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HIGH COURT OF AUSTRALIA 20 July 2006 Public Information Officer COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA v CITYLINK MELBOURNE (formerly known as Transurban City Link Limited) Concession fees paid by Citylink to the State of Victoria are allowable tax deductions, the High Court of Australia held today. The State contracted with Citylink to design, construct and operate the City Link system of roads connecting three Melbourne freeways. City Link opened on 15 August 1999 with tolls imposed from 3 January 2000. Under a concession deed signed in 1995, Victoria contributed the land and enabled Citylink to levy tolls. In return, Citylink pays an annual concession fee of at least $95.6 million during the first 25 years of the concession period of 1996 to 2034 then $45.2 million a year for nine years and $1 million a year until it eventually transferred the road system to Victoria. Citylink pays the concession fees by issuing to Victoria financial instruments known as concession notes, which entitle Victoria to claim payment at a later date after certain conditions are satisfied. Citylink claimed its concession fees as tax deductions in the 1996, 1997 and 1998 years of income. It claimed $31.25 million in 1995-96 and $95.6 million in both 1996-97 and 1997-98. Allowing the deductions would reduce to nil Citylink’s taxable income for these years. The Commissioner of Taxation disallowed the deductions. The Federal Court dismissed an appeal but the Full Court of the Federal Court allowed an appeal by Citylink. The Commissioner appealed to the High Court. The Commissioner contended that the Full Court erred in holding that the concession fees were deductible on two bases. First, the Commissioner submitted that the fees were not “incurred” in producing Citylink’s assessable income in the relevant income years because Victoria’s right to redeem the concession notes depended upon various conditions being satisfied, including some relating to traffic levels, revenue and cash flow. Citylink argued the fees were outgoings to produce income because Citylink was committed to make payments each June and December once City Link was in profit. Fees owed were referable to particular years of income even if the concession notes were not redeemed in that year. The Commissioner’s second submission was that the concession fees were not deductible because they were outgoings of a capital nature, paid to secure to Citylink a profitable business structure. Citylink argued the fees were a periodic recurrent expense. The High Court, by a 5-1 majority, dismissed the appeal and upheld the decision of the Full Court on both bases. First, the deduction was “incurred” in the relevant year of income because Citylink was subject to a contractual liability to pay the concession fees twice a year and this obligation did not depend on the commercial operating risks of City Link. It did not matter that Citylink paid the fees by issuing concession notes which it did not have to pay until a later date. Secondly, the High Court held that the concession fees were not of a capital nature as Citylink did not acquire permanent ownership rights over the roads or land. All rights revert to Victoria at the end of the concession period. Citylink’s rights were to build, operate and derive profit from the roads for a set period of time. Unlike periodic payments on the purchase price of a capital asset, the concession fees are periodic licence fees for infrastructure from which Citylink derives income. Since the fees were “incurred” in the relevant income year, and were not of a capital nature, the Court held that they satisfied the test for deductibility at their full face value for each of the income years in which they were claimed as deductions.

HIGH COURT OF AUSTRALIA 12 April 2023 KINGDOM OF SPAIN v INFRASTRUCTURE SERVICES LUXEMBOURG S.À.R.L. & ANOR [2023] HCA 11 Today, the High Court unanimously dismissed an appeal from the Full Court of the Federal Court of Australia relating to the interpretation of the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (1965) ("the ICSID Convention"). The issues before the Court concerned whether, and to what extent, entry by a foreign State into the ICSID Convention, and concomitant agreement to Arts 53, 54 and 55, constitutes a waiver of foreign State immunity under the Foreign States Immunities Act 1985 (Cth) ("the Act") from Australian court processes concerning recognition and enforcement of arbitral awards. The respondents, relying on the Energy Charter Treaty (1994), commenced arbitral proceedings against the Kingdom of Spain ("Spain") under the ICSID Convention. The respondents obtained an award of €101m and brought proceedings in the Federal Court of Australia to enforce the award under the International Arbitration Act 1974 (Cth), which gives effect to the ICSID Convention in Australia. The issue was whether Spain had waived foreign State immunity under ss 9 and 10 of the Act, which relevantly provide that a foreign State is immune from the jurisdiction of Australian courts except where it has submitted to that jurisdiction by agreement (including by a treaty). The primary judge held that Spain's agreement to Arts 53, 54 and 55 constituted a waiver of its immunity from recognition and enforcement, but not from execution of the award. Spain was ordered to pay the respondents €101m together with interest on that sum. On appeal, the Full Court held that immunity from recognition had been waived, but immunity from court processes of execution (and perhaps also from enforcement) had not. New orders were made, including for the award to be recognised as binding and for judgment to be entered against Spain for €101m. The High Court, in dismissing the appeal, held that as Spain was the subject of a binding ICSID award, its agreement to Arts 53, 54 and 55 of the ICSID Convention amounted to a waiver of foreign State immunity from the jurisdiction of Australian courts to recognise and enforce, but not to execute, that award. The Court held that the international law principle that a waiver of immunity under s 10 of the Act must be "express" should not be understood as denying the ordinary and natural role of implications in elucidating the meaning of express words. The Court determined that the words "recognition", "enforcement", and "execution" in Arts 53, 54 and 55 of the ICSID Convention are used separately and with different meanings. Recognition is the obligation to recognise the award as binding, enforcement is the obligation to enforce any pecuniary obligations imposed by the award as if the award were a final judgment of a court in the Contracting State, and execution refers to the means by which a judgment enforcing the award is given effect. There is no real difference between the English text and the French and Spanish texts of Arts 53, 54 and 55 in respect of the distinction between recognition and enforcement, on the one hand, and execution, on the other. The Court concluded that the orders made by the courts below were properly characterised as orders for recognition and enforcement.

HIGH COURT OF AUSTRALIA Public Information Officer 27 September 2007 EAST AUSTRALIAN PIPELINE PTY LIMITED v AUSTRALIAN COMPETITION AND CONSUMER COMMISSION AND AUSTRALIAN COMPETITION TRIBUNAL The Competition Tribunal had been correct in overruling a decision of the ACCC concerning charges to be fixed for third-party access to a natural gas pipeline, the High Court of Australia held today. East Australian Pipeline (EAPL) purchased the natural gas pipeline running from Moomba in South Australia to Sydney from the Commonwealth in 1994 for $534.3 million. The regulatory regime required EAPL to establish a system for third-party access to the pipeline within the framework of national competition policy. If the ACCC withheld approval it could approve its own access arrangement. Section 8 of the National Third-Party Access Code for Natural Gas Pipeline Systems sets out the objectives to be considered by the ACCC in determining whether to approve tariffs charged to third parties. The charges are calculated by reference to the capital assets of the pipeline, in particular the initial capital base (ICB). In 1999, EAPL proposed an access arrangement with an ICB value of $666.7 million based on the depreciated optimised replacement cost of the pipeline. In 2003, after various exchanges and revisions, the ACCC ultimately rejected EAPL’s proposed access arrangement and substituted its own, which set an ICB of $545.4 million. EAPL then applied to the Competition Tribunal for a review of the ACCC’s decision. The Tribunal found that the ACCC had wrongly exercised its discretion by substituting its own access arrangement. It was incorrect and unreasonable for the ACCC to put aside known valuation methods and devise a method which adjusted the optimised replacement cost in a novel fashion after misconstruing section 8.10 of the Code. Section 8.10 deals with the methodology for establishing the ICB for existing pipelines. The Tribunal construed section 8.10 as setting out the 11 factors to be considered in order and that the sequential process mandated by the section was important to the integrity of any determination of an ICB. It varied the ACCC’s decision and substituted an ICB of $834.66 million. The ACCC sought judicial review in the Full Court of the Federal Court which concluded that the ACCC had not erred in exercising its discretion in substituting its own access arrangement and utilising a novel method for calculating the ICB. While the Full Court recognised that the ACCC did not use known valuation methods in determining the ICB, it concluded that the ACCC had considered all the factors set out in section 8.10. EAPL appealed to the High Court. The Court unanimously allowed the appeal and held that the Tribunal was correct in its construction and in its application of section 8.10.

HIGH COURT OF AUSTRALIA 20 June 2012 TRENT NATHAN KING v THE QUEEN [2012] HCA 24 Today the High Court by majority dismissed an appeal by Trent Nathan King against two convictions under s 318(1) of the Crimes Act 1958 (Vic) (“the Act”) for “culpable driving causing death”. The Court held that there was no miscarriage of justice in the way in which alternative verdicts for the lesser offence of “dangerous driving causing death” under s 319(1) of the Act were left to the trial jury. In 2005 Mr King was the driver of a car which was involved in a collision. Mr King’s two passengers died in the collision. Following a jury trial in the County Court of Victoria Mr King was found guilty of two counts of culpable driving causing death and sentenced to a term of imprisonment. Mr King filed applications in the Court of Appeal of the Supreme Court of Victoria for leave to appeal against his convictions and sentence. The Court of Appeal allowed the appeals against sentence, and reduced his total effective sentence, but otherwise dismissed the applications for leave to appeal. By special leave, Mr King appealed to the High Court against the decision of the Court of Appeal dismissing his applications for leave to appeal against his convictions. The sole ground of appeal related to the standard of culpability applied in the direction of the trial judge to the jury concerning the lesser alternative verdicts of dangerous driving causing death contrary to s 319(1) of the Act. The trial judge told the jury that dangerous driving was established by proof that the accused drove in a way that “significantly increased the risk of harming others” and that it was not necessary for the Crown to prove that the driving was “deserving of criminal punishment”. The jury’s authority to return a verdict of guilty of an offence against s 319(1) was conferred by s 422A(1) of the Act, which conditioned the power to deliver an alternative verdict upon the jury not being satisfied that the accused was guilty of the offence charged under s 318. Mr King complained that the trial judge had pitched the level of culpability for the lesser offence of dangerous driving causing death at such an erroneously low level that the jury would have been less inclined to consider convicting him of that offence. At the time it was made, the trial judge’s direction accorded with existing authority in Victoria. However, the subsequent decision of the Court of Appeal in R v De Montero (2009) 25 VR 694 construed s 319(1) as imposing a higher level of culpability. It required driving that created “a considerable risk of serious injury or death to members of the public.” It also required conduct by the accused in his manner of driving which was such as to merit punishment by the criminal law. De Montero was applied by the Court of Appeal in Mr King’s case. The High Court by majority dismissed Mr King’s appeal. The majority held that, subject to one qualification, the trial judge did not err in her direction to the jury relating to the alternative verdicts of guilty of offences against s 319. The decision in De Montero was wrong and should not be followed. The qualification was that it was unnecessary and possibly confusing for her Honour to direct the jury that, in order to prove the commission of an offence against s 319(1), the Crown did not have to satisfy them that the accused’s driving was deserving of criminal punishment. That direction did not, however, constitute a departure from trial according to law or a miscarriage of justice.

HIGH COURT OF AUSTRALIA 6 December 2005 APPLICANT VEAL OF 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS AND REFUGEE REVIEW TRIBUNAL A failure to inform a visa applicant of adverse information so that the applicant could have the opportunity to respond led to a denial of procedural fairness, the High Court of Australia held today. Applicant VEAL and his wife, an Eritrean couple, applied for protection visas in 2001 but were refused. They sought review by the Refugee Review Tribunal. In the meantime the Immigration Department received a letter about VEAL. The letter, which included the author’s name and address, said VEAL had admitted being accused of killing a prominent political figure in Eritrea and that VEAL supported and worked for the Eritrean government. The writer asked that the information remain confidential. The department sent the letter to the RRT but the RRT did not tell VEAL about the letter or the allegations in it. It affirmed the decision not to grant protection visas. The RRT, in its written reasons, said it gave no weight to the letter as it had been unable to test the claims. The Federal Court allowed an appeal, but the Minister successfully appealed to the Full Court of the Federal Court. VEAL then appealed to the High Court. The Court unanimously held that procedural fairness required the RRT to inform VEAL of the existence of the letter and the substance (although not the detail) of its contents before affirming the refusal to grant a visa, although the RRT was correct in this case not to have provided the letter or its author’s identity to VEAL. The Court held that because the information was credible, relevant and significant the RRT was required to give VEAL an opportunity to deal with that information. Deciding it could reach the conclusion to withhold a visa on other grounds did not discharge the obligation on the RRT to accord VEAL procedural fairness by giving him an opportunity to respond. The Court held that the material in the letter did pertain to whether he had a well-founded fear of persecution for reasons covered by the Refugees Convention. The Court held that the application of principles of procedural fairness depend on the particular circumstances of each case, so there are no absolute rules about disclosure of information from an informer or disclosure of the informer’s identity to an interested person such as VEAL. In this case, procedural fairness at least required that VEAL know the substance of what was said about him in the letter. It did not however mean that the RRT was bound to give him a copy of the letter, or to tell him who sent it, or even to tell him the allegations were in writing. This balanced the principles of procedural fairness against the public interest in ensuring that informers came forward with information about asylum seekers.

HIGH COURT OF AUSTRALIA 8 September 2004 JOHN VINCENT MULHOLLAND v AUSTRALIAN ELECTORAL COMMISSION Provisions of the Commonwealth Electoral Act concerning registration of political parties that require registered parties to have 500 members and that none of those members be shared with another party were constitutionally valid, the High Court of Australia held today. The AEC in 2001 asked Mr Mulholland, the registered officer of the Democratic Labor Party, to provide names and details of at least 500 DLP members so it could check that these people were indeed DLP members and ensure there was no overlap with other parties’ membership. Mr Mulholland refused to comply with the request and the AEC gave notice, pursuant to section 137 of the Electoral Act, that it was considering deregistering the DLP. Mr Mulholland argued that the 500 rule and the no-overlap rule infringed the implied constitutional freedom of political communication because the ballot paper was a form of communication with voters and an unregistered party cannot have its name printed on it. The scheme for registering parties to receive public funding was introduced in 1983, with the DLP registered since 1984, and the no-overlap rule was added to the scheme in 2000. Mr Mulholland issued proceedings in the Federal Court seeking an order restraining the AEC from deregistering the party on grounds including that the 500 and no-overlap rules were invalid. Justice Shane Marshall dismissed the application and the Full Court dismissed an appeal. The Court unanimously dismissed the appeal in May and today handed down its written reasons for judgment. Mr Mulholland submitted that the two rules contravened the constitutional requirement of direct choice by the people because they impaired the making of an informed choice by voters and they unreasonably discriminated between candidates from registered and unregistered parties. The Court rejected both reasons, holding that electors retained a full and free choice between competing candidates and that Parliament’s requirement of a minimum level of public support for a party before it received election funding did not involve unreasonable discrimination. The no-overlap rule was designed to avoid confusion, deception and frustration of the democratic process by using the same block of members to register multiple parties, including front parties channelling voters’ preferences to another party. The Court held that both rules were consistent with the constitutional requirements of direct choice by the people and with representative government.

HIGH COURT OF AUSTRALIA 14 November 2014 KUCZBORSKI v THE STATE OF QUEENSLAND [2014] HCA 46 Today the High Court, by majority, rejected a challenge to the validity of certain provisions of the Criminal Code (Q) and the Liquor Act 1992 (Q). The Court also held that the plaintiff lacked standing to challenge the Vicious Lawless Association Disestablishment Act 2013 (Q) ("the VLAD Act") and certain other provisions of the Criminal Code and the Bail Act 1980 (Q) introduced by the Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 (Q) ("the Disruption Act"). The Disruption Act and the Tattoo Parlours Act 2013 (Q) inserted new offences into the Criminal Code and Liquor Act respectively, elements of which involved being a "participant" in a "criminal organisation", or wearing symbols of membership of a "declared criminal organisation". The VLAD Act introduced penalties for a person convicted of a designated offence, which were more severe than would otherwise be applicable, if that individual was also proved to be a "participant in the affairs of an association". The Disruption Act amended the Criminal Code by providing for mandatory minimum penalties and increasing the maximum penalties for certain existing offences, in circumstances where the individual charged was found to be a participant in a criminal organisation. It also amended the Bail Act by introducing more stringent criteria for the grant of bail, in circumstances where a person was alleged to be a participant in a criminal organisation. In March 2014, the plaintiff commenced proceedings in the original jurisdiction of the Court seeking declarations that the challenged laws were invalid on the ground that they were incompatible with the institutional integrity of the Supreme Court of Queensland. The plaintiff had not been charged with, and did not suggest that he had committed, or intended to commit, any offence. Accordingly, no restriction was imposed upon the plaintiff's freedom of action by the VLAD Act, the new penalty provisions of the Criminal Code or the new provisions of the Bail Act. The High Court unanimously held that the plaintiff lacked standing to seek a declaration that those laws were invalid. The plaintiff argued that the laws creating the new offences in the Criminal Code and the Liquor Act impermissibly enlisted the court to give effect to the Parliament's or the executive's intention to destroy criminal organisations. This argument was not accepted. The majority of the Court held that these laws did not require the courts to proceed otherwise than in accordance with the processes which are understood to characterise the exercise of judicial power.

HIGH COURT OF AUSTRALIA 7 May 2014 AUSTRALIAN FINANCIAL SERVICES AND LEASING PTY LIMITED v HILLS INDUSTRIES LIMITED & ANOR [2014] HCA 14 Today the High Court unanimously held that the first and second respondents would not be required to repay monies that had been mistakenly transferred to them by the appellant as a result of a fraud committed by a third party, because each respondent had established a defence that they had changed their position on the faith of the receipt of the payments. The appellant, Australian Financial Services and Leasing Pty Ltd ("AFSL"), provided businesses with finance to purchase commercial equipment. The respondents, Hills Industries Ltd ("Hills") and Bosch Security Systems Pty Ltd ("Bosch"), were manufacturers and suppliers of such equipment. Hills and Bosch were both owed debts by various companies in a corporate group (referred to collectively as "TCP"). A director and shareholder of TCP created false invoices suggesting that TCP had purchased equipment from each of Hills and Bosch. On the basis of these invoices, AFSL agreed to purchase the equipment and lease it back to TCP. AFSL paid the amounts of the false invoices to Hills and Bosch. AFSL later discovered the fraud and sought repayment from Hills and Bosch. Hills and Bosch resisted AFSL's claim on the basis of their change of position. In particular, both companies relied upon the application of AFSL's payments to the discharge of TCP's debts, and the circumstances that they had ceased pursuing the recovery of the debts and continued to trade with TCP. It was not in dispute that Hills and Bosch had both acted on the faith of the receipt of AFSL's payments. In the Supreme Court of New South Wales, the primary judge rejected Hills' defence of change of position, but held that the defence had been made out in relation to Bosch. AFSL and Hills both appealed to the Court of Appeal, which held that each of Hills and Bosch was entitled to rely on a defence of change of position in response to AFSL's claim for repayment. By grant of special leave, AFSL appealed to the High Court. The High Court unanimously dismissed AFSL's appeal. A majority of the Court held that the relevant enquiry was whether retention of the monies by Hills and Bosch would be inequitable in all the circumstances. The Court rejected the approach argued by AFSL, which focused on the extent to which Hills and Bosch had been "disenriched" subsequent to the receipt. The principle of disenrichment, like that of unjust enrichment, is inconsistent with the law of restitution as it has developed in Australia. The Court concluded that, in the circumstances of this case, the disadvantages which would enure to Hills and Bosch if they were required to repay AFSL are such that it would be inequitable to require them to do so.

HIGH COURT OF AUSTRALIA 4 December 2019 BMW AUSTRALIA LTD v BREWSTER & ANOR; WESTPAC BANKING CORPORATION & ANOR v LENTHALL & ORS [2019] HCA 45 Today the High Court allowed an appeal from a decision of the Full Court of the Federal Court of Australia and an appeal from a decision of the Court of Appeal of the Supreme Court of New South Wales. The principal issue in each appeal was whether, in representative proceedings, s 33ZF of the Federal Court of Australia Act 1976 (Cth) ("the FCA") and s 183 of the Civil Procedure Act 2005 (NSW) ("the CPA") empower the Federal Court of Australia and the Supreme Court of New South Wales, respectively, to make what is known as a "common fund order" ("CFO"). The first to fourth respondents in the Westpac matter (No S154 of 2019) commenced representative proceedings in the Federal Court of Australia alleging that Westpac's financial advisers breached their obligations to the respondents in relation to advice given regarding insurance policies. In the BMW matter (No S152 of 2019), the first respondent commenced representative proceedings in the Supreme Court of New South Wales against BMW Australia Ltd relating to the national recall of BMW vehicles fitted with defective airbags. Both proceedings were funded by litigation funders. In each proceeding, the litigation funder had entered into a litigation funding agreement with a small number of group members. The representative parties applied to the court in each representative proceeding for a CFO. A CFO is an order characteristically made at an early stage in representative proceedings that provides for the quantum of a litigation funder's remuneration to be fixed as a proportion of any moneys ultimately recovered in the proceedings, for all group members to bear a proportionate share of that liability, and for that liability to be discharged as a first priority from any moneys so recovered. Section 33ZF of the FCA and s 183 of the CPA each provide that in a representative proceeding, the court may make any order that the court thinks appropriate or necessary to ensure that justice is done in the proceeding. The Full Court of the Federal Court of Australia and the Court of Appeal of the Supreme Court of New South Wales held that s 33ZF of the FCA and s 183 of the CPA, respectively, empowered the court to make a CFO. By grants of special leave, the appellants appealed to the High Court. A majority of the Court allowed the appeals, holding that, properly construed, neither s 33ZF of the FCA nor s 183 of the CPA empowers a court to make a CFO. Considerations of text, context and purpose all point to the conclusion that it is not appropriate or necessary to ensure that justice is done in a representative proceeding for a court to promote the prosecution of the proceeding by the making of a CFO. Because the principal issue was resolved in favour of the appellants by a majority of the Court, the issues of whether the relevant provisions of the FCA and the CPA infringe Ch III of the Constitution and the principle in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 and whether the provisions are contrary to s 51(xxxi) of the Constitution did not arise for determination.

HIGH COURT OF AUSTRALIA 9 March 2011 LEONILDA MARCOLONGO v YU PO CHEN & ANOR [2011] HCA 3 Today the High Court allowed an appeal from the New South Wales Court of Appeal and set aside a registered transfer of land from Lym International Pty Limited ("Lym") to Mr Chen by application of s 37A of the Conveyancing Act 1919 (NSW). Section 37A(1) provides that, except for certain specified exceptions, every alienation of property made with the intent to defraud creditors shall be voidable at the instance of any person thereby prejudiced. Mrs Marcolongo owned and lived on a property adjacent to a property development project in which Lym was involved. Mrs Marcolongo sued Lym in the New South Wales District Court for damages for the removal of support during the building operations. During 2004 and 2005 the solicitors for Mrs Marcolongo and Lym corresponded concerning Mrs Marcolongo's desire to obtain a property preservation order over a second property development project, in which Lym was also involved, so as to protect Mrs Marcolongo's position in her District Court action against Lym. Later in 2005, the second property development project was valued with the result that the expected proceeds of sale would not exceed Lym's liabilities. In 2006, Lym transferred the property comprising the second project to Mr Chen to hinder Mrs Marcolongo's claim. On 26 November 2009, Mrs Marcolongo recovered a judgment against Lym for the damage caused to her property for $388,643.62 with costs. In a Supreme Court action against Lym and Mr Chen, Mrs Marcolongo relied upon s 37A to have the contract declared voidable at her instance and to require Mr Chen to transfer the property back to Lym. The result would be Lym retaining a substantial asset to meet any order for damages. The trial judge found in favour of Mrs Marcolongo. The Court of Appeal reversed the trial judge's decision on the basis that Lym had not been dishonest, and the transfer was not "predominantly" motivated by the intent to defeat the claim of Mrs Marcolongo as a creditor. French CJ, Gummow, Crennan and Bell JJ considered that s 37A should receive a liberal construction in accordance with the provenance of the provision. Their Honours held that "defraud" includes the hindering or delaying of creditors in the exercise of their legal remedies. The plurality further held that s 37A requires a finding of intent to achieve the proscribed prejudice. French CJ, Gummow, Crennan and Bell JJ held that s 37A is not qualified by a notion of constructive fraud, does not require an element of dishonesty and does not require a predominant or sole intent to defraud. Heydon J held that whatever the precise test called for by s 37A, the intent underlying Lym's conduct was enough to satisfy it. The intent was as "actual" and "dishonest" as it is possible to have. The High Court held that s 37A applied despite the transferor having formed the proscribed intent by reason of the misconduct of another. The Court also held that Mr Chen was not within an exception to s 37A for purchasers in good faith not having, at the time of the alienation, notice of the intent to defraud creditors.

HIGH COURT OF AUSTRALIA 6 October 2004 DIRECTOR OF PUBLIC PROSECUTIONS FOR THE NORTHERN TERRITORY v WJI The High Court of Australia today upheld the directions to the jury of NT Supreme Court Justice Trevor Riley in relation to consent in WJI’s rape trial, and agreed with a decision of the NT Court of Criminal Appeal on the appropriateness of the directions. In May 2001 WJI was found not guilty of sexual intercourse with a female without her consent. Justice Riley had told the jury the charge had three elements: that WJI had sexual intercourse with TRR at Palmerston on or about 27 January 1988; that TRR did not give her consent; and that WJI intended to have sexual intercourse with TRR without her consent. Justice Riley directed that if WJI had mistakenly believed that TRR consented to sexual intercourse, he will not have intended to have sex with her without her consent. Therefore the Crown must prove beyond reasonable doubt that WJI had no mistaken belief about consent. The DPP contended that the prosecution was only required to establish that WJI intended to have sex with TRR, but was not required to establish that he intended to have non-consensual sex. The DPP said that WJI may have been able to use the excuse that he had an honest and reasonable, but mistaken, belief that TRR was consenting. The prosecution would then have needed to negate this excuse to establish the third element. The NT Court of Criminal Appeal dismissed an appeal from the DPP by a 4-1 majority. The DPP then appealed to the High Court. The Court held that the absence of consent was a part of the deed which attracted criminal responsibility. Criminal responsibility only arose if there was intent to have sexual intercourse without consent. An intention to have sexual intercourse was not sufficient to establish criminal responsibility. The Court held that Justice Riley’s directions were correct and dismissed the appeal by a 4-1 majority.

HIGH COURT OF AUSTRALIA 18 December 2013 GRAEME STEPHEN REEVES v THE QUEEN [2013] HCA 57 Today the High Court unanimously dismissed an appeal against conviction and upheld an appeal against sentence from a decision of the New South Wales Court of Criminal Appeal, brought by Graeme Stephen Reeves. Mr Reeves was convicted following a trial by jury in the District Court of New South Wales of malicious infliction of grievous bodily harm with intent to inflict harm of that kind. Mr Reeves was a gynaecologist and the complainant, CDW, was his patient. The harm inflicted on CDW was the surgical removal of her vulva, including her labia and clitoris. Mr Reeves was sentenced to a term of two and a half years' imprisonment with a non-parole period of one year. The Court of Criminal Appeal confirmed his conviction and allowed an appeal by the Director of Public Prosecutions against the inadequacy of the sentence. CDW had been referred to Mr Reeves by her general practitioner for treatment of a pre-cancerous lesion on her left labia. She gave evidence that she had agreed to the surgical removal of a small flap of skin containing the lesion and not to the removal of her entire vulva, including her labia and clitoris. Mr Reeves' case was that CDW had consented to the surgery knowing that it entailed the removal of her entire vulva. The direction given to the jury by the trial judge stated that there would not be a lawful cause or excuse for the surgery if Mr Reeves did not honestly believe that CDW had given her informed consent to the full extent of the operation, including removal of the labia and clitoris. The direction stated that for consent to be "informed" the medical practitioner must at least explain the purpose of the operation, the part or parts of the body to be cut or removed, the possible major consequences of the operation and any options or alternative treatments which may be reasonably available. The Court of Criminal Appeal found that the introduction of the concept of "informed consent" was an error, but that in light of the conduct of the trial, this error had not occasioned a substantial miscarriage of justice. Mr Reeves' appeal was dismissed. Mr Reeves applied for special leave to appeal to the High Court. The Court found that the Court of Criminal Appeal identified and applied the correct test for consent to surgery, which requires that the patient be informed in broad terms of the nature of the procedure. The High Court found that in the context of this trial, the use of the phrase "informed consent" and the reference to possible major consequences and alternative treatments had not distracted the jury from the one issue on consent, which was whether the prosecution had excluded beyond reasonable doubt that CDW had been informed that the surgery involved the removal of her vulva, including her labia and clitoris. The High Court agreed with the Court of Criminal Appeal that the misdirection had not occasioned a substantial miscarriage of justice. The Director of Public Prosecutions conceded that the Court of Criminal Appeal erred by failing to consider the exercise of its residual discretion to dismiss the appeal taking into account the medical evidence of Mr Reeves' deteriorating health and the imminent expiry of his non-parole period. In light of that concession, the High Court allowed Mr Reeves' appeal against sentence on this ground and remitted the matter to the Court of Criminal Appeal for it to consider the residual discretion.

HIGH COURT OF AUSTRALIA 16 May 2018 CRI026 v THE REPUBLIC OF NAURU [2018] HCA 19 Today the High Court unanimously dismissed an appeal from a decision of the Supreme Court of Nauru that the Refugee Status Review Tribunal ("the Tribunal") had not erred in dismissing the appellant's claim for complementary protection under the Refugees Convention Act 2012 (Nr) ("the Refugees Act"). The appellant was born in Sialkot in Pakistan but had lived most of his life in Karachi. His family lived in Sialkot. He arrived in the Republic of Nauru ("Nauru") in 2013 and shortly thereafter applied to the Secretary of the Department of Justice and Border Control of Nauru ("the Secretary") to be recognised as a refugee under the Refugees Act or, alternatively, as a person to whom Nauru owed complementary protection under the Act. He claimed that he could not or did not want to return to Pakistan because he feared that upon his return he would be harmed by members of the Muttahida Qaumi Movement ("the MQM") by reason of an injury he had inflicted on one of their senior members, and also because they viewed him as a political dissident. The Secretary rejected the application. The Tribunal affirmed the Secretary's decision on the basis that it would be reasonable in the circumstances for him to relocate to Punjab in Pakistan where the MQM had no power or influence and the risk of being harmed was remote and not a real possibility. Towards the end of their reasons, the Tribunal made the evidently incongruous observation that the appellant would not face a real possibility of persecution in Sri Lanka and referred to him being of Tamil ethnicity. The Supreme Court dismissed an appeal against the Tribunal's decision. The appellant appealed as of right to the High Court, alleging that the Tribunal had erred in determining his claim for complementary protection by reference to his ability reasonably to relocate within Pakistan and his circumstances in the event he were returned to Sri Lanka, as opposed to Pakistan. He further alleged that the Tribunal erred in failing to consider whether it was reasonable for his family to relocate to Punjab and in finding that the MQM had no power or influence in Punjab. The High Court held that, having regard to international jurisprudence, unless the feared persecution emanates from or is condoned or tolerated by State actors (which was not an issue in this case), an applicant's ability reasonably to relocate within his or her country of origin, including the ability safely and legally to travel to the place of relocation, is relevant to whether the applicant is in need of complementary protection. Further, the Court held that, reading the Tribunal's reasons as a whole, the incongruous observation which referred to Sri Lanka and Tamils rather than Karachi and the MQM was a typographical error and did not disclose that the Tribunal's reasoning process was affected by error. Accordingly, it was not necessary to consider whether the Tribunal had the power to issue the corrigendum correcting the error. In relation to the alleged failure to take into account the appellant's family in determining his claim for complementary protection, the Court found that there was no substantial, clearly articulated argument of the kind suggested by the appellant and thus the Tribunal was not required to consider it. As regards the finding that the MQM had no power or influence in Punjab, the Court concluded that there was nothing to say that there was insufficient evidence to sustain the Tribunal's finding. The Court therefore dismissed the appeal.

HIGH COURT OF AUSTRALIA 20 June 2012 KINZA CLODUMAR v NAURU LANDS COMMITTEE & ORS [2012] HCA 22 On 20 April 2012, the High Court allowed an appeal by Kinza Clodumar from the Supreme Court of Nauru. A majority of the High Court held that, on appeal from the Supreme Court of Nauru, the High Court may receive evidence that was not before the Supreme Court, where that evidence was not discoverable by the exercise of reasonable diligence on the part of the party seeking now to adduce the evidence. Today, the High Court published its reasons for allowing the appeal. Mr Clodumar is a citizen of Nauru. In 2000, Mr Clodumar commenced proceedings in the Supreme Court of Nauru, to prevent the Nauru Lands Committee from distributing certain interests in land. The Nauru Lands Committee ("the Committee") is a statutory body empowered, under Nauruan legislation, to determine questions concerning land ownership. Mr Clodumar claimed that certain interests in the land had been transferred to him by the previous, now deceased, landowner. The Supreme Court held that the asserted transfer was void because there was no evidence that the President of Nauru had consented to the transfer. Under s 3 of the Lands Act 1976 (Nauru), the President's consent in writing is required for the transfer of any interest or estate in Nauruan land. However, for other reasons, the Supreme Court ordered the Committee not to distribute the land and to call a meeting of interested parties to determine the ownership of the land. In 2010, following these meetings, the Committee re-determined the distribution of the land. The distribution did not give effect to the transfer asserted by Mr Clodumar, who appealed to the Supreme Court of Nauru. According to Mr Clodumar, during the course of this hearing in the Supreme Court, he was given some documents by a pleader of the Supreme Court. One of the documents was a copy of a signed Presidential Approval of the asserted transfer of interests in the disputed land to Mr Clodumar ("the Approval"). The Supreme Court adjourned the further hearing of the appeal to allow Mr Clodumar to appeal to the High Court from the Supreme Court's decision in 2000. Pursuant to s 5 of the Nauru (High Court Appeals) Act 1976 (Cth) ("the Nauru Appeals Act"), appeals lie to the High Court from the Supreme Court of Nauru. In the High Court, the Committee did not contest the authenticity of the Approval. According to an affidavit sworn by a former Minister of Nauru, the Approval had been removed from a ministerial office following a change in government, and remained in that person's home until being discovered in November 2011. However, the Committee contended that the High Court could not receive the Approval because it had not been in evidence before the Supreme Court in 2000. The Committee submitted that the use of the term "appeal" in s 5 of the Nauru Appeals Act indicates that an appeal under that section is an appeal in the strict sense and is to be decided on the basis of the evidence before the Supreme Court. The Committee also opposed Mr Clodumar's application for an extension of time to appeal to the High Court. By majority, the High Court held that an appeal under s 5 of the Nauru Appeals Act is not limited to the hearing of an appeal in the strict sense because it engages the High Court's original jurisdiction under s 76(ii) of the Constitution. For the purpose of an appeal under s 5 of the Nauru Appeals Act, the High Court can therefore receive fresh evidence. The Court held that, in light of the circumstances, even if Mr Clodumar had exercised reasonable diligence, he could not have discovered the Approval before the proceedings commenced in 2000. Furthermore, Mr Clodumar sought to adduce evidence of some cogency, which, if accepted on a retrial in the Supreme Court, would be likely to determine the outcome of those proceedings. The High Court therefore granted the necessary extension of time, allowed the appeal and remitted the matter to the Supreme Court for retrial.

HIGH COURT OF AUSTRALIA 11 February 2004 REX ANTHONY BASHFORD v INFORMATION AUSTRALIA (NEWSLETTERS) PTY LIMITED The High Court of Australia today dismissed an appeal by Mr Bashford, who claimed a trade journal defamed him when it said he, rather than his consultancy, was liable for a false report that caused another company harm and loss. In 1993, Mr Bashford’s company, RA Bashford Consulting Pty Ltd, and Risk Management Concepts Pty Ltd ran an item headed “Chemwatch wins copyright case” in a newsletter the two companies were involved in, called Infax. The Infax article erroneously asserted that Chemwatch had successfully challenged two companies for breaching copyright by using Chemwatch’s material safety data sheets (MSDS) on their database. The item implied that Chemwatch competitor Acohs Pty Ltd was one of the two companies, but Chemwatch had not in fact succeeded in its copyright action. In 1997, the Federal Court found Bashford Consulting and Risk Management Concepts had engaged in misleading or deceptive conduct contravening the Trade Practices and ordered the two companies and Chemwatch’s proprietor Bernie Bialkower to pay $20,000 in damages to Acohs. The Occupational Health and Safety Bulletin, published by Information Australia, ran an article on the Federal Court case, and referred to RA Bashford, rather than to RA Bashford Consulting. Mr Bashford sued for defamation, and in the High Court he claimed both the New South Wales Supreme Court and the Court of Appeal had erred in finding that the Bulletin article attracted the defence of qualified privilege. He alleged the defence was not available because the report was inaccurate and because there was not the necessary reciprocal interest or duty between the Bulletin’s publishers and its subscribers. The High Court held, by a 5-2 majority, that there was the necessary reciprocity of duty or interest as the subscribers to the Bulletin were people responsible for health and safety in the workplace. The narrow focus of the Bulletin’s subject matter and its readership was different from general news media. The Court held that misidentification of Mr Bashford as the publisher of the Infax article did not alter or reduce the connection between the privileged occasion and the defamatory matter. Communication of the statement – that to assert successful prosecution for MSDS copyright infringement had been held to be false and misleading conduct – fulfilled the reciprocal duties or interests involved in communication of health and safety information. The Bulletin could not rely on the defence of a fair and accurate report of judicial proceedings, but the qualified privilege defence was available.

HIGH COURT OF AUSTRALIA Public Information Officer 12 November 2008 JANINA PUTTICK (as executor of the estate of Russell Simon Puttick) v TENON LIMITED (formerly called Fletcher Challenge Forests Limited) Victoria was not a clearly inappropriate forum to decide a claim for damages arising from the asbestos- related death of a former employee of a New Zealand company, the High Court of Australia held today. Janina Puttick’s late husband, Russell Puttick, was employed by Tasman Pulp and Paper Company in NZ between 1981 and 1989. He allegedly contracted malignant mesothelioma from exposure to asbestos during visits to factories in Belgium and Malaysia. Mr Puttick, a NZ citizen who had moved to Melbourne, died in 2005, just after commencing proceedings for damages in the Victorian Supreme Court. Mrs Puttick continued the claim. Tasman was a subsidiary of Tenon Limited. Tenon allegedly owed Mr Puttick a duty of care through the control it had over Tasman and its employees. Mr Puttick claimed that it had breached that duty. Tenon was incorporated in NZ. It sought an order permanently staying the proceedings or dismissing them summarily. Tenon contended that the alleged negligence occurred in NZ, that the law to be applied to determine the claim was NZ law, and that NZ’s statutory compensation scheme barred a common law claim. In 2006 Justice David Harper held that the proceedings should be permanently stayed on grounds that Victoria was an inconvenient or inappropriate forum. It was then not necessary to decide Tenon’s application for summary judgment so Justice Harper did not express an opinion about the effect of the NZ no-fault compensation scheme on Mrs Puttick’s claim. Justice Harper held that NZ was the more appropriate forum because many witnesses and the relevant documents were in NZ. He held that the law governing substantive issues was the law of the place where the tort occurred, which he said was NZ, so the action should be permanently stayed. Mrs Puttick appealed to the Victorian Court of Appeal, alleging that Justice Harper had made an error of law. Tenon cross-appealed, alleging that, because NZ law was the governing law and NZ law regulating the no-fault compensation scheme should preclude the negligence claim, her action should be dismissed as bound to fail. The Court of Appeal, by majority, dismissed Mrs Puttick’s appeal and held that the relevant law was the law of NZ. She appealed to the High Court. The Court unanimously allowed the appeal. It held it was not yet possible to decide whether NZ law was the applicable law to decide the case. The Court held that the Court of Appeal and Justice Harper erred in deciding that the material available in this matter was sufficient to decide what law governed the rights and duties of the parties. Details about Mr Puttick’s factory visits and the relationships between Tenon, Tasman and Mr Puttick were lacking or ambiguous and were not resolved by determining Tenon’s application for a permanent stay. The Court held that, without those issues being resolved, not even a provisional finding could be made about where the alleged tort occurred. It was not possible, on the material available, to decide which legal system was applicable. All that Justice Harper and the Court of Appeal could decide was that NZ law was arguably the law that governed the dispute. Assuming the dispute was governed by NZ law, Tenon had not established that Victoria was a clearly inappropriate forum to try the dispute. Geographical proximity, similarities between legal systems and legislation for the determination of some trans-Tasman litigation meant Victoria was potentially an appropriate forum. The Court ordered that Justice Harper’s orders be set aside and that Tenon’s original summons be dismissed with costs.

HIGH COURT OF AUSTRALIA Public Information Officer 5 August, 2003 IAN WAYNE GIBBS AND PARAGLIDE PTY LTD v MERCANTILE MUTUAL INSURANCE (AUSTRALIA) LTD A parasailing company cannot claim on its insurance policy to cover injuries to a customer after the High Court of Australia today held that the policy was covered by the federal Marine Insurance Act, rather than the Insurance Contracts Act. The High Court, by a 3-2 majority, upheld a decision of the Full Court of the Western Australian Supreme Court that the Marine Insurance Act applied. Helen Morrell was seriously injured on January 30, 1989, when the power boat driven by Mr Gibbs came too close to Heirisson Island in Perth's Swan River and she was dragged through trees. Mr Gibbs and Paraglide did not inform Mercantile of the accident for another four years and had also not informed Mercantile of another accident in February 1988. Paraglide ceased trading in January 1990. Mrs Morrell successfully sued Mr Gibbs and Paraglide. They sought indemnity under the policy but Mercantile denied liability. Mr Gibbs and Paraglide claimed the policy was for public liability, not marine losses, and that the accident was unrelated to the sea, and so was covered by the Insurance Contracts Act. The failure to give timely notice to Mercantile may not then have barred a claim for indemnity. The WA District Court held that the policy was not a contract for marine insurance. This decision was reversed by the Full Court of the WA Supreme Court. Mr Gibbs and Paraglide then appealed to the High Court. The majority of the Court held that the cover provided by the policy was for liability arising from events occurring during the navigation of the boat and from exposure to maritime perils. Indemnity against legal liability to third parties had long been a form of marine insurance. Careless operation of the boat that caused Mrs Morrell to crash into trees was a form of maritime peril. The policy was one for marine insurance and the Marine Insurance Act applied.

HIGH COURT OF AUSTRALIA Manager, Public Information 21 April 2009 Today, the High Court allowed Mr Carroll’s appeal and remitted to the Court of Criminal Appeal of the Supreme Court of New South Wales for reconsideration the Director of Public Prosecution’s appeal against the sentence imposed on Mr Carroll for his plea of guilty to manslaughter. The decision of the five member High Court was unanimous. One evening in May 2007 Mr Carroll and his friends left a hotel at about the same time as Mr Criniti. A dispute arose between some members of the group and Mr Criniti and Mr Criniti made some threats to harm them. Mr Carroll responded by head-butting Mr Criniti, who fell backwards onto the road and hit the back of his head on the roadway. Ten days later Mr Criniti died. Mr Carroll pleaded guilty to manslaughter and was sentenced by a judge of the District Court of New South Wales to a three-year term of imprisonment, to be served by way of periodic detention, with a non-parole period of 18 months. The sentencing judge gave detailed reasons for that decision. The DPP appealed against that sentence to the Court of Criminal Appeal and submitted that the sentence was manifestly inadequate. By majority, the Court of Criminal Appeal accepted the submissions put by the DPP and re-sentenced Mr Carroll to a period of full- time incarceration. Mr Carroll was granted special leave to appeal to the High Court on the question of whether the majority of the Court of Criminal Appeal erred in concluding that the sentence imposed by the primary judge was manifestly inadequate. The High Court found that the majority in the Court of Criminal Appeal was wrong to assess the adequacy of the sentence on the footing that Mr Carroll should not have been provoked by Mr Criniti’s conduct. The primary judge had found that Mr Carroll had been subject to some provocation and the Crown had not challenged this finding. Secondly, the High Court said that it was an error for the Court of Criminal Appeal to assess the seriousness of the offence by characterising it as one in which “severe injury was clearly foreseeable and death at least a possibility”. Mr Carroll’s admission of guilt acknowledged no more than that his act in striking Mr Criniti carried an appreciable risk of serious injury. The High Court remitted the DPP’s appeal against the inadequacy of the sentence to the Court of Criminal Appeal for determination because the task of deciding that question is better undertaken by that Court.

HIGH COURT OF AUSTRALIA 4 March 2003 THE QUEEN v SIPAI SOMA The High Court of Australia today dismissed a prosecution appeal against a decision of the Queensland Court of Appeal, quashing Mr Soma’s conviction on the ground that the prosecution had impermissibly split its case at trial and ordering a new trial. Mr Soma had been charged with rape. He admitted to having had carnal knowledge of the complainant, but claimed that he had acted with the complainant's consent. During an interview with police, which was tape-recorded, Mr Soma gave an account of what happened between him and the complainant on the night of the alleged rape. At trial, when it presented its case, the prosecution did not lead any evidence of Mr Soma’s police interview. When Mr Soma then gave evidence in his defence, extracts from the tape-recorded police interview became the subject of cross-examination and the recorded interview was tendered in evidence. Mr Soma appealed. The Court of Appeal allowed the appeal. The prosecutor then appealed to the High Court, arguing that the Court of Appeal had failed to give proper effect to certain provisions of Queensland’s Evidence Act. By majority, the High Court dismissed the appeal, applying the general principle that the prosecution must offer all its proof during the progress of its case. The Evidence Act provisions do not modify this general principle.

HIGH COURT OF AUSTRALIA Public Information Officer 10 April, 2003 ANTHONY GORDON OATES v THE ATTORNEY-GENERAL FOR THE COMMONWEALTH AND THE COMMONWEALTH OF AUSTRALIA The High Court of Australia dismissed Oates’s appeal against extradition from Poland on March 4 and today handed down its reasons for judgment. Oates, a former Bond Corporation executive, is accused under the Western Australian Criminal Code of one count of conspiracy to defraud, and under the WA Companies Code of eight counts of improper use of his position as a company director and eight counts of acting dishonestly as a company director. He has lived in Poland since 1991. In response to Australia’s extradition request, Oates was arrested by Polish authorities in October 1996 and held in custody for seven months. He sought leave to appeal in the High Court from a decision of the Full Court of the Federal Court that the extradition request was valid. In his application for special leave to appeal, Oates sought a declaration that the extradition request was invalid. He claimed the offences were not among those listed in the 1932 extradition treaty between Poland and the United Kingdom on Australia and New Zealand’s behalf. (A new Australia- Poland treaty took effect in 1999, but the relevant events took place when the first treaty was in operative.) The High Court found it unnecessary to decide that issue. The Court held that neither a UK Order in Council (by which the 1932 treaty became applicable in Australia), nor the treaty itself, nor Australia’s Extradition (Foreign States) Act imposed any limitations, conditions, exceptions or qualifications which affected the Attorney-General’s power to

HIGH COURT OF AUSTRALIA 31 August 2011 PLAINTIFF M70/2011 v MINISTER FOR IMMIGRATION AND CITIZENSHIP PLAINTIFF M106 OF 2011 BY HIS LITIGATION GUARDIAN, PLAINTIFF M70/2011 v MINISTER FOR IMMIGRATION AND CITIZENSHIP [2011] HCA 32 Today the High Court held invalid the Minister for Immigration and Citizenship's declaration of Malaysia as a country to which asylum seekers who entered Australia at Christmas Island can be taken for processing of their asylum claims. After an expedited hearing before the Full Bench, the Court by majority made permanent the injunctions that had been granted earlier and restrained the Minister from taking to Malaysia two asylum seekers who arrived at Christmas Island, as part of a larger group, less than four weeks ago. The Court also decided that an unaccompanied asylum seeker who is under 18 years of age may not lawfully be taken from Australia without the Minister's written consent under the Immigration (Guardianship of Children) Act 1946 (Cth). The Court granted an injunction restraining the Minister from removing the second plaintiff, an Afghan citizen aged 16, from Australia without that consent. The Court held that, under s 198A of the Migration Act 1958 (Cth), the Minister cannot validly declare a country (as a country to which asylum seekers can be taken for processing) unless that country is legally bound to meet three criteria. The country must be legally bound by international law or its own domestic law to: provide access for asylum seekers to effective procedures for assessing their need for protection; provide protection for asylum seekers pending determination of their refugee status; and provide protection for persons given refugee status pending their voluntary return to their country of origin or their resettlement in another country. In addition to these criteria, the Migration Act requires that the country meet certain human rights standards in providing that protection. The Court also held that the Minister has no other power under the Migration Act to remove from Australia asylum seekers whose claims for protection have not been determined. They can only be taken to a country validly declared under s 198A to be a country that provides the access and the protections and meets the standards described above. The general powers of removal of "unlawful non-citizens" given by the Migration Act (in particular s 198) cannot be used when the Migration Act has made specific provision for the taking of asylum seekers who are offshore entry persons and whose claims have not been processed to another country, and has specified particular statutory criteria that the country of removal must meet. On the facts which the parties had agreed, the Court held that Malaysia is not legally bound to provide the access and protections the Migration Act requires for a valid declaration. Malaysia is not a party to the Refugees Convention or its Protocol. The Arrangement which the Minister signed with the Malaysian Minister for Home Affairs on 25 July 2011 said expressly that it was not legally binding. The parties agreed that Malaysia is not legally bound to, and does not, recognise the status of refugee in its domestic law. They agreed that Malaysia does not itself undertake any activities related to the reception, registration, documentation or status determination of asylum seekers and refugees. Rather, the parties agreed, Malaysia permits the United Nations High Commissioner for Refugees ("UNHCR") to undertake those activities in Malaysia and allows asylum seekers to remain in Malaysia while UNHCR does so. The Court emphasised that, in deciding whether the Minister's declaration of Malaysia was valid, it expressed no view about whether Malaysia in fact meets relevant human rights standards in dealing with asylum seekers or refugees or whether asylum seekers in that country are treated fairly or appropriately. The Court's decision was based upon the criteria which the Minister must apply before he could make a declaration under s 198A.

HIGH COURT OF AUSTRALIA 14 October 2015 PT BAYAN RESOURCES TBK v BCBC SINGAPORE PTE LTD & ORS [2015] HCA 36 Today the High Court unanimously dismissed an appeal from the Court of Appeal of the Supreme Court of Western Australia. The High Court held that it is within the inherent power of the Supreme Court of Western Australia to make a freezing order in relation to an anticipated judgment of a foreign court which, when delivered, would be registrable by order of the Supreme Court under the Foreign Judgments Act 1991 (Cth) ("the Act"). The appellant, a company incorporated in Indonesia, owns shares in the second respondent, a company incorporated in Australia. The first respondent is a company incorporated in Singapore. The appellant and the first respondent are parties to a joint venture agreement which is governed by the law of Singapore. The first respondent commenced a proceeding against the appellant in the High Court of Singapore, claiming, amongst other things, damages for breach of that agreement. That proceeding remains pending. After commencing the Singaporean proceeding, the first respondent applied ex parte to the Supreme Court of Western Australia for freezing orders against the appellant and the second respondent in respect of the appellant's shares in the second respondent. The application was made pursuant to O 52A of the Rules of the Supreme Court 1971 (WA) ("the Rules"). The Supreme Court made interim freezing orders. The appellant and the second respondent then commenced a separate proceeding in the original jurisdiction of the High Court seeking declaratory relief on the basis that the interim freezing orders were beyond power. That proceeding was remitted to the Supreme Court and determined concurrently with the first respondent's application for continuation of the interim freezing orders. The primary judge dismissed the remitted proceeding, discharged the interim freezing order against the second respondent and continued the freezing order against the appellant. The primary judge made detailed findings of fact in relation to the continuation of the freezing order against the appellant, including that there was a real and sensible risk that any judgment by the High Court of Singapore in favour of the first respondent would remain unsatisfied. The Court of Appeal unanimously dismissed an appeal by the appellant from the orders of the primary judge. On appeal to the High Court, the appellant accepted that the findings of the primary judge established a factual foundation for the continuation of the freezing order in accordance with the criteria set out in O 52A r 5 of the Rules, but contended that the Supreme Court lacked power to make a freezing order in accordance with those criteria. The High Court unanimously held that the power to make a freezing order in relation to an anticipated judgment of a foreign court, which when delivered would be registrable by order of the Supreme Court under the Act, is within the inherent power of the Supreme Court. The Court so held because the making of the freezing order is to protect a process of registration and enforcement in the Supreme Court which is in prospect of being invoked. The Court determined that the criteria set out in O 52A r 5 of the Rules are appropriately tailored to the exercise of that inherent power.

HIGH COURT OF AUSTRALIA 10 November 2021 [2021] HCA 36 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 appeal concerned whether certain questions asked by the Crown prosecutor in cross-examination of the appellant were impermissible and prejudicial such that they resulted in a miscarriage of justice within s 6(1) of the Criminal Appeal Act 1912 (NSW). It also concerned whether the trial miscarried on account of the alleged incompetence of the appellant's counsel. The Court then considered whether, despite those errors, the proviso in s 6(1) applied, in that no substantial miscarriage of justice actually occurred. The appellant was convicted of eight counts of having sexual intercourse with another person knowing that the other person does not consent. The offences were committed against two complainants on consecutive days in similar circumstances. The appellant's belief as to consent was the key issue at trial and accordingly his credibility was important. During cross-examination of the appellant, it became apparent that certain of his evidence which contradicted that of the complainants had not been put to them by defence counsel for comment, in breach of the rule in Browne v Dunn. On each occasion, the prosecutor asked the appellant to acknowledge the omission. In respect of two of these omissions, the prosecutor put to the appellant that those aspects of his evidence were, in effect, of recent invention. Defence counsel did not pursue objections to these suggestions of recent invention and the trial judge did not direct the jury as to the use which could be made of this evidence. The High Court unanimously held that the prosecutor's questioning amounted to a miscarriage of justice. The questioning was highly prejudicial because, absent any directions from the trial judge, there was a real chance that the jury may have assumed that the appellant had recently made up his story and rejected his evidence as not credible. The Court found it unnecessary to consider whether the inaction of the appellant's counsel separately resulted in a miscarriage. However, a majority of the Court held that the proviso in s 6(1) of the Criminal Appeal Act applied because no substantial miscarriage of justice had actually occurred. In applying the proviso, an appellate court must decide whether, notwithstanding the error, guilt was proved to the criminal standard on the admissible evidence at the trial that was had. Here, the appellant's evidence was so glaringly improbable as to be incapable of belief, such that it could not have given rise to a reasonable doubt as to his guilt. Nor was this a case where there had been a failure of process that involved a serious breach of the presuppositions of the trial, such that the proviso could not be applied; rather, the Crown's impermissible contention of recent invention was of little significance in the determination of the real issue in the trial.

HIGH COURT OF AUSTRALIA 12 February 2014 PASQUALE BARBARO v THE QUEEN [2014] HCA 2 Today the High Court rejected the argument of Mr Barbaro and Mr Zirilli (the applicants) that they suffered unfairness at their sentencing hearing because the sentencing judge refused to receive any submission from the prosecution about what range of sentences could be imposed on each applicant. The High Court held, by majority, that the practice in Victoria of permitting or requiring counsel for the prosecution, in certain circumstances, to make a submission as to the available range of sentences for an offence is wrong in principle and should cease. The applicants each pleaded guilty in the Supreme Court of Victoria to three offences: conspiring to traffic a commercial quantity of MDMA, trafficking a commercial quantity of MDMA and attempting to possess a commercial quantity of cocaine. They agreed to enter pleas of guilty in relation to those offences following discussions between their lawyers and the prosecution. During those discussions, the prosecution expressed its view as to the range of sentences that might be imposed on each applicant. In R v MacNeil-Brown (2008) 20 VR 677, the Court of Appeal of the Supreme Court of Victoria held that if a sentencing judge asked, the prosecution was bound to submit what the prosecution considered to be the available range of sentences that could be imposed on an offender. At the applicants' sentencing hearing, the sentencing judge made it plain that she did not intend to ask any party for submissions about sentencing range. Counsel for the prosecution, therefore, made no submission about what range of sentences could be imposed. Mr Barbaro was sentenced to life imprisonment with a non-parole period of 30 years. Mr Zirilli was sentenced to 26 years' imprisonment with a non-parole period of 18 years. The applicants sought to challenge their sentences in the Court of Appeal on the basis (among others) that it was procedurally unfair for the sentencing judge to have refused to hear a submission from the prosecution on the available range of sentences in light of the discussions between the applicants and the prosecution. The Court of Appeal rejected this challenge to the sentences. By special leave, the applicants appealed to the High Court. The High Court dismissed the appeals. The Court held, by majority, that it is neither the role nor the duty of the prosecution to proffer some statement of the bounds within which a sentence may be imposed. It is for the sentencing judge alone to decide what sentence will be imposed. The practice which resulted from the decision in MacNeil-Brown was therefore wrong in principle and should cease. The Court held that because the prosecution's submission as to an available sentencing range is no more than a statement of opinion, it was not unfair for the sentencing judge to have refused to receive such a submission. The Court also held that this refusal did not amount to a failure to take into account a relevant consideration in sentencing the applicants.

HIGH COURT OF AUSTRALIA 12 November 2004 PERMANENT TRUSTEE AUSTRALIA LIMITED v COMMISSIONER OF STATE REVENUE The States could impose stamp duty and other taxes on Commonwealth places, the High Court of Australia held today as it upheld the validity of the Commonwealth Places (Mirror Taxes) Act. In 1998 Permanent Trustee entered into a development agreement with Australia Pacific Airports (Melbourne) Pty Ltd (APAM) and Folkestone Limited for the building of a hotel at Melbourne Airport. Permanent sub-leased the premises from APAM – which leased the airport land from the Commonwealth – and procured Hilton International to operate a four-star hotel. In March 2001, the Commissioner assessed stamp duty on the sub-lease at $762,583.20. The assessment was made under Victoria’s Stamps Act, which applied in relation to Commonwealth places by reason of the Mirror Taxes Act. Permanent’s objection to the assessment is before the Victorian Supreme Court. In October 2003 the High Court ordered that the part of the objection concerning the validity of the Mirror Taxes Act be removed into that Court. Section 52(i) of the Constitution gives the Commonwealth Parliament exclusive power to make laws with respect to Commonwealth places. The Mirror Taxes Act was part of a package of Commonwealth legislation dealing with the consequences of the High Court’s 1996 decision in Allders International Pty Ltd v Commissioner of State Revenue (Victoria) concerning stamp duty on an area of Melbourne Airport leased to a duty-free store. The Court held, by a 5-2 majority, that laws such as Victoria’s Stamps Act did not apply to Commonwealth places. The Mirror Taxes Act was designed to ensure that Commonwealth places within States were not immune from State taxes of general application by endowing such a tax law with the character of a Commonwealth law to the extent it applies to Commonwealth places. The High Court was called on to decide on several grounds whether the Mirror Taxes Act was invalid or ineffective to apply State tax laws to Commonwealth places. One ground was whether, contrary to section 55 of the Constitution, the Act is a law imposing tax which deals with a matter other than the imposition of tax. The Court held that although the Mirror Taxes Act applied both taxing provisions and provisions for the assessment, collection and recovery of that tax, the inclusion of the latter class of provisions did not offend section 55. Those provisions did not deal with a subject matter other than the imposition of taxation. Similarly, the Mirror Taxes Act was not invalid as a law imposing taxation and dealing with more than one subject of taxation. Although the Act applied a range of different State tax laws, it has been formulated with respect to one subject matter, namely the application of State tax laws to Commonwealth places, and thereby dealt only with one subject of taxation. By a 5-2 majority, the High Court rejected arguments that the Act was invalid for discriminating between States or parts of States, contrary to section 51(ii) of the Constitution, and invalid on the ground that the Act as a revenue law gives preference to one State or part thereof over another State or part thereof, contrary to section 99 of the Constitution. The Court decided that while the Act’s scheme may produce differences in the rate of tax applied in Commonwealth places in each State that was due to differences existing between the tax regimes from State to State. A Commonwealth place is treated for tax purposes in the same way as other parts of the State in which it is located. The Court ordered Permanent to pay the costs of the case before it and remitted the cause to the Victorian Supreme Court to determine the remaining issues.

HIGH COURT OF AUSTRALIA 4 December, 2003 BRADLEY JOHN DOSSETT v TKJ NOMINEES PTY LTD The High Court of Australia today allowed an appeal by an injured worker after courts in Western Australia held he could not take action against his employer because of a change in the law. Mr Dossett suffered back and shoulder injuries in 1996 while operating a front-end loader at the Moore River limestone quarry. At that time, he required the leave of the WA District Court to commence proceedings at common law to recover damages for personal injury if there was a serious disability. On 1 July 1998, by originating summons filed in the Court, Mr Dossett sought such leave under section 93D of the Workers’ Compensation and Rehabilitation Act 1981. The application was listed for hearing on 8 October 1999, but on 5 October the Workers’ Compensation and Rehabilitation Amendment Act received royal assent and came into effect. The amendment Act replaced several sections including section 93D. A transitional provision, section 32, said the new Act did not apply to proceedings commenced before 5 October, or to proceedings where the District Court had already given leave. Mr Dossett said he was entitled to proceed under the earlier regime even though his application did not fall within section 32, because his application was saved by section 37 of the Interpretation Act. This provides that a repeal does not affect any legal proceeding in respect of a right created under an earlier proceeding so that the proceeding may be continued as if the repeal had not happened. The District Court held that it lacked power to grant leave to commence proceedings because his injury did not meet criteria under the new Act. The Full Court of the WA Supreme Court dismissed Mr Dossett’s appeal, holding that because his application for leave had not been determined before 5 October 1999 the transitional provision did not save his application. The High Court overturned the Full Court’s decision. It rejected the employer’s submission that there was no repeal in the sense required by the Interpretation Act because new provisions were substituted for the old ones. The High Court held that section 32 of the amendment Act contained no intention to oust section 37 of the Interpretation Act. The Court unanimously allowed the appeal, holding that section 93D of the 1981 Act continued to apply to Mr Dossett’s pending application and that the District Court erred in dismissing the application. It remitted the application for leave to the District Court for determination.

HIGH COURT OF AUSTRALIA 14 December 2006 Public Information Officer STCB v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS AND REFUGEE REVIEW TRIBUNAL STCB’s claim for refugee status based on fear of an Albanian blood feud is defeated by section 91S of the Migration Act, the High Court of Australia held today. In November 2000, STCB applied for a protection visa, based on the claim that in 1944-45 his grandfather had sparked a blood feud by killing a member of the Paja family. He said the Pajas were obliged by the customary law of Albania known as the Kanun, or Code of Lekë Dukagjini, to kill a male member of STCB’s family. He feared he would be killed by the Paja family if he returned to Albania and he claimed the Albanian police were powerless to stop this. He claimed he had a well-founded fear of persecution due to being a member of two social groups: his family and Albanian citizens who are subject to customary law. In January 2002, the Immigration Department refused STCB’s application for a protection visa because Australia did not owe protection responsibilities to someone whose claims for protection derive from their association with another person who did not have refugee status, in this case STCB’s grandfather. This decision reflected a new section, section 91S, inserted into the Migration Act in October 2001. In September 2003, the Refugee Review Tribunal affirmed the decision not to grant a protection visa. It accepted STCB’s claim that his family was involved in a blood feud with the Paja family and found there was a tradition of blood feuds, particularly in northern Albania, but that Albanian authorities were addressing the problem. The RRT held that fear of revenge for a criminal act was not fear of persecution for a reason falling within the Refugees Convention definition of persecution. It held that section 91S prevented it from having regard to any fear of persecution arising from STCB’s being a member of a family. The RRT also rejected his alternative claim to be a member of a social group of Albanians subject to customary law. For people to form a particular social group they needed to share a characteristic, other than a common fear of persecution, which sets them apart from society at large, but the population affected was too diverse to be regarded as having such a distinguishing characteristic. The Federal Court of Australia and the Full Court of the Federal Court upheld the RRT decision. STCB appealed to the High Court. The Court, by a 4-1 majority, dismissed the appeal. It held that section 91S is fatal to STCB’s claim that he fears persecution from membership of his family. The grandfather had a fear of persecution for a reason other than those listed in the Convention, namely revenge for murder. Section 91S requires that STCB’s fear of persecution be disregarded as that fear would not exist if the grandfather’s fear had never existed. The Court held that the RRT had considered the questions posed by section 91S to the extent necessary before determining that it could disregard his fear of persecution. On the question of whether he was among Albanians subject to customary law, the Court held that STCB failed to show that possession of a particular characteristic or attribute distinguished the group from society at large. The Court noted that Albanians are not subject to customary law but rather to criminal gangs acting in the name of customary law.

HIGH COURT OF AUSTRALIA Public Information Officer 7 February, 2003 BORAL BESSER MASONRY LTD (now Boral Masonry Ltd) v AUSTRALIAN COMPETITION AND CONSUMER COMMISSION The High Court of Australia today allowed an appeal by concrete brick and paver manufacturer Boral Besser Masonry Ltd (BBM) against a finding that it contravened section 46 of the Trade Practices Act by its conduct during a price war in Victoria between 1994 and 1996. The price war, sparked by a severe downturn in the Victorian building industry, broke out in 1993 between BBM and its four rivals in tendering for major projects. The ACCC alleged BBM used its market power for a proscribed purpose between April 1994 and October 1996. In the Federal Court, Justice Peter Heerey at first instance found against the ACCC, holding that BBM did not have substantial market power and did not take advantage of that power in pricing its products. The Full Court of the Federal Court unanimously allowed an appeal, upholding the contention of the ACCC. The High Court, by a 6-1 majority, allowed BBM’s appeal and reversed the decision of the Full Court and upheld the decision of Justice Heerey.

HIGH COURT OF AUSTRALIA 27 April 2005 ANGAS LAW SERVICES PTY LTD (in liquidation) AND ALAN SCOTT v GEORGE CARABELAS AND VIRGINIA CARABELAS The liquidator of an insolvent company formerly controlled by Mr Carabelas, a South Australian legal practitioner, failed in an attempt to have the High Court of Australia overturn a decision of the Full Court of the SA Supreme Court, which rejected his claim to recover damages from Mr and Mrs Carabelas. Angas Law Services (ALS), of which Mr and Mrs Carabelas were the directors and shareholders, was wound up for insolvency by order of the Supreme Court in April 1994. The petitioning creditor was the Australian Tax Office, owed $25,408 for capital gains tax incurred upon the October 1989 sale of premises in Angas Street, Adelaide, the company’s main asset. Mr Scott, the liquidator of ALS, and ALS brought claims against the Carabelases in the Supreme Court. ALS sought compensation for alleged contraventions of provisions in the Companies (South Australia) Code relating to directors’ duties. The loss allegedly suffered was $474,950, due to two particular transactions, with the second of these directly causing the loss. In July 1988, the Commonwealth Bank advanced Mr Carabelas $1.75 million. The manager estimated that properties owned by Mr Carabelas and his companies were worth $3.6 million. The Angas Street property was subject to a mortgage to the Hindmarsh Building Society to secure a debt of $435,040. Mr Carabelas lent this amount to ALS to discharge the mortgage. ALS then gave a mortgage over the property to the bank as consideration for its advance to him. This arrangement was the first transaction. In October 1989, when the fortunes of Mr Carabelas and his companies declined, the Angas Street property was sold for $910,000, which was used to reduce his debt to the bank. After the sale he then owed ALS $446,710.31 – the difference between the sale price and the $435,040 that ALS owed him, adjusted for agent’s fees and other items. A journal entry showed that the $446,710.31 was all owed by five of his companies, all by then insolvent. This purported to correct a previous entry showing Mr Carabelas himself owed ALS. Mr Scott sought to show that the journal entries reflected an unlawful transaction in the form of a novation, in which the debt owed to ALS by Mr Carabelas was discharged and in its place there was a series of debts owed to ALS by the insolvent companies. These constituted the second alleged transaction. In the Supreme Court, Mr Carabelas sought to establish that his companies were engaged in a joint venture and that in borrowing money from the bank he was merely acting as agent for each one, not as a principal. The Court held that he was borrowing as a principal and then lending to his companies, a finding upheld by the Full Court. The Supreme Court found in favour of ALS and held the Carabelases liable for compensation of $474,950, plus interest of $731,423, totalling $1,206,373 plus costs. The Full Court allowed an appeal by Mr and Mrs Carabelas and reversed the decision of the Supreme Court. In a unanimous decision, the High Court held that if there had been a novation, by which a series of debts owed by insolvent companies to ALS were substituted for Mr Carabelas’s debt, the transaction would have contravened section 229 of the Companies Code and resulted in loss to ALS. However, the Court held there was no evidence of any contract of novation beyond erroneous journal entries which reflected Mr Carabelas’s contention that he merely acted as an agent. Rejection of the agency theory did not necessarily lead to a conclusion that there had been a novation resulting in a discharge of Mr Carabelas’s liability to ALS. ALS may also have owed him money. The Court remitted the matter to the Full Court to consider a proposed amendment to the statement of claim aimed at sorting out the state of the accounts between ALS and Mr Carabelas. Beyond that, the appeal by ALS and Mr Scott was dismissed.

HIGH COURT OF AUSTRALIA 5 August 2020 ULEWIS v AUSTRALIAN CAPITAL TERRITORY [2020] HCA 26 Today the High Court unanimously dismissed an appeal from a decision of the Court of Appeal of the Australian Capital Territory ("the Territory"). The appellant had been unlawfully imprisoned in full-time detention for 82 days by reason of an invalid decision of the Territory's Sentence Administration Board ("the Board") to cancel his periodic detention. The issue considered in this appeal was whether the appellant was entitled to substantial damages to compensate him or vindicate his rights, even though the Board was required by statute to decide to cancel his periodic detention so that he would otherwise have been lawfully imprisoned in full-time detention. The Court held that the appellant was not entitled to substantial damages. The appellant was sentenced to a term of 12 months' imprisonment for recklessly or intentionally inflicting actual bodily harm on another person by smashing a glass into a man's face during a fight in Canberra. Pursuant to provisions of the Crimes (Sentence Administration) Act 2005 (ACT) in effect at the time, his sentence was to be served by a regime of periodic detention on weekends instead of full-time imprisonment. Under those provisions, the appellant was obliged to report for each period of detention. The appellant failed to report for periodic detention on multiple occasions. For this reason, the Board was required by statute to decide to cancel the appellant's periodic detention, and it did so decide. The appellant was then arrested and imprisoned for 82 days until he was released on bail pending a challenge to the lawfulness of his imprisonment. The primary judge found that the appellant's imprisonment was without lawful authority because the Board's decision to cancel his periodic detention was invalid due to a denial of procedural fairness. This finding was not subsequently challenged. The primary judge also held that the appellant was not entitled to substantial damages to compensate for the wrongful act attributed to the Board or for its consequences, because the appellant's imprisonment in full-time detention was inevitable following his breaches of the periodic detention obligations. The primary judge awarded him nominal damages of $1, which recognised that although his imprisonment was inevitable his right to be at liberty had been violated. The appellant challenged the award of only nominal damages. The award was upheld in the Court of Appeal and in the High Court. The High Court held that an independent species of "vindicatory damages", or substantial damages merely for the infringement of a right, and not for other purposes including to rectify the wrongful act or compensate for loss, is unsupported by authority or principle. And, since the same imprisonment would have occurred lawfully even if the Board had not made an invalid decision, there was no loss for which to compensate. Two justices considered that this particular appeal failed at a point anterior to the application of the compensatory principle because the appellant's right to be at liberty was already so qualified and attenuated, due to his sentence of imprisonment together with the operation of the Act, that he suffered no real loss.

HIGH COURT OF AUSTRALIA Public Information Officer 17 June, 2003 RE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS; EX PARTE APPLICANT S20/2002 APPELLANT S106/2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Both matters concern a claim to refugee status by a Sri Lankan man. The first matter concerned an application for remedies available under section 75(v) of the Constitution against the Minister and the RRT. The second matter is an appeal from a decision of the Full Court of the Federal Court. The man arrived in Australia in 1995 on a two-month visa. Just before a temporary resident visa ran out he applied for a protection visa, claiming to be a refugee. He claimed he had been taken into custody in Sri Lanka and tortured for two months because he gave accommodation to two Tamil Tigers (members of the Liberation Tigers of Tamil Eelam). After his release he fled to Australia. The man’s claim was rejected by a delegate of the Minister in 1997. The RRT in 1999 and the Federal Court in 2000 affirmed the decision. The Full Court of the Federal Court dismissed an appeal in 2001. The man alleged the RRT’s determination refusing a protection visa was irrational, illogical and not properly based on findings or inferences of fact. The RRT held his evidence, including that his whole family had been arrested and killed by security forces, was implausible and lacked credibility. The RRT then discounted evidence from three witnesses: a former Sri Lankan Air Force flight engineer who saw that the man on his release from Colombo Fort could not walk properly, and had facial injuries and broken teeth; a Sri Lankan dentist who wrote a report saying the state of his teeth could have resulted from an assault; and an Australian doctor who wrote a report that the man had had surgery for a hernia, uncommon in 27-year-olds, and which was consistent with the man telling him he had been beaten with rifle butts. The High Court of Australia, by majority, held that the RRT’s decision had not been shown to have been illogical, irrational or lacking a basis in findings or inferences of fact supported on logical grounds. It held that someone’s credibility could be so weakened in cross-examination that a tribunal may well treat any corroborative evidence as of no weight. The Court also held that the grounds of judicial review under section 476(1) of the Migration Act had not been established and no other ground was shown for the Court to exercise its original jurisdiction. The Court rejected the application for constitutional writs and by a 4-1 majority dismissed the man’s appeal.

HIGH COURT OF AUSTRALIA 29 September 2010 MILLER & ASSOCIATES INSURANCE BROKING PTY LTD v BMW AUSTRALIA FINANCE LIMITED [2010] HCA 31 The applicant ("Miller"), an insurance broker, negotiated a $3.975 million loan with the respondent ("BMW") on behalf of a client, Consolidated Timber Holdings Ltd ("Consolidated Timber"). The loan was sought to fund a premium for an insurance policy insuring against credit risks in connection with a plantation investment scheme. In the course of negotiations, BMW requested details of the insurance policy from Miller. In response, Miller provided a certificate of insurance issued by HIH Casualty and General Insurance Limited that included a list of four properties on which plantations were operated. Premium funding lenders generally require the insurance policy for which a loan is sought to be cancellable. Cancellable policies provide the lender with a form of security: the lender can require the borrower to assign its rights under the policy, including cancellation rights, and in the event of default the lender may cancel the policy and recover the unused premium. BMW concluded from the list of properties on the certificate of insurance that it concerned property insurance, which is generally cancellable. Later, Miller provided the policy itself as part of a bundle of materials. The policy in respect of which Miller negotiated the loan with BMW was a cost-of-production policy and was not cancellable. Miller did not explicitly draw BMW's attention to this fact. After the third repayment, Consolidated Timber defaulted on the loan. BMW sued Miller in the Supreme Court of Victoria for recovery of its loss, alleging among other things that Miller had engaged in misleading or deceptive conduct contrary to s 52 of the Trade Practices Act 1974 (Cth). The claim was put in two ways. The first was that Miller's supply of the certificate of insurance in response to BMW's request for details of the insurance policy was misleading or deceptive. The second was that Miller's failure to tell BMW that the policy for which funding was sought was not cancellable constituted misleading or deceptive conduct. The primary judge found against BMW. His Honour also rejected oral evidence given by the two employees of BMW who had responsibility for the loan that they had not understood that the policy later provided by Miller was connected to the loan. BMW successfully appealed against the primary judge's decision to the Court of Appeal. The Court overturned the rejection by the primary judge of the BMW employees' evidence on the ground that the finding was based on a mistaken understanding of an agreed fact and the inferences arising from it. The Court also held that Miller's provision of the certificate of insurance conveyed a representation that the policy was cancellable. As a result of a combination of this and Miller's failure to inform BMW about the policy's non-cancellability, the Court of Appeal considered Miller to have engaged in misleading or deceptive conduct. Miller applied to the High Court for special leave to appeal against the decision of the Court of Appeal. Its application was referred for consideration by the Full Court, which heard the application on 16 April 2010 as if on appeal. The Court today overturned the Court of Appeal's decision and reinstated the decision of the primary judge. It held that the Court of Appeal had erred in overturning the primary judge's rejection of the oral evidence. The Court of Appeal had mistaken the basis of that finding by the primary judge. The High Court also held that the Court of Appeal's finding that Miller had engaged in misleading or deceptive conduct could not be sustained. There was no foundation for the conclusion that the known importance of the cancellability of the insurance policy gave rise to a reasonable expectation, in the circumstances of the particular transaction, that Miller would not supply the certificate of insurance without disclosing that the policy was non-cancellable.

HIGH COURT OF AUSTRALIA 14 May 2014 MACARTHURCOOK FUND MANAGEMENT LIMITED & ANOR v TFML LIMITED [2014] HCA 17 Today the High Court unanimously allowed an appeal from a decision of the Court of Appeal of the Supreme Court of New South Wales. The High Court held that redemption of certain interests in a managed investment scheme did not constitute a withdrawal from that scheme within the meaning of Part 5C.6 of the Corporations Act 2001 (Cth) ("the Act"). RFML Ltd ("RFML") (subsequently replaced by the respondent, TFML Ltd) was the responsible entity of an unlisted unit trust ("the Trust") which was a registered scheme. The constitution of the Trust complemented s 601KA(3)(b) of the Act by providing that a unitholder had no right to withdraw when the Trust was not liquid, unless there was a withdrawal offer currently open for acceptance by unitholders. The trustee was given power to suspend withdrawals if it was not in the best interests of unitholders for withdrawals to be made. In October 2006 and December 2007, RFML sought to raise funds by an open-ended public offer of ordinary units in the Trust. Through a series of facility agreements, the first appellant, MacarthurCook Fund Management Ltd ("MacarthurCook") underwrote the public offer by subscribing for units in the Trust. One of the terms of the facility agreements was that "[s]ubject to compliance with any requirements under the Corporations Act and the Constitution, during the Subscription Period, Subscription Units held by MacarthurCook must be redeemed by [RFML] for their Issue Price". On 29 September 2008, RFML gave notice that it had suspended all "withdrawals" from the Trust until further notice. MacarthurCook instituted proceedings in the Supreme Court of New South Wales on the basis of RFML's failure to redeem Subscription Units in accordance with the relevant term of their issue. The Court of Appeal held that RFML's redemption would have constituted a withdrawal within the meaning of Pt 5C.6 of the Act. However, as RFML had not complied with the requirements prescribed by the Act, and because the relevant term of issue of the Subscription Units expressed RFML's obligation to redeem to be subject to compliance with the Act, RFML was not in breach. By special leave, MacarthurCook appealed to the High Court. The High Court held that a member does not withdraw from a scheme merely by reason of a responsible entity performing an obligation (or exercising a power compulsorily) to redeem the interest of the member. The Court held that the withdrawal by a member that is regulated by Pt 5C.6 of the Act involves some act of volition on the part of the member. It followed that RFML had breached its obligation to redeem the Subscription Units as s 601KA(3)(b) had no application in this case.

HIGH COURT OF AUSTRALIA 3 February 2021 OAKEY COAL ACTION ALLIANCE INC v NEW ACLAND COAL PTY LTD & ORS [2021] HCA 2 Today the High Court unanimously allowed an appeal from a judgment of the Court of Appeal of the Supreme Court of Queensland. The issue raised by the appeal was whether, after finding that recommendations made by the Land Court of Queensland ("Land Court") were affected by apprehended bias, the Court of Appeal ought to have referred the entirety of the matters to which the recommendations related back to the Land Court for full reconsideration, instead of making consequential orders limited to a declaration that procedural fairness had not been observed. New Acland Coal Pty Ltd ("New Acland") operated an open-cut coal mine near Oakey in Queensland. In seeking to expand the mine, New Acland applied for additional mining leases and for an amendment to its existing environmental authority. Oakey Coal Action Alliance Inc ("Oakey") and others lodged objections to each application. The Land Court recommended that both applications be rejected, including on the basis of issues relating to noise, groundwater and intergenerational equity ("Land Court's first decision"). On judicial review, the Supreme Court of Queensland rejected New Acland's arguments that the Member's conduct during the hearing gave rise to apprehended bias, but held that the recommendations were affected by errors of law and that certain matters should be referred back to the Land Court for further consideration by a different Member. In remitting matters to the Land Court for reconsideration, the Supreme Court directed that the parties were bound by the findings and conclusions reached in the Land Court's first decision on all issues other than those affected by errors of law, and also by the factual findings made in relation to noise. Following reconsideration by a different Member, the Land Court made recommendations that New Acland's applications for mining leases and an amendment to its environmental authority be approved subject to conditions ("Land Court's second decision"). The amendment to New Acland's environmental authority was subsequently granted by a delegate of the Chief Executive of the Department of Environment and Science ("Chief Executive"). On appeal from the Supreme Court's decision, the Court of Appeal allowed a cross-appeal by New Acland, holding that the recommendations made in the Land Court's first decision were affected by apprehended bias. However, rather than setting aside the qualified order for referral back made by the Supreme Court and remitting the matter to the Land Court for full reconsideration, the Court of Appeal made consequential orders limited to a declaration that the Land Court failed to observe procedural fairness in making the first decision. Following a grant of special leave to appeal to the High Court, Oakey argued that as the Land Court's second decision was affected by the same apprehended bias found by the Court of Appeal to have affected the Land Court's first decision, being based in part on the first decision-maker's findings and conclusions, the Court of Appeal should have set aside the Land Court's second decision and the Chief Executive's subsequent decision to approve the variation to New Acland's environmental authority. The High Court held that by adopting the findings and conclusions in the Land Court's first decision, the Land Court's second decision involved jurisdictional error in that it failed to observe the requirements of procedural fairness by reason of apprehended bias. Accordingly, the Court made orders setting aside the declaration made by the Court of Appeal and in its place ordered that the qualified order for referral back made by the Supreme Court be set aside, that New Acland's applications be referred back to the Land Court to be reconsidered according to law, and that the decision of the delegate of the Chief Executive be set aside.

HIGH COURT OF AUSTRALIA 10 November 2004 The conduct of Ms Subramaniam’s trial under the New South Wales Mental Health (Criminal Procedure) Act did not fully comply with the Act, the High Court of Australia held today. In August 1995, a car owned by Sydney solicitor Leigh Johnson failed to stop at a red light on Crown Street, Surry Hills. The driver’s identity could not be made out from the red-light camera photograph. Ms Johnson contested the charge. In February 1996, her employee Ms Subramaniam made a statutory declaration that she had been driving the car. However, the prosecutor refused to discontinue the case and to send an infringement notice to Ms Subramaniam. Ms Johnson was convicted in absentia in the NSW Local Court but successfully appealed to the District Court. In December 1996, Ms Subramaniam was charged with knowingly making a false statutory declaration and giving false evidence to the District Court. She was committed to stand trial. At her first trial in the NSW District Court in August 1999 the jury failed to reach a verdict. Her mental health had begun to deteriorate and she applied for a permanent stay of proceedings. The District Court rejected this and the Court of Criminal Appeal dismissed an appeal. In March 2001, the District Court directed that there be a hearing with respect to Ms Subramaniam’s fitness to stand trial. In September 2001, the Mental Health Review Tribunal found she was unfit to stand trial. She had been diagnosed with an adjustment disorder with severe anxiety and depressive features. The NSW Attorney-General, in accordance with section 19 of the Act, directed that a special hearing be conducted into the charges. The late Judge Charles Luland refused an application for a permanent stay and the trial by special hearing before a jury of 12 proceeded. A special hearing is similar to a criminal trial, with some added requirements. Among these, section 21(4) of the Act specifies that the judge at the outset must explain to the jury that the accused is unfit to be tried under normal procedures, the meaning of unfitness to be tried, the purpose of the special hearing, the verdicts available and the legal and practical consequences of those verdicts. Ms Subramaniam was found not guilty of giving false evidence but guilty of making the false statutory declaration. The Court of Criminal Appeal, by majority, dismissed an appeal. Ms Subramaniam appealed to the High Court on a number of grounds, including the ground that the special hearing miscarried because Judge Luland failed to comply with requirements imposed by section 21(4). The Court unanimously allowed the appeal on this ground, holding that his introductory remarks fell short of what was required. The mandatory nature of section 21(4) was not satisfied by Judge Luland’s other remarks during the trial, his summing-up, his answer to a question from the jury, or counsel’s submissions. Such a departure from section 21(4) constituted a miscarriage of justice which required the conviction to be quashed. The Court ordered a new trial, pointing out that it would be for the prosecution to decide whether to proceed.

HIGH COURT OF AUSTRALIA 8 June 2016 HALL v HALL [2016] HCA 23 Today the High Court dismissed an appeal from the Full Court of the Family Court of Australia. The High Court held, by majority, that the Full Court had correctly concluded that just cause had been shown for the discharge of an interim spousal maintenance order pursuant to s 83(1)(c) of the Family Law Act 1975 (Cth) ("the Act"). Under the Act, a person is liable to maintain their spouse to the extent that person is reasonably able to do so, if their spouse is unable to support herself or himself adequately. The appellant ("the wife") and the respondent ("the husband") were separated. The wife commenced proceedings against the husband in the Family Court seeking, among other relief, an interim spousal maintenance order. Her financial circumstances included ownership of two luxury cars which her brothers had purchased for her and an "interest", the value of which she did not know, in the estate of her late father that related to a family business ("the Group") founded by her father and controlled by her brothers. In the absence of information about the nature and extent of that interest, the primary judge did not take it into account as a financial resource of the wife. The primary judge made an interim spousal maintenance order. The husband applied for the discharge of that order. He relied on new evidence of the father's testamentary "wish[es]" that, first, the wife should receive from the Group a lump sum cash payment of $16,500,000 in the event of her divorce from the husband, and, second, that the wife should receive from the Group an annual payment of $150,000 until the date (if any) of the lump sum payment. The wife stated that she had not received any income or capital payment from the father's estate, but did not state whether she had requested payment from the Group. The primary judge dismissed the husband's application for discharge. On appeal, the Full Court found that the primary judge erred in failing to consider, and make any finding, as to whether there was sufficient new evidence before her to discharge the interim spousal maintenance order. Although the Full Court accepted that the making of the annual payment from the Group would have been voluntary, it found that the wife would have received the annual payment had she requested it of her brothers. The Full Court held that just cause had been shown for the discharge of the interim spousal maintenance order because, on the evidence before it, the wife was able to support herself adequately. By grant of special leave, the wife appealed to the High Court. By majority, the High Court held that the Full Court's finding that the wife would have received the annual payment had she requested it was well open on the evidence before it. On that finding, the annual payment was both a "financial resource" under s 75(2)(b) of the Act and a "fact or circumstance" under s 75(2)(o) of the Act, relevant to whether the wife was able to support herself adequately. The wife was also on notice of the risk of the Full Court's finding being made, such that she had not been deprived of any opportunity to lead further evidence.

HIGH COURT OF AUSTRALIA 5 December 2012 TONY PAPACONSTUNTINOS v PETER HOLMES A COURT [2012] HCA 53 Today a majority of the High Court dismissed an appeal brought by the appellant, Mr Tony Papaconstuntinos, against a finding that the respondent, Mr Peter Holmes à Court, had successfully made out a defence to a defamation claim brought against him by the appellant. The defamation claim arose out of events surrounding a proposal put forward by the respondent in 2005, according to which he and Mr Russell Crowe would inject $3 million into the South Sydney District Rugby League Football Club ("the Club") in exchange for a controlling interest in its management. The proposal was to be put to a vote of the Club's members at a general meeting. The appellant, a board member of the Club, was firmly opposed to the proposal. Two days prior to the scheduled meeting, the respondent sent a letter to the appellant's employer making certain allegations about the appellant. At a trial in the Supreme Court of New South Wales, it was found that the letter conveyed three imputations that were defamatory of the appellant. The respondent pleaded the common law defence of qualified privilege. The trial judge rejected that defence on the basis that the respondent lacked a sufficient interest in making the statements complained of. The respondent successfully appealed to the Court of Appeal of the Supreme Court of New South Wales. In his appeal to the High Court, the appellant submitted that the respondent could only make out the defence of qualified privilege if he could show that there had been a "pressing need" for him to make the statements. The requirement of "pressing need" was said to arise from the fact that the respondent's statements were made voluntarily and in the protection of interests that were purely personal. The High Court, by majority, rejected that contention. The defence of qualified privilege requires the maker of a defamatory statement to demonstrate reciprocity of duty and interest: that the maker had a duty to make, or an interest in making, the statement and that the recipient of the statement had a duty to hear, or an interest in hearing, that statement. There is no superadded requirement of "pressing need" that arises in circumstances where a defamatory statement was made voluntarily and to protect personal interests. The appeal was dismissed with costs.

HIGH COURT OF AUSTRALIA Public Information Officer 26 September 2007 VICKIE LEE ROACH v ELECTORAL COMMISSIONER AND COMMONWEALTH OF AUSTRALIA Amendments made in 2006 to the Commonwealth Electoral Act to disqualify all prisoners from voting were invalid, but previous legislation disqualifying prisoners serving sentences of three years or more was valid and remained operative, the High Court held in reasons published today for orders announced on 30 August 2007. Ms Roach was convicted in Victoria in 2004 on charges relating to a robbery and to seriously injuring a man when she crashed into his car while being chased by police and was sentenced to a total of six years’ jail with a four-year non-parole period. She challenged the 2006 amendments and, in addition, the previous legislation. The Court, by a 4-2 majority, held that the 2006 amendments were inconsistent with the system of representative democracy established by the Constitution. The Court held that voting in elections lies at the heart of that system of representative government and disenfranchisement of a group of adult citizens without a substantial reason would not be consistent with it. Since 1902, Commonwealth legislation has provided that certain prisoners were not entitled to vote. Until 1983, persons sentenced or subject to be sentenced for an offence punishable by imprisonment for one year or longer could not vote. From 1983 to 1995, the period was five years. From 1995 to 2004, the reference to an offence punishable by imprisonment for five years or longer was altered to refer to those serving a sentence of five years or longer. From 2004 to 2006, the threshold was reduced to three years. In 2006, the Commonwealth Electoral Act was amended to provide that people serving any sentence of imprisonment were disqualified from voting in federal elections. The Court held that the 2006 amendments did not sufficiently distinguish more culpable conduct from conduct that was still criminal but less culpable, as they treated indifferently imprisonment for a few days, mandatory sentences and sentences for offences of strict liability. The amendments did not relate to all people in prison. At 30 June 2006, 22 per cent of 25,790 people in Australian prisons were unsentenced prisoners who could vote by postal vote or at mobile polling booths. Conversely, fines, community service, home detention and periodic detention did not lead to loss of the vote but such alternatives to prison were not available all over Australia and may not be practical due to poverty, homelessness or mental instability. The net of disqualification was cast too wide and went beyond the rationale for justifying a suspension of a fundamental incident of citizenship. By contrast, the three-year criterion in the pre-2006 legislation did sufficiently distinguish between serious lawlessness and less serious but still reprehensible conduct. The Court also observed that a prohibition on prisoners voting imposed stricter standards upon eligibility to vote than the Constitution imposes upon eligibility to stand for election to be a senator or member of the House of Representatives. Section 44 of the Constitution provides that anyone serving or facing a sentence of one year or longer is disqualified from standing for federal election or from remaining in Parliament.

HIGH COURT OF AUSTRALIA 15 June 2016 HAMDI ALQUDSI v THE QUEEN [2016] HCA 24 Today the High Court published its reasons for orders made after a hearing on 10 February 2016 dismissing the applicant's motion for an order that he be tried by a judge without a jury. The High Court held that provisions of the Criminal Procedure Act 1986 (NSW) ("the CPA") which provided for trial by a judge without a jury were not capable of being applied to the applicant's trial because their application would be inconsistent with s 80 of the Constitution. The applicant was charged on indictment with seven offences under the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth) ("the Act"). Section 9A of the Act provided that a prosecution for an offence against the Act "shall be on indictment". Section 68 of the Judiciary Act 1903 (Cth) ("the Judiciary Act") confers jurisdiction on the courts of a State or Territory to try offences against a law of the Commonwealth and applies the laws of the State or Territory respecting procedures for trials on indictment. The applicant was arraigned on the indictment in the Supreme Court of New South Wales and pleaded "not guilty" to each charge. His trial was listed to commence on 1 February 2016 before a judge and jury. By notice of motion filed in the Supreme Court, the applicant sought an order under s 132 of the CPA that he be tried by a judge alone. That notice of motion was removed into the High Court and a case stated for consideration by the Full Court. The question referred to the Full Court by the case stated was whether s 132(1) to (6) of the CPA were incapable of being applied to the applicant's trial by s 68 of the Judiciary Act because their application would be inconsistent with s 80 of the Constitution, which states, "[t]he trial on indictment of any offence against any law of the Commonwealth shall be by jury". The majority found that that question could only be answered favourably to the applicant by overruling Brown v The Queen (1986) 160 CLR 171; [1986] HCA 11. The majority declined to do so, holding there was no reason to doubt the correctness of Brown. Their Honours rejected the argument that s 80 could be read as subject to exception when, for example, a court assesses it is in the interests of justice that the trial on indictment of an offence against a law of the Commonwealth be by judge alone.

HIGH COURT OF AUSTRALIA 14 November 2012 ANDREW VINCENT MILLS v COMMISSIONER OF TAXATION [2012] HCA 51 Today the High Court allowed an appeal against a decision of the Full Court of the Federal Court of Australia and set aside a determination of the Commissioner of Taxation ("the Commissioner") that no franking credit is to arise in respect of distributions made on certain securities issued by the Commonwealth Bank of Australia ("the Bank"). On 14 October 2009 the Bank issued ten million "Perpetual Exchangeable Resaleable Listed Securities V" ("PERLS V"), each comprising a preference share stapled to an unsecured promissory note issued out of the Bank's New Zealand branch, and with an aggregate issue price of $2 billion. The Bank issued PERLS V to meet projected capital requirements cost-effectively and consistently with applicable prudential standards requiring a certain proportion of "Tier 1" capital. Holders of PERLS V were entitled to quarterly distributions, which were expected to be fully franked and paid by the Bank's New Zealand branch out of funds earned by the New Zealand branch. The Commissioner and the Bank agreed to test in a court the application of s 177EA of the Income Tax Assessment Act 1936 (Cth) ("the ITAA 1936") to the arrangements for the franking of distributions on PERLS V and for the Bank, if unsuccessful, to make a cash payment to the Commissioner settling the obligations of PERLS V holders. On 14 December 2009 the Commissioner made a determination under s 177EA(5)(b) of the ITAA 1936 in relation to Mr Andrew Mills, a holder of PERLS V and an Australian resident, that no imputation benefit was to arise in respect of the first franked distribution that the Bank was to make on PERLS V. The Commissioner disallowed an objection to that determination and Mr Mills commenced a proceeding in the Federal Court of Australia under Pt IVC of the Taxation Administration Act 1953 (Cth). The primary judge, and a majority of the Full Court of the Federal Court, found for the Commissioner, holding that having regard to the "relevant circumstances" of the arrangements for the issue of PERLS V, it would, within the meaning of s 177EA(3)(e) of the ITAA 1936, be concluded from the perspective of a reasonable person that the Bank entered into and carried out those arrangements "for a purpose (whether or not the dominant purpose but not including an incidental purpose) of enabling" a holder of PERLS V to obtain an imputation benefit. The High Court held unanimously that the relevant circumstances to be taken into account included that distributions on the securities were to be paid by the New Zealand branch of the Bank without payment of Australian income tax by the Bank on the source of funding and that without the issue of PERLS V the Bank would have raised Tier 1 capital by other means at higher cost. The High Court held that although it would be concluded that the Bank had a purpose of enabling PERLS V holders to obtain an imputation benefit, that purpose was incidental to its purpose of raising Tier 1 capital. As the purpose was an incidental purpose, a necessary precondition to the Commissioner's power to make the determination was not satisfied.

HIGH COURT OF AUSTRALIA 21 October 2005 The High Court of Australia today ordered a retrial for Mr Stevens who was convicted of the shooting murder of his friend and business partner Murray Cameron Brockhurst. Mr Stevens and Mr Brockhurst co-owned Australian Carbide Saws in the Brisbane suburb of Newmarket. They were also friends who holidayed, fished, dived and socialised together. However, Mr Brockhurst wished to buy out Mr Stevens’s interest in their company and to sell him his interest in another company, JLM Grinding. Negotiations were inconclusive. On the day of his death, 22 June 2000, Mr Brockhurst bought into another competing business, Stotts Saws. Mr Stevens arrived at their premises to discuss their business affairs. He said he walked into Mr Brockhurst’s office to find him with Mr Stevens’s old .22 calibre rifle held up in front of him. Fearing his friend was about to commit suicide, he lunged for the rifle but it discharged and Mr Brockhurst was shot in the head. Mr Stevens attempted to revive Mr Brockhurst and called an ambulance, telling the operator the shooting had been an accident. Scientific officers and a ballistics expert called by the prosecution found that the rifle was prone to discharge if dropped on its butt. The ballistics expert found that striking the gun with his hand caused it to discharge one in five times. There had been conflicting evidence about Mr Brockhurst’s state of mind. In 2002, Mr Stevens was charged with murdering Mr Brockhurst. At his first trial in the Queensland Supreme Court, the jury could not reach a verdict. He was later convicted at another trial in 2003. He unsuccessfully appealed to the Court of Appeal. Mr Stevens contended that the trial judge had failed to direct the jury on the defence of accident. He appealed to the High Court, which allowed his appeal by a 3-2 majority. The majority held that the evidence did raise a defence of accident which was for the prosecution to negative. It held that the trial judge should have instructed the jury that Mr Stevens could not be convicted of murder unless the prosecution had satisfied it beyond reasonable doubt that the death of Mr Brockhurst was not an accident.

HIGH COURT OF AUSTRALIA 16 May 2007 Public Information Officer GENERAL MOTORS ACCEPTANCE CORPORATION AUSTRALIA AND AUTO GROUP LIMITED (receivers and managers appointed) (administrators appointed) v SOUTHBANK TRADERS PTY LTD A vendor of motor vehicles sold on terms in which title did not pass to the purchaser until the total purchase price was paid had a security interest in the vehicles within the meaning of the Victorian Chattel Securities Act, the High Court of Australia held today. In 2002, Southbank Traders, a motor vehicle wholesaler, sold 10 vehicles to Kingstrate Pty Ltd, trading as Dandenong Suzuki. The sale agreement contained a clause by which the vendor retained title to the goods until the purchase price was paid. Kingstrate took possession of the vehicles. While the purchase price was still unpaid, Kingstrate sold on the vehicles to a financier, General Motors Acceptance Corporation (GMAC), while still displaying them for sale. One vehicle was later sold to a member of the public and is not the subject of litigation. GMAC registered a security interest under the Chattel Securities Act in December 2002. Southbank did not register a security interest at the time of the original sale. The Act defines “security interest” as an interest in or a power over goods which secures payment of a debt or the performance of any other obligation and includes an interest in or power over goods of a lessor, owner or other supplier of goods. Section 7(1) of the Act provides that, where a secured party has an unregistered security interest or a registered inventory security interest in goods but is not in possession of them, and a purchaser purchases or purports to purchase the goods for value in good faith and without notice of the security interest from a supplier who is the debtor or another person in possession of the goods, the security interest of the secured party is extinguished. In May 2003, Southbank sued GMAC for conversion (wrongful dealing with goods inconsistently with the owner’s rights) or alternatively for detinue (wrongful detention of goods). Southbank denied that its interest was a “security interest”. It also disputed that GMAC’s purchase or purported purchase was for value in good faith and without notice. In the Victorian County Court, Judge Timothy Holt dismissed Southbank’s claim on the ground that it had an unregistered security interest in the vehicles which had been extinguished upon the purchase or purported purchase of the vehicles by GMAC by the operation of section 7(1). Judge Holt’s decision was reversed by the Victorian Court of Appeal, which held that Southbank did not have a security interest and that section 7(1) did not apply to extinguish its interest, so it was entitled to succeed. GMAC appealed to the High Court. The High Court unanimously allowed the appeal. It held that Southbank, as a vendor of motor vehicles sold by way of conditional sale, on terms that title did not pass to Kingstrate until the purchase price was paid in full, had a security interest in the vehicles within the meaning of the Chattel Securities Act and that this interest was extinguished by section 7(1). The Court held that a conclusion that “security interest” includes conditional sales is consistent with the purpose of the legislation, the statutory context, and the text itself. Outstanding issues were remitted to the Court of Appeal, which may then be remitted to the County Court for further trial.

HIGH COURT OF AUSTRALIA 6 April 2016 [2016] HCA 12 Today the High Court unanimously allowed an appeal from a decision of the Court of Appeal of the Supreme Court of Queensland. The High Court held that where proof of intention to produce a particular result is made an element of liability for an offence, the prosecution is required to establish that the accused meant to produce that result by his or her conduct. The majority reasoned that knowledge or foresight of result, whether possible, probable or certain, is not a substitute for proof of specific intent. The appellant was convicted by a jury in the District Court of Queensland of unlawfully transmitting a serious disease to another with intent to do so under s 317(b) of the Criminal Code (Q). The serious disease that he transmitted to the complainant was the human immunodeficiency virus ("HIV"). The appellant was diagnosed with HIV in 1998 and was informed then that there was a risk of transmission of the disease through unprotected sexual intercourse. He commenced a relationship with the complainant in 2007 but did not disclose to her that he was HIV positive. They engaged in frequent unprotected sexual intercourse during their relationship, which lasted until September 2008. The complainant was diagnosed as HIV positive a year after their relationship ended. The appellant lied to the complainant about his HIV status several times during and after their relationship. The appellant appealed against his conviction to the Court of Appeal contending, that the verdict was unreasonable as the evidence did not establish that he intended to transmit HIV to the complainant. The Court of Appeal dismissed the appeal. The majority held that it was open to the jury to be satisfied beyond reasonable doubt that the appellant intended to transmit HIV to the complainant, in circumstances in which he had engaged in frequent acts of unprotected sexual intercourse with her, knowing that he was HIV positive. By grant of special leave, the appellant appealed to the High Court. The High Court held that where liability for an offence requires proof of intention to produce a particular result, the prosecution must establish that the accused had that result as his or her purpose or object at the time of engaging in the conduct. Purpose is not to be equated with motive and a person may engage in conduct having more than one purpose. A person's awareness of the risk that his or her conduct may result in harm does not, without more, support the inference that the person intended to produce the harm. The High Court held that, apart from the evidence that the appellant engaged in frequent unprotected sexual intercourse with the complainant, there was no evidence to support the inference that the appellant had the intention to transmit HIV to her. It followed that the conviction must be quashed. The Court set aside the orders of the Court of Appeal and substituted for the verdict of the jury a verdict of guilty of unlawfully doing grievous bodily harm to the complainant, to which the appellant had pleaded guilty. The proceedings were remitted to the District Court of Queensland for sentence.

HIGH COURT OF AUSTRALIA Public Information Officer 28 February 2007 Z v NEW SOUTH WALES CRIME COMMISSION A solicitor appearing before the New South Wales Crime Commission was obliged to provide the name and address of a client and could not rely on legal professional privilege, the High Court of Australia held today. In September 2003, the solicitor, Z, was summonsed to attend the Commission to give evidence in relation to an investigation into the attempted murder of M. Z’s client, X, had twice given Z certain information about M and, as instructed by X, Z had passed on that information to police. M was attacked in 2002, some years after X had consulted Z. When asked at a Commission hearing who had provided the information he had passed on to police and where that person could be contacted, Z declined to answer on the ground that the communications conveying that information were the subject of legal professional privilege. The Commission member conducting the hearing ruled that the communications were not privileged. Section 18B(4) of the New South Wales Crime Commission Act provides that, if a lawyer is required to answer a question at a hearing and the answer would disclose a privileged communication with someone else, the lawyer is entitled to refuse to comply, but if required the lawyer must provide the Commission with the name and address of the person with whom the communication was conducted. The NSW Supreme Court dismissed an application for review of that ruling and the Court of Appeal refused Z leave to appeal. Z then appealed to the High Court. In a 5-0 decision, the Court dismissed the appeal. Three members of the Court held that even if the communication of X’s name and address to Z were otherwise subject to legal professional privilege, the qualification in section 18B(4) gave the Commission power to require disclosure of the name and address. Two members held that, because what X told Z was for the express purpose of being passed on to the police, the communications were not privileged, not confidential and not for the dominant purpose of obtaining legal advice.

HIGH COURT OF AUSTRALIA Public Information Officer 12 December 2007 The date that a man had sexual intercourse with a teenage girl was not essential to proving the offence of having sex with a child aged between 12 and 17, the High Court of Australia held today. WGC, 58, a general practitioner, was charged with two counts of sexual intercourse with a girl aged between 12 and 17 between 31 January and 28 February 1986 around Renmark in South Australia. At that time, the girl, the daughter of friends of WGC, was 13. She is now 35. At his trial in the SA District Court in July 2006, WGC alleged that the offences, which arose from a single sexual encounter on a houseboat, occurred when the girl was 16 and relied on a defence under section 49(4) of the Criminal Law Consolidation Act that he believed on reasonable grounds that she was 17. Her family went on several summer houseboat holidays during the 1980s accompanied by WGC and other family friends. In December 1986 when the girl was 14 she consulted WGC professionally and he took a pap smear. WGC said they had sex in 1989 and believed she was 17 because she had finished school, her friend was 20 and he thought she was two or three years younger, and he was aware the girl had had sex with a friend of his and he believed the other man would not have done so if she were under age. Her date of birth was recorded in his clinical notes. WGC was convicted on both counts, but has not yet been sentenced. The uncertainty about whether the jury had decided on the basis that the offences took place in either 1986 or 1989 or whether they divided on the year and whether, if any members accepted that the offences occurred in 1989, they accepted the defence under section 49(4) of the Act gave rise to WGC’s unsuccessful appeal to the SA Court of Criminal Appeal (CCA). He then appealed to the High Court. WGC alleged that the CCA and the trial judge erred in failing to treat the date of the offences as material which had to be proven beyond reasonable doubt. He also alleged that the verdicts were uncertain or void in that they jury’s reasoning may have taken different paths. WGC argued that two sets of offences should have been identified, one where the complainant was alleged to be 16 and one where she was not. The High Court, by a 3-2 majority, dismissed the appeal. The majority held that date was not material and all that the prosecution was required to prove was that the girl was aged somewhere between 12 and 17, as the sexual intercourse was criminal whether it occurred in 1986 or 1989. Because the date was not essential, WGC was able to seek to confess and avoid the charge by admitting that intercourse occurred but alleging that it occurred in circumstances in which he had a defence under section 49(4) of the Act. The trial was conducted on the basis that the offences could have occurred when the girl was either 13 or 16 and no amendment was ever made to the particulars of the offence. In relation to uncertainty of verdicts, the majority held that the guilty verdicts showed no more than that the jurors agreed that WGC had not established the defence on which he relied. The jury’s verdicts did not reveal which elements of that defence were found not to have been proved. The different routes that the jury may have taken would be taken into account in sentencing.

HIGH COURT OF AUSTRALIA 9 October 2013 JASON LEE (AKA DO YOUNG LEE) & ANOR v NEW SOUTH WALES CRIME COMMISSION [2013] HCA 39 Today the High Court, by majority, dismissed an appeal from the Court of Appeal of the Supreme Court of New South Wales, which had ordered that the appellants be compulsorily examined under oath before a registrar of the Supreme Court of New South Wales pursuant to s 31D of the Criminal Assets Recovery Act 1990 (NSW) ("the Act"). The appellants were each charged with drug and firearm offences and the first appellant was also charged with an offence of money laundering. The New South Wales Crime Commission ("the Commission") applied to the Supreme Court for orders under s 31D(1)(a) of the Act that the first appellant be examined on oath concerning his own affairs and that the second appellant be examined on oath concerning the affairs of the first appellant and a third party. There was a risk that the subject matter of those examinations would overlap with the subject matter of the pending criminal proceedings. A judge of the Supreme Court declined to make the orders sought by the Commission, holding that the risk such examinations posed to the appellants’ pending trials may not be avoided by provisions of the Act. The Commission applied for leave to appeal to the Court of Appeal. At that time, the appellants had been convicted of some of the drug and firearm charges and had lodged appeals against those convictions. The original money laundering charge and further money laundering charges against the first appellant were listed for trial. The Court of Appeal granted the Commission leave to appeal, allowed the appeal and made orders for the examination of the appellants. By special leave, the appellants appealed to the High Court. In the High Court, the appellants argued that s 31D of the Act should not be construed as conferring power to order the examination on oath of a person against whom criminal proceedings have been commenced but not completed, to the extent that the subject matter of the examination would overlap with the subject matter of those proceedings. The High Court, by majority, dismissed the appeal. The Court held that s 31D, when read in the context of the Act, authorised the Supreme Court to order such an examination. The potential prejudice to the fair trial of the examinee was mitigated by limitations on how information elicited from an examination could be used in criminal proceedings and by the discretion of the Supreme Court to decline to make an examination order in exercise of its inherent power to prevent the misuse of its processes. The minority Justices held that the case was governed by the High Court’s decision in X7 v Australian Crime Commission (2013) 87 ALJR 858; (2013) 298 ALR 570; [2013] HCA 29 and that the appeal should be allowed.

HIGH COURT OF AUSTRALIA 9 December 2020 [2020] HCA 47 Today, the High Court, by majority, allowed an appeal from the Court of Appeal of the Supreme Court of Queensland ("the QCA") concerning the partial defence of provocation, which, under s 304 of the Criminal Code (Qld), reduces what would otherwise be murder to manslaughter. Section 304(3) excludes the defence (save in extreme and exceptional circumstances) in the case of the unlawful killing of the accused's domestic partner where the sudden provocation is "based on" anything done, or believed to have been done, by the deceased to end or change the relationship or indicate such an end or change (collectively, "to change the relationship"). The appellant killed his wife with sustained ferocity in circumstances in which it was open to find that he was angered by a belief that she had been unfaithful to him and that she may have been planning to leave him and take their four children with her. In conversations with police the appellant said that during an argument the deceased threatened him with a knife and, in trying to disarm her, he sustained a deep cut to his hand (the "conduct with the knife"). The appellant's case was that he lost control because of the conduct with the knife. The jury was directed that in order to rely on provocation the appellant had to prove, on the balance of probabilities, that: (1) he killed the deceased while in a state of temporary loss of self-control induced by her conduct with the knife; (2) an ordinary person in his position might have been induced to so lose self-control as to form, and act upon, an intention to kill or do grievous bodily harm; and (3) the appellant's loss of self-control was not "based on" anything done, or believed to have been done, by the deceased to change the relationship ("the sub-s (3) limb"). The jury found the appellant guilty of murder. The appellant challenged his conviction in the QCA, arguing that the trial judge erred in directing the jury that he was required to prove the sub-s (3) limb when he had contended his loss of self-control was caused only by the conduct with the knife. By majority, the QCA dismissed his appeal, holding that the use of the words "based on" in s 304(3), in contrast with "caused by" elsewhere in s 304, invites consideration of whether the sudden provocation is, in fact, founded upon something done by the deceased to change the relationship. On this view, notwithstanding that the jury may have been satisfied that the conduct with the knife caused the appellant to lose his self-control, the trial judge was right to instruct the jury to go on to consider the sub-s (3) limb. A majority of the High Court held that s 304 requires an accused first to nominate something done, or believed to have been done, by the deceased and secondly to prove not only that the killing was done in a state of loss of self-control but that the state was induced by the nominated conduct. Leaving aside extreme and exceptional circumstances, whether s 304(3) excludes the defence is a question of law requiring consideration only of whether the nominated conduct was something done to change the relationship. Here, it was fanciful to suggest that the conduct with the knife was itself such an act and the trial judge was wrong to direct the jury that the appellant was required to prove the sub-s (3) limb. The appeal was allowed and a new trial ordered.

HIGH COURT OF AUSTRALIA 16 March 2022 UNS nsNSW COMMISSIONER OF POLICE v TREVOR COTTLE & ANOR [2022] HCA 7 Today, the High Court unanimously dismissed an appeal from a decision of the Court of Appeal of the Supreme Court of New South Wales. The appeal concerned whether the first respondent, who had been retired on medical grounds as a non-executive police officer by the appellant ("the Police Commissioner") under s 72A of the Police Act 1990 (NSW), could make an unfair dismissal application to the Industrial Relations Commission of New South Wales ("the IR Commission") pursuant to s 84(1) of Pt 6 of the Industrial Relations Act 1996 (NSW) ("the IR Act"). The High Court held that s 72A of the Police Act did not expressly, or by necessary implication, exclude or modify the operation of Pt 6 of Ch 2 of the IR Act. Accepting that the NSW Police Force performs unique functions within the community, the plurality concluded that that characterisation must yield to the express terms of Pt 6 of Ch 2, and ss 85 and 218 of the Police Act. Relevantly, Pt 6 of Ch 2 applied to the dismissal of "any public sector employee", which was further defined to include a member of the NSW Police Force; s 85 provided that the Police Commissioner was to be the employer of non-executive police officers for proceedings dealing with industrial matters; and s 218(1) evinced a parliamentary intention that, subject to sub-s (2), the IR Act was not affected by the Police Act. The majority distinguished s 72A from the power to dismiss probationary police officers in s 80(3) of the Police Act, which was found to be inconsistent with s 84(1) of the IR Act in Commissioner of Police (NSW) v Eaton (2013) 252 CLR 1. Section 72A was also distinguishable from the very similar power under s 50 to cause the retirement of executive police officers, which was expressly immunised from the reach of Pt 6 of The High Court therefore held that the Court of Appeal was correct to conclude that the IR Commission had jurisdiction to hear and determine the first respondent's application for unfair dismissal. The plurality concluded that, although the Police Commissioner was under no obligation to give reasons for an exercise of power under s 72A of the Police Act, the three objective criteria in s 72A provided a stable basis for the IR Commission to assess whether a non-executive police officer's retirement was "harsh, unreasonable or unjust". A similar power to s 72A existed in respect of other public sector employees, who enjoyed rights to seek review in the IR Commission for unfair dismissal. Even where the primary remedies for unfair dismissal – reinstatement or re- employment – were not apt to be applied in respect of non-executive police officers, the IR Commission would still have the power to order compensation.

HIGH COURT OF AUSTRALIA 4 August 2005 THE QUEEN v WAYNE KELVIN LAVENDER Malice is not an element of the offence of manslaughter either at common law or under the New South Wales Crimes Act, the High Court of Australia held today. On 2 October 2001, Mr Lavender ran over a 13-year-old boy with a front-end loader when he pursued four boys trespassing at the sand mine at Redhead near Newcastle where he worked. The loader travelled at four kilometres per hour. The driver’s vision was obscured by a bucket on the front. Mr Lavender was driving the loader through thick vegetation after the boys when he ran over the victim. He was convicted in 2003 of manslaughter by criminal negligence and was sentenced to four years’ imprisonment with a non-parole period of 18 months. The conviction came at the end of his third trial, the first ending in a jury disagreement and the second ending when an unrelated point of law was referred for decision. Mr Lavender successfully appealed against his conviction. The NSW Court of Criminal Appeal, by majority, held that the trial judge’s directions to the jury on manslaughter by criminal negligence were inadequate because he failed to address whether the act causing death was done maliciously. The prosecution appealed to the High Court, contending that malice is not an element of involuntary manslaughter, either at common law or under the Crimes Act. The Court unanimously allowed the appeal and overturned the Court of Criminal Appeal’s decision. At common law, murder was the form of unlawful homicide accompanied by malice aforethought, while manslaughter was unlawful homicide not involving malice aforethought. That distinction was reflected in section 376 of the Crimes Act which provided that in an indictment for murder the accused would be charged with feloniously and maliciously murdering the deceased and in an indictment for manslaughter with feloniously slaying the deceased. Section 18 defines the crime of murder, and goes on to provide that every other punishable homicide shall be taken to be manslaughter. It also states: “No act or omission which was not malicious … shall be within this section”. The Court held that section 18, understood in context, did not alter the common law of unlawful homicide by involuntary manslaughter. The words “within this section” refer to the work done by the section in defining the crime of murder. Mr Lavender was released from prison after the Court of Criminal Appeal decision, seven months before the end of the 18-month non-parole period. In view of the three trials and the time elapsed, the High Court stayed its orders for 28 days to allow Mr Lavender to seek leave from the Court of Criminal Appeal to appeal against his sentence.

HIGH COURT OF AUSTRALIA 26 October 2011 COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS v MALGORZATA [2011] HCA 43 Today the High Court granted special leave to appeal but dismissed an appeal by the Commonwealth Director of Public Prosecutions against the decision of the Full Court of the Supreme Court of South Australia, which had set aside the respondent's convictions under s 135.2(1) of the Criminal Code (Cth) ("the Code"). Section 135.2(1) of the Code makes it an offence for a person to engage in conduct and, as a result of that conduct, to obtain a financial advantage from a Commonwealth entity, knowing or believing that he or she is not eligible to receive that financial advantage. Section 4.1(2) of the Code relevantly defines "conduct" as including "an omission to perform an act" and "engage in conduct" as including "omit to perform an act". Section 4.3(a) of the Code provides that an omission to perform an act can only be a physical element of an offence if the law creating the offence makes it The respondent was charged with 17 counts of obtaining a financial advantage contrary to s 135.2(1). Each of the charges against the respondent related to her receipt of part-payments of the Parenting Payment Single ("PPS") from the Commonwealth entity "Centrelink". The allegation in each case was that the respondent was not entitled to part-payment of the PPS because she had failed to advise Centrelink of her receipt of payments of commission from her employer. It was not alleged that the respondent was under a duty imposed by a law of the Commonwealth to advise Centrelink of the receipt of those commission payments. The respondent pleaded guilty before the Magistrates Court of South Australia to each of the charges and was sentenced to 21 months' imprisonment, subject to the direction that she be released immediately upon entering a bond to be of good behaviour for two years. The respondent unsuccessfully appealed against the severity of the sentence to the Supreme Court of South Australia. The respondent then appealed to the Full Court of the Supreme Court of South Australia, challenging her convictions on the grounds that the counts did not charge offences known to law, and that the counts were deficient in their failure to identify the transaction, act or omission on which liability was said to depend. The Full Court allowed the appeal and set aside the respondent's convictions. The Commonwealth Director of Public Prosecutions' application for special leave to appeal to the High Court was referred to the Full Court, where it was heard as on appeal. The central issue on appeal was whether the omission to perform an act that a person is not under a legal obligation to perform may be a physical element of the offence created by s 135.2(1) of the Code. The Court held by majority that the law creating the offence in s 135.2(1) does not make the omission of an act a physical element of the offence, either expressly or impliedly, within the meaning of s 4.3(a).

H IG H CO U RT O F A U S T RA L IA 3 June 2020 BINSARIS v NORTHERN TERRITORY OF AUSTRALIA; WEBSTER v NORTHERN TERRITORY OF AUSTRALIA; O'SHEA v NORTHERN TERRITORY OF AUSTRALIA; AUSTRAL v NORTHERN TERRITORY OF AUSTRALIA [2020] HCA 22 Today the High Court unanimously allowed four appeals from a judgment of the Court of Appeal of the Supreme Court of the Northern Territory. The appeals concerned the use in the Don Dale Youth Detention Centre in Darwin ("the Detention Centre") of a CS fogger, which is a dispersal device for CS gas (a form of tear gas) and a prohibited weapon under the Weapons Control Act (NT). The appellants were exposed to CS gas on 21 August 2014 whilst detained in the Behavioural Management Unit ("BMU") of the Detention Centre. The prison officer who deployed the CS gas using a CS fogger was a member of an Immediate Action Team from Berrimah Correctional Centre, an adult prison. The team had been mobilised to respond to an emergency situation in the BMU and deployed the CS gas to render one detainee compliant. The appellants were exposed to and affected by the CS gas. Section 6 of the Weapons Control Act provides that a person must not "possess, use or carry ... a prohibited weapon except if permitted to do so by an exemption under section 12". Section 12(2)(a) exempts a "prescribed person acting in the course of his or her duties as a prescribed person in respect of a prohibited weapon" that is supplied to him or her by his or her employer "for the performance of his or her duties as a prescribed person". A prison officer under the Prisons (Correctional Services) Act (NT) is a prescribed person, however a youth justice officer and the superintendent of a youth detention centre are not. The appellants commenced proceedings in the Supreme Court of the Northern Territory against the respondent, relevantly claiming damages for batteries alleged to have been committed by the prison officer who deployed CS gas in the Detention Centre on 21 August 2014. The primary judge dismissed those claims. Her Honour found that the prison officer was acting in the course of his duties, having been called upon to assist in an emergency situation under s 157(2) of the Youth Justice Act (NT) and directed by the Director of Correctional Services to deploy the gas; that the exemption under s 12(2) of the Weapons Control Act was engaged; and that the prison officer had been delegated all powers necessary for the superintendent to maintain order and ensure the safe custody and protection of persons within the precincts of the Detention Centre. The appellants' appeals to the Court of Appeal were dismissed. By grant of special leave, the appellants appealed to the High Court in relation to their exposure to CS gas. Allowing the appeal, the High Court unanimously held that the appellants were entitled to damages in respect of their claims for battery. By majority, the Court found that the deliberate and intentional use by the prison officer of a CS fogger to deploy CS gas in the Detention Centre was not lawful. The use of the CS fogger was not authorised by s 157(2) or other provisions of the Youth Justice Act. Nor was it authorised by provisions of the Prisons (Correctional Services) Act that conferred the powers of police officers on prison officers acting in the course of their duties, or authorised prison officers to possess and use a weapon in a prison. The exemption in s 12(2) of the Weapons Control Act was not therefore engaged.

HIGH COURT OF AUSTRALIA 27 June 2014 FTZK v MINISTER FOR IMMIGRATION AND BORDER PROTECTION & ANOR [2014] HCA 26 Today the High Court unanimously allowed an appeal against a decision of the Full Court of the Federal Court of Australia and held that the Administrative Appeals Tribunal ("the AAT") committed jurisdictional error in affirming the decision of the Minister for Immigration and Border Protection ("the Minister") to refuse the appellant a protection visa. The appellant, a national of the People's Republic of China ("the PRC"), applied for a protection visa under s 36 of the Migration Act 1958 (Cth) ("the Act"), claiming to be a person in respect of whom Australia owed protection obligations under the Refugees Convention ("the Convention"). In refusing the appellant a protection visa, the Minister found that notwithstanding that the appellant was a refugee within the meaning of Art 1A(2) of the Convention, he was excluded from protection under the Convention by Art 1F(b) on account of his alleged involvement in the crimes of kidnapping and murder in the PRC in 1996. Article 1F(b) provides that the Convention shall not apply to any person with respect to whom there are serious reasons for considering that he or she has committed a serious non-political crime outside the country of refuge prior to admission to that country as a refugee. In the exercise of its review function, the AAT applied Art 1F(b) to affirm the Minister's decision. The AAT recorded that it was not in dispute that the crimes alleged against the appellant were serious non-political crimes for the purposes of Art 1F(b). The AAT was satisfied, on the basis of several findings, that there were serious reasons for considering that the appellant had committed serious non-political crimes. An appeal against the orders made by the AAT to the Full Court of the Federal Court of Australia was dismissed. By grant of special leave, the appellant appealed to the High Court. The High Court unanimously held that the reasons of the AAT revealed jurisdictional error. The factors relied upon by the AAT were not logically probative of the appellant having committed one or more of the crimes alleged. Accordingly, the AAT misconstrued the test it had to apply. The Court quashed the AAT's decision and ordered that a differently constituted AAT review the Minister's decision according to law.

HIGH COURT OF AUSTRALIA 18 March 2020 STATE OF WESTERN AUSTRALIA v MANADO & ORS; STATE OF WESTERN AUSTRALIA v AUGUSTINE & ORS; COMMONWEALTH OF AUSTRALIA v AUGUSTINE & ORS; COMMONWEALTH OF AUSTRALIA v MANADO & ORS [2020] HCA 9 Today the High Court unanimously allowed four appeals from a judgment of the Full Court of the Federal Court of Australia. The appeals concerned the confirmation of existing public access to and enjoyment of land or waters which are the subject of native title determinations under the Native Title Act 1993 (Cth). Section 212(2) of the Native Title Act relevantly reposes in the Commonwealth, a State or a Territory the authority to, by legislation, "confirm any existing public access to and enjoyment of" waterways, beds and banks or foreshores of waterways, coastal waters, or beaches ("beaches and foreshores"). Pursuant to s 212(2), the Parliament of Western Australia enacted s 14 of the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) ("the Titles Validation Act"), which confirmed the ability of members of the public as of 1 January 1994 (being the date s 212(2) commenced) to access and enjoy beaches and foreshores. Section 225(c) of the Native Title Act requires a determination of the existence of native title in relation to a particular area to include a determination of "the nature and extent of any other interests in relation to the determination area". Section 253 relevantly defines "interest" as including "any other right" or "privilege" over or in connection with land or waters. A judge of the Federal Court made two determinations of native title over land and waters in the Dampier Peninsula, Western Australia, which relevantly included areas of unallocated Crown land comprised of beaches and foreshores. In doing so, the judge recorded the existing public access to and enjoyment of these beaches and foreshores pursuant to the confirmation by s 14 of the Titles Validation Act, within the category of "Other Interests". The primary judge held that because public access to and enjoyment of the relevant land and waters was not proscribed, it was a "privilege" which, as confirmed by s 14 of the Titles Validation Act, fell within the definition of "interest" as defined in s 253 of the Native Title Act, and was accordingly within the category of "other interests" in relation to the determination areas within the meaning of s 225(c). On appeal, the Full Court held that the primary judge erred in the construction of these terms because the ability of the public to access and enjoy the beaches and foreshores was neither a "privilege" nor an "other interest". By grant of special leave, the appellants appealed to the High Court. Allowing the appeals, the Court held that the confirmation of existing public access and enjoyment through legislation enacted in reliance on s 212(2) of the Native Title Act amounted to an "interest" in relation to land or waters within the meaning of the definition in s 253 of the Native Title Act and was therefore an "other interest" within the meaning of s 225(c) of that Act. The Justices reasoned differently as to whether this was because the "interest" was a "privilege" or a "right". The confirmation of existing public access to and enjoyment of beaches and foreshores pursuant to s 212(2) must therefore be recorded in a native title determination.

HIGH COURT OF AUSTRALIA 1 March 2007 Public Information Officer ROSS FORSYTH v DEPUTY COMMISSIONER OF TAXATION The District Court of New South Wales had jurisdiction to hear and determine an action by the Deputy Commissioner against Mr Forsyth to recover a penalty for failure to remit income tax deducted from employees’ wages, the High Court of Australia held today. Mr Forsyth was a director of Premium Technology Pty Ltd. Between 1 August 1997 and 31 May 1999, Premium deducted PAYE instalments totalling $668,845.97 from the salary and wages of its employees but failed to remit the full amount to the Commissioner. Directors are personally liable to pay penalties for failure to comply with the obligation to pass on the deductions. The Deputy Commissioner issued penalty notices to Mr Forsyth on 27 October 1998 and 15 June 1999. The unpaid amount was ultimately assessed at $414,326.45. On 29 August 2001, the Deputy Commissioner instituted action in the District Court against Mr Forsyth to recover this money. Under section 39(2) of the Judiciary Act, state courts are invested with federal jurisdiction in all matters in which the High Court has original jurisdiction. Judgment was entered in favour of the Deputy Commissioner. Mr Forsyth had not objected to the District Court determining proceedings, but he appealed in the NSW Court of Appeal, claiming the District Court lacked jurisdiction. Two Acts, both called the Courts Legislation Further Amendment Act, took effect in 1998 and 1999. The first Amendment Act introduced the current form of section 44(1)(a) to the District Court Act. This provided that the Court has jurisdiction to hear any action relating to claims of up to $750,000 which if brought in the Supreme Court would be assigned to the Common Law Division. The second Amendment Act reduced the divisions of the Supreme Court to two, Common Law and Equity, and the business of the Court was reassigned between them. Mr Forsyth argued that the District Court was deprived of jurisdiction when an amendment to the Supreme Court Rules in 2000 assigned to the Equity Division of the Supreme Court any proceedings relating to a tax, fee, duty or other impost levied, collected or administered by or on behalf of the State or the Commonwealth. (These matters were transferred to the Common Law Division by a 2004 change to the Rules.) The Court of Appeal dismissed the appeal. Mr Forsyth appealed to the High Court which, by a 6-1 majority, dismissed the appeal. It held that the jurisdiction of the District Court was to be identified by reference to the time the first Amendment Act introduced section 44(1)(a), not at 29 August 2001 when the action against Mr Forsyth was instituted. It held that when the first Amendment Act commenced, cases such as his would have been assigned to the Common Law Division of the Supreme Court. Therefore the action was within the section 44(1)(a) jurisdiction of the District Court. The Court noted that, even if Mr Forsyth had succeeded, a fresh action by the Deputy Commissioner could still have been brought in a court of competent jurisdiction.

HIGH COURT OF AUSTRALIA 8 November 2018 TONY STRICKLAND (A PSEUDONYM) v COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS & ORS; DONALD GALLOWAY (A PSEUDONYM) v COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS & ORS; EDMUND HODGES (A PSEUDONYM) v COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS & ORS; RICK TUCKER (A PSEUDONYM) v COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS & ORS [2018] HCA 53 Today, the High Court, by majority, allowed appeals from a decision of the Court of Appeal of the Supreme Court of Victoria and ordered that prosecutions of the appellants for offences against the Criminal Code (Cth) and the Crimes Act 1958 (Vic) be permanently stayed. Pursuant to the Australian Crime Commission Act 2002 (Cth) ("the ACC Act"), the Australian Crime Commission ("the ACC") may conduct a special investigation into matters relating to federally relevant criminal activity and an examiner may conduct an examination of a witness for the purposes of that investigation. A person appearing as a witness at such an examination is prohibited from refusing to answer a question that the examiner requires the person to answer. In December 2008, the ACC received information concerning allegations that a company, XYZ Limited (a pseudonym), was involved in criminal activity. The ACC did not undertake any investigation of its own but instead referred the allegations to the Australian Federal Police ("the AFP") and offered to allow the AFP to utilise for the AFP's own purposes the ACC's coercive powers to examine witnesses. In 2010, the ACC compulsorily examined the appellants. Prior to their examinations, each appellant had declined to participate in a cautioned record of interview with the AFP. Several AFP officers watched each examination from a nearby room and their presence was not disclosed to the appellant under examination. Following each examination, the examiner appointed under the ACC Act made orders permitting the dissemination of examination material to the AFP and the Commonwealth Director of Public Prosecutions ("the CDPP"). The ACC then provided audio recordings of the examinations to both the AFP and the CDPP. The appellants were later charged with Commonwealth and Victorian offences. On the pre-trial applications of each appellant to the Supreme Court of Victoria, the primary judge ordered that the proceedings on each indictment be permanently stayed as an abuse of process. The primary judge found that the ACC had been conducting a special investigation but that the entire examination process had been driven by the AFP for the purposes of its own investigation into the allegations. Her Honour found that information obtained from the examinations was used to compile the prosecution brief and obtain evidence against the appellants in circumstances where the prosecution would not have been able to do so if the examiner had exercised his powers appropriately. The prosecution had therefore gained an unfair forensic advantage. In addition, the practical effect of each examination had been to constrain the appellants' legitimate forensic choices in the conduct of their trials, because of the answers that three appellants were compelled to give during those examinations, and because all appellants had been deprived of the ability to test the basis upon which the documents in the prosecution brief had been selected. Finally, her Honour held that the examiner had been "reckless" as to the discharge of his statutory responsibilities and that, if he had exercised his powers independently and with appropriate diligence, those responsible for investigating the alleged offences and for preparing the prosecution brief would never have received the information which they received. On appeal, the Court of Appeal set aside the orders of the primary judge and concluded that the stay applications should be refused. The Court of Appeal held that the decisions to conduct the appellants' examinations and permit the disclosure of examination material to the AFP and CDPP were unlawful, because the examinations had not been conducted for the purposes of a special investigation by the ACC but rather, for the improper purpose of assisting an AFP investigation. The Court of Appeal held, however, that it had not been open to the primary judge to conclude that the examiner had acted recklessly. The Court of Appeal also held that the primary judge had erred in holding that the prosecution had been unfairly advantaged by the examinations and in holding that the appellants had suffered an unfair disadvantage which could not be sufficiently ameliorated by trial directions. By grants of special leave, the appellants appealed to the High Court. The Court held, unanimously, that the ACC had acted unlawfully: the ACC had not conducted a special investigation into the matters the subject of the AFP investigation or matters otherwise relevant to the examination of the appellants but had acted at all times simply as a facility for the AFP to cross-examine the appellants under oath for the AFP's own purposes. A majority of the Court held, consequently, that the appellants' prosecutions ought to be stayed, as, in the circumstances of the case, to allow the prosecutions to proceed would bring the administration of justice into disrepute. A plurality of the Court held that this conclusion was further supported by the fact that the prosecution had derived a forensic advantage, which the examinations were expressly calculated to achieve, of compelling the appellants to answer questions that they had lawfully declined to answer and thereby locking them into a version of events from which they could not credibly depart at trial. For the same reason, at least three of the appellants had suffered a forensic disadvantage as a result of the examinations. The plurality held that given the wide dissemination of the examination product within the AFP and the Office of the CDPP, the forensic disadvantage and consequent prejudice to the fair trials of the appellants were incurable.

HIGH COURT OF AUSTRALIA 8 April 2015 QUEENSLAND NICKEL PTY LIMITED v THE COMMONWEALTH OF AUSTRALIA [2015] HCA 12 Today the High Court unanimously upheld the validity of provisions of the Clean Energy Regulations 2011 (Cth) that provided for the free issue of carbon "units" to entities engaged in the production of nickel. The Clean Energy Act 2011 (Cth), Clean Energy (Charges – Excise) Act 2011 (Cth), Clean Energy (Charges – Customs) Act 2011 (Cth) and Clean Energy (Unit Shortfall Charge – General) Act 2011 (Cth) established and imposed a tax on liable entities for certain greenhouse gas emissions in excess of a specified threshold volume. Entities could reduce their tax liability by surrendering "units" that were set-off against emissions in excess of the threshold. Schedule 1 to the Clean Energy Regulations 2011 (Cth), titled the "Jobs and Competitiveness Program" ("JCP"), provided for the issue of free units to entities engaged in "emissions-intensive trade-exposed" activities. One such activity was the "production of nickel", which was defined in Div 48 of Pt 3 of the JCP ("Div 48"). The number of free units issued to nickel producers was calculated by reference to the volume of nickel produced and industry averages for greenhouse gas emissions per unit volume of nickel production. The plaintiff, Queensland Nickel Pty Limited, carried out the production of nickel at a refinery in Queensland. Its major competitors carried out the production of nickel in Western Australia. Due to differences in the kinds of ore processed, the production processes employed and the types of nickel products produced, the plaintiff's refinery emitted more greenhouse gases per unit volume of nickel than its Western Australian competitors. The issue of free units under the JCP therefore effected a proportionately smaller reduction in the plaintiff's overall tax liability than it did for the plaintiff's competitors. Section 99 of the Constitution prohibits the Commonwealth, by any law or regulation of trade, commerce, or revenue, giving preference to one State or any part thereof over another State or any part thereof. The plaintiff commenced proceedings in the High Court, claiming that Div 48 contravened s 99 because it made no allowance for the differences in inputs, production processes and outputs between the plaintiff and the Western Australian nickel producers. The plaintiff argued those differences were caused, at least to some extent, by differences in natural, business or other circumstances between Queensland and Western Australia. The Court found that the differences between the plaintiff's and the Western Australian producers' inputs, production processes and outputs were not due to differences between Queensland and Western Australia in natural, business or other circumstances. As a matter of fact, therefore, the Court held that Div 48 did not give a preference to one State over other States and did not contravene s 99 of the Constitution.

HIGH COURT OF AUSTRALIA 6 December 2017 IN THE MATTER OF QUESTIONS REFERRED TO THE COURT OF DISPUTED RETURNS PURSUANT TO SECTION 376 OF THE COMMONWEALTH ELECTORAL ACT 1918 (CTH) CONCERNING THE HON MS FIONA NASH [2017] HCA 52 On 27 October 2017, the High Court sitting as the Court of Disputed Returns answered questions referred to it by the Senate under s 376 of the Commonwealth Electoral Act 1918 ("the Act") concerning the Hon Ms Fiona Nash. The answers given to the questions referred in that reference included answers to the effect that, by reason of s 44(i) of the Constitution, there was a vacancy in the representation of New South Wales in the Senate for the place for which Ms Nash was returned and that the vacancy should be filled by a special count of the ballot papers. The candidate ascertained by the special count to be entitled to be elected to the place left unfilled by Ms Nash was Ms Hollie Hughes. By summons dated 7 November 2017, the Attorney-General of the Commonwealth sought an order that Ms Hughes be declared duly elected for that place. An affidavit was filed on behalf of Ms Hughes which raised an issue as to whether Ms Hughes was disqualified from being elected by reason of having been rendered "incapable of being chosen" by operation of s 44(iv) of the Constitution. The question of whether the order sought in the summons should be made was referred to the Full Court for consideration. On 15 November 2017, the High Court answered the question in the negative and dismissed the summons. Today the High Court published unanimous reasons for making those orders. On 15 June 2017, Ms Hughes was appointed as a part-time member of the Administrative Appeals Tribunal ("the Tribunal") for a period of seven years commencing on 1 July 2017. She resigned from that position on 27 October 2017. There was no dispute that the position Ms Hughes held between 1 July and 27 October 2017 answered the description of an "office of profit under the Crown" within the meaning of s 44(iv) of the Constitution. The issue before the Court was whether holding that office during the discrete period between 1 July and 27 October 2017 rendered Ms Hughes "incapable of being chosen" as a senator. The Court held that the position held by Ms Hughes rendered her "incapable of being chosen" under s 44(iv). Those words refer to the process of being chosen. The Court held that it is the Act which establishes the structure by which the choice by the people is to be made and the processes established by the Act do not end with polling. They are brought to an end only with the declaration of the result of the election and of the names of the candidates elected and they are not completed when an unqualified candidate is returned. Therefore, Ms Hughes was disqualified by operation of s 44(iv) of the Constitution from being elected as a senator for the State of New South Wales for the place for which Ms Nash was returned. Ms Hughes was disqualified because she held an office of profit under the Crown during a period in which Ms Nash's disqualification meant that the process of choice prescribed by the Parliament for the purpose of s 7 of the Constitution remained incomplete.

HIGH COURT OF AUSTRALIA 30 March 2011 STUBLEY v THE STATE OF WESTERN AUSTRALIA [2011] HCA 7 On 20 October 2010, at the conclusion of the hearing of oral argument on the appeal, the High Court ordered that the appeal of Dr Alan John Stubley against his conviction for various sexual offences be allowed, that his convictions be set aside and that a new trial be held. Today the High Court published its reasons for the making of those orders. Dr Stubley, a psychiatrist, was charged under the Criminal Code (WA) with 14 offences which included rape, attempting to commit rape, and unlawful and indecent assault, relating to sexual activity with two women who were his patients, JG and CL. The charges were founded on incidents alleged by JG and CL to have occurred between 1975 and 1978 during treatment sessions with Dr Stubley. At trial, Dr Stubley stated that he had been sexually intimate with the two women, however he maintained that JG and CL had consented on each occasion. Following the trial in the Supreme Court of Western Australia, Dr Stubley was found guilty of 10 offences. An appeal to the Court of Appeal against his conviction was unsuccessful. At issue in the appeal to the High Court was whether the prosecution was entitled to adduce the evidence of three other women who each alleged that Dr Stubley had engaged in sexual activity with them while they were his patients. These allegations were not the subject of the charges against Dr Stubley, however the prosecution at trial successfully submitted that the evidence was admissible against him as "propensity evidence" or "relationship evidence" within the meaning of s 31A of the Evidence Act 1906 (WA). However, by majority, the High Court held that the evidence of the three other women did not have significant probative value as propensity evidence or relationship evidence, and therefore that it should not have been admitted at the trial. This was because the only issue at the trial was whether the sexual activity between Dr Stubley and JG and CL was consensual, and the evidence of the three other women could not have probative value with respect to whether JG or CL consented to the sexual activity.

HIGH COURT OF AUSTRALIA 8 June 2022 THOMS v COMMONWEALTH OF AUSTRALIA [2022] HCA 20 Today, the High Court answered in the negative a question as to whether the detention of the applicant under s 189(1) of the Migration Act 1958 (Cth) was unlawful. Section 189(1) provides that, if an officer knows or reasonably suspects that a person in the migration zone is an unlawful non-citizen, they must detain that person. The applicant was a citizen of New Zealand and held a temporary visa to reside in Australia. On 27 September 2018, his visa was cancelled by the Minister pursuant to s 501(3A) of the Migration Act. Thereafter he was an "unlawful non-citizen" within the meaning of s 14(1) of the Migration Act. On 28 September 2018, the applicant was detained by an officer of the Department of Home Affairs in the purported exercise of s 189(1) of the Migration Act. His detention was continued by two other officers subsequently involved with reviewing his case. On 11 February 2020, the High Court delivered judgment in Love v The Commonwealth (2020) 270 CLR 152 ("Love"), in which a majority of the Court relevantly determined that the applicant was not an "alien" within the meaning of s 51(xix) of the Constitution. The applicant was released from detention on the same day. The balance of the applicant's matter, including relevantly a claim for damages for wrongful imprisonment, was remitted to the Federal Court of Australia for determination. On 6 July 2021, a judge of that Court ordered that the question of whether the applicant's detention was unlawful be heard and determined separately. On 11 October 2021, that question was removed into the High Court. The applicant's primary argument before the High Court was that his detention was unlawful because s 189(1) of the Migration Act is not supported by s 51(xix) of the Constitution in its application to a person who is reasonably suspected of being an unlawful non-citizen but who is in fact not an alien. The High Court unanimously rejected the applicant's argument. All members of the Court held that Ruddock v Taylor (2005) 222 CLR 612 ("Ruddock") was dispositive of the applicant's case. Ruddock held that s 189(1) of the Migration Act could validly apply to non-aliens who are reasonably suspected of being unlawful non-citizens. It followed from Ruddock that the lawfulness of the applicant's detention was to be determined by reference to the terms of s 189(1), judged as at the time of detention. The Court therefore concluded that the applicant's detention was lawful because the objective facts at the time provided reasonable grounds for each of the officers to suspect that he was an unlawful non-citizen. The decision of the majority in Love did not retrospectively make the suspicion unreasonable.

HIGH COURT OF AUSTRALIA Public Information Officer 2 February 2006 CSR LIMITED AND MIDALCO PTY LTD v ARTURO DELLA MADDALENA A retrial of a former asbestos worker’s claim for psychiatric injury was required to explore fully questions left unresolved by the original trial and an appeal, the High Court of Australia held today. Mr Della Maddalena, 63, worked for either CSR or Midalco at the asbestos mine and mill in Wittenoom, in north-western Western Australia, for a total of three-and-a-half years from 1961 until the Wittenoom operation closed in 1966. He alleged that in the course of his work he was negligently exposed to asbestos, causing him to suffer asbestosis, pleural disease, respiratory degeneration, pain and breathlessness, and psychiatric injury. He claimed the psychiatric injury was caused by anxiety about his exposure to asbestos and a belief that he was suffering from asbestosis. At age 18, Mr Della Maddalena had followed his older stepbrother, Walter, from Italy to Australia to work at Wittenoom. Walter died of mesothelioma in 1988. In 1990, Mr Della Maddalena began to experience shortness of breath, chest pain and tiredness. Specialists found some presence of asbestos in his lungs. Mr Della Maddalena had seen friends die of asbestos-related diseases and all but four of the 13 people who had come to Wittenoom from his village had died of mesothelioma. Doctors noted symptoms of depression and he was treated by psychiatrists and a clinical psychologist and also examined by Salvatore Febbo, a psychiatrist retained by CSR and Midalco. Mr Della Maddalena was kept under surveillance and videoed for 150 hours, of which 82 minutes was tendered in evidence at the WA District Court trial. The tapes showed him performing activities allegedly inconsistent with breathlessness or chest pain. The psychiatrists gave evidence that he was suffering from a major depression associated with significant anxiety arising from concern about the effects of asbestos exposure. His own two psychiatrists said their diagnoses were not affected by the videotape, but Dr Febbo said he changed his mind after seeing the tape as he believed Mr Della Maddalena’s description of what he could do and not do was unreliable. Judge Michael O’Sullivan concluded Dr Febbo’s opinion was to be preferred and dismissed Mr Della Maddalena’s claim, holding that the evidence did not show he had suffered any physical or psychiatric injury. Mr Della Maddalena successfully appealed to the Full Court of the WA Supreme Court, which held that he did suffer from a psychiatric injury and remitted the matter to Judge O’Sullivan to determine damages against one or both of the two companies. CSR and Midalco appealed to the High Court against those orders. The Court, by a 3-2 majority, held that the appeal should be allowed in part and ordered that the proceedings be remitted to the District Court for retrial. The Court held that the issue required an examination of why the psychiatrists differed in their opinions, not just a preference for particular witnesses over others. Because questions remained about Mr Della Maddalena’s condition, the Court ordered a new trial of the action, rather than a hearing restricted to questions of which of the two companies bore liability and what damages should be awarded.

HIGH COURT OF AUSTRALIA Public Information Officer 16 April 2008 BRETT DWYER v CALCO TIMBERS PTY LTD The Victorian Court of Appeal failed to exercise its jurisdiction under section 134AD of the Victorian Accident Compensation Act to decide for itself whether an injured worker met the definition of “serious injury”, the High Court of Australia held today. Mr Dwyer was injured on 27 March 2000 by a crane mounted on the back of a semitrailer with which he delivered timber products. One arm of the crane became disengaged and fell on Mr Dwyer’s right arm. The rights he had against his employer, Calco Timbers, were limited by the Accident Compensation Act which provided that a worker in Mr Dwyer’s position may recover damages for a serious injury. “Serious injury” was defined as including “permanent serious disfigurement” and “permanent serious impairment or loss of body function”. If the degree of impairment was assessed as less than 30 per cent, as was the case with Mr Dwyer, the worker could not bring legal proceedings for damages unless the County Court had given leave under section 134AB(16) of the Act to bring the proceedings. The Court was obliged not to give leave unless satisfied on the balance of probabilities that the injury was a “serious injury”. In the County Court, Judge Frances Millane held that the impairment and loss of function in Mr Dwyer’s right arm and his disfigurement were not a “serious injury” within the meaning of the Act. Accordingly on 1 December 2005 she refused him leave to bring proceedings to recover damages. Section 134AD of the Act stated that on applications made under section 134AB(16) the Court of Appeal shall decide for itself whether the injury is a serious injury on the evidence before the judge who heard the application and on any other evidence which the Court of Appeal may receive. On 8 September 2006, the Court of Appeal dismissed Mr Dwyer’s appeal. Mr Dwyer appealed to the High Court on the ground that the Court of Appeal had erred in its approach to the nature of the appeal provided under the Act and consequently failed to exercise its jurisdiction. The High Court unanimously allowed the appeal and held that the Court of Appeal erred in its construction of the provisions providing for the appeal from the County Court. The Court of Appeal’s emphasis on the importance of demonstration by Mr Dwyer of specific error by Judge Millane when deciding whether there was “serious injury” distracted attention from the terms of section 134AD, which required the Court of Appeal to decide for itself whether an injury was a “serious injury”. The High Court ordered that the appeal to the Court of Appeal be reheard.

HIGH COURT OF AUSTRALIA 8 November 2006 Public Information Officer MINISTER FOR IMMIGRATION AND INDIGENOUS AFFAIRS v STEFAN NYSTROM The cancellation of one of Mr Nystrom’s two visas should be taken to have cancelled the other, the High Court of Australia held today. Mr Nystrom was born in Sweden on 31 December 1973 while his mother was visiting relatives. His parents had migrated to Australia in 1966. Mr Nystrom and his mother returned to Australia on 27 January 1974 and he has not left Australia since. He knows little of his Swedish relatives and does not speak Swedish. Mr Nystom has a criminal record of 87 offences dating back to when he was aged 10 and he has served eight prison terms. His convictions include theft, burglary, criminal damage, armed robbery, drug offences, driving offences, arson, intentionally causing serious injury and aggravated rape. In 2004 the Minister cancelled Mr Nystrom’s transitional (permanent) visa because, based on his substantial criminal record, he failed to meet the character test specified in section 501(6) of the Migration Act. He claimed he also held an absorbed person visa. There is no difference in the substantive rights conferred by the two visas. Mr Nystrom argued that because he had been a permanent resident for 10 years before the commission of the crimes he was not liable to removal from Australia on cancellation of a visa. He also argued that the Minister had either cancelled the wrong visa or failed to take his absorbed person visa into account. A federal magistrate upheld the Minister’s decision on the basis that, even if accepted that Mr Nystrom was deemed to hold an absorbed person visa, section 501F(3) of the Act applied. This provides that if the Minister cancels a person’s visa and the person holds another visa, the Minister is also taken to have decided to cancel that other visa. When Mr Nystrom appealed to the Full Court of the Federal Court, the Minister argued that an absorbed person visa only applied to those who became absorbed persons before 1984 although they had originally been illegal immigrants and Mr Nystrom was not such a person. The Full Court, by majority, held that Mr Nystrom met the criteria for the visa. It set aside the Minister’s decision to cancel the transitional visa and held that the Minister had committed jurisdictional error. If Mr Nystrom did not hold a transitional visa then cancelling a non-existent visa is not a valid exercise of statutory power. If he held both visas, the Minister had not considered the fact that he held an absorbed person visa which would also be cancelled by operation of section 501F(3). The Minister appealed to the High Court. The High Court unanimously allowed the appeal. It held that the Minister did not fail to take into account a relevant consideration when she did not refer Mr Nystrom also holding an absorbed person visa. The Court held that he qualified for and acquired simultaneously each of the deemed visas. Accordingly, the absorbed person visa was also cancelled upon cancellation of his transitional (permanent) visa in accordance with section 501F(3) of the Act. Both visas conferred the same rights, so the same considerations applied whichever visa was cancelled. The power conferred on the Minister by section 501(2) to cancel a visa could be exercised in Mr Nystrom’s case. The Court also held that this power is not restricted by the deportation power in sections 200 and 201 of the Act which enables the deportation of non-citizens convicted of an offence attracting at least one year’s jail and who had been in Australia for less than 10 years. It held that the provisions are capable of operating concurrently and the deportation provisions did not “protect” Mr Nystrom from removal via visa cancellation.

HIGH COURT OF AUSTRALIA 10 March 2004 SHANE LESLIE KELLY v THE QUEEN The High Court of Australia today unanimously dismissed an appeal from a Tasmanian man who had argued that an alleged confession was inadmissible at his trial for murder. Mr Kelly was convicted in 2001 along with Michael John Marlow of murdering Tony George Tanner, who had admitted to police his involvement in a robbery and implicated Mr Marlow. A third man was acquitted of the murder. Mr Tanner disappeared in November 1990 after his girlfriend heard him on the telephone arranging to meet “Ned” (Mr Kelly). In November 1999 Mr Kelly allegedly told police that he and Mr Marlow had murdered Mr Tanner and asked about indemnity in return for his cooperation. Mr Tanner’s body was found in March 2000 with shotgun wounds in a hole dug in the Tasmanian Central Highlands by a skilled excavator operator, which Mr Kelly was. He was arrested and in a video-taped police interview he retracted his confession, giving various explanations for having made it. Sometime later, while police were taking him to Launceston General Hospital for blood and hair samples to be taken, Mr Kelly allegedly said: “Sorry about the interview – no hard feelings, I was just playing the game.” The Supreme Court trial judge ruled this statement to be admissible as it was not made in the course of official questioning, with the result that section 8 of the Criminal Law (Detention and Interrogation) Act did not apply. The Court of Criminal Appeal, by majority, upheld the trial judge’s reasoning. The minority judge disagreed but also dismissed Mr Kelly’s appeal on the ground that no substantial miscarriage of justice had occurred. The primary issue for the High Court was whether the impugned statement was made in the course of official questioning. Under section 8, no confession made by a person suspected by police of having committed an offence was admissible if made in the course of official questioning unless video-taped (subject to some exceptions). Three members of the Court held that the statement was not made in the course of official questioning so section 8 did not apply, as the course of official questioning ended when police ceased to ask questions. They also held that even if the Court of Criminal Appeal majority had erred no miscarriage of justice had occurred. Two members of the High Court held that the confession was inadmissible as it was made within the course of official questioning but not video-taped, but agreed that other evidence against Mr Kelly was so overwhelming that no miscarriage of justice had occurred.

HIGH COURT OF AUSTRALIA 28 September 2011 LITHGOW CITY COUNCIL v JACKSON [2011] HCA 36 Today the High Court allowed an appeal against the decision of the Court of Appeal of the Supreme Court of New South Wales which had upheld a claim in negligence by Mr Craig William Jackson against Lithgow City Council. On 18 July 2002, Mr Jackson was found unconscious and badly injured in a concrete drain in an area of parkland in Lithgow, New South Wales. The western end of the drain had a 1.41m vertical face topped by a small retaining wall partially concealed by foliage. Mr Jackson brought proceedings in negligence against Lithgow City Council, arguing that his injuries were caused by tripping from the small retaining wall. Mr Jackson's injuries prevented him from recalling how he came to be injured, and he sought to rely on a statement contained in a record made by the ambulance officer or officers summoned to assist him, which was: "? Fall from 1.5 metres onto concrete" ("the Statement"). The trial judge relevantly found that Mr Jackson had not established whether his injuries were caused by Lithgow City Council's breach of duty, because he had not established that he had fallen over the western vertical face after walking over it, as distinct from stumbling down one of the sloping sides, or standing on the top of the northern face and losing his balance. Her Honour did not refer to the Statement in her reasons. On appeal to the New South Wales Court of Appeal, the appeal books before the Court truncated the question mark in the Statement, and the Court considered the truncated statement to be an opinion, admissible under s 78 of the Evidence Act 1995 (NSW) ("the Act"), that Mr Jackson had fallen down the vertical western face of the drain. The Statement was crucial to their Honours' conclusion that Mr Jackson had established causation. Following a grant of special leave by the High Court, an appeal by the Council was heard instanter and allowed, and the matter was remitted to the Court of Appeal for a rehearing in light of the accurate trial record. On the rehearing, the Statement, including the question mark, was held to be an admissible opinion, and the Court adhered to its original conclusion that Mr Jackson had proved causation. Basten JA concluded that the evidence established causation even without the Statement. Two issues were presented in the High Court. The first was whether the Court of Appeal in its second decision was correct to hold that the Statement was admissible. The second was whether, even if the Statement was not admissible, the conclusion that causation was established could be supported by other evidence. The High Court held unanimously that the Court of Appeal erred in treating the Statement as an admissible opinion under s 78 of the Act. The Statement was so ambiguous as to be irrelevant. In any event, the nature of the Statement was such that it was not possible to find positively that it stated an opinion. Moreover, even if it was assumed that the Statement did express an opinion, it was not one which satisfied s 78 of the Act. The Court held by majority that Mr Jackson had not established causation because the conclusion that a fall from the vertical western face of the drain caused his injuries could not be drawn on the balance of probabilities.

HIGH COURT OF AUSTRALIA Public Information Officer 4 March, 2003 THE QUEEN v ROBERT GORDON GEE & ANOR The High Court of Australia today overturned a decision of the Full Court of the Supreme Court of South Australia which held that it did not have jurisdiction to deal with certain questions of law referred to it by the District Court. While the Full Court ordinarily has the statutory power to hear a question of law referred to it by the District Court, in this case, the District Court was exercising federal jurisdiction and hearing a case of persons charged with Commonwealth offences. The respondents were charged on information filed by the Commonwealth Director of Public Prosecutions in the District Court on nine counts of defrauding the Commonwealth in relation to income tax. They pleaded not guilty. Before a jury was empanelled, the trial judge ruled on the admissibility of certain evidence. It was that ruling that was the subject of questions of law reserved for the Full Court. When it came to consider the questions of law reserved to it, the Full Court held that it did not have jurisdiction to deal with them. The DPP appealed against this decision. The High Court unanimously allowed the DPP's appeal, holding that the Full Court had jurisdiction.

HIGH COURT OF AUSTRALIA Public Information Officer 24 September 2008 BHP BILLITON IRON ORE PTY LTD v THE NATIONAL COMPETITION COUNCIL AND FORTESCUE METALS GROUP LIMITED BHP BILLITON IRON ORE PTY LTD AND BHP BILLITON MINERALS PTY LTD v THE NATIONAL COMPETITION COUNCIL AND FORTESCUE METALS GROUP LIMITED The use by Fortescue of a railway line that was integral to BHP Billiton Iron Ore’s (BHPBIO) production process would not amount to the use by Fortescue of that production process, the High Court of Australia held today. Fortescue Metals Group applied to the National Competition Council (NCC) in 2004 for access to parts of the Mt Newman and Goldsworthy railway lines in north-western Western Australia by having them declared a service under Part IIIA of the Trade Practices Act (TPA). Declaration of a service meant that a party seeking access was given a right to negotiate access to the service. Fortescue sought access to the Mt Newman railway line from Mindy Mindy in the Pilbara region to Port Hedland, 295km away, and access to 17km of the Goldsworthy railway line from where it crossed the Mt Newman line to Port Hedland. Fortescue planned to build a 17km siding linking Mindy Mindy to the Mt Newman line. BHPBIO was the manager of joint mining ventures in four areas in the Pilbara and it operated the railway lines on behalf of each group of owners. Each line was a single-gauge heavy haulage railway line constructed upon WA Crown land leased at a peppercorn rental. Fortescue was a publicly listed company and a party to an agreement with the State relating to the development of multi-user railway and port facilities. It did not seek access to BHPBIO’s locomotives and rolling stock as it would use its own. The NCC invited submissions about whether the facilities were a service as defined by section 44B of the TPA. BHPBIO submitted that the railway lines were integral to its iron ore production process. In November 2004, the NCC determined that it had jurisdiction over the application as it pertained to the Mt Newman railway line but not with respect to the Goldsworthy line and that the application should be treated as two separate applications, which led to two appeals coming before the High Court. Section 44B provided that “service” did not include “the use of a production process”. The NCC concluded that the relevant part of the Mt Newman line was a service to which Part IIIA applied, but that the Goldsworthy line was subject to the production process exception. On 24 December 2004, BHPBIO applied to the Federal Court seeking declarations that the Mt Newman railway line was not a service within the meaning of section 44B and that the NCC did not have jurisdiction to recommend that the railway line be declared. On 22 February 2005, Fortescue applied to the Federal Court seeking declarations that the Goldsworthy line is a service under section 44B and that the NCC had jurisdiction with respect to it. Justice John Middleton heard the two cases together and in December 2006 dismissed BHPBIO’s application and made the declarations that Fortescue sought in respect of the Goldsworthy line. The Full Court of the Federal Court dismissed appeals by BHPBIO on 5 October 2007. BHPBIO appealed to the High Court. The High Court unanimously dismissed the appeals. It held that the subject of Fortescue’s application answered the description of a service provided by the use of an infrastructure facility such as a railway line, in accordance with section 44B of the TPA. BHPBIO submitted that the access sought would be to a production process. The Court held that “a production process” meant the creation or manufacture by a series of operations of some marketable commodity. Although BHPBIO used the track and associated infrastructure as part of its production process, it did not follow that use by Fortescue of that track and infrastructure would be excluded from the definition of “service” as being “the use of a production process”. Fortescue’s proposed use of the railway lines did not constitute use of BHPBIO’s production process.

HIGH COURT OF AUSTRALIA 17 November 2005 THE COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA v SUN ALLIANCE INVESTMENTS PTY LIMITED (in liquidation) The High Court of Australia today upheld a tax assessment that reduced by more than $17 million capital losses claimed by Sun Alliance and consequently increased its taxable income. Sun Alliance objected to an amended income tax assessment for the income year ending 31 December 1997. The losses it wished to claim had been incurred by Royal and Sun Alliance Insurance Australia Holdings (RSA) and had been transferred to its wholly owned subsidiary, Sun Alliance. The Royal Insurance group of companies underwent a restructure in 1992, with the British parent company selling its entire shareholding in Royal Australia Holdings Limited to RSA (then known as Sun Alliance Australian Limited) for $125 million plus 40 per cent of RSA shares. The Royal and Sun Alliance Group was thus formed via a merger on 8 October 1992 between the Royal Group and the Sun Alliance Group, with RSA as its Australian holding company. Phoenix Securities Pty Ltd and Sun Alliance Australia Ltd (SAIL) were wholly owned subsidiaries of RSA. SAIL’s assets included land and buildings in Bridge Street, Sydney, valued at $57,050,000 at the merger date. The assets of Phoenix included shares in publicly listed companies. The proceedings relate to capital losses claimed by RSA upon its disposal of shares in both Phoenix and SAIL. At issue was whether RSA had incurred the losses that were transferred. In dispute was the meaning of “profits that were derived by the company” in section 160ZK(5) of the Income Tax Assessment Act. In particular, the question was whether and in what circumstances a profit can be said to have been derived at a time before the acquisition of shares by the taxpayer if at the acquisition date a gain to the company, specifically increases in the value of assets, remained unrealised. The Tax Commissioner disallowed Sun Alliance’s objection to the amended assessment and Sun Alliance appealed to the Federal Court. Justice Margaret Stone upheld the disallowance. The Full Court held that increases in the value of Phoenix’s share portfolio as at the merger date did not have a sufficiently permanent character to be regarded as profit. However, it held that no error was made by the Commissioner or by Justice Stone in describing as profits derived by SAIL before the merger date an amount related to an increase in the value of SAIL’s real estate. The Commissioner appealed to the High Court against the first finding and Sun Alliance cross-appealed against the second part of the decision. The Court unanimously allowed the appeal by the Commissioner and dismissed the cross-appeal. It held that profit did not have an inherently permanent character and could be constituted by unrealised gains. Increases in value of Phoenix shares before the merger date, which may be understood as profits already derived by Phoenix, were a partial cause of dividends paid to RSA after 30 October 1992. Dividends paid by SAIL to RSA in 1996 may also be seen as partly attributable to the unrealised increase in the value of the Bridge Street properties at the merger date.

HIGH COURT OF AUSTRALIA 19 April 2007 Public Information Officer GOLDEN EAGLE INTERNATIONAL TRADING PTY LTD AND CHEN GUANG v YU ZHANG by his tutor the Protective Commissioner AND RUI MANUEL SOUSA MENONGA AND JOSE ALCIVO DE FREITAS trading as DMP AUTOMOTIVE REPAIRS Third-party insurance pay-outs should be taken into account when reducing damages when a claimant’s own fault such as failing to wear a seatbelt has contributed to their injuries, the High Court of Australia held today. Mr Zhang, 33, suffered serious injuries as a passenger in a traffic accident on 24 December 1997 on the F6 freeway between Sydney and Wollongong. The driver, Mr Guang, lost control when the tread came off a tyre. Mr Zhang was thrown from the van. The accident occurred in his employment by Golden Eagle International Trading. In the New South Wales District Court, Mr Zhang sued Golden Eagle, Mr Guang and DMP, which had serviced the vehicle and certified it as roadworthy less than a month before. The action against DMP failed and DMP entered a submitting appearance in the appeal to the High Court. Golden Eagle and Mr Guang admitted liability but alleged that Mr Zhang was contributorily negligent because he did not wear a seatbelt. Section 45 of the NSW Motor Accidents Act imposes a duty on third-party insurers to make certain payments once liability for an accident has been admitted by a person against whom a damages claim is made. Section 45(4) provides that payments made before a claimant obtains a damages judgment is a defence, to the extent of the amount paid, against a damages claim. At trial, Judge Audrey Balla assessed Mr Zhang’s damages at $2,791,761, reduced that by 30 per cent for contributory negligence, allowed an amount for funds management, then deducted the third-party insurance payment of $409,906, leaving $1,768,362. The Court of Appeal held that the $409,906 should have been deducted first from the total damages before the reduction of 30 per cent for contributory negligence. This left Mr Zhang better off. The Court of Appeal also ordered that the recalculation should use prospective life expectancy tables, not historical tables, both from the Australian Bureau of Statistics. Golden Eagle and Mr Guang appealed to the High Court, seeking reinstatement of Judge Balla’s decision. They submitted that the whole of the damages assessment, including the section 45 payment, is apportioned for contributory negligence, and only then are the section 45 payments deducted from the balance to reach the final amount. Mr Zhang submitted that effect would not then be given to the defence stipulated in section 45(4) if the insurer’s payments were treated as part of the total assessment. The High Court, by a 3-2 majority, allowed the appeal and upheld Judge Balla’s method of calculating damages. It held that Mr Zhang’s argument would mean that section 45 payments are immunised from the effects of reducing damages for contributory negligence, which would mean an unjust result for the insurer and a windfall to Mr Zhang. The Court unanimously rejected a ground of appeal relating to life expectancy tables and held that the Court of Appeal was correct to use prospective rather than historic tables to get a more accurate assessment of life expectancy.

HIGH COURT OF AUSTRALIA 11 December 2008 Public Information Officer AGRICULTURAL AND RURAL FINANCE PTY LIMITED v BRUCE WALTER GARDINER AND OCEANIA AGRICULTURE LIMITED Indemnity for a loan was unavailable when loan payments were late, even if the lender accepted the payments as “punctual”, the High Court of Australia held today. In 1997, Oceania Agriculture (OAL) promoted a tea tree plantation investment scheme that was marketed as having tax advantages for investors. Each participant was granted a 17-year licence over an allotment of land on which would be planted at least 18,000 tea trees for the production of tea tree oil. They paid OAL annual licence and management fees. OAL managed the project and established and maintained the trees. Investors could obtain finance under a loan agreement to fund the initial management fees and those who accepted finance from Agricultural and Rural Finance (ARF) had the option of entering into a loan indemnity agreement with OAL and ARF. For a flat fee, if amounts due under the loan agreement were paid punctually, OAL would indemnify obligations under the loan contracts if the business ceased due to certain events. Between October 1997 and May 1999, ARF made four loans to investor Bruce Gardiner. Each loan agreement required periodic payments and provided that the whole of the principal outstanding was immediately payable, at the option of ARF, if Mr Gardiner defaulted in the punctual payment of interest or any repayment instalment. Mr Gardiner did not pay certain amounts under three of the four loan agreements on the due date. When payments were late, ARF accepted payment and did not choose to accelerate repayment of the outstanding principal. Mr Gardiner ceased to carry on the tea tree business due to an event of a kind specified in the indemnity agreement. When the scheme collapsed, ARF sought to recover its loans and sued Mr Gardiner and 215 other borrowers in the New South Wales Supreme Court. The Chief Judge in Equity, Justice Peter Young, rejected all of Mr Gardiner’s defences to ARF’s claims for payment and dismissed his cross-claims against ARF and OAL. ARF obtained judgment for the whole of the amounts it claimed as principal and most of its claim for interest. In the NSW Court of Appeal, ARF obtained judgment for its claim under Mr Gardiner’s fourth loan agreement, but lost its claims to recover principal or interest in respect of the first three loan agreements. ARF appealed to the High Court in respect of the first two agreements. The third loan agreement was performed punctually and ARF no longer disputed that the indemnity agreement was effective and enforceable and that it could only look to OAL for repayment. In the High Court, Mr Gardiner sought to rely on the indemnity agreements for both loans, claiming that his overdue payments should be regarded as “punctual” and that ARF, in its statements and actions, had waived compliance with due dates by accepting late payments. Mr Gardiner submitted that the waiver took the form of an election between inconsistent rights, forbearance from exercising a contractual right, or the abandonment or renunciation of a right. The High Court unanimously allowed the appeal with costs. It held that Mr Gardiner did not pay punctually, indemnities for the first and second loans were therefore not effective and enforceable, and there had been no waiver by ARF or OAL. “Punctual” had its ordinary meaning and did not depend on ARF’s attitude to late payments. The Court held that, in the circumstances of the case, none of the three forms of waiver contended for by Mr Gardiner applied. Even if ARF had waived its rights to punctual payment, that did not bind OAL to indemnify the loans. The obligation for punctual payments was imposed by the loan agreements and was owed to ARF, not to OAL. ARF was entitled to judgment for the amounts owing for the first and second loans as well as for the fourth loan.

HIGH COURT OF AUSTRALIA 14 December 2011 Matter No S219/2011 AMACA PTY LTD (UNDER NSW ADMINISTERED WINDING UP) Matter No S220/2011 AMABA PTY LTD (UNDER NSW ADMINISTERED WINDING UP) JOHN WILLIAM BOOTH & ANOR [2011] HCA 53 Today the High Court held that there was sufficient evidence to justify a finding by the Dust Diseases Tribunal of New South Wales that brake linings containing asbestos manufactured by Amaca Pty Ltd and Amaba Pty Ltd caused Mr John Booth's malignant pleural mesothelioma. Mr John Booth is a retired motor and brake mechanic suffering from malignant pleural mesothelioma. This disease is caused by the inhalation of asbestos fibres. Mr Booth had three brief exposures to asbestos between 1943 and 1959, two as a child and youth when helping his father with home renovations and another when he spent about 20 minutes loading bags containing asbestos onto a truck in 1959. In addition, Mr Booth was exposed to asbestos in brake linings during his career as a motor and brake mechanic between 1953 and 1983 with a three-year interregnum. His work included the replacement of brake linings made from asbestos. The frequency of the replacement tasks varied from twice a month to three times a week. Amaca manufactured brake linings containing asbestos between 1953 and 1962. Amaba manufactured brake linings containing asbestos from 1962 to 1982. Seventy per cent of the asbestos fibres to which Mr Booth was exposed occupationally were released from brake linings manufactured by Amaca and Amaba. In July 2008, Mr Booth commenced proceedings in the Dust Diseases Tribunal of New South Wales against Amaca and Amaba in negligence. Mr Booth alleged that Amaca and Amaba had failed to warn about the dangers of use of their brake linings. The primary judge held that exposure to asbestos dust liberated from brake linings manufactured by Amaca and Amaba materially contributed to Mr Booth's contraction of mesothelioma. The Court of Appeal of the Supreme Court of New South Wales dismissed Amaca and Amaba's appeals. Amaca and Amaba appealed to the High Court by special leave. Special leave was limited, in effect, to the question of the sufficiency of the evidence to support the primary judge's finding that exposures to asbestos in the brake linings manufactured by Amaca and Amaba had each been a cause of Mr Booth's mesothelioma. The High Court held by majority that the evidence was sufficient to support the Tribunal's conclusion that Amaca's and Amaba's products were a cause of Mr Booth's mesothelioma.

HIGH COURT OF AUSTRALIA 13 August 2020 STATE OF QUEENSLAND v THE ESTATE OF THE LATE JENNIFER LEANNE MASSON [2020] HCA 28 Today, the High Court unanimously allowed an appeal from the Court of Appeal of the Supreme Court of Queensland ("the QCA"). The High Court held that the State of Queensland, as provider of ambulance services under the name "Queensland Ambulance Service" ("QAS"), was not liable in negligence, either vicariously or directly, by reason of the failure of its ambulance officers to promptly administer adrenaline to Jennifer Masson, a chronic asthmatic, who suffered a severe asthma attack. On the night of 21 July 2002, Ms Masson collapsed outside a friend's house in Cairns. On arrival, Clinton Peters, the intensive care paramedic responsible for treating Ms Masson, observed that she was in respiratory arrest and had high blood pressure and a very high heart rate. He elected to administer intravenous salbutamol, which like adrenaline acts as a bronchodilator. Initially, Mr Peters considered Ms Masson's condition to be improving, however during transportation to hospital her vital signs worsened. At this point, the officers switched to administering adrenaline but, by the time of arrival at Cairns Base Hospital, Ms Masson had sustained severe, irreversible brain damage due to oxygen deprivation. She lived in a vegetative state until her death in 2016. Proceedings were commenced on Ms Masson's behalf seeking damages in negligence and the claim survived in the hands of her estate. The trial judge found that: (1) Mr Peters had considered administering adrenaline at the outset, as recommended by the QAS Clinical Practice Manual ("the CPM"), but decided against doing so because of the risks associated with using adrenaline on a patient with Ms Masson's high heart rate and blood pressure; and (2) in 2002 a responsible body of opinion within the medical profession supported the view that those presenting symptoms provided a sound basis for preferring salbutamol to adrenaline in the initial stage of treatment ("the body of opinion finding"). On appeal, the QCA determined that Mr Peters had failed to consider using adrenaline, as he mistakenly regarded himself as precluded from doing so by the CPM. Additionally, their Honours held that the body of opinion finding was not supported by evidence, and that even if there had been such a body of opinion and Mr Peters had been aware of it, departing from the CPM by not administering adrenaline would nonetheless have amounted to a want of reasonable care. Having granted special leave to appeal, the High Court restored the findings of the trial judge. In two sets of reasons the Court stated that the trial judge's conclusion, that Mr Peters made a clinical judgment not to administer adrenaline because of Ms Masson's high heart rate and blood pressure, was neither contrary to compelling inferences nor glaringly improbable – it should not have been overturned. Contrary to the QCA's reasons, the decision not to administer adrenaline did not contravene the guidance in the CPM, which was a flexible document that permitted the exercise of clinical judgment. Nor was the decision negligent, as it conformed with a responsible body of professional opinion. The plurality observed that, in concluding otherwise and rejecting the body of opinion finding, the QCA disregarded the evidence of expert witnesses called by the State by reason of their Honours' acceptance of a submission as to the superiority of adrenaline. That submission was based on a contention that had not been put to any of the expert witnesses at the trial and should not have been accepted. Nettle and Gordon JJ stated that the QCA's reasoning effectively required that in order to constitute a "responsible" or "respectable" body of opinion, a view must be shared by a majority of the relevant profession; this is not so. In the circumstances, Mr Peters' treatment of Ms Masson did not fall below the standard of care expected of an ordinary skilled intensive care paramedic.

HIGH COURT OF AUSTRALIA Public Information Officer 20 July 2006 NIGEL CUNNINGHAM MANSFIELD v DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA The WA Supreme Court had the power to make orders to require the DPP to undertake to compensate Mr Mansfield for any damage resulting from the freezing of assets and to enable him to access some of his frozen assets to pay his legal costs, the High Court of Australia held today. Mr Mansfield, facing insider trading charges, has had all property owned or controlled by him frozen since 2002 when the Supreme Court granted the DPP’s application under WA’s Criminal Property Confiscation Act for a freezing order. The order was granted because the DPP was seeking to examine Mr Mansfield about suspected confiscable property and was also likely to apply for a criminal benefits declaration which if granted would require Mr Mansfield to pay to the State the amount equivalent to the criminal benefit acquired. “Criminal benefits” are certain property, services, advantages and benefits obtained as a result of a person’s alleged involvement in a “confiscation offence”, whether or not it was committed in WA and whether or not anyone has been charged or convicted. The Act provides for automatic confiscation of frozen property unless an objection is taken to the freezing order within a certain time. Mr Mansfield lodged an objection so no confiscation has occurred. In 2004, the freezing order was varied to release $2,500 a fortnight for the reasonable living expenses of Mr Mansfield and his wife, with $102,500 also released to cover their living expenses since the order was made in 2002. Neither the application for a criminal benefits declaration nor the criminal proceedings have yet been dealt with by the Supreme Court. Mr Mansfield sought leave to appeal to the WA Court of Appeal, claiming that Justice Leonard Roberts- Smith had erred in two respects when granting the freezing order. First, the judge found the Court had no power to require an undertaking by the DPP on damages to protect the interests of parties like Mr Mansfield whose property is bound by the order. Second, the judge found the Court had no power to make allowance in a freezing order for payment of reasonable legal costs incurred in related civil or criminal proceedings. Mr Mansfield argued the Court did have jurisdiction to make both kinds of orders. The Court of Appeal, by majority, refused to grant him leave to appeal on these two grounds. He appealed to the High Court. The Court, by a 5-1 majority, allowed the appeal on both grounds. It held that the Supreme Court had the power to require the DPP’s undertaking before granting an application for a freezing order. Earlier legislation expressly provided for power to grant an undertaking as to damages in what were then called “restraining orders”, but the Court held that the absence of an express limitation in the Act upon the scope of the power to grant freezing orders meant the Supreme Court’s inherent jurisdiction when granting a discretionary remedy to act judicially and to have regard to considerations of justice was not displaced. Other sections in the Act upon which the DPP relied did not prevent the Supreme Court from exercising its discretion to require an undertaking to pay compensation if Mr Mansfield suffered loss. The High Court also held that the Supreme Court had power to vary the freezing order to allow him to pay legal costs. The DPP argued that the Act implicitly denied the Supreme Court the power to make such an order. The Court said legal representation of parties benefits the adversarial system of litigation. While the Second Reading Speech stated that no property could be released for legal expenses, neither the Bill nor the Act did so. The Court adopted Justice Christopher Pullin’s dissenting view in the Court of Appeal that the Supreme Court may exempt some property from a freezing order on condition that it is used for legal expenses. Such conditions would need careful framing to ensure exempted funds were not misused or abused, such as by overservicing or overcharging by lawyers. The High Court ordered that Mr Mansfield’s applications be referred to a single Supreme Court judge for determination in light of its reasons.

HIGH COURT OF AUSTRALIA 18 April 2018 PLAINTIFF M174/2016 v MINISTER FOR IMMIGRATION AND BORDER PROTECTION & ANOR [2018] HCA 16 Today the High Court unanimously held, answering questions stated in a special case, that a failure by a delegate of the Minister for Immigration and Border Protection ("the Minister") to comply with s 57(2) of the Migration Act 1958 (Cth) ("the Act") in the course of making a decision to refuse to grant a protection visa to a "fast track applicant" does not deprive the Immigration Assessment Authority ("the Authority") of jurisdiction to review the delegate's decision. The Court also held that, in this case, the delegate had not failed to comply with s 57(2) and the Authority had not acted unreasonably by not getting new information from the plaintiff, who was a "fast track applicant". Section 57(2) of the Act provides that, in considering a visa application, the Minister or delegate must provide "relevant information" to the applicant and invite the applicant to comment on it. "Relevant information" includes information that would be the reason, or part of the reason, for refusing to grant the visa; that is specifically about the applicant; and that was not provided by the applicant. Part 7AA of the Act provides for review of "fast track reviewable decisions" – decisions to refuse to grant protection visas to certain "fast track applicants", which includes persons who arrived in Australia as "unauthorised maritime arrivals" on or after 13 August 2012 and before 1 January 2014. When such a decision is made, it must be referred to the Authority for review together with specified "review material". The Authority may either affirm the decision or remit the decision to the Minister for reconsideration, but the Authority is not authorised to set the decision aside or to substitute its own decision. Subject to exceptions, the Authority is required to review decisions on the papers. One exception is that the Authority may invite a person, including an applicant, to provide "new information" in writing or at an interview. However, the Authority is not permitted to consider any new information unless it is satisfied that there are exceptional circumstances and that the information either was not and could not have been before the Minister or is credible personal information which was not previously known. The plaintiff is a citizen of Iran who entered Australia on 11 October 2012 as an unauthorised maritime arrival and subsequently applied for a temporary protection visa. He claimed that he would face a real chance of harm if he returned to Iran because he is a Christian. In support of his claim to be a committed Christian, he told the Minister's delegate that he had regularly attended a particular church since his release from immigration detention and provided material including a letter from the reverend of the church. The delegate called the reverend, who told the delegate that the plaintiff had attended the church, but had stopped attending two years earlier and had only attended on a few occasions since then. The delegate made a file note of the telephone call, but did not give to the plaintiff particulars of what the reverend had said. The delegate refused to grant a protection visa to the plaintiff because she did not accept that he had genuinely converted to Christianity. She set out the information provided by the reverend in her reasons for decision. On review, the delegate's file note was included in the review material provided to the Authority. The plaintiff requested that the Authority interview him, the reverend and other congregants, and also provided further letters of support from the reverend and other congregants. The Authority affirmed the delegate's decision without conducting interviews. It took into account the further letters only to the extent that the reverend's further letter stated that the plaintiff had occasionally attended church in 2016. Like the delegate, the Authority did not accept that the plaintiff had genuinely converted to Christianity or that he would be at risk of harm for that reason if he returned to Iran. In its reasons, the Authority explained that, having regard to the requirement for exceptional circumstances to exist before it could consider any new information, it had chosen not to conduct any interviews because it considered that the plaintiff had been given an opportunity to present his claims and to respond to relevant issues in his interview with the delegate. The High Court held that the jurisdiction of the Authority under Pt 7AA is to review decisions that are made in fact, with no requirement that those decisions be legally effective. The Authority's task is to consider the merits of a decision under review by determining for itself whether it is satisfied that the criteria for the grant of the visa are met. Further, if the decision under review is affected by jurisdictional error because of a failure to provide relevant information to an applicant in compliance with s 57(2), a failure by the Authority to exercise its powers to get and consider new information about the relevant information may be legally unreasonable. The Court held that the information provided by the reverend in the telephone call with the delegate was not "relevant information" because it supported the plaintiff's claim, so far as it went, and accordingly the delegate had not failed to comply with s 57(2). Nor had the Authority acted unreasonably by declining to exercise its powers to interview the reverend and other congregants: that exercise of discretion was open to it and was justified by the reasons it gave.

HIGH COURT OF AUSTRALIA Public Information Officer 11 May 2006 ANDREW CHARLES THEOPHANOUS v COMMONWEALTH OF AUSTRALIA A law exposing a former MP to loss of superannuation benefits following his conviction and imprisonment on corruption charges was upheld by the High Court of Australia today. Dr Theophanous was a Labor member of the House of Representatives from 1980 to 2001. Since then he has received a retirement allowance under the parliamentary superannuation scheme. Dr Theophanous elected to convert half of his allowance to a lump sum of $367,763.37, and also receives a gross fortnightly payment of $1,575.32. Should he die before his wife, Dr Kathryn Eriksson, she would continue to receive benefits under the Parliamentary Contribution Superannuation Act. In May 2002, Dr Theophanous was convicted of defrauding the Commonwealth by making false representations in relation to an immigration matter, taking an unlawful inducement, and soliciting an unlawful inducement. He was also convicted of conspiring to defraud the Commonwealth by making false representations in relation to an immigration matter, but this was overturned on appeal and a retrial is pending. Dr Theophanous was sentenced to three years’ imprisonment for the other three offences. In 2004, the Justice Minister, pursuant to section 16 in Part 2 of the Crimes (Superannuation Benefits) Act (CSB Act), authorised the Director of Public Prosecutions to apply to the Victorian County Court for a “superannuation order” in respect of Dr Theophanous. That application has yet to be heard. Section 16 provides for a superannuation order when a current or former employee is convicted of an offence and the Minister is of the opinion that the offence is a corruption offence. “Employee” includes a member of Parliament. A superannuation order means all rights to future super benefits would cease, employer contributions must be repaid to the Commonwealth, plus interest, and the employee keeps only their own super contributions. Dr Eriksson would not be entitled to a benefit as a surviving spouse. The County Court has restrained Dr Theophanous from disposing of his interest in two parcels of land without the DPP’s written consent. In the High Court, Dr Theophanous issued a writ of summons seeking a declaration that Part 2 of the CSB Act is invalid so far as it applied to him. He argued that the relevant provisions are invalid as they provide for the acquisition of property – his parliamentary superannuation entitlement – but such acquisition was not on just terms in accordance with section 51(xxxi) of the Constitution. Dr Theophanous also asserts the operation of the Act on the contingent interest of his wife is invalid. The High Court unanimously held that section 51(xxxi) is irrelevant to the application of Part 2 of the CSB Act to Dr Theophanous and that Part 2 is a valid law of the Commonwealth. A law such as Part 2 of the CSB Act which qualifies MPs’ rights to remuneration by way of a sanction for corrupt abuse of office is within the power to grant remuneration. To place the law within section 51(xxxi) would weaken or destroy the sanction. The Court held that Dr Eriksson would only have an entitlement as a surviving spouse if her husband, at the time of his death, were entitled to a retirement allowance. If the superannuation order against Dr Theophanous is made, his wife will not become entitled to any such benefit.

HIGH COURT OF AUSTRALIA Public Information Officer 7 March, 2003 KATHRYN FAY BARNS v MALCOLM PHILLIP BARNS (first respondent), ALICE ELIZABETH BARNS (second respondent), and MICHELLE LOUISE FISHER and RHIANNA KATE FISHER by their next friend PETER CHARLES SYMES (third respondents) The High Court of Australia today allowed an appeal from Kathryn Barns against a decision by the Full Court of the South Australian Supreme Court that a deed entered into by her parents effectively excluded her from making a claim under the Inheritance (Family Provision) Act in respect of the estate of her late father, Lyle Phillip Barns. Kathryn Barns is the adopted daughter of Lyle and Alice Barns. Malcolm Barns is the Barneses’ natural son who took over the running of their farm near Wudinna in SA and is also the executor of his father’s will. The Barnses made some financial provision for their daughter but wished their son to inherit the farm. To try to protect the property from any claim by Kathryn Barns, the parents entered into a deed in 1996 under which they agreed to make mutual wills under which their son would inherit the whole estate from the surviving parent. Lyle Barns died in 1998. The Full Court of the Supreme Court held that the deed and accompanying wills did preclude Kathryn Barns and her children though this was not contrary to public policy. Her claim was dismissed and she appealed to the High Court. The merits of her claim have yet to be litigated. The point of law involved was upon which there were conflicting decisions of the Privy Council but no decision of the High Court. The High Court, by a 4-1 majority, overturned the Full Court’s orders and held that the deed did not prevent Kathryn Barns and her children from seeking access to her father’s estate.

HIGH COURT OF AUSTRALIA Public Information Officer 2 August 2007 JOSEPH TERRENCE THOMAS v GRAHAM MOWBRAY, FEDERAL MAGISTRATE; MANAGER, COUNTER-TERRORISM – DOMESTIC, AUSTRALIAN FEDERAL POLICE; AND COMMONWEALTH OF AUSTRALIA The High Court of Australia today upheld the constitutional validity of that part of the anti- terrorism laws under which an interim control order was made in respect of Mr Thomas. Mr Thomas allegedly undertook paramilitary training, including in the use of firearms and explosives, at Al Qa’ida’s Al Farooq training camp in Afghanistan in 2001. He was arrested in Pakistan in 2003 and in 2004 was charged in Australia with terrorism-related and passport offences. Mr Thomas was convicted in the Victorian Supreme Court of intentionally receiving funds from a terrorist organisation and of possession of a false passport. The Victorian Court of Appeal set aside the convictions in August 2006 and last December ordered a retrial which has yet to be held. After the convictions were quashed, the AFP applied, with the consent of the federal Attorney-General, for an interim control order (ICO) under Division 104 of the Criminal Code Act. At a hearing on 27 August 2006, Federal Magistrate Mowbray issued the ICO on grounds that related to allegations concerning Mr Thomas’s Al Qa’ida training and his links to extremists. The ICO imposed conditions which include a midnight to 5am curfew, reporting to police three times a week, and prohibitions from contacting particular individuals and from using certain communications technology. A Federal Magistrates Court hearing to determine whether the ICO should be confirmed for a specified period was listed for 1 September 2006 but was postponed until after Mr Thomas’s challenge to the validity of Division 104 was heard by the High Court. The questions agreed by the parties for determination by the Court were whether Division 104 is invalid because it confers on a federal court non-judicial power contrary to Chapter III of the Constitution, whether it is invalid because in so far as it confers judicial power on a federal court it authorises the power to be exercised in a manner contrary to Chapter III; and whether it is invalid because it is not supported by one or more express or implied heads of legislative power under the Constitution. By a 5-2 majority, the High Court held that Subdivision B of Division 104 is valid. It held that the subdivision is supported by at least the defence power. The Court held that the defence power is not limited to external threats or to war between nations but extends to protecting the public from terrorist acts. Mr Thomas contended that Subdivision B invalidly confers non-judicial power on federal courts. This contention was rejected. The functions exercised in making ICOs, and the standards according to which they are to be exercised, are such that they involve an exercise of judicial power and thus may be conferred upon the federal judiciary.

HIGH COURT OF AUSTRALIA 1 September 2004 PATRICK JOHN COLEMAN v BRENDAN JASON POWER, ADAM CARNES AND ATTORNEY-GENERAL (QUEENSLAND) The High Court of Australia today overturned Mr Coleman’s convictions for insulting police but upheld his convictions for obstructing police and assaulting police. The case raised issues concerning freedom of political communication. Mr Coleman was arrested in Townsville Mall where he was distributing pamphlets alleging four police officers, including Constable Power, were corrupt. He stood in front of a placard which read, “Get to know your local corrupt type coppers, please take one.” When Constable Power approached, Mr Coleman loudly accused him of being a corrupt officer. He resisted arrest by locking his arms around a power pole, and hit and kicked officers during the struggle to put him in a police van. Mr Coleman was convicted in Townsville Magistrates Court of two counts of serious assault, two of obstructing police, one count of insulting words and one count of publishing insulting words. Under section 7(1)(d) of Queensland’s Vagrants, Gaming and Other Offences Act (which has since been repealed) it was an offence to use threatening, abusive or insulting words to a person in a public place or where they could be heard in a public place. The offence attracted penalties of $100 or six months’ jail. The District Court dismissed an appeal and the Queensland Court of Appeal allowed an appeal only against conviction for publishing insulting words. Mr Coleman appealed to the High Court, which focused on construction of section 7(1)(d). Mr Coleman contended that in relation to his conduct the provisions was invalid for contravening the implied constitutional freedom of communication concerning political or government matters. The Queensland Attorney-General agreed that the practical operation of section 7(1)(d) may in some cases burden the freedom of political communication but argued that the section was valid because it was proportional to the objective of maintaining public order. By a 4-3 majority, the High Court allowed the appeal in relation to the conviction for using insulting words. Six members of the Court held that section 7(1)(d) was not invalid but three members of the majority held that its operation was limited to situations which could lead to violence. The use of words such as those used by Mr Coleman would constitute no offence unless those hearing him were reasonably likely to be provoked to physically retaliate. Police would be expected to be able to resist reacting to insults directed at them. The other member of the majority held that the legislation was invalid. The majority held that Mr Coleman’s convictions for insulting words should be quashed. However a majority of the Court dismissed appeals against convictions for obstructing police and assaulting police.

HIGH COURT OF AUSTRALIA 18 December 2013 COMMONWEALTH MINISTER FOR JUSTICE v ADRIAN ADAMAS & ANOR [2013] HCA 59 Today the High Court held that the Commonwealth Minister for Home Affairs and Justice correctly determined to surrender to Indonesia an Australian citizen who, in his absence, had been convicted by an Indonesian court of an offence under Indonesian law and sentenced to life imprisonment. The Court, unanimously allowing the Minister's appeal from a decision of the Full Court of the Federal Court of Australia, held that Australian standards of a fair trial were relevant to, but not determinative of, the Minister's decision. Mr Adamas was the President Director of Bank Surya in Indonesia between 1989 and 1998. He moved to Australia in 1999 and became an Australian citizen in 2002. In 2002, in his absence, an Indonesian court convicted Mr Adamas of a corruption offence, involving misuse of bank funds that caused liquidity problems for Bank Surya and extensive losses to the Indonesian Central Bank. He was sentenced to life imprisonment. Indonesian authorities sought his extradition from Australia. The Minister was required to determine whether Mr Adamas should be surrendered to Indonesia. By force of an extradition treaty between Australia and Indonesia given effect in domestic legislation, Mr Adamas was to be surrendered only if, among other things, the Minister was satisfied that, in the circumstances of the case and taking into account the nature of the offence and the interests of Indonesia, surrender would not be "unjust, oppressive or incompatible with humanitarian considerations". Adopting the analysis and recommendation of officers of the Attorney-General's Department, the Minister determined that Mr Adamas should be surrendered to Indonesia. Mr Adamas sought judicial review of the Minister's determination. The Federal Court, both at first instance and on appeal to the Full Court, held that the Minister applied a wrong legal test because the analysis that he adopted failed to recognise that whether or not it would be unjust, oppressive or incompatible with humanitarian considerations to surrender Mr Adamas was to be determined according to "Australian standards", which would not ordinarily permit the trial and conviction of a person for a serious criminal offence in his or her absence. By special leave, the Minister appealed to the High Court. The High Court held that the standard of "unjust, oppressive or incompatible with humanitarian considerations", being contained in a bilateral treaty between Australia and Indonesia, encapsulated a single broad evaluative standard to be applied alike by Australia and Indonesia. Domestic standards, and international standards to which Australia and Indonesia had assented, were relevant to the application of the standard in the treaty but were not determinative. The Minister was correct not to confine his consideration to the application of Australian standards.

HIGH COURT OF AUSTRALIA 28 August 2008 The High Court of Australia today upheld the slavery convictions of a Melbourne brothel owner and overturned the orders of the Victorian Court of Appeal for a new trial. Ms Tang was convicted in 2006 of five counts of intentionally possessing a slave and five counts of intentionally exercising a power of ownership over a slave, contrary to section 270.3(1)(a) of the Commonwealth Criminal Code. She was sentenced to 10 years’ imprisonment, with a non-parole period of six years. Ms Tang was the first person convicted under the anti-slavery laws, introduced in 1999. The charges related to five women, all Thai nationals. Ms Tang owned a licensed brothel, Club 417, at 417 Brunswick Street, Fitzroy, in Melbourne. She held a 70 per cent interest in a syndicate which bought four of the women with the remaining 30 per cent held by a co- accused, DS, who negotiated with recruiters in Thailand, and her associates. The fifth woman was brought to Australia by other “owners”. She worked in another brothel, then was moved to Club 417. Customers at Club 417 were charged $110. Ms Tang retained $43 in her capacity as brothel owner plus 70 per cent of the remaining $67 for four of the women and DS and her associates received 30 per cent. In relation to the fifth woman, after Ms Tang took her $43 fee, the other $67 was divided between her owners. Each woman had a debt of $45,000. It reduced by $50 per customer. The women worked six days a week, serving up to 900 customers to pay off their debt. If they worked a seventh day, they could keep the $50 per customer, while Ms Tang got $43 and the remaining $17 was divided among syndicate members. The women were not usually under lock and key, but they had little money and limited English, their passports were retained, their visas had been obtained illegally, they feared detection by immigration authorities, and they worked long hours. The evidence was that they were well provided for. Two women paid off their debts in six months and restrictions on them were lifted, their passports were returned, they were paid and they could choose their hours of work. The Court of Appeal of the Supreme Court of Victoria held that the directions given to the jury were inadequate, quashed each conviction, and ordered a new trial on all counts. It held that the jury should have been instructed that the prosecution had to prove that Ms Tang had the knowledge or belief that the powers being exercised were through ownership, as well as proving an intention to exercise those powers. The prosecution appealed to the High Court and Ms Tang sought special leave to cross-appeal on three grounds against the order for a new trial rather than an acquittal. The High Court allowed the appeal by a 6-1 majority and overturned the order for a new trial. It held that the prosecution had made out the required elements of the offences and did not need to prove what Ms Tang knew or believed about her rights of ownership. The prosecution did not need to prove that she knew or believed that the women were slaves. The critical powers she exercised were the power to make each woman an object of purchase, the capacity to use the women in a substantially unrestricted manner for the duration of their contracts, the power to control and restrict their movements, and the power to use their services without commensurate compensation. The Court unanimously granted Ms Tang special leave to cross-appeal on the first two grounds concerning the meaning and constitutional validity of section 270.3(1)(a) but dismissed the cross-appeal. It held that Parliament had the power to make laws with respect to external affairs, in this case by section 270 giving effect to Australia's obligations under the Slavery Convention. The Court refused special leave on the third ground, that the Court of Appeal failed to hold that the jury’s verdicts were unreasonable or could not be supported by the evidence. Because the Court of Appeal allowed the appeal against conviction, it did not deal with Ms Tang’s sentence, so the High Court remitted that question to the Court of Appeal for its consideration.

HIGH COURT OF AUSTRALIA Public Information Officer 9 November 2006 LIAM NEIL MAGILL v MEREDITH JANE MAGILL An action for the tort of deceit brought by a man said to be the victim of paternity fraud failed, the High Court of Australia held today. The Magills married in April 1988 and separated in November 1992, divorcing in 1998. They had two sons and a daughter between April 1989 and November 1991. After separation Mr Magill paid child support for all three children. After each birth, Ms Magill gave him birth registration forms to sign with him named as the father. In 1995, Mr Magill learned that Ms Magill at least suspected that her second son was not her husband’s child. In April 2000, DNA testing established that Mr Magill had fathered neither this boy nor the girl. Child support payments were adjusted to allow for past overpayments and an extinguishment of arrears. In January 2001, Mr Magill commenced proceedings against his ex-wife in the Victorian County Court for deceit. He claimed damages for personal injury in the form of anxiety and depression resulting from Ms Magill’s fraudulent misrepresentations. He also claimed financial loss, including loss of earning capacity by reason of his psychiatric problems and expenditure on the children under the mistaken belief he was their father, and exemplary damages. Mr Magill did not claim in respect of the child support payments. He was awarded $70,000: $30,000 for general pain and suffering, $35,000 for past economic loss and $5,000 for future economic loss. The County Court found Ms Magill’s presentation of the birth registration forms to Mr Magill constituted the representation by Ms Magill that he was the father. The Victorian Court of Appeal reversed that decision on the ground that Mr Magill had failed to establish the essential elements of the tort of deceit. He appealed to the High Court. The Court unanimously dismissed the appeal. It rejected Ms Magill’s contention that section 119 of the Family Law Act, which permits spouses to sue each other, and section 120, which abolishes certain actions such as damages for adultery, exclude any action for deceit. However, three members of the Court held that no action for deceit could lie for representations about paternity made between spouses, and three members of the Court held that, while there could be circumstances in which such an action might succeed, they were exceptional and did not cover Mr Magill’s case.

HIGH COURT OF AUSTRALIA 12 December 2012 THE PUBLIC SERVICE ASSOCIATION AND PROFESSIONAL OFFICERS' ASSOCIATION AMALGAMATED OF NSW v DIRECTOR OF PUBLIC EMPLOYMENT & ORS [2012] HCA 58 Today the High Court unanimously upheld the validity of a provision of the Industrial Relations Act 1996 (NSW) which requires the Industrial Relations Commission of New South Wales to give effect to regulations declaring aspects of government policy. The Industrial Relations Commission is constituted by judicial and non-judicial members and it exercises certain functions conferred upon it by the Act. Other functions conferred by the Act are exercised by the Industrial Court of New South Wales, and that Court is constituted only by the judicial members of the Commission. The central provision in this appeal was s 146C(1) of the Act. That sub-section provides that the Industrial Relations Commission must "give effect to any policy on conditions of employment of public sector employees ... that is declared by the regulations to be an aspect of government policy that is required to be given effect to by the Commission" when making or varying any award or order. The Industrial Relations (Public Sector Conditions of Employment) Regulation 2011 (NSW) stated policies affecting the conditions of employment of public sector employees, among which was a limitation upon the increases in remuneration that the Commission could award. The appellant brought proceedings in the Industrial Court challenging the validity of s 146C(1). The appellant claimed that it undermined the integrity of the Industrial Court for its judicial members to be required to give effect to policy declared in regulations when sitting as, and exercising the functions of, the Commission. The Industrial Court rejected that claim and the appellant, by special leave, appealed to the High Court. The High Court unanimously dismissed the appeal. Although s 146C(1) and the Industrial Relations (Public Sector Conditions of Employment) Regulation used the words "policy" and "government policy", the policies contemplated by s 146C(1) (and those contained in the Regulation) were no different from any other laws (including any applicable statutes and regulations) which the Industrial Relations Commission must apply in exercising its functions. It cannot undermine the integrity of the Industrial Court for its judicial members to apply the law as it stands from time to time when sitting as, and exercising the functions of, the Commission.

HIGH COURT OF AUSTRALIA 17 August 2022 GOOGLE LLC v DEFTEROS [2022] HCA 27 Today, the High Court allowed an appeal from a judgment of the Court of Appeal of the Supreme Court of Victoria. The appeal primarily concerned whether, by operating an internet search engine which, in response to a user-designed search query, provided search results including a link to the webpage of another containing defamatory matter, the appellant had published the defamatory matter. The appellant is a technology company that operated an internet search engine which allowed users to navigate information on the World Wide Web through user-designed search queries. In response to a search query, the search engine used computer programs and algorithms to return search results in the form of a list of links to webpages that were likely to be of interest to the user, ranked according to relevance. Each search result relevantly consisted of the title of a webpage, a snippet of the content found on that webpage and a hyperlink that, when clicked, would take the user to that webpage. In early 2016, the respondent became aware that inputting his name as a search query in the appellant's search engine returned a search result ("the Search Result"), which hyperlinked to an article published by The Age newspaper in 2004 ("the Underworld article"). He alleged the Underworld article defamed him, although there was no suggestion that the Search Result itself was defamatory. The respondent requested the appellant to remove the Search Result, which the appellant did not do. The respondent commenced proceedings, claiming damages for defamation from the appellant as publisher of the Search Result and the Underworld article. The trial judge held, in a finding that was unchallenged on appeal, that the Underworld article defamed the respondent. In the courts below, the appellant was found to have published the defamatory matter because the provision of the Search Result was instrumental to the communication of the content of the Underworld article to the user, in that it lent assistance to its publication. The courts below rejected, in part, the appellant's reliance on the statutory and common law defences of innocent dissemination and qualified privilege. The High Court, by majority, found that the appellant was not a publisher of the defamatory matter. A majority of the Court held that the appellant did not lend assistance to The Age in communicating the defamatory matter contained in the Underworld article to the third party users. The provision of a hyperlink in the Search Result merely facilitated access to the Underworld article and was not an act of participation in the bilateral process of communicating the contents of that article to a third party. There was no other basis for finding publication because the appellant had not participated in the writing or disseminating of the defamatory matter. There being no publication, the majority found it unnecessary to consider the defences raised by the appellant.

HIGH COURT OF AUSTRALIA 7 September 2005 BELINDA ANN WILLETT (AN INFANT BY HER LITIGATION GUARDIANS DEBORAH ANN WILLETT AND PATRICK WILLETT) v DUDLEY D FUTCHER A disabled woman who requires an administrator to manage her affairs was entitled to damages to cover the administrator’s costs of overseeing investments on her behalf, the High Court of Australia held today. In July 1979, at nine weeks of age, Ms Willett suffered severe brain and other injuries as a result of a motor vehicle collision. When she was 23 her action against Mr Futcher went to mediation. He admitted liability and they settled for $3.85 million compensation plus trustee administration and management charges. As Ms Willett was incapable of managing her affairs she was unable to make a binding agreement to settle her litigation so application was made to the Queensland Supreme Court for approval. Justice John Byrne made orders approving the settlement and appointed Perpetual Trustees Queensland as administrator of Ms Willett’s financial affairs. He also gave directions for the subsequent determination of what management fees should be paid to Perpetual. At the determination hearing before Justice Margaret White, evidence was given as to what fees would be charged by both Perpetual and the Public Trustee based on the fund being reduced to zero when Ms Willett reached the end of her life expectancy of 59. Perpetual anticipated that the present value of the fees it would charge and the outgoings it would incur would total $876,506 and the Public Trustee expected its fees and outgoings would total $969,336. Mr Futcher disputed some categories of the charges Ms Willett sought. Justice White allowed an amount of $180,000 to cover the management fees to be paid by Mr Futcher. This figure covered only an establishment fee and a discretionary portfolio management fee. Justice White disallowed other categories relating to investing Ms Willett’s money. After an unsuccessful appeal to the Court of Appeal, Ms Willett appealed to the High Court. The Court unanimously allowed the appeal. It held that the kinds of costs of managing the damages awarded to persons incapable of managing their own affairs should allow for remuneration and expenditure properly charged or incurred by the administrator of the fund during the life of the fund. No distinction of the kind made by Justice White between investment advice and other services should be drawn in assessing that amount. The Court ordered that the matter be remitted to the Court of Appeal to reassess the damages to be allowed.

HIGH COURT OF AUSTRALIA 6 November 2013 EXPENSE REDUCTION ANALYSTS GROUP PTY LTD & ORS v ARMSTRONG STRATEGIC MANAGEMENT AND MARKETING PTY LIMITED & ORS [2013] HCA 46 Today the High Court unanimously held that the Supreme Court of New South Wales should have ordered that the respondents return 13 privileged documents which had been inadvertently disclosed to them by the appellants' solicitors during a court-ordered process of discovery. The parties have been involved in commercial proceedings in the Supreme Court since 2010. In 2011, the Supreme Court ordered that the parties give verified, general discovery. During this process, a number of documents, which were subject to client legal privilege, were mistakenly listed in the non-privileged section of the appellants' verified Lists of Documents. Electronic copies of these documents were inadvertently disclosed to the respondents' solicitors, Marque Lawyers. Marque Lawyers refused to return the documents, asserting that their clients had no obligation to do so and that privilege in the documents had been waived by the disclosure. The appellants sought orders in the Supreme Court to the effect that Marque Lawyers return 13 of the inadvertently disclosed documents. The Supreme Court ordered the return of nine documents, but considered that privilege in the four remaining documents had been waived, and so declined to order the return of those documents. The Court of Appeal overturned the Supreme Court's decision. It held that the Supreme Court did not have power to order the return of any of the 13 documents. According to the Court of Appeal, the orders sought could only be granted in the exercise of the Court's equitable jurisdiction, on the basis of the law of confidential information. The Court of Appeal found that there was no equitable obligation of confidence upon Marque Lawyers and so held that the orders sought by the appellants should have been refused. By grant of special leave, the appellants appealed to the High Court. The High Court unanimously allowed the appeal. The Court held that the issue of waiver should never have been raised. There was no evidence that the appellants had acted inconsistently with the maintenance of their claims to privilege. There was also no need to resort to the Court's equitable jurisdiction. If a privileged document is inadvertently disclosed during discovery, the Supreme Court ordinarily has all powers necessary to permit the correction of that mistake and to order the return of the documents (if the party receiving the documents refuses to do so). These powers exist by virtue of the Supreme Court's role in the supervision of the process of discovery and the express powers given to it by Pt 6 of the Civil Procedure Act 2005 (NSW) to ensure the "just, quick and cheap resolution of the real issues" in proceedings. The High Court held that, in this case, the Supreme Court should have promptly exercised these powers to permit the appellants to correct their solicitors' mistake.

HIGH COURT OF AUSTRALIA 24 August 2016 SIO v THE QUEEN [2016] HCA 32 Today the High Court unanimously allowed an appeal from the Court of Criminal Appeal of the Supreme Court of New South Wales. The High Court quashed the conviction of the appellant ("Mr Sio") for armed robbery with wounding because the trial judge omitted an element of the offence in directing the jury. The Court also held that the trial judge erred in admitting hearsay evidence, given by the person who stabbed the victim, that Mr Sio gave him the knife. On 24 October 2012, Mr Sio drove Mr Filihia to a brothel in Clyde in New South Wales. Mr Filihia entered the brothel alone, armed with a knife, intending to commit robbery. During an altercation, Mr Filihia fatally stabbed Mr Gaudry, who worked at the brothel. Mr Filihia removed from Mr Gaudry's back pocket a pencil case which contained cash and left the brothel, running past Mr Sio's car. Mr Sio caught up with and collected Mr Filihia, and accelerated away from the scene. Mr Sio was charged with the murder of Mr Gaudry and with armed robbery with wounding. Mr Filihia refused to give evidence at Mr Sio's trial. The prosecution tendered two electronically recorded interviews, and two supplementary statements, given by Mr Filihia in which he named Mr Sio as the driver of the car and as the person who had given him the knife. The trial judge admitted this evidence under s 65 of the Evidence Act 1995 (NSW), which provides an exception to the hearsay rule where the maker of the representation is unavailable, and where the representation was against the interests of the person who made it at the time it was made and was made in circumstances that make it likely that the representation was reliable. In directions to the jury, the trial judge instructed them that they must be satisfied that Mr Sio foresaw the possibility of the use of the knife by Mr Filihia to wound Mr Gaudry in relation to the murder charge, but omitted this element in relation to the armed robbery with wounding charge. Mr Sio was acquitted of murder, but convicted of armed robbery with wounding. The Court of Criminal Appeal granted leave to appeal to Mr Sio, but dismissed the appeal, holding that the trial judge did not err in admitting Mr Filihia's evidence, and that the verdict on the armed robbery with wounding charge was not unreasonable. The High Court held that the conviction of armed robbery with wounding must be quashed because of the trial judge's misdirection and because the trial judge erred in admitting the hearsay evidence. With respect to the evidence of the representation that Mr Sio gave Mr Filihia the knife, the Court held that it was not open to the trial judge to be satisfied positively that the representation was made in circumstances that made it likely that it was reliable. A new trial on the charge of armed robbery with wounding was not possible, as that would traverse the jury's verdict on the murder charge. It was also not open to substitute a conviction for armed robbery because of the wrongful admission of the hearsay evidence. The Court ordered that there be a new trial on the charge of armed robbery.

HIGH COURT OF AUSTRALIA 13 May 2015 RONALD SELIG & ANOR v WEALTHSURE PTY LTD & ORS [2015] HCA 18 Today the High Court unanimously allowed an appeal against a decision of the Full Court of the Federal Court of Australia and held that the proportionate liability regime in Div 2A of Pt 7.10 ("Div 2A") of the Corporations Act 2001 (Cth) ("the Act") applies only to claims of misleading or deceptive conduct based upon a contravention of s 1041H of the Act. The Court also made a costs order against the first respondent's professional indemnity insurer, a non-party to the proceedings. The appellants made an investment on the advice of the second respondent, an authorised representative of the first respondent. The scheme invested in was, in effect, a "Ponzi scheme" and the appellants lost their initial investment and suffered consequential losses. The appellants claimed the first and second respondents had contravened a number of provisions of the Act and the Australian Securities and Investments Commission Act 2001 (Cth) ("the ASIC Act"), including s 1041H of the Act and its analogue in the ASIC Act, s 12DA. Section 1041H(1) prohibits conduct, in relation to a financial product or service, that is misleading or deceptive, or is likely to mislead or deceive. Section 1041L(1) in Div 2A defines an "apportionable claim" as a claim for loss or damage "caused by conduct that was done in a contravention of section 1041H". The first and second respondents submitted that Div 2A and the corresponding provisions of the ASIC Act applied to limit their liability to a proportion of the appellants' loss and damage, having regard to the comparative responsibility of a number of other parties, including the company the appellants invested in and its directors. The High Court held that an "apportionable claim" for the purposes of Div 2A is, relevantly, a claim based upon a contravention of s 1041H. The term does not extend to claims based upon conduct of a different kind, and therefore the proportionate liability regime established by Div 2A does not apply to other statutory or common law causes of action. The Court held that this reasoning applied equally to the analogue provisions of the ASIC Act. The High Court further held that the circumstances justified an award of costs against a non-party to the proceedings, the first respondent's professional indemnity insurer. The insurer had the conduct of the defence at trial and made the decision to appeal to the Court below. As the first respondent's cover under the policy was capped, the decision to appeal meant that monies which it would otherwise have been obliged to pay the appellants would be diverted to meet the insurer's legal costs. The Court held that as the insurer was acting for itself in seeking to better its position by bringing the appeal, there was no reason it should be regarded as immune from a costs order.

HIGH COURT OF AUSTRALIA 9 September 2004 RE AN APPLICATION FOR WRITS OF CERTIORARI AND PROHIBITION AGAINST COURT MARTIAL MEMBERS COLONEL STEVEN AIRD, LIEUTENANT COLONEL BRYCE TITCUME, MAJOR PETER THUAUX, CAPTAIN SHANNON CALLAGHAN AND CAPTAIN SIMON WORBOYS , JUDGE ADVOCATE WING COMMANDER MICHAEL BURNETT, AND THE COMMONWEALTH; EX PARTE STEWART WAYNE ALPERT Legislation under which an Australian soldier stationed at Butterworth air force base in Malaysia and accused of rape while on leave in Thailand could be dealt with by a court martial rather than by the civil courts was constitutionally valid, the High Court of Australia held today. Private Alpert, 23, was deployed with the 6th Battalion’s Delta Company at Butterworth from August to November 2001. The company had infantry training with the Malaysian armed forces and was responsible for securing RAAF aircraft and other Australian Defence Force (ADF) assets at Butterworth. Private Alpert and other members of Delta Company had recreation leave from 22 to 30 September which they could take in Thailand, Singapore or on the Malaysian peninsula. He was in a group that went to Phuket in Thailand. He travelled on a civilian passport, wore civilian clothes and paid his own way. On 28 September at a nightclub he met up with an 18-year-old British woman who was in Thailand for her gap year. Private Alpert allegedly raped her on Patong Beach. On 2 October, when he was back in Phuket for training, the woman asked an officer for Private Alpert’s name and details and told the officer she was going to try to have him charged with rape. She later wrote to the commanding officer of 6RAR. In February 2003 he was charged before a general court martial with non-consensual sexual intercourse. Private Alpert challenged the validity of Defence Force Discipline Act (DFDA) provisions which made his alleged conduct a service offence. He contended that the constitutional defence power did not extend to authorise Parliament to make laws criminalising conduct by ADF personnel during leave when serving overseas. By a 4-3 majority, the Court held that it was within the constitutional defence power for Parliament to make Private Alpert’s alleged conduct a service offence. DFDA provisions were sufficiently connected with military discipline and the proper administration of the ADF to be a law with respect to defence for constitutional purposes. The Court held Parliament therefore did have power to extend the DFDA’s code of behaviour should extend to soldiers while on leave during overseas service and to permit the trial by general court martial for the offence of rape in Thailand.

HIGH COURT OF AUSTRALIA Public Information Officer 1 March 2006 DANIEL CRIS PHILLIPS v THE QUEEN Mr Phillips should have been tried separately on sexual assault charges related to each of six female teenagers, the High Court has held. The Court today published its reasons for orders it made on 9 December 2005 that Mr Phillips face five new trials for the charges on which he was convicted in relation to five of the six teenagers. Mr Phillips, now 21, was charged with six counts of rape, one count of indecent assault and one count of assault with intent to rape. The first seven counts relate to five girls aged between 14 and 16 around Innisfail in northern Queensland between August 2000 and November 2001. The eighth count involved an 18-year-old woman in May 2003 in Brisbane. In the Queensland District Court, Judge Peter White dismissed Mr Phillips's applications for separate trials. Mr Phillips argued that the evidence of a complainant was admissible only on any charges relating to her, not on charges relating to other complainants. He argued that rules for reception of similar fact evidence were not satisfied, so trying all eight charges against him in a single trial was prejudicial. In March 2004, he was convicted of three counts of rape, assault with intent to rape, and two counts of unlawful carnal knowledge as alternative charges to two of the rape charges. Mr Phillips was acquitted of indecent assault and one rape count and cannot be retried on these charges. He was jailed for a total of 12 years, made up of four years for each of two rapes, nine years on the third, and three months on each carnal knowledge count, to be served concurrently, plus three years for assault with intent to rape, to be served cumulatively. Mr Phillips unsuccessfully appealed to the Court of Appeal (but succeeded in having his sentence reduced from a total of 12 years' imprisonment to a total of 10 years due to the nine-year sentence for one rape being cut to seven years) and appealed to the High Court. The Court unanimously allowed the appeal. Similar fact evidence requires a strong degree of probative force and must have a material bearing on the issues. In Mr Phillips's case the threshold was not met. The test for the admissibility of similar fact evidence expressed in the 1995 case of Pfennig v The Queen continued to be the applicable test. The High Court ordered retrials on the six counts for which Mr Phillips was convicted in relation to five of the teenagers. Because Mr Phillips has now served terms for some offences on which he was convicted, it was for the prosecuting authorities to decide whether such retrials should proceed in these cases.

HIGH COURT OF AUSTRALIA 3 March 2005 GRIFFITH UNIVERSITY v VIVIAN TANG Exclusion from a PhD program was not a decision which was susceptible to review under Queensland’s Judicial Review Act, the High Court of Australia held today. Ms Tang was excluded from Griffith University’s PhD program on the ground of alleged academic misconduct in the form of the presentation of falsified or improperly obtained data as if it resulted from laboratory work. The Assessment Board, a sub-committee of the university’s Research and Postgraduate Studies Committee, found she had engaged in academic misconduct. After receiving submissions from Ms Tang the board determined that she should be excluded from the PhD program on the ground that she had undertaken research without regard to ethical and scientific standards. The Appeals Committee upheld this decision and dismissed the appeal. Ms Tang contended that there had been breaches of the requirements of natural justice, failures to comply with mandatory procedures, improper exercises of power and errors of law. She said her prospects of a career in molecular biology and bioscience had been destroyed. Ms Tang commenced action against the University under the Judicial Review Act. The University unsuccessfully sought to have the action dismissed in both the Queensland Supreme Court and the Court of Appeal. It then appealed to the High Court. The issue in the appeal was whether the decision to exclude Ms Tang was a decision to which the Judicial Review Act applied. This depended on whether it was a decision of an administrative character made under an enactment, namely the Griffith University Act. Nothing in this Act dealt specifically with admission to or exclusion from a research program, academic misconduct or procedures for dealing with such cases. These powers flowed from a general description in section 5 of the university’s functions, the general powers in section 6, and the powers of the University Council, including its powers of delegation. The High Court held, by a 4-1 majority, that Ms Tang was not entitled to a review under the Judicial Review Act because the decision to exclude her was not made under the Griffith University Act. Griffith University’s decision to terminate its relationship with Ms Tang did not take legal force or effect from the Griffith University Act. Rather, the termination occurred under the general law and under the terms and conditions on which Griffith University had been willing to enter into a relationship with Ms Tang.

HIGH COURT OF AUSTRALIA 15 June 2005 THE TRUSTEES OF THE ROMAN CATHOLIC CHURCH FOR THE DIOCESE OF CANBERRA AND GOULBURN (AS ST ANTHONY’S PRIMARY SCHOOL) v FARRAH HADBA BY HER NEXT FRIEND AND FATHER NOUHAD HADBA A schoolgirl injured after two schoolchildren pulled her legs while on a “flying fox” had failed to make out a case of negligence against the school, the High Court of Australia held today. Farrah Hadba was eight years old and in Year 3 at St Anthony’s Primary School in the Canberra suburb of Wanniassa in February 1999 when she was injured by another child while using the flying fox, an apparatus consisting of a platform and vertical pole at each end, linked by a horizontal pole to which a sliding triangle was attached. A child grasped the triangle, stepped off the platform and slid to the other end. In the six years it had been in use, no serious accidents had occurred on the flying fox. Classes only used the flying fox at rostered times. The school enforced a hands-off rule, requiring children not to touch each other during play, and frequently reminded them of this rule. Farrah’s teacher had also explained that no-one was to touch another child using the flying fox. Despite this, two children grabbed Farrah’s legs as she grasped the triangle. One child eventually let go but the other held on and Farrah was pulled from the flying fox. Her face struck the platform as she fell to the ground. The teacher on playground duty in the area was checking water bubblers and toilets and ordering children out of a nearby classroom when the accident happened. Four of the school’s 20 teachers were on playground duty in assigned sections of the school during each break. In the ACT Supreme Court Justice Terence Connolly held that the flying fox was not inherently dangerous and that the cause of the accident was the other child continuing to pull Farrah’s legs. He was satisfied that the school had fulfilled its duty of care. The Court of Appeal, by majority, allowed an appeal, holding that the school’s system of supervision in the play area was inadequate. The school appealed to the High Court. The Court, by a 4-1 majority, allowed the school’s appeal. It held that having more teachers supervising children during recesses so that one teacher could watch the play equipment exclusively was unreasonable and would not necessarily have prevented the accident which happened within a few seconds. There was no evidence of serious accidents on the flying fox or of children pulling each other from the flying fox in breach of the well-known hands-off policy so the risk and probability of injury were not high. Dangers could also arise elsewhere, such as children going into untended classrooms. Farrah had been unable to show that any reasonably practicable alternative system of supervision would have been more effective.

HIGH COURT OF AUSTRALIA Manager, Public Information 7 July 2009 JONATHAN PETER BAKEWELL v THE QUEEN [2009] HCA 24 Today the High Court determined that section 19 of the Sentencing (Crime of Murder) and Parole Reform Act 2003 (NT), relied on by the Director of Public Prosecutions for the Northern Territory (“the Director”) in an application to the Supreme Court of the Northern Territory to have Mr Bakewell’s non- parole period fixed at 25 years, does not apply to Mr Bakewell. In 1989 Mr Bakewell was convicted on charges of aggravated unlawful entry, aggravated sexual assault, stealing, and murder. As the law then stood in the Northern Territory the only sentence that could be imposed for murder was imprisonment for life, with no minimum term able to be fixed. Mr Bakewell was sentenced to life imprisonment. The Sentencing (Crime of Murder) and Parole Reform Act 2003 (NT) (“the 2003 Reform Act”) commenced in 2004. Section 18 of the 2003 Reform Act deemed Mr Bakewell’s sentence to include a 20 year non-parole period. Section 19 provided that the Supreme Court may, or in certain circumstances, must revoke the 20 year non-parole period and fix a longer period or no period on the application of the Director. After the commencement of the 2003 Reform Act but before the Director had made an application Mr Bakewell was transferred to South Australia and has remained in custody in that State. In 2007 the Director sought to have Mr Bakewell’s minimum term fixed at 25 years, pursuant to section 19 of the 2003 Reform Act. The primary judge allowed the Director’s application but the Court of Criminal Appeal of the Northern Territory overturned the decision. Following the appeal, an Act was passed (“the 2008 Amendment Act”) which amended the 2003 Reform Act. The Director made a second application to fix Mr Bakewell’s non-parole period, relying on the 2008 Amendment Act. Mr Bakewell challenged the constitutional validity of section 19 of the 2003 Reform Act, as amended by the 2008 Amendment Act. A majority of the Full Court of the Supreme Court of the Northern Territory rejected his constitutional challenge. The High Court granted Mr Bakewell leave to appeal against the Full Court’s decision. In a unanimous decision the High Court considered that, by the operation of prisoner transfer legislation applicable in the Northern Territory and South Australia at the time Mr Bakewell was transferred to South Australia, three outcomes resulted: the life sentence imposed on him in the Northern Territory ceased to have effect in the Territory; a life sentence was deemed to have been imposed on him by the Supreme Court of South Australia; and the 20 year non-parole period fixed under Northern Territory legislation was deemed to have been fixed by the Supreme Court of South Australia. From the date of Mr Bakewell’s transfer to South Australia the Supreme Court of the Northern Territory had no authority to revoke his 20 year non-parole period, or to fix a 25 year non-parole period. The Court determined it was unnecessary to answer four of the five questions posed by the parties concerning the constitutional validity of the 2003 Reform Act as amended by the 2008 Amendment Act and other matters. The fifth question asked whether section 19 of the Reform Act, as amended, applied to Mr Bakewell. The Court determined that it did not.

HIGH COURT OF AUSTRALIA 17 June 2015 CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION v BORAL RESOURCES (VIC) PTY LTD & ORS [2015] HCA 21 Today the High Court unanimously dismissed an appeal from the Court of Appeal of the Supreme Court of Victoria and held that the appellant was amenable to an order under r 29.07(2) of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) ("the Rules") to make discovery of particular documents in proceedings brought to punish it for contempt of court. The first to sixth respondents (together, "Boral") applied under r 75.06(2) of the Rules to punish the appellant for contempt of court, alleging that the appellant had disobeyed court orders by establishing a blockade of a construction site. The blockade was alleged to have been organised and implemented by an employee of the appellant. Boral sought an order under r 29.07(2) directing the appellant to make discovery of particular documents going to the question of whether the appellant had authorised its employee to establish the blockade. The appellant's status as a corporation meant it could not invoke either the privilege against self-incrimination or the privilege against self-exposure to a penalty to resist the order sought by Boral. In the Supreme Court of Victoria, Daly AsJ refused to make an order for discovery under r 29.07(2) on the basis that the contempt proceeding was properly characterised as a criminal proceeding, and so the Rules did not apply. Digby J allowed an appeal from that decision, holding that the contempt proceeding was a civil proceeding to which the Rules did apply, and that it was appropriate to order discovery in the circumstances. The Court of Appeal refused the appellant leave to appeal from that decision on the basis that there was insufficient reason to doubt its correctness and the appellant would suffer no substantial injustice if the order for discovery were permitted to stand. By grant of special leave, the appellant appealed to the High Court. The appellant contended that it could not be ordered to make discovery under r 29.07(2) because to do so would conflict with the principle that a defendant to an accusatorial proceeding cannot be required to assist the prosecution to prove its case. The Court accepted that this principle applies to criminal proceedings but held that the contempt proceeding was a civil proceeding. Rule 29.07(2) applied to the contempt proceeding according to its tenor enabling an order for discovery to be made.

HIGH COURT OF AUSTRALIA 8 May 2013 [2013] HCA 19 Today the High Court unanimously dismissed an appeal from a decision of the Court of Appeal of the Supreme Court of New South Wales, which held that even if the respondent, Dr Kam, had failed to warn the appellant, his patient Mr Wallace, of all the material risks inherent in a surgical procedure, that failure did not cause the injury suffered by Mr Wallace as a result of one of those risks eventuating. Dr Kam performed a surgical procedure on Mr Wallace in an effort to relieve him of a condition of his lumbar spine. The surgical procedure had inherent risks, one of which was of temporary damage to Mr Wallace's thighs, or "neurapraxia". Another was a one-in-twenty chance of permanent and catastrophic paralysis. The first risk materialised. The second risk did not. At trial, the Supreme Court of New South Wales found that while Dr Kam negligently failed to warn Mr Wallace of the risk of neurapraxia, Mr Wallace would have chosen to undergo the surgical procedure even if warned of that risk. The Supreme Court also concluded that the legal cause of the neurapraxia could not be the failure to warn of some other risk that did not materialise. On appeal to the Court of Appeal, Mr Wallace argued that the Supreme Court erred in holding that the legal cause of the neurapraxia could not be the failure to warn of the risk of paralysis. The Court of Appeal assumed that Dr Kam negligently failed to warn Mr Wallace of the risk of paralysis and that, if warned of that risk, Mr Wallace would not have undergone the surgical procedure. On that assumption, a majority of the Court of Appeal found that Dr Kam was not liable for the neurapraxia. Mr Wallace appealed by special leave to the High Court. The High Court held that it was not appropriate for Dr Kam's liability to extend to the physical injury in fact sustained by Mr Wallace, in circumstances where Mr Wallace would not have chosen to undergo the surgical procedure had he been properly warned of all material risks, but where he would have chosen to undergo the surgical procedure even if he had been warned of the risk that in fact materialised. The policy underlying the requirement that a medical practitioner exercise reasonable care and skill in warning a patient of material risks inherent in proposed treatment is to protect the patient from the occurrence of physical injury the risk of which is unacceptable to the patient. The High Court held that Mr Wallace was not to be compensated for the occurrence of physical injury, the risk of which he was willing to accept.

HIGH COURT OF AUSTRALIA Public Information Officer 16 October 2008 MATINA LUJANS v YARRABEE COAL COMPANY PTY LTD AND JALGRID PTY LTD The High Court of Australia today allowed an appeal against a decision of the New South Wales Court of Appeal which had overturned a decision of the NSW Supreme Court awarding damages to the victim of a road accident. The High Court held that the Court of Appeal had not discharged its legal duty on the appeal, which required it to review the evidence before the trial judge. At 6.20am on Friday 18 September 1998 Matina Lujans, then aged 28, was driving to work at a central Queensland coal mine when she had an accident that left her a quadriplegic. She turned off the Capricorn Highway on to a mining road controlled by Yarrabee Coal. Almost 6km along the road where Ms Lujans was out of sight of two drivers behind her, the left wheels of her Toyota HiLux gradually went on to the shoulder of the road at the start of a sweeping right-hand bend. The vehicle swung sharply right, travelled across the road and rolled over. Ms Lujans said she had slowed from 100km per hour to between 80 and 90km per hour before the accident because for a reason she could not identify she felt unsafe. The edge of the road was a ridge of soil left after grading operations, known as a rill. The 35km clay and gravel road was graded every week to remove a build-up of coal dust from 500 loads carried on large road trains, each hauling 400 tons of coal. The road was graded in 7km sections from Sunday to Thursday nights. The section where Ms Lujans had her accident on a Friday had not been graded since the previous Sunday night. The road was also watered each night to reduce dust and there was evidence that it was still wet or moist at the time of the accident. Ms Lujans sued Yarrabee Coal and its road maintenance contractor, Jalgrid, in the NSW Supreme Court. Acting Justice Harvey Cooper found that, due to coal and dust being spread over the road from rill to rill, drivers had difficulty distinguishing between the hard roadway surface and the softer shoulder. Ms Lujans was awarded $10,802,980.43 in damages against Yarrabee and Jalgrid, which was reduced by 20 per cent for contributory negligence to $8,759,510.55 by her failure to stay on the hard compacted centre of the road. The Court of Appeal allowed an appeal by Yarrabee and Jalgrid. It held that the sole cause of the accident was driver error because Ms Lujans had not kept a proper lookout. The Court of Appeal noted that the road’s appearance was not deceptive and the shoulder was not so soft as to contribute to the accident. Ms Lujans sought special leave to appeal to the High Court. She complained that although the appeal rehearing lasted more than two days the Court of Appeal failed to conduct the rehearing required by law as it did not consider a substantial body of evidence, it did not refer to Acting Justice Cooper’s assimilation of that evidence into his judgment, it misunderstood evidence and proceeded on wrong factual bases, and it wrongly relied on its own interpretations of photographs over those of Justice Cooper. The application for special leave to appeal to the High Court was referred to a five-member Bench and argued as if on an appeal. The Court unanimously granted special leave to appeal, allowed the appeal and remitted the proceedings to the Court of Appeal for rehearing. It held that the Court of Appeal had wrongly relied on copies of photographs in appeal books while the originals – to which the Court of Appeal had access – arguably showed a layer of black coal dust all the way across the road. Acting Justice Cooper and witnesses at the trial had used originals, not copies. The High Court held that the Court of Appeal overlooked the cross-examination of experts about speed and the condition of the road at the time of the accident. It made errors in its analysis of evidence about the vehicle’s speed and did not explain why it had not taken account of evidence about the trajectory of the vehicle and how Ms Lujans lost control of it. The High Court held that the Court of Appeal’s conclusions were not necessarily wrong but that important steps in its reasoning were shown not to be valid, which meant that it had not reheard the matter as it should.

HIGH COURT OF AUSTRALIA 11 September 2014 PLAINTIFF S4/2014 v MINISTER FOR IMMIGRATION AND BORDER PROTECTION & ANOR [2014] HCA 34 Today the High Court unanimously held invalid the grant by the Minister for Immigration and Border Protection of a temporary safe haven visa to the plaintiff which had the effect of precluding the plaintiff making a valid application for a protection visa, in circumstances where the plaintiff's detention had been prolonged for the purpose of the Minister considering the exercise of power to allow the plaintiff to make a valid application for a visa of his choice. The plaintiff arrived at Christmas Island without a visa to enter or remain in Australia and was lawfully taken into immigration detention. Section 46A(1) of the Migration Act 1958 (Cth) prevented the plaintiff from making a valid application for any visa unless the Minister determined, under s 46A(2), that the prohibition in s 46A(1) did not apply to an application by the plaintiff. The Minister decided to consider whether to exercise his power under s 46A(2) to permit the plaintiff to apply for a protection visa. The plaintiff remained in detention for more than two years while the Minister's department inquired into the plaintiff's eligibility for such a visa. The department determined that the plaintiff satisfied the requirements for the grant of the visa. However, the Minister made no decision to permit or refuse the making of a valid application. Instead, the Minister, acting of his own motion under s 195A(2) – which gives the Minister power to grant a visa to a person in immigration detention if the Minister thinks it is in the public interest to do so – granted the plaintiff a temporary safe haven visa and a temporary humanitarian concern visa. Although the prohibition in s 46A(1) no longer applied once the plaintiff became a lawful non-citizen by reason of the grant of the visas, the grant of the temporary safe haven visa engaged a similar prohibition in s 91K. In proceedings commenced in the High Court, the plaintiff claimed that the grants of the visas were invalid and that, that being so, the Minister must determine under s 46A(2) that the plaintiff may make a valid application for a protection visa or, alternatively, determine how the s 46A(2) power will be exercised. A special case stated questions of law for determination by the Full Court. The High Court held that where a person's detention is prolonged for the purpose of considering the exercise of power under s 46A(2), other powers given by the Act do not permit the making of a decision which would foreclose the exercise of the power under s 46A(2) before a decision is made, thus depriving the prolongation of detention of its purpose. The Court quashed the decision to grant both visas and held that it was not appropriate to answer the questions stated about whether and how the Minister is bound to exercise his power under s 46A(2).

HIGH COURT OF AUSTRALIA 17 August 2017 RAMSAY HEALTH CARE AUSTRALIA PTY LTD v ADRIAN JOHN COMPTON [2017] HCA 28 Today the High Court published reasons for dismissing an appeal on 4 May 2017 from a decision of the Full Court of the Federal Court of Australia. The appeal concerned the circumstances in which a Bankruptcy Court may “go behind” a judgment in order to be satisfied that the debt relied upon by the petitioning creditor is truly owing. A majority of the High Court held that where a creditor’s petition is based upon a judgment debt resulting from a contested hearing, yet there are substantial reasons for questioning whether behind that judgment there was in truth and reality a debt due to the petitioner, the Bankruptcy Court has a discretion to “go behind” the judgment to investigate whether the debt relied upon is truly owing. In November 2012, Ramsay Health Care Australia Pty Ltd (“Ramsay”) entered into an agreement with Compton Fellers Pty Ltd (trading as Medichoice), of which Adrian Compton was a director, for the importation and distribution of medical products. The agreement expired on 30 June 2013 and Medichoice subsequently went into liquidation. Ramsay commenced proceedings in the Supreme Court of New South Wales against Mr Compton, claiming that $9,810,312.33 was owing to it under the agreement. Mr Compton raised a defence disputing liability, but not the quantum of his indebtedness. The defence was unsuccessful, and the Court entered judgment for the amount claimed. Ramsay served a bankruptcy notice on Mr Compton requiring that he pay the judgment debt. He did not comply. On 4 June 2015, Ramsay presented a creditor’s petition in reliance upon Mr Compton’s failure to comply with the bankruptcy notice. Mr Compton applied for a separate determination of the question of whether the Bankruptcy Court should exercise its discretion to go behind the judgment to investigate the debt. Mr Compton adduced evidence suggesting that it was in fact Ramsay that owed money to Medichoice and not vice versa. The primary judge in the Federal Court declined to go behind the judgment, noting that Mr Compton’s counsel before the Supreme Court had made a forensic decision not to dispute quantum. Mr Compton appealed to the Full Court, which unanimously allowed his appeal, holding that the primary judge had erred by focussing on the way in which Mr Compton had conducted his case in the Supreme Court, rather than on the central issue of whether reason was shown for questioning whether the debt was truly owing to Ramsay, which the Court found there was. By grant of special leave, Ramsay appealed to the High Court, arguing that the power to go behind a judgment after a contested hearing exists only in the event of “fraud, collusion or miscarriage of justice” and that “miscarriage of justice” here refers only to matters impeaching the judgment such that it should never have been obtained (there being no suggestion of fraud or collusion in this case). A majority of the Court rejected that argument, relying on Wren v Mahony (1972) 126 CLR 212 as authority for the propositions that: first, the fact that a judgment was obtained without collusion or fraud after a contested hearing does not preclude the possibility of there being sufficient reason for questioning the underlying debt; and second, that “miscarriage of justice” is not limited to cases where the judgment is so tainted that it may be set aside. The Court emphasised that s 52(1) of the Bankruptcy Act 1966 (Cth) imposes an obligation on the Bankruptcy Court to be satisfied that the debt on which the petitioning creditor relies is still owing. The majority held that, in light of the evidence adduced by Mr Compton, the Full Court was correct to conclude that the Bankruptcy Court should proceed to investigate the question of whether the debt relied upon by Ramsay was owing.

HIGH COURT OF AUSTRALIA 13 March 2013 TCL AIR CONDITIONER (ZHONGSHAN) CO LTD v THE JUDGES OF THE FEDERAL COURT OF AUSTRALIA & ANOR [2013] HCA 5 Today the High Court unanimously dismissed an application by TCL Air Conditioner (Zhongshan) Co Ltd ("TCL") for constitutional writs directed to the judges of the Federal Court of Australia. The High Court held that s 16(1) of the International Arbitration Act 1974 (Cth), which gives "the force of law in Australia" to the UNCITRAL Model Law on International Commercial Arbitration ("the Model Law"), is not invalid. TCL entered into a written distribution agreement with Castel Electronics Pty Ltd ("Castel"). The agreement provided for the submission of disputes to arbitration. Following an arbitration, awards were made which required TCL to pay Castel a sum of money ("the awards"). In default of payment, Castel applied to the Federal Court for enforcement of the awards in accordance with Art 35 of the Model Law. In separate proceedings instituted in the High Court, TCL applied for an order restraining the judges of the Federal Court from enforcing the awards, and for an order quashing decisions of that Court in relation to the awards. TCL submitted that the Model Law provided for the exercise of the judicial power of the Commonwealth in a manner contrary to Ch III of the Constitution. Under the Model Law, the Federal Court has no power to refuse to enforce an arbitral award on the ground that an error of law is apparent on the face of the award. TCL argued that consequently, the jurisdiction conferred on the Federal Court under the Act requires that Court to act in a manner which substantially impairs its institutional integrity. Further, the Model Law was said to vest the judicial power of the Commonwealth in arbitral tribunals. The High Court unanimously dismissed the application.

HIGH COURT OF AUSTRALIA 5 December 2018 THE REPUBLIC OF NAURU v WET040 [2018] HCA 60 Today, the High Court unanimously allowed an appeal from a decision of the Supreme Court of Nauru, holding that the Refugee Status Review Tribunal ("the Tribunal") had not erred in dismissing the respondent's application to be recognised as a refugee or as person owed complementary protection by the Republic of Nauru ("Nauru") under the Refugees Convention Act The respondent is an Iranian national who arrived in Nauru in January 2014. In his Refugee Status Determination application, he claimed to have married in 2010, and that the first two years of his marriage were relatively problem free. Some five or six months before he left Iran, he discovered, for the first time, that his wife had previously married and divorced. He claimed that his wife's family then took a number of steps to induce him not to divorce his wife, including pouring acid on his car. He claimed that his father-in-law was using his connections to a state paramilitary organisation to have him followed. The respondent claimed to fear that, if returned to Iran, he would be detained, imprisoned, tortured, attacked with acid or killed, either through the justice system at his father-in-law's behest or extra judicially by his brothers-in-law, and that there was no place in Iran where he would be safe. The Secretary of the Department of Justice and Border Control ("the Secretary") rejected the respondent's application. On his application to the Tribunal for review of the Secretary's determination, the respondent claimed, for the first time, that the main reasons he fled Iran and feared returning were: that he would be perceived as having a political and religious opinion that was anti-government, anti-regime and anti-Islamic; that his status as a failed asylum seeker would further be seen as reflecting his imputed anti-regime sentiments; and that he would be prejudiced because of his lack of religious beliefs and his ethnicity as an Azeri Turk. He also made new claims about his wife's family. The Tribunal rejected the respondent's claims and affirmed the Secretary's determination, holding that there were good reasons to doubt the truth of the respondent's claims concerning the enmity of his wife's family towards him. The respondent appealed to the Supreme Court, which allowed his appeal on the basis that the Tribunal had erred by finding that certain claimed events were "implausible" without any rational basis and without pointing to "basic inconsistencies in the evidence", or "probative material" or "independent country information". The appellant appealed as of right to the High Court, arguing that the Tribunal had not failed to give adequate reasons for their decision. The High Court unanimously held that the Supreme Court's reasoning was erroneous. The Tribunal had provided sufficient reasons for why it found the respondent's account of events to be implausible. The Tribunal's conclusions were not speculative or matters of conjecture or unsupported by basic inconsistencies but were the result of logical inferences grounded in the inherent improbability of the respondent's account of events and in the fact that his claims had shifted from time to time.

HIGH COURT OF AUSTRALIA 15 February 2023 UNIONS NSW & ORS v STATE OF NEW SOUTH WALES [2023] HCA 4 Today, the High Court answered questions in a special case concerning whether ss 29(11) and 35 of the Electoral Funding Act 2018 (NSW) ("the EF Act") were invalid under the Constitution because they impermissibly burdened the implied freedom of political communication. The EF Act, among other things, provides for the capping of electoral expenditure for election campaigns in NSW. The plaintiffs were registered third-party campaigners ("TPCs") under the EF Act, defined broadly as a person or entity, other than a political party, elected member or candidate, who seeks to participate in an election campaign and incurs over $2,000. Section 29(11) capped electoral expenditure by TPCs before a State by-election for the Legislative Assembly to $20,000 (indexed to inflation). The parties accepted that s 29(11) imposed an effective and direct burden on political communication and that the State of NSW bore the persuasive onus of establishing that the burden was justified. After the Court reserved its decision, the State informed the High Court that the NSW Joint Standing Committee on Electoral Matters had delivered a report to Parliament that recommended the expenditure cap in s 29(11) be increased to $198,750. In light of that report, the State conceded that the answer to Question 1 in the special case (which asked whether s 29(11) was invalid) should be answered "Yes". By majority, the High Court answered Question 1 that way, holding that the law was invalid because the State did not seek to justify, and had not justified, the burden that s 29(11) imposed on political communication. The plaintiffs had a sufficient interest to seek that relief because s 29(11) remained a purported law of NSW affecting their expenditure in future by-elections. Section 35 created an offence, applicable only to TPCs, to act in concert with another person or persons to incur electoral expenditure that exceeded the cap applicable to the TPC for the election. Two weeks before the hearing, the Parliament repealed s 35. The plaintiffs sought a declaration that s 35, as it stood from 1 July 2018 to 2 November 2022, was invalid. The amended questions in the special case asked whether the Court had jurisdiction to determine the validity of s 35 and, if so, whether it should in its discretion hear and determine the question. The High Court unanimously held that there was no longer a "matter" within federal jurisdiction with respect to the purported invalidity of s 35, because the plaintiffs did not have standing to seek a declaration of invalidity following its repeal. The plaintiffs did not demonstrate that they had a sufficient interest to seek a declaration or that there would be any foreseeable consequences from the grant of a declaration.

HIGH COURT OF AUSTRALIA 4 November 2020 GBF v THE QUEEN [2020] HCA 40 Today, the High Court unanimously allowed an appeal from the Court of Appeal of the Supreme Court of Queensland ("the QCA"). The appeal concerned whether a statement made by a trial judge to a jury about an accused's failure to give evidence occasioned a miscarriage of justice. An indictment presented in the District Court of Queensland charged the appellant in seven counts with sexual offences alleged to have been committed against his half-sister ("the complainant") when she was aged 13 and 14 years. The prosecution case was wholly dependent upon acceptance of the complainant's evidence. The appellant did not give or call evidence. The trial judge directed the jury in unexceptional terms with respect to the presumption of innocence and the onus and standard of proof, instructing the jury that the appellant's silence could not be used as a makeweight, to fill gaps in the prosecution's evidence or to strengthen its case. However, later in the trial judge's charge, after referring to the complainant's evidence, his Honour instructed the jury to: "bear in mind that [the complainant] gave evidence and there is no evidence, no sworn evidence, by the [appellant] to the contrary of her account. That may make it easier" ("the impugned statement"). The jury returned verdicts of guilty with respect to six counts. The appellant challenged his convictions in the QCA, contending that, in effect, the impugned statement was a direction to the jury that the absence of evidence from him might make it easier to find him guilty. The QCA acknowledged that the impugned statement should not have been made but found that there was no real possibility: (1) that the jury may have misunderstood the earlier correct directions; and (2) that the appellant had been deprived of a real chance of acquittal. Their Honours held that the impugned statement had not occasioned a miscarriage of justice. This conclusion took into account the fact that neither the prosecutor nor defence counsel applied for any redirection arising from the making of that statement. By grant of special leave, the appellant appealed to the High Court. The Court accepted his submission that the effect of the impugned statement was to invite the jury to engage in a process of reasoning that was contrary to the earlier correct directions. The impugned statement encouraged the jury to find it easier to accept the complainant's allegations because the appellant had not given sworn evidence denying them. Such a process of reasoning is false because it proceeds upon a view that an accused may ordinarily be expected to give evidence, which is insupportable in an accusatorial system of criminal justice. It followed that the QCA was wrong in finding that the impugned statement was not an irregularity amounting to a miscarriage of justice. Further, as the impugned statement had the capacity to affect the jury's assessment of the complainant's evidence it was not open to find, and indeed the respondent appropriately did not contend, that the proviso, which permits the Court to dismiss an appeal against conviction if it considers that no substantial miscarriage of justice has actually occurred, had been engaged. Accordingly, the Court allowed the appeal, set aside the appellant's convictions and ordered that a new trial be had.