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HIGH COURT OF AUSTRALIA Public Information Officer 22 May 2008 COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA v RELIANCE CARPET CO PTY LIMITED Goods and services tax (GST) was payable on a deposit forfeited by a purchaser when a contract for the sale of commercial property was terminated for default by the purchaser, the High Court of Australia held today. Reliance Carpet entered into a contract on 10 January 2002 to sell commercial premises in Camberwell in Melbourne for $2,975,000, with the purchaser paying a deposit of $297,500. Settlement was to take place 12 months later, but Reliance exercised its option to defer settlement for six months to allow time to relocate its business. The purchaser failed to complete on 10 July 2003. After giving 14 days’ notice to complete, Reliance rescinded the contract and forfeited the deposit. In 2004, the Commissioner assessed Reliance as liable to pay GST on the forfeited deposit. It disallowed Reliance’s objection. The Commissioner funded the matter as a test case. The disallowance of the objection was affirmed by the Administrative Appeals Tribunal, but an appeal by Reliance to the Full Court of the Federal Court succeeded. The Full Court held that there was no taxable supply because the contract was rescinded. The deposit was not consideration for a taxable supply. The Commissioner appealed to the High Court, which unanimously allowed the appeal. The Court held that the forfeited deposit was consideration for a taxable supply subject to GST. Under the A New Tax System (Goods and Services Tax) Act, there is an extended definition of supply and the issue was whether there was a “taxable supply”. The Court held that upon execution of the contract Reliance made a supply in that it entered into an obligation to do certain things under the contract, including maintaining the property, paying rates, taxes, insurance premiums and other outgoings. Upon its forfeiture for failure by the purchaser to perform its obligation under the contract, the deposit was to be treated as consideration for a taxable supply. Under the Act, if the contract had proceeded to completion then the deposit would have been counted towards payment of the purchase price and GST would have been payable on the purchase price. Where, as here, the contract was terminated for breach, the deposit, when forfeited, was treated by the Act as consideration for supply and this was a taxable supply.

HIGH COURT OF AUSTRALIA 2 December 2020 MINISTER FOR HOME AFFAIRS & ORS v DMA18 AS LITIGATION GUARDIAN FOR DLZ18 & ANOR; MINISTER FOR HOME AFFAIRS & ANOR v MARIE THERESA ARTHUR AS LITIGATION REPRESENTATIVE FOR BXD18; MINISTER FOR HOME AFFAIRS & ANOR v FRX17 AS LITIGATION REPRESENTATIVE FOR FRM17; MINISTER FOR HOME AFFAIRS & ANOR v DJA18 AS LITIGATION REPRESENTATIVE FOR DIZ18 [2020] HCA 43 Today the High Court allowed appeals from four judgments of the Full Court of the Federal Court of Australia concerning the proper construction and application of s 494AB of the Migration Act 1958 (Cth). The High Court also dismissed cross-appeals in the matters relating to BXD18 and Section 494AB(1) provides that certain "proceedings against the Commonwealth may not be instituted or continued in any court". Those proceedings, listed in s 494AB(1)(a)-(d), are all described as "proceedings relating to" a particular subject matter. In the case of s 494AB(1)(b), the proceedings are further defined by reference to a time period. Section 494AB(3) provides that nothing in the section is intended to affect the jurisdiction of the High Court under s 75(v) of the Constitution. Each respondent, while in a country designated a regional processing country, instituted proceedings in the Federal Court of Australia alleging, in various ways, that the appellants ("the Commonwealth") breached a duty of care to provide them with adequate medical treatment on Nauru. At least part of the relief sought was to compel the Commonwealth to provide adequate medical treatment. After the proceedings were instituted, each respondent was transferred to Australia for the temporary purpose of receiving medical treatment. In each of the proceedings, the Commonwealth alleged that the Federal Court did not have jurisdiction by reason of s 494AB(1)(a), (ca) or (d). Argument in the Full Court treated s 494AB as defining the Federal Court's jurisdiction by limiting or withdrawing the Federal Court's authority to decide the respondents' claims. The High Court unanimously held that s 494AB does not take away the jurisdiction of courts to hear and determine proceedings of the kinds described in s 494AB(1). It does not limit the authority of the relevant courts to decide those specific claims but provides the Commonwealth with an available answer to those claims (analogous to a time bar) if they are made in a court other than the High Court. It is a provision which the Commonwealth may plead as a defence where one of the identified subject matters in s 494AB(1) is an issue in the proceeding, when and if that pleading would be consistent with its model litigation obligations. Whether an identified subject matter is raised as an issue in the proceeding will depend on the pleadings viewed in light of the relief claimed or, if there are no pleadings, the application and other documents filed in the proceeding. The High Court further held that: s 494AB(1)(a) applied to DLZ18's proceedings; s 494AB(1)(d) applied to FRM17's proceedings; and each of s 494AB(1)(a) and (d) applied to BXD18 and DIZ18's proceedings.

HIGH COURT OF AUSTRALIA 10 May 2017 [2017] HCA 18 Today the High Court dismissed an appeal from a decision of the Court of Criminal Appeal of the Supreme Court of New South Wales. A majority of the High Court held that causing a complainant to contract the human immunodeficiency virus ("HIV") was capable of constituting infliction of grievous bodily harm contrary to s 35(1)(b) of the Crimes Act 1900 (NSW), as that provision stood in 2004. The Court also held that recklessness, within the now repealed definition of "maliciously" in s 5 of the Crimes Act, could be established by an accused's foresight of the possibility, rather than the probability, of the risk in question materialising. The appellant engaged in unprotected sexual intercourse with the complainant between January and July 2004 in circumstances where the appellant had been diagnosed as, and therefore knew that he was, HIV positive. The appellant was charged with one count of maliciously causing the complainant to contract a grievous bodily disease with the intent of causing the complainant to contract that grievous bodily disease (Count 1) and, in the alternative, one count of maliciously inflicting grievous bodily harm upon the complainant (Count 2). In March 2012, the appellant moved for an order from the District Court of New South Wales that Count 2 be quashed. Sorby DCJ stayed the proceedings in relation to Count 2 due to uncertainty as to whether causing another person to contract a serious disease constituted the infliction of grievous bodily harm contrary to s 35(1)(b) of the Crimes Act. On appeal by the Crown the Court of Criminal Appeal dissolved this stay, holding that the word "inflicts" should not be given a limited and technical meaning. At his subsequent trial in the District Court, the appellant conceded that he had known that there was a real possibility that he could infect the complainant by having unprotected sexual intercourse with him. The appellant was acquitted of Count 1 but convicted of Count 2. He unsuccessfully appealed against his conviction to the Court of Criminal Appeal on grounds including that Count 2 disclosed no offence known to law and that the trial judge erred in directing the jury that the element of malice was satisfied. A majority of the High Court held that the meaning of "inflicts" in s 35 of the Crimes Act does not require the infliction of force productive of immediate physical injury, but rather extends to the communication of disease or infection. The Court also held that recklessness in the context of s 35 does not require an accused to have foresight of the probability that certain consequences will eventuate; foresight of the possibility of such consequences is sufficient. Accordingly, the appeal was dismissed.

HIGH COURT OF AUSTRALIA 18 May 2005 ANTHONY VASKEN MARKARIAN v THE QUEEN The New South Wales Court of Criminal Appeal had erred in the formulation and application of sentencing principles when it dealt with Mr Markarian’s sentence for drug offences, the High Court of Australia held today. The Court remitted the matter to the CCA for further consideration. Mr Markarian, 41, was a heroin user and Vincent Caccamo his dealer. In April 1998, Mr Markarian was jailed and by the time of his release 18 months later he had taken himself off both heroin and methadone. He resumed contact with Mr Caccamo and started taking drugs again. Mr Markarian worked as a driver for Mr Caccamo and was paid in heroin. He was still on parole when charged with knowingly taking part in the supply of a commercial quantity (415 grams) of heroin, which carries a maximum penalty of 20 years’ jail. Mr Markarian pleaded guilty and asked that four other offences be taken into account in sentencing. Judge Greg Hosking in the District Court sentenced him to prison for two years and six months, with a non-parole period of 15 months which would have expired in October 2003. Mr Caccamo was sentenced to eight years’ jail with a non-parole period of five years. The Crown appealed, alleging Mr Markarian’s sentence was inadequate. The CCA allowed the appeal and re-sentenced Mr Markarian to eight years’ jail with a non-parole period of four-and-a-half years. He is eligible for parole in January 2007. The CCA held that the 15-year maximum penalty for an offence involving less than 250 grams should be reduced by a third to 10 years due to Mr Markarian’s lesser role in the drug operation, his plea, the finding of contrition, his addiction, and his progress in drug rehabilitation. The sentence was then reduced by 25 per cent for his plea of guilty to the other four offences. A sentence of 18 months to two years was imposed for these. Mr Markarian then appealed to the High Court. The High Court held that sentencing judges should exercise as much flexibility in sentencing as would accord with consistency of approach and with the applicable statutory regime. It agreed that sentencing judges should explain the factors in each case which influenced the final sentence. The Court however held that the CCA’s approach of starting with a maximum penalty based on the quantity of the drug alone and then making proportional deductions from it, based on other factors in the case, was not appropriate. The number and complexity of factors which Judge Hosking had had to weigh did not lend themselves to the arithmetical process used by the CCA. A majority of the Court stated that the preferable approach to sentencing is by “instinctive synthesis”, whereby the sentencing judge weighs all the competing factors and arrives at one final sentence, as opposed to an approach whereby the judge quantifies the individual factors leading to a final determination. The Court unanimously allowed the appeal and remitted the matter to the CCA for its reconsideration of the sentence in accordance with its reasons for judgment.

HIGH COURT OF AUSTRALIA 6 December 2006 CONCRETE PTY LIMITED v PARRAMATTA DESIGN & DEVELOPMENTS PTY LIMITED AND GHASSAN FARES Public Information Officer The buyer of land on which a unit development had been approved had the right to use the plans and drawings produced by the original architect, the High Court of Australia held today. Landmark Building Developments Pty Limited and Toyama Pty Limited formed a joint venture in 1998 to buy land at Nelson Bay, on the central New South Wales coast, for $560,000. They intended to build home units for sale upon the land. Architect Ghassan Fares was a principal of both Landmark and Parramatta Design & Developments. The joint venturers paid Mr Fares $27,000 to prepare the plans to obtain development consent from the Port Stephens Council for a block of eight units. Consent was granted but the joint venturers wished to enlarge their development to 14 units when a 16-unit structure was approved next door. Toyama agreed to the increase when Mr Fares offered to prepare fresh plans without payment. Consent for the 14-unit development, which would last five years, was granted in May 2000. The joint venturers fell out and trustees were appointed by the NSW Supreme Court in December 2002 to sell the land. Concrete bought it in August 2003 for $2.76 million. Parramatta asserted copyright and refused to let Concrete use the building plans. Concrete began proceedings in the Federal Court of Australia under section 202 of the Copyright Act, alleging that Parramatta and Mr Fares had made unjustifiable threats to bring proceedings for copyright infringement. It sought a declaration that the assertion of copyright was unjustified as it had an implied licence to use the plans after buying land which carried development consent. Parramatta cross-claimed, alleging infringement of copyright. Justice Richard Conti declared the threats were unjustifiable under section 202, held that Concrete had an implied licence to use the plans and drawings, ordered an enquiry into the damages sustained by Concrete due to the threats, and dismissed the cross-claim. On appeal, the Full Court of the Federal Court held that the threats were justified because Concrete had no right to use the plans, and that the trial miscarried in any event because of apprehended bias on the part of Justice Conti due to comments he made during the trial and in his judgment. Concrete appealed to the High Court. Parramatta and Mr Fares sought leave to cross-appeal on the bias issue. The Court unanimously allowed the appeal with costs, remitted to Justice Conti the question of damages sustained by Concrete, and dismissed the cross-appeal. It held that Concrete had obtained an implied licence to use the plans and drawings when it purchased the land from the joint venturers. The Court held that provision by Parramatta of the plans to the joint venture in the circumstances of the case necessarily involved the agreement to make the plans available for the mutual benefit of the joint venturers, including in the event that their relationship broke down and the joint venture assets were realised. The Court also held that no reasonable apprehension of bias was established on the part of Justice Conti and that the Full Court erred in so holding. Had there been apprehended bias, it should have been resolved first and a new trial ordered, rather than proceeding on the other issues raised in the appeal.

HIGH COURT OF AUSTRALIA 14 February 2018 PROBUILD CONSTRUCTIONS (AUST) PTY LTD v SHADE SYSTEMS PTY LTD & ANOR [2018] HCA 4 Today the High Court unanimously dismissed an appeal from the Court of Appeal of the Supreme Court of New South Wales. The High Court held that the Supreme Court of New South Wales does not have jurisdiction to make an order in the nature of certiorari to quash a determination made by an adjudicator appointed under the Building and Construction Industry Security of Payment Act 1999 (NSW) ("the Security of Payment Act") for a non-jurisdictional error of law on the face of the record. The Security of Payment Act relevantly grants, to any person who undertakes to carry out construction work under a construction contract, an entitlement to a "progress payment" and sets out a procedure for recovering such a payment. A person who is or claims to be entitled to a progress payment may make a payment claim. Disputed payment claims may be referred to an adjudicator for determination. The adjudicator must determine the amount of the progress payment (if any) to be paid. In doing so, the adjudicator is to consider, among other things, the provisions of the Security of Payment Act and the construction contract. The appellant ("Probuild") and the first respondent ("Shade Systems") were parties to a construction contract. Shade Systems served on Probuild a payment claim stating that a progress payment was due. Probuild responded that it did not propose to pay any of the amount claimed, because it claimed to be owed a considerably higher amount for liquidated damages. Shade Systems applied for adjudication of its payment claim. The adjudicator rejected Probuild's liquidated damages claim and determined an amount payable by Probuild. Probuild commenced judicial review proceedings in the Supreme Court, seeking an order in the nature of certiorari quashing the adjudicator's determination. The primary judge made the order sought on the basis that the adjudicator had made errors of law that appeared on the face of the record, which included the reasons for the determination. On appeal to the Court of Appeal, Shade Systems successfully argued that the Security of Payment Act excluded the jurisdiction of the Supreme Court to quash the determination for non-jurisdictional error of law on the face of the record. By grant of special leave, Probuild appealed to the High Court. The High Court held that the Security of Payment Act ousted the jurisdiction of the Supreme Court to make an order in the nature of certiorari quashing an adjudicator's determination for non-jurisdictional error of law on the face of the record. Although the Security of Payment Act did not contain an express statement providing that the jurisdiction was ousted, the scheme of the Act disclosed an intention that such review would not be available having regard to the fact that the Act creates an interim entitlement that is determined informally, summarily and quickly, and then summarily enforced without prejudice to parties’ common law rights. Accordingly, the appeal was dismissed.

HIGH COURT OF AUSTRALIA 24 May 2007 FARAH CONSTRUCTIONS PTY LTD, FARAH ELIAS, LESMINT PTY LTD, MARGARET ELIAS, SARAH ELIAS AND JADE ELIAS v SAY-DEE PTY LTD Public Information Officer A Sydney developer had not acted in breach of his fiduciary duties to his joint venture partners, the High Court of Australia held today. Farah Constructions, controlled by Farah “George” Elias, a real estate developer, and Say-Dee, controlled by businesswomen Sadie Elias (no relation to Mr Elias) and Dalida Dagher, entered into a joint venture in 1998 to buy and redevelop No 11 Deane Street, Burwood. Say-Dee contributed $225,000, plus stamp duty, while the rest of the $630,000 price was borrowed. No 11’s four run-down units were refurbished and rented out, prior to a planned demolition. Farah submitted a development application (DA) to Burwood Council for a combined commercial-residential project. The Council rejected it as too big for an 11-metre-wide site with no room for parking. The development would require amalgamation with adjacent blocks. Mr Elias, his wife Margaret, and teenage daughters Sarah and Jade each bought one of the four units at No 15 Deane Street and one of the four at No 20 George Street, which backed on to No 15, totalling $2.06 million. His company, Lesmint, bought No 13 Deane Street for $1.68 million. Mr Elias gave evidence that he had invited Ms Dagher and Ms Elias to join in the purchases of Nos 13 and 15 but they declined for financial reasons. He offered to buy Say-Dee’s interest in No 11. Say-Dee declined and relations deteriorated. Problems spiralled, with the project having stalled, rents not meeting mortgage repayments, all three principals in financial difficulty, and Ms Elias diagnosed with cancer. In the NSW Supreme Court in March 2003 Farah filed a summons against Say-Dee seeking an order that a trustee be appointed over No 11 and that it be sold. Say-Dee filed a cross-claim that the Eliases, Farah and Lesmint held their interests in Nos 13 and 15 on constructive trust for the partnership between Say-Dee and Farah. Justice George Palmer gave judgment for the Farah group, made orders for the sale of No 11, and dismissed the cross-claim. He accepted the evidence of Mr Elias that he had invited Ms Dagher and Ms Elias to join in the purchase of Nos 13 and 15. The Court of Appeal overturned Justice Palmer’s finding about Mr Elias’s invitation to Ms Dagher and Ms Elias. It also found that Farah’s fiduciary duties to Say-Dee were wider than Justice Palmer had considered them to be and that Farah breached those duties by failing to tell Say-Dee that the Council regarded the acquisition of Nos 13 and 15 and their amalgamation with No 11 as essential if No 11 were to redeveloped to its full potential. The Court of Appeal made a declaration that Mrs Elias and her daughters held their units in Nos 13 and 15 on constructive trust in favour of the Farah-Say-Dee partnership, and appointed receivers to obtain development consent and sell all their blocks together. Farah appealed to the High Court which unanimously allowed the appeal and ordered that Justice Palmer’s orders be restored. It accepted that Say-Dee was aware the Council had rejected the DA and that the problem might be overcome by developing No 11 with adjoining land, and that Mr Elias had invited Ms Dagher and Ms Elias to participate in acquiring Nos 13 and 15 but they had declined. Farah had a fiduciary duty to tell Say-Dee information about the Council’s view and the opportunities to buy Nos 13 and 15. Farah fulfilled its obligation of disclosure about the Council’s attitude and the Say-Dee principals had enough business experience to give informed consent to Mr Elias pursuing the purchase of Nos 13 and 15. Say-Dee’s unwillingness to participate in a larger development was not a barrier to Farah proceeding on its own behalf. The Court rejected the grounds on which Mrs Elias and her daughters could have been made constructive trustees on behalf of Say-Dee and held that they were not liable to Say-Dee in any way.

HIGH COURT OF AUSTRALIA 17 August 2017 JULIAN KNIGHT v THE STATE OF VICTORIA & ANOR [2017] HCA 29 Today the High Court unanimously held, in answer to a question posed in a special case, that s 74AA of the Corrections Act 1986 (Vic) ("the Act") is not invalid on the ground that it is contrary to Ch III of the Constitution. In 1988, the plaintiff pleaded guilty to seven counts of murder and 46 counts of attempted murder. The Supreme Court of Victoria sentenced him to imprisonment for life for each count of murder and imprisonment for 10 years for each count of attempted murder, and fixed a non-parole period of 27 years. The plaintiff's non-parole period expired on or about 8 May 2014. On 2 April 2014, the Victorian Parliament inserted into the Act a new s 74AA, headed "Conditions for making a parole order for Julian Knight". The effect of s 74AA is to prevent the Adult Parole Board ("the Board") from ordering that the plaintiff be released on parole unless satisfied, amongst other things, that he is in imminent danger of dying or is seriously incapacitated and that, as a result, he no longer has the physical ability to do harm to any person. On 11 March 2016, the plaintiff lodged an application for a parole order with the secretary of the Board. On 27 July 2016, a division of the Board consisting of a retired Judge of the County Court of Victoria and two non-judicial members decided to require certain reports, including a report from the Secretary to the Department of Justice and Regulation under s 74AA(3). Those reports have not yet been received and the Board has taken no further steps to progress the plaintiff's application. The plaintiff brought proceedings in the original jurisdiction of the High Court seeking a declaration that s 74AA is invalid on the ground that it is contrary to Ch III of the Constitution. Invoking the principle associated with Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; [1996] HCA 24, the plaintiff submitted first, that s 74AA interferes with the sentences imposed by the Supreme Court in a manner which substantially impairs the institutional integrity of the Supreme Court, and second, that s 74AA enlists judicial officers who are members of the Board in a function that is incompatible with the exercise of federal jurisdiction by the courts of which those judicial officers are members. The High Court held that s 74AA did not interfere with the sentences imposed by the Supreme Court. Whether or not the plaintiff would be released on parole at the expiration of the non-parole period was outside the scope of the exercise of judicial power constituted by imposition of the sentences. The High Court also held that, because the Board has not in fact been constituted, and does not need to be constituted, to include a current judicial officer, it was unnecessary and inappropriate to determine whether s 74AA would be invalid in circumstances in which the function conferred by s 74AA might be sought to be exercised by a division of the Board which included a judicial officer.

HIGH COURT OF AUSTRALIA 9 December 2009 Manager, Public Information TIAN ZHEN ZHENG v DEJU CAI [2009] HCA 52 The High Court today held that the payments received by a person from a church for which she undertook voluntary work should not be deducted from damages recoverable for injuries she suffered as the result of a car accident. Ms Zheng was a passenger in a car which collided with a taxi in May 2000. As a result she suffered significant injuries to her back and neck, and she experienced chronic depression. Ms Zheng sued the driver of the car, Mr Cai, who admitted a breach of his duty of care. The primary judge entered a verdict for Ms Zheng and awarded damages of $300,681. The New South Wales Court of Appeal reduced the damages to $17,447.91 taking account of, among other things, voluntary payments she had received from her church. Ms Zheng accepted that, for reasons unrelated to the appeal, damages should have been reduced to $144,886 plus interest. Her appeal to the High Court concerned the difference between the amounts $144,886 and $17,447.19. Two justices of the High Court referred Ms Zheng’s application for special leave to appeal to a bench of five justices for consideration. In a unanimous decision the Court decided to grant special leave to appeal and to Ms Zheng was born in China and arrived in Australia in 1990. Her accountancy qualifications were not recognised in Australia and she worked in Sydney as a sewing machine operator for a cushion manufacturer. Following the accident she obtained the degree of Bachelor of Theology in Singapore and returned to Australia in 2005. Thereafter Ms Zheng performed voluntary work for about 20 hours per week for her church, the Christian Assembly of Sydney, which included answering telephones, speaking to people interested in the Assembly and occasionally preaching. The disabilities arising from the accident limit her ability to do this work. Between June 2005 and up until at least August 2007 the Assembly was making fortnightly payments to Ms Zheng of amounts that averaged slightly more than $580 per week. The primary judge found that the payments were made from donations to the Assembly, to assist Ms Zheng with her rent and living expenses, and, contrary to submissions put on Mr Cai’s behalf, held that Ms Zheng was not an employee of the Assembly. On appeal to that Court, the NSW Court of Appeal had regard to a letter from the Assembly which stated that it had “provided financial support to [Ms Zheng] for her daily living and accommodation expenses to allow her to function more effectively as a volunteer worker”. The Court of Appeal allowed the appeal on the basis that the real intent of the payments was to enable the applicant to perform her volunteer work more effectively, which, in its view, rendered them analogous to payments for services. The payments were therefore taken into account to reduce the assessed damages from $144,886 to $17,447.19. In her application for special leave to appeal against the decision of the Court of Appeal Ms Zheng argued that the benevolent nature of the payments meant they should not diminish the damages payable by Mr Cai. She further argued that the determination of the appeal on an issue which had not been argued at trial and which she had not had the opportunity to answer during the trial was so prejudicial to her that the High Court should provide a remedy. The High Court unanimously determined that special leave should be granted and that the appeal should succeed. It held that Mr Cai should have been bound by the presentation of his case at trial and that the departure from that course in the Court of Appeal had prejudiced Ms Zheng. Further, it held that even if the benevolent nature of the payments had been an issue at trial, Ms Zheng should have succeeded on that issue. The High Court noted that the Court of Appeal had concluded that in making the payments to Ms Zheng, the Assembly’s intention was not simply to benefit Ms Zheng in relation to her daily living and accommodation expenses but also to enable her to function more effectively as a volunteer church worker. Previous High Court decisions had established that voluntary gifts given for the benefit of an injured person and not for the benefit of the person who caused the injury should not diminish damages payable by the wrongdoer. In this case the fact that the payments also had the collateral effect of benefiting the Assembly did not diminish the reality that they were made for the benefit of Ms Zheng and not for the benefit of Mr Cai, to reduce his liability for damages. The payments did not justify any reduction in the damages payable by Mr Cai to Ms Zheng.

HIGH COURT OF AUSTRALIA Public Information Officer 8 May, 2003 SERGEY DRANICHNIKOV v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND OTHERS; EX PARTE SERGEY DRANICHNIKOV Mr Dranichnikov sought both special leave to appeal against a decision of the Full Court of the Federal Court and relief under section 75(v) of the Constitution. He claimed the Federal Court wrongly dismissed his application for a review of the Refugee Review Tribunal’s decision upholding the Immigration Department’s refusal to give him a protection visa. The section 75(v) application, seeking constitutional writs against the Minister, the RRT and various departmental officers, raised the question of whether the RRT failed to exercise its jurisdiction to review the department’s decision. In 1997, Mr Dranichnikov, his wife Olga and daughter Maria arrived in Australia from Vladivostok in Russia where he had managed a company providing real estate and legal services. He said he tried to interest authorities to combat the increasing attacks, sometimes fatal, on business people. Mr Dranichnikov made representations to the mayor, organised public meetings to draw attention to corruption and lawlessness in the city, and formed a committee for the registration of property titles. He was stabbed in 1994 and claimed he agreed, under duress by police, to the investigation being discontinued. In Australia, Mr Dranichnikov claimed refugee status on the basis of a well- founded fear of persecution if he returned to Russia for speaking out on law and order issues. The RRT dismissed his case on the basis that any persecution Mr Dranichnikov had suffered was not due to membership of a particular social group and that his claim had no connection with the United Nations Convention Relating to the Status of Refugees. A single judge of the Federal Court, and the full Federal Court on appeal, held that no error on the part of the RRT was shown. But the High Court, by a 4-1 majority, held that the RRT misunderstood Mr Dranichnikov’s case and failed to make a preliminary determination of whether the narrower group or class to which Mr Dranichnikov claimed to belong – business people who publicly protested against organised crime and state-sanctioned corruption – constituted a social group for the purposes of the Convention. The majority held that Mr Dranichnikov, who represented himself, had made out his entitlement to relief under section 75(v), and ordered the issuing of writs of certiorari to quash the RRT’s decision, mandamus to compel it to again review the department’s decision, and prohibition to prevent the Minister implementing the RRT’s original decision.

HIGH COURT OF AUSTRALIA 8 December 2021 [2021] HCA 40 Today, the High Court unanimously dismissed appeals from a judgment of the Court of Appeal of the Supreme Court of New South Wales. The appeals concerned whether a plaintiff whose vehicle is negligently damaged can recover as damages the reasonable costs incurred in hiring a replacement vehicle of broadly equivalent value to the damaged vehicle while that vehicle is being repaired. Both respondents, Mr Rixon and Mr Cassim, owned prestige vehicles that were damaged in accidents for which the appellants, Mr Arsalan and Mr Nguyen, by their insurers, admitted liability in negligence. The vehicles were used for social and domestic purposes but not for income-earning purposes. The respondents hired replacement vehicles of similar value to their damaged vehicles while the vehicles were being repaired. In the Local Court of New South Wales, the magistrate held that Mr Rixon had not demonstrated a need for a prestige replacement vehicle and awarded damages representing the market rate of hire for a Toyota Corolla, which would have met his needs. A different magistrate found that, although a Toyota Corolla would also have met Mr Cassim's needs, he was entitled to damages representing the actual hire costs incurred because the hired replacement vehicle was of broadly equivalent value to the damaged vehicle. The Supreme Court of New South Wales dismissed Mr Rixon's appeal. The Supreme Court allowed Mr Nguyen's appeal and substituted an award of damages representing the market rate of hire for a Toyota Corolla. A majority of the Court of Appeal allowed further appeals by Mr Rixon and Mr Cassim. Mr Rixon was held to be entitled to the reasonable hire costs he had incurred, and the matter was remitted to the Local Court for assessment. In Mr Cassim's appeal, the magistrate's award was reinstated. The High Court dismissed the appeals, holding that both respondents were entitled to damages representing the costs of hiring replacement vehicles of broadly equivalent value to their damaged vehicles. Where a plaintiff's vehicle is negligently damaged and unavailable during a period of repair, loss will readily be inferred from the plaintiff's ownership and past use of the vehicle. That loss consists of (i) physical inconvenience from the inability to use the vehicle and (ii) loss of amenity or enjoyment of the use of the vehicle. Loss of amenity of use of a chattel should be recognised as a recoverable head of damage for negligent damage to a chattel, consistent with the compensatory principle. A plaintiff's loss of amenity of use includes the loss of convenience or pleasure derived from the use of their vehicle, and it may be inferred that a plaintiff who incurs significant expenditure on a prestige vehicle derives amenity from its functions. Once a plaintiff mitigates their loss by hiring a replacement vehicle of broadly equivalent value to the damaged vehicle, the onus lies upon a defendant to prove that the costs incurred in mitigation were unreasonable. The appellants did not prove that the respondents acted unreasonably in incurring any of the hire costs for the replacement vehicles.

HIGH COURT OF AUSTRALIA 30 August 2007 Public Information Officer ROADS AND TRAFFIC AUTHORITY OF NEW SOUTH WALES v PHILIP JAMES DEDERER AND GREAT LAKES SHIRE COUNCIL The Roads and Traffic Authority did not breach its duty of care to a teenager who became a partial paraplegic by diving off a bridge, the High Court of Australia held today. On 31 December 1998, Mr Dederer, then aged 14, dived from the bridge across the Wollamba River, struck a submerged sandbank and suffered a severe spinal injury. Pictorial signs prohibited diving and written signs prohibited climbing on the bridge. Mr Dederer spent family holidays in the area so he knew of the sandbar from boating and that the water varied in depth, but he had not jumped or dived from the bridge until jumping twice the day before the accident. Both times he was totally submerged in the water and his feet did not touch bottom. Mr Dederer had frequently seen people jumping and occasionally diving off the bridge. He had seen a “no diving” sign but did not think the activity was dangerous. Council officers and police had been unable to stop other people diving. Mr Dederer’s dive was the first reported accident since the bridge was built in 1959. Mr Dederer sued the RTA and the Council in the NSW Supreme Court for negligence. Justice John Dunford found for Mr Dederer against both defendants but reduced damages by 25 per cent for Mr Dederer’s contributory negligence. Mr Dederer was awarded $840,000, with RTA ordered to pay 80 per cent of the damages and the Council 20 per cent. Justice Dunford found that the RTA was negligent in failing to erect signs warning of the danger of shifting sands and variable depth, in failing to replace horizontal railings with vertical pool-style fencing, and in failing to change the flat top of the handrail to a triangular shape that would be difficult to stand on. The Court of Appeal held that the NSW Civil Liability Act meant that the Council was not liable but that the Act did not apply to the action against the RTA. The Court of Appeal, by majority, dismissed the appeal by the RTA apart from increasing the proportion of Mr Dederer’s contributory negligence from 25 per cent to 50 cent. The RTA appealed to the High Court and Mr Dederer cross-appealed against the increase in his contributory negligence. The Council was joined as a second respondent but played no active part in the appeal. The High Court, by a 3-2 majority, allowed the appeal and dismissed the cross-appeal. It held that a duty of care imposes an obligation to exercise reasonable care, not a duty to prevent potentially harmful conduct. The extent of the obligation owed by the RTA is that of a roads authority exercising reasonable care to see that the road is safe for users exercising reasonable care for their own safety. The Court held that the risk arose not from the state of the bridge but from the risk of jumping into shallow water and shifting sands, which were not under the RTA’s control. The magnitude of the risk and the probability of injury had to be balanced against the expense, difficulty and inconvenience of any alleviating action. New fencing was estimated to cost $150,000 and a triangular handrail $108,072 and would not necessarily stop people jumping from bridges. The Court held that the existing “no diving” signs were a reasonable response to the risk and the RTA did not breach its duty of care.

HIGH COURT OF AUSTRALIA Public Information Officer 6 April 2006 HUTCHISON 3G AUSTRALIA PTY LTD v CITY OF MITCHAM, CKI UTILITIES DEVELOPMENT LTD, HEI UTILITIES DEVELOPMENT LTD, CKI UTILITIES HOLDINGS LTD, HEI UTILITIES HOLDINGS LTD, CKI/HEI UTILITIES DISTRIBUTION LTD, AND THE ATTORNEY-GENERAL FOR THE STATE OF SOUTH AUSTRALIA Power poles at certain locations in Adelaide carrying mobile phone transmission facilities in the circumstances did not require council development approval, the High Court of Australia held today. Hutchison erected telecommunication facilities, called downlink sites, as part of its mobile phone network at five locations in suburban Adelaide, all within the City of Mitcham, in 2002 and 2003. The second to sixth respondents are a group of companies trading as electricity distributor ETSA Utilities. Hutchison facilities were installed on ETSA’s stobie poles (Adelaide’s concrete and steel power poles). Stobie poles at four of the five locations had to be replaced, at Hutchison’s expense, to handle the installation of its equipment. Downlink sites comprised panel antennae mounted above the stobie pole and an equipment shelter on the ground with noisy air-conditioning units to keep electrical equipment at a constant temperature. Hutchison notified the council of its intention to install downlink facilities but neither Hutchison nor ETSA sought development approval. In April 2003, the council issued enforcement notices requiring Hutchison to cease work. It contended that the replacement poles were facilities under the Commonwealth Telecommunications Act as they had been erected by ETSA for Hutchison’s purposes. More specifically, the council also submitted that the poles were towers and, because of their size and structure, were not low-impact facilities so did not fall within exemptions to the SA Development Act. In the Environment, Resources and Development Court of South Australia, Hutchison challenged the council’s notices on the ground that the downlink sites were low-impact facilities under the Telecommunications Act so did not require development approval under the Development Act. In a separate proceeding in the Supreme Court, the council sought declarations that each downlink site required approval and sought injunctions requiring Hutchison to lodge development applications for the sites and to remove its equipment from the stobie poles on which they had been erected. The parties agreed to stay the Environment Court proceedings pending the determination of the action in the Supreme Court. Justice Bruce Debelle referred a set of questions to the Full Court, which answered them favourably to the council, to the effect that either Hutchison or ETSA must obtain development approval for the downlink sites. Hutchison then appealed to the High Court. The Court unanimously allowed the appeal. It held that Hutchison did not need to seek development approval for replacing the poles because it was ETSA that undertook the development, and even if Hutchison had undertaken the development Hutchison would have been entitled to the benefit of an exemption from the operation of the Development Act, as provided for in the Telecommunications Act. Specifically, Hutchison’s facilities were not towers and were of low impact, so Hutchison was not required to obtain development approval from the council for the erection of replacement stobie poles. ETSA did not need to obtain development approval because of an exemption in the Development Act.

HIGH COURT OF AUSTRALIA 8 March 2023 LAUNDY HOTELS (QUARRY) PTY LTD v DYCO HOTELS PTY LTD AS TRUSTEE FOR THE PARRAS FAMILY TRUST & ORS [2023] HCA 6 Today, the High Court unanimously allowed an appeal from a judgment of the Court of Appeal of the Supreme Court of New South Wales. The appeal concerned the construction of a contract for the sale and purchase of the property and assets of a hotel business (the Quarrymans Hotel). The appellant was the Vendor, and the first and second respondents together were the Purchaser. Clause 50.1 provided that, from the contract date until Completion, the Vendor was required to "carry on the Business in the usual and ordinary course as regards its nature, scope and manner". During that period, in response to the COVID-19 pandemic, the Minister made a public health order directing that pubs "must not be open to members of the public" except for the sale of food or beverages to be consumed off the premises. In compliance with that public health order, the Quarrymans Hotel sold only takeaway alcohol and food until 1 June 2020 when it re-opened subject to customer number restrictions as directed by subsequent public health orders. Prior to Completion, the Purchaser informed the Vendor that it would not complete the contract as the Vendor was not ready, willing and able to complete the contract as it was in breach of cl 50.1, amongst other clauses. The Vendor maintained that it was ready, willing and able to complete and, after the Completion Date had passed, served a notice to complete upon the Purchaser. Ultimately, the Vendor served a notice of termination upon the Purchaser for non-compliance with the notice to complete. The Purchaser commenced proceedings seeking declaratory relief to the effect that the contract had been frustrated or that the Vendor was not entitled to issue the notice to complete. The primary judge held that the contract had not been frustrated and that cl 50.1 required the Vendor to carry on the business in the usual and ordinary course so far as it was possible to do so in accordance with law. The Court of Appeal, by majority, held that the public health order was a supervening event rendering the Vendor's compliance with cl 50.1 illegal, and suspending that contractual obligation. The majority concluded that the purported termination by the Vendor involved a repudiation of the contract by the Vendor. The High Court allowed the appeal. The Court held that the Vendor was "ready, willing and able to complete" and not in default of its contractual obligations when it served the notice to complete upon the Purchaser. Construing cl 50.1 in its context, the obligation on the Vendor to "carry on the Business in the usual and ordinary course as regards its nature, scope and manner" incorporated an inherent requirement to do so in accordance with law. The "Business" was defined to include a licence pursuant to the Liquor Act 2007 (NSW) which was one of the assets to be purchased along with gaming machine entitlements allocated to that licence. The licence was subject to statutory conditions, and the Vendor's warranties acknowledged that the requirements for the lawful operation of the hotel were variable. The past, current, and anticipated future lawfulness of the operation of the Business was objectively essential and a commercial necessity to the parties. There was no obligation, and could not have been an obligation, imposed on the Vendor to carry on the Business unlawfully.

HIGH COURT OF AUSTRALIA 4 August 2010 AKTAS v WESTPAC BANKING CORPORATION LIMITED & ANOR [2010] HCA 25 In December 1997, Westpac Banking Corporation Limited ("Westpac") dishonoured 30 cheques drawn by Homewise Realty Pty Ltd ("Homewise"), of which Mr Aktas was sole shareholder and sometime director. The cheques were returned to the payees or collecting banks stamped "Refer to Drawer". The dishonour was the result of Westpac's mistake and Mr Aktas and Homewise sued it for defamation. The High Court today held that the communications were not protected by the common law defence of qualified privilege. Homewise carried on a real estate agency under the name of "Century 21 Homewise Realty". It maintained three accounts with Westpac, including two trust accounts. In late 1997, default judgment was entered against Homewise in respect of a money claim. A garnishee order applicable to Homewise's accounts with Westpac was issued to Westpac. By law, however, the order could not apply to the two trust accounts. Nevertheless, on 1 December 1997, a Westpac employee acted on a mistaken understanding of the effect of the order and changed the status of all three of Homewise's accounts to "PCO" (standing for "post credits only"). The effect of this status was that customer initiated debits were not to be honoured. On the same day, a Homewise employee drew 30 cheques on one of the trust accounts which were then forwarded to Homewise clients or deposited in their bank accounts. On 2 December 1997, the Westpac employee was made aware of the error regarding Homewise's two trust accounts and removed their PCO status. However, in correspondence dated 3 December 1997, Westpac returned the cheques to the payee or the collecting bank, each endorsed with the words "Refer to Drawer". The trial judge found that the return of the cheques had occurred because the reversal of the trust accounts' PCO status had not been notified to the department responsible for correspondence. Mr Aktas and Homewise brought proceedings against Westpac in the Supreme Court of New South Wales, including a claim for damages for defamation. A jury determined that Westpac had, by the words "Refer to Drawer", published defamatory imputations in respect of Mr Aktas and Homewise. The trial judge, however, held that Westpac had established the common law defence of qualified privilege. Her Honour held that the relationship Westpac had with each of the payees justified the communication of information about its attitude to the presentation of the cheques, even though that information was based on a mistake. Absent the defence, her Honour would have awarded Mr Aktas $50,000 and Homewise $117,000 in damages. Mr Aktas and Homewise appealed to the Court of Appeal of the Supreme Court of New South Wales. That part of the appeal concerning the defamation claim was dismissed. Mr Aktas was granted special leave to appeal to the High Court on 11 December 2009. Mr Aktas's sole ground of appeal was that the Court of Appeal had erred in holding that the defamatory material was published on an occasion of qualified privilege. A majority of the Court agreed. The relevant question, in determining whether an occasion for qualified privilege arose, was whether the relationship between Westpac and the payees of the cheques was one in which the advantages to be had from free communication outweighed the importance of the accuracy of the defamatory imputation. One supposed advantage identified by the Court of Appeal was prompt advice to the payee that the cheque had not been honoured. While recognising the importance of prompt advice, the High Court considered that this end was achieved by ss 67 and 69 of the Cheques Act 1986 (Cth) (which oblige the drawee bank to pay to the holder a cheque duly presented for payment, or to dishonour the cheque "as soon as is reasonably practicable"). The absence of a public interest in protecting the communication was demonstrated by the absence of any reciprocity of interest between bank and payee. The bank has an interest in communicating because it refuses to pay. But the payee has no interest in receiving a communication of refusal to pay a cheque which is regular on its face in a case where the drawer has funds sufficient to meet its payment. For the payee, there is no need for any communication from the bank about the fate of the cheque, if it is met on presentation. Further, to hold that giving a notice of dishonour is an occasion of qualified privilege is not conducive to maintaining accuracy in the decisions banks must make about paying cheques. The Court allowed the appeal and ordered that the verdict of the trial judge be replaced by a verdict and judgment for Mr Aktas with damages in the amount of $50,000 with interest.

HIGH COURT OF AUSTRALIA 19 June 2014 RONALD WILLIAMS v COMMONWEALTH OF AUSTRALIA & ORS [2014] HCA 23 Today the High Court unanimously decided that legislation enacted by the Commonwealth Parliament which purported to provide legislative authority to make agreements for the outlay of public money, and to make payments under those agreements, is invalid in its operation with respect to a funding agreement between the Commonwealth and Scripture Union Queensland ("SUQ"). By that agreement, the Commonwealth was to pay SUQ to provide chaplaincy services at schools in Queensland. In December 2010, Ronald Williams brought a proceeding in the High Court challenging the payment of money by the Commonwealth to SUQ for SUQ to provide chaplaincy services at the state school Mr Williams' four children attended. In 2012, the Court held that the funding agreement between SUQ and the Commonwealth, and the payments made under it, were not supported by the executive power of the Commonwealth under s 61 of the Constitution. Soon after the Court made orders in that proceeding, the Parliament enacted the Financial Framework Legislation Amendment Act (No 3) 2012 (Cth) ("the FFLA Act"). The FFLA Act amended the Financial Management and Accountability Act 1997 (Cth) ("the FMA Act") and the Financial Management and Accountability Regulations 1997 (Cth) ("the FMA Regulations") to provide legislative support not only for the making of agreements and payments of the kind which were in issue in the first proceeding, but also for the making of other arrangements and grants. Mr Williams then brought a fresh proceeding in the High Court against the Commonwealth, the relevant Minister and SUQ, challenging the validity of the relevant provisions of the FMA Act and FMA Regulations inserted by the FFLA Act. He challenged the validity of those provisions both generally and in their particular operation with respect to the payment of money by the Commonwealth to SUQ under the then funding agreement. Both the agreement and the payments made under it were said to be made under the "National School Chaplaincy and Student Welfare Program". The Court held that, in their operation with respect to the challenged funding agreement and the challenged payments made under that agreement, none of the challenged provisions is a valid law of the Commonwealth. The provisions are not, in their relevant operation, supported by a head of legislative power under the Constitution. Providing at a school the services of a chaplain or welfare worker for the objective described in the FMA Regulations is not a provision of "benefits to students" within the meaning of s 51(xxiiiA) of the Constitution. The Court further held that the Commonwealth's entry into, and expenditure of money under, the funding agreement was not supported by the executive power of the Commonwealth. The making of the payments was therefore held to be unlawful.

HIGH COURT OF AUSTRALIA 17 August 2022 ARISTOCRAT TECHNOLOGIES AUSTRALIA PTY LTD v COMMISSIONER OF PATENTS [2022] HCA 29 Today, the High Court dismissed an appeal from a decision of the Full Court of the Federal Court of Australia. The appeal concerned whether the appellant's patent claim for a system and method for providing a feature game to be played on an electronic gaming machine ("EGM") was a "manner of manufacture" within the meaning of s 18(1A)(a) of the Patents Act 1990 (Cth). The appellant manufactures EGMs. It owned four innovation patents concerning various embodiments of an EGM. The specification of one patent, which was sufficiently similar to the others for the purpose of analysis, described the claimed invention as the combination of a player interface, being the physical features of an ordinary EGM, and a game controller, being the computerised components that interacted with the player interface to implement a base game and a feature game. Both the player interface and game controller contained elements that were part of the common general knowledge. The specification also described the triggering of a feature game from the base game using configurable symbols; those elements, which were part of the game controller, were not part of the common general knowledge. Following examination by the respondent, each patent was revoked on the ground that none of the claims in any of the innovation patents was a manner of manufacture. The appellant successfully appealed the revocation to the Federal Court of Australia. The primary judge found that the claimed invention was not a mere scheme and was therefore patentable subject matter. The Full Court allowed an appeal, with a majority of that Court holding that while the claimed invention was computer-implemented, it was not an advance in computer technology and therefore not patentable subject matter. The High Court unanimously held that s 18 of the Patents Act imposes a threshold requirement that there be an invention and that the only question in assessing whether a manner of manufacture exists under s 18(1) or (1A) is whether there is a manner of manufacture within s 6 of the Statute of Monopolies. The Court divided on the proper characterisation of the appellant's invention. Three Justices would have dismissed the appeal, characterising the invention, in light of the specification as a whole and the common general knowledge, as nothing other than a claim for a new system or method of gaming. The only thing differentiating it from the common general knowledge was the unpatentable idea of the feature game. Three Justices would have allowed the appeal, characterising the invention as an EGM incorporating an interdependent player interface and a game controller which included feature games and configurable symbols. That operation involved an artificial state of affairs and a useful result amounting to a manner of manufacture. Where the High Court is equally divided in opinion, s 23(2)(a) of the Judiciary Act 1903 (Cth) requires that the decision appealed from shall be affirmed. Accordingly, the High Court ordered that the appeal be dismissed with costs.

HIGH COURT OF AUSTRALIA 22 May 2008 RAFTLAND PTY LTD AS TRUSTEE OF THE RAFTLAND TRUST v COMMISSIONER OF TAXATION Public Information Officer The High Court of Australia today upheld the assessments of income tax on Raftland in its capacity as trustee of the Raftland Trust. The principal issue concerned entitlements to certain trust income. The transactions giving rise to the assessments were aimed at securing a fiscal benefit by enabling accumulated tax losses, earlier incurred by a trust estate called the E&M Unit Trust (E&M), to be set off against the income of unrelated profitable businesses controlled by the Heran brothers, Brian, Martin and Stephen. The original trustee of E&M, established in 1986, was E&M Investments whose directors were Mark and Elizabeth Thomasz (formerly Carey). The business of the trust was the acquisition and sale of property. The business failed, with the 1991 tax return disclosing losses of more than $4 million. Mr and Mrs Thomasz became bankrupt but had been discharged by the time of the transactions in 1995. Mrs Thomasz’s son, Glen Carey, took over from E&M Investments as trustee of E&M. In May 1995, taxable profits for two Heran companies were forecast to be almost $3 million. Brian Heran contacted solicitor Peter Tobin about the possible acquisition of a trust with accumulated tax losses. Mr Tobin organised for Mr Heran to acquire control of E&M for $250,000. The Heran brothers, who controlled various building development and property rental companies, acquired Raftland, which became the trustee of the Raftland Trust on or before 30 June 1995. Beneficiaries were divided into three classes: primary (the Herans); secondary (Heran relatives, and various associated entities); and tertiary (the E&M trustee). Mr Carey removed himself as trustee of E&M and appointed Raftland as trustee. The Raftland Trust tax return for 1995 asserted the distribution of net income of $2,849,467 to E&M. Raftland did not pay that amount, apart from the $250,000, but applied it for the benefit of certain related parties. In 2002, the Commissioner issues notices of amended assessment for the 1995, 1996 and 1997 tax years. Total taxable income for those years was stated to be $4,015,207 with total tax, including penalty tax and interest, assessed at $4,025,070.30. After Raftland’s objections were disallowed, it appealed unsuccessfully to the Federal Court of Australia. Justice Susan Kiefel found that the $250,000 paid to the Thomaszes was a one-off payment and nothing further was to take place between the Thomaszes and the Herans. She held that the Raftland Trust deed which purported to create an entitlement in E&M as tertiary beneficiary was a sham or façade and the Thomaszes had no entitlement to trust income. The Full Court of the Federal Court upheld Justice Kiefel’s decision, apart from $57,973 related to 1995-96 which was the subject of an application by the Commissioner for special leave to cross-appeal. On the basis of different reasoning, the Full Court agreed that the net income derived by Raftland fell to be assessed pursuant to section 99A of the Income Tax Assessment Act, which provides that in certain circumstances trust income in the hands of the trustee was to be taxed at a special rate. Raftland appealed to the High Court. The High Court unanimously dismissed the appeal. It granted the Commissioner special leave to cross- appeal and allowed the cross-appeal. The Court held that for the tax scheme to succeed E&M had to have been entitled to the income of the Raftland Trust. It upheld Justice Kiefel’s conclusion that the intention of both the Herans and the Thomaszes was that $250,000 was all the beneficiaries of E&M were ever to receive or to seek, and that the entitlement under the Raftland Trust deed was not intended to have substantive, as opposed to apparent, legal effect. The Court also upheld her finding that E&M was not entitled to the Raftland Trust income within the meaning of section 100A of the Act, while the Heran brothers were entitled. Therefore the tax was correctly assessed under section 99A.

HIGH COURT OF AUSTRALIA 16 November 2004 EQUUSCORP AND RURAL FINANCE PTY LTD (in liquidation) v GLENGALLAN INVESTMENTS PTY LTD EQUUSCORP AND RURAL FINANCE PTY LTD (in liquidation) v EDWIN THOMAS CODD EQUUSCORP AND RURAL FINANCE PTY LTD (in liquidation) v CYRIL WILLIAM EQUUSCORP AND RURAL FINANCE PTY LTD (in liquidation) v BRIAN THOMAS PRENDERGAST EQUUSCORP AND RURAL FINANCE PTY LTD (in liquidation) v BARRY THORNTON EQUUSCORP AND RURAL FINANCE PTY LTD (in liquidation) v HGT INVESTMENTS PTY LTD A written agreement for participation in a tax-effective investment scheme for farming crayfish overrode an inconsistent prior oral agreement that the investors claimed limited their liability, the High Court of Australia held today. Investors associated with GWA Pty Ltd (now GWA International Ltd) and its chairman Mr Thornton acquired units in the Red Claw crayfish project in north Queensland in June 1989 by borrowing $3.2 million. The project was managed by its promoter Tony Johnson’s company Johnson Farm Management. Terms of the partnership were recorded in a partnership deed between Eagle Star Trustees Ltd, the unit holders’ representative, and Forestell Securities (Australia) Ltd, the partnership managers. On 30 June 1989 Mr Thornton and the other respondents each executed a written loan agreement to borrow the whole purchase price from Rural Finance. (Equuscorp later became assignee of the loans.) The transactions appeared to be total payment from Rural Finance to Eagle Star to Forestell, which distributed sums to JFM and FJA, which then deposited them with Rural Finance as an interest-bearing deposit. The respondents claimed there was no loan, at least not of “real money”. The venture failed due to stock losses and expensive repairs to leaking ponds. Rural Finance and Equuscorp sued the respondents in the Queensland Supreme Court, claiming each defaulted on their repayments, but the respondents said they were not indebted as no money was lent. Justice John Helman concluded the transactions were merely book entries made to create an audit trail. Equuscorp and Rural Finance unsuccessfully appealed to the Court of Appeal. The respondents also alleged an oral agreement by which the liability of each was limited to one payment on 30 June 1989 and two more payments on 30 September and 31 December, then the income generated would extinguish the balance of the loan. They alleged they signed the written loan agreement relying on limited liability and on Rural Finance having sufficient funds to lend. The High Court held that the loan transaction was legally effective. It held that the allegation that liability was limited was at odds with the prospectus and a circular about the scheme. Neither the prospectus nor the written loan agreement suggested any limitation on borrowers’ liability and neither suggested any warranty about the project’s returns, instead warning the investment should be considered speculative. The Court held the respondents were bound by the written agreement. It unanimously allowed the appeal and ordered that matters be remitted to the Supreme Court for consideration of further issues not decided at trial.

HIGH COURT OF AUSTRALIA 21 May 2014 DO YOUNG (AKA JASON) LEE v THE QUEEN SEONG WON LEE v THE QUEEN [2014] HCA 20 Today the High Court unanimously allowed two appeals from a decision of the Court of Criminal Appeal of the Supreme Court of New South Wales, which had upheld the convictions of the appellants on various drug and firearms offences on the basis that there had not been a miscarriage of justice within the meaning of s 6(1) of the Criminal Appeal Act 1912 (NSW). The appellants (a father and son) had been the subject of an investigation by the New South Wales Crime Commission ("the Commission"). As part of that investigation and pursuant to powers given by the New South Wales Crime Commission Act 1985 (NSW) ("the NSWCC Act"), the appellants were summoned by the Commission to give evidence before it. Section 13(9) of the NSWCC Act required the Commission to make a direction prohibiting the publication of evidence given before it where publication might prejudice the fair trial of a person who may be charged with an offence. The appellant in the first matter, Jason Lee, gave evidence on two occasions. He was subsequently charged with various drug and firearms offences. The appellant in the second matter, Seong Won Lee, gave evidence on one occasion. At that time, he had been charged with firearms offences and a charge relating to a drug offence was imminent. The transcripts of the appellants' evidence given before the Commission were unlawfully published to members of the New South Wales Police Force and to officers of the Director of Public Prosecutions before the appellants' joint trial. On 16 March 2011, the appellants were convicted of various drug and firearms offences. The appellants appealed their convictions on the basis that there had been a miscarriage of justice, by reason of the prosecution's possession and possible use of the appellants' evidence given before the Commission. The Court of Criminal Appeal dismissed the appeals. By grant of special leave, the appellants appealed to the High Court. The High Court held that the purpose of s 13(9) of the NSWCC Act was to protect the fair trial of a person who may be charged with offences. That purpose supports the fundamental principle of the common law referred to in X7 v Australian Crime Commission (2013) 248 CLR 92; [2013] HCA 29, that the prosecution is to prove the guilt of an accused person. That purpose was not met in the present case, with the consequence that the appellants' trial differed in a fundamental respect from that which our criminal justice system seeks to provide and amounted to a miscarriage of justice within the meaning of s 6(1) of the Criminal Appeal Act. The High Court quashed the appellants' convictions and ordered that a new trial be had.

HIGH COURT OF AUSTRALIA 18 April 2007 Public Information Officer KAZI FAZLY ALAHI BODRUDDAZA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS The High Court of Australia today held that a section in the Migration Act imposing strict time limits on the seeking of remedies in the Court against adverse migration decisions is invalid. Mr Bodruddaza was born in 1976 in Bangladesh. He entered Australia on a postgraduate research visa. Before it expired he sought a skilled independent overseas student visa. He failed two English tests which left him five points short of the 120 required for his visa application to be considered. His application was refused and he instructed a migration agent to seek a review of the Immigration Department’s decision. The 21-day period for filing a review application with the Migration Review Tribunal expired on 6 February 2006. The application was filed the next day. On 9 May 2006, the MRT held that it did not have the jurisdiction to determine the review application as there was no provision for an extension of time. On 11 July 2006, Mr Bodruddaza instituted proceedings in the High Court, asserting that the department showed error in refusing him a visa and seeking writs of certiorari, prohibition and mandamus, to quash the department’s decision and to require determination by the Minister of the visa application. Section 75(v) of the Constitution provides that the Court has original jurisdiction for writs sought against Commonwealth officers. The application to the High Court was outside the maximum 84-day period specified in section 486A of the Act. The section provides that an application to the Court to grant a remedy in exercise of its original jurisdiction in relation to a migration decision must be made with 28 days of actual notification of the decision. The High Court may extend this by 56 days upon application made within the 84-day period and if the Court is satisfied that to do so is within the interests of the administration of justice, but otherwise the Court must not make an order allowing an application for a remedy outside the 28-day period. High Court Rule 4.02 states that any period of time fixed by the Rules may be enlarged or abridged by the Court either before or after the time has expired. Section 486A denies the Court the capacity to make an order allowing an application out of time. A special case agreed on by the parties asked whether section 486A applies to Mr Bodruddaza’s application and if so whether section 486A is invalid in respect of that application. A third question involves determination by the Court of the legal merits of the application, asking whether the department’s decision displayed jurisdictional error. The Court unanimously held that section 486A was invalid and thus does not validly deny the competence of the Court to hear the application. The section was inconsistent with the power of judicial review contained in section 75(v) of the Constitution. Section 486A, hinged on the date of actual notification rather than deemed notification, did not allow for a person becoming aware later of circumstances giving rise to a possible challenge to a decision, or allow for supervening events which may have led to a failure to act on time through no fault of the applicant. Mr Bodruddaza was one day late, apparently through failure by his migration adviser, and this could be dealt with through the Court’s discretion to grant or withhold a remedy under section 75(v). The Court held that section 486A is invalid and could not be read down or severed to preserve any valid operation. However it held that Mr Bodruddaza had failed to show jurisdictional error by the department in assessing his visa application. He required 20 points for English skills to meet the points test but received only 15. Test scores had to be achieved through one test, not through an aggregate of his two tests.

HIGH COURT OF AUSTRALIA 10 March 2016 R & ANOR v INDEPENDENT BROAD-BASED ANTI-CORRUPTION COMMISSIONER [2016] HCA 8 Today the High Court unanimously dismissed an appeal from the Court of Appeal of the Supreme Court of Victoria. The High Court held that the power of the Independent Broad-based Anti-corruption Commission ("the IBAC") to hold an examination under Pt 6 of the Independent Broad-based Anti-corruption Commission Act 2011 (Vic) ("the IBAC Act") can be exercised in relation to persons who have not been, but might subsequently be, charged and put on trial for an offence relating to the subject matter of the examination. On 20 March 2015, the IBAC commenced an investigation into the conduct of certain members of Victoria Police stationed at Ballarat police station. The investigation, named "Operation Ross", was concerned with whether the appellants, two officers of Victoria Police, assaulted a woman in a cell at the Ballarat police station on 15 January 2015 as well as with a number of other incidents alleged to have occurred at the Ballarat police station in recent years which might have involved human rights violations in respect of other women. On 1 April 2015, the IBAC issued a witness summons to each of the appellants, requiring them to give evidence in a public examination of their knowledge of matters falling within the scope of Operation Ross. The appellants each delivered written submissions to the IBAC Commissioner submitting that the examinations should be held in private. The first appellant also submitted that the first appellant could not be compelled to give evidence. The Commissioner rejected the appellants' submissions. On 16 April 2015, the appellants commenced judicial review proceedings in the Supreme Court of Victoria seeking orders preventing the IBAC from examining them. The primary judge dismissed the claim. His Honour held that because the appellants had not yet been charged with an offence, the process of criminal justice had not commenced and the principle whereby an accused person cannot be compelled to assist the prosecution to make its case ("the companion principle") had not been engaged. The primary judge also held that the IBAC Act had abrogated each appellant's privilege against self-incrimination. The Court of Appeal refused the appellants leave to appeal against the primary judge's decision. By grant of special leave, the appellants appealed to the High Court. The Court held that the companion principle was not engaged, and so could not prevent the IBAC's examination, because the appellants had not been charged with any offence and there was no prosecution pending. There was no reason to extend the principle to the circumstances of the present case and to do so would fetter the pursuit and exposure of a lack of probity within the police force contrary to the object of the IBAC Act. The Court also held that the privilege against self-incrimination was abrogated by s 144 of the IBAC Act.

HIGH COURT OF AUSTRALIA Public Information Officer 28 May, 2003 ROSE SHOREY v PT LIMITED AS TRUSTEE FOR McNAMARA AUSTRALIA PROPERTY TRUST, CIC INSURANCE LIMITED (in liquidation) AND VENTURE STORES (RETAILERS) PTY LTD (in liquidation) The High Court of Australia today allowed an appeal by Ms Shorey. Ms Shorey suffered soft tissue injuries to her back in a fall in a Blacktown, Sydney, shopping centre in April 1988, when she was 56. She had had surgery in 1986 for a pre-existing degenerative spinal condition and was pain-free, but after the fall her condition deteriorated until she progressed to using a walking stick, the two sticks, then a walking frame and then in 1993 a wheelchair. Ms Shorey was diagnosed as having a conversion disorder, a psychiatric condition said to explain her debilitating symptoms. The New South Wales District Court held the fall was a contributing factor to her condition and that she was not a malingerer, and awarded damages of $555,212.55 against PT Limited and Venture Stores. The three respondents did not challenge the District Court’s finding that negligence led to Ms Shorey’s fall, but appealed to the NSW Court of Appeal seeking a reduction in damages. The Court of Appeal allowed the appeal, although it upheld the finding that Ms Shorey was not malingering. She then appealed to the High Court. The issue in the appeal was whether Ms Shorey had established that her fall was a cause of her disability. The High Court, by a 4-1 majority, held that Ms Shorey was not required to prove the fall was the sole cause of her disorder, only that the fall was a cause. Other factors rendered her more susceptible to the consequences of the fall. A long-established legal principle is that defendants must take victims as they find them, even if there is an apparent disproportion between cause and effect. The High Court allowed the appeal and ordered that the matter be reheard by the Court of Appeal in accordance with the Court’s reasons.

HIGH COURT OF AUSTRALIA 12 June 2008 MURAT KURU v STATE OF NEW SOUTH WALES Public Information Officer Police officers who declined to leave Mr Kuru’s home after he asked them to go and thereafter engaged in a physical struggle with him had committed trespass to both his person and his property, the High Court of Australia held today. Early on 16 June 2001, six police went to a flat after receiving a report that a man and a woman were fighting. Mr Kuru and his then fiancée (now wife) had had a noisy argument but by the time police arrived the fiancée had left with Mr Kuru’s sister. When police walked in the open door, two visiting friends were in the living room and Mr Kuru was taking a shower. After he came out of the bathroom, he allowed police to look around. Mr Kuru explained that his fiancée had left, wrote down his sister’s telephone number, then asked police to leave. Despite repeated demands that police leave the flat, they declined to go. Mr Kuru jumped on to the kitchen bench, later saying this was to get their attention. He jumped off the bench, although it was disputed whether it was towards the police or away from them, but moved towards them with his arms outstretched and made physical contact with an officer. A violent struggle followed, and Mr Kuru was punched, sprayed with capsicum spray and handcuffed. He twice fell down stairs from the flat. Mr Kuru was locked in a police station cell for several hours wearing nothing but boxer shorts. Mr Kuru brought proceedings in the NSW District Court against the State of NSW, claiming damages for trespass to his flat and his person and false imprisonment. He was awarded $418,265, including aggravated and exemplary damages. The NSW Court of Appeal unanimously allowed an appeal by the State. It held that, despite Mr Kuru’s withdrawal of permission to remain in his flat, the police were not trespassers when he first made contact with one officer. The Court held that police had both statutory and common law justification for remaining as they were investigating whether a domestic violence offence was committed. Mr Kuru appealed to the High Court. The Court, by a 4-1 majority, allowed the appeal. The appeal was argued on the basis that the decisive question was whether the police were trespassing at the time of the physical encounter with Mr Kuru. The Court held that police had neither statutory nor common law justification to remain at the flat. Under section 357F of the Crimes Act, if invited by a domestic violence victim, police were entitled to enter or remain even if the occupier of the home objected. Section 357H provided that where police entered a house by invitation or with a warrant they were to stay only as long as needed to investigate whether an offence had been committed, to render aid to an injured person, to make an arrest, to prevent any further offence, and to establish whether firearms were present. The police had already inspected the flat and did not need to stay to speak to the fiancée. They were not invited to enter the flat by a victim of domestic violence. The Court held that their remaining at the flat after Mr Kuru had asked them to go was not authorised by sections 357F or 357H. Unless a victim of domestic violence asked police to stay, police had no authority to stay without permission of the occupant. If they had needed to stay they could have telephoned a magistrate for a warrant. The common law recognised that trespass on land in emergencies was justified, but in this case there was no danger to life or property. This was not a case where Mr Kuru’s refusal or withdrawal of permission to enter or remain could be overridden. Common law powers to prevent a breach of the peace did not extend to entry to investigate whether a breach of the peace had occurred or whether one was likely. By the time police went to the flat there was no ongoing breach of the peace and none was threatened. The case was remitted to the Court of Appeal for consideration of further issues about damages.

HIGH COURT OF AUSTRALIA 26 May 2010 Manager, Public Information THE QUEEN v LK THE QUEEN v RK [2010] HCA 17 On 19 May 2008, the respondents, LK and RK, were charged under s 11.5 of the Criminal Code (Cth) ("the Code") with conspiring to deal with money worth $1 million or more, being reckless as to the fact that the money was proceeds of crime. The money was part of a larger sum, in the order of $150 million, of which the Commonwealth Superannuation Scheme had been defrauded. Neither respondent was said to be a party to the fraud or to have knowledge of it. However, RK had agreed to a proposal, made by LK at the behest of a third party, that RK's Swiss bank account be used for the transfer of funds from Australia. At the conclusion of the Crown's case in the District Court of NSW, the respondents submitted that there was no case to answer and requested that the trial judge direct the jury to acquit. The trial judge held that the offence with which the respondents had been charged was bad at or unknown to law. The Crown appealed under s 107 of the Crimes (Appeal and Review) Act 2001 (NSW) to the NSW Court of Criminal Appeal. That Court dismissed the appeal, holding that, to support the charge of conspiracy under the Code, the Crown had to prove that the respondents knew the facts constituting the offence the object of the conspiracy. Special leave to appeal to the High Court was granted on 19 June 2009. Before the High Court, the Crown argued that the Court of Criminal Appeal's interpretation of the Code was incorrect. Today, that argument was rejected. The Court held that a person cannot be found guilty of conspiracy under the Code unless he or she knows — and is not simply reckless as to — the facts that make the proposed act or acts unlawful. In this case, the relevant fact was that the money was proceeds of crime. The respondents had argued that no appeal lay to the Court of Criminal Appeal because s 107 of the Crimes (Appeal and Review) Act did not come into effect until after the proceedings against the respondents had been commenced. The High Court rejected the argument on the basis that the respondents' trial commenced with their arraignment in the District Court, which was after 15 December 2006, when the Crimes (Appeal and Review) Act came into operation. The respondents had also argued that the provision of an appeal by the Crown against a directed verdict of acquittal infringed the guarantee in s 80 of the Constitution of trial by jury for offences against Commonwealth law tried on indictment. This argument was also rejected. The High Court held that the creation of such a right of appeal did not interfere with the jury's function because a jury can exercise no discretion in the face of a direction from a trial judge to return a verdict of acquittal. As the appeal against the directed verdict involved only questions of law, there was no infringement of s 80 of the Constitution. The High Court dismissed the appeals and upheld the decision of the Court of Criminal Appeal.

HIGH COURT OF AUSTRALIA 31 July 2008 COMMISSIONER OF TAXATION v FUTURIS CORPORATION LIMITED Public Information Officer The Commissioner of Taxation had not deliberately miscalculated Futuris’s taxable income by “double counting” in contravention of his statutory powers, the High Court of Australia held today. Futuris’s 1998 tax return specified a taxable income of $86,088,045 and tax payable of $30,991,696.20. In 2002 the Commissioner served a notice of amended assessment which increased its taxable income for 1997-98 by $19,950,088, making a total taxable income of $106,038,133. The increase was attributed to an increase in capital gains tax on the disposal of shares in a subsidiary company following a corporate restructure. Futuris appealed to the Federal Court of Australia against the disallowance of its objection by the Commissioner. This proceeding, pursuant to Part IVC of the Taxation Administration Act (TAA), is still pending. Part IVC provides for the making of objections to the Commissioner, for review by the Administrative Appeals Tribunal and for appeals to the Federal Court. In November 2004, the Commissioner gave Futuris a second amended assessment which increased its taxable income for 1997-98 by $82,950,090. That amount was attributed to the application of Income Tax Assessment Act (ITAA) provisions dealing with schemes to reduce income tax to the disposal of the shares. Taxable income then totalled $188,988,223 with tax payable of $68,035,760.28. Futuris claimed there had been deliberate double counting of the $19,950,088. The Commissioner disallowed an objection by Futuris, which again appealed on 1 June 2005 to the Federal Court under Part IVC of the TAA. The litigation which reached the High Court began when Futuris then issued a third proceeding in the Federal Court. This proceeding was brought under section 39B of the Judiciary Act, which provides for writs of mandamus, prohibition or injunction to be sought against Commonwealth officers. The issue raised by section 39B was not merely whether there had been an error of fact or law by the Commissioner in giving the second amended assessment, but whether the Commissioner had acted outside the powers conferred by the ITAA so as to have committed “jurisdictional error”. Justice Paul Finn dismissed Futuris’s action, rejecting its contention that the Commissioner had deliberately overstated its taxable income by $19,950,088. The Full Court of the Federal Court allowed an appeal. It held that the second amended assessment was not protected by section 175 of the ITAA, which provided for the validity of any assessment not to be affected by reason that any ITAA provisions had not been complied with. The Full Court declared that the amended assessment was invalid under the ITAA, and ordered that it be quashed, holding that the Commissioner had relied on facts he knew were untrue, which was not a bone fide exercise of the power of assessment. The Commissioner appealed to the High Court. The Court unanimously allowed the appeal and held that Justice Finn was correct to dismiss the section 39B application. It held that the Commissioner did not apply the ITAA to facts known to be untrue, there was no absence of bona fides regarding the second amended assessment, and there was no jurisdictional error vitiating that assessment. The Court rejected any conclusion that the Commissioner knowingly engaged in double counting. Australian Tax Office documents showed that the second amended assessment was issued on the footing that a compensatory adjustment could later be made, depending on the outcome of the Part IVC proceedings. The Court held that if errors in assessment occurred, they were within, not beyond, the exercise by the Commissioner of the powers of assessment given by the ITAA and would be considered in the pending Part IVC proceedings. Absent any deliberate maladministration by the Commissioner, sections 175, 175A and 177(1) of the ITAA together provided that the validity of an assessment was not affected by failure to comply with the ITAA. However, the dissatisfied taxpayer could (and Futuris did) object in the manner set out in Part IVC of the TAA. In the circumstances, the Court held that the pending Part IVC proceedings should have led the Full Court to refuse to make a declaration about the amended assessment.

HIGH COURT OF AUSTRALIA 14 March 2018 MICHAEL JAMES IRWIN v THE QUEEN [2018] HCA 8 Today, the High Court unanimously dismissed an appeal from a decision of the Court of Appeal of the Supreme Court of Queensland that the jury's verdict that the appellant was guilty of one count of unlawfully doing grievous bodily harm was not unreasonable or unsupported by the evidence. The appellant's conviction arose from a confrontation between the appellant and the complainant which resulted in the complainant's left hip breaking in three places. The appellant's account of the confrontation was that he had pushed the complainant in the chest, causing the complainant to stumble back three or four metres and fall "reasonably hard" onto the ground. That account was consistent with medical evidence that the complainant's hip injury was a high-energy fracture. The fracture required a high degree of force and was consistent with the complainant being pushed and then falling directly onto his left side on a hard surface with some speed. The complainant gave a different account of the confrontation. Parts of the complainant's account were inconsistent with the medical evidence and the evidence of an independent witness, and that account was very likely to have been rejected. Section 23(1) of the Criminal Code (Q) provides that a person is not criminally responsible for an event that the person does not intend or foresee as a possible consequence, and that an ordinary person would not reasonably foresee as a possible consequence. The appellant accepted that the trial judge had correctly directed the jury as to the effect of s 23(1). The appellant appealed his conviction to the Court of Appeal, however, on the basis that the jury could not rationally have excluded the possibility that an ordinary person in the appellant's position would not reasonably have foreseen the possibility of an injury of the kind sustained by the complainant as a possible consequence of pushing the complainant in the manner described by the appellant. The Court of Appeal dismissed the appeal, stating that an ordinary person in the appellant's position "could have foreseen" that the complainant might suffer a serious injury such as a fractured hip from a push involving "a considerable degree of force". By grant of special leave, the appellant appealed to the High Court on grounds including that the Court of Appeal had erred by applying the test of whether an ordinary person could, rather than would, have foreseen the possibility of the kind of injury suffered by the complainant. The High Court held that there is a difference between what an ordinary person would and could reasonably foresee: the former involves a degree of probability whereas the latter is a matter more akin to mere possibility. Therefore, the Court of Appeal should not have expressed the test in the terms it did. The High Court held, however, that there was no reason to doubt that the jury had adhered to the trial judge's proper directions as to the effect of s 23(1), and no cause to doubt the reasonableness of the verdict. The High Court further held that the Court of Appeal had not erred by stating that the appellant had pushed the complainant with "a considerable degree of force", or by its observation that there were "equally open" interpretations of the evidence before the jury. Accordingly, the appeal was dismissed.

HIGH COURT OF AUSTRALIA Manager, Public Information 26 May 2010 MINISTER FOR IMMIGRATION AND CITIZENSHIP v SZMDS & ANOR [2010] HCA 16 A majority of the High Court held today that the reasons of the Refugee Review Tribunal ("the Tribunal") for rejecting a Pakistani citizen's claim to fear persecution on the ground of his homosexuality were not illogical or irrational so as to give rise to a jurisdictional error. The first respondent arrived in Australia on 3 July 2007 and applied for a Protection (Class XA) visa on 16 August 2007 on the basis of his fear of persecution in Pakistan due to his homosexuality. A delegate of the Minister for Immigration and Citizenship refused his application and the Tribunal affirmed the delegate's decision. Although a citizen of Pakistan, the first respondent had largely resided in the United Arab Emirates ("the UAE") from 2004, before seeking protection in Australia. He claimed that, whilst in the UAE, he developed an attraction to members of the same sex and commenced a relationship with another male. He also claimed that he and that male then commenced a relationship with a third man. That relationship ended after the third man bashed and threatened the other two when confronted over certain issues. The Tribunal was not satisfied that the first respondent was in fact a homosexual who feared persecution for two key reasons. The first was his return to Pakistan for three weeks in May-June of 2007 and the second was his failure to seek asylum when he briefly visited the United Kingdom in 2006. The Tribunal found that these two actions were inconsistent with the first respondent's claim to fear persecution in Pakistan. The first respondent was unsuccessful in his appeal to the Federal Magistrates Court but was successful in a further appeal to the Federal Court (Moore J). The Federal Court found that the Tribunal fell into jurisdictional error by reaching a conclusion on illogical and irrational grounds. The Migration Act 1958 (Cth) ("the Act") requires the Minister, their delegate, or the Tribunal upon review of a decision, to either refuse or to grant a visa depending on whether or not they are "satisfied" that the conditions for that visa are met. Moore J held that the Act requires the Minister, their delegate, or the Tribunal, to come to that state of satisfaction on, amongst other things, logical and rational grounds. Failure to do so amounts to a jurisdictional error, reviewable by a court. His Honour found that the Tribunal's reasoning was illogical and irrational in that it assumed others in Pakistan would discover that the first respondent was a homosexual during the brief period of his visit without making findings as to how that could be and that, in light of the first respondent's explanation, there was no logical connection between his failure to apply for protection in the United Kingdom and his fear of persecution in Pakistan. An appeal by the Minister to the High Court was successful. By majority, the Court held that it was open to the Tribunal to reject the first respondent's claimed fear of persecution on the grounds that it did. Even though reasonable minds may differ as to whether the first respondent's conduct was such as to be inconsistent with his claimed fear, this alone was not enough to suggest that the reasoning of the Tribunal was so illogical or irrational as to amount to a jurisdictional error.

HIGH COURT OF AUSTRALIA 9 March 2005 AMCOR LIMITED v CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION, NEVILLE GEORGE ANDERSON AND THE MINISTER FOR EMPLOYMENT AND WORKPLACE RELATIONS MINISTER FOR EMPLOYMENT AND WORKPLACE RELATIONS v CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION, NEVILLE GEORGE ANDERSON AND AMCOR LIMITED The transfer of employees from Amcor to one of its subsidiaries in a corporate restructure did not entitle the employees to redundancy payments, the High Court of Australia held today. Until 1998, Amcor owned four paper mills, with the employees covered by a 1997 certified agreement between Amcor and the CFMEU. Amcor transferred the paper mills to a wholly owned subsidiary, Paper Australia Pty Ltd, but Amcor continued to employ the workers. In 2000 Amcor went through a demerger to concentrate on packaging, with its paper manufacturing business transferred to another subsidiary, PaperlinX Ltd, which was floated as a public company. Amcor gave notice terminating employment from 31 March 2000 in all Paper Australia businesses. Paper Australia, which was to become a wholly owned subsidiary of PaperlinX, wrote to all employees offering employment on the same terms and conditions, with all benefits carried over from Amcor, including those related to length of service and accrued leave entitlements. The offer was accepted by reporting for duty at their first shift on or after 1 April 2000 and virtually all employees did so. The CFMEU claimed the workers were entitled under the certified agreement to redundancy payments due to the jobs with Amcor being terminated, regardless of whether they were offered immediate work with another company. The Federal Court and the Full Court of the Federal Court agreed. Amcor and the Minister, who intervened in the Full Court, appealed to the High Court. Amcor argued that they were not compelled to pay out the workers unless their positions in the business were abolished, whereas the positions remained unaffected by the demerger. The High Court unanimously allowed the appeals. It held that none of the positions involved in the paper manufacturing business became redundant. Neither the sale of Amcor’s assets nor the later termination of employment by Amcor meant that the work undertaken by the employees was no longer required by the company which conducted the business in which the positions existed. Their new employer, Paper Australia, owned and operated the business in which they worked before the demerger. As no job became redundant the redundancy provision in the certified agreement was not engaged.

HIGH COURT OF AUSTRALIA Public Information Officer 9 October, 2003 HOYTS PTY LIMITED v DIANE BURNS The High Court of Australia today unanimously allowed an appeal by Hoyts from a New South Wales Court of Appeal decision that the cinema operator was liable for injuries incurred by a patron who injured her back when she did not notice her seat was in the upright position. Ms Burns, a teacher’s aide, helped supervise a group of disabled children on an outing to the Hoyts cinema complex at Bankstown in Sydney in March 1997. The cinema had automatically retracting seats. During the movie, the four-year-old boy Ms Burns was looking after became very agitated and crawled rapidly away. She left her seat to retrieve the boy who was was screaming and kicking as she sat down without noticing the seat had become upright again. Ms Burns injured her spine when it struck a metal bar under the seat as she fell. No other such incident had been recorded by the Bankstown complex, which was then 10 years old and could seat more than 2,400 people. Ms Burns sued Hoyts for negligence, claiming that if signs had been placed inside or outside the cinema she would have read them and known to check whether the seat was up. In the NSW District Court, Judge Susan Gibb held Hoyts was not negligent. The NSW Court of Appeal unanimously allowed Ms Burns’s appeal and held that signs warning that the seats retracted automatically should have been displayed in the foyer. Hoyts appealed to the High Court. The Court held that the Court of Appeal had not given sufficient regard to the manner in which Ms Burns came to give evidence about warning signs, in effect as an afterthought. It was far from clear that such warnings would have been heeded and the Court of Appeal had not considered what Ms Burns herself would have done while her attention was distracted by a distressed child.

HIGH COURT OF AUSTRALIA TJUNGARRAYI & ORS v STATE OF WESTERN AUSTRALIA & ORS; KN (DECEASED) AND OTHERS (TJIWARL & TJIWARL #2) v STATE OF WESTERN AUSTRALIA & ORS [2019] HCA 12 17 April 2019 Today the High Court unanimously allowed two appeals from decisions of the Full Court of the Federal Court of Australia. The issue in the appeals was whether petroleum exploration permits granted under the Petroleum and Geothermal Energy Resources Act 1967 (WA) and mineral exploration licences granted under the Mining Act 1978 (WA) fell within the meaning of the word "lease" in s 47B(1)(b)(i) of the Native Title Act 1993 (Cth) ("the NTA"). Each of the two appeals before the High Court arose out of a claim for a determination of native title by a claim group. In each claim there were parcels of unallocated Crown land occupied by claim group members. Parts of each claim area intersected with parts of the areas covered by petroleum exploration permits or mineral exploration licences ("the exploration tenements"). In each claim the traditional laws and customs acknowledged and observed by the native title claim group in relation to the claim area conferred rights to possession, occupation, use and enjoyment of the claim area to the exclusion of all others. The right to exclusive possession had been extinguished by acts of partial extinguishment that occurred before the enactment of the NTA, but non-exclusive rights to access, use and remain on the claim area remained recognisable as native title rights. Generally speaking, when native title rights and interests are extinguished, the extinguishment is permanent. The rights and interests do not revive even if the act that caused the extinguishment ceases to have effect. However, s 47B of the NTA provides that any historic extinguishment of native title rights and interests is to be "disregarded" for the purposes of a claim for a determination of native title rights and interests over vacant Crown land. Section 47B(1)(b)(i) provides that the provision does not apply if the relevant area of land is "covered by a ... lease". In each claim the claim group argued that the right to exclusive possession could be recognised as a native title right if the historic extinguishment of that right could be disregarded under s 47B. The State of Western Australia argued that s 47B did not apply to the extent that the relevant areas were covered by the exploration tenements because each such tenement was a "lease" within the exclusion in s 47B(1)(b)(i). In the Federal Court of Australia, the primary judge in each matter held that the relevant exploration tenements were not "lease[s]" within the meaning of s 47B(1)(b)(i). On appeal, the Full Court of the Federal Court in each matter disagreed, holding that the relevant exploration tenements were each a "lease" within the meaning of the provision. The Full Court relied principally on s 242(2), which relevantly provides that "[i]n the case only of references to a mining lease, the expression lease also includes a licence ... or an authority". By grant of special leave, both claim groups appealed to the High Court. The High Court, by majority, held that the extended definition of "lease" in s 242(2) only applies where there is a textual reference to a "mining lease". As s 47B(1)(b)(i) contains no textual reference to a "mining lease", s 242(2) does not apply to that provision. Accordingly, and because the exploration tenements could be leases for the purposes of the NTA only if s 242(2) operated to produce that result, the majority held that the exploration tenements were not "lease[s]" within the meaning of s 47B(1)(b)(i).

HIGH COURT OF AUSTRALIA 21 October 2005 CSR LIMITED AND MIDALCO PTY LTD v JARRADD EDDY AS ADMINISTRATOR AD LITEM REPRESENTING THE ESTATE OF THE LATE JOHN LEONARD THOMPSON A person who has suffered personal injury cannot recover special damages on account of a loss of capacity to care for a disabled family member, the High Court of Australia held today. Mr Thompson claimed that he had developed malignant mesothelioma as a result of exposure to asbestos dust and fibre while working in a factory owned by CSR and Midalco in Adelaide between 1960 and 1963. CSR ran the factory while Midalco supplied asbestos from the Wittenoom mine. The companies admitted liability. Mr Thompson was diagnosed in 2002 and died in November 2003, aged 61. He sued the two companies in the New South Wales Dust Diseases Tribunal, which in April 2003 awarded him damages of $465,899.49, including $165,480 for Mr Thompson’s loss of capacity to care for his disabled wife, Beverley May Thompson. Mrs Thompson suffered from osteoarthritis and was unable to undertake heavy domestic duties. Mr Thompson performed these tasks until he became too debilitated. The $165,480 was a head of damages known as Sullivan v Gordon damages and was the subject of the appeal by CSR and Midalco. The NSW Court of Appeal rejected CSR and Midalco’s application for leave to re-argue Sullivan v Gordon, a 1999 NSW decision, and upheld this aspect of the damages. The companies appealed to the High Court. The Court unanimously allowed the appeal and held that Sullivan v Gordon should be overruled. The Court held that Sullivan v Gordon losses should be covered by general damages rather than as a head of special damages.

HIGH COURT OF AUSTRALIA 17 August 2017 PLAINTIFF S195/2016 v MINISTER FOR IMMIGRATION AND BORDER PROTECTION (CTH) & ORS [2017] HCA 31 Today the High Court unanimously held that certain past and potential future actions of the Commonwealth, its officers, and the Minister for Immigration and Border Protection ("the Minister") were not invalid or precluded under the Constitution or under the Migration Act 1958 (Cth) ("the Act") by reason of the decision of the Supreme Court of Papua New Guinea in Namah v Pato (2016) SC1497 ("the Namah decision"). On 9 October 2012, the Minister designated Papua New Guinea ("PNG") a "regional processing country" under the Act ("the Ministerial Designation"). The plaintiff is an Iranian national who arrived in Australia at Christmas Island on 24 July 2013. As an "unauthorised maritime arrival" ("UMA"), he was taken to PNG on 26 August 2013 pursuant to a direction made by the Minister ("the Ministerial Direction"). The plaintiff has since resided at the Manus Regional Processing Centre ("the Manus RPC"), which has at all relevant times been operated by Broadspectrum (Australia) Pty Ltd ("Broadspectrum") in accordance with an agreement between Broadspectrum and the Commonwealth ("the Broadspectrum contract"). Following an unsuccessful application by the plaintiff to be recognised as a refugee under PNG law, the relevant PNG Minister ordered the plaintiff's removal from PNG and the plaintiff remains in custody pending removal. On 26 April 2016, the Supreme Court of PNG delivered the Namah decision, finding that treatment of UMAs at the Manus RPC contravened provisions of the PNG Constitution and was unsupported by PNG law. In the High Court, the parties stated questions of law in the form of a special case, asking whether certain actions of the Commonwealth, its officers, and the Minister were invalid or precluded in light of the Namah decision. Those actions included: the making of the Ministerial Designation; the entry by the Commonwealth into a "Regional Resettlement Arrangement" and associated agreements with PNG, including a Memorandum of Understanding ("MOU") regarding the transfer, processing and resettlement of UMAs; the entry by the Commonwealth into the Broadspectrum contract; the making of the Ministerial Direction; the taking of the plaintiff to PNG; and future actions the Commonwealth and its officers might take to assist PNG in removing the plaintiff from PNG and keeping him in custody pending removal. The parties also stated a more general question as to whether the Commonwealth's authority under s 198AHA of the Act to undertake conduct in respect of regional processing arrangements in PNG depended upon whether those arrangements were lawful under the law of PNG. The plaintiff submitted that the Constitution denies to the Commonwealth any legislative or executive power to authorise or take part in activity in another country which is unlawful according to the domestic law of that country. The plaintiff also submitted that the effect of the Namah decision was to deny to the MOU and the Regional Resettlement Arrangement the character of an "arrangement" within the meaning of s 198AHA of the Act, with the result that the Commonwealth's actions were not supported by s 198AHA. The High Court held that neither the legislative nor the executive power of the Commonwealth is constitutionally limited by any need to conform to the domestic law of another country and that the past and future actions challenged by the plaintiff were not invalid or precluded. The Court also held that, even if the MOU and the Regional Resettlement Arrangement were beyond the power of PNG under its Constitution, each remained an "arrangement" within the scope of s 198AHA because the authority conferred by that section does not depend upon the lawfulness of government action under the law of a foreign country. The Court answered the questions stated in the special case adversely to the plaintiff.

HIGH COURT OF AUSTRALIA 10 April 2013 SZOQQ v MINISTER FOR IMMIGRATION AND CITIZENSHIP & ANOR [2013] HCA 12 Today the High Court unanimously allowed an appeal from a decision of the Full Court of the Federal Court of Australia, which held that the appellant was not a person to whom Australia owed "protection obligations" for the purposes of the Migration Act 1958 (Cth) ("the Migration Act"). The appellant is an Indonesian national from Irian Jaya who was active in the Free Papua Movement. In 1973 he was detained and tortured by Indonesian officials and, in 1975, he was seriously injured after being shot by Indonesian soldiers. The appellant was granted temporary entry into Australia in June 1985 and was granted a protection visa in January 1996. While travelling to Indonesia to visit his father in September 1996, the appellant was detained and assaulted by members of the Indonesian military. The appellant escaped and returned to Australia. Back in Australia, the appellant pleaded guilty to a charge of manslaughter for which he was sentenced in September 2001 to seven years' imprisonment with a non-parole period of two years and six months. The Minister cancelled the appellant's protection visa in March 2003, in accordance with the "character test" provisions of the Migration Act. In December 2008, the Minister determined that it was in the public interest to allow the appellant to make a further application for a protection visa. A delegate of the Minister considered the application and determined that, although the appellant had a well-founded fear of political persecution should he be returned to Indonesia, Australia owed him no "protection obligations" under the Migration Act because he constituted a danger to the community, having been convicted of a "particularly serious crime". The delegate's determination was affirmed by the Administrative Appeals Tribunal ("AAT"), the Federal Court and the Full Court of the Federal Court. The determination made by the Minister's delegate and the decisions of the AAT and the courts below proceeded on the footing that because the appellant had been convicted of a "particularly serious crime", Australia owed him no "protection obligations" for the purposes of s 36 of the Migration Act. That was contrary to the 2005 decision of the High Court in NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 222 CLR 161; [2005] HCA 6. The Court unanimously held that the proceedings in the courts below miscarried. It ordered the AAT to review, according to law, the original decision of the Minister's delegate to refuse the appellant a protection visa.

HIGH COURT OF AUSTRALIA 1 October 2004 The High Court of Australia today upheld the validity of New South Wales legislation dealing with the determination of minimum sentences of prisoners whom trial judges had recommended never be released. Mr Baker, now 56, and Kevin Gary Crump were convicted in the New South Wales Supreme Court in 1974 of the shooting murder of Ian Lamb, whom they robbed of $20, near Narrabri in NSW in November 1973 and conspiracy to murder of Virginia Morse a few days later. Mr Baker had worked on the farm on which Mrs Morse, her husband and three children lived near Collarenebri in north-west NSW. When Brian Morse was absent, Mr Baker and Mr Crump stole his car and two firearms, abducted Mrs Morse and took her over the border into Queensland. During a period of 20 hours, they tortured and raped Mrs Morse then shot her through the eyes. In sentencing them, Justice Robert Taylor told them: “I believe you should spend the rest of your lives in jail and there you should die. If ever there was a case where life imprisonment means what it says … this is it.” Under section 13A of the Sentencing Act (since repealed by the Crimes (Sentencing Procedure) Act), prisoners serving life sentences could apply to the Supreme Court to determine a minimum period before being eligible for parole. But where a judge recommended against release, a prisoner had to have served at least 20 years and the Court had to be satisfied that “special reasons” justified a determination of a minimum term. The Court was required to give substantial weight to recommendations and comments by the trial judge. When Mr Baker applied for a determination, Justice Greg James was not satisfied that special reasons existed. Mr Baker had argued that his good conduct in jail, his strong prospects of rehabilitation and the fact that Mr Crump had his sentence determined in 1997 (before section 13A was amended to include the “special reasons” requirement) justified a determination. Mr Baker appealed unsuccessfully to the Court of Criminal Appeal, then appealed to the High Court. The Court held that the NSW Parliament was entitled to treat prisoners such as Mr Baker as exceptional cases. The Parliament had the power to create a special regime for the most serious offenders and to select non-release recommendations as the criterion for distinguishing them from other offenders. The requirement of special reasons did not lack meaning or content. Mr Baker failed to show that establishing special reasons was a futile charade and that no application could succeed. He failed to show that determining an application under section 13A of the Sentencing Act was not an exercise of judicial power. The High Court, by a 6-1 majority, dismissed the appeal.

HIGH COURT OF AUSTRALIA 12 September 2018 MIGHTY RIVER INTERNATIONAL LIMITED v BRYAN HUGHES & DANIEL BREDENKAMP AS DEED ADMINISTRATORS OF MESA MINERALS LIMITED & ANOR; MIGHTY RIVER INTERNATIONAL LIMITED v MINERAL RESOURCES LIMITED & ORS [2018] HCA 38 Today the High Court published reasons for orders it made on 19 June 2018 dismissing two appeals brought by Mighty River International Ltd ("Mighty River") from decisions of the Court of Appeal of the Supreme Court of Western Australia. Mesa Minerals Ltd ("Mesa Minerals") was placed into voluntary administration and administrators were appointed. At the second meeting of creditors, a majority of creditors voted in favour of entry into a deed of company arrangement ("the Deed"). The Deed was executed in the terms proposed by the administrators. Amongst other things, the Deed provided for a moratorium on creditors' claims; required the administrators to conduct further investigations and report to creditors concerning possible variations to the Deed within six months; and provided that no property of Mesa Minerals be made available for distribution to creditors. Mighty River, a creditor of Mesa Minerals, brought proceedings in the Supreme Court of Western Australia claiming that the Deed was void. Its claim was heard together with a claim brought by another creditor, Mineral Resources Ltd, that the Deed was not void. At first instance, Master Sanderson dismissed Mighty River's claim and made a declaration that the Deed was not void. The Master held that the Deed was consistent with the object of Pt 5.3A of the Corporations Act 2001 (Cth); that s 444A(4)(b) did not require some property to be made available to pay creditors' claims; and that the use of a "holding" deed of company arrangement was one "gateway" to extend the period for convening a second creditors' meeting beyond the timeframe set by s 439A(5), the other being a court order under s 439A(6). Mighty River appealed to the Court of Appeal, which dismissed the appeals. By grants of special leave, Mighty River appealed to the High Court. In essence, it made two submissions. First, the Deed was not a valid deed of company arrangement, principally because it was an agreed extension of time that had not been ordered by a court under s 439A(6) and was contrary to the object of Pt 5.3A. Secondly, the Deed should have been declared void under s 445G(2) for contravening ss 438A(b) and 439A(4), or s 444A(4)(b), or both. A majority of the High Court held that the Deed was a valid deed of company arrangement. It had been formally executed in compliance with Pt 5.3A. The Deed created and conferred genuine rights and duties. It did not involve an impermissible sidestepping of s 439A(6) as it only had the incidental effect of extending the time for the administrators' investigations. The provision of a moratorium while Mesa Minerals' position was further assessed was consistent with the object of Pt 5.3A. A majority of the High Court also held that the Deed was not required to be declared void under s 445G(2). Section 444A(4)(b) did not require the Deed to specify some property to be available to pay creditors' claims, and the administrators had formed and expressed the opinions required by s 438A(b) and, at the relevant time, s 439A(4).

HIGH COURT OF AUSTRALIA 15 August 2018 HFM043 v THE REPUBLIC OF NAURU [2018] HCA 37 Today the High Court unanimously allowed an appeal from the Supreme Court of Nauru. The High Court held that the Supreme Court of Nauru erred in holding that s 31(5) of the Refugees Convention Act 2012 (Nr) made it futile to remit the appellant's application for merits review to the Refugee Status Review Tribunal ("the Tribunal"). The appellant applied to the Secretary of the Department of Justice and Border Control of Nauru ("the Secretary") to be recognised as a refugee in January 2014. The Secretary determined that the appellant was not a refugee and that she was not owed complementary protection. In March 2015, the Tribunal affirmed the Secretary's determination. The appellant appealed to the Supreme Court of Nauru. Prior to the determination of her appeal, the appellant married Mr B, who had been recognised as a refugee. The appellant's solicitors sent an email to the Republic of Nauru's Refugee Status Determination Lawyer informing the Government of Nauru of her "dependency on her husband" and attaching submissions and statements in support of her "Application for Derivative Status". A document entitled "Refugee Determination Record" issued to the appellant in August 2016 stated that the Secretary had determined that she was a refugee. There was no dispute that this document refers to the appellant's derivative status as a dependant of her husband. On 9 June 2017, the Supreme Court of Nauru held that the Tribunal had made an error of law by failing to adjourn the hearing so that the appellant could obtain a full medical report. The Supreme Court of Nauru made an order dismissing the appellant's appeal on the basis that it would be futile to remit the matter to the Tribunal "due to the operation of s 31(5)". Section 31(5) provides that an application for merits review by the Tribunal "that has not been determined at the time the person is given a Refugee Determination Record, is taken to have been validly determined at that time". The appellant appealed as of right to the High Court. The High Court held that s 31(5) did not apply to the appellant. Section 31(5) applies only to persons who have been given a "Refugee Determination Record" as defined by s 3 of the Refugees Convention Act, which confines the meaning of that term to a document issued under s 6(2A). The document issued to the appellant in August 2016 was not a document issued under s 6(2A), as that provision came into effect on 23 December 2016 and was not given retrospective effect. The High Court set aside the orders of the Supreme Court of Nauru and remitted the matter to the Tribunal for determination according to law.

HIGH COURT OF AUSTRALIA 20 April 2007 Public Information Officer COMMONWEALTH OF AUSTRALIA v JOHN GRIFFITH CORNWELL The loss caused by incorrect superannuation advice given to Mr Cornwell in 1965 did not arise until his retirement in 1994 so his negligence action was not defeated by the ACT statute of limitations, the High Court of Australia held today. In 1962 Mr Cornwell began working for the Commonwealth as the spray painter in the transport section of the former Department of the Interior at the Kingston bus depot in the ACT. He was classified as a temporary employee but employed full-time. In 1987, Mr Cornwell’s job was reclassified as a permanent public service position and he became a member of the Commonwealth Superannuation Fund, established in 1976. In 1994, his employment was transferred from the Commonwealth to the ACT but he remained within the Commonwealth super scheme and transferred into a new fund established in 1990. Mr Cornwell retired at the end of 1994 and was paid super benefits based on his combined membership of the 1976 fund and the 1990 fund. He contended that, although classified as temporary, he had been eligible to join the original 1922 fund but that he had been dissuaded by misleading advice from applying. This was given by the transport section manager, Nelson Simpson, at a meeting in July 1965 and he had reasonably relied on that advice. Mr Simpson allegedly said Mr Cornwell was not entitled to join the super fund because he was an industrial and temporary employee. Mr Cornwell pleaded that the Commonwealth was vicariously liable for Mr Simpson’s advice and in reliance on that advice he had lost the opportunity to join the fund in 1965, when he would have become eligible after three years’ service as a temporary employee. If he had joined the fund in 1965, he would have been entitled on retirement after 29 years’ contributions to a pension of 44.1 per cent of his final salary. By joining in 1987, Mr Cornwell had seven years’ contributions which entitled him to a pension of only 12.6 per cent of his final salary. Under section 11 of the ACT Limitation Act, action must be brought within six years of the cause of action accruing. Mr Cornwell instituted action in the ACT Supreme Court in 1999 against the Commonwealth for various causes of action. Chief Justice Terence Higgins held that the cause of action for negligent misstatement was not statute-barred as it had not accrued until Mr Cornwell’s retirement date of 31 December 1994. He held that the Commonwealth was vicariously liable for Mr Simpson’s statement, which caused Mr Cornwell to suffer economic loss. Chief Justice Higgins entered judgment for Mr Cornwell for damages to be assessed. An appeal to the ACT Court of Appeal by the Commonwealth was dismissed. The Commonwealth appealed to the High Court. The Court, by a 6-1 majority, dismissed the appeal. It rejected the Commonwealth’s submission that Mr Cornwell first suffered loss when the 1976 scheme came into effect, and instead held that his loss was not necessarily and irretrievably sustained until his retirement in 1994. What was prospective before his retirement matured into actual loss only at the end of his service and he had met the statutory criteria for him to be entitled to a retirement benefit.

HIGH COURT OF AUSTRALIA 1 September 2005 APLA LIMITED, MAURICE BLACKBURN CASHMAN AND ROBERT LESLIE WHYBURN v LEGAL SERVICES COMMISSIONER OF NEW SOUTH WALES AND STATE OF NEW SOUTH WALES The High Court of Australia today upheld the constitutional validity of a NSW ban on lawyers advertising their services in relation to personal injury claims. The plaintiffs challenged the validity of Part 14 of the Legal Profession Regulation made under the Legal Profession Act. Part 14 makes it both an offence and professional misconduct for a barrister or solicitor to publish an advertisement that includes any reference to personal injury or to any legal service that relates to an entitlement to recover money for personal injury. The regulation, which took effect in May 2003, was one of several measures said by the NSW Government to be designed to reduce the volume of personal injury litigation and the growing cost of public liability insurance premiums. The plaintiffs wish to run advertisements in newspapers, the Yellow Pages and trade union journals and on the internet and, in Maurice Blackburn Cashman’s case, to send letters to legally unrepresented people affected by faulty heart pacemakers to invite them to seek legal advice regarding a class action against the manufacturers. The plaintiffs contended that the Part 14 regulations are invalid because they infringe the constitutionally guaranteed freedom of communication on government and political matters; infringe the requirements of Chapter III of the Constitution and of the rule of law; infringe section 92 of the Constitution guaranteeing freedom of interstate trade, commerce and intercourse; exceed NSW’s legislative and regulatory powers by their operation beyond NSW; and are inconsistent with various Commonwealth laws. By a 5-2 majority, the Court rejected each of these contentions and upheld the validity of the regulations.

HIGH COURT OF AUSTRALIA 11 May 2016 MILITARY REHABILITATION AND COMPENSATION COMMISSION v [2016] HCA 19 Today the High Court unanimously allowed an appeal from the Full Court of the Federal Court of Australia. The High Court held that the respondent, Mr May, did not suffer an "injury" as defined in s 4(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) ("the Act"). He was therefore not entitled to compensation under s 14 of the Act. Mr May enlisted in the Royal Australian Air Force ("the RAAF"). At the time he enlisted, he was healthy and fit. In the course of his employment with the RAAF, Mr May was required to undergo a series of vaccinations. He said that he suffered a series of adverse reactions to these vaccinations. Mr May subsequently applied under s 14 of the Act for compensation in respect of "low immunity, fatigue, illnesses, dizziness – immune system/whole body", which, he maintained, he sustained as a result of the vaccinations he received while he was employed with the RAAF. A delegate of the Military Rehabilitation and Compensation Commission ("the MRCC") denied Mr May's claim. The MRCC later reconsidered but affirmed the determination. Mr May then applied to the Administrative Appeals Tribunal ("the Tribunal") for a review of that second decision. The Tribunal accepted that Mr May was (and became shortly after joining the RAAF) "significantly disabled" by his condition, which it "loosely described" as "vertigo". However, the Tribunal concluded that Mr May had failed to establish his case: he had not demonstrated that he had suffered a physical injury amounting to a "sudden or identifiable physiological change" in the normal functioning of the body or its organs attributable to the vaccinations received while serving in the RAAF. Therefore, Mr May had not suffered an "injury (other than a disease)" for the purposes of par (b) of the definition of "injury" in s 4(1) of the Act. The Tribunal also held that he had not suffered a "disease" within par (a) of the definition of "injury" in s 4(1) of the Act. The Federal Court of Australia dismissed an appeal by Mr May, but the Full Court of the Federal Court allowed an appeal. By grant of special leave, the MRCC appealed to the High Court. In the High Court, Mr May did not challenge the Tribunal's conclusion that he did not have a "disease". Rather, Mr May contended that he suffered an "injury (other than a disease)" within par (b) of the definition of "injury" in s 4(1) of the Act. The Court held that Mr May did not suffer an "injury (other than a disease)" because the evidence did not establish the nature and incidents of any physiological or psychiatric change.

HIGH COURT OF AUSTRALIA 9 February 2011 BRITISH AMERICAN TOBACCO AUSTRALIA SERVICES LIMITED v LAURIE & ORS [2011] HCA 2 Today the High Court prohibited a judge from hearing proceedings on the basis of a reasonable apprehension of bias, in circumstances where in earlier, unrelated, proceedings, that judge had made findings adverse to one party on an issue that was also likely to arise in the later proceedings. Mr Donald Laurie commenced negligence proceedings against British American Tobacco Australia Services Limited ("BATAS"). After his death from lung cancer in May 2006, the claim was continued by his widow, Mrs Claudia Laurie, who also brought negligence proceedings on her own behalf as his dependant. The claim alleged that Mr Laurie had smoked BATAS tobacco products for a number of years and that throughout this period BATAS knew, or ought to have known, that smoking tobacco products could cause lung cancer. A significant issue in the proceedings was whether BATAS had adopted and implemented a document management policy for the purpose of destroying documents adverse to its interests. The claim was listed before Judge Curtis in the New South Wales Dust Diseases Tribunal. In earlier, unrelated, proceedings involving BATAS ("the Mowbray proceedings"), Judge Curtis found that BATAS drafted or adopted a document management policy for the purpose of a fraud. The finding was an interlocutory finding made for the purpose of determining whether the evidence of Mr Gulson, a former in-house counsel and company secretary of BATAS, was admissible in those proceedings. Judge Curtis noted in his reasons that the application was only interlocutory and that whether the document management policy was implemented for the purpose of destroying prejudicial documents remained a live issue for trial. However, the Mowbray proceedings did not proceed to trial. It was likely that Mr Gulson would also be called in Mrs Laurie's proceedings to prove the allegations concerning the document management policy. BATAS made an application to Judge Curtis asking that he disqualify himself from hearing Mrs Laurie's claim on the ground that his findings in the Mowbray proceedings gave rise to a reasonable apprehension of bias. Its application relied on a principle requiring that a judge not sit to hear a case if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question that the judge is required to decide. Judge Curtis refused the application. BATAS sought leave to appeal to the New South Wales Court of Appeal, and also commenced proceedings in that Court seeking an order prohibiting Judge Curtis from hearing or determining Mrs Laurie's claim. The Court of Appeal dismissed both summonses. The High Court by majority allowed the appeal, and made an order prohibiting Judge Curtis from further hearing or determining Mrs Laurie's claim. The impression created by reading the judgment from the Mowbray proceedings was that the clear views there stated might influence Judge Curtis's determination of the same issue in Mrs Laurie's claim. Although Judge Curtis acknowledged in the Mowbray proceedings that different evidence could be led at trial, the High Court considered that his findings were otherwise expressed to be without qualification or doubt, and indicated extreme scepticism about BATAS's denials and strong doubt about the possibility of different materials leading to a different outcome. The Court held that, in the circumstances, a reasonable observer might apprehend that Judge Curtis would not bring an impartial mind to the question in Mrs Laurie's proceedings, even if different materials were presented. Pursuant to an undertaking given to the Court, BATAS was ordered to pay Mrs Laurie's costs.

HIGH COURT OF AUSTRALIA 6 November 2019 DAMIEN CHARLES VELLA v COMMISSIONER OF POLICE (NSW) & ANOR [2019] HCA 38 Today the High Court answered questions in a special case, holding by majority that s 5(1) of the Crimes (Serious Crime Prevention Orders) Act 2016 (NSW) ("the SCPO Act") was validly enacted as it is not inconsistent with, or prohibited by, Ch III of the Constitution. Section 5(1) of the SCPO Act, read with s 6, empowers the District Court or Supreme Court of New South Wales to make an order, in civil proceedings, restraining the liberty of a person who has been convicted of a serious criminal offence or who has been involved in serious crime related activity, if the court is satisfied that there are reasonable grounds to believe that the making of the preventive order would protect the public by preventing, restricting or disrupting involvement by the person in serious crime related activities. On 5 October 2018, the Commissioner of Police commenced proceedings in the Supreme Court against the plaintiffs seeking orders under the SCPO Act to restrain and prohibit the plaintiffs, for two years, from various activities, including associating with persons associated with any Outlaw Motorcycle Gang, attending the premises associated with any Outlaw Motorcycle Gang; travelling in a vehicle between 9 pm and 6 am except in the case of genuine medical emergency; and possessing more than one mobile phone. The plaintiffs challenged the validity of s 5(1) of the SCPO Act on the basis that it was incompatible with the institutional integrity of the District Court and Supreme Court, relying upon the principles developed from the decision in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 ("the Kable principle"). A majority of the High Court held that there are six required steps before a court can exercise the power to grant a prevention order under ss 5 and 6 of the SCPO Act. The steps are: (i) the natural person must be at least 18 years old; (ii) the person must have been convicted of, or there be proof of involvement in, serious criminal offending; (iii) the court must assess whether there is a real likelihood that the person against whom the order is sought will be involved in serious crime related activity; (iv) the court must consider whether the facts establish reasonable grounds to believe that the potential order would prevent. restrict or disrupt serious crime related activities; (v) the order must be appropriate for the purpose of protecting the public by preventing, restricting or disrupting further serious criminal related activities; and (vi) the court must consider whether any appropriate order should be made. The High Court has previously held that other preventive order regimes, which involve a court making assessment of the likelihood of future possibilities and the appropriateness of orders to prevent the risk eventuating, do not infringe the Kable principle, including preventive orders concerning terrorism, sexual offenders and organised crime. The majority explained that when making a prevention order, the Court has substantial judicial discretion and is not acting at the behest of the executive. There is nothing antithetical to the judicial process, and nothing that could impair the institutional integrity of a State Supreme Court, in open-textured legislation, such as the SCPO Act, that establishes broad principles that are to be developed and applied by the courts. In fact, there are good reasons why such powers, if they are to exist, should be exercised by the judiciary. Therefore, s 5(1) of the SCPO Act is not invalid.

HIGH COURT OF AUSTRALIA 15 June 2005 ROBERT JOHN STRONG v THE QUEEN The New South Wales Court of Criminal Appeal had not fallen into error in upholding a finding that Mr Strong was an habitual criminal, the High Court of Australia held today. Mr Strong, 46, of Armidale, was charged with intimidation, based on writing sexually suggestive letters from prison to a woman he barely knew, and with stalking, based on pursuing the woman after his release. He moved in opposite the woman’s house and shouted abuse and sexual suggestions to her, causing her fear and anxiety. Mr Strong, from a deprived background and with a history of drug abuse, had spent almost his entire adult life in custody. He had been diagnosed with borderline retardation, mental and personality disorders, and mental illness. Mr Strong pleaded guilty to the offences. In 2001 in the Armidale District Court, Judge David Freeman sentenced him to four years’ imprisonment for the intimidation and five years for stalking. The sentences were partly cumulative and partly concurrent, so totalled eight years with a non- parole period of six years, and took into account two other summary offences. The Crown later applied for Mr Strong, who had several convictions for assaults against women, to be pronounced an habitual criminal under the Habitual Criminals Act. Judge Freeman made the pronouncement and sentenced him a maximum 14 years’ jail, to be served concurrently with the other sentences. No non-parole period is available under the Act. The Court of Criminal Appeal (CCA) allowed an appeal by Mr Strong against the sentences for the substantive offences and re-sentenced him to a total of seven years’ jail with a five-year non-parole period. The CCA dismissed an appeal against the pronouncement that he was an habitual criminal but allowed an appeal against the 14-year sentence, reducing it to eight years. Mr Strong appealed to the High Court on the ground that the CCA, having upheld the appeal against sentence for the substantive offences, was obliged to address first the question of whether a pronouncement should be made at all under the Habitual Criminals Act rather than just redetermining the sentence. He argued that, having quashed the sentences imposed by Judge Freeman for the substantive offences, the CCA was obliged to consider afresh both aspects of the decision under the Act, that is, the pronouncement and the sentence. The point was not raised in the CCA. The High Court, by a 3-2 majority, dismissed the appeal. It held that the CCA had taken into account fresh evidence in three new psychiatric reports about Mr Strong’s mental condition and had clearly considered whether using the Act to protect the public was justified. The majority held that if the point now raised in the High Court had been raised in the CCA it would not have affected the outcome.

HIGH COURT OF AUSTRALIA 17 October 2018 ETA067 v THE REPUBLIC OF NAURU [2018] HCA 46 Today the High Court unanimously dismissed an appeal from the Supreme Court of Nauru. The Court held that the Supreme Court was correct to find that the Refugee Status Review Tribunal ("the Tribunal") had not failed to "act according to the principles of natural justice", as required by s 22(b) of the Refugees Convention Act 2012 (Nr) ("the Refugees Act"). The appellant is a citizen of Bangladesh. Until he left Bangladesh, the appellant had always lived in the same suburb. In 2013, the appellant arrived in Australia as an unauthorised maritime arrival and was subsequently transferred to the Republic of Nauru. In 2014, the appellant applied to the Secretary of the Department of Justice and Border Control ("the Secretary") under s 5 of the Refugees Act to be recognised as a refugee on the basis that he feared harm by reason of his affiliation with the Bangladesh Nationalist Party ("BNP") and his actual or imputed opposition to the Awami League political group. The Secretary refused that application. The appellant applied to the Tribunal for review of the Secretary's decision. The Tribunal found that the appellant had not suffered harm amounting to persecution in the past by reason of an imputed political opinion and was also not satisfied that his fear of persecution, by reason of his political opinion, was well-founded. The Tribunal further considered that even if it accepted that some harm might befall the appellant on return to Bangladesh, that harm would be "very localised". The Supreme Court affirmed the decision of the Tribunal. The Supreme Court rejected the appellant's contention that the Tribunal had breached the requirement in s 22(b) of the Refugees Act to act according to the principles of natural justice, in determining whether he had a well-founded fear of persecution, by failing to assess relevant evidence provided by the appellant in relation to assaults by supporters of the Awami League against persons who had refused to join, or attend meetings with, the Awami League ("the Awami League Assault Evidence"). Having rejected that contention, the Supreme Court considered it unnecessary to address the appellant's second contention that, in determining that the appellant could relocate elsewhere, the Tribunal had not given the appellant an opportunity to comment on whether he was ever a formal member of the BNP. The appellant appealed as of right to the High Court, raising substantially the same grounds as were before the Supreme Court. The High Court held that there was no error on the part of the Tribunal in relation to the Awami League Assault Evidence and the Supreme Court was correct to reject that complaint. The absence of an express reference to that evidence did not justify an inference that it was not considered, and the Awami League Assault Evidence was not material to the assessment of the well-foundedness of the appellant's fear. Having found that there was no error in the Tribunal's conclusion that the appellant did not have a well-founded fear of persecution, the Court concluded that the issues relevant to relocation need not be considered.

HIGH COURT OF AUSTRALIA 8 October 2014 TAJJOUR v STATE OF NEW SOUTH WALES HAWTHORNE v STATE OF NEW SOUTH WALES FORSTER v STATE OF NEW SOUTH WALES [2014] HCA 35 Today the High Court by majority upheld the validity of s 93X of the Crimes Act 1900 (NSW) which makes it an offence habitually to consort with convicted offenders. Section 93X provides that any person who habitually consorts with convicted offenders, after having been given an official warning in relation to each of those offenders, is guilty of an offence, punishable by imprisonment, fine, or both. In Australian law, to "habitually consort" is understood to mean to seek or accept association or to keep company with persons of a particular class. Section 93W further provides that, in the relevant provisions of the Act, "consort" means consort in person or by any other means, including by electronic or other form of communication. Section 93Y provides that certain forms of consorting are to be disregarded if the person accused of consorting satisfies the court that the consorting was reasonable in the circumstances. Three plaintiffs separately charged with an offence against s 93X brought proceedings in the Supreme Court of New South Wales seeking a declaration that s 93X is invalid. Those proceedings were removed into the High Court. Each plaintiff alleged that s 93X is invalid because it impermissibly burdens the freedom of communication concerning government and political matters implied in the Commonwealth Constitution. Two of the plaintiffs further alleged that s 93X is invalid because it infringes a freedom of association which they said should be found to be implied in the Constitution, and because the provision is inconsistent with Australia's obligations under the International Covenant on Civil and Political Rights ("the ICCPR"). By majority the High Court upheld the validity of s 93X. The Court accepted that the provision effectively burdens the implied freedom of communication about government and political matters. But the majority of the Court held that s 93X is not invalid because it is reasonably appropriate and adapted, or proportionate, to serve the legitimate end of the prevention of crime in a manner compatible with the maintenance of the constitutionally prescribed system of representative government. The High Court unanimously concluded that the provisions of the ICCPR, where not incorporated in Commonwealth legislation, impose no constraint upon the power of a State Parliament to enact contrary legislation. Each member of the High Court who considered it necessary to answer the question about a free-standing freedom of association concluded that no such freedom is to be implied in the Constitution.

HIGH COURT OF AUSTRALIA 16 December 2009 DION ROBERT TAIAPA v THE QUEEN [2009] HCA 53 Manager, Public Information The defence of compulsion under the Queensland Criminal Code provides that an accused person is not criminally responsible for conduct that would otherwise involve criminal offending if he or she reasonably believes that there is no other way to escape the carrying out of a threat of serious harm or detriment. If an accused raises the defence of compulsion he or she must be able to point to some evidence capable of amounting to reasonable grounds for the belief, the High Court held today. Dion Taiapa was arrested in July 2006 when the police located 364 grams of methylamphetamine and over $28,000 in cash during a search of the vehicle in which he was travelling. The drug was estimated to be valued between $459,000 and $1.15 million, depending upon how it was sold. At his trial Mr Taiapa gave evidence that he owed a debt of $60,000 to two men, Tony and Salvatore, who had supplied him with drugs in the past. They had come to his home, threatened him and his pregnant de facto wife with a gun and demanded repayment. Mr Taiapa's mother agreed to lend him $29,000, however his offer of this amount and repayment of the balance by instalments was rejected by the two men. In addition to taking the $29,000 they instructed him to travel from Cairns to Sydney to collect two parcels, which Mr Taiapa understood would contain prohibited drugs. They again threatened to harm him, his wife and his mother if he did anything stupid, and they specifically instructed him to not report the matter to the police. At his trial Mr Taiapa relied on the defence of compulsion. He gave evidence that he believed he had no option other than to comply with Tony and Salvatore's demands. He said that he had not reported the threats to the police because he had insufficient information to enable the police to identify Tony and Salvatore and he did not believe that police protection was "100 per cent safe". He described Tony and Salvatore as being "not your everyday drug dealers". He said that they were unlikely to fall into a trap. The trial judge withdrew the issue of compulsion from the jury on the basis that Tony and Salvatore were not in a position to execute their threats when Mr Taiapa collected and transported the prohibited drugs. Mr Taiapa was convicted on charges of unlawful trafficking and possession of a dangerous drug. He appealed to the Court of Appeal of the Supreme Court of Queensland, which found that the trial judge had erred in determining that the defence required that the person making the threat be in a position to carry it out when the offence was committed. However, the Court of Appeal said that Mr Taiapa had ample opportunity to alert the police to his predicament and it determined that there was no evidentiary basis for finding that his belief (that he could not otherwise escape the carrying out of the threat) was based on reasonable grounds. For this reason the Court of Appeal held that the trial judge had been correct to withdraw from the jury the issue of whether Mr Taiapa was acting under compulsion when he committed the offences. Mr Taiapa applied for special leave to appeal to the High Court and three judges of the Court referred his application to a bench of five judges. The High Court unanimously determined to grant special leave to appeal but to dismiss his appeal. The Court found that there was no reason to doubt the conclusion reached by the Court of Appeal. An unparticularlised concern that police protection may not be a guarantee of safety could not, without more, supply reasonable grounds for a belief that Mr Taiapa had no option other than to break the law in order to escape the execution of the threats made by Tony and Salvatore.

HIGH COURT OF AUSTRALIA 1 September 2021 DIRECTOR OF PUBLIC PROSECUTIONS REFERENCE NO 1 OF 2019 [2021] HCA 26 Today the High Court dismissed an appeal from a judgment of the Court of Appeal of the Supreme Court of Victoria on a reference by the Director of Public Prosecutions (Vic) ("the DPP") concerning the correct interpretation of recklessness in s 17 of the Crimes Act 1958 (Vic). Section 17 of the Crimes Act provides that a person who, without lawful excuse, recklessly causes serious injury to another person is guilty of an indictable offence. In 1995, in R v Campbell [1997] 2 VR 585, the Court of Appeal held that in order for a person to be convicted of recklessly causing serious injury under s 17, the prosecution must establish that the person foresaw that serious injury probably would result from the act or omission which in fact caused the serious injury. In 2017, in Aubrey v The Queen (2017) 260 CLR 305, the High Court cast doubt on the correctness of Campbell. The Court in Aubrey held that for the similar offence of maliciously inflicting grievous bodily harm under s 35(1)(b) of the Crimes Act 1900 (NSW), recklessness meant foresight of the possibility of harm. This appeal concerned the present correctness of Campbell. In February 2017, an accused was charged under s 17 of the Crimes Act. During the trial, the trial judge declined to direct the jury in relation to recklessness in accordance with Aubrey and, instead, directed the jury consistently with Campbell. The accused was acquitted by the jury. The DPP referred the correctness of Campbell as a point of law to the Court of Appeal for its opinion. The Court of Appeal unanimously decided that unless and until it is altered by legislation, the meaning of "recklessly" in s 17 of the Crimes Act is that stated in Campbell. A majority of the High Court found that the point of law was answered correctly by the Court of Appeal. When Parliament enacted s 17 of the Crimes Act the intention must have been to leave the development of the meaning of recklessness to the courts. The Court of Appeal took up that task in Campbell, adopting a foresight of probability test for recklessness which has since been followed in Victoria. Two legislative amendments have been made to the Crimes Act since Campbell was decided which are relevant to s 17. The first amendment, in 1997, increased the maximum penalty for the s 17 offence to 15 years' imprisonment. The second amendment, in 2013, revised the statutory definition of "serious injury" and inserted an aggravated form of the s 17 offence into the Crimes Act. Both amendments followed expert reviews and extensive consultation with key stakeholders in the criminal justice system. There was no suggestion in those reviews or consultations that the meaning given to recklessness in Campbell had caused any difficulty in directions to juries. By contrast, there could be real unfairness in departing from a long-standing decision of a State court which has been acted upon in such a way as to affect rights. Campbell should be followed unless and until it is altered by legislation.

HIGH COURT OF AUSTRALIA 1 April 2004 WOOLCOCK STREET INVESTMENTS PTY LTD v CDG PTY LTD (formerly Cardno & Davies Australia Pty Ltd) AND JOHN CAMERON JOHNSON A company which bought a Townsville warehouse and office complex could not sue the consulting engineers who had originally designed the complex’s foundations when the building started to show structural defects, the High Court of Australia held today. In 1987 the trustee company for a property trust engaged Cardno and Davies to provide engineering services for the building project. Mr Johnson, a civil engineer with Cardno and Davies, was project manager. In 1992 Woolcock Street Investments bought the complex after having a building inspection carried out. The sale contract did not include any warranty that the building was free from defect, nor did the trustee company assign to Woolcock Street any rights it may have had in respect of such defects. In 1994 substantial structural distress appeared, due to settlement of the foundations designed by Cardno and Davies or the material below the foundations or both. Cardno and Davies and Mr Johnson denied they owed Woolcock Street a duty of care in designing the foundations and denied breach of any such duty. They said they advised the original owner to allow them to obtain soil tests but the owner told them to proceed without them and to use standard structural footing sizes. In the Queensland Supreme Court the parties consented to an order stating a case for the opinion of the Court of Appeal. The Court of Appeal held that Woolcock Street’s statement of claim disclosed no cause of action in negligence and concluded that although the 1995 High Court decision, Bryan v Maloney, established that the builder of a house may owe a duty of care to later purchasers, those who built or designed commercial buildings did not. (The decision in Bryan v Maloney has now been superseded in most states and territories by statutory schemes for protection of successive owners of dwellings.) Woolcock Street appealed to the High Court. The Court held that in cases involving only economic loss cases, vulnerability – in the sense of a plaintiff’s inability to protect itself from the consequences of a defendant’s lack of reasonable care – was an important consideration. Woolcock Street could have taken steps to ensure that the sale contract contained warranties or an assignment of any rights the original owner may have had in respect of claims for defects. Furthermore, it was not alleged that the engineers breached any obligation to the original owner. The owner had asserted control over the project, including any investigations the engineers might have undertaken. Unlike Bryan v Maloney, there was neither reliance by the owner nor the assumption of responsibility by the engineers. The High Court, by a 6-1 majority, dismissed the appeal.

HIGH COURT OF AUSTRALIA 1 March 2017 BONDELMONTE v BONDELMONTE & ANOR [2017] HCA 8 Today the High Court published its reasons for dismissing an appeal with costs on 13 December 2016. The appeal concerned interim parenting orders made for the return of two children to Australia from New York and for their living arrangements upon their return. The High Court unanimously held that the primary judge, Watts J, did not err in exercising his discretion to make such orders. The appellant and first respondent, respectively the father and mother of two boys and a girl, separated in 2010. Parenting orders were made on 25 June 2014 providing that the parents were to have equal shared parental responsibility for the children and, relevantly, that a parent could take the children on an overseas holiday subject to certain conditions being met. In 2015, further orders were made requiring the children to engage in a Child Responsive Program and the parents to be interviewed by a family consultant. On 14 January 2016, the two boys were flown to New York for a holiday with the father. On 29 January 2016, the father informed the mother that he had decided to live indefinitely in the United States and that the boys would remain with him. As a result, the process established by the 2015 orders was not completed. The mother filed an application under the Family Law Act 1975 (Cth) to secure the boys' return. In deciding whether to make parenting orders, s 60CA requires the court to have regard to "the best interests of the child as the paramount consideration". In determining what is in the child's best interests, s 60CC(2)(a) provides that a primary consideration is "the benefit to the child of having a meaningful relationship with both of the child's parents". Section 60CC(3) provides for "[a]dditional considerations" including, in par (a), "any views expressed by the child and any factors ... that the court thinks are relevant to the weight it should give to the child's views". Watts J ordered the return of the boys to Australia. His Honour considered that determining the "best interests" of the children involved consideration of the children's relationships with their parents and each other, which were matters best dealt with in Australia via the mechanism established by the 2015 orders. Although accepting evidence that the boys wished to remain living with the father in New York, Watts J considered the weight of those views to be "weakened by the circumstances which have been contrived by the father". Watts J also ordered that, if the father did not return to Australia and the boys did not wish to live with the mother, they could live either in accommodation with supervision paid for by the father or separately with the mothers of respective friends of the boys' ("the alternative living arrangements"). The father appealed to the Full Court of the Family Court. The appeal was dismissed (Ryan and Aldridge JJ, Le Poer Trench J dissenting). By grant of special leave, the father appealed to the High Court. The High Court rejected the father's contention that Watts J erred in discounting the boys' expressed preferences to remain in New York because his Honour formed an adverse view of the father's actions. The extent to which the boys' views had been influenced by the father was relevant to the weight to be given to those views. The High Court also rejected the argument that Watts J was required to ascertain the boys' views as to the alternative living arrangements. Section 60CC(3)(a) only requires that the views which have been "expressed" by a child be considered; ascertaining the boys' views was not statutorily mandated. Further, as s 64C permits parenting orders to be made in favour of a parent of a child "or some other person", the orders for the alternative living arrangements could be made in favour of the mothers of the boys' respective friends.

HIGH COURT OF AUSTRALIA Public Information Officer 27 February 2008 WALKER CORPORATION PTY LIMITED v SYDNEY HARBOUR FORESHORE AUTHORITY (two matters) Industrial land resumed for a public purpose was to be valued according to the compensation legislation, and this did not in the circumstances of this case involve valuing the land as unaffected by earlier local government proposals, the High Court of Australia held today. In 2002, NSW Premier Bob Carr announced that the State Government would begin negotiations with Caltex Petroleum to buy the 2.5-hectare headland, Ballast Point on the Birchgrove Peninsula in Sydney, to turn it from a fuel terminal to a harbourside park. McRoss Developments Pty Ltd (which became Walker Corporation Pty Ltd) had an option to purchase the site. Two months after Mr Carr’s announcement Walker exercised that option and contracts were exchanged. While the contract was still on foot, the Sydney Harbour Foreshore Authority compulsorily acquired the land. Caltex received as compensation $14,375,000, calculated by deducting from the $16,500,000 price $2,125,000 for remediation of the land, which Caltex would have had to perform under its contract with Walker. The Caltex compensation is not in dispute. The Valuer-General determined that Walker should be offered $10.1 million in compensation. Walker lodged an objection with the Land and Environment Court, contending that the market value was $81 million. The Land Acquisition (Just Terms Compensation) Act provides in section 55 that the factors to be considered in determining the amount of compensation include the market value of the land on the date of acquisition. Justice Angus Talbot ordered Walker should receive compensation of $43,555,138.50. This was calculated by deducting the cost of completing the contract of sale from an assumed market value of $60 million had the site been earlier zoned “residential”. In 1989 and 1994, Caltex sought to have the land rezoned from “waterfront industrial” to “residential” to permit construction of apartments. Leichhardt Council resisted those proposals and initiated a scheme for a harbourside park on the site. It did not exercise its own powers of acquisition and failed to obtain State and Commonwealth funding. Justice Talbot found that the market value had been constrained by the Council thwarting any change in zoning that would permit residential development. He held that maintenance of the industrial zoning had reduced the value of the land at the time of its resumption in 2002. On appeal by the Foreshore Authority to the NSW Court of Appeal, the matter was remitted to the Land and Environment Court. Justice Talbot again fixed compensation at $43,555,138.50. After a second appeal by the Foreshore Authority, the Court of Appeal again remitted the matter for assessment of the market value. It held that Justice Talbot was in error in his approach. Walker appealed to the High Court against the Court of Appeal’s two decisions. The High Court unanimously dismissed the appeals. Section 56 of the Compensation Act relevantly defines market value as the amount that would have been paid if the land had been sold by a willing but not anxious seller to a willing but not anxious buyer, disregarding any increase or decrease in the value of the land caused by the proposal to carry out the public purpose for which the land was acquired. The Court held that this reflected a policy to require a disregard only of that increase or decrease (as in this case) in value for which the resuming authority – the Foreshore Authority – is responsible. Leichhardt Council’s earlier conduct was not a part of the Foreshore Authority’s proposal to make the land public space. The case returns to the Land and Environment Court on the second remitter ordered by the Court of Appeal.

HIGH COURT OF AUSTRALIA 8 March 2023 MITCHELL v THE KING; RIGNEY v THE KING; CARVER v THE KING; TENHOOPEN v THE KING [2023] HCA 5 Today, the High Court allowed four related appeals from a judgment of the Court of Appeal of the Supreme Court of South Australia and ordered that each appellant's conviction for murder be quashed and a new trial take place. The dispositive question in the appeals was whether liability for murder under s 11 of the Criminal Law Consolidation Act 1935 (SA) ("the Act") could be established by combining the common law doctrine of extended joint criminal enterprise ("EJCE") with constructive murder as provided for by s 12A of the Act. Section 12A extends liability for murder to a person who commits or agrees to an intentional act of violence causing death while acting in the course or furtherance of a major indictable offence punishable by imprisonment for ten years or more. EJCE applies where a party to a joint criminal enterprise foresees, but does not agree to, the possible commission of an incidental crime in the course of carrying out an agreement to commit an offence and continues to participate in the enterprise. The appellants were each convicted of murder following a trial in the Supreme Court of South Australia in which they were alleged to have made and executed an agreement to break and enter a residence for the purpose of stealing cannabis. The prosecution alleged that in the course of committing the indictable offence of criminal trespass, one or more of the participants violently assaulted the deceased causing his death. It was not the prosecution case that the murder of the deceased was within the scope of the appellants' joint criminal enterprise. Rather, the prosecution alleged that the doctrine of EJCE operated together with s 12A of the Act to make each of the appellants guilty of murder under s 11 of the Act because each had foreseen that, in the course of carrying out their agreement, one of them might have perpetrated an intentional act of violence. The trial judge directed the jury that the prosecution could establish a pathway to murder based on a combination of s 12A and EJCE by proving that the appellants contemplated the possibility of any intentional act of violence, including a strike to the back of the leg. The trial judge further directed that the prosecution need not prove that the appellants contemplated that one of them might commit the act of violence with intention to kill or cause really serious bodily harm. The Court of Appeal dismissed the appellants' appeals against conviction. The High Court held that EJCE and s 12A of the Act could not be relied upon in combination to create a new pathway to murder under s 11. Section 12A requires that a person commit or agree to an intentional act of violence, which cannot be proved by establishing derivative liability of a secondary participant under EJCE principles where the secondary participant foresaw the possibility of an intentional act of violence by another participant but did not agree to the act. To allow murder to be established by that pathway would dispense with the requirement of s 12A that the accused commit or be attributed an act causing the death of another or agree in the commission of the intentional act of violence, broadening the reach of s 12A beyond that supported by its text, context and purpose.

HIGH COURT OF AUSTRALIA 2 October 2012 COMMISSIONER OF TAXATION v QANTAS AIRWAYS LIMITED [2012] HCA 41 Today the High Court held, by majority, that Qantas Airways Limited ("Qantas") was liable to pay goods and services tax ("GST") when it received fares on unclaimed flights. Qantas and its subsidiary Jetstar Airways Pty Limited ("Jetstar") provide domestic airline travel services. These airline travel services have variable fare rules and conditions of carriage. Not all passengers take the flight they book. Whether the fare the passenger has paid is refundable is determined by the applicable fare rules and conditions of carriage. Even if a refund can be claimed, not all passengers who have not taken the booked flight claim the refund. The Commissioner of Taxation ("Commissioner") assessed a GST liability on the fares received for flights not taken. The Administrative Appeals Tribunal affirmed the assessment. On appeal, the Full Court of the Federal Court held that as actual travel was the sole purpose of the transaction, there was no taxable supply if the travel does not occur. This meant a GST liability was not incurred. By special leave, the Commissioner appealed to the High Court of Australia. The High Court held, by majority, that Qantas made a taxable supply which attracted GST when it received fares whether or not the passenger took the flight that was booked. Flights were sold and bookings taken on the basis that Qantas would use its best endeavours to carry the passenger and baggage, having regard to the circumstances of the business operations of the airline. Consequently, even if the passenger did not actually travel, there was a taxable supply incurring GST liability and Qantas was liable to remit the GST received on fares for unclaimed flights to the Commissioner.

HIGH COURT OF AUSTRALIA 15 June 2022 HILL v ZUDA PTY LTD AS TRUSTEE FOR THE HOLLY SUPERANNUATION FUND & ORS [2022] HCA 21 Today, the High Court unanimously dismissed an appeal from a decision of the Court of Appeal of the Supreme Court of Western Australia concerning the operation of reg 6.17A of the Superannuation Industry (Supervision) Regulations 1994 (Cth). That regulation relevantly prescribed standards for how a member of a regulated superannuation fund is to give notice requiring the trustee of the fund to pay the member's benefits to a nominated person on or after the member's death. The primary issue in the appeal was whether reg 6.17A applied to a self managed superannuation fund ("SMSF"). Zuda Pty Ltd ("Zuda") was the trustee of an SMSF known as the Holly Superannuation Fund ("the Fund"). Mr Sodhy and Ms Murray were each a member of the Fund and a director of Zuda. The relevant trust deed for the Fund was amended in 2011 to insert a clause described as a "binding death benefit nomination", according to which, if either member of the Fund died, Zuda was required to distribute the whole of the deceased member's balance in the Fund to the surviving member. Mr Sodhy died on 22 November 2016. Ms Hill, the only child of Mr Sodhy, commenced a proceeding in the Supreme Court of Western Australia, arguing that the binding death benefit nomination clause was of no force and effect on the basis that it did not comply with the standards prescribed by reg 6.17A. The Supreme Court summarily dismissed the proceeding on the basis that reg 6.17A did not apply to the Fund as an SMSF. The Court of Appeal concluded that there was no error in that holding and so dismissed an appeal from the order for summary dismissal. In reaching that conclusion, the Court of Appeal adopted a construction of reg 6.17A expressed by the Full Court of the Supreme Court of South Australia, on the basis that it was bound to follow the "seriously considered dicta" of an intermediate appellate court unless convinced that the other court's reasoning was "plainly wrong". The High Court held that reg 6.17A, properly construed, did not apply to an SMSF. That construction was consistent with the extrinsic materials and the purposes of reg 6.17A. The Court of Appeal was therefore correct in its conclusion, although it ought to have reached that conclusion by construing reg 6.17A for itself. Intermediate appellate courts and trial judges are not bound to follow obiter dicta of other intermediate appellate courts, although they would ordinarily be expected to give great weight to them.

HIGH COURT OF AUSTRALIA 3 February 2005 MARTIN GRAEME COATES v THE QUEEN The High Court of Australia today ordered a new trial for Mr Coates in relation to admissions allegedly made to police while a video camera was switched off, but dismissed Mr Nicholls’s appeal against exclusion of evidence of out-of-court statements alleged to show bias by a witness. Mr Coates, 41, Mr Nicholls, 33, and Mr Coates’s girlfriend and Mr Nicholls’s housemate Amanda Kayelene Hoy were convicted in the Western Australian Supreme Court of the 1998 murder of Perth prostitute Clare Garabedian, who was to give evidence in an assault case against Mr Coates and Ms Hoy. Adam John Davis claimed he was offered $2,000 to give Ms Garabedian a “hot shot” (a heroin overdose) while posing as her client at a motel in the suburb of Rivervale. She shot up twice and while she was asleep Mr Davis rang Ms Hoy to say he needed more heroin which she left for him near the motel. Mr Nicholls and Mr Coates each rang to ask whether Mr Davis had killed Ms Garabedian. He told them he had not done so. Mr Davis said the pair arrived and Mr Nicholls held a pillow over her face, Mr Davis and Mr Coates each injected her with heroin, Mr Coates stood on her neck, Mr Davis cleaned away fingerprints (although his were later found), Mr Nicholls collected incriminating items, and Mr Coates wiped down Ms Garabedian’s body with a wet towel. Mr Davis pleaded guilty to murder and was sentenced to a minimum term of 15 years on an undertaking to testify against the others. Mr Coates and Mr Nicholls denied his version but the Crown also relied on admissions allegedly made by Mr Coates during a break in the videotaped interview with police, evidence that his brother-in-law provided a false alibi, evidence of motive, forensic evidence and phone records. Police officers gave evidence that during the 45-minute break in filming Mr Coates asked about his options and said he could not cope with jail. He allegedly said Mr Davis and Mr Nicholls had committed the murder while he was at home and said he wanted to do a deal to testify against the other two in exchange for the lesser charge of conspiracy to murder. When the video camera was back on, the officers did not ask Mr Coates to repeat his statements, which he later denied making. No notes were made until the next day and those notes have disappeared. The Supreme Court and Court of Criminal Appeal both held that the circumstances of the unrecorded admissions fell within an exception to the provision that admissions were inadmissible unless recorded on videotape. But the High Court, by a 4-3 majority, held that the circumstances did not constitute a reasonable excuse for the lack of recording and that the exception did not apply. The Court ordered that his conviction be quashed and a new trial be held. The Supreme Court excluded as hearsay evidence from Joseph Paul Ross that Mr Davis had told him that he had lied about Mr Coates and Mr Nicholls’s presence in the motel room and other aspects of their involvement. It did so on the basis of the rule that an answer given by a witness – in this case Mr Davis – to a question relating only to credibility or some other collateral matter is final and cannot be rebutted. The High Court held that the evidence could have been admitted to establish his possible bias or corruption. But because no detail of the conversation had been put in cross-examination so that Mr Davis had an opportunity to deal with the claims this ground of appeal failed. This was Mr Nicholls’s sole ground and the Court unanimously dismissed his appeal.

HIGH COURT OF AUSTRALIA Public Information Officer 6 August, 2003 RODNEY NATHAN KING v THE QUEEN Mr King was convicted in the Western Australian District Court in December 1999 of aggravated burglary involving breach of a restraining order and deprivation of liberty, after holding his wife, Sandra King, captive for several hours. He was sentenced to seven years' jail. The prosecution case alleged that at the time of the offences in November 1998, the couple were separated. Mrs King had obtained a restraining order. Despite the order, she met her husband several times so he could see their children, then aged eight, five and three. After time at a women's refuge, Mrs King and the children moved to a house in Forrestfield, Perth, without telling her husband. Mr King discovered where she was living a week later and gained entry by saying he was a neighbour. When Mrs King opened the door, he knocked her to the ground then pulled her to her feet and slapped her. She ran from the house screaming but returned to the children. When she made a dash to the living room to call police he dragged her back to the kitchen, leading to the deprivation of liberty charge. Mr King took his family to two service stations for milk and cigarettes and to his workplace to collect his pay. Mrs King was eventually able to call police when he went outside to his son who had fallen off his bicycle. Mr King told police Mrs King had called him to ask him to fix her car so was at her house with her consent, but in a tape-recorded call from prison after his arrest he said another person had given him Mrs King's address. Mr King, who was mostly unrepresented at his trial, gave no evidence. Judge Peter Nisbet told the jury the prosecution bore the onus of proof and must satisfy the jury beyond reasonable doubt that Mr King's claim that he had Mrs King's consent was false. Judge Nisbet did not mention a consent defence under section 62 of WA's Restraining Orders Act under which Mr King may have borne the onus of proof on the balance of probabilities, had he been charged with that offence. On appeal, this was argued to be a misdirection. The Court of Criminal Appeal held that Judge Nisbet erred in not directing the jury on section 62 but held that there was no miscarriage of justice. Mr King appealed to the High Court. The High Court unanimously dismissed the appeal. Four members of the Court held that there was no error on the part of Judge Nisbet, and one held that there would have been no miscarriage of justice in any event.

HIGH COURT OF AUSTRALIA 5 June 2013 [2013] HCA 27 Today the High Court unanimously dismissed Mr Robert Agius' appeal against his conviction in the Supreme Court of New South Wales for conspiring to dishonestly cause a loss to the Commonwealth, contrary to s 135.4(5) of the Criminal Code (Cth) ("the Code"). Mr Agius was charged with two counts of conspiracy. Both arose out of a single scheme to defraud the Commonwealth of taxation revenue which began in 1997 and continued until 2006. The first count alleged that he conspired with others to defraud the Commonwealth, contrary to ss 86(1) and 29D of the Crimes Act 1914 (Cth) ("the Crimes Act"), between 1 January 1997 and 23 May 2001. The second count alleged that he conspired with others to dishonestly cause a loss to the Commonwealth, contrary to s 135.4(5) of the Code, between 24 May 2001 and 23 October 2006. Mr Agius was charged with two separate counts because the relevant provision of the Crimes Act was repealed with effect from 24 May 2001. From 24 May 2001, the offence of conspiracy to defraud the Commonwealth was contained exclusively in s 135.4 of the Code. Mr Agius was convicted of both counts. By special leave, he sought to appeal to the High Court against his conviction on the second count. In this Court, he argued that the conduct criminalised by s 135.4(5) of the Code was the formation of a conspiratorial agreement. Mr Agius contended that he should not have been convicted on the second count because he had not entered into a second agreement after s 135.4(5) commenced. He also argued that the offence in s 135.4(5) could not be satisfied by his participation in an existing conspiratorial agreement, otherwise the section would be given retrospective effect. The High Court unanimously dismissed the appeal. The Court held that the offence in s 135.4(5) of the Code required the existence of, and participation in, an agreement. But the agreement did not need to be formed after s 135.4(5) commenced. Mr Agius' continued participation in the agreement was capable of constituting the offence. The Court also held that, because Mr Agius' offence was his continued participation in the conspiratorial agreement after s 135.4(5) commenced, the provision did not operate retrospectively.

HIGH COURT OF AUSTRALIA 13 August 2014 ANTHONY CHARLES HONEYSETT v THE QUEEN [2014] HCA 29 Today the High Court unanimously allowed an appeal brought by Anthony Charles Honeysett against his conviction for armed robbery. In 2011, Mr Honeysett was convicted following a trial by jury in the District Court of New South Wales of the armed robbery of an employee of a suburban hotel. The robbery was recorded by closed-circuit television cameras ("CCTV"). The head and face of one of the robbers ("Offender One") was covered, as was the remainder of Offender One's body, save for a small gap between sleeve and glove. At trial, over objection, the prosecution adduced evidence from an anatomist, Professor Henneberg, of anatomical characteristics that were common to Mr Honeysett and Offender One. Professor Henneberg's identification of these characteristics was based on looking at the CCTV footage of the robbery and at images of Mr Honeysett taken while he was in police custody. Mr Honeysett appealed against his conviction to the Court of Criminal Appeal of the Supreme Court of New South Wales, submitting that Professor Henneberg's evidence was inadmissible evidence of opinion. The Court of Criminal Appeal agreed with the trial judge that Professor Henneberg's evidence was admissible because it was evidence of an opinion that was wholly or substantially based on his "specialised knowledge" within the meaning of s 79(1) of the Evidence Act 1995 (NSW). The Court accepted that Professor Henneberg's specialised knowledge was based on his study of anatomy and his experience in viewing CCTV images. By special leave, Mr Honeysett appealed to the High Court. On the hearing of the appeal, the prosecution did not maintain that Professor Henneberg had specialised knowledge based on his experience in viewing CCTV images. The prosecution relied solely on Professor Henneberg's knowledge of anatomy. The Court held that Professor Henneberg's opinion was not based wholly or substantially on his knowledge of anatomy: his opinion regarding each of the characteristics of Offender One was based on his subjective impression of what he saw when he looked at the images. As Professor Henneberg's opinion did not fall within the exception in s 79(1), the Court held that it was an error of law to admit the evidence. The Court quashed Mr Honeysett's conviction and ordered a new trial.

HIGH COURT OF AUSTRALIA 8 February 2017 COMMISSIONER OF STATE REVENUE v ACN 005 057 349 PTY LTD [2017] HCA 6 Today the High Court unanimously allowed two appeals from a decision of the Court of Appeal of the Supreme Court of Victoria. The High Court held that the Commissioner of State Revenue ("the Commissioner") was not under a duty to issue amended land tax assessments and refund an excess amount of land tax that he had been paid. From 1990 to 2002, the respondent in each appeal, an owner of two adjoining properties ("the taxpayer"), was assessed for land tax under the Land Tax Act 1958 (Vic) ("the LTA"). Each assessment was paid. In 2007, the taxpayer transferred the properties to a related company. In 2012, a senior revenue officer of the Commissioner informed that related company that an error had been detected in land tax assessments for 2008 to 2011 – one of the adjoining properties had been the subject of land tax twice ("the duplication error"). The taxpayer formed the view that the 1990 to 2002 assessments contained the same duplication error, and sought to lodge, out of time, objections to those assessments under s 24A of the LTA. The Commissioner refused to consider the objections. The taxpayer requested the Commissioner to issue amended assessments for 1990 to 2002 pursuant to s 19 of the LTA. That request was also refused. The taxpayer commenced two proceedings in the Supreme Court of Victoria – the first sought mandamus to direct the Commissioner to issue amended assessments and to refund the excess amount with interest, and the second sought restitution of the excess amount with interest. The primary judge dismissed the first proceeding and, in the second, entered judgment for the Commissioner and otherwise dismissed the proceeding. The Court of Appeal allowed each appeal holding that, as the Commissioner knew alterations were necessary to ensure the completeness and accuracy of the assessments, he had a duty under s 19 of the LTA to issue amended assessments and refund the excess amount. The Court of Appeal also held that the Commissioner's duplication error deprived him of authority to retain the excess amount, and his refusal to issue amended assessments amounted to conscious maladministration. The Court of Appeal found that s 90AA of the LTA did not bar the proceedings, and made an order for mandamus directing the Commissioner to issue amended land tax assessments and to repay the excess amount to the taxpayer. By grant of special leave, the Commissioner appealed to the High Court. The High Court held that s 19 did not impose any duty on the Commissioner to issue amended assessments and refund the excess amount. The Court rejected the Court of Appeal's construction of s 19, which it held elevated s 19 to a source of refund or recovery, independent of the LTA's objection and refund provisions. As the proceedings were for the refund or recovery of "tax paid under, or purportedly paid under," the LTA, s 90AA applied to bar the proceedings brought by the taxpayer. The Court held there was no basis for a finding of conscious maladministration, and, as payment of the excess amount discharged a debt, the Court rejected the taxpayer's contention that the Commissioner was unjustly enriched. The Court allowed each appeal and set aside the orders of the Court of Appeal in each proceeding.

HIGH COURT OF AUSTRALIA Public Information Officer 6 March 2008 TELSTRA CORPORATION LIMITED v COMMONWEALTH OF AUSTRALIA, AUSTRALIAN COMPETITION AND CONSUMER COMMISSION, PRIMUS TELECOMMUNICATIONS PTY LTD, OPTUS NETWORKS PTY LTD, CHIME COMMUNICATIONS PTY LTD, XYZED PTY LTD, POWERTEL LIMITED, REQUEST BROADBAND PTY LTD, NEC AUSTRALIA PTY LTD, MACQUARIE TELECOM PTY LTD, AMCOM PTY LTD, ADAM INTERNET PTY LTD AND AGILE PTY LTD The telecommunications access regime set out in the Trade Practices Act (TPA) did not amount to an acquisition of Telstra’s property, the High Court of Australia held today. Telstra asserted that contrary to section 51(xxxi) of the Constitution, which provides that Parliament has the power to make laws with respect to the acquisition of property on just terms, the access regime effected an acquisition other than on just terms of some of its local loops, the twisted pairs of copper or aluminium wire running between a local exchange and a consumer’s premises. Telstra has about 10.1 million local loops and about 5,120 local exchanges. The local loops are used for either unconditioned local loop services (ULLS), which have no equipment located along the loop, or line sharing services (LSS), which allows one supplier to use the low-frequency part of the spectrum for a voiceband service to an end user’s premises while another supplier uses the high-frequency non-voiceband part of the spectrum for high bandwidth services. Telstra began proceedings in the High Court against the Commonwealth, the ACCC and 11 other telecommunications service providers. Questions were reserved for consideration of the Court. The questions asked whether sections 152AL(3) or 152AR of the TPA in their application to ULLS and LSS were beyond the legislative competence of the Parliament by reason of section 51(xxxi). The Court unanimously dismissed Telstra’s case, holding that sections 152AL(3) and 152AR of the TPA were not invalid. The rights in Telstra’s assets were rights to use the assets in connection with the provision of telecommunications services but those rights were always subject to a statutory access regime which permitted other carriers to use its assets. Telstra had always owned and operated the assets within a regulatory regime by which other carriers have the right to connect their facilities to Telstra’s network and to obtain access to Telstra services.

HIGH COURT OF AUSTRALIA 5 December 2018 COMMISSIONER OF STATE REVENUE v PLACER DOME INC (NOW AN AMALGAMATED ENTITY NAMED BARRICK GOLD CORPORATION) [2018] HCA 59 Today the High Court unanimously allowed an appeal from the Court of Appeal of the Supreme Court of Western Australia. The High Court upheld an assessment by the Commissioner of State Revenue that Placer Dome Inc ("Placer") was a "listed land-holder corporation" within the meaning of Div 3b of Pt IIIBA of the Stamp Act 1921 (WA), and that Barrick Gold Corporation ("Barrick") was liable to pay ad valorem duty in respect of its acquisition of Placer. Part IIIBA of the Stamp Act ensures that the buyer of an entity will be subject to ad valorem duty if the entity's underlying value is principally derived from land. Where an acquired entity is a "listed land-holder corporation" – relevantly, an entity entitled, at the time of acquisition, to land in Western Australia with an unencumbered value of not less than A$1 million and where 60 per cent or more of the value of all of its property is land – duty will be payable on the acquisition. The duty is calculated by reference to the value of the land and chattels in Western Australia to which the entity was entitled. Placer was a substantial gold mining enterprise with land and mining tenements around the world, including in Western Australia. Barrick’s acquisition of Placer was the largest transaction of its kind in the gold industry. The Commissioner issued an assessment to Barrick under the Stamp Act which relevantly stated that Placer was a "listed land-holder corporation" and that ad valorem duty was payable in respect of Barrick's acquisition of Placer. Barrick objected and the Commissioner disallowed the objection. Barrick applied for review by the State Administrative Tribunal. A key issue was whether the property of Placer, prior to its acquisition by Barrick, included legal goodwill with a value of US$6.506 billion, which was the amount allocated to goodwill in Barrick's financial statements. If that amount reflected the value of Placer's legal goodwill, then the value of Placer's land was less than the 60 per cent threshold. The Tribunal dismissed Barrick's review application. The Tribunal relevantly concluded that Placer’s assets did not include any material legal goodwill. Barrick appealed to the Court of Appeal. The Court of Appeal allowed Barrick's appeal on the bases that, among other things, the Tribunal had failed to distinguish between the value of Placer's land and the value of its business as a going concern; and Placer had substantial legal goodwill. By grant of special leave, the Commissioner appealed to the High Court. The High Court held that Barrick failed to establish that the value of all of Placer's land, as a percentage of the value of all of Placer's property, did not meet or exceed the 60 per cent threshold. Placer was a land rich company which had no material property comprising legal goodwill. Goodwill for legal purposes, as distinct from accounting purposes, was held to comprise those sources which generated or added value (or earnings) to a business by attracting custom. Custom remained central to the concept of legal goodwill. Barrick's contention that goodwill for legal purposes was or should be treated as synonymous with what it described as the "added value" concept of goodwill, or "going concern" value, was rejected.

HIGH COURT OF AUSTRALIA 11 September 2019 CRAIG WILLIAM JOHN MINOGUE v STATE OF VICTORIA [2019] HCA 31 Today the High Court unanimously held, in answer to questions stated in a special case, that s 74AB of the Corrections Act 1986 (Vic) ("the Act") is not invalid, and that the question of the validity of s 74AAA of the Act did not arise in the circumstances of this case. In 1988, the plaintiff was convicted of the murder of Angela Rose Taylor, a constable in the Victorian police force, and was sentenced by the Supreme Court of Victoria to imprisonment for life. The Court set a non-parole period of 28 years, during which term the plaintiff would not be eligible to be released on parole. After the plaintiff's non-parole period ended, he applied to the Adult Parole Board ("the Board") for parole. That application has not yet been determined. On 14 December 2016, a new provision in the Act, s 74AAA, commenced operation. The plaintiff challenged the constitutional validity of s 74AAA (as then in force) in the High Court, and in Minogue v Victoria (2018) 92 ALJR 668; 356 ALR 363; [2018] HCA 27, the High Court held that s 74AAA did not apply to the plaintiff. On 1 August 2018, the Act was further amended to insert a new s 74AB and to substitute a new s 74AAA. The new s 74AB sets out "[c]onditions for making a parole order for Craig Minogue". It relevantly provides that the Board may make a parole order in respect of the plaintiff "if, and only if" the Board is satisfied that the plaintiff "is in imminent danger of dying or is seriously incapacitated and, as a result, he no longer has the physical ability to do harm to any person" and "has demonstrated that he does not pose a risk to the community", and the Board "is further satisfied that, because of those circumstances, the making of the order is justified". The substituted s 74AAA imposes the same conditions for making a parole order but applies to any person convicted of murder where the victim was a police officer. The plaintiff commenced proceedings in the High Court challenging the constitutional validity of s 74AB and, if it applied, s 74AAA. As the plaintiff was not in imminent danger of dying or seriously incapacitated, the plaintiff contended that the provisions, in their substantive operation and practical effect, legislatively resentenced him for the same crime, and that the resentencing was legislative punishment contrary to Ch III of the Constitution. The High Court held that s 74AB was relevantly indistinguishable from the provision upheld in Knight v Victoria (2017) 261 CLR 306; [2017] HCA 29. Section 74AB did not, in either its substantive operation or practical effect, impose additional or separate punishment on the plaintiff beyond the punishment imposed by the sentencing court in a way that involved the exercise of judicial power. A majority considered that s 74AB did no more than alter the conditions to be met before the plaintiff could be released on parole. The Court concluded that s 74AB was valid and applied to the plaintiff. It was therefore unnecessary for the Court to consider the validity of s 74AAA.

HIGH COURT OF AUSTRALIA 23 June 2005 BRIAN WILLIAM POVEY v QANTAS AIRWAYS LIMITED AND BRITISH AIRWAYS PLC Mr Povey, who suffered from deep-vein thrombosis after an international flight, would not be able to establish a cause of action against the airlines, the High Court of Australia held today. Mr Povey, now 63, left Sydney for London on a Qantas flight on 15 February 2000 and arrived back on 20 February 2000 on a British Airways flight. Both seats were in economy class. Mr Povey alleged that during or immediately after these flights he suffered from DVT and consequently suffered a stroke, pulmonary embolism, chronic chest, lung and leg pain, breathing difficulties, impaired mobility, thrombosis of the right leg, and shock, anxiety and depression. He alleged the DVT was caused by the conditions of travel, including cramped seating from which it was not easy to move, discouragement of movement around the cabin, the serving of alcohol, tea and coffee, and the lack of warning about the risk of DVT and information on reducing that risk. Mr Povey commenced proceedings in the Victorian Supreme Court against Qantas and BA, claiming damages for personal injury pursuant to the Civil Aviation (Carriers’ Liability) Act and Article 17 of the Warsaw Convention on international air carriage. He also claimed damages for negligence from the Civil Aviation Safety Authority, but those proceedings are in abeyance, pending the outcome of the High Court appeal. Qantas and BA each sought summary judgment, alleging the claims made against them were bound to fail. The applications failed, and the airlines appealed to the Court of Appeal. By majority, it allowed the appeal and struck out Mr Povey’s pleading against the carriers and permanently stayed the action. He appealed to the High Court. Article 17 provides that a carrier is liable for the death, wounding or bodily injury suffered by a passenger, if the accident which caused the damage took place on board the aircraft or while embarking or disembarking. Mr Povey submitted that “accident” should be interpreted broadly to include omissions as well as acts occurring on an aircraft, and that it covered a failure to warn of the known dangers of DVT, possibly combined with the flight conditions. Both sides endorsed a formulation from the United States Supreme Court in Air France v Saks, that a passenger’s injury is caused by an accident only if caused by an unexpected or unusual event or happening that is external to the passenger. The High Court held that, on the facts alleged, Mr Povey’s condition was not caused by an accident. It held that Mr Povey’s allegations, if proved, would not establish a cause of action against the carriers. The Court, by a 6-1 majority, dismissed the appeal. One Justice would have allowed the appeal in part.

HIGH COURT OF AUSTRALIA 13 April 2022 ZAGI KOZAROV v STATE OF VICTORIA [2022] HCA 12 Today, the High Court unanimously allowed an appeal from a decision of the Court of Appeal of the Supreme Court of Victoria. The appellant was employed by the respondent as a solicitor in the Specialist Sexual Offences Unit ("the SSOU") of the Victorian Office of Public Prosecutions. The primary question in the appeal was whether the respondent's failure to take reasonable measures in response to "evident signs" of the appellant's psychiatric injury from vicarious trauma suffered in that role caused the exacerbation and prolongation of the appellant's psychiatric injury. The appellant commenced employment in the SSOU in June 2009. Her work there involved "cases of an abhorrent nature involving child rape and offences of gross depravity". In February 2012, the appellant was diagnosed with post-traumatic stress disorder resulting from vicarious trauma which she had suffered in the course of employment. The appellant was later diagnosed with major depressive disorder as a corollary of her post-traumatic stress disorder. The appellant sued the respondent and was awarded damages for negligence at trial. On appeal, the Court of Appeal upheld the trial judge's finding that the respondent had been placed on notice of a risk to the appellant's mental health by the end of August 2011. However, the Court of Appeal rejected the trial judge's finding that, at the end of August 2011, the appellant would have accepted an offer to rotate out of the SSOU. On that basis, the Court of Appeal found that the respondent's breach of duty did not cause the exacerbation of the appellant's psychiatric injury between August 2011 and the appellant's departure from the SSOU in February 2012. The High Court found that the respondent had been placed on notice by the end of August 2011 that the appellant was at risk of harm from her work. The High Court also found that the Court of Appeal erred in rejecting the trial judge's finding that the appellant would have co-operated with steps to rotate the appellant out of the SSOU, had those steps been taken subsequent to occupational screening at the end of August 2011. The considerations supporting that conclusion included: the appellant's cooperative conduct in February 2012 in liaising with the respondent about her future role; her preparedness to be assessed by a psychologist in August 2011; and expert evidence led at trial that a very significant majority of people, if assessed as having a work-related psychiatric injury, and after having had the diagnosis and its relevant consequences explained to them, will accept the advice of a clinician in respect of that injury. The Court of Appeal thus erred in finding a lack of causation between the breach of duty and the appellant's injury.

HIGH COURT OF AUSTRALIA 9 December 2004 WESTERN AUSTRALIAN PLANNING COMMISSION v TEMWOOD HOLDINGS PTY LTD A developer had no right to compensation for the Crown taking over ownership of a foreshore reserve, the High Court of Australia held today. Temwood in 1992 acquired an area on the coast south of Perth which it proceeded to subdivide and develop in 1993 as the Bayshore Garden Estate with houses, a primary school, a recreation reserve and other facilities. Thirty years earlier a 200-metre-wide 20-hectare strip running the length of the foreshore frontage of the land was reserved as parks and recreation area on the gazettal of the Metropolitan Region Scheme (MRS). This reservation did not divest ownership from the former owner, who was never paid compensation. The WA Town Planning and Development Act conferred a power of compulsory acquisition of land for a town planning scheme but that power was not taken up. The MRS forbade any development on the foreshore reserve with approval of the Planning Commission. In 1999 and 2000, Temwood lodged three applications with the commission for subdivision approval. Each was approved, subject to the condition that the foreshore reserve be ceded to the Crown free of cost and without any compensation paid. Temwood appealed to the Town Planning Appeal Tribunal against the Planning Commission tying the approvals to the condition. The tribunal dismissed the appeal. Temwood then appealed to the WA Supreme Court, arguing that the condition was invalid because the commission had no power to impose it and it was imposed for the improper purpose of defeating Temwood’s subsisting right to compensation. Justice Carmel McLure dismissed the appeal, holding that Temwood did not have a vested right to compensation and the commission’s power was not improperly exercised. Temwood successfully appealed to the Full Court of the Supreme Court, which held that it had an unequivocal right to compensation. The Full Court held that this right was deferred until an event stipulated in section 36 of the MRS Act. This was either when the land was first sold following the date of reservation or when the commission refused an application for subdivision or approved the subdivision subject to conditions that were unacceptable. The Full Court held that the condition was beyond power and invalid and served no planning purpose and was not imposed as a bona fide exercise of the commission’s powers. The commission appealed to the High Court, contending that the Full Court erred in characterising the condition as an extinguishment of a statutory right, and the condition was imposed for a proper planning purpose of securing the land for public access. The High Court, by a 3-2 majority, allowed the appeal. It held that the tribunal did not err in law in approving the condition. The condition was one the tribunal had power to approve, was imposed for a legitimate planning purpose, and was reasonably related to the proposed development. Only the person who owned the land when the reservation was made could obtain compensation. Temwood as a subsequent purchaser of the land had no right to compensation.

HIGH COURT OF AUSTRALIA 18 November 2004 LOCKWOOD SECURITY PRODUCTS PTY LTD v DORIC PRODUCTS PTY LTD The High Court of Australia today rejected challenges by Doric to claims made by Lockwood in its patent on a new type of door lock. Lockwood registered the patent on the lock which it said overcame the problems of deadlocks, which have a second key-operated lock inside needing to be unlocked separately to be able to exit the house. These were designed to prevent anyone breaking into the house from being able to open the door to remove bulky goods. However if a key was left in the outside lock or misplaced without the inner lock being unlocked, occupants could be trapped during a fire or other danger. The patent was for a deadlock that could open both the outside and inside locks simultaneously. The issue was whether the 33 claims defining the scope of the patent were fairly based in the patent specification within the meaning of section 40(3) of the Patents Act or whether the claims were wider. Claims 2 to 32 were built upon claim 1, so were narrower than claim 1. (Claim 33 was described by reference to drawings of the latch assembly.) The appeal to the High Court was conducted on the footing that the issue of fair basing might be determined in regard to claim 1 alone, so that if it were fairly based then all were. In October 2000 Lockwood’s lawyers accused Doric (and others) of infringing the patent. Doric commenced proceedings in the Federal Court of Australia alleging Lockwood had made unjustified threats of legal action against it and its distributors. Lockwood cross-claimed for infringement of 19 of the 33 claims. Doric in turn cross-claimed seeking revocation of the patent, alleging the patented lock was not novel, that it was obvious and involved no inventive step, that the specification did not fully describe the invention, that certain claims were unclear or not clear and succinct, and that none of the claims were fairly based on the matters described in the specification. Justice Peter Hely found Doric’s products infringed 14 claims, but he found that claims 1 to 32 were not fairly based on matters described in the specification and that nine claims were not novel. The Full Court dismissed an appeal, upholding Justice Hely’s conclusion that claims 1 to 32 were invalid. Lockwood appealed to the High Court. In that Court, neither side pursued issues other than fair basis. The High Court unanimously allowed the appeal, declared that claims 1 to 32 of the patent were fairly based on matters described in the complete specification, and remitted the matter to the Full Court of the Federal Court to determine the remaining issues not fully dealt with on appeal to that Court.

HIGH COURT OF AUSTRALIA Public Information Officer 2 February 2009 K-GENERATION PTY LTD AND GENARGI KRASNOV v LICENSING COURT OF SOUTH AUSTRALIA AND COMMISSIONER OF POLICE The requirement for South Australian courts to maintain the confidentiality of criminal intelligence about an applicant for a liquor licence did not diminish their integrity as impartial and independent courts, the High Court of Australia held today. In October 2005, K-Generation applied to the SA Liquor and Gambling Commissioner for an entertainment venue licence. The director, Genargi Krasnov, wanted to set up a karaoke club called Sky Lounge KTV in premises on King William Street, Adelaide. The Police Commissioner intervened in July 2006 to introduce evidence and make representations to Liquor and Gambling Commissioner Bill Pryor, particularly on the issue of whether Mr Krasnov and his partner Adeline Tay were fit and proper persons to hold the licence. When Commissioner Pryor heard the application, the police submitted information classified by the Police Commissioner as “criminal intelligence”, pursuant to section 28A of the Liquor Licensing Act. The information was not disclosed to K-Generation. In January 2007, Commissioner Pryor, acting upon that information, refused the application on the ground that the grant of a licence would be contrary to the public interest. The SA Licensing Court affirmed his decision. K-Generation and Mr Krasnov instituted proceedings in the SA Supreme Court, seeking a declaration that section 28A was invalid for being incompatible with the exercise by the Licensing Court of the judicial power of the Commonwealth. They sought a declaration that the Licensing Court, in affirming Commissioner Pryor’s decision, had failed to observe the requirements of procedural fairness. They also applied for judicial review of the Licensing Court’s decision. The proceedings were referred to the Full Court of the Supreme Court, which by majority refused the application for the declarations and dismissed the application for judicial review. K-Generation and Mr Krasnov appealed to the High Court on the ground that the Full Court erred in finding section 28A to be valid, notwithstanding that it required the Licensing Court to hear and determine the review without disclosing the intelligence relied on by Commissioner Pryor in refusing the licence application. K-Generation and Mr Krasnov contended that section 28A deprived the Licensing Court of the reality and appearance of independence and impartiality required of a court exercising the judicial power of the Commonwealth. Their particular concern was with section 28A(5) which directs the Liquor and Gambling Commissioner, the Licensing Court and the Supreme Court to take steps to maintain the confidentiality of information classified as criminal intelligence. These steps may include receiving evidence and hearing argument about the information in private without the parties or their lawyers. The Court unanimously dismissed the appeal. It held that section 28A did not confer upon the Licensing Court or the Supreme Court functions incompatible with their integrity as courts of the States or with their constitutional role as courts exercising federal jurisdiction. Section 28A left to the courts decisions on whether facts existed to warrant classification of information as “criminal intelligence”, what if any weight should be placed on it, and what steps to take to preserve the confidentiality of that material. Section 28A(5) did not subject the courts to the direction of the executive or an administrative authority. Therefore it did not deny to the courts the constitutional character of independent and impartial tribunals.

HIGH COURT OF AUSTRALIA Public Information Officer 9 March 2006 KEVIN PHILIP NUDD v THE QUEEN Mr Nudd complained that he was incompetently represented after he was convicted of being knowingly concerned in the importation of cocaine. The High Court of Australia dismissed his appeal, saying that no miscarriage of justice had occurred. In the Queensland Supreme Court in 2003, Mr Nudd was convicted and sentenced to 22 years’ jail with a non-parole period of 11 years. Police and Customs had intercepted the yacht Sparkles Plenty in Moreton Bay near Brisbane in May 2001 and found 89 kilograms of cocaine (plus some water- damaged packets of the drug). Mr Nudd was apprehended at the same time in Los Angeles where he was living and later extradited to Australia. Aboard the yacht were American father and son Peter and Gareth Jackson, who left Mexico on the yacht 12 months earlier. The yacht sat in Noumea for five months before making the final leg to Australia. During that time, the Jacksons spent three months in Sydney while buyers were sought, then returned to the US when their visas expired. While they were in Sydney, Mr Nudd’s sister attempted to obtain a false passport for Peter Jackson but was unsuccessful. Mr Jackson then obtained one in the US and flew to Noumea to sail the yacht to Australia. Police had installed listening devices in the Jacksons’ Sydney hotel room and taped telephone conversations, including 11 with Mr Nudd. He allegedly helped with arrangements to get the cocaine to Australia, put Peter Jackson in contact with another American, Jorge Velarde, who was to help with distribution of the cocaine, assisted Mr Jackson to obtain the false passport, and resolved various problems that arose. At the trial his defence counsel was under a misapprehension as to the elements of the offence which the trial judge, Justice Anthe Philippides, corrected. In the Court of Appeal, Mr Nudd claimed that his trial counsel had failed to give him proper advice, had made admissions of fact, had failed to object to prejudicial material in the telephone tapes being admitted, and should have called him to give evidence. The appeal was dismissed and Mr Nudd appealed to the High Court. The Court unanimously dismissed the appeal and upheld the Court of Appeal’s decision. The Court held that the case against Mr Nudd was very strong and any errors that might otherwise have caused the trial to miscarry were properly corrected by Justice Philippides. The Court held that there had been no departure from the requirements for a fair trial and that the tactics of inexperienced counsel had not affected the fairness of the process.

HIGH COURT OF AUSTRALIA 4 March 2021 UMINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS v AAM17 & ANOR [2021] HCA 6 Today the High Court unanimously allowed an appeal from a decision of the Federal Court of Australia. The appeal concerned the Federal Court's conclusion that the circumstances of the Federal Circuit Court's delivery of an ex tempore judgment without translation denied the first respondent procedural fairness. The first respondent's application for a protection visa was rejected by a delegate of the appellant. The Administrative Appeals Tribunal affirmed the delegate's decision. The first respondent sought judicial review of the Tribunal's decision in the Circuit Court. The first respondent was not represented before the Circuit Court, but he asked for and obtained the assistance of an interpreter. The Circuit Court dismissed the application for judicial review and delivered an ex tempore judgment. The orders were translated for the first respondent's benefit, but the oral reasons for judgment were not. Written reasons for judgment were delivered after the first respondent filed his notice of appeal in the Federal Court. The Federal Court concluded that neither the written reasons of the Tribunal nor of the Circuit Court disclosed any error. However, the Federal Court allowed the appeal, set aside the orders made by the Circuit Court, and remitted the matter to that Court to be reheard by a different Circuit Court judge. The Federal Court considered that the Circuit Court's failure to have the oral reasons for judgment translated for the first respondent's benefit constituted a denial of procedural fairness, and that undoing this denial required the Circuit Court's judgment to be set aside. Allowing the appeal, the High Court accepted that as a matter of general fairness, rather than independent legal duty, the first respondent ought to have had the benefit of translated ex tempore reasons or written reasons at an earlier time. However, the High Court held that the final instance of any right or entitlement of the parties arising from the Circuit Court's obligation to afford procedural fairness occurred at the time the parties made their concluding submissions. As such, any delay in the provision of written reasons did not constitute a denial of procedural fairness before the Circuit Court. Further, any practical injustice that may have followed the delay in the Circuit Court's provision of written reasons could have been addressed by the Federal Court inviting the first respondent to amend his grounds of appeal to address the contents of the Circuit Court's published reasons, and, if necessary, adjourning the hearing of the appeal to permit this to take place. In that regard, the High Court noted that the first respondent never independently sought to amend his grounds of appeal to take account of the published reasons of the Circuit Court. Setting aside the Circuit Court's judgment and remitting the matter to be reheard went beyond that which was necessary to provide practical justice to the first respondent.

HIGH COURT OF AUSTRALIA Public Information Officer 13 April 2006 STATE OF NEW SOUTH WALES v JOYCE AMERY, LYN BOVARD, MARGARET DENISE McHUGH, KAREN MORS, CHERYL O’LOAN, MARION PLATT, MEGAN Different pay scales for casual and permanent New South Wales teachers were not unlawfully discriminatory, the High Court of Australia held today. Permanent teachers are paid on a 13-level pay scale while the casual pay scale has only five levels. The highest casual rate equated to level eight on the permanent pay scale. Thirteen female teachers who have been supply casuals (some are now permanent again) argued that the differences in salary had the effect of indirectly discriminating against them on the ground of sex, in contravention of section 24(1)(b) of the Anti-Discrimination Act. Very few casual teachers are men. Most of the women had ceased teaching on a permanent basis while they brought up children or for other family reasons as they required greater flexibility in their working hours and did not wish to be posted to distant locations. The teachers claimed they performed work of a value equal to that performed by permanent teachers but they were not paid the same and this affected women teachers much more so than male teachers. The 13 women established their claims for damages in the Equal Opportunity Division of the NSW Administrative Decisions Tribunal. This decision was overturned by the tribunal’s Appeal Panel. The teachers appealed to the Court of Appeal which, by majority, allowed the appeal. The State appealed to the High Court. NSW argued that the statutory ground for claiming discrimination had not been made out. It also argued that the system was reasonable because permanent teachers were subject to statutory requirements that did not apply to casuals, including having to transfer anywhere in NSW; the 13 teachers had placed geographical limitations on their acceptance of permanent positions; and that the enterprise agreement and the award were relevant for determining reasonableness. The Court, by a 6-1 majority, allowed the appeal. Three members of the majority held that there was no requirement or condition on casuals that potentially contravened the Anti-Discrimination Act and three members of the majority held that the basis of differentiation between casual and permanent teachers had not been shown to be unreasonable.

HIGH COURT OF AUSTRALIA 1 June 2011 AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION v LANEPOINT ENTERPRISES PTY LTD (RECEIVERS AND MANAGERS APPOINTED) [2011] HCA 18 The High Court today allowed an appeal brought by the Australian Securities and Investments Commission ("ASIC") against a decision of the Full Court of the Federal Court (North and Siopis JJ, Buchanan J dissenting). The Full Court had allowed an appeal by Lanepoint Enterprises Pty Ltd ("Lanepoint") from the decision of Gilmour J in which his Honour had, on an application by ASIC made under s 459P of the Corporations Act 2001 (Cth) ("the Act"), granted leave to ASIC to apply to the Court for a winding up order, and ordered that Lanepoint be wound up in insolvency pursuant to s 459A of the Act and that liquidators be appointed to the company. The Full Court accepted submissions by Lanepoint that the discretion exercised by Gilmour J under ss 459A and 467, to order that the company be wound up rather than to stay or dismiss the proceedings, had miscarried, and that the winding up application was an inappropriate vehicle for the determination of questions as to Lanepoint's solvency. At the hearing before Gilmour J, Lanepoint had sought to establish its solvency so as to rebut the presumption of insolvency, which arose by reason of s 459C(2)(c) of the Act, following the appointment of receivers and managers to Lanepoint by two creditor companies. However, Gilmour J held that certain transactions relied upon by Lanepoint to establish its solvency were ineffective to reduce its indebtedness and therefore Lanepoint could not rebut the presumption of insolvency. The High Court unanimously allowed ASIC's appeal from the decision of the Full Court, holding that the winding up application was not an inappropriate vehicle for the determination of Lanepoint's solvency, and that the discretion exercised by Gilmour J to order the winding up of Lanepoint did not miscarry. Lanepoint was unable to point to further evidence relevant to rebutting the presumption of insolvency that was not adduced at the hearing of the winding up application. Furthermore, it was not necessary that other parties be joined to the proceedings before the question of Lanepoint's solvency should be determined. Rather, the postponement of the winding up application would have added to the considerable delays which had already been encountered by ASIC since the application had been filed. The Court set aside the orders of the Full Court, and instead ordered that the appeal by Lanepoint to the Full Court be dismissed with costs.

HIGH COURT OF AUSTRALIA 27 November 2013 BCM v THE QUEEN [2013] HCA 48 Today the High Court unanimously dismissed an appeal from a decision of the Court of Appeal of the Supreme Court of Queensland which upheld the conviction of BCM (the appellant) on two counts of unlawfully and indecently dealing with a child under 12 years who was for the time being under the appellant's care, contrary to s 210 of the Criminal Code (Q). The complainant, E, was six years old at the date of the offences. Her stepfather was the appellant's stepson. Three offences were alleged to have occurred on the one occasion when E was staying overnight at the appellant's home. When she was nine years old, E complained to her mother that during that stay the appellant had, on two occasions, put his hand underneath her underpants. These incidents formed the basis of the first two counts of indecently dealing with E. Eleven months after first telling her mother about the first two incidents, E complained of a third incident which was said to have occurred during the same stay at the appellant's house. This incident formed the basis of the third count of indecently dealing with E. The appellant was convicted of the first two counts after a trial by jury in the District Court of Queensland. The jury was unable to reach a verdict with respect to the third count. There were some inconsistencies between the various statements and cross-examinations of E. At the time of the trial E was 10 years old. The appellant appealed to the Court of Appeal on the ground that the verdicts reached by the jury were unreasonable, or could not be supported having regard to the evidence. The Court of Appeal dismissed the appeal. By special leave, the appellant appealed to the High Court. He argued that the Court of Appeal failed to assess the evidence given at trial and did not give adequate reasons for its conclusion that the verdicts were supported by evidence. The High Court unanimously dismissed the appeal. The Court held that the Court of Appeal's reasons did not sufficiently disclose its assessment of the capacity of the evidence to support the verdict against the appellant. The High Court undertook its own assessment of the whole of the evidence before the jury and held that the verdicts were not unreasonable or unsupported by the evidence. Any inconsistencies in E's evidence were to be considered in light of her age at the date of the offences and the intervals between the offending, her first interview with police and her evidence. The High Court held that the Court of Appeal was correct to treat as believable E's explanation that she was scared and embarrassed as the reason for her delay in coming forward about the third incident. None of the criticisms of E's evidence put by the appellant led to a conclusion that it was not open to the jury to convict him.

HIGH COURT OF AUSTRALIA 3 June 2020 CUMBERLAND v THE QUEEN [2020] HCA 21 On 15 April 2020, the High Court made orders allowing an appeal from the Court of Criminal Appeal of the Supreme Court of the Northern Territory ("the CCA"), setting aside the orders of the CCA and ordering that the appeal to that Court be dismissed. Today, the High Court published its reasons for making those orders. The appellant pleaded guilty to six offences relating to the supply of drugs. He was sentenced in the Supreme Court of the Northern Territory (Blokland J) on 11 April 2018 to an aggregate term of four years and six months' imprisonment, to be suspended after two years. The Crown brought an appeal to the CCA on the ground that the sentence was manifestly inadequate. At the hearing on 18 July 2018, while the appellant argued the sentence was not inadequate, it was not submitted that any factor engaged the Court's residual discretion to dismiss the Crown appeal notwithstanding a conclusion that the sentence was erroneously lenient. On 31 July 2018, the appellant's counsel contacted the CCA to request an order for a report on the appellant's progress in prison ("the prison report"). On 1 August 2018, counsel was advised by return email that "the decision" was to be handed down the following morning and that the matters raised in the 31 July 2018 email could be addressed then. Later that day, the appellant's counsel sent a further email raising an issue relating to the operation of newly introduced provisions concerning minimum non-parole periods and suggested that those provisions may bring the residual discretion "into play". On 2 August 2018, the CCA announced that the Crown appeal was to be allowed and that it was likely to impose a revised sentence exceeding five years' imprisonment. Their Honours informed the parties that, before doing so, the question concerning the construction of the minimum non-parole provisions was to be referred to a five-member Bench. It was envisaged that, once the five-member Bench had delivered judgment, the CCA would make orders for the prison report. On 17 June 2019, the parties were advised that the decision of the five-member Bench was to be delivered two days later and, on 19 June 2019, the decision was handed down. Immediately following delivery of that judgment, without prior notice to the parties, the CCA re-constituted and delivered a decision re-sentencing the appellant to an aggregate sentence of eight years' imprisonment with a non-parole period of five years, five months and one week. The appellant's counsel was not afforded an opportunity to request a prison report or to make submissions on re- sentence or exercise of the residual discretion. Before the High Court, the respondent conceded that the CCA denied the appellant procedural fairness by failing to give an opportunity to present further material prior to re-sentencing, such that the appeal to the High Court must be allowed. However, it was submitted that the matter should be remitted to the CCA for the appellant to be re-sentenced, and that Blokland J's orders should not be reinstated in full, as the exercise of the residual discretion had not been "in play" before the CCA. The High Court held that in circumstances where: (1) the CCA was on notice of the appellant's desire to make a submission concerning the residual discretion; (2) there was a marked delay of eleven months between the relevant hearing and re-sentencing; and (3) at all times the respondent bore the onus of negating the existence of any reason why the CCA should not exercise the residual discretion, the CCA erred in deciding to allow the appeal before being in a position to make final orders, and further, by the time of re-sentencing in June 2019, the discretionary factors against allowing the Crown appeal were overwhelming. This was because at that stage, the appellant was within one week of automatic release under Blokland J's orders, and as preparation of the prison report, which would have taken two weeks, should have been ordered, the appellant would have been released by the time the CCA came to make final orders. Ultimately the respondent's concessions necessitated the setting aside of the CCA's orders, and consequently the release of the appellant nine and a half months after the date specified in Blokland J's orders. It followed that remittal to the CCA for re-sentencing, as contended for by the respondent, would have been futile as the only proper exercise of discretion at this stage was to dismiss the Crown appeal.

HIGH COURT OF AUSTRALIA 8 December 2010 PORT OF PORTLAND PTY LTD v STATE OF VICTORIA [2010] HCA 44 In 1996, the State of Victoria entered into an agreement with two companies to sell the assets and business of the Port of Portland Authority. The appellant, in which each company owned a half- share, was nominated as the purchaser. Clause 11.4 of the agreement concerned the appellant's liability to pay land tax in respect of the land forming part of the purchase. Paragraph (a) of the clause provided that the State agreed to amend legislation governing the assessment and imposition of land tax to ensure that when the appellant was assessed for land tax the unimproved site value used as the basis for the assessment would not include the value of buildings, breakwaters, berths, wharfs, aprons, canals or associated works relating to a port. Paragraph (b) of the clause concerned the possibility that the legislative amendments did not become law and that the appellant was assessed to land tax at a higher rate than would have been the case if the amendments were law. In such a situation, the State would refund or allow to the appellant the difference between the two amounts. Legislation was passed to amend the definition of "improvements" in the Valuation of Land Act 1960 (Vic). The amendments came into effect some months after the date of the agreement. The last general valuation of the land before the agreement was in June 1993, and no subsequent general valuation occurred until January 2000. Supplementary valuations were made in the intervening period. The general valuation made in 2000 was significantly less than the supplementary valuations. The appellant attributed the reduction to the proper exclusion of the works specified in cl 11.4. It considered that those works had not been excluded from the value of the land used by the Commissioner of State Revenue to calculate the amount of land tax payable between 1997 and 2001. The appellant brought proceedings in the Supreme Court of Victoria seeking to enforce the agreement. The State successfully argued at trial and on appeal to the Court of Appeal that cl 11.4 constituted an executive act that purported to bind the Parliament and was thus beyond the State's power and void. On appeal to the High Court, the appellant placed its case on paragraph (b) of cl 11.4, which the High Court held was not a dispensation by the executive from the land tax legislation, as there was a statutory backing to its inclusion in the agreement. The appellant's principal argument was that the State had not ensured that the value of the land used to calculate the amount of land tax payable excluded the relevant works specified in paragraph (a) of cl 11.4 and was obliged by paragraph (b) to bear the extra land tax that the appellant claimed it had been assessed to pay. The High Court accepted the appellant's argument, holding that the State's obligation under cl 11.4 was not fulfilled by the mere passage of the amending legislation. The Court considered that, to meet the State's obligation, the amendments had to have enabled the exclusion of the specified works from the valuation used to calculate the land tax payable between 1997 and 2001. The Court held that no supplementary valuation could take into account the amendments to the Valuation of Land Act effected in 1996. It also held that the objection procedures available to the appellant to challenge a land tax assessment could not have resulted in an adjustment to the valuation to take into account those amendments. The State was therefore in breach of its obligation under cl 11.4. The Court allowed the appeal and remitted the matter to the Supreme Court of Victoria to determine the amount the appellant is entitled to recover from the State.

HIGH COURT OF AUSTRALIA 16 December 2014 [2014] HCA 52 Today the High Court, by majority, dismissed an appeal against a decision of the Court of Appeal of the Supreme Court of Queensland and held that the appellant, who applied for the exclusion of certain property from forfeiture under the Criminal Proceeds Confiscation Act 2002 (Q) ("the Act"), had failed to discharge the onus placed upon him by s 68(2)(b) of the Act. The appellant was found by the police in possession of cash to the value of $598,325 ("the property"). The property was the proceeds of the sale of jewellery given to the appellant by his now deceased father. On the application of the State of Queensland under s 28(3)(a) of the Act, the Supreme Court made a restraining order under s 31(1) in relation to the property. The State made a further application to the Supreme Court under s 56(1) seeking the forfeiture of the property. Section 58(1)(a) provided that the Supreme Court must make a forfeiture order if the court finds it more probable than not that, for property restrained on an application made under s 28(3)(a), the respondent to the application had engaged in a serious crime related activity during the six year period prior to the application. The appellant had engaged in such an activity during that period. The appellant applied under s 65(2) of the Act for an order excluding the property from forfeiture. Section 68(2)(b) provided that the Supreme Court must, and may only, make an exclusion order if it was satisfied that it was more probable than not that the property to which the application related was not illegally acquired property. The primary judge dismissed the exclusion application. On the hearing of the application, the appellant gave evidence that he had been told by his father that the jewellery had been a gift to the appellant's great grandfather from Russian royalty. The primary judge found that that account of the provenance of the jewellery could not be true, with the consequence that it was not known how the appellant's father had come into possession of the jewellery. On that basis, his Honour held that the appellant had been unable to establish that the jewellery was not illegally acquired property. The term "illegally acquired property" was defined in s 22(2)(a) of the Act to include all or part of the proceeds of dealing with illegally acquired property. It followed that the property the subject of the exclusion application had not been shown, on the balance of probabilities, not to be illegally acquired property. An appeal to the Court of Appeal was dismissed. By special leave, the appellant appealed to the High Court. The Court unanimously rejected the appellant's contention that, in order to satisfy the requirements of s 68(2)(b) of the Act, he needed to prove no more than that the jewellery was not the proceeds of any illegal activity on his part. Rather, it was necessary for the appellant to satisfy the Supreme Court that it was more probable than not that the jewellery was not illegally acquired in his father's hands. By majority, the Court concluded that the appellant had failed to discharge that onus.

HIGH COURT OF AUSTRALIA 3 March 2004 STUART ANTHONY SILBERT (as executor of the estate of Stephen Retteghy) v DIRECTOR OF PUBLIC PROSECUTIONS OF WESTERN AUSTRALIA The High Court of Australia has held that the property of a deceased person charged with a serious offence but not convicted before their death could be confiscated under Western Australian legislation. Three members of the Court heard Mr Silbert’s application for special leave to appeal in May 2003 but adjourned the matter to allow it to be heard by all seven members in December because of the constitutional issues that arose. The second hearing enabled Commonwealth and State attorneys- general to intervene and the matter was argued as if it was an appeal. The Court dismissed the special leave application in December and today issued written reasons for its decision. Mr Retteghy died in August 1997 while on remand awaiting trial in the WA District Court on charges of cultivation and intention to sell or supply cannabis. Mr Silbert is the executor of his estate. Each offence was a serious offence for the purpose of the Crimes (Confiscation of Profits) Act 1988. Mr Retteghy had pleaded not guilty to both counts. In November 2000 the WA Supreme Court ordered that his property and a pecuniary penalty, totalling about $500,000, be forfeited to the Crown. For the purposes of the Act, a dead person could be deemed to have been convicted of a serious offence. The Full Court of the Supreme Court dismissed Mr Silbert’s appeal. He contended that the Act was invalid in its operation for deceased estates because deeming provisions of the Act precluded the Supreme Court making sufficient inquiry into whether the deceased person had actually committed the offence in question. But the High Court held that the Act required a court not to make a forfeiture order unless it was satisfied beyond reasonable doubt that the dead person had committed the offence. For pecuniary penalty orders, a court was empowered to assess the value of benefits derived from commission of the serious offence. The Court held that nothing in the application for an order, the assessment of benefits derived from crime, and the making of a pecuniary penalty was contrary to sections of the Constitution concerning the administration of justice.

HIGH COURT OF AUSTRALIA 7 May 2014 JAMES HENRY STEWART IN HIS CAPACITY AS LIQUIDATOR OF NEWTRONICS PTY LTD (IN LIQUIDATION) & ANOR v ATCO CONTROLS PTY LTD (IN LIQUIDATION) [2014] HCA 15 Today the High Court unanimously held that the first appellant, a liquidator, was entitled to an equitable lien over a fund constituted by a settlement sum with respect to costs and expenses incurred in litigation against the respondent, a secured creditor, and receivers appointed by the respondent. The second appellant, Newtronics Pty Ltd ("Newtronics"), is a wholly owned subsidiary of the respondent, Atco Controls Pty Ltd ("Atco"). For many years, Atco provided Newtronics with financial support and ultimately took a fixed and floating charge over Newtronics' assets. In January 2002, Atco appointed receivers to Newtronics. The receivers sold the business of Newtronics to another subsidiary of Atco and credited book entries against the debt owed to Atco by Newtronics. In February 2002, Newtronics was wound up and the first appellant was appointed liquidator. The liquidator brought an action on behalf of Newtronics against Atco and the receivers. The liquidator's costs and expenses reasonably incurred in pursuing the action were paid by Seeley International Pty Ltd, Newtronics' largest unsecured creditor, under an indemnity agreement. Newtronics was successful at trial against Atco, but not against the receivers. Prior to an appeal being heard, the receivers paid Newtronics a settlement sum. Atco proceeded with its appeal and was successful. It subsequently demanded payment of the settlement sum pursuant to its charge. The liquidator refused, on the basis that he was entitled to an equitable lien over the sum. Atco brought proceedings in the Supreme Court of Victoria, by way of an appeal under s 1321 of the Corporations Act 2001 (Cth) from the liquidator's decision not to pay it the settlement sum. The Court ordered that the sum be paid to Atco. On an appeal by way of a new hearing, the Court found for the liquidator and Newtronics. The Court of Appeal in turn allowed Atco's appeal. By grant of special leave, the liquidator and Newtronics appealed to the High Court. The High Court unanimously allowed the appeal. The Court held that there was no basis for excepting the case from the application of the principle that a secured creditor may not have the benefit of a fund created by a liquidator without the liquidator's costs and expenses of creating that fund first being met. The fund constituted by the settlement sum was created by the efforts of the liquidator, who was acting with propriety and in the course of his duties. In those circumstances, the liquidator was entitled to an equitable lien over the settlement sum in priority to Atco's charge.

HIGH COURT OF AUSTRALIA 16 October 2014 CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION v BHP COAL PTY LTD [2014] HCA 41 Today the High Court by majority held that the respondent's termination of the employment of an employee, who was a member of the appellant, was not an action taken for a reason which is prohibited by the Fair Work Act 2009 (Cth) ("the Act"). The appellant, Construction, Forestry, Mining and Energy Union ("the CFMEU"), is an industrial association which has members employed by the respondent, BHP Coal Pty Ltd ("BHP Coal"). One of the CFMEU's members, Mr Doevendans, participated in a lawful protest organised by the CFMEU, in the course of which he held up and waved a sign at passing motorists, which read "No principles SCABS No guts". Mr Doevendans' employment with BHP Coal was subsequently terminated. The CFMEU brought proceedings in the Federal Court of Australia, claiming that the termination of Mr Doevendans' employment contravened the Act. Section 346(b) of the Act prohibits an employer from taking adverse action against an employee, which includes terminating the employee, because the employee has engaged in industrial activity. Section 347 of the Act provides that a person engages in industrial activity if the person, among other things, participates in a lawful activity organised or promoted by an industrial association, or represents or advances the views, claims or interests of an industrial association. The primary judge accepted evidence given by BHP Coal's officer as to the reasons for the termination of Mr Doevendans' employment. Nonetheless, the primary judge concluded that s 346(b) had been contravened. This conclusion was reversed by a majority of the Full Court of the Federal Court. By special leave, the CFMEU appealed to the High Court. By majority, the High Court dismissed the appeal. A majority of the Court held that the reasons found by the primary judge to actuate the decision to dismiss Mr Doevendans did not include his participation in industrial activity, or his representing the views of the CFMEU, but rather related to the nature of Mr Doevendans' conduct and what it represented to the officer about Mr Doevendans as an employee. The termination was, therefore, not contrary to s 346(b) of the Act.

HIGH COURT OF AUSTRALIA 2 April 2014 NSW REGISTRAR OF BIRTHS, DEATHS AND MARRIAGES v NORRIE [2014] HCA 11 Today the High Court unanimously held that the Births, Deaths and Marriages Registration Act 1995 (NSW) permits the Registrar to register that a person's sex is "non-specific". Norrie, who had undergone a "sex affirmation procedure", applied to the Registrar under the Act to register both a change of sex to "non-specific" and a change of name. The Registrar issued Norrie a Change of Sex certificate and a Change of Name certificate, both of which recorded Norrie's sex as "not specified". Later, the Registrar advised Norrie that the Change of Sex certificate was invalid, and re-issued a Change of Name certificate which recorded Norrie's sex as "not stated". Norrie lodged an application for review of the Registrar's decision in the Administrative Decisions Tribunal (NSW). The Tribunal rejected Norrie's application, holding that it was not open to the Registrar to record Norrie's sex as "non-specific". The appeal panel of the Tribunal dismissed an appeal against that decision. Norrie's appeal to the Court of Appeal was upheld. By special leave, the Registrar appealed to the High Court. The issue was whether it was within the Registrar's power to record the sex of a person as "non-specific". The High Court decided that the Act recognises that a person may be neither male nor female, and so permits the registration of a person's sex as "non-specific". The High Court ordered that Norrie's applications be remitted to the Registrar for determination in accordance with its reasons and otherwise dismissed the appeal.

HIGH COURT OF AUSTRALIA Manager, Public Information 11 March 2009 LK v DIRECTOR-GENERAL, DEPARTMENT OF COMMUNITY SERVICES The High Court today upheld a mother’s appeal against orders of the Family Court that her four children should be returned to Israel. In September 2005 a husband and wife, then living in Israel, separated. The four children of the marriage continued to live with their mother. All four children were born in Israel but were entitled to Australian citizenship as their mother was an Australian citizen. In May 2006 the mother and the four children, who were then aged between 15 months and eight years old, travelled to Australia with the father’s consent. The mother and children held tickets to return to Israel on 27 August 2006, however when they left Israel both parents understood that it was the mother’s intention to make Australia her and her children’s home unless the husband decided he wanted to live with them together as a family. In that case she would return with the children to Israel. Before leaving for Australia the mother registered the children as Australian citizens, obtained Australian passports for the children and enrolled the two oldest children in a private school. Immediately after arriving in Australia the mother sought and obtained Centrelink benefits, the two older children commenced school and the third child was enrolled in pre-school. The older children joined a soccer club and took music lessons. Eventually the mother rented and furnished a home to live in with her children. In July 2006 the husband advised his wife that he had changed his mind – he wanted a divorce and he wanted the children to return to Israel. The Convention on the Civil Aspects of International Child Abduction entered into force for Australia on 1 January 1987. Parliament made regulations under the Family Law Act which, in accordance with the Abduction Convention, recognise that “the appropriate forum for resolving disputes between parents relating to a child’s care, welfare and development is ordinarily the child’s country of habitual residence”. The Director-General of the NSW Department of Community Services is empowered under the Regulations to make an application for the return of a child to “the child’s country of habitual residence” if the child has been wrongfully removed to or retained in Australia. The regulations provide that a child will have been wrongfully removed to or retained in Australia if, amongst other things, immediately before the removal to or retention in Australia, the child habitually resided in another country which was also a signatory to the Abduction Convention. At the request of Israeli authorities the Director-General applied to the Family Court for orders returning the children to Israel. A single judge of the Family Court ordered that the children be returned to enable the custody dispute between the mother and the father to be determined according to Israeli law. On appeal, the Full Court of the Family Court affirmed that decision. The mother, LK, appealed to the High Court. In a unanimous decision the High Court reasoned it would be necessary to look at all the circumstances of the case, that is – undertake a broad factual inquiry, in order to determine whether the children habitually resided in Israel when they were allegedly wrongfully retained in Australia (assumed, for the purposes of the appeal, to be in July 2006 when the father first asked for them to be returned to Israel). The High Court had regard to the circumstances that, at the time the mother and children left Israel, it was the parents’ shared intention that the mother and the children would live in Australia unless the father decided he wanted to reconcile with the mother and that the mother had, before and after her return to Australia, taken various steps to set up a home in Australia (which gave effect to the parents’ shared intention). The Court held that as at July 2006 the children did not habitually reside in Israel. The High Court set aside the orders of the trial judge and the Full Court, and dismissed the Director-General’s application for orders that the children be returned to Israel.

HIGH COURT OF AUSTRALIA 2 March 2016 TABCORP HOLDINGS LIMITED v STATE OF VICTORIA [2016] HCA 4 Today the High Court unanimously dismissed an appeal from the Court of Appeal of the Supreme Court of Victoria. The High Court held that Tabcorp Holdings Limited ("Tabcorp") was not entitled to payment by the State of Victoria ("the State") under s 4.3.12(1) of the Gambling Regulation Act 2003 (Vic) ("the 2003 Act") because there was no "grant of new licences". The appeal was heard concurrently with the appeal in Victoria v Tatts Group Ltd [2016] HCA 5. Tabcorp relevantly held conjoined licences – a wagering licence and a gaming licence – under the 2003 Act. Those licences were to expire in 2012. The gaming licence authorised Tabcorp to conduct gaming on gaming machines at approved venues in Victoria until that time. The licences were dealt with in Pt 3 of Ch 4 of the 2003 Act which included s 4.3.12(1). That section contained what was known as the "terminal payment provision" and relevantly provided that "[o]n the grant of new licences", the holder of the former licences would be entitled to be paid a certain amount by the State. In 2008, the Premier of Victoria announced that Tabcorp's licences would not be renewed upon their expiry and the 2003 Act was amended so that no further wagering licence or gaming licence could be granted. In 2009, further amendments to the 2003 Act provided for a new authority called a "gaming machine entitlement" ("GME"). A GME permitted its holder to conduct gaming on an approved gaming machine. 27,500 GMEs were created. They came into effect on 16 August 2012, being the day after Tabcorp's wagering licence and gaming licence expired. The result was that the gaming operations which Tabcorp conducted under its gaming licence ceased and were then carried on by the holders of GMEs. Tabcorp claimed it was entitled to payment under the terminal payment provision. Before the primary judge, it contended that the allocation of the GMEs was the "grant of new licences" within the meaning of s 4.3.12(1) of the 2003 Act because the GMEs were "substantially similar" to the licences held by Tabcorp. The primary judge dismissed Tabcorp's claim on the basis that the "grant of new licences" in s 4.3.12 was confined to new licences granted under Pt 3 of Ch 4 of the 2003 Act. The Court of Appeal dismissed Tabcorp's appeal from that decision. By grant of special leave, Tabcorp appealed to the High Court. The High Court unanimously held that the phrase "grant of new licences" in s 4.3.12(1) of the 2003 Act meant the grant of a new wagering licence and a new gaming licence under Pt 3 of Ch 4 of the 2003 Act. As no new wagering licence and gaming licence were issued under Pt 3 of Ch 4 of the 2003 Act, Tabcorp was not entitled to payment under the terminal payment provision.

HIGH COURT OF AUSTRALIA 10 December 2015 COMMISSIONER OF TAXATION v AUSTRALIAN BUILDING SYSTEMS PTY LTD (IN LIQUIDATION); COMMISSIONER OF TAXATION v MULLER AND DUNN AS LIQUIDATORS OF AUSTRALIAN BUILDING SYSTEMS PTY LTD (IN LIQUIDATION) [2015] HCA 48 Today the High Court, by majority, dismissed appeals from the Full Court of the Federal Court of Australia. The High Court held that the retention obligation (as defined below) imposed on agents and trustees by s 254(1)(d) of the Income Tax Assessment Act 1936 (Cth) ("the 1936 Act") only arises after the making of an assessment or deemed assessment in respect of the income, profits or gains. Section 254(1)(d) of the 1936 Act requires every agent and every trustee "to retain from time to time out of any money which comes to him or her in his or her representative capacity so much as is sufficient to pay tax which is or will become due in respect of the income, profits or gains" ("the retention obligation"). The liquidators of Australian Building Systems Pty Ltd ("ABS") caused the company to enter into a contract for the sale of a property, which gave rise to a capital gain pursuant to s 104-10 of the Income Tax Assessment Act 1997 (Cth). In a private ruling, the Commissioner of Taxation ("the Commissioner") ruled that s 254(1)(d) of the 1936 Act required the liquidators to retain sufficient monies out of the proceeds of the sale to cover any capital gains tax liability from the time the capital gain crystallised. judge held the primary ABS objected to the ruling but the Commissioner disallowed the objection. ABS appealed that decision and the liquidators also sought declaratory relief in the Federal Court of Australia. Hearing both matters concurrently, s 254(1)(d) did not require the liquidators to retain money from the proceeds of the sale until an assessment had issued. The primary judge considered that s 254(1)(d) should be construed consistently with the High Court's construction of the phrase "is or will become due" in s 255(1)(b) of the 1936 Act in Bluebottle UK Ltd v Deputy Commissioner of Taxation (2007) 232 CLR 598. The Full Court of the Federal Court dismissed the Commissioner's appeals. Unlike the primary judge, the majority of the Full Court relied on the proposition that ABS was "presently entitled" to the proceeds of the sale and that any capital gains tax would be assessed to ABS, and not to the liquidators as trustees, as a result of Div 6 of Pt III of the 1936 Act. By grant of special leave, the Commissioner appealed to the High Court. The part of the appeals relating to the Full Court's reasoning with respect to Div 6 of Pt III was not contested by the respondents. that The High Court dismissed the Commissioner's appeals. The majority held that the retention obligation in s 254(1)(d), similar to the retention obligation in s 255(1)(b), only arises after an assessment or deemed assessment has been made in respect of the relevant income, profits or gains. The High Court also held that the majority of the Full Court had erred in finding that the liquidator was a "trustee of a trust estate" for the purposes of Div 6 of Pt III. A majority of the High Court further held that the majority of the Full Court erred in construing s 254 as a collecting provision which only operates where the agent or trustee is otherwise assessable.

HIGH COURT OF AUSTRALIA 6 December 2017 ESSO AUSTRALIA PTY LTD v THE AUSTRALIAN WORKERS' UNION; THE AUSTRALIAN WORKERS' UNION v ESSO AUSTRALIA PTY LTD [2017] HCA 54 Today, the High Court allowed one appeal by majority and unanimously dismissed a second appeal from a decision of the Full Court of the Federal Court of Australia regarding the application of certain provisions of the Fair Work Act 2009 (Cth) to industrial action taken by The Australian Workers' Union ("the AWU") against Esso Australia Pty Ltd ("Esso"). Section 415 of the Fair Work Act confers a broad-ranging immunity from civil suit on persons engaging in or organising protected industrial action. Section 413 specifies the common requirements for industrial action to qualify as protected industrial action for a proposed enterprise agreement. Relevantly, s 413(5) provides that persons organising or engaging in the action "must not have contravened any orders that apply to them and that relate to, or relate to industrial action relating to, the agreement or a matter that arose during bargaining for the agreement". In 2015, during negotiations for a new enterprise agreement, the AWU organised industrial action against Esso which it claimed was protected industrial action. Esso obtained an order from the Fair Work Commission ("the Commission") requiring the AWU to stop organising certain forms of action. In contravention of that order, the AWU continued to organise the proscribed action. Esso instituted proceedings in the Federal Court of Australia seeking inter alia declarations that the AWU was a person who had contravened an order which applies to it, in the terms of s 413(5), with the consequence that action thereafter organised by the AWU in relation to the agreement was not protected industrial action. It was also alleged that, contrary to ss 343 and 348 of the Fair Work Act, the AWU had organised action with intent to coerce Esso to enter into an agreement on terms favourable to the AWU. The primary judge declined to make the declarations sought by Esso, but found that the AWU had contravened ss 343 and 348. On appeal, the Full Court held that the AWU's prior contravention of the Commission's order did not fall within the terms of s 413(5) and that there was no error in the primary judge's approach to or application of ss 343 and 348. By grant of special leave, Esso and the AWU each appealed to the High Court against the Full Court's decision in relation to the construction of s 413(5) and the contraventions of ss 343 and 348 respectively. In relation to Esso's appeal, a majority of the High Court held that the requirement in s 413(5) for compliance with orders is not confined to orders that are in existence or may still be complied with at the time of the proposed protected industrial action, or which relate to that action. The majority held that s 413(5) applies to past contraventions of orders that applied to the relevant persons and that related to the relevant subject matter, and thus, by reason of its contravention of the Commission's order, the AWU failed to meet the requirement in s 413(5) for its subsequently organised action to qualify as protected industrial action. In relation to the AWU's appeal, the Court unanimously held that a contravention of s 343 or s 348 is constituted of organising, taking or threatening action against another person with intent to negate that person's choice and that knowledge or intent that the action be unlawful, illegitimate or unconscionable is not required. In the result, Esso's appeal was allowed and the AWU's appeal was dismissed.

HIGH COURT OF AUSTRALIA 18 March 2020 [2020] HCA 10 Today, the High Court unanimously allowed an appeal from the Court of Appeal of the Supreme Court of Queensland. Under the common law of Australia, during a criminal trial (save in rare and exceptional circumstances), no adverse inference can be drawn by a jury (or the judge in a trial without a jury) from the fact that the accused did not give evidence. In this context, the principal issue before the Court was whether the decision in R v Miller [2004] 1 Qd R 548 ("Miller"), which permits a sentencing judge, at a hearing of disputed facts following a plea of guilty, to more readily accept evidence or draw inferences invited by the prosecution in the absence of contradictory evidence given by the offender, was wrongly decided. The appellant and her partner, Matthew Scown, were jointly charged before the Supreme Court of Queensland with the manslaughter of the appellant's son, Tyrell. Tyrell was aged four years and three months when he died as the result of injuries inflicted to his abdomen within 48 hours of his death. Mr Scown and the appellant were both alone with Tyrell for intervals during the 48 hours before his death. The fatal injuries were inflicted by one of them. Tyrell was very unwell in the two days preceding his death. Neither the appellant nor Mr Scown sought timely medical attention for Tyrell. Mr Scown pleaded guilty to manslaughter on the agreed basis that he was criminally negligent in failing to seek medical assistance for Tyrell. The appellant also pleaded guilty to manslaughter, however, her matter was set down for a hearing to determine the factual basis on which she was to be sentenced for the offence. The prosecution's primary case was that the appellant inflicted the blunt force trauma that caused Tyrell's death. The prosecution's alternative case was that the appellant failed to seek medical assistance for the child. The appellant denied the primary case but acknowledged liability on the alternative basis. The appellant did not give evidence at the sentencing hearing. At the outset of the sentencing judge's reasons, his Honour stated that he was permitted to more readily accept evidence or draw inferences invited by the prosecution in the absence of contradictory evidence from the offender, reflecting the principles enunciated in Miller. His Honour took into account the appellant's failure to give contradictory evidence before making findings adversely to her in relation to a number of contested facts, and concluding that she had inflicted the blunt force trauma causing Tyrell's death. The appellant was sentenced to nine years' imprisonment. The appellant applied for leave to appeal to the Court of Appeal against the sentence, contending that the sentencing judge erred in having regard to the fact that she had not given evidence and inviting the Court of Appeal to depart from Miller. The Court of Appeal held that the sentencing judge had not applied the principles in Miller and refused leave to appeal. By grant of special leave, the appellant appealed to the High Court. The High Court unanimously found that Miller was wrongly decided and that the sentencing judge had applied the principles stated in Miller to the determination of at least some of the contested facts. Given that a plea of guilty is a formal admission of each of the legal ingredients of the offence, and that the offence of manslaughter may be committed in a wide range of circumstances of varying implications as to culpability, the Court held that the appellant's plea of guilty to manslaughter did not relieve the prosecution of the obligation to prove the facts of its primary case without assistance from her. In the result, the appeal was allowed, the appellant's sentence quashed, and the matter remitted to the Supreme Court of Queensland for the appellant to be re-sentenced according to law.

HIGH COURT OF AUSTRALIA 10 March 2021 THE COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA v TRAVELEX LIMITED [2021] HCA 8 Today, the High Court unanimously upheld an appeal from the Full Court of the Federal Court of Australia concerning the operation of the Taxation Administration Act 1953 (Cth) ("TAA"), the Taxation (Interest on Overpayments and Early Payments) Act 1983 (Cth) ("TIOEP Act") and the A New Tax System (Goods and Services Tax) Act 1999 (Cth) ("GST Act") as they each stood at the relevant time. Under the TAA, the Commissioner can establish a Running Balance Account ("RBA") for a taxpayer. The Commissioner can allocate to an RBA amounts due to the Commonwealth under taxation laws and must allocate to an RBA certain amounts that the Commissioner must pay to the taxpayer under taxation laws. The resulting balance can be either an "RBA deficit debt", which the taxpayer must pay to the Commonwealth, or an "RBA surplus", which the Commissioner must pay to the taxpayer. The short question in the appeal was whether an RBA surplus can result from the Commissioner allocating to an RBA an amount that the Commissioner is not obliged to pay a taxpayer under a taxation law. The High Court held that it could not. The background to this proceeding is that an earlier decision of this Court, Travelex Ltd v Federal Commissioner of Taxation (2010) 241 CLR 510, established that certain supplies made by Travelex were GST free. Following this decision, and on Travelex's request, the Commissioner amended Travelex's GST return for the relevant tax period, proceeding on the assumption that it was then permissible to amend a GST return. As a result, Travelex's RBA was credited with $149,020. The present case commenced, in the Federal Court of Australia, as a dispute about the date from which a commonly assumed obligation to pay interest on the $149,020 under the TIOEP Act arose. At first instance, the Federal Court held that neither Travelex nor the Commissioner had statutory authority to amend Travelex's GST return and concluded that the Commissioner was obliged to pay interest.. The Commissioner appealed to the Full Court, on grounds including that the Federal Court had erred in concluding that the Commissioner was obliged to pay interest on the $149,020 to Travelex under the TIOEP Act at all. The Full Court unanimously agreed that Travelex and the Commissioner lacked statutory authority to amend the GST return but divided as to the consequence of that lack of authority. The majority held that the fact of the allocation to the RBA was enough to result in the amount having the legal status of an RBA surplus, with the consequence that the Commissioner had to pay Travelex the interest under the TIOEP Act. By grant of special leave, the Commissioner appealed to the High Court. The High Court held that the efficacy of an allocation to result in an RBA surplus under the TAA depends on the amount allocated answering the objective description of an amount due to the Commonwealth under a taxation law. Because the Commissioner and Travelex lacked statutory authority to amend the GST return, the balance recorded in the RBA did not meet that objective description. As a result, no interest is payable by the Commissioner to Travelex under the TIOEP Act.

HIGH COURT OF AUSTRALIA Public Information Officer 8 October, 2003 VISY PAPER PTY LIMITED, WILLIAM GUTHRIDGE AND STEVEN RICHARDS v AUSTRALIAN COMPETITION AND CONSUMER COMMISSION The High Court of Australia today dismissed an appeal by Visy Paper and two Visy executives against a decision of the Full Court of the Federal Court that the company attempted to enter into a contract with another waste paper collector in breach of the Trade Practices Act (TPA). Visy proposed to make an agreement with Sydney-based Northern Pacific Paper Pty Ltd under which NPP would not acquire waste paper from Visy’s suppliers or potential suppliers. Visy’s business including collecting and processing waste paper into recycled paper and cardboard. NPP collected waste paper which it sold to recycling companies including Visy. They competed in acquiring waste paper and also dealt with each other as supplier and customer. The principal issue in the appeal concerned the inter-relationship between certain provisions of the TPA. In the Federal Court, the ACCC sought declarations, restraining orders and fines against Visy, but Justice Ronald Sackville dismissed the proceedings, holding that section 45(6) would have applied to save the potential contract from the prohibition in section 45(2)(a)(i). The Full Court, by majority, allowed the ACCC’s appeal. Visy appealed to the High Court. The High Court, by a 5-1 majority, upheld the decision of the Full Court.

HIGH COURT OF AUSTRALIA 20 June 2018 [2018] HCA 26 Today the High Court, by majority, dismissed an appeal from the Full Court of the Supreme Court of South Australia, sitting as the Court of Criminal Appeal, holding that the trial judge's reasons for convicting the appellant were not inadequate. The appellant was charged under s 50(1) of the Criminal Law Consolidation Act 1935 (SA) with one count of persistent sexual exploitation of a child. At the relevant time, s 50(1) provided that it was an offence for an adult to commit "over a period of not less than 3 days ... more than 1 act of sexual exploitation of a particular child". The complainant, the appellant's nephew, alleged that the appellant committed various acts of sexual exploitation when the complainant was aged between five and 15 years. The appellant was tried by judge alone, convicted and sentenced to 10 years' imprisonment. The appellant had submitted that a number of alleged inconsistencies and implausibilities in the complainant's evidence meant that the complainant could not be "relied upon about the substantive allegations". The trial judge described the complainant as having given evidence "in a forthright and convincing manner", and said the complainant was "a straightforward man", was "a man endeavouring to tell the truth" and "was describing real events that happened to him". Although the trial judge accepted that the complainant's evidence about the timing of some events was inaccurate, he regarded the complainant as "a reliable witness as to the core allegations". The appellant appealed to the Court of Criminal Appeal, but the appeal was dismissed. By grant of special leave, the appellant appealed to the High Court. The appellant's argument reduced ultimately to whether the trial judge's reasons were inadequate because they failed to identify the two or more acts of sexual exploitation found to be proved beyond reasonable doubt, and the process of reasoning leading to the conclusion of the appellant's guilt of those acts. By majority, the Court dismissed the appeal. It held that the trial judge's ultimate conclusion was that the appellant sexually assaulted the complainant on numerous occasions over a period of some years. This conclusion meant that the elements of the offence had been proved. The majority held that the trial judge's findings that the complainant was reliable as to the "core allegations" and was describing "real events" were an acceptance that the complainant was truthful and reliable about all of the sexual acts that he had described. The majority concluded that the reasons were sufficient to identify, and to disclose the process of reasoning leading to the trial judge's finding of, two or more acts of sexual exploitation upon which the conviction was based.

HIGH COURT OF AUSTRALIA Public Information Officer 3 September, 2003 WHISPRUN PTY LIMITED v SONYA LEA DIXON The High Court of Australia today upheld the decision of a New South Wales Supreme Court trial by Justice Peter Newman who rejected Ms Dixon’s claim that she was suffering from chronic fatigue syndrome as a result of Q fever infection. Ms Dixon contracted Q fever in April 1994 while working at an Inverell, NSW, abattoir where her job was to suck foetal blood into a pipette from unborn calves’ hearts. The disease lasted up to 10 months. Her employer, Whisprun, conceded it had breached a duty of care owed to her but denied she also developed chronic fatigue syndrome, as up to 20 per cent of Q fever sufferers do. Between 1994 and the 2000 trial Ms Dixon saw numerous doctors complaining of headaches, aches and pains, nausea and fatigue. Justice Newman held that Ms Dixon lacked credibility after surveillance videos, photographs and her own testimony showed inconsistencies between what she said she could do and what she did do. There was evidence of brisk walking around Sydney, attending race meetings, riding horses, driving cars and horse floats, riding a jet ski and an inner tube towed by a speedboat, and drinking and dancing at a wedding. Ms Dixon claimed her mood swings caused the break-up of her relationship but there was evidence it had continued. Because the damages which Justice Newman would otherwise have awarded fell short of the statutory threshold that the NSW Workers Compensation Act then provided, he dismissed Ms Dixon’s action with costs. The NSW Court of Appeal unanimously held that Justice Newman had not given weight to medical reports about Ms Dixon’s condition and erred in concluding that it rested on subjective symptoms when there were objective symptoms such as weight loss, abdominal tenderness, pallor and depression, and impaired memory. The Court allowed Ms Dixon’s appeal and ordered a new trial. Whisprun appealed to the High Court. The High Court, by a 3-2 majority, allowed Whisprun’s appeal and restored the judgment of the trial judge. The majority held that, having regard to the way the trial was conducted, Justice Newman had not overlooked relevant evidence and there was no miscarriage of justice.

HIGH COURT OF AUSTRALIA 6 February 2008 Public Information Officer INTERNATIONAL AIR TRANSPORT ASSOCIATION v ANSETT AUSTRALIA HOLDINGS LIMITED (subject to deed of company arrangement), MARK KORDA AND MARK MENTHA INTERNATIONAL AIR TRANSPORT ASSOCIATION v ANSETT AUSTRALIA HOLDINGS LIMITED (subject to deed of company arrangement) The High Court of Australia today upheld IATA’s claims as to the effect of its Clearing House system in relation to the insolvency of Ansett Australia. Ansett collapsed on 12 September 2001 and administrators were appointed. It was then a member of the IATA Clearing House, which pays out airlines for services provided to other airlines in accordance with agreements between IATA and the airlines, including Ansett. International airlines regularly carry passengers and goods on behalf of other airlines. The Clearing House avoids the necessity for the airlines to make and receive numerous payments for such operations. Each month, airlines with a net credit balance receive a payment from the Clearing House while those with a net debit balance are obliged to pay funds into the Clearing House. The agreements between IATA and the airlines provided that settlement of amounts payable would be in accordance with IATA’s Regulations. IATA claimed to be a creditor of Ansett and alleged that Ansett had a net debit balance of $US4,370,989 outstanding as at December 2001. Ansett’s creditors resolved that Ansett execute a Deed of Company Arrangement on 27 March 2002, which bound Ansett, its officers, certain creditors and the administrators, Mr Korda and Mr Mentha. The Deed barred creditors bound by it from taking any action to seek to recover their claim other than pursuant to the Deed. Ansett and the administrators submitted that the Deed and the insolvency provisions of the Corporations Act operated upon Ansett’s property as it existed on 12 September 2001 so other airlines’ claims against Ansett at that date needed to be proved in accordance with the Deed rather than with the IATA Regulations. After execution of the deed in May 2002, the administrators demanded payment from 13 airlines, all Clearing House members, for alleged net indebtedness for the months from August 2001 to March 2002 of more than $US11 million. Further action by Ansett on these demands is on hold, pending the outcome of this litigation. Both IATA and Ansett brought proceedings in the Victorian Supreme Court. IATA challenged decisions of Mr Korda and Mr Mentha. Ansett sought declarations about the application of the IATA Regulations. Justice Philip Mandie heard the two actions together. He made declarations that, notwithstanding the appointment of administrators, the Clearing House arrangements continued to apply with contractual force between IATA, Ansett and the other Clearing House members, and that IATA was a creditor of Ansett. Ansett and the administrators successfully appealed to the Court of Appeal, which held, by majority, that IATA was not a creditor, the Clearing House arrangements did not apply, and Ansett was a debtor of carrying airlines and a creditor of issuing airlines. IATA appealed to the High Court. The High Court, by a 6-1 majority, allowed each appeal and upheld the declarations made by Justice Mandie. IATA Regulation 9 provided that no liability for payment and no right of action to recover payment accrued between Clearing House members and that members instead had liabilities to or rights of action against the Clearing House. The Court held that the effect of the IATA Regulations was that no liability for payment arose between airlines and that the only debt or credit which arose was that between IATA and member airlines in relation to the final balance each month. It followed that IATA was a creditor of Ansett to the exclusion of the member airlines. Ansett submitted that the Regulations operated to circumvent the Deed and the Corporations Act. The Court held that there was no contracting out of the operation of the Deed or the Act and no repugnancy between the Deed and the Clearing House arrangements. It also rejected Ansett’s submission that the IATA Regulations were ineffective or void by reason of public policy.

HIGH COURT OF AUSTRALIA 4 November 2015 MINISTER FOR IMMIGRATION AND BORDER PROTECTION v WZARH & ANOR [2015] HCA 40 Today the High Court unanimously dismissed an appeal from a decision of the Full Court of the Federal Court of Australia. The High Court held that the first respondent was denied procedural fairness in the conduct of an Independent Merits Review ("IMR") of his Refugee Status Assessment ("RSA"). The first respondent is a Sri Lankan national of Tamil ethnicity. He entered Australia by boat in 2010, arriving at Christmas Island. In January 2011, he requested an RSA to determine whether he was a person to whom Australia owed protection obligations under the Refugees Convention. A delegate of the appellant made an adverse assessment of the first respondent's claim to refugee status. In May 2011, the first respondent requested an IMR of the adverse RSA. In January 2012, he was interviewed by an independent merits reviewer. At the interview, the reviewer told the first respondent that she would undertake a re-hearing of his claims and make a recommendation to the appellant as to whether the first respondent was a refugee. The reviewer became unavailable to complete the IMR and a second reviewer assumed responsibility for its completion. The first respondent was not informed of the change in the identity of the reviewer. The second reviewer, the second respondent in this matter, did not conduct an interview with the first respondent, but based his decision on a consideration of certain materials, including the transcript and an audio recording of the first respondent's interview with the first reviewer. The second reviewer formed an adverse view of the first respondent's credibility, and did not accept that certain inconsistencies in the first respondent's account of his circumstances in Sri Lanka were due to memory lapse or confusion, or the effect of detention. The second reviewer recommended that the first respondent not be recognised as a person to whom Australia owed protection obligations. The first respondent applied to the Federal Circuit Court of Australia for judicial review of the decision of the second reviewer, arguing that the second reviewer's failure to conduct an interview meant that he was denied procedural fairness. The primary judge dismissed the application. The first respondent appealed successfully to the Full Court of the Federal Court, a majority of which found that the first respondent had a legitimate expectation that the person by whom he had been interviewed would be the person to complete the IMR, and which found that, notwithstanding the change in identity of the reviewer, he was unfairly denied an opportunity to make submissions as to how the IMR should proceed. By grant of special leave, the appellant appealed to the High Court. The High Court unanimously held that the first respondent was denied procedural fairness. The Court held that procedural fairness required that the first respondent be informed that the IMR process had changed so that he would have an opportunity to be heard on the question of how the IMR should proceed. The appeal was dismissed with costs.

HIGH COURT OF AUSTRALIA 14 August 2014 EDWARD POLLENTINE & ANOR v THE HONOURABLE JARROD PIETER BLEIJIE ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND & ORS [2014] HCA 30 Today the High Court unanimously upheld the validity of s 18 of the Criminal Law Amendment Act 1945 (Q) which allows a trial judge to make directions for the indefinite detention of a person found guilty of an offence of a sexual nature committed upon or in relation to a child. Section 18 of the Act provides that a judge presiding at the trial of a person found guilty of an offence of a sexual nature committed upon or in relation to a child may direct that two or more medical practitioners inquire as to the mental condition of the offender, and in particular whether the offender "is incapable of exercising proper control over the offender's sexual instincts". The section provides that if the medical practitioners report to the judge that the offender "is incapable of exercising proper control over the offender's sexual instincts", the judge may, either in addition to or in lieu of imposing any other sentence, declare that the offender is so incapable and direct that the offender be detained in an institution "during Her Majesty's pleasure". An offender the subject of a direction to detain is not to be released until the Governor in Council is satisfied on the further report of two medical practitioners that it "is expedient to release the offender". In 1984 Edward Pollentine and Errol George Radan each pleaded guilty in the District Court of Queensland of sexual offences committed against children. In each case, on the report of two medical practitioners, the District Court declared that Mr Pollentine and Mr Radan were incapable of exercising proper control over their sexual instincts and directed that they be detained in an institution during Her Majesty's pleasure. Mr Pollentine and Mr Radan brought proceedings in the original jurisdiction of the High Court challenging the validity of s 18 of the Act on the ground that it was repugnant to or incompatible with the institutional integrity of the District Court, thereby infringing Ch III of the Constitution. The High Court upheld the validity of the provision. The Court held that while a court may direct the detention but not the release of an offender under s 18, the court has discretion whether to direct detention. Furthermore, release of an offender is not subject to the unconfined discretion of the Executive and does not lack sufficient safeguards. Rather, a decision to release is dependent upon medical opinion about the risk of an offender reoffending, and the decision is subject to judicial review. The Court held that the provision is not repugnant to or incompatible with that institutional integrity of the State courts which bespeaks their constitutionally mandated position in the Australian legal system.

HIGH COURT OF AUSTRALIA Public Information Officer 8 February 2006 ANTOINE ANTOUN v THE QUEEN A trial judge had demonstrated apprehended bias during the course of the trial of the Antoun brothers, the High Court of Australia held today. The Antouns were jointly charged with demanding money with menaces from Michael Savvas, who owned a nightclub at Darling Harbour in Sydney. Antoine Antoun approached him in March 2001 to offer security services but Mr Savvas said he was happy with his current security firm. Mr Antoun made further visits in the next three months. He claimed the Antouns had an arrangement with the security firm under which Mr Savvas owed the pair $8,000. Mr Savvas denied owing them money and found the conversations increasingly threatening. In June 2001 a group of youths visited the nightclub and destroyed furniture. The police were called and they intercepted phone conversations that were capable of implicating both appellants. Antoine Antoun called Mr Savvas to ask whether he had received the warning. Two days later, Joseph Antoun, accompanied by a group of men, visited Mr Savvas demanding payment. In the coming days Mr Savvas, wearing a concealed listening device, met with both Antouns who made further threats and demands for more money. In the NSW District Court, Judge Terence Christie held that the evidence revealed that the brothers were operating a protection racket. The Antouns claimed that they had an honest claim of right made in good faith and believed they had a legal entitlement to the money. The trial was conducted by Judge Christie sitting without a jury. During the trial, counsel flagged that at the end of the Crown case they would apply for a ruling that the Antouns had no case to answer. Judge Christie said such an application would be refused. Counsel asked the judge to disqualify himself but he refused and the next day again stated that an application for no case to answer could not succeed. He rejected a second application that he disqualify himself. Counsel then made their no case submissions in writing. Judge Christie adjourned to consider the submissions then rejected the application. After Antoine Antoun gave evidence Judge Christie said he proposed to revoke bail for both brothers. Counsel again asked him to disqualify himself but he refused. Both brothers were convicted. Joseph Antoun was sentenced to six years’ imprisonment with a non- parole period of four years and six months. Antoine was sentenced to three years and six months’ imprisonment with a non-parole period of two years and six months. They appealed unsuccessfully to the Court of Criminal Appeal on the ground of apprehended bias on the part of Judge Christie. They then appealed to the High Court. The Court unanimously allowed the appeal, quashed the Antouns’ convictions and ordered a new trial. It held that although the no case to answer submission, when argued, was without substance, the manner in which Judge Christie dealt with it was inappropriate and gave rise to an appearance of lack of impartiality. The Court held that even though the case against the Antouns appeared strong, they were still entitled to a fair hearing. A judge must hear submissions from the parties with an open mind and avoid any appearance of prejudgment. The Court held that Judge Christie’s conduct did present an appearance of prejudgment.

HIGH COURT OF AUSTRALIA Public Information Officer 7 December 2006 RAYMOND DOUGLAS TULLY v THE QUEEN A two-year delay between alleged sexual offences by Mr Tully against a young girl and the girl’s first complaint did not lead to a miscarriage of justice, the High Court of Australia held today. The girl told her mother in April 2002 that Mr Tully had sexually abused her while he was the mother’s partner between January 1999 and May 2000, when the girl was aged between eight and 10. She said he had threatened her with guns and knives if she told. For several months after the mother left Mr Tully he telephoned her with further threats. He owned two handguns, two revolvers and two rifles and slept with a handgun under his pillow. The girl only told her mother after the family left central Queensland and moved to New South Wales. She was able to describe a mole on Mr Tully’s penis and tattoos on his buttocks and she kept a diary of the abuse. Mr Tully, 52, of Gladstone, was tried in the Queensland District Court in 2004 with two counts of rape and four each of indecently dealing with a child under 16 and of permitting himself to be indecently dealt with by a child under 16. As well as evidence about the 10 charges, the girl gave evidence about other sexual incidents, including some elicited during cross-examination. The number of alleged rapes varied between five or six and 30. No objection was raised to this evidence. The jury was unable to reach a verdict on the rape charges and one count of permitting himself to be indecently dealt with. Mr Tully was jailed for three years. He appealed unsuccessfully to the Court of Appeal. He claimed Judge Deborah Richards gave inadequate directions about the uncharged acts and that she should have given a warning in accordance with the 1989 High Court decision of Longman v The Queen. This was that it would be dangerous to convict Mr Tully on the girl’s evidence alone, because of the disadvantage to his defence caused by the delay, unless it was carefully scrutinised. (In Longman the delay was more than 20 years.) Mr Tully alleged that the girl’s age, the sexual nature of the complaints, the delay between the offences and complaint, and inconsistencies in her evidence required a Longman warning. He appealed to the High Court. The Court, by a 3-2 majority, dismissed the appeal. The majority held that Mr Tully was not disadvantaged by the two-year delay and the Court of Appeal was not wrong to conclude that a Longman warning was not necessary. Evidence about the mole and tattoos, the girl’s explanation for her delay in complaining, and Mr Tully’s failure to seek a Longman warning meant Judge Richards was not bound to give such a warning. In relation to uncharged acts, the majority held that while such evidence is often prejudicial to an accused person, whether characterised as context or background, or as tendency, propensity, relationship or similar-fact evidence, Judge Richards’s directions to the jury contained no error leading to a miscarriage of justice due to the way in which the case was conducted. Mr Tully did not object to admission of the evidence, sought to make forensic capital out of its contradictions and possibly excessive claims such as his raping the girl 30 times, and sought no redirection from Judge Richards. However, the Court unanimously held that this was not the appropriate case to resolve questions regarding evidence of uncharged acts.

HIGH COURT OF AUSTRALIA Manager, Public Information 23 September 2009 MINISTER FOR IMMIGRATION AND CITIZENSHIP v SZIZO & ORS [2009] HCA 37 Failure by the Refugee Review Tribunal (RRT) to comply with a notification requirement under the Migration Act 1958 (Cth) does not necessarily result in an unfair hearing or a denial of natural justice, the High Court held today. Section 441G of the Migration Act relevantly provides that, if a person applies to the RRT for review of a decision and authorises another person (the authorised recipient) to do things on his or her behalf, including receive documents from the RRT, then the RRT must give the authorised recipient, instead of the applicant, any documents it would otherwise have given to the applicant (including a written invitation to the applicant to attend the RRT hearing of his or her application). SZIZO and his family arrived in Australia from Lebanon in March 2001. They applied for protection visas on 14 November 2005. The Minister’s delegate refused the applications and SZIZO and his family applied to the RRT to review the delegate’s decision. On the application form SZIZO nominated his eldest daughter, SZIZQ, as his authorised recipient. SZIZQ’s address was the address where all the visa applicants resided, including SZIZO (the family residence). The RRT sent a notice of a hearing to be held on 23 March 2006 and a response form, addressed to SZIZO at the family residence. SZIZO neither speaks nor reads English. His daughter SZIZQ speaks and reads Arabic, French and English. The response form was completed in English and signed by SZIZO. SZIZO and all his family, including SZIZQ, attended the RRT hearing on 23 March 2006, as did a number of witnesses who gave evidence supporting the family’s application. SZIZO and SZIZQ provided further written submissions and supporting documents to the RRT following the hearing. On 6 June 2006 the RRT affirmed the delegate’s original decisions. The Federal Magistrates Court dismissed SZIZO’s appeal. The Full Court of the Federal Court however found that, in failing to give notice of the hearing to SZIZO’s authorised recipient, the RRT had failed to comply with the notification method mandated by section 441G of the Migration Act and had thereby committed a jurisdictional error. The Full Court allowed SZIZO’s appeal. The High Court granted special leave to the Minister to appeal the Full Court’s decision. The High Court considered that the notification regime set up in Division 7A of Part 7 of the Migration Act, including section 441G, is designed to ensure that an applicant in the RRT has adequate time to prepare his or her case and is given effective notice of a hearing. The regime provides a manner for ensuring an applicant is given effective notice of a hearing, but the manner of so doing is not an end in itself. In the circumstances of this case, where SZIZO and his family were aware of the hearing date, were able to present witnesses in support of their case and were able to provide written submissions after the oral hearing had concluded, the RRT’s failure to notify SZIZO’s authorised recipient of the hearing date did not result in a denial of natural justice to SZIZO or an unfair hearing, a fact acknowledged by SZIZO’s legal representative. In other circumstances the RRT’s failure to give a hearing notice to an authorised recipient may result in an applicant not receiving a fair hearing but this was not such a case. The Court allowed the Minister’s appeal and ordered that SZIZO’s appeal to the Full Court of the Federal Court be dismissed.

HIGH COURT OF AUSTRALIA 1 December 2010 AID/WATCH INCORPORATED v COMMISSIONER OF TAXATION [2010] HCA 42 Today the High Court held that an organisation involved in promoting and campaigning for effective foreign aid policies through the generation of public debate was a charitable institution for the purpose of tax exemptions and concessions. Aid/Watch Incorporated is an organisation concerned with promoting the effectiveness of Australian and multinational aid provided in foreign countries by means which include investment programs, projects and policies. In October 2006, the Commissioner of Taxation revoked Aid/Watch's endorsements as a charitable institution for the purposes of income tax, fringe benefits tax and GST. In 2008, the Administrative Appeals Tribunal set aside the Commissioner's decision and determined that Aid/Watch was a charitable institution notwithstanding that it sought to influence government policy through its activities. The Full Court of the Federal Court allowed an appeal by the Commissioner, holding that because Aid/Watch's activities necessarily involved a criticism of government activities and policies, its main purpose was a political purpose and it could not therefore be categorised as a charitable institution. The High Court by majority allowed Aid/Watch's appeal from the Full Court's decision, and restored the decision of the AAT. The Court referred to authorities establishing that free communication on matters of government and politics is an indispensable incident of the system of representative and responsible government established by the Constitution. The Court stated that the generation by lawful means of public debate concerning the efficiency of foreign aid directed to the relief of poverty is itself a purpose beneficial to the community. It held that in Australia there is no broad general rule excluding "political objects" from charitable purposes, and that because Aid/Watch's activities contribute to the public welfare, it was entitled to be regarded as a charitable institution.

HIGH COURT OF AUSTRALIA 24 April 2020 COMMONWEALTH OF AUSTRALIA v HELICOPTER RESOURCES PTY LTD & ORS [2020] HCA 16 Today the High Court unanimously allowed an appeal from a judgment of the Full Court of the Federal Court of Australia concerning the compulsory examination of an employee in a coronial inquest while parallel criminal proceedings against his employer were pending. The appellant ("the Commonwealth") engaged the first respondent ("Helicopter Resources") to provide helicopter services in the Australian Antarctic Territory. On 12 January 2016, Captain Wood, a pilot employed by Helicopter Resources to provide some of those services, died from hypothermia after falling into a crevasse in the West Ice Shelf. An inquest into the manner and cause of his death was commenced on 19 September 2017 by the Chief Coroner of the Australian Capital Territory pursuant to the Coroners Act 1997 (ACT), which applies in the Australian Antarctic Territory. On 20 December 2017, the Commonwealth and Helicopter Resources were charged as co-accused with summary offences against the Work Health and Safety Act 2011 (Cth), which extends to the Australian Antarctic Territory. Two of the charges alleged breaches in relation to Captain Wood and another employee, and one arose directly out of the circumstances giving rise to Captain Wood's death. At the Commonwealth's request, the Coroner issued a subpoena pursuant to s 43 of the Coroners Act for Helicopter Resources' Chief Pilot, Captain Lomas, to attend to give evidence at the inquest. An application by Helicopter Resources to the Federal Court for judicial review of that decision was dismissed at first instance. Allowing an appeal, the Full Court held that compelling Captain Lomas to give evidence in the coronial inquest would infringe the rule that an accused cannot be required to assist the Crown in proving its case, because s 87(1)(b) of the Evidence Act 2011 (ACT) would make his evidence before the inquest admissible in the criminal proceedings as evidence of an admission by Helicopter Resources itself. Section 87(1)(b) relevantly entails that a representation by an employee of a party relating to a matter within the scope of the employee's employment may be taken as an admission by the party. By grant of special leave, the Commonwealth appealed to the High Court. Allowing the appeal, the High Court unanimously held that the fact that an employee can be compelled to give evidence that may be treated as an admission against his or her employer does not mean that the employer is compelled in effect to give evidence or otherwise to assist the Crown in proof of its case. By majority, the High Court refused to extend the time for Helicopter Resources to file a notice of contention alleging that compelling Captain Lomas to give evidence at the coronial inquest would constitute a contempt of court by creating a real risk of interference with justice according to law, on the basis that Helicopter Resources had been acquitted of the offences by the time of the hearing of the appeal and thus would suffer no prejudice in any event.

HIGH COURT OF AUSTRALIA Public Information Officer 28 May, 2003 DAVID HAROLD EASTMAN v DIRECTOR OF PUBLIC PROSECUTIONS OF THE AUSTRALIAN CAPITAL TERRITORY, IAN PIKE, ATTORNEY-GENERAL (ACT) AND THE The High Court of Australia today unanimously allowed an appeal by Mr Eastman against a decision of the Federal Court blocking an inquiry into his fitness to plead to a charge of murder. Mr Eastman was convicted in 1995 of the 1989 murder of Australian Federal Police Assistant Commissioner Colin Winchester. During the ACT Supreme Court trial lasting almost six months, Mr Eastman was sometimes without legal representation and exhibited what the Full Court of the Federal Court described as erratic behaviour. He appealed unsuccessfully against his conviction as far as the High Court. Mr Eastman then petitioned the then ACT Chief Justice Jeffrey Miles for a judicial inquiry under section 475 of the ACT’s Crimes Act. In 2001, Chief Justice Miles appointed Mr Pike, a former New South Wales chief magistrate, to head an inquiry into Mr Eastman’s fitness to plead. Just before Mr Pike’s inquiry began taking evidence in 2002, the DPP began proceedings seeking a declaration that the inquiry was not authorised by s 475 and an injunction restraining Mr Pike from conducting it. Both actions were dismissed, but the Full Court of the Federal Court, by majority, allowed the DPP's appeal. Mr Eastman then appealed to the High Court. The question in the appeal was the construction of s 475, particularly the meaning of guilt. The DPP argued it referred only to the alleged wrongdoing that constituted the offence, not the process by which guilt was established. Mr Eastman and the ACT Attorney-General argued guilt meant guilt established by conviction, so that a doubt or question as to guilt could include matters affecting the process by which guilt was established, in particular fitness to plead. The High Court held that the latter meaning was what was intended by s 475 and that Chief Justice Miles’s decision to direct a s 475 inquiry was valid.

HIGH COURT OF AUSTRALIA Public Information Officer 30 August 2006 CAMPBELLS CASH AND CARRY PTY LIMITED v FOSTIF PTY LIMITED AUSTRALIAN LIQUOR MARKETERS PTY LIMITED v DALE LESLIE BERNEY IGA DISTRIBUTION (VIC) PTY LIMITED v WHELAN & HAWKING PTY LIMITED QUEENSLAND INDEPENDENT WHOLESALERS PTY LTD v SYDNEY RICHARD VEITCH IGA DISTRIBUTION (SA) PTY LIMITED v PAUL ASHLEY NEINDORF AND JO-ANNE COMPOSITE BUYERS PTY LIMITED v BARRY GEORGE WILLIAMSON AND LYN IGA DISTRUTION PTY LIMITED v JOANNE MARGERET GOW, IAN RODGER GOW, PHILLIPA COMINO, LYNETTE MAREE GREEN, PETER LAURENCE GREEN Action to recover tobacco licence fees brought in the name of seven tobacco retailers could not continue as representative proceedings in the New South Wales Supreme Court because it did not comply with Supreme Court Rules, the High Court of Australia held today. Campbells Cash and Carry and the other tobacco wholesalers sued by the seven retailers supplied 21,000 supermarkets and other retailers and paid licence fees pursuant to legislation in each State and the ACT. In 1997, the High Court held in Ha v New South Wales that the licence fees were excise duties within section 90 of the Constitution and hence invalid. (Only the Commonwealth can impose excise.) In 2001, in Roxborough v Rothmans of Pall Mall Australia Ltd, the Court held that, provided certain conditions were fulfilled, retailers who had had the licence fee passed on to them could recover the amount from their wholesaler even if they had passed the fees on to customers. Amounts that could be claimed were often fairly small but potentially totalled many millions of dollars. Of the retailers involved in the case, the amounts claimed ranged from $657.57 by the Murrays to $22,939.58 by the Gow group of plaintiffs. In 2002, litigation funder Firmstones Pty Ltd encouraged retailers to claim a refund of tobacco licence fees which they had paid but which wholesalers had not passed on to taxing authorities following the Ha decision. Firmstones sought authority to act on the retailers’ behalf to recover the money. It would take one- third of the refunds. Firmstones arranged for summonses instituting the seven proceedings to be issued in June 2003. Each was commenced as representative proceedings under the Supreme Court Rules but the summonses did not list retailers to be represented by the named plaintiffs, instead providing for opt-in procedures for other affected retailers and seeking to discover wholesalers’ lists of retailers. The wholesalers sought orders that the proceedings be dismissed or stayed as an abuse or process or that they be struck out as representative proceedings. Firmstones had already signed up 2,100 retailers to be added in. Justice Clifford Einstein ordered that the proceedings not continue as representative proceedings, and dismissed applications for discovery of the names of other retailers and for joinder of additional plaintiffs. The Court of Appeal allowed the appeals from the seven retailers and ordered that the representative proceedings continue. The wholesalers appealed to the High Court, arguing that the proceedings were not covered by the Supreme Court Rules or alternatively that they constituted an abuse of process. The Court, by a 5-2 majority, allowed the appeals.

HIGH COURT OF AUSTRALIA 7 April 2011 DANELLE EVELYN MILLER v MAURIN ASHTON MILLER [2011] HCA 9 Today the High Court allowed an appeal against a decision of the Court of Appeal of the Supreme Court of Western Australia regarding the duty of care between joint participants in an illegal enterprise: the use of a stolen car. The events giving rise to the case took place early one morning in 1998. The plaintiff, then aged 16, had been drinking and wandering in the streets in a Perth suburb with her sister and cousins. She had no money to get home and the last train had left, so she decided to steal a car. She managed to start a car in a nightclub car park. An older cousin, the defendant, then aged 27, offered to drive the plaintiff and her cousin and sister home. He got into the driver's seat and several of his friends also got into the car, totalling nine passengers. Initially the defendant drove safely, but then sped up and began to drive dangerously. The plaintiff twice asked to be let out; the defendant refused her requests. The car struck a pole, killing one passenger and injuring the plaintiff, leaving her a tetraplegic. In jointly using the stolen car, the plaintiff and the defendant together contravened s 371A of The Criminal Code (WA) ("the Code"), which provides that a person who uses a motor vehicle without the consent of the owner is said to steal that vehicle. Section 8 of the Code provides that two persons who jointly prosecute a common unlawful purpose will both be guilty of any offence that is a probable consequence of that prosecution, unless one of those persons withdraws from the prosecution by words or conduct accompanied by reasonable steps to prevent the commission of the offence. Referring to s 371A and relevant case law, the Court of Appeal of the Supreme Court of Western Australia held that the defendant owed the plaintiff no duty of care and that her action should therefore fail. The HIGH COURT OF AUSTRALIA today held that whether the prosecution of a joint illegal enterprise negates the existence of a duty of care between participants depends on the statutory purposes of the section creating the offence. The Court held that the statutory purposes of s 371A of the Code are not consistent with a finding of duty of care between those who joined in committing the crime. The purposes of s 371A encompass not only the protection of property rights, but also road safety and the prevention of dangerous driving. In the circumstances of the case, however, a majority of the Court held that the plaintiff withdrew from the joint illegal enterprise when she asked to be let out of the car, and that there were no reasonable steps then available to her to prevent the further commission of the offence. Accordingly, she was owed a duty of care by the defendant when the car struck the pole, and could recover damages for her injuries. The Court allowed the appeal, and set aside the order of the Court of Appeal, ordering that the appeal to that Court be dismissed.

HIGH COURT OF AUSTRALIA 6 November 2013 JOHN DALY v ALEXANDER THIERING & ORS [2013] HCA 45 Today the High Court unanimously allowed an appeal against a decision of the Court of Appeal of the Supreme Court of New South Wales, which had held that s 130A of the Motor Accidents Compensation Act 1999 (NSW) ("the MAC Act") did not preclude an award of damages in respect of the treatment and care needs of a participant in the Lifetime Care and Support Scheme ("the Scheme") where those needs had been met by services rendered gratuitously. On 28 October 2007, the first respondent suffered catastrophic and permanent injuries in a motor vehicle accident. Since that time, he has been a participant in the Scheme established under the Motor Accidents (Lifetime Care and Support) Act 2006 (NSW) and administered by the Lifetime Care and Support Authority of New South Wales ("the Authority"). Pursuant to arrangements between the Authority and the second respondent (the first respondent's mother), a significant part of the first respondent's domestic care provided for under the Scheme was undertaken gratuitously by the second respondent. The first respondent sued the appellant (the driver of the motor vehicle allegedly at fault) for damages in negligence, claiming, among other things, the value of the services provided by the second respondent. In reliance upon s 130A of the MAC Act, the appellant denied liability for that part of the claim on the basis that it was for economic loss in respect of the first respondent's treatment and care needs which were already provided for under the Scheme. The Court of Appeal held that, to the extent that the first respondent's treatment and care needs were not paid for, they were not provided for under the Scheme, and might therefore be regarded as economic loss compensable by an award of damages. The High Court held that s 130A of the MAC Act precluded participants in the Scheme from recovering damages for economic loss in respect of their treatment and care needs which were provided for under the Scheme, even though they were rendered gratuitously.

HIGH COURT OF AUSTRALIA 11 May 2022 [2022] HCA 18 Today, the High Court unanimously allowed an appeal from the Full Court of the Family Court of Australia. The appeal concerned the meaning of "breakdown of a de facto relationship" for the purposes of making property settlement orders pursuant to s 90SM of the Family Law Act 1975 (Cth) and whether there had been a breakdown in the parties' de facto relationship. The appellant and the respondent had been in a de facto relationship from late 2005 or early 2006. They had resided in the appellant's home. A fundamental premise of their relationship was that they agreed to keep their assets strictly separate. The appellant suffered a rapid cognitive decline in 2015 and was diagnosed with dementia in 2017. On account of family disputes as to the appellant's care, the NSW Civil and Administrative Tribunal ("NCAT") appointed the NSW Trustee and Guardian ("the Trustee") to make health and welfare decisions on her behalf and to manage her financial affairs. The Trustee decided to place the appellant permanently into an aged care facility and resolved to sell the appellant's home to fund those costs. Faced with the respondent's opposition to the proposal to sell the home, the Trustee sought property settlement orders from the Federal Circuit Court of Australia pursuant to s 90SM of the Act. That Court's jurisdiction to make the property settlement orders depended on the parties' de facto relationship having broken down. The primary judge imputed to the respondent an intention to separate from the appellant, meaning the de facto relationship had broken down. That finding was reversed by the Full Court. The High Court held that the parties' de facto relationship, within the meaning of s 4AA of the Act, had broken down for the purposes of s 90SM. In that context, the term "breakdown" was taken to mean "end" or "breakup". Having regard to all the circumstances, including those set out in s 4AA(2), the Court was satisfied the parties no longer had a relationship as a couple living together – that is, sharing life as a couple – on a genuine domestic basis within the meaning of s 4AA(1). That conclusion did not follow from the end of the parties' cohabitation, nor from the appellant's mental incapacity. Consistently with the reality that human relationships are infinitely mutable, a court is entitled to have regard to such matters as may seem appropriate. Accordingly, the relevant matters included: the fact that the parties occupied separate rooms in the appellant's home by 2017; the respondent acting as if he were no longer bound by the essential premise of the relationship that the parties keep their assets separate, including by securing on behalf of the appellant a new enduring power of attorney and revised will that markedly favoured his financial interests, obtained while the appellant was labouring under an incapacity; the respondent's refusal to permit the appellant's home to be sold; the respondent's parsimonious attempts to make financial contributions to support the appellant's care; and the fact that the respondent's conduct justified the intervention of NCAT and the appointment of the Trustee. Those circumstances, in aggregate, demonstrated the respondent's persistent refusal to make the necessary or desirable adjustments that might have evidenced an ongoing relationship, therefore marking the end of the parties' de facto relationship.