High Court Bulletin
Produced by the Legal Research Officer, 
High Court of Australia Library
[2013] HCAB 07 (18 September 2013)

A record of recent High Court of Australia cases: decided, reserved for judgment, awaiting hearing in the Court’s original jurisdiction, granted special leave to appeal, refused special leave to appeal and not proceeding or vacated

1: Cases Handed Down
2: Cases Reserved
3: Original Jurisdiction
4: Special Leave Granted
5: Cases Not Proceeding or Vacated
6: Special Leave Refused

Summary of New Entries

1: Cases Handed Down
Case	Title	
There have been no cases handed down since [2013] HCAB 06 (22 August 2013).	

2: Cases Reserved
Case	Title	
Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship and Ors	Constitutional Law	
Magaming v The Queen	Constitutional Law	

3: Original Jurisdiction
Case	Title	
There are no new matters ready for hearing in the original jurisdiction of the High Court.	

4: Special Leave Granted
Case	Title	
The Ship Go Star v Daebo International Shipping Co Ltd	Admiralty Law	
Honourable Brendan O’Connor, Commonwealth Minister for Home Affairs and Justice v Adamas & Anor	Administrative Law	
Woodside Energy Ltd & Ors v Electricity Generation Corporation t/as Verve Energy; Electricity Generation Corporation t/as Verve Energy v Woodside Energy Ltd & Ors	Contract Law	
Smith v The State of Western Australia	Criminal Law	
Taylor v The Owners – Strata Plan No 11564 & Ors	Statutes 	

1: Cases Handed Down

The following cases were handed down by the High Court of Australia during the August 2013 sittings.

2: Cases Reserved

The following cases have been reserved or part heard by the High Court of Australia.

Administrative Law

See also Statutes: Wingfoot Australia Partners Pty Ltd & Anor v Kocak & Ors

See also Constitutional Law: Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship and Ors 

Citizenship and Migration 

See also Constitutional Law: Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship and Ors 

Civil Procedure

Clark v Macourt 
S9/2013: [2013] HCATrans 174.

Date heard: 13 August 2013. 

Coram: Hayne, Crennan, Bell, Gageler and Keane JJ. 

Catchwords: 

Civil Procedure – Damages – Assisted reproductive technology practice – Damages for breach of various warranties contained in the Deed relating to donor sperm – Proper categorisation of the contract – Whether the trial judge erred in not concluding that the respondent had fully mitigated her loss – Whether the respondent avoided the loss she otherwise would have sustained by having to replace the non-compliant sperm by charging her patients for the cost of replacement sperm.

Civil Procedure – Costs – Whether the respondent would have been entitled to indemnity costs if the award of damages was upheld in her favour.

Appealed from NSW (CA): [2011] NSWSC 1276; [2012] NSWCA 367.

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Constitutional Law

See also Criminal Law: Lee & Anor v New South Wales Crime Commission

Magaming v The Queen
S58/2013: [2013] HCATrans 200.

Date heard: 3 September 2013. 

Coram: French CJ, Hayne, Crennan, Kiefel, Bell, Gageler and Keane JJ. 

Catchwords: 

Constitutional law – Criminal law – Mandatory minimum sentences – Appellant convicted of people smuggling contrary to s 233C of the Migration Act 1958 (Cth) (“the Act”) – s 236B of the Act prescribed a mandatory minimum penalty of 5 years imprisonment – Whether s 236B of the Act requires the exercise of the judicial power of the Commonwealth in a manner inconsistent with its nature – Whether s 236B(3) of the Act when read with ss 233A(1) and 233C(1) authorises the executive government to direct the outcome of the exercise of the court’s federal jurisdiction to sentence offenders – Whether s 236B(3) is therefore invalid as contrary to Ch III of the Constitution. 

Appealed from NSWSC (CCA): [2013] NSWCCA 23.

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Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship and Ors 
M76/2013: [2013] HCATrans 201.

Date heard: 4 September 2013. 

Coram: French CJ, Hayne, Crennan, Kiefel, Bell, Gageler and Keane JJ.

Catchwords: 

Constitutional law – Chapter III – Migration Act 1958 (Cth) (“the Act”) – Plaintiff found to be a refugee but refused protection visa and subsequently detained at Sydney Immigration Residential Housing – Whether detention is authorised by ss 189 and 196 of the Act – Whether ss 189 and 196 are beyond the legislative power of the Commonwealth as inconsistent with Ch III of the Constitution.

Citizenship and migration – Migration – Refugees – Protection visas – Plaintiff found to be a refugee but refused protection visa due to adverse security assessment by Australian Security Intelligence Organisation (“ASIO”) – Department relied on public interest criterion 4002 which requires that applicant not be assessed by ASIO to be a risk to security – In Plaintiff M47 v Director-General of Security public interest criterion 4002 found to be beyond power conferred by s 31(3) of the Migration Act 1958 (Cth) – Whether the Secretary made an error of law by relying on Public Interest Criterion 4002.

Administrative law – Error of law – Minister may only grant protection visa under s 46A(2) of the Act – Officer of the Commonwealth failed to refer Plaintiff’s case to the Minister for determination under s 46A(2) because of adverse security assessment – Whether failure to do so constitutes an error of law. 

This special case was filed in the original jurisdiction of the High Court of Australia.

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Corporations Law

Willmott Growers Group Inc v Willmott Forests Ltd (Receivers and Managers Appointed) (In Liquidation) & Ors 
M99/2012: [2013] HCATrans 171.

Date heard: 9 August 2013. 

Coram: French CJ, Hayne, Kiefel, Gageler and Keane JJ.

Catchwords: 

Corporations law – Liquidation – Liquidator of lessor disclaims lease agreement under s 568(1) of Corporations Act 2001 (Cth) – Whether disclaimer extinguishes leasehold interest – Whether leasehold interest survives termination of the lease agreement.

Appealed from VSC (CA): [2012] VSC 29; [2012] VSCA 202.

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Criminal Law

Lee & Anor v New South Wales Crime Commission 
S292/2012: [2013] HCATrans 93.

Date heard: 1 May 2013. 

Coram: French CJ, Hayne, Crennan, Kiefel, Bell, Gageler and Keane JJ.

Catchwords: 

Criminal law – Recovery of proceeds of crime – Examination orders – Whether examination would interfere with the administration of justice in criminal proceedings – Whether examination order may be made where criminal charges pending against examinee – Whether procedural protections available to prevent abuse of power – Criminal Assets Recovery Act 1990 (NSW), ss 13A, 31D, 63. 

Constitutional law – Ch III of the Constitution – Separation of judicial powers – Functions incompatible with institutional integrity of State Supreme Court – Validity of s 31D of Criminal Assets Recovery Act 1990 (NSW) – Whether requiring a State Supreme Court to make an examination order without regard to the capacity of that order to prejudice the fair trial of the person is incompatible with Ch III. 

Statutes – Criminal Assets Recovery Act 1990 (NSW) ss 13A, 31D, 63 – Examination orders – Whether power to order examination limited by general law principles relating to a fair trial.

Appealed from NSW (CA): [2012] NSWCA 276.

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Bugmy v The Queen 
S16/2013: [2013] HCATrans 167.

Date heard: 6 August 2013. 

Coram: French CJ, Hayne, Crennan, Kiefel, Bell, Gageler and Keane JJ. 

Catchwords: 

Criminal law – Sentencing – Fernando considerations – Whether Court of Appeal erred by failing to consider question of manifest inadequacy and exercise of residual discretion when increasing sentence – Whether Court of Appeal erred in holding that weight to be given to Fernando considerations is diminished over passage of time – Whether mental illness relevant in sentencing – Whether discretion of sentencing judge miscarried by virtue of assessment of objective seriousness of offence.
	
Appealed from NSW CCA: [2012] NSWCCA 223.

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Munda v The State of Western Australia
P28/2012: [2013] HCATrans 168.

Date heard: 6 August 2013. 

Coram: French CJ, Hayne, Crennan, Kiefel, Bell, Gageler and Keane JJ.

Catchwords: 

Criminal law – Sentencing – Residual discretion – Principles governing operation of residual discretion – Appellant found guilty of unlawful killing of de facto wife – Sentenced to 5 years and 3 months imprisonment – Court of Appeal allowed Crown appeal and increased sentence to 7 years and 9 months – Court of Appeal accepted that it had residual discretion to disallow prosecution appeal against sentence but chose not to exercise it – Whether Court of Appeal erred in holding that residual discretion should only be exercised where parity considerations arise. 

Criminal law – Sentencing – Fernando considerations – Whether Court of Appeal erred in application of Fernando principles. 

Criminal law – Sentencing – Manifest inadequacy – Whether prosecution appeal contending manifest inadequacy is a proper occasion for intermediate court to review appropriateness of sentencing range. 

Appealed from WASC (CA): [2012] WASCA 164.

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Diehm & Anor v Director of Public Prosecutions Nauru 
B15/2013: [2013] HCATrans 170.

Date heard: 8 August 2013. 

Coram: French CJ, Kiefel and Bell JJ.

Catchwords:

Criminal law – Rape – Prosecutor’s duty of fairness – Failure to call material witnesses – Whether failure by prosecution to call material witnesses amounts to an unfair trial and a miscarriage of justice – Whether Chief Justice had a statutory duty to call material witnesses on own motion – Whether failure to do so amounts to a miscarriage of justice – Where Chief Justice referred to material not in evidence – Whether reference to material not in evidence amounted to a denial of procedural fairness – Whether in all of the circumstances a reasonable tribunal of fact could have concluded beyond reasonable doubt that the Appellants were guilty of rape.

Appealed from Supreme Court of Nauru: [2011] NRSC 24.

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Industrial Law

Comcare v PVYW
S8/2013: [2013] HCATrans 169.

Date heard: 7 August 2013. 

Coram: French CJ, Hayne, Crennan, Kiefel, Bell and Gageler JJ.

Catchwords: 

Industrial law – Workers' compensation – Interpretation of the principle in Hatzimanolis v ANI Corporation Limited – Employee injured while having sex during overnight stay at motel room booked by employer – Injuries sustained during an interval or interlude within an overall period of work – Whether injuries arose "in the course of" her employment – Whether sufficient connection between the suffering of the injury and the employment – Whether sufficient that injuries sustained at a place employer induced or encouraged employee to be – Whether activity employee undertaking and other factors surrounding the injury relevant to the inquiry.

Appealed from FCA (FC): (2012) 291 ALR 302; [2012] FCA 395; [2012] FCAFC 181.

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Intellectual Property

Apotex Pty Ltd v Sanofi-Aventis Australia Pty Ltd & Ors
S1/2013: [2013] HCATrans 123; [2013] HCATrans 124.  

Date heard: 28 & 29 May 2013.

Coram: French CJ, Hayne, Crennan, Kiefel and Gageler JJ.

Catchwords:

Intellectual Property – Patents – Patent claimed administration of pharmaceutical drug as method of preventing or treating particular condition – Administration of drug for different purpose than that specified in patent had effect of preventing or treating condition referred to in patent – Whether methods of treating human body patentable inventions within the meaning of s 18(1)(a) of the Patents Act 1900 (Cth) – Whether second or subsequent medical uses of previously known products patentable inventions. 

Intellectual Property – Patents – Infringement – Patent claimed use of compound for treatment of a specified disease – Whether a person who supplies the compound and indicates its use for treatment of a different disease infringes the patent under s 177(1) of the Patents Act 1990 (Cth).  

Appealed from FCA (FC): (2012) 204 FCR 494; (2012) 290 ALR 1; (2012) 96 IPR 185; [2012] FCAFC 102.

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Statutes 

See also Criminal Law: Lee & Anor v New South Wales Crime Commission

Wingfoot Australia Partners Pty Ltd & Anor v Kocak & Ors 
M107/2012: [2013] HCATrans 175.

Date heard: 14 August 2013. 

Coram: French CJ, Crennan, Bell, Gageler and Keane JJ.

Catchwords: 

Statutes – Whether by virtue of s 68(4) of the Accident Compensation Act 1985 (“ACA”) a court is bound to accept medical panel opinions – Whether function exercised by medical panel under s 68 ACA is quasi-adjudicative/investigative – Appropriate content of right to reasons under s 68(2).

Administrative Law – Judicial review – Certiorari – Error of law on face of record – Whether failure to give adequate reasons constituted an error of law on the face of the record.

Appealed from VSC (CA): [2011] VSC 285; [2012] VSCA 259.

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3: Original Jurisdiction

The following cases are ready for hearing in the original jurisdiction of the High Court of Australia.

Constitutional Law

Unions NSW and Ors v State of New South Wales 
S70/2013: Special Case 

Catchwords: 

Constitutional law – Limitation on State legislative power – Implied freedom of political communication on governmental and political matters – Election Funding, Expenditure and Disclosures Act 1981 (NSW) (“the EFED Act”) – s 96D of the EFED Act prohibits political donations other than by individuals on the electoral roll – Whether s 96D of the Act impermissibly burdens the implied freedom and is therefore invalid – Whether ss 95F, 95G(6) and 95I of the EFED Act impermissibly burden the implied freedom and are therefore invalid.

Constitutional law – Limitation on State legislative power – Implied freedom of association – Whether s 96D of the EFED Act impermissibly burdens a freedom of association provided for in the Commonwealth Constitution. 

Constitutional law – State constitutions – Constitution Act 1902 (NSW) (“the Constitution Act”) – Whether ss 7A and 7B of the Constitution Act give rise to an entrenched protection of freedom of communication on New South Wales State government and political matters – If so, whether s 96D or ss 95F, 95G(6) and 95I of the EFED Act impermissibly burden the implied freedom and are therefore invalid.

Constitutional law – Inconsistency – s 109 of the Commonwealth Constitution – Commonwealth Electoral Act 1918 (Cth) (“the CEA Act”) – Whether s 96D is invalid under s 109 of the Commonwealth Constitution because it is inconsistent with ss 327 or Part XX of the CEA Act.

This special case was filed in the original jurisdiction of the High Court of Australia.

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4: Special Leave Granted

The following cases have been granted special leave to appeal to the High Court of Australia.

Admiralty Law

The Ship Go Star v Daebo International Shipping Co Ltd
P39/2012: [2013] HCATrans 212.

Date heard: 11 September 2013 – Special leave granted. 

Catchwords: 

Admiralty law – Standard form charter party – 1981 ASBATIME New York Produce Exchange Form (the “NYPE Form”) – Owners of the Ship Go Star entered into time charter with Breakbulk Marine Services (“BMS”) on NYPE Form – BMS sub-charted to third-party – Third party sub-charted to Respondent – Respondent sub-charted to Daeyang and Nanyuan – BMS fell into arrears of payment to Owners – Owners informed Nanyuan of intention to exercise their rights to withdraw ship under head charter – Nanyuan refuses to pay invoice to Daebo for fuel oil loaded onto the Go Star – Clause 18 of the NYPE Form provides that ‘The Owners shall have a lien upon all cargoes and all sub-freight for any amounts due under this Charter, including general average contributions’ – Whether clause 18 of the NYPE Form includes a lien over sub-charter hire.  

Appealed from FCA (FC): [2011] FCA 1015; [2012] FCAFC 156; [2012] FCAFC 175.

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Administrative Law

Kline v Official Secretary to the Governor General & Anor 
B10/2013: [2013] HCATrans 180. 

Date heard: 16 August 2013 – Special leave granted. 

Catchwords: 

Administrative law – Freedom of Information – Freedom of Information Act 1982 (Cth) (“the Act”) – Request for access to documents – Documents concerning appointments to the Order of Australia – Under s 6A documents that relate to matters of an administrative nature are exempt from the Act – Whether documents that relate to powers and functions of Governor General in administering the Order of Australia relate to matters of an administrative nature – Meaning of “administrative nature”. 

Words and phrases – “of an administrative nature” – “substantive power or function”.

Appealed from FCA (FC): [2012] FCAFC 184; (2012) 127 ALD 639; (2012) AATA 247.

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Honourable Brendan O’Connor, Commonwealth Minister for Home Affairs and Justice v Adamas & Anor
P12/2013: [2013] HCATrans 220.

Date heard: 12 September 2013 – Special leave granted. 

Catchwords: 

Administrative law – Jurisdictional error – Failure to take into account a relevant consideration or taking into account an irrelevant consideration – Extradition Act 1998 (Cth) (the “Act”) – The Minister ordered the extradition of the respondent to the Republic of Indonesia – Whether the Minister was required to undergo a staged process of consideration under Article 9(2)(b) of the Extradition Treaty between Indonesia and Australia – Whether failure to do so constitutes jurisdictional error.  

Extradition – Extradition Act 1998 (Cth) (the “Act”) – Extradition Treaty between Indonesia and Australia (the “Treaty”) – Whether Art 9(2)(b) of the Treaty requires the Minister to determine whether the circumstances of the first respondent’s conviction in absentia, right to appeal or review, and sentence imposed are “unjust, oppressive or incompatible with humanitarian considerations” before considering the other facts – Whether “unjust” under Art 9(2)(b) of the Treaty is assessed against Australian law.  

Appealed from FCA (FC): [2013] FCAFC 14.

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Civil Procedure

Expense Reduction Analysts Group Pty Ltd & Ors v Armstrong Strategic Management and Marketing Pty Limited & Ors 
S12/2013: [2013] HCATrans 137.

Date heard: 6 June 2013 – Special leave granted. 

Catchwords: 

Civil procedure – Discovery – Privilege – Documents upon which legal professional or client legal privilege attached inadvertently disclosed to the other side – Whether such inadvertent disclosure has the effect of waiving privilege.

Civil procedure – Discovery – Confidential information – Whether the only basis on which the respondents could be prohibited from using the documents, or required to return the documents, was dependent on whether the circumstances on which they were communicated to or obtained by the respondents were such as to impose an obligation of conscience on the respondents – Whether an obligation of conscience could be imposed on the respondents in the circumstances. 

Appealed from NSWSC (CA): [2012] NSWSC 393; [2012] NSWCA 430.

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Competition Law

Australian Competition and Consumer Commission v TPG Internet Pty Ltd 
M10/2013: [2013] HCATrans 177. 

Date heard: 16 August 2013 – Special leave granted.

Catchwords: 

Competition law – Restrictive trade practices – Misleading or deceptive conduct – False or misleading statements – Trade Practice Act 1974 (Cth) (“TPA”) and Australian Consumer Law, Schedule 2 to the Competition and Consumer Act 2010 (Cth) (“CCA”) – Full Federal Court overturned in part decision of trial judge that TPG had breached the TPA and CCA – Advertisements represented that internet service could be acquired for $29.99 a month with no additional service or monthly charge and no set up fee – Service was only available in conjunction with a home telephone line that cost an additional $30 a month (the 'bundling condition), as well as upfront charges and a deposit (the 'setup fee condition') – Whether ordinary and reasonable consumer would have starting assumption that an advertised internet service was bundled with telephony services – Whether consumers must consider whole of an advertisement (including small print or quickly spoken detail) in order to correct what would otherwise be misleading headline representations. 

Competition law – Penalties – Pecuniary penalties – Full Court reduced pecuniary penalty from $2,000,000 to $500,000 – Whether Full Court failed to adequately consider specific and general deterrence in imposing reduced pecuniary penalty – Whether reduced pecuniary penalty manifestly inadequate. 

Appealed from FCA (FC): [2012] FCAFC 190; [2013] FCAFC 37; [2011] FCA 1254; [2012] FCA 629.

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Contract Law 

Woodside Energy Ltd & Ors v Electricity Generation Corporation t/as Verve Energy; Electricity Generation Corporation t/as Verve Energy v Woodside Energy Ltd & Ors 
P15, P16/2013: [2013] HCATrans 224.

Date heard: 12 September 2013 – Special leave granted. 

Catchwords: 

Contract law – Proper construction of contractual terms – Breach of obligation under contract – Economic duress – Voidable contracts –Verve is a statutory corporation which supplies electricity to South Western Australia – Verve obtained gas from Woodside and third party pursuant to Gas Supply Agreement (the “Agreement”) – Clause 3.3 of the Agreement obliged Woodside to use reasonable endeavours to supply supplemental gas having regard to all relevant commercial, economic and operational matters – Third party’s plant shut down following fire – Woodside declined to supply supplemental gas but offered to supply same gas under separate short term agreement at higher price – Whether Woodside in breach of clause 3.3 of the Agreement – Whether short term agreement voidable for economic duress.

Contract law – Voidable contract – Unjust enrichment – Restitution – Whether restitution available where short term agreement not rescinded.

Appealed from WASC (CA): [2011] WASC 268; [2013] WASCA 36.

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Criminal Law

PEB v The Queen
B9/2013: [2013] HCATrans 135.

Date heard: 5 June 2013 – Special leave granted. 

Catchwords: 

Criminal law – Sufficiency of reasons – Verdict unreasonable or not supported by evidence – Appellant convicted of two counts of unlawfully and indecently dealing with a child under 12 years old and in his care – Appellant appealed from conviction on basis that verdict was unreasonable or not supported by evidence – Whether Court of Appeal is required to provide detailed reasons for its conclusion that verdict was not unreasonable or was supported by evidence – Whether Court of Appeal must undertake an independent assessment of the evidence in determining such question.

Appealed from QCA (CA): [2012] QCA 333.

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Reeves v The Queen
S58/2013: [2013] HCATrans 143.

Date heard: 6 June 2013 – Referred to Full Court. 

Catchwords: 

Criminal law – Surgical procedure – Informed consent – Appellant conducted a “simple vulvectomy” on a patient – Surgery unnecessary and appellant later convicted of grievous bodily harm with intent – Whether a surgeon must inform a patient of the “nature and extent” of an operation or simply the “nature” of the operation in order to meet the standard of informed consent – Whether Court of Appeal erred in relying on the proviso in s 6(1) of the Criminal Appeal Act 1912 (NSW)  

Appealed from NSWSC (CCA): [2013] NSWCCA 34.

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Li v Chief of Army 
S47/2013: [2013] HCATrans 188. 

Date heard: 16 August 2013 – Special leave granted. 

Catchwords: 

Criminal law – Defence Force Discipline Act 1982 (Cth) (“the Act”) – Restricted Court Martial – Appellant convicted of creating a disturbance under s 33(b) of the Act – Proper construction of s 33(b) – Whether offence under s 33(b) requires proof that the accused intended to create a disturbance – Whether Chapter 2 of the Criminal Code (Cth) permits fault element of an offence to be framed by reference to terms and particulars of charge rather than terms of section creating offence – Whether offence under s 33(b) requires an element of actual violence. 

Words and phrases – “Creates a disturbance”.

Appealed from FCA (FC): [2013] FCAFC 20; (2012) 261 FLR 226.

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Zirilli; & Barbaro v The Queen 
M1, M3/2013: [2013] HCATrans 184.

Date heard: 16 August 2013 – Referred to enlarged bench. 

Catchwords: 

Criminal law – Sentencing – Crown submission on sentencing range – Appellants convicted of conspiracy to traffic in commercial quantity of controlled drug and sentenced to 26 years imprisonment – Trial judge refused to hear prosecution’s submission on appropriate sentencing range and imposed sentences higher than the range the prosecutor would have proposed – Whether trial judge erred in refusing to hear the prosecution’s submission on sentencing range – Whether refusal to hear prosecutions’ submission on sentencing range constitutes a denial of procedural fairness – Whether prosecution’s submission on sentencing range was a relevant consideration in sentencing – Whether R v MacNeil-Brown (2008) 20 VR 677 is good law. 

Appealed from VSC (CA): [2012] VSCA 288; [2012] VSC 47.

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James v The Queen 
M35/2013: [2013] HCATrans 183. 

Date heard: 16 August 2013 – Special leave granted. 

Catchwords: 

Criminal law – Alternative verdicts – Appellant convicted of intentionally causing serious injury – On Appeal appellant contended that trial judge’s failure to leave to jury possible alternative verdict of intentionally causing injury (as opposed to serious injury) constituted miscarriage of justice – Court of Appeal rejected contention – Defence counsel had chosen not to leave alternative verdict open for forensic reasons – Whether Court of Appeal erred in holding that trial judge not bound to leave the alternative verdict open for consideration by jury – Whether Court of Appeal erred in holding that trial judge’s duty to leave to jury for its consideration lesser alternative verdicts, that are realistically, or fairly and practically open, does not transcend forensic decision of trial counsel.

Appealed from VSC (CA): [2013] VSCA 55; [2011] VSC 596.

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Smith v The State of Western Australia
P8/2013: [2013] HCATrans 225.

Date heard: 12 September 2013 – Special leave granted. 

Catchwords: 

Criminal law – Jury deliberations – Exclusionary rule – Applicant convicted on two counts of indecent dealing with a girl under 13 years – Envelope found in jury room indicating that at least one juror had been physically coerced by another juror into joining in the guilty verdict – Whether juror’s note fell outside, or within an exception to, the exclusionary rule – Whether exclusionary rule extends to prohibiting inquiry into criminal activity – Whether juror’s note, or failure by trial judge to conduct contemporaneous inquiry into its contents, gives rise to a real and sensible risk to the safety of jury’s verdict to constitute a miscarriage of justice. 

Appealed from WASC (CCA): [2013] WASCA 7.

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Equity

Australian Financial Services and Leasing Pty Limited v Hills Industries Limited & Anor 
S359/2012: [2013] HCATrans 191. 

Date heard: 16 August 2013 – Special leave granted. 

Catchwords: 

Equity – Restitution – “Change of position” defence – AFSL paid money to Hills and another company to enable a third party to purchase certain equipment from Hills and the other company and then lease that equipment to the third party – The third party fabricated documents and contrary to AFSL’s belief no equipment was acquired – AFSL commenced proceedings in restitution against Hills and the other company – Trial Judge found for AFSL on basis that Hills gave no consideration for monies received from AFSL and Hills had not suffered detriment arising out of a speculative change of its position after receiving those monies – Decision reversed on appeal – Court of Appeal held that by discharging debts owed to Hills by the third party Hills had given up opportunity to enforce payment of those debts – Whether defence of “change of position” in claims for money paid to third party by financier under mistake of fact extends to this situation – Whether in order to make out defence of change of position defendant is required to point to specific and quantifiable expenditure or financial loss because of mistaken payment?

Appealed from NSWSC (CA): [2012] NSWCA 380.

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Native Title

Karpany & Anor v Dietman
A18/2012: [2012] HCATrans 210. 

Date heard:  7 September 2012 – Referred to Full Court 

Catchwords:

Native title – Preservation of native title rights – Prior extinguishment – Native title right to take fish – Applicants convicted of possession of an aquatic resource contrary to s 72(2)(c) Fisheries Management Act 2007 (SA) – Whether native title rights to take fish extinguished by virtue of s 29 of the Fisheries Act 1971 (SA) – Whether s 72(2)(c) Fisheries Management Act 2007 (SA) inoperative due to inconsistency with s 221 of the Native Title Act 1993 (Cth).
 
Appealed from SA SC (FC): (2012) 112 SASR 51; (2012) 262 FLR 292; [2012] SASCFC 53.

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The State of Western Australia v Brown & Ors
P37/2012: [2013] HCATrans 223.

Date heard: 12 September 2013 – Special leave granted. 

Catchwords: 

Native title – Extinguishment – Mining leases – Respondents hold non-exclusive native title rights in relation to areas subject of mining leases – Whether those leases confer a right of exclusive possession extinguishing native title rights – Whether the exercise of the rights under the leases prevent the exercise of native title rights.

Appealed from FCA (FC): [2010] FCA 498; [2012] FCAFC 154; [2013] FCAFC 18.

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Statutes

Daly v Thiering & Ors
S38/2013: [2013] HCATrans 139.

Date heard: 6 June 2013 – Special leave granted. 

Catchwords: 

Statutes – Statutory construction – Whether the Court of Appeal erred in its construction of s 130A of the Motor Accidents Compensation Act 1999 (NSW) (“the MAC Act”) and s 6(1) of the Lifetime Care and Support Act 2006 (NSW) (“the LCS Act”) – Whether s 130A of the MAC Act provides that the Lifetime Care and Support Scheme is responsible for the provision of all reasonable and necessary treatment and care required by participants – Or whether s 130A of the MAC Act provides that compulsory third party insurers are required to pay damages for voluntarily provided care. 

Appealed from NSWSC (CA): [2013] NSWCA 25; [2011] NSWSC 1345; [2011] NSWSC 1585.

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Taylor v The Owners – Strata Plan No 11564 & Ors
S73/2013: [2013] HCATrans 206.

Date heard: 6 September 2013 – Special leave granted. 

Catchwords: 

Statutes – Interpretation – Civil Liability Act 2002 (NSW) (“the CLA Act”) – Appellant brought claim under the Compensation to Relatives Act 1897 (NSW) for compensation for accidental death of her husband – Section 12(2) of the CLA Act directs the court to disregard “excess” earnings of a high-earning “claimant” but does not refer to earnings of the “deceased” – Late husband had earned substantially in excess of three times average weekly earnings – Whether a reference to “a deceased person’s” earnings can be read into section 12(2) of the CLA Act so as to disregard the deceased person’s earnings above the statutory formula – Whether additional words can be read into a statute where ordinary meaning of the text is not unreasonable or absurd.

Appealed from NSWSC (CA): [2012] NSWSC 842; [2013] NSWCA 55.

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Words and Phrases 

See also Administrative Law: Kline v Official Secretary to the Governor General & Anor 

See also Criminal Law: Li v Chief of Army

5: Cases Not Proceeding or Vacated

The following cases in the High Court of Australia are not proceeding or have been vacated since High Court Bulletin 6 [2013] HCAB 06.

Westpac Banking Corporation & Ors v Bell Group Ltd (In Liq) & Ors
P29/2012: [2013] HCATrans 49.  

Date heard: 15 March 2013 – Special leave granted.

Catchwords:

Equity – fiduciary duty – Judicial review – Whether courts can intervene to review the exercise of powers by directors on the basis of a lack of reasonable grounds for decision.

Equity – Fiduciary duty – Breach – Remedies – Equitable compensation versus account of profits – Whether compound interest should be utilised for restitutionary purposes – If so, whether the appropriate measure of compound interest can be determined – Whether on appeal the measure of compound interest was “grossly excessive” or a simple disgorgement of profits.

Equity – Fiduciary duty – Barnes v Addy – Particularisation of breach of fiduciary duty by directors – Whether recipient liability is available against a person who enters an executory transaction with a company involving a balance of rights and obligations that are performed on both sides before any act of avoidance – Whether accessorial liability requires a dishonest and fraudulent design by the trustee.

Appealed from WASC (CA): [2012] WASCA 157. 

Hearing date vacated by consent.

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6: Special Leave Refused

Canberra:  4 September 2013 
(Publication of Reasons)

Applicant	Respondent	Court appealed from	Result	
AZABV	Minister for Immigration and Citizenship & Anor
(A8/2013)	Federal Court of Australia
[2013] FCA 173	Application dismissed
[2013] HCASL 136.	
Langmeil	Grange
(A12/20113)	Full Court of the Family Court of Australia	Application dismissed
[2013] HCASL 137.	
Moldauer	Constellation Brands Inc
(A14/2013)	Supreme Court of 
South Australia
[2013] SASC 38	Application dismissed
[2013] HCASL 138.	
Bradshaw	Bar Association of Queensland
(B75/2012)	Supreme Court of Queensland 
(Court of Appeal)
[2012] QCA 322	Application dismissed
[2013] HCASL 139.	
Dobson	Australian Postal Corporation
(B24/2013)	Federal Court of Australia
[2013] FCA 320	Application dismissed
[2013] HCASL 140.	
Kosteska	Manthey (Magistrate) & Anor
(B27/2013)	Supreme Court of Queensland 
(Court of Appeal)
[2013] QCA 105	Application dismissed
[2013] HCASL 141.	
Barlow	The Law Society of the ACT
(C8/2013)	Full Court of the Supreme Court of the Australian Capital Territory
[2013] ACTSC 17
[2013] ACTSC 82	Application dismissed
[2013] HCASL 142.	
Kitis	The State of Western Australia
(P20/2013)	Supreme Court of Western Australia 
(Court of Appeal)
[2013] WASCA 34	Application dismissed
[2013] HCASL 143.	
Smith & Anor	McCusker
(P22/2013)	Supreme Court of Western Australia 
(Court of Appeal)
[2013] WASCA 60	Application dismissed
[2013] HCASL 144.	
Pecenka	Minister for Health
(P30/2013)	Supreme Court of Western Australia 
(Court of Appeal)
[2012] WASCA 250	Application dismissed
[2013] HCASL 145.	
Swefford	Tarbell & Anor
(S35/2013; S36/2013)	Full Court of the Family Court of Australia	Application dismissed
[2013] HCASL 146.	
SZNKO	Minister for Immigration and Citizenship & Anor
(S51/2013)	Federal Court of Australia
[2013] FCA 123	Application dismissed
[2013] HCASL 147.	
Jeray	Blue Mountains City Council & Ors
(S74/2012; S75/2013; S76/2013)	Supreme Court of New South Wales 
(Court of Appeal)
[2012] NSWCA 339	Application dismissed
[2013] HCASL 148.	
Swefford	Tarbell & Anor
(S80/2013)	Full Court of the Family Court of Australia	Application dismissed
[2013] HCASL 149.	
SZRTV	Minister for Immigration and Citizenship & Anor
(S89/2013)	Federal Court of Australia
[2013] FCA 383	Application dismissed
[2013] HCASL 150.	
SZRLH	Minister for Immigration and Citizenship & Anor
(S92/2013)	Federal Court of Australia
[2013] FCA 384	Application dismissed
[2013] HCASL 151.	
SZRIU	Minister for Immigration and Citizenship & Anor
(S97/2013)	Federal Court of Australia
[2013] FCA 435	Application dismissed
[2013] HCASL 152.	
Gani	Maiolo & Anor
(S100/2013)	Supreme Court of New South Wales 
(Court of Appeal)
[2013] NSWCA 107	Application dismissed
[2013] HCASL 153.	
SZRMS	Minister for Immigration and Citizenship & Anor
(S109/2013)	Federal Court of Australia
[2013] FCA 530	Application dismissed
[2013] HCASL 154.	
Ponnambalam	The State of Western Australia
(S323/2012)	removal	Application dismissed
[2013] HCASL 155.	

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Sydney:  6 September 2013

Applicant	Respondent	Court appealed from	Result	
Potier
	The Queen
(S21/2013)	Supreme Court of New South Wales (Court of Criminal Appeal)
[2006] NSWCCA 27	Application dismissed
[2013] HCATrans 207.	
Age Company Ltd & Ors	Liu & Anor
(S43/2013)	Supreme Court of New South Wales (Court of Appeal)
[2013] NSWCA 26	Application dismissed with costs [2013] HCATrans 205.	
Phelps	Transpacific Industrial Solutions 
Pty Ltd & Anor
(S50/2013)	Supreme Court of New South Wales (Court of Appeal)
[2013] NSWCA 31	Application dismissed with costs [2013] HCATrans 208.	
State of New South Wales
	TD by her tutor the Protective Commissioner of New South Wales
(S55/2013)	Supreme Court of New South Wales (Court of Appeal)
[2013] NSWCA 32	Application dismissed with costs [2013] HCATrans 209.	
Seller
	The Queen
(S62/2013)	Supreme Court of New South Wales (Court of Criminal Appeal)
[2013] NSWCCA 42	Application dismissed [2013] HCATrans 204.	
McCarthy	The Queen
(S63/2013)	Supreme Court of New South Wales (Court of Criminal Appeal)
[2013] NSWCCA 42	Application dismissed [2013] HCATrans 204.	
SD
	New South Wales Crime Commission
(S67/2013)	Supreme Court of New South Wales (Court of Appeal)
[2013] NSWCA 48	Application dismissed with costs [2013] HCATrans 210.	
CSR Timber Products 
Pty Ltd	Weathertex Pty Ltd
(S71/2013)	Supreme Court of New South Wales (Court of Appeal)
[2013] NSWCA 49	Application dismissed with costs [2013] HCATrans 211.	

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Perth:  11 September 2013 (by video link to Adelaide)

Applicant	Respondent	Court appealed from	Result	
SBEG	Commonwealth of Australia
(A2/2013)	Full Court of the Federal Court of Australia
[2012] FCAFC 189	Application dismissed with costs [2013] HCATrans 213.	
Ames	The Queen
(A7/2013)	Court of Criminal Appeal of the Supreme Court of South Australia
[2012] SASCFC 75	Application dismissed [2013] HCATrans 214.	
Alliance Craton 
Explorer 
Pty Ltd	Quasar Resources Pty Ltd 
& Anor
(A10/2013)	Full Court of the Federal Court of Australia 
[2013] FCAFC 29	Application dismissed with costs [2013] HCATrans 215.	
Clone Pty Ltd	Players Pty Ltd (In Liquidation)(Receiver Appointed) & Ors
(A17/2013)	Full Court of the Supreme Court of South Australia 
[2013] SASCFC 25	Application dismissed with costs [2013] HCATrans 216.	
Granitto
	Catholic Education Office 
of WA
(P4/2013)	Supreme Court of Western Australia (Court of Appeal)
[2012] WASCA 266
	Application dismissed with costs [2013] HCATrans 218.	
Abreu
	Thomas Peacock & Sons Pty Ltd
(P10/2013)	Supreme Court of Western Australia (Court of Appeal)
[2013] WASCA 19	Application dismissed with costs [2013] HCATrans 217.	

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Perth:  12 September 2013 (by video link to Canberra)

Applicant	Respondent	Court appealed from	Result	
Hancock Prospecting Pty Ltd 	Wright Prospecting 
Pty Ltd 
(P19/2013)	Supreme Court of Western Australia (Court of Appeal)
[2012] WASCA 216	Application dismissed with costs	
Rowe & Anor
	Stoltze & Anor
(P28/2013)	Supreme Court of Western Australia (Court of Appeal)
[2013] WASCA 92	Application dismissed	

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