited donor" to make a political donation. "Prohibited donor" is defined to include "a property developer". Section 96E prohibits the making or acceptance of "indirect campaign contributions". Div 4A and s 96E apply in New South Wales to State and local government elections and to elected members of Parliament and councils. Div 2A applies only to State elections and elected members of Parliament. The first and third plaintiffs are "property developers" and the second plaintiff made an "indirect campaign contribution" within the meaning of each expression in the EFED Act. Each of the plaintiffs intended, if permitted by law, to make donations in excess of the caps imposed by Div 2A. The plaintiffs brought proceedings in the original jurisdiction of the High Court, challenging the validity of Div 2A, Div 4A (as it applied to "property developers") and s 96E on the basis that these provisions impermissibly burden the implied constitutional freedom of communication on governmental and political matters. They submitted that the impugned provisions burden the freedom of political communication by restricting the funds available to political parties and candidates to meet the costs of political communication, and further that the restrictions imposed upon the plaintiffs' ability to gain access and make representations to politicians and political parties were also such a burden. The High Court accepted that the impugned provisions indirectly burden political communication by restricting the funds available to political parties and candidates. However, the Court unanimously held that the burden imposed by the donation caps in Div 2A is not impermissible and the provisions are a legitimate means of pursuing the legitimate objective of removing the risk and perception of corruption and undue influence in New South Wales politics. The Court held that the provisions in fact enhance the system of representative government which the implied freedom of political communication protects. Section 96E was also held to be valid, on the basis that as an anti-avoidance provision its validity depends on that of Div 2A. By majority the Court held, taking note of a history of corruption in New South Wales, that the prohibition on donations by property developers in Div 4A is also valid.

HIGH COURT OF AUSTRALIA 3 February 2016 MINISTER FOR IMMIGRATION AND BORDER PROTECTION & ORS [2016] HCA 1 Today the High Court held, by majority, that the plaintiff was not entitled to a declaration that the conduct of the first and second defendants in relation to the plaintiff's past detention at the Nauru Regional Processing Centre ("the Centre") was unlawful. The majority of the Court held that s 198AHA of the Migration Act 1958 (Cth) ("the Act") authorised the Commonwealth's participation, to the extent that the Commonwealth did participate, in the plaintiff's detention. The plaintiff is a Bangladeshi national who was an "unauthorised maritime arrival" as defined by s 5AA of the Act upon entering Australia's migration zone. She was detained by officers of the second defendant and taken to Nauru pursuant to s 198AD(2) of the Act. Nauru is a country designated by the first defendant as a "regional processing country" under s 198AB(1) of the Act. On 3 August 2013, the Commonwealth and Nauru entered into an arrangement relating to persons who have travelled irregularly by sea to Australia and who Australian law authorises to be transferred to Nauru ("the second MOU"). By the second MOU and administrative arrangements entered into in support of the second MOU (including arrangements for the establishment and operation of the Centre) ("the Administrative Arrangements"), Nauru undertook to allow transferees to remain on its territory whilst the transferees' claims to refugee status were processed. The Commonwealth was to bear the costs associated with the second MOU. Since March 2014, the third defendant has been a service provider at the Centre pursuant to a contract with the Commonwealth to provide "garrison and welfare services" ("the Transfield Contract"). Section 198AHA applies if the Commonwealth enters into an arrangement with a person or body in relation to the regional processing functions of a country. Sub-section (2) provides, in summary, that the Commonwealth may take any action, and make payments, in relation to the arrangement or the regional processing functions of the country, or do anything incidental or conducive to taking such actions or making such payments. The plaintiff brought proceedings in the original jurisdiction of the High Court seeking, amongst other things, a declaration that the Commonwealth's conduct (summarised as the imposition, enforcement or procurement of constraints upon the plaintiff's liberty, including her detention, or the Commonwealth's entry into contracts in connection with those constraints, or the Commonwealth having effective control over those constraints) was unlawful by reason that such conduct was not authorised by any valid law of the Commonwealth. The Court held, by majority, that the plaintiff was not entitled to the declaration sought. The conduct of the Commonwealth in signing the second MOU with Nauru was authorised by s 61 of the Constitution. The Court further held that the conduct of the Commonwealth in giving effect to the second MOU (including by entry into the Administrative Arrangements and the Transfield Contract) was authorised by s 198AHA of the Act, which is a valid law of the Commonwealth.

HIGH COURT OF AUSTRALIA Public Information Officer 7 March 2006 THE TRUSTEES OF THE PROPERTY OF JOHN DANIEL CUMMINS A BANKRUPT v MARY ELIZABETH CUMMINS AND AYMCOPIC PTY LTD Property and shares transferred to a spouse before barrister John Cummins was made bankrupt were available to trustees acting for his creditors, the High Court of Australia held today. Mr Cummins became bankrupt in December 2000. At 30 January 2001, his assets totalled $259,614 and his liabilities $1.04 million. His largest creditor is the Australian Taxation Office which instituted proceedings to recover $955,672.92, following the lodging of income tax returns in February 2000 for the years 1991-92 to 1998-99. Mr Cummins had not lodged any returns since 1955. He was admitted as a solicitor in 1957, then practised at the NSW Bar from 1961, becoming a Queen's Counsel in 1980. He married Mary Elizabeth Power in 1964 but they separated in February 2002. Aymcopic is the trustee of the Cummins family trust, of which Mrs Cummins and their four children are the beneficiaries. In August 1987, Mr Cummins transferred to his wife his interest in the family home in Hunters Hill in Sydney and transferred to Aymcopic his shares in Wentworth Chambers in Phillip Street, Sydney. The trustees in bankruptcy sought declarations that the transfers were void, pursuant to section 121 of the Commonwealth Bankruptcy Act. In the Federal Court, Justice Ronald Sackville made the declarations and ordered consequential relief. He held that the main purpose of the transfers was to prevent property becoming divisible among Mr Cummins's creditors or to hinder or delay the process of making property available for division among creditors. Mrs Cummins and Aymcopic appealed to the Full Court which, by majority, allowed the appeal. The trustees appealed to the High Court. The High Court unanimously allowed the appeal by the trustees and ordered that Justice Sackville's orders be reinstated.

HIGH COURT OF AUSTRALIA 7 September 2011 JEMENA ASSET MANAGEMENT (3) PTY LTD & ORS v COINVEST LIMITED [2011] HCA 33 Today the High Court dismissed an appeal from a decision of the Full Court of the Federal Court which held that the Construction Industry Long Service Leave Act 1997 (Vic) ("the State Act") was not inconsistent with federal industrial instruments made under the Workplace Relations Act 1996 (Cth) ("the Commonwealth Act") in relation to long service leave ("the federal instruments") within the meaning of s 109 of the Constitution. The appellant companies carried on businesses in the operation of electricity infrastructure assets. In the course of business, the appellants employed persons to perform construction work and were bound by the federal instruments. The federal instruments imposed obligations on employers to grant, and pay for, long service leave in relation to their qualifying employees and governed the circumstances in which such entitlements would accrue. The Commonwealth Act provided for the paramountcy of industrial instruments made under federal legislation over State laws. The State Act provided for a scheme for portable long service leave benefits in the construction industry. The respondent was the trustee of the Construction Industry Long Service Leave Fund established by the State Act under a trust deed ("the trust deed"). The State Act obliged the appellants to register with the respondent and pay the respondent a long service leave charge in respect of every worker employed by them to perform construction work. Fund Rules made by the respondent under the trust deed provided that every worker was entitled to a long service leave benefit in respect of continuous service performing construction work for an employer. On 24 February 2006 the respondent requested the appellants to provide relevant details of their workers and to make payments pursuant to the State Act. Between May 2006 and July 2007, the respondent issued the appellants with notices requesting information regarding certain of the appellants' employees. On 3 October 2007, the respondent advised the second appellant that it would commence proceedings against the second appellant in relation to its failure to comply with one of the notices. On 5 October 2007 the appellants brought proceedings against the respondent in the Federal Court because they feared imminent prosecution under the State Act. The issue was whether the State Act, including the scheme established under it, was inconsistent with certain provisions of the Commonwealth Act embodied in the federal instruments and therefore invalid by reason of s 109 of the Constitution. The primary judge and the Full Court of the Federal Court held that the State Act was not inconsistent with the federal instruments within the meaning of s 109 of the Constitution. The appellants appealed, by special leave, to the High Court. The High Court held that the State Act was not inconsistent with the federal instruments within the meaning of s 109 of the Constitution. The Court held that employees' entitlements to long service leave benefits under the State Act could only be in the form of payment from the Fund. There was no provision for the grant of any long service leave, a subject which was covered by the federal instruments. While the federal instruments dealt with all the obligations and entitlements of employers and employees in respect of the grant of, and payment for, long service leave arising in the employment relationship, they did not deal with, or even mention, portable long service leave benefits for workers in continuous service within the construction industry. The Court also held that the State Act did not undermine an employer's obligations under the federal instruments to grant, and pay for, long service leave or an employee's entitlement to receive such leave.

HIGH COURT OF AUSTRALIA 2 April 2014 TAYLOR v THE OWNERS – STRATA PLAN NO 11564 & ORS [2014] HCA 9 Today the High Court, by majority, allowed an appeal brought by Susan Joy Taylor from a decision of the Court of Appeal of the Supreme Court of New South Wales. The Court of Appeal had found, by majority, that section 12(2) of the Civil Liability Act 2002 (NSW) ("the CLA") applied to and limited awards of damages under sections 3 and 4 of the Compensation to Relatives Act 1897 (NSW) ("the CRA"). Mrs Taylor is the widow of the late Mr Taylor. Mr Taylor died when an awning outside a shop collapsed on him in 2007. Mrs Taylor commenced proceedings in the Supreme Court of New South Wales claiming damages pursuant to sections 3 and 4 of the CRA against some of the respondents. The proceedings were brought for the benefit of Mrs Taylor and children of the late Mr Taylor. A preliminary question arose before the primary judge for separate determination as to whether any award of damages claimed by the plaintiffs pursuant to sections 3 and 4 of the CRA would be limited by the operation of section 12(2) of the CLA. Section 12(2) of the CLA directs a court when awarding damages to disregard the amount (if any) by which a claimant's gross weekly earnings would, but for the injury or death, have exceeded three times the average weekly earnings at the date of the award. The limitation invoked by section 12(2) applies to specified heads of damages, including, relevantly, for the loss of expectation of financial support. The primary judge held that insofar as the damages claimed included damages for the loss of expectation of financial support, the court is to disregard the amount (if any) by which the deceased's gross weekly earnings would (but for his death) have exceeded three times the average weekly earnings at the date of the award. An appeal to the Court of Appeal of the Supreme Court of New South Wales was dismissed by majority. By special leave, Mrs Taylor appealed to the High Court. The issue on appeal was whether in the case of an award of damages for the loss of expectation of financial support, the limitation in section 12(2) ought to be construed as applying to the deceased's gross weekly earnings. The High Court, allowing Mrs Taylor's appeal by majority, held that on no view could the word "claimant" as it is used in section 12(2) of the CLA be read as referring to the gross weekly earnings of the deceased. That construction, which was adopted by the primary judge and the majority of the Court of Appeal, could not be reconciled with the language of the statute as enacted by Parliament. The High Court held that the court is not required to disregard the amount by which the gross weekly earnings of Mr Taylor, but for his death, would have exceeded three times the average weekly earnings.

HIGH COURT OF AUSTRALIA 27 July 2016 MINISTER FOR IMMIGRATION AND BORDER PROTECTION & ANOR v SZSSJ & ANOR MINISTER FOR IMMIGRATION AND BORDER PROTECTION & ORS v SZTZI [2016] HCA 29 Today the High Court unanimously held that the Department of Immigration and Border Protection's processes in response to an unauthorised release of personal information of two former protection visa applicants did not deny those applicants procedural fairness. The Department made available on its website an electronic document containing embedded information disclosing the identities of 9,258 applicants for protection visas then in immigration detention ("Data Breach"), including SZSSJ and SZTZI. The Data Breach continued for two weeks. The Department retained external consultants KPMG to investigate the Data Breach. A report produced by KPMG ("KPMG Report") identified 104 unique IP addresses from which the electronic document had been accessed. The Department then notified applicants affected by the Data Breach. It began to conduct "International Treaties Obligations Assessments" ("ITOAs"), through standardised procedures prescribed in a publicly available document ("Procedures Advice Manual"), to assess the Data Breach's effect on Australia's non-refoulement obligations to those applicants. Officers conducting ITOAs were instructed to assume that an affected applicant's personal information may have been accessed by authorities in the country in which he or she feared persecution or other relevant harm. SZSSJ and SZTZI were informed that ITOAs were being conducted in respect of their protection claims in accordance with the Procedures Advice Manual. An abridged version of the KPMG Report having been made publicly available, SZSSJ and SZTZI requested unabridged copies of the KPMG Report. Those requests were refused. SZSSJ commenced proceedings in the Federal Circuit Court of Australia seeking relief in respect of the Data Breach before an ITOA had been completed. SZTZI commenced proceedings in that Court after an ITOA concluded that her claims did not engage Australia's non-refoulement obligations. Both those proceedings were dismissed. The Full Court of the Federal Court of Australia allowed their appeals, holding that they were denied procedural fairness by virtue of the Department's failures adequately to explain the ITOA processes and to provide the unabridged KPMG Report. The Full Court also rejected a submission that the Federal Circuit Court's jurisdiction to hear SZSSJ's and SZTZI's claims was excluded by s 476(2)(d) of the Migration Act 1958 (Cth). By grants of special leave, the Minister appealed to the High Court, which unanimously allowed the appeals. The High Court held that SZSSJ and SZTZI were owed a duty to be afforded procedural fairness in the ITOA process but that they were not denied procedural fairness. The applicants were squarely put on notice of the nature and purpose of the ITOAs and of the issues to be considered. The instruction given to officers conducting ITOAs to assume that SZSSJ's and SZTZI's personal information may have been accessed by authorities in the countries in which they feared persecution or other relevant harm meant that not providing the unabridged KPMG Report did not constitute a denial of procedural fairness. The High Court also held that the Full Court correctly concluded that the Federal Circuit Court had jurisdiction to hear SZSSJ's and SZTZI's claims.

HIGH COURT OF AUSTRALIA 12 November 2020 CALIDAD PTY LTD v SEIKO EPSON CORPORATION [2020] HCA 41 Today the High Court allowed an appeal from a judgment of the Full Court of the Federal Court of Australia. The appeal concerned the scope of a patentee's exclusive statutory rights to exploit an invention which is a product, and whether modifications made to a product to enable its re-use amounted to a making of a new product and infringed the patentee's exclusive rights on that basis. The first respondent manufactures and sells printer ink cartridges under the brand name "Epson" ("the original Epson cartridges"). After the original Epson cartridges have been used, a third party ("Ninestar") obtains them from a number of sources and modifies them to be refilled and re-used. The appellants ("Calidad") acquire the modified cartridges from Ninestar and import them into Australia for sale to the public. The first respondent is the patentee of two patents in which the inventions embodied in the original Epson cartridges are claimed. Section 13(1) of the Patents Act 1990 (Cth) relevantly provides that "a patent gives the patentee the exclusive rights ... to exploit the invention". The term "exploit" is defined to include "make, hire, sell or otherwise dispose of the product" and to "use" it. The respondents (together "Seiko") commenced proceedings in the Federal Court of Australia alleging that Calidad had infringed the first respondent's rights as patentee. The proceedings were conducted by reference to the principle that the purchaser of patented goods that are obtained without restriction on their sale or use has the ordinary rights of ownership because the law implies a full licence (the "implied licence doctrine"). The primary judge found that the modifications made to certain categories of the original Epson cartridges were such as to extinguish any implied licence. On appeal the Full Court of the Federal Court, in separate judgments, found that in none of the categories of the original Epson cartridges were the modifications authorised by any implied licence, and that the modifications to the original Epson cartridges constituted a making of a new embodiment of the invention claimed in the patents. Calidad appealed from the Full Court's decision and asked that the High Court hold that, in cases of this kind, a doctrine that a patentee's monopoly rights of use and sale with respect to a product arising from statute are exhausted upon the first sale of that product (the "exhaustion doctrine") should be applied instead of the implied licence doctrine. Allowing the appeal, a majority of the High Court found that the modifications to the original Epson cartridges did not amount to an impermissible making of a new product and that the exhaustion doctrine should be accepted. The refilled and restored cartridges were merely modified versions of the products sold by Seiko. The modifications were within the scope of the rights of an owner of a chattel to prolong the life of a product and make it more useful. The result reached by the Full Court of the Federal Court would likely have been different if that Court had been in a position to apply the exhaustion doctrine. Matters informing the adoption of a policy of the law as to the scope of the patent rights to sell and use a product pointed strongly to an acceptance of the exhaustion doctrine and away from the implied licence doctrine. Further, principle, authority and the provisions of the Patents Act did not require that the implied licence doctrine continue to be applied.

HIGH COURT OF AUSTRALIA 5 August 2020 BENOY BERRY & ANOR v CCL SECURE PTY LTD [2020] HCA 27 Today the High Court unanimously allowed an appeal from part of a judgment of the Full Court of the Federal Court of Australia. The appeal concerned the assessment of damages under s 82 of the Trade Practices Act 1974 (Cth) ("the TPA") in a case of misleading or deceptive conduct in contravention of s 52 of the TPA where the contravener contended that, but for its misleading or deceptive conduct, it would otherwise have used lawful means to bring about the same result. The appellants entered into an agency agreement with the respondent, a producer of polymer banknotes, pursuant to which the appellants were to act as the respondent's agent in Nigeria in relation to the sale of opacified polymer to the Nigerian government. Under the agreement, the appellants were to receive commissions of 15% on the net invoiced sale value of opacified polymer sold to the Nigerian government. The agreement provided for its automatic renewal every two years unless terminated in accordance with its termination clauses, which provided that the agreement was terminable upon either party giving 30 days' written notice on or after the date 30 days before the contract was due to renew or upon the respondent giving 60 days' written notice at any time. In early 2008, the respondent conceived of a plan to deprive the appellants of the commissions to which they would otherwise be entitled under the agreement. Pursuant to that plan, on 24 February 2008 a representative of the respondent induced the first appellant to sign a letter terminating the agreement by falsely representing that the execution of the letter was a matter of routine administration and that the existing financial terms of the agreement would continue. The appellants commenced proceedings in the Federal Court seeking damages under s 82 of the TPA referable to the amount of the commissions that would have been payable had the termination letter not been signed in reliance on the respondent's misleading or deceptive conduct. The primary judge found that damages should be assessed by reference to the presumed continuation of the agency agreement as automatically renewed every two years up to the date of trial and held that, having deliberately engaged in misleading or deceptive conduct in contravention of s 52 of the TPA, the respondent could not be heard to complain that it had a lawful alternative means of termination which it elected not to take. On appeal, the Full Court considered that the primary judge's approach gave insufficient weight to the counterfactual possibility of lawful termination and concluded that it was to be inferred that, but for the misleading or deceptive conduct, the respondent would lawfully have terminated the agreement on 30 June 2008. By grant of special leave, the appellants appealed to the High Court. Unanimously allowing the appeal, the High Court held that, since it was established on the balance of probabilities that the respondent terminated the agency agreement by deliberately deceiving the first appellant, the natural inference was that the respondent was not and would not have been prepared to terminate the agreement by lawful means. The evidential burden thereupon shifted to the respondent to adduce evidence sufficient to establish that there was a real (not negligible) possibility that it would have been prepared to terminate the agreement by lawful means at some date before June 2010. The respondent adduced no such evidence. To the contrary, the available evidence established was that it was highly improbable that the respondent would have exercised its right to terminate the agreement lawfully prior to June 2010. It followed that the appellants were entitled to damages representing the commissions to which they would have been entitled under the agency agreement up to June 2010.

HIGH COURT OF AUSTRALIA 31 August 2016 THE MARITIME UNION OF AUSTRALIA & ANOR v MINISTER FOR IMMIGRATION AND BORDER PROTECTION & ANOR [2016] HCA 34 Today the High Court unanimously held that a determination made by the Minister for Immigration and Border Protection ("the Minister") pursuant to s 9A(6) of the Migration Act 1958 (Cth) ("the Act") exceeded the limits of the power conferred on the Minister by s 9A(6) and for that reason is invalid. The determination had purported to negate certain visa requirements for non-citizens engaged in the offshore resources industry. The plaintiffs are associations of employees including persons employed in the offshore resources industry. The offshore resources industry is concerned with the exploration and exploitation of offshore natural resources including greenhouse gas, petroleum and other minerals. Since 1982, provisions of the Act have provided to the effect that the migration zone, and therefore the requirement for a non-citizen to hold a visa, extends to non-citizens working on "Australian resources installations". In 2013, the Act was amended to extend Australia's migration zone to non-citizens participating in or supporting an "offshore resources activity" and to impose specified visa requirements in respect of those persons. The amendments also conferred power on the Minister under s 9A(6) to make a determination excepting an operation or activity from the statutory definition of "offshore resources activity". In 2015, the Minister made a determination excepting from that definition all operations and activities to the extent that they use any vessel or structure that is not an Australian resources installation. The purported effect of the determination was thus to negate the operation of the specified visa requirements in relation to non-citizens engaged in operations and activities to the extent that they use any vessel or structure that is not an Australian resources installation. The parties stated a special case and questions of law arising for the opinion of the Full Court. The questions of law were directed to whether the determination was beyond power and therefore invalid, and, if so, what relief should flow from that. The High Court unanimously held that the broad-ranging exception contemplated by the determination exceeded the limited terms of the power conferred on the Minister by s 9A(6) of the Act. The text and context of s 9A(6) imply that its purpose is to provide for limited exceptions for particular activities or operations to which it may be determined from time to time the visa regime should not apply. By entirely negating the extension of the visa regime to non-citizens on vessels and structures that are not Australian resources installations, where those non-citizens are in an area in order to participate in or support an offshore resources activity, the determination purported in effect to repeal the operation of the amending provisions' extension of the visa regime, and thereby to thwart that legislative purpose. Accordingly, the High Court declared the determination is invalid and of no effect.

HIGH COURT OF AUSTRALIA 26 October 2011 ADAM JOHN HARGRAVES v THE QUEEN [2011] HCA 44 Today the High Court dismissed appeals by Adam John Hargraves and Daniel Aran Stoten against the decision of the Court of Appeal of the Supreme Court of Queensland, which had upheld each appellant's conviction for conspiracy to dishonestly cause a loss to the Commonwealth contrary to s 135.4(3) of the Criminal Code (Cth) ("the Code"). The High Court rejected the appellants' argument that the judge at trial had misdirected the jury by inviting it to assess the appellants' credibility as witnesses by reference to their interests in self-protection. Mr Hargraves and Mr Stoten were each charged with one count of conspiracy to defraud the Commonwealth contrary to ss 29D and 86(1) of the Crimes Act 1914 (Cth) ("the Act") and one count of conspiracy to dishonestly cause a loss to the Commonwealth contrary to s 135.4(3) of the Code. Each appellant held shares in Phone Directories Company Pty Ltd ("PDC"). It was alleged that each of the appellants and others had conspired to defraud the Commonwealth by making false representations about the amount of allowable deductions that were to be made from the assessable income of PDC. At trial each appellant was convicted of the offence charged in the second count but acquitted on the first count. In the course of summing up, the trial judge gave directions to the jury on a number of subjects related to "the process of assessing evidence and assessing credibility". On the subject of "Interest" the judge relevantly said: "Does the witness have an interest in the subject matter of the evidence? For example, friendship, self-protection, protection of the witness's own ego." Each appellant appealed to the Court of Appeal against his conviction. The Court of Appeal held that the trial judge had misdirected the jury about how to assess the appellants' evidence but, applying the proviso in s 668E(1A) of the Criminal Code (Q), dismissed the appeals because there had been no substantial miscarriage of justice. Each appellant then appealed to the High Court alleging that the Court of Appeal was wrong to conclude that there had been no substantial miscarriage of justice, and further alleging that application of the proviso in the circumstances of the case contravened s 80 of the Constitution, which provides that "[t]he trial on indictment of any offence against any law of the Commonwealth shall be by jury". The prosecution as respondent argued that the trial judge had not misdirected the jury. The High Court unanimously dismissed the appeals. The High Court considered that the Court of Appeal was wrong to hold that the trial judge had misdirected the jury. Read as a whole, the instructions which the trial judge gave were not such as would deflect the jury from its task of deciding whether the prosecution had proved its case beyond reasonable doubt. The impugned directions given by the trial judge did not occasion a miscarriage of justice on any ground. Accordingly, it was not necessary for the High Court to consider whether the proviso had been applied correctly, and the constitutional issue which the appellants sought to raise was not reached.

HIGH COURT OF AUSTRALIA 12 June 2019 PLAINTIFF M47/2018 v MINISTER FOR HOME AFFAIRS & ANOR [2019] HCA 17 Today the High Court published its reasons for orders made on 13 February 2019 answering questions stated in a special case. The Court unanimously held that the special case raised no factual basis for consideration of the lawfulness of the plaintiff's detention under ss 189 and 196 of the Migration Act 1958 (Cth). Section 189 of the Act provides that an officer who knows or reasonably suspects that a person in the migration zone is an unlawful non-citizen must detain the person. Section 196 of the Act requires that an unlawful non-citizen who is detained under s 189 be kept in immigration detention until he or she is removed from Australia under s 198 or s 199, deported under s 200, or granted a visa. The plaintiff is an unlawful non-citizen who has been in immigration detention since his arrival in the migration zone in 2010. When the plaintiff travelled to Australia, he did so using a Norwegian passport under a name that was different to at least three other names he had previously used in dealings with overseas authorities. The plaintiff destroyed that passport and presented himself to immigration officers in Australia under a different name, purporting to be a "citizen" of Western Sahara. In a number of visa applications between 2010 and 2017, the plaintiff admitted that he had in the past used false names, personal details and passports. In dealings with Australian immigration authorities, the plaintiff gave inconsistent accounts of his personal and family background. The plaintiff also adopted a posture of non-cooperation towards meetings arranged or proposed by those authorities between the plaintiff and the Moroccan and Algerian Embassies in Canberra aimed at establishing his identity and nationality. The plaintiff commenced proceedings in the original jurisdiction of the High Court seeking a declaration that his detention is unlawful because it is not authorised by ss 189 and 196 of the Act. He argued that the mandate in ss 189 and 196 to keep an unlawful non-citizen in custodial detention suspends when removal is not practicable at all, or in the reasonably foreseeable future, so that those provisions have ceased to authorise the plaintiff's detention. Alternatively, the plaintiff claimed that the provisions, in their purported application to him, exceed the legislative power of the Commonwealth because his continued detention is not sufficiently connected to a constitutionally- permissible purpose of administrative detention. While the special case contained no agreement between the parties to the effect that there is no real prospect or likelihood that the plaintiff will be deported from Australia in the reasonably foreseeable future, the plaintiff submitted that the Court should draw inferences to that effect. The Court unanimously held that the necessary inferences could not be drawn because it cannot be assumed that it is beyond the plaintiff's power to provide further information concerning his identity that may shed positive light on his prospects of removal. In particular, in the absence of the plaintiff's cooperation, it cannot be concluded that the options for his removal within a reasonable time have been exhausted. Accordingly, the Court concluded that no factual basis had been established to call into question the lawfulness of the plaintiff's detention.

HIGH COURT OF AUSTRALIA 10 September 2014 MAXWELL v HIGHWAY HAULIERS PTY LTD [2014] HCA 33 Today the High Court unanimously dismissed an appeal from a decision of the Court of Appeal of the Supreme Court of Western Australia, and held that s 54(1) of the Insurance Contracts Act 1984 (Cth) operated to prevent the insurers from refusing to pay claims for indemnity made by the insured, in circumstances where the insured failed to comply with an endorsement forming part of the contract of insurance. Section 54(1) of the Act states that "where the effect of a contract of insurance would, but for [that] section, be that the insurer may refuse to pay a claim, either in whole or in part, by reason of some act of the insured or of some other person, being an act that occurred after the contract was entered into ... the insurer may not refuse to pay the claim by reason only of that act", but that "the insurer's liability in respect of the claim is reduced by the amount that fairly represents the extent to which the insurer's interests were prejudiced" by that act. Section 54(2) provides that the insurer may nonetheless refuse to pay a claim where the relevant act could reasonably be regarded as being capable of causing or contributing to a loss in respect of which insurance cover is provided by the contract. The respondent, Highway Hauliers Pty Ltd, had been refused indemnity for two accidents involving its vehicles. An endorsement forming part of the contract of insurance stated that no indemnity was provided when a vehicle was being operated by a driver unless, among other things, the driver had a PAQS driver profile score of at least 36 (or an approved equivalent). Drivers of the respondent's vehicles in both accidents had not undertaken a PAQS test or an equivalent. It was conceded that the fact that each vehicle was being operated by an untested driver could not reasonably be regarded as being capable of causing or contributing to any loss incurred by the respondent as a result of each accident, and that the insurers' interests were not prejudiced as result of the vehicles being operated, at the time of the accidents, by untested drivers. The respondent was successful in proceedings for indemnity under the policy and for damages for breach of the insurance contract in the Supreme Court of Western Australia and before the Court of Appeal. By special leave, the appellant, a nominated authorised representative of the insurers, appealed to the High Court. Rejecting the appellant's argument that the "claim" to which s 54(1) refers is a claim for an insured risk, the High Court held that, the respondent having made claims in relation to accidents which occurred during the period of insurance, it was sufficient to engage s 54(1) that the effect of the contract of insurance was that the insurer may refuse to pay those claims by reason only of acts which occurred after entry into the contract. Section 54(1) applied to the respondent's claims because the operation of each vehicle by an untested driver was properly characterised as having been by reason of an "act" that occurred after entry into the contract of insurance.

HIGH COURT OF AUSTRALIA 10 November 2009 Manager, Public Information CAL NO 14 PTY LTD t/as TANDARA MOTOR INN & ANOR v MOTOR ACCIDENTS INSURANCE BOARD CAL NO 14 PTY LTD t/as TANDARA MOTOR INN & ANOR v SANDRA SCOTT [2009] HCA 47 A hotel licensee and a customer made an informal arrangement to avoid the potential consequences of the customer being breathalysed. The customer handed over his motorcycle and its keys to the licensee. Later, having consumed a considerable quantity of alcohol, he required their return. On the way home, riding the motorcycle, the customer had an accident and was killed. The High Court today held that neither the proprietor of the hotel nor the licensee had a legal duty to refuse the customer access to the motorcycle and the keys to prevent him suffering an injury which might result from his consumption of alcohol. On 24 January 2002 Shane Scott met a friend at the Tandara Motor Inn at about 5.15pm for a drink. A rumour circulated through the hotel that a police breathalyser was operating near Mr Scott’s home. At the urging of his friend Mr Scott made an informal arrangement with the licensee to hand over the keys of his wife’s motorcycle (which he was driving) and have the motorcycle secured in a storeroom, in order to avoid the police breathalyser. The licensee understood, when the arrangement was made, that Mrs Scott would be called to collect her husband when he wanted to leave. At about 8.15pm Mr Scott decided to go home but emphatically refused the licensee’s offer that his wife be called. He requested the keys to the bike and, to three separate enquiries as to whether he was “right to ride” replied, “Yes, I’m fine”. The licensee retrieved the motorcycle from the storeroom and handed the keys over to Mr Scott. He then rode off. Seven hundred metres from his home, which was about seven kilometres from the hotel, he ran off the road and suffered fatal injuries. At the time of the accident his blood alcohol content was 0.253. In proceedings in the Supreme Court of Tasmania Mrs Scott and the Motor Accidents Insurance Board of Tasmania (MAIB) (which, pursuant to applicable Tasmanian legislation, had paid sums to or on behalf of Mrs Scott) alleged that CAL No 14 Pty Ltd (the proprietor of the Tandara Motor Inn) and the licensee both owed duties of care to Mr Scott, which they had breached. The trial judge held that neither owed any relevant duty of care to Mr Scott. However the Full Court of the Supreme Court of Tasmania, by a majority, held that each of the proprietor and the licensee owed a duty of care to Mr Scott and that their breach of that duty had caused his death. The High Court granted special leave to appeal the Full Court’s decision. In the High Court the MAIB and Mrs Scott (the respondents) argued that the licensee had a duty to comply with the agreement reached between him and Mr Scott to ring Mrs Scott when Mr Scott decided he wanted to go home. In failing to make the call the licensee breached that duty of care, thereby causing Mr Scott’s death. The High Court rejected this argument. Even if the licensee had owed such a duty to Mr Scott it was impossible to conclude on the basis of the evidence either that he could have made such a call or, if he had made such a call, that it would have prevented Mr Scott’s death. The Court also considered that, if the licensee had owed such a duty to Mr Scott, he had complied with the duty when he offered to call Mrs Scott at around 8.15pm - an offer which was rejected. The High Court held that the licensee owed no relevant duty of care to Mr Scott. The informal arrangement for the storage of the motorcycle was made for Mr Scott’s convenience, and did not empower the licensee to deny Mr Scott’s right to recover the keys and the motorcycle, should he request them. The Court also held that the duty argued for by the respondents would have conflicted with Mr Scott’s right and capacity to act in accordance with his own wishes, and would also have been incompatible with other legal duties which bound the licensee. The High Court allowed each appeal and ordered judgment in favour of the proprietor and the licensee.

HIGH COURT OF AUSTRALIA 13 November 2019 HT v THE QUEEN & ANOR [2019] HCA 40 Today the High Court unanimously allowed an appeal from the New South Wales Court of Criminal Appeal ("the CCA") concerning circumstances in which, in a Crown appeal against sentence under s 5D(1) of the Criminal Appeal Act 1912 (NSW), the CCA denied the appellant and her legal representatives access to confidential evidence which it had taken into account when deciding to allow the appeal and exercise its discretion under s 5D(1) to re-sentence the appellant. The appellant pleaded guilty in the District Court of New South Wales to 11 counts comprising fraud offences which each carried a maximum penalty of either five years' or ten years' imprisonment. A factor of significance to the appellant on sentencing was the assistance that she had provided, and was anticipated to provide, to a law enforcement authority as a registered police informer. The sentencing judge was required by statute to take such assistance into account. An affidavit outlining the appellant's assistance was admitted into evidence in the sentencing proceedings and marked "Exhibit C". It included criminal intelligence of a highly sensitive nature. The Crown had seen Exhibit C, but the appellant and her counsel had not seen, and did not see, its contents. The appellant's counsel had agreed to this course in circumstances in which the only alternative that had been presented by the Crown Solicitor was to receive, and have provided to the Court, a highly redacted version of Exhibit C. The sentencing judge specified a combined discount of 35 per cent for the assistance and guilty pleas and sentenced the appellant to an aggregate sentence of three years and six months' imprisonment, with a non-parole period of 18 months. The Crown appealed to the CCA on the ground that the sentence was manifestly inadequate. The CCA allowed the appeal. On appeal, the appellant's counsel sought access to Exhibit C. The Commissioner of Police (NSW), supported by the Crown, opposed access on the basis of public interest immunity ("PII"). The CCA upheld the PII claim, holding that the information came within a particular class of documents to which PII attaches, but allowed disclosure of one sentence from Exhibit C to the appellant's counsel. The CCA proceeded to determine for itself the appropriate discount for the appellant's assistance. It increased the combined discount for her assistance and guilty pleas to 40 per cent, but also increased the aggregate sentence to six years and six months' imprisonment, with a non-parole period of three years and six months. By grant of special leave, the appellant appealed to the High Court. The Court unanimously held that the appellant was denied procedural fairness in the CCA. Having been denied access to Exhibit C, the appellant was denied a reasonable opportunity of being heard, including testing and responding to evidence which was relevant to whether the sentence was manifestly inadequate and, if so, whether the CCA should exercise its discretion to re-sentence the appellant. The Court did not consider the denial of procedural fairness to be justified by PII, holding that the doctrine of PII does not extend to permitting material to be admitted in evidence in proceedings, but kept confidential from one party to those proceedings. Nor was the withholding of Exhibit C permitted by an alternative source of power. In the circumstances of this case, the Court held that the proper exercise of its discretion should have led the CCA to dismiss the Crown's appeal against sentence and that the denial of procedural fairness was, alone, a reason for doing so.

HIGH COURT OF AUSTRALIA 26 April 2007 Public Information Officer BRENT BURGE, TREVOR ROGERS, BENJAMIN WARREN, BOLD GOLD INVESTMENTS, GLEN PETER BOSMAN AND SERGIO EDWARD ZAZA v JOHN HARLEY SWARBRICK Moulds used in the reproduction of a high-speed yacht did not attract copyright protection as works of artistic craftsmanship, the High Court of Australia held today. Mr Swarbrick is a naval architect whose Perth company Swarbrick Yachts International Pty Ltd manufactures fibreglass yachts called the JS 9000, sold in Australia and around the world for up to $65,000. He designed the JS 9000 as a fast boat sailed easily by two or three people. Mr Swarbrick has also designed America’s Cup and Whitbread racing yachts. Mr Rogers and Mr Warren were employed by Swarbrick Yachts in the moulding of hulls and decks but left to work for Bold Gold to build a JS 9000 yacht using a hull and deck moulding which Bold Gold bought from Mr Rogers for $7,500. In late 2002, Mr Swarbrick gave Mr Rogers the moulding in disputed circumstances which have not been resolved. Mr Bosman and Mr Zaza formed Bold Gold Investments for the purpose of acquiring the moulding from Mr Rogers. Mr Burge was engaged as factory operation manager. Work at Bold Gold’s factory ceased in September 2003 after Justice Christopher Carr in the Federal Court of Australia granted Mr Swarbrick an interim injunction. The injunction prevents the manufacture of any mould using the JS 9000 hull and deck mouldings and the reproduction of the object called “the plug”, a hand-crafted full-scale model of the hull and deck sections of a finished JS 9000. The moulds are exact, although inverted, copies of the plug. Section 77 of the Copyright Act provides for the limitation of copyright protection resulting from use of a corresponding but unregistered design but an exception is provided for “a work of artistic craftsmanship”. Justice Carr held that Bold Gold had infringed Mr Swarbrick’s copyright in the plug, the hull mould and the hull moulding, being artistic works, and had engaged in conduct which, but for the interim injunction, would have resulted in infringement of his copyright in artistic works being the deck mould and deck moulding. The Full Court dismissed an appeal. Bold Gold and its personnel then appealed to the High Court. The Court unanimously allowed the appeal. It held that determining whether a work is “a work of artistic craftsmanship” does not turn on assessing the work’s beauty or aesthetic appeal or on assessing any harmony between its visual appeal and its utility. The determination turns on the extent to which the work’s artistic expression is unconstrained by functional considerations. Whether the plug was a work of artistic craftsmanship did not depend on Mr Swarbrick’s intention to design and build a yacht of great aesthetic appeal or on his belief that the JS 9000 had a high level of aesthetic appeal. The visual appeal was secondary to the functional aspects of a sports boat of high speed. The Court held that Justice Carr should have concluded that the plug was not a work of artistic craftsmanship because Mr Swarbrick’s work in designing it was not that of an artist- craftsman. It held that Justice Carr was however correct to describe the hull and deck mouldings as manifestations of the plug. The Court rejected a claim that the mouldings are independently works of artistic craftsmanship. It set aside all orders, including the injunction, made by Justice Carr and held that remaining cross-claims be stood over for determination by the Federal Court.

HIGH COURT OF AUSTRALIA 11 November 2010 COMMISSIONER OF TAXATION v ANSTIS [2010] HCA 40 Today the High Court held that a university student in receipt of youth allowance payments was entitled to claim various self-education expenses as income tax deductions. Symone Anstis was enrolled as a full-time student in a teaching degree at the Australian Catholic University. In the 2006 income year she earned $14,946 in wages as a part-time sales assistant, and $3,622 in youth allowance payments. In her tax return for that period she claimed a $920 deduction for self-education expenses, comprising the depreciation in value of a computer, textbooks and stationery, a student administration fee, supplies for children during her teaching rounds, and travel expenses other than to university. Section 8-1 of the Income Tax Assessment Act 1997 (Cth) ("the 1997 Act") relevantly provides that a person can deduct from their assessable income any loss or outgoing to the extent that it is incurred in gaining or producing their assessable income except to the extent that it is a loss or outgoing of a private or domestic nature. The Commissioner of Taxation disallowed the deduction, and Ms Anstis was unsuccessful in an application for review by the Administrative Appeals Tribunal ("AAT"). In 2009, the AAT's decision was reversed by the Federal Court. The Full Federal Court dismissed an appeal by the Commissioner against that decision. The High Court unanimously dismissed an appeal by the Commissioner of Taxation. The Court held that youth allowance payments amounted to assessable income under the 1997 Act as they fell within the concept of "ordinary income". Because Ms Anstis' entitlement to youth allowance arose from her undertaking full-time study, the expenses claimed were incurred in gaining or producing her assessable income. The Court also held that the expenses were not of a private or domestic nature, and as such were deductible under s 8-1 of the 1997 Act. The Commissioner of Taxation was ordered to pay Ms Anstis' costs.

HIGH COURT OF AUSTRALIA 14 March 2018 JOSHUA JAMES PIKE & ANOR v KYM LOUISE TIGHE AND MICHAEL JAMES TIGHE & ANOR [2018] HCA 9 Today the High Court unanimously allowed an appeal from the Court of Appeal of the Supreme Court of Queensland. The Court held that s 245 of the Sustainable Planning Act 2009 (Q) ("the Act") obliges a successor in title to ownership of a parcel of land created by the reconfiguration of a larger parcel to comply with a condition of the approval for the reconfiguration that should have been, but was not, satisfied by the original owner prior to completion of the reconfiguration. The Townsville City Council ("the Council") approved an application by the then registered proprietors of land for development by way of reconfiguration of an existing lot into two lots. The approval was subject to certain conditions, including a condition ("condition 2") that required that an easement be provided over lot 1 for the benefit of lot 2. The schedule to the approval provided that, unless explicitly stated elsewhere in the approval, all conditions had to be satisfied prior to the Council signing the survey plan. The registered proprietors of the original lot executed an easement in terms which did not reflect condition 2. Despite this omission, the Council approved the relevant survey plan to give effect to the reconfiguration. The registered proprietors later executed a second easement that was relevantly identical to the first easement. Subsequently, the titles for lots 1 and 2 were created and the second easement was registered in relation to each title. The first respondents, the Tighes, were later registered as the owners of lot 1 and the appellants, the Pikes, were registered as the owners of lot 2. In the Planning and Environment Court of Queensland, the Pikes sought a declaration that condition 2 of the development approval had been contravened and an enforcement order directing the Tighes to comply with that condition. The primary judge granted the Pikes' application, holding that s 245 of the Act had the effect that the conditions stipulated in the development approval ran with the land. His Honour held that the Tighes had committed a development offence which warranted the making of an enforcement order to provide the Pikes with an easement conforming to condition 2. The Court of Appeal allowed the Tighes' appeal, holding that s 245 binds only the person permitted by the approval to carry out the subdivision of the original lot. By grant of special leave, the Pikes appealed to the High Court. The Court held that s 245(1) of the Act expressly gives the conditions of a development approval the character of personal obligations capable of enduring in their effect beyond the completion of the development which the development approval authorised. It was held that the land to which the development approval attaches is all the land the subject of the development application. The Court held that, by failing to provide the easement required by condition 2 after being requested to do so, the Tighes contravened s 580 of the Act. Consequently, the Planning and Environment Court could make an enforcement order under ss 601, 604 and 605 requiring the Tighes to fulfil the condition. The High Court therefore allowed the appeal and remitted the matter to the primary judge for the making of final orders.

HIGH COURT OF AUSTRALIA 2 October 2013 WILLIAM DAVID BUGMY v THE QUEEN [2013] HCA 37 Today the High Court unanimously allowed an appeal from a decision of the Court of Criminal Appeal of the Supreme Court of New South Wales, which had increased the sentence imposed on William David Bugmy for intentionally causing grievous bodily harm to a correctional services officer. Mr Bugmy, an Aboriginal Australian who grew up in circumstances of social deprivation, had been sentenced for the offence in the District Court of New South Wales to a term of imprisonment comprising a non-parole period of four years with a balance of term of two years. The Director of Public Prosecutions appealed to the Court of Criminal Appeal on the ground that the sentence was manifestly inadequate. The Court of Criminal Appeal, allowing the Director's appeal, re-sentenced Mr Bugmy for the offence to a non-parole period of five years with a balance of term of two years and six months. In the High Court, Mr Bugmy argued that the Court of Criminal Appeal erred in allowing the Director's appeal without having held that the original sentence was manifestly inadequate and without having considered the exercise of its residual discretion to dismiss an appeal by the Director. Mr Bugmy also argued that the Court of Criminal Appeal erred in holding that the extent to which his deprived background as an Aboriginal Australian could be taken into account in sentencing diminished with time and repeat offending. The High Court unanimously allowed Mr Bugmy's appeal. The High Court held that since the Court of Criminal Appeal had not addressed the question of whether the original sentence was manifestly inadequate, which was in truth the sole ground of the Director's challenge, and had not considered its residual discretion to dismiss the Director's appeal, its authority to re-sentence the appellant had not been enlivened. The High Court therefore set aside the order of the Court of Criminal Appeal relating to the offence and remitted the Director's appeal to that Court. The High Court also held that the same sentencing principles apply irrespective of the identity of a particular offender or his or her membership of an ethnic or other group. Additionally, the joint reasons held that the effects upon an offender of profound deprivation do not diminish over time and should be given full weight when sentencing the offender. However, those effects do not necessarily serve to mitigate an offender's sentence given the conflicting purposes of punishment, such as rehabilitation and personal and general deterrence, which must be balanced in each individual case.

HIGH COURT OF AUSTRALIA 8 November 2017 FRITS GEORGE VAN BEELEN v THE QUEEN [2017] HCA 48 Today the High Court unanimously dismissed an appeal from the Full Court of the Supreme Court of South Australia. The appeal concerned s 353A(1) of the Criminal Law Consolidation Act 1935 (SA) ("the Act"), which confers a novel jurisdiction on the Full Court to determine a second or subsequent appeal against conviction in the case of fresh and compelling evidence. The Full Court had refused the appellant's application for permission to bring a second appeal on the basis of new evidence. In 1973, the appellant was convicted of the murder of a 15 year old school girl at Taperoo Beach in South Australia. The prosecution case was circumstantial and depended upon evidence that, given the time of death, the appellant was one of the few male persons with the opportunity to have committed the offence and upon evidence of the similarity between fibres found on the clothing of the appellant and of the deceased. At trial, the pathologist who conducted the autopsy gave evidence, based on the rate of stomach emptying, that the deceased must have died by 4:30pm. The deceased had last been seen alive at around 4:00pm. There was unchallenged evidence that the appellant left Taperoo Beach not later than 4:30pm. In 2015, the appellant applied to the Full Court for permission to bring a second appeal pursuant to s 353A(1) of the Act. A second or subsequent appeal may only be brought under s 353A(1) if the court is satisfied that there is fresh and compelling evidence that should, in the interests of justice, be considered on the appeal. Evidence is "compelling" if it is reliable, substantial and highly probative in the context of the issues in dispute at the trial. The appellant applied for permission to appeal on the basis of fresh expert evidence of the results of studies conducted since the date of the trial which was said to demonstrate that the pathologist's opinion concerning the rate of stomach emptying was "unequivocally highly erroneous". The fresh evidence falsified the basis for the opinion that the deceased must have been dead by 4:30pm. The majority in the Full Court concluded that the fresh evidence was not "compelling" because it only confirmed the correctness of evidence given at the trial by an opposing defence expert. The majority concluded that the evidence did not possess high probative value in the context of the issues in dispute at the trial, again because the evidence of the time of death based on stomach emptying had been the subject of challenge at trial. By grant of special leave, the appellant appealed to the High Court. The High Court unanimously held that the evidence was "compelling" within the meaning of s 353A(1) and that it was in the interests of justice for it to be considered on appeal. After reviewing the evidence given at the trial, the Court concluded that the prosecution had established beyond reasonable doubt that the deceased was dead by 4:50pm. In the absence of the pathologist's opinion concerning the time of death, there was a window of 20 minutes after the appellant left Taperoo Beach during which the expert evidence could not exclude the possibility that death occurred. The Court held, however, that this did not significantly reduce the improbability of a person other than the appellant being the killer. The Court held that the majority of the Full Court had been right to conclude that there was not a significant possibility that a properly instructed jury, acting reasonably, would have acquitted the appellant even if the pathologist's opinion concerning the time of death had not been admitted. Accordingly, the appeal was dismissed.

HIGH COURT OF AUSTRALIA 29 February 2012 LEX PATRICK WOTTON v THE STATE OF QUEENSLAND & ANOR [2011] HCA 2 Today the High Court held that ss 132(1)(a) and 200(2) of the Corrective Services Act 2006 (Q) ("the Act") are not invalid, in their application to prisoners on parole, for impermissibly burdening the implied constitutional freedom of communication about government and political matters. The Court considered that both sections were reasonably appropriate and adapted to serve a legitimate end in a manner compatible with the maintenance of the constitutionally prescribed system of representative government. The plaintiff is an Aboriginal person who was born on Palm Island and has resided there for a substantial part of his life. On 26 November 2004 the plaintiff participated in a riot on Palm Island following the death of an Aboriginal man, Mr Mulrunji Doomadgee, in police custody. The plaintiff was convicted of rioting causing destruction contrary to ss 61 and 65 of the Criminal Code (Q) ("the Code") and sentenced to six years' imprisonment with a parole eligibility date after two years served. The second defendant ("the Parole Board") is a regional parole board established pursuant to ss 230-240 of the Act. One of its functions is to decide applications for parole orders. Under s 180(1) of the Act a prisoner may apply for a parole order if the prisoner has reached the applicable parole eligibility date. Section 200(2) of the Act provides that a parole order may contain conditions the board reasonably considers necessary to "ensure the prisoner's good conduct" or "stop the prisoner committing an offence." The Parole Board directed that the plaintiff be released on parole, upon 22 conditions identified in the Parole Order as (a)-(v). Conditions (t) and (v) were to be supported as an exercise of the power conferred by s 200(2), and prohibited the plaintiff from attending public meetings on Palm Island without the prior approval of the corrective services officer and from receiving any direct or indirect payment or benefit from the media. Condition (g) of the Parole Order required that the plaintiff "not commit an offence". Section 132(1)(a) of the Act makes it an offence for a person to "interview a prisoner, or obtain a written or recorded statement from a prisoner" including a prisoner released on parole. Section 132(2)(d), however, provides that a person does not commit an offence against s 132(1) if the person has the chief executive's written approval to carry out the relevant activity. Section 7 of the Code deems a person who, among other things, does any act for the purpose of enabling or aiding another to commit an offence, to have taken part in the commission of an offence. If the plaintiff were liable for an offence by the application of s 7, he would breach condition (g) of the Parole Order. The plaintiff brought proceedings in the original jurisdiction of the High Court challenging the constitutional validity of ss 132(1)(a) and 200(2) of the Act, as they apply to prisoners on parole, on the basis that they impermissibly burden the implied constitutional freedom of communication about government and political matters. The plaintiff also challenged conditions (t) and (v) of the Parole Order on the same basis. The Court held unanimously that both s 132(1)(a), as qualified by s 132(2)(d), and s 200(2), comply with this constitutional limitation upon the legislative power of the State. A majority held that both sections effectively burden freedom of communication about government or political matters, but that the sections are nevertheless each reasonably appropriate and adapted to serve a legitimate end in a manner compatible with the maintenance of the constitutionally prescribed system of government. The legitimate end of s 132(1)(a), as qualified by s 132(2)(d), is community safety and crime prevention through humane containment, supervision and rehabilitation of offenders. The legitimate end of s 200(2) is the imposition of conditions the Parole Board considers reasonably necessary to ensure good conduct and to stop the parolee committing an offence. In light of the validity of s 200(2), the validity of conditions (t) and (v) then depends on whether, in implementing them, the Parole Board exceeded the authority conferred upon it by s 200(2). That question did not arise in this proceeding.

HIGH COURT OF AUSTRALIA 18 October 2017 BROWN & ANOR v THE STATE OF TASMANIA [2017] HCA 43 Today the High Court held invalid certain provisions of the Workplaces (Protection from Protesters) Act 2014 (Tas) ("the Protesters Act") in their operation in respect of forestry land and business access areas relating to forestry land. Various provisions of the Protesters Act prohibit "protesters" – that is, persons engaging in conduct in furtherance of, or for the purposes of promoting awareness of or support for, "an opinion, or belief, in respect of a political, environmental, social, cultural or economic issue" – from engaging in certain conduct on "business premises" or "business access areas". "Business premises" relevantly comprises "forestry land", which includes land on which "forest operations" are being carried out. "Business access area" is defined as so much of an area of land, outside business premises, as is reasonably necessary to enable access to an entrance to, or to an exit from, business premises. Police officers may direct any person to leave or stay away from "business premises" or "business access areas" in certain circumstances under pain of arrest or criminal penalty. The plaintiffs were present in the Lapoinya Forest in North West Tasmania when forest operations were being conducted there. The plaintiffs were each arrested and charged with offences under the Protesters Act in relation to their conduct in opposing the logging of part of a coupe in that forest. The charges against each plaintiff were not later pursued. It was not disputed that, but for directions made under the Protesters Act, and to the extent permitted by other laws, the plaintiffs would have gone back to the Lapoinya Forest for the purpose of raising public awareness of logging in that forest. In the High Court, the plaintiffs challenged the validity of certain provisions of the Protesters Act on the basis that the Constitution protects freedom of political communication and that those provisions impermissibly burden that freedom. A majority of the High Court held that, in their operation in respect of forestry land and business access areas relating to forestry land, the impugned provisions of the Protesters Act effectively burdened the implied freedom of political communication. A majority of the Court held that the Protesters Act pursued the legitimate purpose of protecting businesses and their operations by ensuring that protesters do not prevent, hinder or obstruct the carrying out of business activities on business premises. However, by majority, the Court held that the burden imposed by the impugned provisions on the implied freedom of political communication was impermissible because those provisions were not reasonably appropriate and adapted, or proportionate, to the pursuit of that purpose in a manner compatible with the maintenance of the system of representative and responsible government that the Constitution requires. A majority of the Court therefore declared that the impugned provisions were invalid in their operation in respect of forestry land and related business access areas.

HIGH COURT OF AUSTRALIA 13 December 2018 AUSTRALIAN SECURITIES & INVESTMENTS COMMISSION v LEWSKI & ANOR; AUSTRALIAN SECURITIES & INVESTMENTS COMMISSION v WOOLDRIDGE & ANOR; AUSTRALIAN SECURITIES & INVESTMENTS COMMISSION v BUTLER & ANOR; AUSTRALIAN SECURITIES & INVESTMENTS COMMISSION v JAQUES & ANOR; AUSTRALIAN SECURITIES & INVESTMENTS COMMISSION v CLARKE & ANOR [2018] HCA 63 Today the High Court unanimously allowed, in part, four appeals from a decision of the Full Court of the Federal Court of Australia. The High Court reinstated declarations, made by the primary judge, that the respondent director in each of the four appeals ("the four directors") had contravened the Corporations Act 2001 (Cth), and remitted those matters to the Full Court for determination of penalties, disqualification orders, costs, and a cross-appeal to that Court. The orders of the Full Court in relation to Mr Clarke, the director in the fifth appeal, were not in dispute. Each of the four directors was a director of the second respondent, Australian Property Custodian Holdings Ltd ("APCHL"), the responsible entity of a managed investment scheme. On 19 July 2006, the four directors resolved to amend the scheme's constitution (without member approval) to introduce, without corresponding benefit to the members of the scheme, substantial new fees payable to APCHL ("the Amendment Resolution"). One of the new fees was a "Listing Fee" payable upon listing of the scheme's units on the Australian Securities Exchange. On 22 August 2006, all five directors resolved to lodge the amended constitution with the Australian Securities & Investments Commission ("ASIC") ("the Lodgement Resolution"). The amended constitution was lodged the next day and would have taken effect then if valid. In 2007, the directors acted to cause the Listing Fee to be paid to companies associated with one of the directors ("the Payment Resolutions"). Since more than six years had elapsed since 19 July 2006, ASIC was time-barred from bringing proceedings alleging breaches of the Corporations Act in relation to the Amendment Resolution. Instead, ASIC commenced proceedings in the Federal Court of Australia alleging breaches of duties concerning the Lodgement and Payment Resolutions, and contraventions of related party transactions provisions (ss 208 and 209(2)) of the Corporations Act by payment of the Listing Fee. The primary judge held that the Amendment Resolution was invalid for non-compliance with s 601GC(1)(b) of the Corporations Act, and that the contraventions alleged by ASIC were established. His Honour disqualified each of the four directors from managing corporations and ordered pecuniary penalties against all five directors. On appeal, the Full Court set aside the orders and declarations made by the primary judge. The Full Court held that although the Amendment Resolution was invalid the lodged amendments were valid until set aside, and the directors were entitled to act in accordance with the amended constitution that they honestly believed existed. The Full Court did not need to consider ASIC's cross-appeal in relation to the adequacy of the pecuniary penalties and disqualifications imposed on the directors. On appeal, the High Court held that each of the Lodgement Resolution and Payment Resolutions was invalid. Those resolutions adversely affected members' rights, so the amendments did not comply with s 601GC(1) of the Corporations Act. The concept of interim validity relied upon by the Full Court is not supported by the text or protective purpose of s 601GC. The Court held that the duties of APCHL and the directors were not satisfied by an honest or reasonable belief in the validity of the amendments and that each of the alleged breaches had occurred, with the exception of the alleged contravention of s 209. ASIC could not prove that the directors knew that the Listing Fee was unauthorised. This meant that an essential element of the contravention of s 209 was absent.

HIGH COURT OF AUSTRALIA 3 December 2014 CANTARELLA BROS PTY LIMITED v MODENA TRADING PTY LIMITED [2014] HCA 48 Today the High Court, by majority, held that the trade marks "ORO" and "CINQUE STELLE" — registered by the appellant, Cantarella Bros Pty Limited ("Cantarella"), in respect of products including coffee — were inherently adapted to distinguish the goods for which they were registered from the goods of other persons, within the meaning of s 41 of the Trade Marks Act 1995 (Cth). Both Cantarella and the respondent, Modena Trading Pty Limited ("Modena"), advertise, offer for sale and sell coffee products in Australia. Cantarella brought proceedings in the Federal Court of Australia claiming that Modena had infringed its registered trade marks "ORO" and "CINQUE STELLE" (meaning "gold" and "five stars" respectively in Italian). By cross-claim, Modena argued that the registration of the trade marks should be cancelled, on the basis that the trade marks were not inherently adapted to distinguish the goods for which they were registered. At the relevant time, s 41(2) of the Act provided that the Registrar of Trade Marks must reject an application for registration of a trade mark if the trade mark "is not capable of distinguishing the applicant's goods ... in respect of which the trade mark is sought to be registered ... from the goods ... of other persons". Section 41(3) stated that, in deciding whether s 41(2) applies to an application, the Registrar must first take into account the extent to which the trade mark "is inherently adapted to distinguish the designated goods ... from the goods ... of other persons". In the Federal Court, Cantarella succeeded in establishing infringement and Modena failed in its cross-claim. Modena appealed on the cross-claim. The Full Court of the Federal Court allowed the appeal and held that the registration of the trade marks should be cancelled. By special leave, Cantarella appealed to the High Court. The High Court, by majority, allowed the appeal. The Court emphasised that, in determining whether a trade mark consisting of a word or words (English or foreign) is "inherently adapted to distinguish", it is necessary to consider the "ordinary signification" of the word or words to persons in Australia concerned with the goods to which the trade mark is to be applied. The Court found that "ORO" and "CINQUE STELLE" were not shown to convey a meaning or idea sufficiently tangible to anyone in Australia concerned with coffee goods as to be words having a direct reference to the character or quality of the goods. Accordingly, the Court held that the trade marks were inherently adapted to distinguish the goods for which they were registered from the goods of other persons.

HIGH COURT OF AUSTRALIA 26 June 2013 X7 v AUSTRALIAN CRIME COMMISSION & ANOR [2013] HCA 29 Today a majority of the High Court held that the Australian Crime Commission Act 2002 (Cth) ("the Act") did not authorise an examiner, appointed under the Act, to require a person charged with an indictable Commonwealth offence to answer questions before his or her trial about the subject matter of the offence. On 23 November 2010, the plaintiff was arrested and subsequently charged with three indictable Commonwealth offences in relation to alleged conspiracies to import and traffic in a commercial quantity of a controlled drug, and to deal with money that was the proceeds of crime. Whilst in custody, the plaintiff was served with a summons, issued pursuant to the Act, which required him to answer questions before an examiner for the purposes of a special investigation by the Australian Crime Commission ("the ACC"). At the examination, the plaintiff was asked, and answered, questions about the subject matter of the offences with which he had been charged. Following an adjournment of the examination, the plaintiff refused to answer further questions about that subject matter. The plaintiff was told that he would be charged with the offence of failing to answer a question that he was required, by the examiner, to answer. The plaintiff applied to the High Court for an injunction to prevent the ACC, by its officers and examiners, from examining him in relation to the subject matter of the charged offences. The plaintiff sought a declaration that the examination provisions of the Act were beyond the power of the Commonwealth Parliament to the extent that they permitted the compulsory examination of a person charged with an indictable offence about the subject matter of that offence. He also sought a declaration that any such examination contravened Ch III of the Constitution because it interfered with his right to a fair trial. A majority of the High Court held that the examination provisions of the Act did not permit an examiner of the ACC to require a person charged with, but not yet tried for, an indictable Commonwealth offence to answer questions about the subject matter of the charged offence. The Court held that if the examination provisions of the Act were interpreted to permit compulsory examination in such circumstances, the provisions would effect a fundamental alteration to the accusatorial and adversarial process of criminal justice. Such an alteration could only be effected by express statutory language or by necessary implication. The Court held that examination provisions of the Act did not, expressly or impliedly, effect such an alteration. Having so held, the majority of the Court did not need to consider the plaintiff's constitutional arguments.

HIGH COURT OF AUSTRALIA 13 December 2019 FRANZ BOENSCH AS TRUSTEE OF THE BOENSCH TRUST v SCOTT DARREN PASCOE [2019] HCA 49 Today the High Court unanimously dismissed an appeal from a judgment of the Full Court of the Federal Court of Australia concerning whether property held by a bankrupt on trust for another vested in the bankrupt's trustee in bankruptcy. Relevantly, s 5(1) of the Bankruptcy Act 1966 (Cth) defines "the property of the bankrupt" as including "the property divisible among the bankrupt's creditors", from which s 116(2)(a) excludes "property held by the bankrupt in trust for another person". Section 58 of the Bankruptcy Act vests "the property of the bankrupt" in the bankrupt's trustee in bankruptcy, but further provides that, where a Commonwealth, State or Territory law requires registration of a transmission of property and enables a trustee in bankruptcy to be registered as owner, the property vests only in equity, until compliance with the requirements of the law. Section 90 of the Real Property Act 1900 (NSW) is such a State law. The appellant (Mr Boensch) and his former wife were registered as joint proprietors in fee simple of a property subject to the Real Property Act ("the Rydalmere property"). Mr Boensch claimed that, some four years before he was served with a bankruptcy notice, he and his former wife had executed a memorandum of trust over the Rydalmere property and that, later, they executed a deed of trust confirming the settlement upon him as trustee for their children. A transfer of their joint estate to Mr Boensch alone was then executed, but not registered at that time. Thereafter, a sequestration order against Mr Boensch was made, and the respondent (Mr Pascoe) was appointed as his trustee in bankruptcy. Two days later, Mr Pascoe lodged a caveat against dealings over the Rydalmere property, claiming a "Legal Interest pursuant to the Bankruptcy Act 1966" in accordance with his usual practice. On advice from counsel, he also instituted proceedings for relief under s 120 or s 121 of the Bankruptcy Act, which were ultimately dismissed after a determination that the trust was validly constituted. Mr Boensch instituted proceedings in the Supreme Court of New South Wales for compensation under s 74P(1) of the Real Property Act, alleging that Mr Pascoe had lodged, and later refused or failed to withdraw, the caveat without reasonable cause. The primary judge, and the Full Court of the Federal Court on appeal, held that, upon the making of a sequestration order against a bankrupt who holds property subject to the Real Property Act on trust, s 58 of the Bankruptcy Act vested the property in equity in the trustee in bankruptcy subject to the trust. In turn, the primary judge and Full Court held that the Rydalmere property vested in equity in Mr Pascoe on that basis, and that the existence of that caveatable interest sufficed to dismiss Mr Boensch's claim for compensation according to the test of "reasonable cause" laid down in Beca Developments Pty Ltd v Idameneo (No 92) Pty Ltd (1990) 21 NSWLR 459. By grant of special leave, Mr Boensch appealed to the High Court. In dismissing the appeal, the High Court unanimously held that, provided a bankrupt has a valid beneficial interest in trust property (whether vested or contingent), that property will vest in the trustee in bankruptcy under s 58 of the Bankruptcy Act, subject to equities in favour of third parties; and that, where the property is subject to the Real Property Act, it vests forthwith in equity in the trustee in bankruptcy, who may then apply to be registered as legal proprietor, although he or she will continue to hold the estate or interest subject to such equities. In the circumstances, the Court determined that Mr Boensch had a beneficial interest in the Rydalmere property to the extent of his right of indemnity; and, by reason of that interest, an equitable estate in the Rydalmere property vested forthwith in Mr Pascoe, who thus had a caveatable interest. There being no cause to depart from the Beca Developments test, the Court unanimously concluded that Mr Pascoe did not lodge or maintain the caveat without reasonable cause.

HIGH COURT OF AUSTRALIA 20 June 2012 RONALD WILLIAMS v THE COMMONWEALTH OF AUSTRALIA & ORS [2012] HCA 23 Today the High Court, by majority, held that a funding agreement between the Commonwealth of Australia and Scripture Union Queensland ("SUQ") for the provision of chaplaincy services at a State school in Queensland ("the Funding Agreement") is invalid. A majority of the Court also held that payments made by the Commonwealth to SUQ under the Funding Agreement were not supported by s 61 of the Constitution. SUQ, a public company, entered into the Funding Agreement with the Commonwealth to provide certain chaplaincy services at the Darling Heights State School in Queensland ("the School") in accordance with certain guidelines ("the NSCP Guidelines"). Those services included assisting the School and community "in supporting the spiritual wellbeing of students" and "being approachable by all students, staff and members of the school community of all religious affiliations". The Funding Agreement was entered into pursuant to the Commonwealth's National School Chaplaincy Program ("the NSCP"). The funding of the NSCP is not provided under legislation, but under a series of funding arrangements administered by the Commonwealth of which the Funding Agreement is one example. Ronald Williams, the plaintiff, is the father of four children who attended the School. In 2010, Mr Williams commenced proceedings in the original jurisdiction of the High Court challenging the Commonwealth's authority to enter into the Funding Agreement with SUQ, to draw money from the Consolidated Revenue Fund ("the CRF") for each of the financial years from 2007-2008 to 2011-2012 inclusive, and to pay the appropriated moneys to SUQ pursuant to the Funding Agreement. In addition to the Commonwealth, the Minister for School Education, Early Childhood and Youth, and the Minister for Finance and Deregulation were defendants to the proceeding (collectively, "the Commonwealth parties"). Under the Rules of the Court, the parties agreed to submit a special case to the High Court for determination. Relevantly, the special case asked: 1. Does Mr Williams have standing to challenge the Funding Agreement, the drawing of money from the CRF, and the Commonwealth's payments to SUQ? Is the Funding Agreement invalid because it is: (a) beyond the executive power of the Commonwealth under s 61 of the Constitution, or (b) prohibited by s 116 of the Constitution? 3. Was the drawing of money from the CRF to make payments under the Funding Agreement authorised by the relevant Appropriation Acts? 4. Were the payments made by the Commonwealth to SUQ pursuant to the Funding Agreement: (a) beyond the executive power of the Commonwealth under s 61 of the Constitution, or (b) prohibited by s 116 of the Constitution? Standing (Question 1): The High Court unanimously held that Mr Williams had standing to challenge the validity of the Funding Agreement. A majority of the Court also held that Mr Williams had standing to challenge the validity of each of the payments made to SUQ, and that it was unnecessary to answer whether Mr Williams had standing to challenge the Commonwealth's appropriations of money from the CRF. Executive Power (Questions 2(a) and 4(a)): By majority, the High Court held that the Funding Agreement and payments made to SUQ under that agreement were invalid because they were beyond the executive power of the Commonwealth. In the absence of legislation authorising the Commonwealth to enter into the Funding Agreement, the Commonwealth parties relied upon the executive power granted by s 61 of the Constitution. Relevantly, s 61 provides that the executive power of the Commonwealth "extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth". A majority of the High Court held that, in the absence of statutory authority, s 61 did not empower the Commonwealth to enter into the Funding Agreement or to make the challenged payments. In particular, a majority of the Court held that the Commonwealth's executive power does not include a power to do what the Commonwealth Parliament could authorise the Executive to do, such as entering into agreements or contracts, whether or not the Parliament had actually enacted the legislation. A majority also held that s 44 of the Financial Management and Accountability Act 1997 (Cth) did not provide the Commonwealth with the necessary statutory authorisation to enter into the Funding Agreement or to make payments to SUQ under that agreement. Freedom of Religion (Questions 2(b) and 4(b)): The High Court unanimously dismissed that part of Mr Williams' challenge based on s 116 of the Constitution. Relevantly, s 116 provides that "no religious test shall be required as a qualification for any office or public trust under the Commonwealth". Mr Williams contended that the definition of "school chaplain" in the NSCP Guidelines imposed a religious test for that office, and that the position of a "school chaplain" was an "office ... under the Commonwealth". The High Court held that the school chaplain engaged by SUQ to provide services at the School did not hold office under the Commonwealth. The chaplain did not enter into any contractual or other arrangement with the Commonwealth. Appropriations (Question 3): In light of the answer given to Question 1, a majority of the High Court held that it was unnecessary to answer this question.

HIGH COURT OF AUSTRALIA 10 August 2012 THE QUEEN v KHAZAAL [2012] HCA 26 Today the High Court unanimously allowed an appeal from a decision of the Court of Criminal Appeal of the Supreme Court of New South Wales, which had allowed an appeal by the respondent, Belal Saadallah Khazaal, against his conviction for making a document connected with assistance in a terrorist act, knowing of that connection, contrary to s 101.5(1) of the Criminal Code (Cth) ("the Code"). In September 2003, the respondent compiled and edited an electronic book ("the e-book"), which he subsequently submitted for publication online. The e-book comprised material written in Arabic concerning Islam and jihad that the respondent had downloaded from the internet, together with a dedication, foreword and other short passages written by the respondent. Among other things, the e-book advocated the widespread use of assassination, described numerous methods of carrying out assassinations, and identified particular targets for assassination. The respondent was charged under s 101.5(1) of the Code with making a document "connected with ... assistance in a terrorist act" while knowing of that connection. Section 101.5(5) of the Code provides that no offence is committed under s 101.5(1) "if the ... making of the document was not intended to facilitate ... assistance in a terrorist act". Under s 13.3 of the Code, the respondent bore the burden of "adducing or pointing to evidence that suggest[ed] a reasonable possibility" that the making of the e-book was not intended to facilitate assistance in a terrorist act ("the evidential burden"). The respondent stood trial in the Supreme Court of New South Wales in August and September 2008. He did not give evidence at his trial, but did point to evidence adduced by the prosecution concerning his status as an accredited journalist and researcher with an academic interest in Islam, the circumstances in which he made the e-book, and some parts of the e-book's contents. The respondent argued that this evidence suggested a reasonable possibility that the making of the e- book was not intended to facilitate assistance in a terrorist act. The trial judge rejected this argument. The respondent was convicted and sentenced to 12 years' imprisonment, with a non- parole period of 9 years. The respondent successfully appealed to the Court of Criminal Appeal. A majority of the Court of Criminal Appeal held that the evidence pointed to by the respondent was sufficient to discharge the evidential burden imposed by ss 13.3 and 101.5(5) of the Code. By special leave, the prosecution appealed to the High Court. The prosecution argued that the evidence pointed to by the respondent was not sufficient to discharge the evidential burden imposed by ss 13.3 and 101.5(5) of the Code. By notice of contention, the respondent argued that the trial judge had misdirected the jury by not giving adequate directions in relation to the words "connected with ... assistance in a terrorist act" in s 101.5(1). The High Court unanimously allowed the appeal. In relation to the argument on the appeal, the Court held that the evidence pointed to by the respondent did not suggest a reasonable possibility that the making of the e-book was not intended to facilitate assistance in a terrorist act. In relation to the notice of contention, the Court held that no error had been shown in the trial judge's directions.

HIGH COURT OF AUSTRALIA 8 February 2005 CHIEF COMMISSIONER OF STATE REVENUE v DICK SMITH ELECTRONICS HOLDINGS PTY LTD The High Court of Australia today held that stamp duty had been correctly assessed in a transaction involving the sale of shares. Dick Smith Electronics agreed in 2001 to buy all the shares in InterTAN Australia Ltd, which operates the Tandy Electronics and RadioShack stores. The shares were held by InterTAN Inc, based in Delaware, and InterTAN Canada Ltd. InterTAN Australia is incorporated in New South Wales. The Commissioner assessed duty at $684,838.20, rather than the $531,330.60 proffered by Dick Smith. The difference was due to the Commissioner’s conclusion that the consideration for the transaction was $114,139,649, not $88,555,552 as Dick Smith contended. The difference of $25,585,097 was a pre-transfer dividend which Dick Smith, under the purchase agreement, was obliged to fund via a loan to InterTAN Australia. The NSW Supreme Court and the majority of the Court of Appeal accepted Dick Smith’s argument that the relevant amount on which duty should be assessed was $88,555,552. The Commissioner appealed to the High Court, which allowed the appeal by a 3-2 majority. The High Court majority held that the Commissioner’s position that the intended result of the transaction was that the North American vendors received $114,139,649 was correct. The vendors had bargained for an obligation on Dick Smith to bring about that result. The requirement that Dick Smith fund InterTAN Australia to discharge the debt created by the declaration of the dividend formed part of the consideration for the transfer of the shares to Dick Smith.

HIGH COURT OF AUSTRALIA 7 December 2016 DANIEL MATTHEW SIMIC & ORS v NEW SOUTH WALES LAND AND HOUSING CORPORATION & ORS [2016] HCA 47 to construe Today the High Court unanimously allowed an appeal and cross-appeals from a decision of the Court of Appeal of the Supreme Court of New South Wales. The High Court held that it was not possible instruments ("the Undertakings") and underlying finance applications ("the applications") as references to the first respondent, the New South Wales Land and Housing Corporation ("the Corporation"). However, the High Court held that the Undertakings and the applications should be rectified to refer to the Corporation. to a non-existent entity references two In March 2010, the Corporation and the third respondent ("Nebax") executed a contract for the demolition of existing buildings and construction of unit blocks ("the Construction Contract"). The Corporation required Nebax to provide, as security, unconditional undertakings by a financial institution to pay on demand. Mr Simic, a director of Nebax, gave the details required to generate the Undertakings and the applications to an employee of the second respondent ("ANZ"). The appellants ("the guarantors") were guarantors of Nebax's obligations to ANZ. There were errors in the details Mr Simic gave, such that the Undertakings and the applications referred to a non-existent "Department", not the Corporation. The Corporation later sought to make a demand on ANZ for payment under each Undertaking. ANZ refused the demand on the basis that the Corporation was not the entity named in the Undertakings. The Corporation issued proceedings in the Supreme Court of New South Wales seeking payment. The primary judge (Kunc J) held that the Undertakings should be construed as referring to the Corporation. His Honour entered judgment for the Corporation against ANZ and declared that ANZ was entitled to be indemnified by Nebax. The Court of Appeal dismissed an appeal by the guarantors. By grant of special leave, the guarantors appealed to the High Court. ANZ and the Corporation each sought special leave to cross-appeal, seeking rectification of the Undertakings and the applications so that each referred to the Corporation. The High Court held that it was not possible to construe the Undertakings as being in favour of the Corporation because such a construction was inconsistent with both the express terms of the Undertakings and the commercial purpose of such instruments. It therefore allowed the guarantors' appeal. However, the High Court also held that the Undertakings and the applications should be rectified to refer to the Corporation because it was the actual common intention of the parties that the Undertakings should enure to the benefit of the party with which Nebax entered into the Construction Contract – namely, the Corporation. It therefore granted special leave to cross- appeal and allowed each of ANZ's and the Corporation's cross-appeals.

HIGH COURT OF AUSTRALIA 26 April 2005 COMMISSIONER OF TAXATION v JOANNA STONE Prize money, grants and sponsorship received by a professional athlete constituted income and was subject to taxation, the High Court of Australia held today. Ms Stone, while working as a Queensland police officer, competed in the 1996 and 2000 Olympic Games as well as in other international competitions during her athletic career, winning first place in the World Cup and Goodwill Games in 1998 and several national titles. In 1998-99, on top of her salary of $39,832 as a senior constable, she received prize money of $93,429, grants from the Australian Olympic Committee and Queensland Academy of Sport (QAS) amounting to $27,900, sponsorships worth $12,419, and $2,700 in appearance fees, a total of $136,448. The Commissioner contended that all these sums formed part of her assessable income. Ms Stone objected to her tax assessment and the Commissioner disallowed the objection. Ms Stone appealed to the Federal Court of Australia, where she conceded that sponsorship in cash or kind was assessable income. Justice Graham Hill found that all the receipts except for the QAS grant constituted income assessable as it was the reward for or incidental to her carrying on a business. The Full Court of the Federal Court allowed an appeal in part, holding that neither prize money nor grants were assessable income but appearance fees were. The Commissioner appealed to the High Court, with an undertaking to pay Ms Stone’s costs. She cross-appealed from the ruling that appearance fees were assessable income. The Commissioner argued that because Ms Stone had turned her athletic talent to account for money, the returns were business income and that her contention that she had never sought to profit financially from her sport was irrelevant. Ms Stone argued that she was not conducting a business and her motivation was a desire to excel and to represent her country. The High Court unanimously allowed the appeal and dismissed the cross-appeal and held that all her income from sport was assessable.

HIGH COURT OF AUSTRALIA 10 October 2018 ANCIENT ORDER OF FORESTERS IN VICTORIA FRIENDLY SOCIETY LIMITED v LIFEPLAN AUSTRALIA FRIENDLY SOCIETY LIMITED & ANOR [2018] HCA 43 Today the High Court unanimously dismissed an appeal from a judgment of the Full Court of the Federal Court of Australia and by majority allowed a cross-appeal from the same judgment. The appellant was ordered to account to the respondents in the sum of $14,838,063. Lifeplan Australia Friendly Society Limited ("Lifeplan"), through its subsidiary Funeral Plan Management Pty Ltd ("FPM"), engaged in the funeral products business, providing investment products to meet the cost of pre-arranged funerals. Ancient Order of Foresters in Victoria Friendly Society Limited ("Foresters") was also involved in the funeral products business although its market share was significantly smaller than that of Lifeplan. Woff and Corby were employed by Lifeplan in management positions at FPM. In 2010, they approached Foresters with a plan to divert as much of Lifeplan's existing funeral products business as possible to Foresters. They formalised their proposal in a five-year business concept plan ("the BCP") which utilised Lifeplan's confidential information and business records to win over Lifeplan's client base and take that business for Foresters. Following the implementation of the BCP, the Foresters funeral products business proved highly successful. Foresters' annual inflows into its funeral products business grew from $1.6 million in 2010 to $24 million in 2012. Over the same period, Lifeplan's inflows correspondingly fell from $68 million to $45 million. Lifeplan and FPM commenced proceedings against Woff and Corby for breaches of fiduciary duties and contraventions of the Corporations Act 2001 (Cth), and subsequently joined Foresters, alleging that it had knowingly assisted in those breaches. At an early stage, Lifeplan and FPM elected to claim an account of profits for the entire value of Foresters' funeral products business, rather than damages. The primary judge found Woff and Corby had breached fiduciary and statutory duties and Foresters had knowingly assisted in those breaches. While the primary judge ordered an account of profits in equity and under the Corporations Act against each of Woff and Corby, his Honour declined to order an account of profits against Foresters, finding that confidential information was not itself "used to generate profits" by Foresters. The Full Court allowed Lifeplan's appeal on the basis that the primary judge's formulation of the causal nexus required was unduly narrow. The Full Court ordered Foresters to account for profits in the sum of $6,558,495, representing the net present value of profits made and projected to be made on contracts entered during the five-year period of operation contemplated by the BCP, with a modest deduction of six months. On appeal to the High Court, Foresters contended that the Full Court erred in concluding there was a sufficient causal nexus between the profits and Foresters' knowing participation in the breaches of Woff and Corby. The High Court held that Foresters' knowing assistance of Woff and Corby's breaches had at least some bearing on the success of its funeral products business, rendering it liable to disgorge profits thereby generated. A majority of the Court allowed Lifeplan's and FPM's cross-appeal on the basis there was no reason in principle to restrict Foresters' obligation to disgorge less than the entire capital value of the business it acquired. The Court held Foresters should account to Lifeplan and FPM in the sum of $14,838,063.

HIGH COURT OF AUSTRALIA 8 August 2018 THE COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA v MARTIN ANDREW THOMAS; THE COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA v MARTIN ANDREW PTY LTD; THE COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA v THOMAS NOMINEES PTY LTD; THE COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA v MARTIN ANDREW THOMAS [2018] HCA 31 Today the High Court unanimously allowed two appeals (one in part) and dismissed two appeals from the Full Court of the Federal Court of Australia. The High Court held that the Full Court erred in concluding that "directions" given by the Supreme Court of Queensland pursuant to s 96 of the Trusts Act 1973 (Q) determined conclusively, against the Federal Commissioner of Taxation, the application of Div 207 in Pt 3-6 of the Income Tax Assessment Act 1997 (Cth) to certain franked distributions. Division 207 sets out the effects, for tax, of beneficiaries of a trust having received income which includes franked distributions. In certain income years, the trustee of a trust ("the Trustee") received franked distributions within the meaning of Div 207. The Trustee passed resolutions that sought to distribute franking credits between beneficiaries separately from, and in different proportions to, the income comprising the franked distributions. The resolutions were intended to maximise refundable tax offsets and "stream" the income between beneficiaries to attract the most favourable marginal tax rates. In the appeals, the assumption that franking credits could be so distributed was referred to as the "Bifurcation Assumption". The income tax returns for the Trustee and beneficiaries were prepared and lodged on the basis that the Bifurcation Assumption was legally effective under Div 207. Those returns produced deemed assessments. After the Commissioner gave notice of an audit, the Trustee applied for and obtained from the Supreme Court of Queensland "directions" that the resolutions gave effect to the Bifurcation Assumption, which was correct in law. The Commissioner completed his audit and issued Notices of Amended Assessment. Two beneficiaries filed appeals, pursuant to Pt IVC of the Taxation Administration Act 1953 (Cth), contending that Executor Trustee and Agency Co of South Australia Ltd v Deputy Federal Commissioner of Taxes (SA) (1939) 62 CLR 545; [1939] HCA 35 required that the "directions" conclusively determined the rights between the parties, even if the result was wrong in law. The primary judge dismissed the appeals, holding that the Bifurcation Assumption was flawed in law, and Executor Trustee did not require the Commissioner to give effect to the "directions". On appeal, the Full Court held, applying Executor Trustee, that the "directions" determined conclusively against the Commissioner the application of Div 207 to the franked distributions. By grant of special leave, the Commissioner appealed to the High Court. Before the High Court, the Trustee and two beneficiaries accepted that the Bifurcation Assumption was legally ineffective under Div 207. The High Court held that the "directions" did not determine, against the Commissioner, the application of Div 207.

HIGH COURT OF AUSTRALIA 14 June 2006 Public Information Officer AVON PRODUCTS PTY LIMITED v COMMISSIONER OF TAXATION Avon could not claim back overpayments of sales tax because it failed to prove that the excess amounts were not passed on to customers, the High Court of Australia held today. Avon representatives sell cosmetics, fragrance, toiletries and other products door to door. Before introducing any product, Avon undertook a cost analysis and assigned each product a “regular price”, based on prices charged by competitors on comparable products or on what the market would bear, and including an acceptable profit margin. Most products were sold at discount during Avon’s 18 marketing campaigns a year and these discounts still covered Avon’s costs, including sales tax. The overpayments occurred before Avon obtained a sales tax private binding ruling in 1999 from the Australian Tax Office which determined that the taxable value of its products should be the “store cost of the goods plus 11.63 per cent”. This taxable value was lower than that on which Avon had previously based its payments. It submitted claims for credits of $3,610,261 for the period from March 1993 to August 1999. There is no dispute that this amount was overpaid. The Sales Tax Assessment Act contains a statutory code for relief against overpaid sales tax. The credit that can be claimed is the amount of overpaid tax the claimant has not passed on to customers. Therefore, the Act takes a stance against automatic recovery of sales tax merely because it has been overpaid. The claimant must show they have borne the cost and not passed it on. The taxpayer bore the onus of proof of the extent that the overpayment has not been passed on. The Commissioner disallowed Avon’s claims on the basis that Avon had passed on the overpaid sales tax to its customers at point of sale and had not subsequently refunded them. In the Federal Court of Australia, Justice Graham Hill upheld the Commissioner’s decision. He held that Avon’s goods were always priced at a figure which exceeded cost plus sales tax and ensured a profit. Justice Hill held that Avon failed to satisfy the burden of proof imposed by the Act. The Full Court, by majority, dismissed an appeal. It held that where the facts disclose that the taxpayer has set prices at a level to ensure that they exceed costs, including sales tax, it will be difficult for the taxpayer to satisfy the onus under the Act to show it has borne the tax burden itself. Avon appealed to the High Court, which unanimously dismissed the appeal. Avon contended that a tax is only passed on if the price at which goods are sold is increased by the amount of the tax. It submitted that since its regular prices remained constant and were fixed by reference to market benchmarks without reference to cost, and since its discounting policy remained constant, then its test was satisfied. Since buyers were no worse off when sales tax was overpaid and Avon was worse off, the tax was absorbed by Avon. However, the Court held that such tests were different from the language in the Act and that in the ordinary course of things sales tax will be passed on. It held that Avon had failed to demonstrate any error in the approach of the majority of the Full Court in rejecting Avon’s purported test and in affirming Justice Hill’s decision that Avon had failed to establish that it had not passed on the overpaid sales tax.

HIGH COURT OF AUSTRALIA 7 December 2004 BHP BILLITON LIMITED v TREVOR JOHN SCHULTZ, WALLABY GRIP LIMITED, WALLABY GRIP (BAE) PTY LTD (in liquidation), WALLABY GRIP (NSW) PTY LTD (in liquidation), AMACA PTY LTD (formerly James Hardie and Co Pty Ltd) The South Australian Supreme Court was the appropriate forum in which to determine damages for Mr Schultz’s asbestos-related personal injuries, the High Court of Australia held today. Mr Schultz, who lives in SA, suffers from asbestosis and asbestos-related pleural disease. He worked at the BHP shipyard in Whyalla from 1957 to 1964 and from 1968 to 1977. In 2002 he commenced proceedings in the New South Wales Dust Diseases Tribunal (DDT) against BHP, claiming negligence, breach of contract and breach of statutory duty. Mr Schultz also took action against the other corporations for negligent manufacture and supply of materials used in Whyalla. These other companies took no part in the NSW Supreme Court or the High Court, but there are cross-claims between them and BHP. Subject to proof of Mr Schultz’s exposure and diagnosis, liability of the companies is not in issue and the trial will be limited to assessment of damages. BHP unsuccessfully applied to the Supreme Court before Justice Brian Sully to remove the matter from the DDT into that Court pursuant to the Jurisdiction of Courts (Cross-vesting) Act and then to transfer the matter to the SA Supreme Court under section 5. The law of SA would be the substantive law governing Mr Schultz’s claim and the lay witnesses and most medical witnesses are in SA. Mr Schultz argued that NSW law could govern some of the claims against the other companies and the cross-claims. Section 11A of the Dust Diseases Tribunal Act provides that the DDT may award damages at a future date if the injured person develops another dust-related condition. Mr Schultz sought an order from the DDT preserving his right to make such a future claim. Under section 30B of the SA Supreme Court Act, there is only one assessment of damages, although there is scope for an interim payment. Under section 5 of the Cross-vesting Act, the court in which proceedings are to be determined is dictated by the interests of justice. It is not necessary that the first court should be a clearly inappropriate forum, rather that the second court is more appropriate. The capacity of a court to deal with a case expeditiously may be in the interests of justice. Justice Sully refused BHP’s application, holding that the interests of justice did not require the making of orders for the removal and cross-vesting of the proceedings. He held that the choice of forum of the plaintiff (Mr Schultz) was not to be lightly overridden and that he should retain the advantages of section 11A of the DDT Act. BHP appealed to the High Court. (No appeal lay to the NSW Court of Appeal.) The Court unanimously allowed the appeal. It held that the emphasis given to both Mr Schultz’s choice of forum and section 11A as factors against making the transfer order involved error in the application of section 5 of the Cross-vesting Act. By a 4-3 majority the Court held it need not remit the matter to the NSW Supreme Court for reconsideration, instead ordering that Mr Schultz’s case be removed from the DDT into the Supreme Court and then transferred to the SA Supreme Court.

HIGH COURT OF AUSTRALIA Public Information Officer 29 August 2007 SHU-LING CHANG AND TAI-HSING CHANG v LAIDLEY SHIRE COUNCIL An application to subdivide land for a housing development was rightly refused by the Laidley Council as it did not comply with legislation then in force, the High Court of Australia held today. In 2004 the Changs applied to Laidley Council to subdivide their 16.67-hectare block at Blenheim near Laidley in south-eastern Queensland into 25 lots. The reconfiguration was not permitted under revised planning provisions. Under the Council’s 1996 town plan, the subdivision was permissible. A new planning scheme adopted in March 2003 meant the 25 lots would be too small as new rural subdivisions had to be at least 100 hectares, the reconfiguration could not take place, and the value of the Changs’ interest would be reduced. However, Queensland’s 1997 Integrated Planning Act allowed affected land owners to seek redress from their Council within two years of the adoption of such a planning scheme. Within that period, expiring in March 2005, the Changs could make a “development application (superseded planning scheme)” (DA(SPS)). The Council could then either pay compensation or consent, in whole or in part, to the development sought. The Changs lodged their DA(SPS) in December 2004. However in September 2004 the earlier Act was superseded by the Integrated Planning and Other Legislation Amendment Act (IPOLA), which cut short the two-year period. IPOLA provided for a completely revised regional planning scheme for south-eastern Queensland. The Council did not accept the Changs’ DA(SPS) as the development was contrary to the draft regulatory provisions for the regional plan provided for by IPOLA. The Changs sought to recover compensation for the diminished value of their land. The Planning and Environment Court held that the Changs’ development application was not a “properly made application”. The Court of Appeal refused them leave to appeal. The Changs then appealed to the High Court. They argued their entitlement to make a DA(SPS) had accrued under the 1997 Act, that they had applied for the DA(SPS) within the two-year leeway provided by that Act, and that because the 2004 changes did not expressly or impliedly repeal the compensation provisions of the 1997 Act their entitlement to compensation survived even if the Council could no longer give approval for their proposed development. The Court unanimously dismissed the appeal. It held that the effect of IPOLA was to deprive the Changs of what would otherwise have been an entitlement to compensation if they had made a DA(SPS) within time. Under IPOLA, the Changs’ application was not a properly made application. As the application was made after IPOLA came into effect, their application fell to be determined in accordance with the legislative provisions that were then in force. The Court held that IPOLA did not have retrospective operation and that no right to compensation had accrued to the Changs.

HIGH COURT OF AUSTRALIA 29 August 2007 Public Information Officer CGU INSURANCE LIMITED v AMP FINANCIAL PLANNING PTY LTD (two matters) AMP was not entitled to be indemnified by its insurer for payouts it made to investors because it had not established by appropriate evidence that the payments were reasonable, the High Court of Australia held today. In 1999, AMP entered into a professional risks insurance contract with CGU. That same year, Ashok Pal and Anthony Howarth, who conducted the Macquarie Advisory Group (MAG) and were representatives of AMP, were found to have invested $3.4 million of clients’ funds in a company already in deep financial trouble and the investors lost their money. Mr Pal and Mr Howarth became bankrupt, and the Australian Securities and Investments Commission (ASIC) banned them from the securities industry and from company management. On becoming aware of the large losses, AMP notified CGU, its insurer, and sought indemnity under the policy. AMP drew up a protocol for handling claims in which AMP would notify CGU of each claim and prepare a liability report and CGU would decide within 14 days whether to settle or defend the claim. CGU agreed in principle to the protocol, but held off deciding whether it would indemnify AMP for the losses and repeatedly told AMP to act as a “prudent uninsured”. AMP, under pressure from ASIC to resolve claims promptly and after repeated requests to CGU for determination of AMP’s liability, went ahead and paid out more than $3.24 million for 47 claims in October and November 2001. CGU eventually denied AMP indemnity and AMP commenced proceedings alleging that CGU was in breach of its policy. It sought damages for the investors’ claims paid, interest and investigation costs and sought a declaration that AMP was entitled to indemnity for outstanding claims. In the Federal Court, Justice Peter Heerey dismissed the application. He held that AMP had no belief that CGU had accepted liability and that AMP paid the settlement amounts because it considered this was in its own best interests to do so, not because of any representation by CGU that it would not require AMP to prove its liability to the investors. AMP had also not shown that the settlements were reasonable and had failed to take into account whether section 819(4) of the Corporations Law could have made MAG rather than AMP liable. The Full Court of the Federal Court, by majority, allowed an appeal by AMP and remitted to Justice Heerey questions on whether AMP was induced by CGU into settling the claims. CGU appealed to the High Court. The Court, by a 4-1 majority, allowed the appeal. It held that nothing in CGU’s conduct conveyed a representation to AMP that it would not be required to prove its liability to investors to receive indemnity. Nothing in AMP’s conduct showed that it relied on such a representation. AMP had no belief that CGU accepted liability, instead making payments for its own commercial reasons to ensure legal proceedings for determining investors’ claims did not occur and to preserve relations with ASIC. It was open to Justice Heerey to conclude that AMP had not shown the settlements were reasonable. In the Full Court of the Federal Court, CGU had cross-appealed against Justice Heerey’s costs order. The Full Court, in allowing the appeal by AMP, did not deal with the cross-appeal, and CGU brought a second appeal to the High Court. The High Court ordered that the matter should be remitted to the Full Court for consideration of CGU’s cross-appeal.

HIGH COURT OF AUSTRALIA 19 June 2007 Public Information Officer ANNE MARGARET WHITE v DIRECTOR OF MILITARY PROSECUTIONS AND COMMONWEALTH OF AUSTRALIA Offences committed by Australian Defence Force personnel can be tried by Defence disciplinary bodies rather than by civilian courts, the High Court of Australia held today. Ms White is a chief petty officer in the Royal Australian Navy, serving on HMAS Manoora. At a house and then a hotel at Williamstown in Victoria in June 2005, she allegedly engaged in acts of indecency, or assaults, against five other navy women. The women were all off duty and not in uniform and the incidents did not occur on Commonwealth property. Ms White has been charged under the Defence Force Discipline Act. She denies the charges. Before the charges could be heard, Ms White brought a challenge in the High Court to the Act’s provisions which create the offences and lay down the procedure for trial and punishment of such offences. She asked the High Court to overrule three previous decisions. Ms White seeks an order prohibiting the Director of Military Prosecutions from proceeding with the charges, a declaration that she may only be tried by a federal court exercising the judicial power of the Commonwealth under Chapter III of the Constitution, and a declaration that provisions of the Act purporting to confer jurisdiction on courts martial and defence force magistrates are invalid because they are not courts invested with federal jurisdiction in accordance with section 71 of the Constitution. Ms White argued that trial and punishment involve an exercise of the judicial power of the Commonwealth and may occur only within the limits of Chapter III. She claimed that this is because the defence power conferred by section 51(vi) of the Constitution is subject to Chapter III and the separation of powers inherent in the Constitution. Secondly, she argued that only exclusive disciplinary offences could be dealt with by the military justice system. These are offences which have no civilian equivalent, pertain to service discipline, and involve no exposure to imprisonment. Ms White said that even if accepted that military tribunals do not exercise the judicial power of the Commonwealth, this only applies when such tribunals deal with disciplinary offences. The Court unanimously rejected Ms White’s first argument, rejected the second by a 6-1 majority and declined to overrule any earlier decisions. In respect of the first argument, the Court held that the defence power authorises Parliament to grant disciplinary powers to be exercised judicially by officers of the armed forces. The power exercised is not the judicial power of the Commonwealth but is supported solely by section 51(vi) to maintain or enforce discipline. In relation to the second argument, the majority held that the distinction between exclusive disciplinary offences and other offences is not feasible. Whether an offence is to be regarded as an offence against military discipline or a breach of civil order will often depend, not upon the elements of the offence, but upon the circumstances in which it is committed. Proceedings may be brought for a service offence in a tribunal established outside Chapter III if those proceedings can reasonably be regarded as substantially serving the purpose of maintaining or enforcing service discipline.

HIGH COURT OF AUSTRALIA Manager, Public Information 16 June 2010 DUPAS v THE QUEEN [2010] HCA 20 On 15 April 2010, the High Court pronounced orders dismissing this appeal, in which the appellant sought to challenge a refusal by the Victorian Supreme Court and Court of Appeal to grant a permanent stay of his murder trial. Today the Court published its reasons for making those orders. The appellant was charged with the murder, on 1 November 1997, of Mersina Halvagis at Fawkner Cemetery in Melbourne. He applied to the trial judge for a permanent stay of the trial on the ground that the adverse pre-trial publicity about his two previous murder convictions and the current murder charge made a fair trial impossible. The appellant had been convicted in August 2000 of the murder of Nicole Patterson and again in August 2004 of the murder of Margaret Maher. He had been sentenced to life imprisonment upon both convictions. All three women had been killed by knife attack. The two prior convictions and the murder charge had received extensive media publicity over a number of years in newspapers and books, and on internet sites and television programs. The appellant had been identified in the media from an early stage in police investigations as a suspect in the murder of Ms Halvagis. The trial judge refused the application and concluded that a jury, properly directed, could be trusted to decide whether the appellant's guilt had been established on the basis of the evidence led in court and without regard to information from other sources. The appellant was convicted on 9 August 2007 and thereafter sentenced to life imprisonment. The Court of Appeal of the Supreme Court of Victoria held that the trial judge had not erred in refusing to grant a permanent stay. A majority of the Court, however, allowed the appeal on other grounds and ordered a re-trial. The appellant was granted special leave to appeal to the High Court on 12 February 2010 on the question of the permanent stay only. The appellant sought orders for the imposition of a permanent stay or a stay until further order. At the conclusion of the hearing on 15 April 2010, the Court pronounced orders dismissing the appeal. In its reasons published today, the Court held that the relevant question in determining whether to grant a stay is whether an apprehended defect in a trial is of such a nature that there is nothing the trial judge could do in the conduct of the trial to relieve against its unfair consequences. The Court held that the apprehended defect in the appellant's trial – the prejudice to the appellant arising out of extensive adverse pre-trial publicity – was capable of being remedied by the trial judge giving thorough and appropriate directions to the jury. The trial judge committed no error of principle in deciding that the appellant's trial, if allowed to proceed, would be fair. Furthermore, in all of the circumstances of this trial, the pre-trial publicity was not such as to give rise to an unacceptable risk that it had deprived the appellant of a fair trial.

HIGH COURT OF AUSTRALIA 31 August 2005 MOHAMMAD ARIF RUHANI v DIRECTOR OF POLICE (THROUGH THE SECRETARY OF JUSTICE AS DIRECTOR OF PUBLIC PROSECUTOR) [No 2] The High Court of Australia today upheld a decision of the Supreme Court of Nauru which in turn upheld the lawfulness of Mr Ruhani’s detention in Nauru. Mr Ruhani is an Afghan national of apparently Hazara ethnicity. He was among a group of 319 asylum seekers rescued by the Norwegian vessel MV Tampa in the Indian Ocean in August 2001. The group was denied access to Australia to make refugee claims and was transferred to an Australian navy ship and taken to Nauru in December 2001. Mr Ruhani was then aged about 18. Nauru issued a special-purpose visa for entry and stay in Nauru on humanitarian grounds. The visa, renewed every six months, was subject to certain restrictions governing residence and movement within Nauru. Australia’s Immigration Department found that Mr Ruhani was not a person in need of protection under the Refugees Convention, a decision affirmed on review. In the Supreme Court of Nauru, Chief Justice Barry Connell heard an application for an order for Mr Ruhani’s release based on a claim that his detention was unlawful according to the law of Nauru. Chief Justice Connell discharged the order nisi, holding that Nauru’s principal immigration officer (PIO) could issue a special-purpose visa under Nauru’s Immigration Act without an application by or the consent of the visa holder. He held that asylum seekers who entered and were accommodated on Nauru in accordance with the conditions in the special-purpose visa were not unlawfully detained. Chief Justice Connell also rejected a submission that the visa went beyond the power conferred upon the PIO to impose such conditions as the PIO thought fit because they constituted a form of punishment that could only be imposed by a court. In the High Court, Mr Ruhani sought a declaration that the visa was invalid and of no effect and sought an order absolute for habeus corpus directed to the Director of Police to order Mr Ruhani’s release from detention. He also reagitated his submission that the PIO exceeded their power to attach conditions to visas. The High Court held that the attack upon the validity of the conditions was rightly rejected by the Supreme Court because it was for Nauru, as a sovereign state, to annex what conditions it wished to permission given to an alien to enter it. Mr Ruhani objected to the visa being issued as he had neither applied for nor consented to it, and no-one was authorised to apply on his behalf. The High Court noted that Nauru’s Immigration Regulations do not state that no visa may be issued except upon application, but instead provide for a variety of visa classifications to cover many circumstances, including for emergency entrants and entrants without passports. The Court, by a 4-1 majority, dismissed the appeal and held that Mr Ruhani had shown no error in Chief Justice Connell’s decision.

HIGH COURT OF AUSTRALIA 11 November 2004 TOLL (FGCT) PTY LTD (formerly FINEMORES GCT PTY LTD) v ALPHAPHARM PTY LTD, EBOS GROUP LIMITED AND RICHARD THOMSON PTY LTD In a case relating to a transport contract the High Court of Australia today reaffirmed the principle that a party who has signed a written contract is bound by the terms of the contract, despite the party not taking the trouble to read the document. Alphapharm supplied customers across Australia during the 1999 flu season with the vaccine Fluvirin which it bought from Ebos, a New Zealand company which was South Pacific distributor for the British-made Fluvirin. Ebos had a sub-distribution agreement with Alphapharm in Australia. Richard Thomson, a medical supplies wholesaler and Ebos’s wholly-owned Australian subsidiary, looked after the collection, storage and regulatory approval for Fluvirin sent to Australia. By arrangement with Alphapharm, it undertook to arrange for the vaccine to be stored at Finemores’ warehouse in Greenacre in Sydney and to be transported by Finemores on refrigerated road transport to other destinations. Richard Thomson’s operations manager signed a written application for credit but failed to read the 15 conditions of contract on the back of the application despite a request to do so printed just above where he signed the form. Conditions included that customers and customers’ associates, and not Finemores, bore responsibility for any loss or damage and for taking out insurance. Finemores collected 72,240 doses of Fluvirin from the airport. At the warehouse Alphapharm’s business manager Ronald van der Pliujm prepared the goods for delivery to his customers, including inserting temperature monitors. Consignments of 28,160 each for Queensland Health and New South Wales Health were rejected because they had become too cold and could not be used. In the NSW Supreme Court Alphapharm and Ebos sued Finemores and obtained judgment for $683,061.86 in damages and interest for Finemore’s alleged negligence. Although Alphapharm fell within the contract’s definition of “customer’s associate” it argued it was not bound by the contract. Alphapharm claimed the conditions on the credit application did not form part of the contract, and it denied that Richard Thomson had authority to act as agent on its behalf. Both these arguments succeeded in the Supreme Court and in the Court of Appeal. The High Court unanimously allowed the appeal and rejected both of Alphapharm’s arguments. It was bound by the conditions on the credit application. Richard Thomson was acting as agent for Alphapharm in contracting for Finemores’ services. The Court held that rights and liabilities of parties to a contract are determined objectively, not by the subjective beliefs or understandings of the parties themselves. A signature on a contract carried significance, particularly when it appears below a request to read the document first. There was no question of misrepresentation, duress or mistake vitiating the contract. The contract was binding according to its terms, and the exclusion clauses applied to relieve Finemores of liability.

HIGH COURT OF AUSTRALIA 5 August 2015 [2015] HCA 26 Today the High Court unanimously allowed an appeal from a decision of the Full Court of the Supreme Court of South Australia. The High Court held that, in dismissing a charge of drink- driving against the respondent, the Magistrates Court of South Australia had erroneously excluded evidence of the respondent's breath analysis reading, and the Supreme Court of South Australia and the Full Court had erred in upholding that decision on appeal. Section 47B(1)(a) of the Road Traffic Act 1961 (SA) makes it an offence for a person to drive a motor vehicle while the prescribed concentration of alcohol is present in his or her blood. Under certain conditions, the Act creates a presumption that the concentration of alcohol indicated by a breath analysing instrument as being present in the driver's blood was the concentration of alcohol in the driver's blood at the time of the breath analysis ("the presumption"). The presumption may only be rebutted if the defendant arranges for a sample of his or her blood to be taken by a medical practitioner in accordance with prescribed procedures and adduces evidence that analysis of the blood demonstrates that the breath analysing instrument gave an exaggerated reading. The respondent was stopped by police while driving a motor vehicle. A breath analysing instrument recorded that the concentration of alcohol in his blood was 0.155 grams of alcohol per 100 millilitres, which was above the prescribed concentration. The respondent was supplied with a blood test kit and arranged for a sample of his blood to be taken by a medical practitioner. It was not possible to analyse the sample because the medical practitioner failed to take a sufficient quantity of blood. The respondent was charged with an offence against s 47B(1)(a) of the Act, to which he pleaded not guilty in the Magistrates Court. The magistrate held that the breath analysis reading should be disregarded because the respondent, through no fault of his own, had lost his only opportunity to adduce evidence which may have rebutted the presumption. His Honour dismissed the charge. The police appealed unsuccessfully to the Supreme Court and subsequently, by leave, to the Full Court. Both Courts held that it had been open to the magistrate to exclude the evidence of the breath analysis reading in the exercise of a "general unfairness discretion" to exclude probative evidence untainted by illegality, impropriety or risk of prejudice where its admission would be unfair to the defendant in that it would make the trial unfair. By grant of special leave, the police appealed to the High Court. In unanimously allowing the appeal, the Court held that admission of the evidence of the breath analysis reading would not make the respondent's trial unfair in the relevant sense. The respondent did not have a statutory right to have a sample of blood taken and dealt with in accordance with the prescribed procedures; rather, the onus was upon him to bring himself within the confines of the rule allowing for rebuttal of the presumption. Having determined that the magistrate erred in excluding the evidence of the breath analysis reading, the Court held the appropriate course was to remit the matter for further hearing before the Magistrates Court.

HIGH COURT OF AUSTRALIA Public Information Officer 5 August, 2003 KAMALJEET DHANHOA v THE QUEEN The convictions of the appellant, Mr Dhanhoa, for kidnapping and robbery in company with wounding were upheld by the High Court of Australia. The victim, Anthony Herbert Schembri, invited four men with whom he had been playing pool at the Bridge Hotel, Rozelle, in Sydney, back to his flat to smoke marijuana on January 19, 1999. At the flat, he was head-butted, grabbed around the throat, kicked and punched, and stabbed in the liver and lungs, and his wallet was stolen. He escaped as his attackers tried to bundle him into their car at knifepoint to take him to an automatic teller machine. He later found he had also been stabbed in the back. Mr Schembri could not say with certainty who committed each assault but said all four men participated. Two neighbours said they glimpsed Mr Schembri scuffling with three men. Mr Schembri identified Mr Dhanhoa from photographs as one of the four men. Mr Dhanhoa's fingerprints were found at the flat. He claimed in evidence at his trial in the New South Wales District Court that he had already left the flat and caught a taxi home before the attack took place. The principal question for the jury was whether Mr Dhanhoa was still at the flat when the attack occurred. Mr Dhanhoa initially told police he had never been to either Mr Schembri’s flat or the Bridge Hotel but at his trial admitted having been to both places. He also told police he knew nothing about the stabbing or the robbery. He appealed on the grounds that the trial judge's directions and warnings about identification evidence, and lies, were inadequate. His convictions were upheld by the NSW Court of Criminal Appeal. The High Court, by a 4-1 majority, dismissed his appeal. The majority held that section 116 of the Evidence Act, which is concerned with warnings to juries about warning juries in relation to identification evidence, was not mandatory unless the reliability of the identification was disputed. Mr Dhanhoa’s identification as one of the four men who went to the flat was not in dispute; only whether he was still present during the attack. On the issue of inconsistencies between what Mr Dhanhoa told police and his evidence at the trial, the prosecutor ran the case on the basis that such inconsistencies raised questions about his reliability. They were not relied upon as evidence of guilt. The Court held that there were no material misdirections.

HIGH COURT OF AUSTRALIA 14 February 2018 MAXCON CONSTRUCTIONS PTY LTD v MICHAEL CHRISTOPHER VADASZ (TRADING AS AUSTRALASIAN PILING COMPANY) & ORS [2018] HCA 5 Today the High Court unanimously dismissed an appeal from the Full Court of the Supreme Court of South Australia. The Court held that an adjudicator appointed to resolve a disputed payment claim under the Building and Construction Industry Security of Payment Act 2009 (SA) ("the Security of Payment Act") did not make an error of law, and that in any event the Supreme Court’s jurisdiction to quash non-jurisdictional errors of law on the face of the record had been ousted by the Security of Payment Act. Maxcon Constructions Pty Ltd ("Maxcon") and Mr Vadasz were parties to a construction subcontract under which Mr Vadasz agreed to design and construct piling for a development. Certain "retention provisions" in the subcontract required Mr Vadasz to provide a sum of money as security. Maxcon was required to release the retention sum within a certain time after a certificate of occupancy for the development was issued under State planning legislation. In 2016 Mr Vadasz served on Maxcon a payment claim under the Security of Payment Act, stating that a progress payment was due. Maxcon responded that it was entitled to deduct the retention sum and other administrative charges from the amount in the payment claim. Mr Vadasz applied for adjudication of his payment claim. The adjudicator concluded that the retention provisions made release of the retention sum contingent or dependent on the operation of another contract, namely the head contract between Maxcon and the owner of the land. The retention provisions were therefore found to be "pay when paid provisions" which were ineffective by reason of the Security of Payment Act, and Maxcon was not entitled to retain the retention sum. Maxcon commenced judicial review proceedings in the Supreme Court, alleging that the adjudicator was wrong to decide that the retention provisions were “pay when paid provisions”, and seeking an order setting aside the adjudicator's determination. The primary judge dismissed the application for judicial review. By majority, the Full Court dismissed Maxcon's subsequent appeal, following the decision of the Court of Appeal of the Supreme Court of New South Wales in Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd (No 2) (2016) 344 ALR 355 on the basis that the decision dealt with uniform national legislation and was not plainly wrong. By grant of special leave, Maxcon appealed to the High Court. The Court unanimously concluded, consistently with the decision in Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [2018] HCA 4, that the Security of Payment Act ousted the jurisdiction of the Supreme Court to make an order in the nature of certiorari quashing the adjudicator's determination for error of law on the face of the record that is not a jurisdictional error. The High Court further held that the adjudicator did nor err in law in determining that the retention provisions were “pay when paid provisions”. Under the subcontract, the due dates for payment of the retention sum depended on the issue of a certificate of occupancy, which in turn required satisfactory completion of the head contract. Therefore, the due dates for payment of the retention sum were contingent or dependent upon the operation of the head contract.