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«HIGH COURT BULLETIN Produced by the Legal Research Officer, High Court of Australia Library [2014] HCAB 09 (24 November 2014) A record of recent High ...»

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HIGH COURT BULLETIN

Produced by the Legal Research Officer,

High Court of Australia Library

[2014] HCAB 09 (24 November 2014)

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.................. 23 6: Special Leave Refused

SUMMARY OF NEW ENTRIES

1: Cases Handed Down Case Title Kuczborski v The State of Queensland Constitutional Law Wellington Capital Limited v Australian Corporations Securities and Investments Commission & Anor Alphapharm Pty Ltd v H Lundbeck A/S & Ors Intellectual Property Minister for Immigration and Border Protection Migration v SZSCA & Anor Hunter and New England Local Health District v Negligence McKenna; Hunter and New England Local Health District v Simon & Anor 2: Cases Reserved Case Title Australian Communications and Media Administrative Law Authority v Today FM (Sydney) Pty Ltd Grant Samuel Corporate Finance Pty Limited v Corporations William John Fletcher and Katherine Elizabeth Barnet as Liquidators of Octaviar Limited (Receivers and Managers Appointed) (In Liquidation) & Ors; JP Morgan Chase Bank National Association & Anor v William John Fletcher and Katherine Elizabeth Barnet as Liquidators of Octaviar Limited (Receivers and Managers Appointed) (In Liquidation) & Ors Korda & Ors v Australian Executor Trustees (SA) Limited Cassegrain v Gerard Cassegrain & Co Pty Ltd Property Law Commissioner of State Revenue v Lend Lease Stamp Duty Development Pty Ltd; Commissioner of State Revenue v Lend Lease Real Estate Investments Limited; Commissioner of State Revenue v Lend Lease IMT 2 (HP) Pty Ltd Commissioner of Taxation v MBI Properties Pty Taxation Ltd 3: Original Jurisdiction No new entries for November 2014.

4: Special Leave Granted Title Case Selig & Selig v Wealthsure Pty Ltd & Ors Corporations Lindsay v The Queen Criminal Law King v Philcox Tort Law 1: Cases Handed Down

–  –  –

Constitutional Law Kuczborski v The State of Queensland B14/2014: [2014] HCA 46.

Judgment delivered: 14 November 2014.

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

Catchwords:

Constitutional law (Cth) – Standing – Plaintiff sought declaration that Vicious Lawless Association Disestablishment Act 2013 (Q) and provisions of the Criminal Code (Q), Bail Act 1980 (Q) and Liquor Act 1992 (Q) were invalid – Where certain provisions only operated where offence committed against existing unchallenged laws – Whether plaintiff had sufficient interest to bring action.

Constitutional law (Cth) – Constitution, Ch III – Institutional integrity of State courts – Where ss 60A, 60B(1), 60B(2) and 60C of Criminal Code created offences elements of which involved being a "participant" in a "criminal organisation" – Where ss 173EB, 173EC and 173ED of Liquor Act created offences elements of which involved wearing symbols of membership of a "declared criminal organisation" – Where power, by regulation, to declare organisation a "criminal organisation" – Whether impugned provisions offended principle in Kable v Director of Public Prosecutions (NSW) [1996] HCA 24;

(1996) 189 CLR 51 – Whether Court enlisted to implement legislative or executive policy – Whether task given to Court incompatible with institutional integrity.

Words and phrases – "association", "criminal organisation", "institutional integrity", "Kable principle", "participant", "standing", "sufficient interest".

Held: Questions answered.

–  –  –

Corporations Wellington Capital Limited v Australian Securities and Investments Commission & Anor S275/2013: [2014] HCA 43.

Judgment delivered: 5 November 2014.

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

Catchwords:

Corporations – Managed investment schemes – Role of responsible entity under Ch 5C of Corporations Act 2001 (Cth) – Construction of scheme constitution – Where responsible entity granted all powers "legally possible" for person or corporation to have – Where responsible entity made in specie distribution of scheme property to unit holders – Whether distribution beyond responsible entity's powers under scheme constitution.

Trusts – Managed investment schemes – Responsible entity as statutory trustee –Whether general principles of law relating to trusts apply to responsible entity's functions under scheme constitution.

Practice and procedure – Federal Court of Australia – Where Federal Court made declaration that responsible entity had no power under scheme constitution to distribute scheme property to unit holders – Where unit holders not represented in appeal – Whether Federal Court erred in exercising discretion to make declaration.

Words and phrases – "in specie distribution", "managed investment scheme", "responsible entity", "return of capital".

Appealed from FCA (FC): [2013] FCAFC 52.





Held: Appeal dismissed.

Return to Top Intellectual Property Alphapharm Pty Ltd v H Lundbeck A/S & Ors S97/2014: [2014] HCA 42.

Judgment delivered: 5 November 2014.

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

–  –  –

Intellectual property – Patents – Extension of term – Application to extend time for applying for extension of term of patent – Section 71(2) of Patents Act 1990 (Cth) required application for extension of term of patent to be made during term of patent and within six months after latest of three specified dates – First respondent made application for extension of term of patent during term of patent but more than six months after latest of three specified dates – Whether Commissioner of Patents had power to grant extension of time.

Words and phrases − "filing, during the term of a standard patent", "prescribed action", "relevant act".

Appealed from FCA (FC): [2013] FCAFC 129.

Held: Appeal dismissed.

Return to Top Migration Minister for Immigration and Border Protection v SZSCA & Anor S109/2014: [2014] HCA 45.

Judgment delivered: 12 November 2014.

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

Catchwords:

Migration – Refugees – Application for protection visa – Where applicant threatened by Taliban – Where Refugee Review Tribunal affirmed decision not to grant protection visa because risk of persecution would only arise on roads outside Kabul, which applicant could avoid – Whether Refugee Review Tribunal fell into error identified in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473; [2003] HCA 71 – Whether Refugee Review Tribunal failed to address whether it would be reasonable to expect applicant to remain in Kabul.

Words and phrases – "internal relocation principle", "live discreetly", "real chance of persecution", "reasonable to expect", "well-founded fear of persecution".

Appealed from FCA (FC): [2013] FCAFC 155.

Held: Appeal dismissed.

–  –  –

Negligence Hunter and New England Local Health District v McKenna; Hunter and New England Local Health District v Simon & Anor S142; S143/2014: [2014] HCA 44.

Judgment delivered: 12 November 2014.

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

Catchwords:

Negligence – Duty of care – Statutory duties – Mental Health Act 1990 (NSW) provided for admission and detention of mentally ill persons in hospital – Act prohibited detention or continuation of detention of mentally ill person in hospital unless medical superintendent formed opinion that no other care of less restrictive kind appropriate and reasonably available – Alleged negligence of hospital and medical staff in discharging mentally ill person – Whether hospital and medical staff owed common law duty of care to protect other persons against harm caused by mentally ill person upon discharge – Whether duties under Act inconsistent with common law duty of care.

Words and phrases – "duty of care", "inconsistent duties", "mentally ill person".

Appealed from NSWSC (CA): [2013] NSWCA 476.

Held: Appeal allowed.

Return to Top Practice and Procedure See also Corporations: Wellington Capital Limited v Australian Securities and Investments Commission & Anor Return to Top Trusts See also Corporations: Wellington Capital Limited v Australian Securities and Investments Commission & Anor

–  –  –

Administrative Law Argos Pty Ltd & Ors v Simon Corbell, Minister for the Environment and Sustainable Development & Ors C3/2014: [2014] HCATrans 224.

Date heard: 10 October 2014.

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

Catchwords:

Administrative law – Administrative Decisions (Judicial Review) Act 1989 (Cth) (“Act”), s 5(1) – Application made to review decision of Minister to approve development application – Appellants adduced evidence to effect that approval would cause loss of trade – Whether corporate appellants have standing to bring application – Whether economic interests will suffice to establish that party is “person aggrieved” for purposes of s 5(1) of Act.

Appealed from ACTSC (CA): [2013] ACTCA 51.

Return to Top Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd S225/2014: [2014] HCATrans 246.

Date heard: 11 November 2014.

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

Catchwords:

Administrative law – Powers of Australian Communications and Media Authority (“ACMA”) – Respondent held commercial radio broadcasting licence under Broadcasting Services Act 1992 (Cth) (“BSA”) – Respondent recorded and broadcast conversation for radio segment – ACMA investigated segment under s 170 of BSA – Investigation concerned whether respondent breached licence condition contained in cl 8(1)(g), Sch 2 of BSA which is engaged 2: Cases Reserved where offence is committed against another law – ACMA’s preliminary investigation report found that respondent contravened s 11(1) of Surveillance Devices Act 2007 (NSW) – Whether ACMA can only make administrative finding of commission of offence once conviction is recorded by criminal court – Whether ACMA is required to defer enforcement action until after criminal process has concluded – Whether ACMA is bound conclusively in its administrative findings by the outcome of such criminal process.

Constitutional law – Judicial power – Whether ACMA’s conclusion of breach of licence condition involves exercise of judicial power reserved to Ch III courts.

Appealed from FCA (FC): [2014] FCAFC 22.

Return to Top Constitutional Law See also Administrative Law: Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd Return to Top See also Migration: CPCF v Minister for Immigration and Border Protection and Anor Return to Top Corporations Grant Samuel Corporate Finance Pty Limited v William John Fletcher and Katherine Elizabeth Barnet as Liquidators of Octaviar Limited (Receivers and Managers Appointed) (In Liquidation) & Ors; JP Morgan Chase Bank National Association & Anor v William John Fletcher and Katherine Elizabeth Barnet as Liquidators of Octaviar Limited (Receivers and Managers Appointed) (In Liquidation) & Ors S228/2014: [2014] HCATrans 248.

Date heard: 12 November 2014.

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

–  –  –

Corporations – Insolvency – Voidable transactions – Corporations Act 2001 (Cth) (“Act”), s 588FF(3) – Under s 588FF(3)(b), court made order extending time for first respondent to bring proceedings under s 588(1) of Act against second respondent – After expiry of period within which any application under 588FF(3)(b) was able to be made, further court order was made under r 36.16(2)(b) of Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) varying original extension order – Effect of variation order was to extend period within which any s 588(1) application had to be brought by further six months – Whether r 36.16(2)(b) of UCPR permits further extension of three year period specified in s 588FF(3)(a) of Act by order varying earlier valid extension in circumstances where the application for such variation is made on a date after the expiry of original three year period.

Appealed from NSWSC (CA): [2014] NSWCA 31.

Return to Top Criminal Law Henderson v State of Queensland B22/2014: [2014] HCATrans 229.

Date heard: 16 October 2014.

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

Catchwords:

Criminal law – Procedure – Confiscation of proceeds of crime – Criminal Proceeds Confiscation Act 2002 (Qld) (“Act”), Part VI – Police seized sum of money over which appellant claimed ownership – Police applied for forfeiture order and appellant applied for exclusion order – Whether prosecuting authority succeeds in circumstances where possessor of property cannot prove title of those who previously possessed item – Whether common law applies in determination of title under Act.

Appealed from SCQ (CA): [2013] QCA 82.

–  –  –

Equity Korda & Ors v Australian Executor Trustees (SA) Limited M82/2014: [2014] HCATrans 244.

Date heard: 6 November 2014.

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

Catchwords:

Equity – Trusts – Investment scheme – Investors invited to invest in timber plantation – Different operating companies undertook cultivation, milling and sale of timber – According to Trust Deed, trustee was to hold proceeds of timber sales for investors – Operating companies were liquidated before sale proceeds were paid to trustee – Whether commercial necessity mandated imputation of unstated trust over timber proceeds before payment to trustee.

Appealed from VSC (CA): [2014] VSCA 65.



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