1: Summary of New Entries

HIGH COURT BULLETIN

Produced by the Legal Research Officer,
High Court of Australia Library
[2021] HCAB 3 (16 April 2021)

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: Summary of New Entries ............................... 1

2: Cases Handed Down ..................................... 4
3: Cases Reserved ............................................ 8
4: Original Jurisdiction .................................... 15
5: Section 40 Removal .................................... 17
6: Special Leave Granted................................. 18
7: Cases Not Proceeding or Vacated .................. 38
8: Special Leave Refused ................................. 39

1: SUMMARY OF NEW ENTRIES

2: Cases Handed Down

Case Title

Victoria International Container Terminal Courts

Limited v Lunt & Ors

Namoa v The Queen Criminal Law

DQU16 & Ors v Minister for Home Affairs & Immigration

Anor

DVO16 v Minister for Immigration and Border Immigration

Protection & Anor; BNB17 v Minister for
Immigration and Border Protection & Anor

3: Cases Reserved

Case Title

Commonwealth of Australia v AJL20 Constitutional Law

1
 1: Summary of New Entries

Zhang v Commissioner of Police & Ors Constitutional Law

Deputy Commissioner of Taxation v Shi Evidence

Minister for Immigration, Citizenship, Migrant

Immigration
Services and Multicultural Affairs v Moorcroft

4: Original Jurisdiction

Case Title

Palmer v The State of Western Australia;

Mineralogy Pty Ltd & Anor v The State of Constitutional Law
Western Australia

Plaintiff M1/2021 v Minister for Home Affairs Immigration

5: Section 40 Removal

6: Special Leave Granted

Case Title

Wells Fargo Trust Company, National

Association (As Owner Trustee) & Anor v VB
Aviation
Leaseco Pty Ltd (Administrators Appointed) &
Ors

Orreal v The Queen Criminal Law

Park v The Queen Criminal Law

NSW Commissioner of Police v Cottle & Anor Industrial Law

Commissioner of Taxation v Carter & Ors Taxation

Tapp v Australian Bushmen’s Campdraft &

Torts
Rodeo Association Limited

2
 1: Summary of New Entries

7: Cases Not Proceeding or Vacated

8: Special Leave Refused

3
 2: Cases Handed Down

2: CASES HANDED DOWN

The following cases were handed down by the High Court of Australia
during the April 2021 sittings.

Courts
Victoria International Container Terminal Limited v Lunt & Ors
M96/2020: [2021] HCA 11

Judgment delivered: 7 April 2021

Coram: Kiefel CJ, Gageler, Keane, Gordon and Edelman JJ

Catchwords:

Courts – Abuse of process – Where Fair Work Commission approved

enterprise agreement – Where approval of enterprise agreement
supported by union – Where first respondent was longstanding
member of union – Where first respondent brought proceedings
seeking to quash approval of enterprise agreement – Where
appellant sought summary dismissal of proceedings on basis they
were abuse of process – Where proceedings funded by union –
Where union unwilling to bring proceedings in own name because of
risk of discretionary refusal of relief – Whether deployment of first
respondent as "front man" for union amounted to abuse of process
by bringing administration of justice into disrepute – Whether
choice of first respondent as plaintiff prevented scrutiny of union's
acquiescence in approval of enterprise agreement – Whether power
to stay or summarily dismiss proceedings informed by
considerations of deterrence or punishment.

Words and phrases – "abuse of process", "administration of

justice", "bring the administration of justice into disrepute",
"deterrence", "discretionary grounds for the refusal of relief",
"enterprise agreement", "forensic or juridical advantage", "front
man", "illegitimate or improper purpose", "integrity of the court's
own processes", "lack of candour", "motive", "punishment", "stay of
proceedings", "summary dismissal", "trade union", "true moving
party".

Appealed from FCA (FC): [2020] FCAFC 40

Held: Appeal dismissed.

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 2: Cases Handed Down

Criminal Law
Namoa v The Queen
S188/2020: [2021] HCA 13

Judgment delivered: 14 April 2021

Coram: Kiefel CJ, Gageler, Keane, Gordon, Edelman, Steward and

Gleeson JJ

Catchwords:

Criminal law (Cth) – Conspiracy – Where s 11. 5(1) of Criminal

Code (Cth) established offence of conspiracy – Where appellant
charged with conspiring to do acts in preparation for terrorist act
contrary to ss 11. 5(1) and 101. 6(1) of Criminal Code – Whether s
11. 5 applies to spouses who agree between themselves, and no
other person, to commit offence against Commonwealth law –
Whether interpretation of s 11. 5 of Criminal Code affected by any
common law rule that spouses alone cannot conspire – Whether
references in s 11. 5 of Criminal Code to "person" and "another
person" include two spouses – Whether meaning of "conspires" and
"conspiracy" in s 11. 5 of Criminal Code incorporates any common
law rule that spouses alone cannot conspire.

Words and phrases – "another person", "common law rule",

"conspiracy", "conspires", "doctrine of unity", "person", "single legal
personality of spouses".

Criminal Code (Cth) – s 11. 5.

Appealed from NSWSC (CCA): [2020] NSWCCA 62; (2020) 351 FLR
266; (2020) 282 A Crim R 362

Held: Appeal dismissed.

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Immigration
DQU16 & Ors v Minister for Home Affairs & Anor
S169/2020: [2021] HCA 10

Judgment delivered: 7 April 2021

Coram: Kiefel CJ, Keane, Gordon, Edelman and Steward JJ

Catchwords:

5
 2: Cases Handed Down

Immigration – Visas – Application for protection visa – Where s

36(2) of Migration Act 1958 (Cth) provides two criteria for grant of
protection visa – Where s 36(2)(a) provides refugee criterion –
Where s 36(2)(aa) provides complementary protection criterion –
Where Court in Appellant S395/2002 v Minister for Immigration and
Multicultural Affairs (2003) 216 CLR 473 ("Appellant S395") held
asylum seeker cannot be expected to hide or change behaviour
manifesting protected characteristic under Refugees Convention for
purposes of assessing claim under s 36(2)(a) – Where s 36(2)(aa)
requires assessment of whether "significant harm" a "necessary and
foreseeable consequence" of applicant's return to receiving country
− Where first appellant applied for protection visa under both ss
36(2)(a) and 36(2)(aa) – Where Immigration Assessment Authority
found first appellant would modify behaviour on return to Iraq −
Whether failure to consider principle in Appellant S395 under s
36(2)(aa) constituted jurisdictional error.

Words and phrases – "absolute and non-derogable",

"complementary protection", "Convention Against Torture", "cruel,
inhuman or degrading treatment or punishment", "innate or
immutable characteristics", "International Covenant on Civil and
Political Rights", "manifestation of a Convention characteristic",
"membership of a particular social group", "modification of
behaviour", "necessary and foreseeable consequence", "non-
refoulement obligations", "real chance", "real risk", "refugee",
"Refugees Convention", "sale of alcohol", "significant harm", "well-
founded fear of persecution".

Migration Act 1958 (Cth) – ss 5H, 5J, 36(2)(a), 36(2)(aa).

Appealed from FCA: [2020] FCA 518

Held: Appeal dismissed with costs.

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DVO16 v Minister for Immigration and Border Protection & Anor;

BNB17 v Minister for Immigration and Border Protection & Anor
S66/2020; M109/2020: [2021] HCA 12

Judgment delivered: 14 April 2021

Coram: Kiefel CJ, Gageler, Gordon, Edelman and Steward JJ

Catchwords:

Immigration – Refugees – Application for protection visa – Where

appellants each applied for protection visas – Where each appellant
interviewed by delegate of Minister – Where each appellant assisted
by interpreter in interview – Where interviews affected by
translation errors in questions asked and responses given – Where
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 2: Cases Handed Down

Immigration Assessment Authority ("Authority") conducted review

under Pt 7AA of Migration Act 1958 (Cth) – Where in case of
DVO16, Authority not aware of translation errors – Where in case of
BNB17, Authority aware of three translation errors – Where in each
case Authority did not exercise powers to get new information
under Pt 7AA – Where in each case Authority affirmed delegate's
decision to refuse visa – Whether Authority's exercise of powers
unreasonable – Whether Authority failed to comply with statutory
duty to "review" decision under Pt 7AA.

Words and phrases – "automatic merits review", "claims to

protection in fact made", "de novo assessment of the merits",
"failing to consider substance of claim", "fast track reviewable
decision", "Immigration Assessment Authority", "interpretation",
"interpretation error", "interpreter", "jurisdictional error",
"mistranslation", "new information", "overriding duty",
"reasonableness condition", "translation", "translation error".

Migration Act 1958 (Cth) – ss 51A(1), 54, 55, 56, 65, Pt 7AA.

Appealed from FCA (FC): [2019] FCAFC 157; (2019) 271 FCR 342

Appealed from FCA: [2020] FCA 304

Held: Appeals dismissed with costs.

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 3: Cases Reserved

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

Constitutional Law
Commonwealth of Australia v AJL20
C16/2020; C17/2020: [2021] HCATrans 68

Date heard: 13 April 2021

Coram: Kiefel CJ, Gageler, Keane, Gordon, Edelman, Steward and

Gleeson JJ

Catchwords:

Constitutional law – Chapter III – Immigration detention – Where

respondent citizen of Syria and granted visa in 2005 – Where
Minister for Immigration and Border Protection cancelled visa on
character grounds in 2014 under s 501(2) Migration Act 1958 (Cth)
(“Act”) – Where respondent detained by officer of Commonwealth
from 8 October 2014 under s 189(1) of Act – Where Minister
accepted Australia has non-refoulement obligations to respondent –
Where Minister refused to grant protection visa and declined to
consider granting visa under s 195A of Act on 25 July 2019 – Where
detention of unlawful non-citizen lawful if for permissible purpose –
Where removal from Australia permissible purpose – Where, from
26 July 2019, officer of Commonwealth obliged to remove
respondent from Australia “as soon as reasonably practicable”
under s 198 of Act – Where primary judge held detention unlawful
since 26 July 2019 and ordered respondent be released from
detention – Whether respondent’s removal from Australia
“reasonably practicable” – Whether respondent’s detention for
purpose of removal from Australia – Whether respondent’s
detention lawful – Whether ss 189 and 196 require detention of
unlawful non-citizen until removal from Australia despite non-
compliance with duty of removal consistently with Ch III of
Constitution.

Torts – False imprisonment – Whether respondent falsely

imprisoned.

Removed from Full Court of the Federal Court of Australia under s 40 of

the Judiciary Act 1903 (Cth).

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 3: Cases Reserved

LibertyWorks Inc v Commonwealth of Australia

S10/2020: [2021] HCATrans 35

Date heard: 2 March 2021

Coram: Kiefel CJ, Gageler, Keane, Gordon, Edelman, Steward and

Gleeson JJ

Catchwords:

Constitutional law – Implied freedom of political communication –

Validity of legislation – Foreign Influence Transparency Scheme Act
2018 (Cth) (“FITS Act”) – Where plaintiff not-for-profit think-tank
incorporated in Queensland – Where in August 2019, plaintiff
organised and held Conservative Political Action Conference in
Sydney – Where US corporation, American Conservative Union
(“ACU”), runs conference with same name in US, where ACU board
members spoke at Sydney conference, and where ACU advertised
as “Think Tank Host Partners” for Sydney conference – Where
plaintiff not registered under FITS Act – Where in October 2019,
notice under s 45 of FITS Act issued to President of plaintiff,
requiring plaintiff to provide certain information within specified
period – Where s 59 of FITS Act provides for offence of failing to
comply with s 45 notice within time – Where in November 2019,
President of plaintiff replied to notice, refusing to provide requested
information and disputing validity of notice – Whether terms,
operation, or effect of FITS Act impermissibly burden implied
freedom of political communication.

Special case referred for consideration by Full Court on 20 August 2020.

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Zhang v Commissioner of Police & Ors

S129/2020: [2021] HCATrans 57; [2021] HCATrans 59

Date heard: 7-8 April 2021

Coram: Kiefel CJ, Gageler, Keane, Gordon, Edelman, Steward and

Gleeson JJ

Catchwords:

Constitutional law – Implied freedom of political communication –

Validity of legislation – Validity of warrants – Where plaintiff under
investigation for alleged foreign interference offences, contrary to
Criminal Code (Cth) sub-ss 92.3(1), (2) – Where plaintiff formerly
employed part-time in office of member of New South Wales
Parliament – Where magistrate, purporting to exercise power in s

9
 3: Cases Reserved

3E of Crimes Act 1914 (Cth), issued search warrant authorising AFP

officers to enter and search plaintiff’s residential premises – Where
magistrate also purported to make order under s 3LA, requiring
plaintiff to provide information or assistance to officers enabling
them to access, copy, or convert data held on computers or devices
found in execution of warrant – Where searches took place, and
pursuant to s 3K, certain items removed for examination – Where
magistrate purported to exercise s 3E power and issued warrant
authorising search of warehouse premises from which plaintiff and
his wife conducted business – Where searches took place, material
seized pursuant to s 3F, and electronic devices removed for
examination pursuant to s 3K – Where registrar purported to
exercise s 3E power and issued warrant authorising AFP officers to
enter and search premises within NSW Parliament House – Where
searches took place, and data copied to USB thumb drives pursuant
to s 3F – Where magistrate made s 3LA order requiring plaintiff to
provide information and assistance to police that would allow them
to access data held in or accessible from phones moved to another
place for examination after search of residential premises –
Whether either or both of sub-ss 92.3(1), (2) invalid for
impermissibly burdening implied freedom of political communication
– Whether some or all of warrants are wholly or partly invalid on
basis they misstate substance of s 92.3(2) of Criminal Code, fail to
state offences to which they relate with sufficient precision, or that
either or both of sub-ss 92.3(1), (2) invalid – If some or all of
warrants wholly or partly invalid, whether one or both of s 3LA
orders invalid.

Special case referred for consideration by Full Court on 12 November

2020.

Contracts
Matthew Ward Price as Executor of the Estate of Alan Leslie Price
(Deceased) & Ors v Christine Claire Spoor as Trustee & Ors
B55/2020: [2021] HCATrans 36

Date heard: 4 March 2021

Coram: Kiefel CJ, Gageler, Gordon, Edelman and Steward JJ

Catchwords:

Contracts – Statutory limitation periods – Exclusion by agreement –

Where in 1998, two mortgages executed by deceased Mr A Price
and second appellant, and deceased Mr J Price and third applicant
in favour of Law Partners Mortgages Pty Ltd (“LPM”), securing
$320,000 loan advanced by LPM to mortgagors – Where
respondents trustees of pension fund successor in title as

10
 3: Cases Reserved

mortgagee to LPM – Where by 30 April 2001, only $50,000 of

principal repaid and where no repayments made after that date –
Where respondents commenced proceedings in 2017, claiming
$4,014,969.22 and possession of mortgaged land – Where
proceedings commenced outside of statutory bars in Limitation of
Actions Act 1974 (Qld) – Where cl 24 of mortgages provided that
“[t]he Mortgagor covenants with the Mortgage[e] that the
provisions of all statutes now or hereafter in force whereby or in
consequence whereof any o[r] all of the powers rights and remedies
of the Mortgagee and the obligations of the Mortgagor hereunder
may be curtailed, suspended, postponed, defeated or extinguished
shall not apply hereto and are expressly excluded insofar as this
can lawfully done” – Whether agreement not to plead or to rely on
provisions of Limitation of Actions Act made at time of entry into
loan contract and before accrual of cause of action unenforceable
on public policy grounds – Whether, on proper construction of cl 24,
applicants entitled to plead defence under Limitation of Actions Act
– Whether operation of s 24 of Limitation of Actions Act can be
excluded by agreement – Whether, on proper construction, terms of
cl 24 ambiguous – If cl 24 enforceable, whether breach of cl 24
could sound in any remedy other than claim for damages for breach
of warranty.

Appealed from QSC (CA): [2019] QCA 297; (2019) 3 QR 176

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Evidence
Deputy Commissioner of Taxation v Shi
S211/2020: [2021] HCATrans 69

Date heard: 14 April 2021

Coram: Kiefel CJ, Gageler, Gordon, Edelman and Gleeson JJ

Catchwords:

Evidence – Exceptions to privilege against self-incrimination –

Evidence Act 1995 (Cth) s 128A – Where appellant commenced
proceedings against respondent and two others seeking satisfaction
of tax liabilities – Where appellant sought freezing orders with
respect to respondent’s assets – Where Federal Court made ex
parte freezing orders in relation to respondent’s worldwide assets –
Where respondent also ordered to file and serve affidavit disclosing
worldwide assets – Where respondent filed two affidavits, one
which was served on appellant, and one which was delivered to
Federal Court in sealed envelope – Where respondent claimed
privilege against self-incrimination in respect of second affidavit,

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 3: Cases Reserved

invoking s 128A – Where prior to hearing of privilege claim,

judgment entered for appellant in sum of $42,297,437.65 – Where
primary judge accepted reasonable grounds for respondent’s claim
for privilege against self-incrimination, but considered not in
interests of justice that certificate be granted pursuant to s
128A(7), with consequence that appellant did not get access to
second affidavit – Where majority of Full Court of Federal Court
held primary judge erred in certain respects, but dismissed appeal
– Whether availability of mechanism to compulsorily examine
respondent as judgment debtor relevant to determining whether in
interests of justice to grant s 128A certificate – Whether risk of
derivative use of privileged information in event that s 128A
certificate granted should have been taken into account when
determining whether in interests of justice to grant certificate.

Appealed from FCA (FC): [2020] FCAFC 100; (2020) 277 FCR 1; (2020)
380 ALR 226

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Immigration
Minister for Immigration, Citizenship, Migrant Services and
Multicultural Affairs v Moorcroft
B66/2020: [2021] HCATrans 70

Date heard: 15 April 2021

Coram: Kiefel CJ, Keane, Gordon, Steward and Gleeson JJ

Catchwords:

Immigration – Removal and deportation – Where s 5(1) of

Migration Act 1958 (Cth) provided that person who had “been
removed or deported from Australia or removed or deported from
another country” was “behaviour concern non-citizen” – Where
respondent held special category visa – Where that visa purportedly
cancelled, and respondent detained and removed from Australia to
New Zealand – Where, by consent, Federal Circuit Court quashed
cancellation decision – Where respondent returned to Australia and
was interviewed by Minister’s delegate at airport on arrival – Where
delegate asked whether she had ever been removed, deported, or
excluded from any country, including Australia – Where respondent
answered yes, and explained circumstances of earlier removal –
Where delegate refused to grant respondent special category visa,
not being satisfied that the respondent had not been “removed …
from Australia” within meaning of definition of “behaviour concern
non-citizen” – Where Federal Circuit Court dismissed respondent’s
application for judicial review of delegate’s decision – Where

12
 3: Cases Reserved

Federal Court allowed appeal from Circuit Court’s decision –

Whether “removed or deported from” means taken out of some
country by or on behalf of government of that country in fact, or
whether it means being taken out of some country validly or
lawfully, or whether it bears different meanings in same section,
namely, valid or lawful removal or deportation in case of ejection
from Australia, and removal or deportation in fact in case of other
countries.

Appealed from FCA: [2020] FCA 382; (2020) 275 FCR 276

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MZAPC v Minister for Immigration and Border Protection & Anor

M77/2020: [2021] HCATrans 37

Date heard: 5 March 2021

Coram: Kiefel CJ, Gageler, Keane, Gordon, Edelman, Steward and

Gleeson JJ

Catchwords:

Immigration – Procedural fairness – Materiality – Where appellant

applied for protection visa – Where appellant’s criminal record and
related material provided to Administrative Appeals Tribunal
(“AAT”) by first respondent without appellant’s knowledge – Where
certificate under s 438 of Migration Act 1958 (Cth) issued in relation
to criminal record and related material and appellant not notified of
certificate – Where criminal record disclosed history of serious
traffic offences – Where AAT affirmed delegate’s decision to refuse
visa application – Where appeal to Federal Circuit Court dismissed –
Where appeal to Federal Court dismissed – Where common ground
that failure to notify appellant of certificate constituted denial of
procedural fairness – Whether, when considering materiality of
denial of procedural fairness occasioned by failure to notify
appellant of s 438 certificate, appellant bore onus of rebutting
presumption that AAT did not rely on documents subject to
certificate and had to prove that documents had been taken into
account by AAT – Whether Federal Court erred in finding that denial
of procedural fairness immaterial on basis that offences disclosed in
criminal record not rationally capable of impacting appellant’s
credibility before AAT.

Appealed from FCA: [2019] FCA 2024

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 3: Cases Reserved

Torts
Talacko v Talacko & Ors
M111/2020: [2021] HCATrans 39

Dates determined: 10 March 2021

Coram: Kiefel CJ, Gageler, Keane, Gordon, Edelman, Steward and

Gleeson JJ

Catchwords:

Torts – Unlawful means conspiracy – Loss of chance – Where, in

context of long dispute over properties in Prague, Slovakia, and
Dresden, some of the respondents commenced proceedings in
Supreme Court of Victoria alleging applicant and members of her
immediate family engaged in unlawful means conspiracy by
executing donation agreements which purported to put certain
interests in properties beyond reach of respondents – Where
Supreme Court held that three of four elements of unlawful means
conspiracy made out, but that pecuniary loss not established –
Where Court of Appeal allowed appeal against that decision –
Whether reduction in chance to recover judgment debt where that
debt may yet be recovered can constitute pecuniary loss sufficient
to complete cause of action – Whether expenses incurred by one
party in foreign proceedings can constitute pecuniary loss sufficient
to complete cause of action in circumstances where foreign
proceedings ongoing and where foreign court may order that party
to bear own expenses.

Appealed from VSC: [2018] VSC 807

Appealed from VSC (CA): [2017] VSCA 163; [2020] VSCA 99

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 4. Original Jurisdiction

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

Constitutional Law
Palmer v The State of Western Australia; Mineralogy Pty Ltd &
Anor v The State of Western Australia
B52/2020; B54/2020: [2021] HCATrans 56

Catchwords:

Constitutional law – State legislative power – Federalism – Chapter

III of Constitution – Where, on 5 December 2001, plaintiffs and
defendant entered into Agreement in relation to development of
certain projects in Western Australia – Where Agreement ratified by
Iron Ore Processing (Minerology Pty Ltd) Agreement Act 2002 (WA)
– Where Agreement subsequently varied in 2008 and ratified by
Iron Ore Processing (Minerology Pty Ltd) Agreement Amendment
Act 2008 (WA) – Where various disputes arose in relation to
development proposal and plaintiff claimed defendant breached
terms of Agreement – Where disputes referred to arbitrator in
Queensland – Where Iron Ore Processing (Mineralogy Pty Ltd)
Agreement Amendment Act 2020 (WA) enacted in 2020 – Where
effect of 2020 Amendment Act to exclude defendant’s liability, and
prohibit any enforcement or payment of any liability, arising in
respect of disputes and arbitrations – Whether 2020 Amendment
Act contravenes s 118 of Constitution by failure to give full faith
and credit and effect to Commercial Arbitration Act 2013 (Qld) and
equivalent legislation in each State and Territory – Whether 2020
Amendment Act contravenes s 6 of Australia Act 1986 (Cth)
because not enacted pursuant to manner and form specified in
Agreement - Whether 2020 Amendment Act purports to direct
federal courts and courts exercising federal jurisdiction as to
manner of exercise of federal jurisdiction, withdraws or limits
federal jurisdiction, impermissibly interferes with federal court
proceedings, or confers powers and duties repugnant to exercise of
federal judicial power – Whether 2020 Amendment Act beyond
state legislative power because violates rule of law – Whether 2020
Amendment Act incompatible with institutional integrity of courts –
Whether 2020 Amendment Act impermissibly exercises state
judicial power without possibility of review by courts – Whether
2020 Amendment Act invalid because alters consequences of
actions and conduct of Commonwealth Government – Whether
2020 Amendment Act invalid under s 109 of Constitution – Whether
2020 Amending Act invalid for specifically targeting Mr Palmer and
depriving him of personal rights and property rights – Whether

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 4. Original Jurisdiction

2020 Amendment Act involves abdication of State legislative power

– Whether 2020 Amendment Act contravenes s 117 of Constitution
by discriminating against Mr Palmer as resident of Queensland –
Whether 2020 Amendment Act invalid in entirety or in part.

Special case referred to the Full Court on 6 April 2021.

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Immigration
Plaintiff M1/2021 v Minister for Home Affairs
M1/2021: [2021] HCATrans 52

Catchwords:

Immigration – Judicial review – Non-refoulement obligations –

Where plaintiff granted Refugee and Humanitarian (Class XB)
Subclass 202 (Global Special Humanitarian) visa in 2006 – Where,
on 19 September 2017, plaintiff convicted of unlawful assault and
sentenced to 12 months’ imprisonment – Where, on 27 October
2017, delegate of Minister cancelled plaintiff’s visa pursuant to s
501(3A) of Migration Act 1958 (Cth) – Where plaintiff made
representations to Minister regarding possibility of refoulement if
plaintiff returned to home country – Where, on 9 August 2018,
delegate of Minister decided not to revoke cancellation decision
pursuant to s 501CA(4) of Migration Act – Where, in making
decision, delegate did not consider whether non-refoulement
obligations owed to plaintiff because plaintiff able to apply for
protection visa under Migration Act – Whether delegate required to
consider plaintiff’s representations concerning non-refoulement
obligations in making non-revocation decision pursuant to s
501CA(4) where plaintiff can apply for protection visa – If so,
whether delegate failed to consider representations – If so, whether
delegate failed to exercise jurisdiction under Migration Act or denied
plaintiff procedural fairness – Whether non-revocation decision
affected by jurisdictional error.

Special case referred to the Full Court on 30 March 2021.

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 5: Section 40 Removal

5: SECTION 40 REMOVAL
The following cases are ready for hearing in the original jurisdiction of the
High Court of Australia.

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17
 6: Special Leave Granted

6: SPECIAL LEAVE GRANTED

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

Administrative Law
Sunland Group Limited & Anor v Gold Coast City Council
B64/2020: [2021] HCATrans 61

Date heard: 9 April 2021

Coram: Kiefel CJ, Keane, Gordon, Steward and Gleeson JJ

Catchwords:

Administrative law – Planning and environment – Development

approvals – Where in 2015 second applicant bought parcel of
undeveloped land which carried with it benefit of preliminary
development approval granted in 2007 – Where preliminary
approval approved multi-stage residential development subject to
56 conditions – Where some conditions provided for payment of
infrastructure contributions to respondent – Where preliminary
approval made under Integrated Planning Act 1997 (Qld) – Where
Integrated Planning Act replaced by other legislation – Whether
conditions concerning infrastructure contributions, properly
construed, should be read as binding on applicant or landowner, or
merely as statements as to scope of future possible conditions –
Whether, in construction of conditions, contra proferentem rule
applies so that ambiguities are to be resolved against approving
authority.

Appealed from QSC (CA): [2020] QCA 89

Hearing adjourned.

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Aviation
Wells Fargo Trust Company, National Association (As Owner
Trustee) & Anor v VB Leaseco Pty Ltd (Administrators Appointed)
& Ors
S200/2020: [2021] HCATrans 63

Date heard: 12 April 2021 – Special leave granted.

18
 6: Special Leave Granted

Catchwords:

Aviation – Construction of art XI Protocol to the Convention on

International Interests in Mobile Equipment on Matters Specific to
Aircraft Equipment (Protocol) – Where International Interest in
Mobile Equipment (Cape Town Convention) Act 2013 (Cth) gives
domestic effect to Convention on International Interests in Mobile
Equipment (Cape Town Convention) – Where art XI(2) of Protocol
provides upon occurrence of insolvency-related event, insolvency
administrator or debtor shall “give possession of the aircraft object”
to creditor – Where applicants owners of aircraft engines leased to
first respondent and subleased to second and fourth respondents –
Where third respondent appointed administrator of other
respondents following insolvency-related event – Where lease
imposes on lessees return obligations in respect of aircraft – Where
applicants sought compliance with respondents’ Art XI(2)
obligations to “give possession” – Where third respondent, instead
of physically redelivering engines, issued a notice under s 443B(3)
of Corporations Act 2001 (Cth) disclaiming leased engines and
leaving engines still attached to aircraft operated by lessees and
owned by third parties – Where primary judge held respondents
failed to “give possession” of engines – Where respondents
successfully appealed to Full Court Federal Court – Whether
“give possession” means physical delivery of aircraft objects or
merely enables creditor to exercise self-help remedy – Whether
respondents failed to “give possession”.

Appealed from FCA (FC): [2020] FCAFC 168; (2020) 394 ALR 378

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Competition Law
Port of Newcastle Operations Pty Limited v Glencore Coal Assets
Australia Pty Ltd & Ors
S33/2021: [2021] HCATrans 42

Date heard: 12 March 2021 – Special leave granted.

Catchwords:

Competition law – Arbitration determination – Third party access –

Calculation of user contributions – Where appellant operator of Port
of Newcastle – Where provision of access and use of Port shipping
channels declared service pursuant to Pt IIIA of Competition and
Consumer Act 2010 (Cth) – Where appellant levies certain charges
payable by vessel owner or charterer in respect of use of Port
infrastructure – Where first respondent coal mining company

19
 6: Special Leave Granted

exported coal through Port via both own chartered vessels and
vessels owned by other persons – Where first respondent sought
arbitration by Australian Competition and Consumer Commission
(“ACCC”) of dispute about quantum of charge – Where ACCC and
Australian Competition Tribunal on review determined first
respondent could not arbitrate terms on which other persons’
vessels carrying first respondent’s coal were charged – Where
parties agreed ACCC use “depreciated optimised replacement cost
methodology” to calculate asset base component of appropriate
charge – Where ACCC and Tribunal on review decided s 44X(1)(e)
required it to deduct historical service user contributions to Port
infrastructure from asset base in calculation of charge – Where
applicant unsuccessfully appealed to Full Court of Federal Court –
Whether persons with economic interest in arbitration
determination or who causes access to occur are third party for
purposes of Pt IIIA – Proper approach to calculation of historical
user contributions in charge.

Appealed from FCA (FC): [2020] FCAFC 145; (2020) 382 ALR 331

Return to Top

Constitutional Law
Chetcuti v Commonwealth of Australia
M122/2020

Notice of appeal from judgment of a single Justice exercising original

jurisdiction filed on 10 December 2020.

Catchwords:

Constitutional law – Legislative power – Naturalisation and aliens –

Where appellant entered Australia in 1948 – Where appellant was
born in Malta and entered Australia as British subject – Where
appellant became citizen of United Kingdom and Colonies in 1949
and citizen of Malta on 1961 – Whether within power of
Commonwealth Parliament to treat appellant as alien within s
51(xix) of Constitution – Whether within power of Parliament to
specify criteria for alienage – Whether appellant entered Australia
as alien.

Appealed from HCA (Single Justice): [2020] HCA 42; (2020) 95 ALJR
1

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 6: Special Leave Granted

Contracts
Hobart International Airport Pty Ltd v Clarence City Council &
Anor; Australia Pacific Airports (Launceston) Pty Ltd v Northern
Midlands Council & Anor
H2/2021; H3/2021: [2021] HCATrans 26

Date heard: 12 February 2021 – Special leave granted.

Catchwords:

Contracts – Privity of contract – Declaratory relief – Where second

respondent Commonwealth registered proprietor of land leased to
applicants – Where first respondent Councils not party to lease –
Where cl 26.2(a) of lease provides amount equivalent to council
rates to be paid to first respondents in respect of leased land –
Where lease contemplates that first respondents will participate in
mechanism in determining amount payable – Where dispute arose
between applicants and first respondents as to amounts payable –
Where first respondents sought declaratory and consequential relief
with respect to proper construction of cl 26.2(a) – Where primary
judge held first respondents did not have standing to seek
declaratory relief on basis of privity of contract – Where first
respondents successfully appealed to Full Federal Court, which held
doctrine of privity only prevents third parties from obtaining
executory judgment to enforce terms of contract, not declaratory
judgment – Whether doctrine of privity prevents third parties from
seeking declaratory relief – Whether third parties have standing to
seek declaratory relief in respect of contract.

Constitutional law – Judicial power of Commonwealth –

Requirement for a “matter” – Jurisdiction of Federal Court – Where
there is no dispute between contracting parties as to interpretation
of contract – Whether first respondents have rights, duties or
liabilities to be established by determination of a court – Whether
there is a justiciable controversy or enforceable right, duty or
liability to found a “matter”.

Appealed from FCA (FC): [2020] FCAFC 134; (2020) 382 ALR 273

Return to Top

Corporations
Walton & Anor v ACN 004 410 833 Ltd (formerly Arrium Ltd) (in
liquidation) & Ors
S20/2021: [2021] HCATrans 18

21
 6: Special Leave Granted

Date heard: 11 February 2021 – Special leave granted.

Catchwords:

Corporations – Examinations relating to insolvency – Abuse of

process – Where s 596A of Corporations Act 2001 (Cth) requires
court to issue examinations summons to a person about a company
if “eligible applicant” applies for summons – Where “eligible
applicants” include persons authorised by Australian Securities and
Investments Commission (“ASIC”) – Where ASIC can only authorise
person if person’s purpose is for benefit of corporation, its
contributories or its creditors – Where applicants shareholders of
respondent – Where, in 2014, respondent successfully completed
capital raising for purpose of paying down debt – Where respondent
entered into voluntary administration in 2016 and liquidation in
2019 – Where ASIC authorised applicants as “eligible applicants” to
conduct examinations of respondent’s directors and officers –
Where NSW Court of Appeal found applicants’ predominant purpose
investigation and pursuit of shareholders’ private claim against
directors in relation to 2014 capital raising – Where Court of Appeal
held fulfilment of that purpose would not confer benefit on
corporation, creditors or contributories, and therefore offensive to
purpose for which s 596A enacted and abuse of process – Whether
implicit purpose of obtaining information about potential misconduct
is beneficial to corporation – Whether applicants’ purposes offensive
or foreign to s 596A.

Appealed from NSW (CA): [2020] NSWCA 157; (2020) 383 ALR 298

Return to Top

Criminal Law
Bell v State of Tasmania
H2/2020: [2021] HCATrans 5

Date heard: 3 February 2021

Coram: Kiefel CJ, Gageler, Keane, Edelman and Steward JJ

Catchwords:

Criminal law – Defences – Honest and reasonable mistake – Where

applicant charged with one count of rape and one count of supply of
controlled drug to child – Where trial judge left defence of honest
and reasonable mistake as to age in relation to rape charge –
Where counsel for applicant requested similar direction in respect of
supply charge – Where trial judge refused to make such direction
on basis that defence of honest and reasonable mistake as to age

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 6: Special Leave Granted

would not relieve applicant of criminal responsibility with respect to

supply charge – Where jury convicted applicant of supply charge
but could not reach verdict on rape or alternative charge of sexual
intercourse with person under age of 17 – Where at retrial of sexual
offence jury found applicant not guilty of rape but convicted on
alternative charge – Where Court of Criminal Appeal upheld trial
judge’s decision that defence of honest and reasonable mistake as
to age not available in relation to supply charge – Whether defence
of honest and reasonable mistake of fact only available where its
successful use would lead to defendant not being guilty of any
crime.

Appealed from TASSC (CCA): [2019] TASCCA 19; (2019) 279 A Crim R
553

Hearing adjourned to a date to be fixed to notify State and Territory

Attorneys-General of the appeal and allow the opportunity to intervene.

Return to Top

Director of Public Prosecutions Reference No 1 of 2019

M131/2020: [2020] HCATrans 221

Date heard: 11 December 2020 – Special leave granted

Catchwords:

Criminal law – Mental element – Recklessness – Where Victorian

Court of Appeal in R v Campbell [1997] 2 VR 585 held that
“recklessness” requires foresight of probability of consequence –
Where High Court in Aubrey v The Queen (2017) 260 CLR 305 held
that “recklessness” for offences other than murder requires
foresight of possibility of consequence – Where reference arose
from trial in which accused acquitted of recklessly causing serious
injury, contrary to s 17 of Crimes Act 1958 (Vic) – Where Court of
Appeal concluded nothing in Aubrey compelled reconsideration of
Campbell – Where Court of Appeal held correct interpretation of
“recklessness” requires foresight of “probability” of serious injury –
Whether, in Victoria, correct interpretation of “recklessness” for
offences not resulting in death is foresight of the “possibility” of
serious injury – Whether principle in Campbell should be followed.

Appealed from VSC (CA): [2020] VSCA 181

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Edwards v The Queen

S235/2020: [2020] HCATrans 216

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 6: Special Leave Granted

Date heard: 8 December 2020 – Special leave granted on limited

grounds

Catchwords:

Criminal law – Prosecution’s duty of disclosure – Where applicant

charged with sexual offences against child – Where applicant’s
mobile phone seized and contents downloaded – Where prosecution
disclosed existence of download and offered to provide applicant
with copy of downloaded data – Where data not provided to
applicant – Where prosecution did not disclose relevance of
download data – Where prosecution case on two counts relied on
evidence of complainant – Where defence case on same counts
relied on documentary evidence contradicting complainant’s
evidence – Where NSW Court of Criminal Appeal (“CCA”) dismissed
appeal against conviction –Whether prosecutor breached duty of
disclosure by not providing download data to applicant, contrary to
s 142 of Criminal Procedure Act 1987 (NSW) – Whether CCA erred
in concluding verdicts on two counts not unreasonable as there
remained reasonable doubt as to existence of opportunity for
offending to have occurred.

Appealed from NSWSC (CCA): [2020] NSWCCA 57

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Hofer v The Queen

S37/2021: [2021] HCATrans 44

Date heard: 12 March 2021 – Special leave granted

Catchwords:

Criminal law – Criminal procedure – Conduct of cross-examination –

Where appellant charged with 11 counts of having sexual
intercourse without consent – Where two complainants testified as
prosecution witnesses – Where appellant gave evidence – Where,
during cross-examination, prosecutor asked appellant about aspects
of his evidence arising from defence counsel’s failure to comply with
Browne v Dunn rule in respect of those matters in cross-
examination of complainants – Where prosecutor suggested
appellant lying in evidence about those matters because defence
counsel had not put those matters to complainants – Where
defence counsel did not object to prosecutor’s questions – Where
appellant convicted and unsuccessfully appealed to NSW Court of
Criminal Appeal – Whether prosecutor able to cross-examine
accused with regard to defence counsel’s non-compliance with rule
in Browne v Dunn – Whether prosecutor engaged in impermissible
questioning – Whether defence counsel at trial incompetent –
Whether trial miscarried.

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 6: Special Leave Granted

Appealed from NSWSC (CCA): [2019] NSWCCA 244

Return to Top

Orreal v The Queen

B58/2020: [2021] HCATrans 71

Date heard: 16 April 2021 – Special leave granted

Catchwords:

Criminal law – Application of proviso – Substantial miscarriage of

justice – Prejudicial evidence – Where applicant charged with sexual
offending against child – Where, at trial, irrelevant, inadmissible
and prejudicial medical evidence placed before jury – Where
prosecution, in summing up, contended evidence could be of some
use to jury – Where trial judge did not direct jury to disregard
inadmissible evidence and directed jury could use evidence – Where
applicant unsuccessfully appealed to Court of Appeal – Where
majority of Court of Appeal held, despite reception of inadmissible
and prejudicial evidence, no substantial miscarriage of justice
occurred – Whether, in cases turning on issues of contested
credibility, appropriate for intermediate Court of Appeal to make
own assessment of admissible evidence for purpose of determining
whether no substantial miscarriage of justice occurred.

Appealed from QSC (CA): [2020] QCA 95

Return to Top

Park v The Queen

S180/2020: [2021] HCATrans 75

Date heard: 16 April 2021 – Special leave granted

Catchwords:

Criminal law – Sentencing – Guilty plea reduction - Where s 22(1)

of Crimes (Sentencing Procedure) Act 1999 (NSW) provides that, in
passing sentence on offender who has pleaded guilty to offence,
court may impose lesser penalty “than it would otherwise have
imposed” – Where applicant pleaded guilty to offence – Where
offence has 5 year maximum penalty but jurisdictional limit of 2
years applies when dealt with summarily by District Court – Where
primary judge would have imposed sentence of 2 years 8 months
for offence and applied 25 per cent reduction to sentence pursuant
to s 22(1) – Where applicant sentenced to 2 years imprisonment –
Where applicant appealed to Court of Criminal Appeal on basis

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 6: Special Leave Granted

reduction should have been applied to 2 years (jurisdictional limit

applied to appropriate sentence) instead of 2 years 8 months
(appropriate sentence before jurisdictional limit applied) - Where
Court of Criminal Appeal dismissed appeal and held “would
otherwise have imposed” refers to appropriate sentence despite
jurisdictional limit, and jurisdictional limit only relevant if sentence
post-reduction exceeds jurisdictional limit – Correct construction of
“would otherwise have imposed” – Whether reduction of sentence
applies to sentence appropriate to judicial officer but beyond
jurisdictional limit or to sentence court would actually have imposed
if no guilty plea.

Appealed from NSW (CCA): [2020] NSWCCA 90; (2020) 282 A Crim R
551

Return to Top

Defamation
Fairfax Media Publications Pty Ltd v Voller; Nationwide News Pty
Limited v Voller; Australian News Channel Pty Ltd v Voller
S236/2020; S237/2020; S238/2020: [2020] HCATrans 214

Date heard: 8 December 2020 – Special leave granted

Catchwords:

Defamation – Publication – Where applicants created and operated

public Facebook pages on which Facebook users can view and
comment on items posted – Where Facebook users posted
comments on applicants’ Facebook posts – Where respondent
commenced defamation proceedings against applicants – Where
primary judge determined separate question – Where NSW Court of
Appeal dismissed appeal from determination – Whether intention to
communicate defamatory material is necessary for person to be
“publisher” – Whether operators of Facebook pages “publish” third-
party comments posted on page prior to being aware of comments.

Appealed from NSWSC (CA): [2020] NSWCA 102; (2020) 380 ALR 700

Return to Top

Equity
Stubbings v Jams 2 Pty Ltd & Ors
M13/2021: [2021] HCATrans 23

26
 6: Special Leave Granted

Date heard: 12 February 2021 – Special leave granted

Catchwords:

Equity – Unconscionable conduct – Wilful blindness – Where

applicant borrowed from respondent lenders secured only on
applicant’s assets – Where applicant without regular income and
defaulted – Where respondents’ system of asset-based lending
included deliberate intention to avoid receipt of information about
personal and financial circumstances of borrower or guarantor –
Where certificate of independent financial advice given in respect of
transaction – Where respondents brought proceedings for
possession of applicant’s assets – Where primary judge found
respondents wilfully blind and had actual knowledge as to
applicant’s personal and financial circumstances – Where
respondents successfully appealed to Court of Appeal, which
overturned primary judge’s findings as to knowledge – Whether
lender’s conduct unconscionable by engaging in system of asset-
based lending without receipt of information about personal or
financial situation of borrower, or alternatively, wilfully or recklessly
failing to make such enquiries an honest and reasonable person
would make – Whether Court of Appeal entitled to overturn findings
of primary judge as to respondents’ knowledge.

Appealed from VSC (CA): [2020] VSCA 200

Return to Top

Evidence
Hamilton (a pseudonym) v The Queen
S24/2021: [2021] HCATrans 19

Date heard: 11 February 2021 – Special leave granted on limited

grounds

Catchwords:

Evidence – Tendency evidence – Jury directions – Where applicant

charged with ten counts of aggravated indecent assault against
three separate complainants – Where trial judge ruled evidence
from complainants admissible but not cross-admissible for tendency
purposes – Where anti-tendency direction not given – Where Court
of Criminal Appeal held anti-tendency direction not necessary as
applicant had not established risk of jury engaging in tendency
reasoning – Where Court of Criminal Appeal found defence counsel
made deliberate decision not to request anti-tendency direction to
obtain forensic advantage – Whether anti-tendency direction
generally be given in multi-complainant trial – Whether miscarriage

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 6: Special Leave Granted

of justice occasioned by failure to direct jury it was prohibited from

using evidence led in support of each count as tendency evidence in
support of other counts.

Appealed from NSWSC (CCA): [2020] NSWCCA 80

Return to Top

Family Law
Charisteas v Charisteas & Ors
P6/2021: [2021] HCATrans 28

Date determined: 12 February 2021 – Special leave granted

Catchwords:

Family law – Appeals – Apprehension of bias – Where parties

involved in protracted proceedings since 2008, including two trials
in Family Court of Western Australia where orders were set aside by
Full Court of Family Court of Australia – Where primary judge in
third trial engaged in undisclosed communication and personal
contact with then-counsel for respondent prior to commencement of
trial and after judgment reserved but before judgment delivered –
Where fact but not full details of communication subsequently
disclosed after applicant became aware of relationship between
primary judge and respondent counsel – Where applicant
unsuccessfully applied to have judge recused and unsuccessfully
appealed to Full Court – Where Full Court held hypothetical
observer would not have reasonable apprehension of bias because
would accept judge may have mistaken views about proprietary of
private communications after judgment reserved but before
judgment delivered and would tolerate some amount of private
communication – Whether hypothetical observer would have
reasonable apprehension of bias from failure to disclose
communications between primary judge and respondent counsel.

Family law – Practice and procedure – Powers under s 79 of Family

Court Act 1975 (Cth) (“Act”) – Where, in 2011 trial judgment,
primary judge made final orders under s 79 – Where some orders
set aside without remitter by 2013 appeal to Full Court – Where
primary judge in third trial made 2015 interlocutory interpretation
decision that power to make orders under s 79 not exhausted –
Where primary judge made orders in 2017 varying 2011 orders –
Where Full Court held primary judge had power to vary or set aside
2011 orders – Whether, when orders made in exercise of statutory
power and some set aside on appeal without remittal or rehearing,
power under s 79 is exhausted – Whether primary judge acting in
excess of jurisdiction – Whether applicant waived right to challenge

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 6: Special Leave Granted

exercise of power because did not appeal 2015 interpretation

decision.

Appealed from FamCA (FC): [2020] FamCAFC 162; (2020) 354 FLR
167; (2020) 60 Fam LR 483

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Immigration
Minister for Immigration, Citizenship, Migrant Services and
Multicultural Affairs v Viane
S34/2021: [2021] HCATrans 46

Date determined: 12 March 2021 – Special leave granted on conditions

Catchwords:

Immigration – Judicial review – No evidence – Where respondent’s

visa mandatorily cancelled under s 501(3A) of Migration Act 1958
(Cth) – Where respondent made representations pursuant to s
501CA as to why cancellation should be revoked – Where, if visa
cancellation not revoked, respondent and family would be removed
to Samoa or American Samoa – Where Minister decided not to
revoke cancellation decision – Where respondent unsuccessfully
appealed to Federal Court and successfully appealed to Full Court –
Whether Minister made factual findings regarding language and
availability of welfare and social services in Samoa and American
Samoa without evidence – Whether Minister made factual findings
based on personal or specialised knowledge about Samoa or
American Samoa – If not, whether errors material and
jurisdictional.

Appealed from FCA (FC): [2020] FCAFC 144

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Industrial Law
Construction, Forestry, Maritime, Mining and Energy Union & Anor
v Personnel Contracting Pty Ltd
P5/2021: [2021] HCATrans 30

Date determined: 12 February 2021 – Special leave granted

Catchwords:

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 6: Special Leave Granted

Industrial law – Employee and independent contractor – Proper test

for distinguishing – Labour hire agreement – Definition of
“employee” –Where second applicant signed Administrative
Services Agreement with respondent labour hire agency and offered
work cleaning and moving materials for builder – Where contract
between second applicant and respondent for work, contract
between respondent and builder for labour supply, but no contract
between second applicant and respondent – Where builder
“controlled” second applicant – Where arrangement of casual
nature included right to reject assignment – Where second
applicant not integrated into respondent’s business and not given
uniform – Where work required personal service and second
applicant not in business on own account – Where second applicant
22-year old backpacker on working holiday visa – Where express
term of contract categorises relationship not employment – Where
applicants allege respondent contravened various National
Employment Standards and s 45 of Fair Work Act 2009 (Cth) by not
paying second applicant in accordance with relevant award – Where
Standards apply only if second applicant “employee” – Where
primary judge, applying multi-factorial test, found second applicant
not employee – Where Full Court preferred approach second
applicant employee but for authority of intermediate appellate court
in Personnel Contracting v Construction, Forestry, Mining and
Energy Union [2004] WASCA 312 decided in similar circumstances,
which Full Court held not plainly wrong – Whether second applicant
“employee” of respondent – Whether, in triangular labour hire
agreement, control test satisfied when second applicant controlled
by builder and not respondent – Whether multi-factorial test
correctly applied.

Appealed from FCA (FC): [2020] FCAFC 122; (2020) 381 ALR 457

Return to Top

NSW Commissioner of Police v Cottle & Anor

S149/2020: [2021] HCATrans 62

Date heard: 12 April 2021 – Special leave granted

Catchwords:

Industrial law – Jurisdiction of Industrial Relations Commission of

New South Wales (IRC) – Police – Where applicant made decision
under s 72A of Police Act 1990 (NSW) to retire first respondent
police officer on medical grounds – Where first respondent applied
for unfair dismissal remedy in IRC under s 84 of Industrial Relations
Act 1996 (NSW) – Where Police Act does not expressly provide for
review by IRC for medical retirement but does for other types of
removal – Where applicant successfully challenged IRC’s
jurisdiction, following High Court’s decision in Commissioner for

30
 6: Special Leave Granted

Police for NSW v Eaton (2013) 252 CLR 1 – Where Full Bench
overturned decision – Where applicant successfully sought judicial
review of Full Bench decision by NSW Supreme Court – Where first
respondent successfully appealed to Court of Appeal – Whether IRC
has jurisdiction to hear and determine unfair dismissal application
filed by police office retired on medical grounds – Whether Court of
Appeal applied correct statutory construction principles in
interpreting two overlapping statutory schemes.

Appealed from NSW (CA): [2020] NSWCA 159; (2020) 298 IR 202

Return to Top

Ridd v James Cook University

B12/2021: [2020] HCATrans 15

Date heard: 11 February 2021 – Special leave granted

Catchwords:

Industrial law – Enterprise agreement – Where applicant employed

as professor by respondent under James Cook University Enterprise
Agreement (“EA”) – Where EA cl 14 protected right to intellectual
freedom and specified limits – Where respondent has Code of
Conduct and in cl 13, parties to EA expressed commitment to Code
– Where cl 54 provided disciplinary action could only be taken for
“misconduct” or “serious misconduct” – Where “serious misconduct”
included breach of Code – Where respondent took disciplinary
action against applicant on basis applicant breached Code by failure
to act in collegial manner and to uphold integrity and good
reputation of respondent – Where applicant successfully brought
proceedings in Federal Circuit Court alleging respondent
contravened EA because he could not be disciplined for conduct
protected under cl 14 – Where respondent successfully appealed to
Full Court of the Federal Court – Whether applicant’s conduct
protected by cl 14 – Whether, on proper construction of EA, cl 14,
13 and Code should be read together – If so, whether cl 13 qualifies
cl 14 or vice versa.

Appealed from FCA (FC): [2020] FCAFC 123; (2020) 382 ALR 8; (2020)
298 IR 50
Appealed from FCA (FC): [2020] FCAFC 132

Return to Top

WorkPac Pty Ltd v Rossato & Ors

B73/2020: [2020] HCATrans 200

Date determined: 26 November 2020 – Special leave granted

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 6: Special Leave Granted

Catchwords:

Industrial law – Characterisation as “casual employee” – Restitution

– Where Fair Work Act 2009 (Cth) contains National Employment
Standards (NES) – Where NES provide that permanent employees
entitled to certain leave entitlements – Where first respondent
employed under contract describing him as “casual employee” –
Where first respondent employed for indefinite period with regular
and predictable shifts – Where first respondent’s hours set far in
advance and where he was not given option to elect not to work
particular shifts – Where first respondent paid casual loading in lieu
of leave entitlements – Where applicant sought declarations that
respondent not entitled to leave – Where Full Court of Federal Court
dismissed application – Whether respondent “casual employee” for
the purposes of Fair Work Act or enterprise agreement – If not,
whether applicant is entitled to apply casual loading paid to first
respondent in satisfaction of his leave entitlements by way of set-
off, restitution or by reg 2.03A of Fair Work Regulations 2009 (Cth).

Appealed from FCA (FC): [2020] FCAFC 84; (2020) 296 IR 38; (2020)
378 ALR 585

Return to Top

ZG Operations Australia Pty Ltd & Anor v Jamsek & Ors

S27/2021: [2021] HCATrans 27

Date heard: 12 February 2021 – Special leave granted on limited

grounds

Catchwords:

Industrial law – Employee and contractor – Proper test for

distinguishing – Multi-factorial test – Where respondents
commenced employment with applicants as truck drivers in 1980 –
Where, in 1985, applicants and respondents agreed respondents
would become contractors – Where respondents formed
partnerships with respective wives, purchased truck from applicants
and executed written contract with applicants to provide delivery
services – Where respondents worked exclusively for and derived
sole income from applicants for nearly forty years, and contract
expressly permitted respondents to service other clients – Where
respondents required to be available to work during set hours –
Where impractical for respondents to work for or generate goodwill
with other clients – Where respondents required to purchase truck
to retain work, display company logo on truck and wear branded
clothing – Where respondents responsible for upkeep, maintenance
and insurance of trucks – Where respondents paid by invoice and
charged GST to applicants – Where respondents conducted

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 6: Special Leave Granted

partnerships as one would expect of business - Where contract

terminated in 2017 – Where respondents unsuccessfully claimed in
Federal Court for unpaid employee entitlements under various
statutory regimes and Federal Court held respondents “contractors”
– Where respondents successfully appealed to Full Court, which
held respondents “employees” – Whether respondents “employees”
for purposes of Fair Work Act 2009 (Cth), Superannuation
Guarantee (Administration) Act 1992 (Cth) and “workers” for
purpose of Long Service Leave Act 1955 (NSW).

Appealed from FCA (FC): [2020] FCAFC 119; (2020) 297 IR 210

Return to Top

Patents
H. Lundbeck A/S & Anor v Sandoz Pty Ltd; CNS Pharma Pty Ltd v
Sandoz Pty Ltd
S22/2021; S23/2021: [2021] HCATrans 13

Date heard: 11 February 2021 – Special leave granted

Catchwords:

Patents – Patent extension – Contract construction – Where s 79 of

Patents Act 1990 (Cth) provides if patentee applies for extension of
term of patent and patent expires before application determined
and extension is granted, patentee has same rights to commence
infringement proceedings during extension period as if extension
had been granted when alleged infringement was done – Where
appellants patentee and exclusive licensees of pharmaceutical
compound – Where patent expired in 13 June 2009 – Where, on 25
June 2014, patent extension granted to 9 December 2012 – Where,
from 15 June 2009 onwards, respondent supplied generic version of
compound – Where, in 2007, patentee and respondent entered into
Settlement Agreement, giving respondent licence to exploit patent
prior to expiry – Where Agreement specified possible
commencement dates of licence conditioned on whether extension
granted, but did not specify end date – Where appellants
commenced infringement proceedings in Federal Court on 26 June
2014 in respect of acts done during extension period – Where
Federal Court held Agreement gave licence only for two weeks prior
to original expiry date (31 May 2009) until original expiry (13 June
2009) but not extension period – Where respondent successfully
appealed to Full Court, which held Agreement gave licence from 31
May 2009 to extended expiry date (9 December 2012) – Whether
licence applied in relation to acts occurring after patent original
expiry date and before term extended – Whether, on respondent’s
construction, Agreement produced commercially nonsensical result

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 6: Special Leave Granted

– Whether exclusive licensee may commence infringement

proceeding for acts done between original date of expiry and date
on which term subsequently extended.

Appealed from FCA (FC): [2020] FCAFC 133

Return to Top

Practice and Procedure

Deputy Commissioner of Taxation v Huang
S26/2021: [2021] HCATrans 21

Date determined: 11 February 2021 – Special leave granted

Catchwords:

Practice and procedure – Freezing order – Where applicant filed

originating application in Federal Court seeking judgment against
respondent – Where applicant obtained ex parte worldwide freezing
order against respondent’s Australian and foreign assets pursuant
to r 7.32 of Federal Court Rules 2011 (Cth) – Where respondent
holds significant assets in China and Hong Kong – Where
prospective judgment obtained against respondent not likely to be
enforceable in China or Hong Kong – Where judgment subsequently
entered against respondent – Where respondent successfully
appealed to Full Court against freezing order on ground freezing
order requires realistic possibility any judgment obtained by
applicant can be enforced against respondent’s assets in relevant
foreign jurisdiction – Whether r 7.32 imposes mandatory
jurisdictional precondition on applicant to prove realistic possibility
of enforcement in relevant foreign jurisdiction – Whether, absent
realistic possibility, disposition of respondent’s foreign assets would
frustrate or inhibit Federal Court processes and create danger of
judgment being wholly or partly unsatisfied.

Appealed from FCA (FC): [2020] FCAFC 141

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Taxation
Addy v Commissioner of Taxation
S25/2021: [2021] HCATrans 17

Date heard: 11 February 2021 – Special leave granted on limited

grounds

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 6: Special Leave Granted

Catchwords:

Taxation – Double taxation treaty – Non-discrimination clause –

Where Art 25 of Australia and United Kingdom Double Taxation
Treaty provides foreign nationals shall not be subjected to more
burdensome tax treatment compared to hypothetical Australian
national in same circumstances – Where appellant citizen of United
Kingdom and holder of working holiday visa – Where working
holiday visa-holders subject to special working holiday tax rate in Pt
III of Sch 7 of Income Tax Rates Act 1986 (Cth) – Where appellant
taxed $3,986 compared to $1,591.44 by Australian national on
same income – Where appellant selected as test case by
respondent Commissioner – Where Federal Court held appellant
entitled to benefit of Art 25 – Where respondent successfully
appealed to Full Court – Whether appellant subject to more
burdensome taxation by reason of nationality – If so, whether
appellant Australian resident for tax purposes.

Appealed from FCA (FC): [2020] FCAFC 135; (2020) 382 ALR 68

Return to Top

Commissioner of Taxation v Carter & Ors

S181/2020: [2021] HCATrans 72

Date heard: 16 April 2021 – Special leave granted

Catchwords:

Taxation – Trust distribution – Effect of disclaimer – Where

respondents default beneficiaries of trust – Where trust deed
provided respondents entitled to income of trust for given tax year
(ending 30 June) if trustee did not make effective determination
departing from default position – Where trustee had not made
effective determination as at 30 June 2014 – Where s 97(1) of
Income Tax Assessment Act 1936 (Cth) provides if beneficiary of
trust is “presently entitled” to share of trust income, that share
included in assessable income of beneficiary – Where, following
audit, on 27 September 2015, applicant issued income tax
assessments to respondents for income year ended 30 June 2014
including their share of 2014 trust income – On 30 September
2016, respondents purported to disclaim entitlement to income
from trust for 2014 income year – Where Full Court of Federal
Court considered themselves bound to hold general law
extinguishes entitlement to trust income ab initio and held
disclaimers displaced application of s 97(1) – Whether disclaimer of
gift render gift void ab initio for all purposes – Whether, if
beneficiary disclaims trust distribution after end of income year,

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 6: Special Leave Granted

beneficiary “presently entitled” to distribution for purposes of s

97(1).

Appealed from FCA (FC): [2020] FCAFC 150

Return to Top

Torts
Arsalan v Rixon; Nguyen v Cassim
S35/2021; S36/2021: [2021] HCATrans 43

Date heard: 12 March 2021 – Special leave granted

Catchwords:

Torts – Damages – Damage to chattel – Where applicants’

negligence resulted in motor vehicle collision with respondents’
“high-value”, “prestige” vehicles – Where respondents’ vehicles
damaged, and respondents hired replacement vehicles of equivalent
value while damaged vehicles underwent repairs – Where
respondents claimed damages for cost of hiring replacement
vehicles of equivalent value in NSW Local Court – Where magistrate
awarded damages only for cost of hiring suitable replacement
vehicle for uses vehicle will likely to be put, not necessarily of
equivalent value – Where respondents’ appeal to Supreme Court
dismissed – Where respondents’ appeal to Court of Appeal allowed
– Where Court of Appeal majority held damages be awarded to put
claimant in position they would have been in before wrongdoing,
i.e., for replacement vehicle of equivalent value – Where each
judge in Court of Appeal applied different standard – Whether
respondents entitled to claim damages for cost of hiring
replacement vehicles of equivalent value to damaged prestige
vehicles – Whether equivalent value replacement vehicle reasonable
– Correct test of quantification of damages.

Appealed from NSWSC (CA): [2020] NSWCA 115; (2020) 92 MVR 366

Return to Top

Tapp v Australian Bushmen’s Campdraft & Rodeo Association

Limited
S208/2020: [2021] HCATrans 74

Date heard: 16 April 2021 – Special leave granted on limited grounds

Catchwords:

36
 6: Special Leave Granted

Torts – Negligence – Breach of duty – Obvious risk – Where

applicant injured in competition conducted by respondent when
horse she was riding slipped and fell – Where applicant contended
cause of fall was deterioration in ground surface and respondent
negligent in failing to plough ground at site of event, failing to stop
competition, or failing to warn competitors when ground became
unsafe – Where prior to applicant’s participation, there had already
been 7 falls – Where trial judge held no breach of duty of care
established – Where majority of Court of Appeal held applicant
failed to establish cause of fall was ground surface deterioration and
therefore failed to establish respondent breached duty – Where
majority of Court of Appeal held even if breach established, s 5L of
Civil Liability Act 2002 (NSW) applied to exclude respondent’s
liability as injury suffered was manifestation of “obvious risk” –
Whether Court of Appeal’s approach to evidence of ground surface
deterioration did not afford applicant rehearing – Proper approach
to identification of “obvious risk”.

Appealed from NSWSC (CA): [2020] NSWCA 263

Return to Top

37
 7. Cases Not Proceeding Or Vacated

7: CASES NOT PROCEEDING OR

VACATED
Return to Top

38
 8: Special Leave Refused

8: SPECIAL LEAVE REFUSED

Publication of Reasons: 8 April 2021 (Canberra)

No. Applicant Respondent Court appealed from Result

1. BJB17 & Ors Minister for Federal Court of Application dismissed

Immigration, Australia [2021] HCASL 54
Citizenship, Migrant [2020] FCA 1683
Services and
Multicultural Affairs
& Anor
(M132/2020)

2. Simmonds Kent J & Ors High Court of Application dismissed

(P49/2020) Australia [2021] HCASL 55
[2020] HCASL 246
3. Strickland J & Ors High Court of Application dismissed
Simmonds (P50/2020) Australia [2021] HCASL 56
[2020] HCASL 244
4. In the matter of an application by Simon High Court of Application dismissed
Golding for Australia [2021] HCASL 57
leave to appeal
(S13/2021)

5. Choi University of Supreme Court of Application dismissed

Technology Sydney New South Wales [2021] HCASL 58
(S16/2021) (Court of Appeal)
[2020] NSWCA 342

6. Hunt Longhurst & Anor Supreme Court of Application dismissed

(S214/2020) New South Wales [2021] HCASL 59
(Court of Appeal)
[2004] NSWCA 91

7. Construction, Australian Building Full Court of the Application dismissed

Forestry, Maritime, and Construction Federal Court of with costs
Mining and Energy Commissioner Australia [2021] HCASL 60
Union & Ors & Anor [2020] FCAFC 203
(B79/2020)

8. Khadem Penk Full Court of the Application dismissed

(M93/2020) Family Court of with costs
Australia [2021] HCASL 61

9. Choice Pharmacy Vincentia MC Full Court of the Application dismissed

Vincentia Pty Ltd Pharmacy Federal Court of with costs
Pty Ltd & Ors Australia [2021] HCASL 62
(S190/2020) [2020] FCAFC 163
10. Khedrlarian Bauer Media Pty Ltd Supreme Court of Application dismissed
t/as Network New South Wales with costs
Services Company (Court of Appeal) [2021] HCASL 65
& Anor [2020] NSWCA 288
(S232/2020)
11. Findex Group Limited McKay & Anor Full Court of the Application dismissed
& Ors (S215/2020) Federal Court of with costs
Australia [2021] HCASL 63
[2020] FCAFC 182

39
 8: Special Leave Refused

No. Applicant Respondent Court appealed from Result

12. Commissioner of ACN 154 520 199 Federal Court of Application dismissed
Taxation Pty Ltd Australia with costs
(in liquidation) [2021] HCASL 64
(S219/2020)

13. Healius Commissioner of Full Court of the Application dismissed

Taxation Federal Court of [2021] HCASL 66
(S201-205/2020) Australia
[2020] FCAFC 173

40
 8: Special Leave Refused

12 April 2021: Canberra and by video link

No. Applicant Respondent Court appealed from Results
Refused
1. Anderson & Anor Stonnington City Supreme Court of with costs
Council Victoria [2021]
(M102/2020) (Court of Appeal) HCATrans 65
[2020] VSCA 229

2. Liberty Mutual Swashplate Pty Ltd Full Court of the Refused

Insurance Company (S161/2020) Federal Court of with costs
ARBN 086 083 605 Australia [2021]
trading as Liberty [2020] FCAFC 137 HCATrans 64
International
Underwriters

3. Curran The Queen Supreme Court of Refused

(S186/2020) New South Wales [2021]
(Court of Criminal HCATrans 66
Appeal)
[2020] NSWCCA 171

4. Chief Commissioner of Benidorm Pty Ltd Supreme Court of Refused

State Revenue (S221/2020) New South Wales with costs
(Court of Appeal) [2021]
[2020] NSWCA 285 HCATrans 67

41
 8: Special Leave Refused

Publication of Reasons: 15 April 2021 (Canberra)

No. Applicant Respondent Court appealed from Result

1. Herriot Howes Full Court of the Application dismissed

(B3/2021) Family Court of [2021] HCASL 67
Australia
2. FEY17 Minister for Home Federal Court of Application dismissed
Affairs Australia [2021] HCASL 68
& Anor [2020] FCA 1014
(B9/2021)

3. Bakare The Queen Supreme Court of Application dismissed

(B77/2020) Queensland [2021] HCASL 69
(Court of Appeal)
[No MNC]

4. Giurina Director of Public Supreme Court of Application dismissed

Prosecutions (On Victoria [2021] HCASL 70
behalf of the (Court of Appeal)
Informant Detective [2020] VSCA 54
Acting Sergeant
Anna Louise McIlroy)
& Anor
(M2/2021)

5. In the matter of an application by High Court of Application dismissed

Maria Fokas for leave to appeal Australia [2021] HCASL 71
(S14/2021)
6. Marino Bello & Full Court of the Application dismissed
Anor Family Court of [2021] HCASL 72
(S17/2021 Australia
)
7. Craig & Ors Johnson & Ors Supreme Court of Application dismissed
(S234/2020) New South Wales [2021] HCASL 73
(Court of Appeal)
[2020] NSWCA 278

8. Alskeini Queensland Supreme Court of Application dismissed

University of Queensland (Court of [2021] HCASL 74
Technology Appeal)
(B8/2021) [2020] QCA 285

9. Zekry Zekry Supreme Court of Application dismissed

(M5/2021) Victoria (Court of [2021] HCASL 75
Appeal)
[2020] VSCA 336

10. YKSB Minister for Home Full Court of the Application dismissed
Affairs Federal Court of [2021] HCASL 76
& Anor Australia
(M8/2021) [2020] FCAFC 22

11. AJE18 Minister for Home Federal Court of Application dismissed

Affairs Australia [2021] HCASL 77
& Anor [2020] FCA 1387
(M113/2020)

42
 8: Special Leave Refused

No. Applicant Respondent Court appealed from Result

12. ASD17 Minister for Federal Court of Application dismissed

Immigration and Australia [2021] HCASL 78
Border Protection & [2020] FCA 1653
Anor
(S5/2021)

13. DOQ17 Australian Financial Full Court of the Application dismissed

Security Authority & Federal Court of [2021] HCASL 79
Ors Australia
(S220/2020) [2020] FCAFC 219

14. Queensland Taxi State of Queensland Supreme Court of Application dismissed

Licence Holders (B4/2021) Queensland (Court of with costs
Appeal) [2021] HCASL 80
[2020] QCA 282
15. Kaur & Ors Minister for Federal Court of Application dismissed
Immigration, Australia with costs
Citizenship, Migrant [2020] FCA 1677 [2021] HCASL 81
Services ad
Multicultural Affairs &
Anor
(M125/2020)

16. Telstra Corporation Brisbane City Council Full Court of the Application dismissed
Limited & Ors Federal Court of with costs
(M126/2020) Australia [2021] HCASL 82
[2020] FCAFC 200

17. Telstra Corporation Melbourne City Full Court of the Application dismissed
Limited Council & Ors Federal Court of with costs
(M127/2020) Australia [2021] HCASL 82
[2020] FCAFC 200

18. Raibevu Minister for Home Full Court of the Application dismissed
Affairs Federal Court of with costs
(S170/2020) Australia [2021] HCASL 83
[2020] FCAFC 35

19. Maradaca Pty Wormald & Ors Supreme Court of Application dismissed
Limited (S227/2020) New South Wales with costs
& Anor (Court of Appeal) [2021] HCASL 84
[2020] NSWCA 289

20. Fuge & Anor Commonwealth Bank Full Court of the Application dismissed
of Australia Federal Court of with costs
(S244/2020) Australia [2021] HCASL 85
[2020] FCAFC 217
21. FDQ18 Minister for Federal Court of Application dismissed
Immigration, Australia with costs
Citizenship, Migrant [2020] FCA 1735 [2021] HCASL 86
services and
Multicultural Affairs &
Anor
(C18/2020)

22. Dughetti The Queen Supreme Court of Application dismissed

(M118/2020) Victoria [2021] HCASL 87
(Court of Appeal)
[2019] VSCA 217

43
 8: Special Leave Refused

No. Applicant Respondent Court appealed from Result

23. Mandie & Ors Memart Nominees Supreme Court of Application dismissed
Pty Ltd Victoria with costs
(M123/2020) (Court of Appeal) [2021] HCASL 88
[2020] VSCA 281

24. Arcidiacono & Anor The Owners - Strata Supreme Court of Application dismissed
Plan New South Wales with costs
No. 17719 (Court of Appeal) [2021] HCASL 89
(S212/2020) [2020] NSWCA 269

25. Arcidiacono & Anor The Owners - Strata Supreme Court of Application dismissed
Plan New South Wales with costs
No. 61233 (Court of Appeal) [2021] HCASL 89
(S213/2020) [2020] NSWCA 269

44
 8: Special Leave Refused

16 April 2021: Canberra and by video link

No. Applicant Respondent Court appealed from Result

1. Wagner Investments Toowoomba Supreme Court of Refused
Pty Ltd & Anor Regional Council Queensland with costs
(B60/2020) (Court of Appeal) [2021] HCATrans 73
[2020] QCA 191

2. Mendieta-Blanco The Queen Supreme Court of Refused

(M116/2020) Victoria [2021] HCATrans 76
(Court of Appeal)
[2020] VSCA 265

45