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Reviews of judgments

Every Issue

Cite as: (2009) 83(04) LIJ, p. 60

High Court Judgments

Cite as: (2009) 83(04) LIJ, p.60

Constitutional Law

Acquisition of property on just terms – acquisition of interests of Aboriginal entities in the Northern Territory

In Wurridjal v Commonwealth [2009] HCA 2 (2 February 2009) the High Court considered whether interests in land in the Northern Territory held under statute by various Aboriginal entities constituted property that could be acquired under the Constitution s51(xxxi), and how compensation on “just terms” was to be determined. The Court concluded that the Territories power in s122 of the Constitution was subject to the prohibition of acquisition on other than “just terms” in the Constitution s51(xxxi): French CJ; Gummow with Hayne JJ; Heydon J; Crennan J; Kiefel J; contra Kirby J. Demurrer allowed.

Constitutional Law
Judicial power – state courts – when creation of a state court is unconstitutional – when state court that is required to receive “police criminal intelligence” in private remains constitutionally acceptable

In K-Generation Pty Ltd v Liquor Licensing Court [2009] HCA 4 (2 February 2009) the High Court concluded that the provisions of s28A of the Liquor Licensing Act 1997 (SA), that authorised the Liquor Licensing Court to act on information that was tendered to it by the authorities but was not generally to be disclosed to the party affected, did not offend the Kable principle that state courts should be independent so as to be able to exercise federal jurisdiction: French CJ; Gummow, Hayne, Heydon, Crennan, Kiefel JJ jointly; Kirby J. The Court concluded that as the provision left it to the Liquor Licensing Court to decide how the information was to be applied, the Court was not “instructed” in an unconstitutional way. Consideration of Gypsy Jokers Motorcycle Club v Commissioner of Police (WA) (2008) 234 CLR 532 and construction of statutes altering fundamental rights. Appeal dismissed.

Constitutional Law
Powers of the Commonwealth – provision of medical services not to authorise “civil conscription” – regulation of medical profession

In Wong v Commonwealth [2009] HCA 3 (2 February 2009) the High Court concluded the provisions of the Health Insurance Act 1973 (Cth) that authorised a Professional Services Review into the services of medical practitioners did not authorise “civil conscription” contrary to the Constitution s51(xxiiiA): French CJ with Gummow J; Kirby J; Hayne, Crennan, Kiefel JJ; Heydon J contra. Appeals dismissed.

Lease – damages – damages for breach of tenant’s covenant not to alter the leased premises without consent

In Tabcorp Holdings Ltd v Bowen Investments Pty Ltd [2009] HCA 8 (12 February 2009) the High Court considered what damages a landlord was entitled to for breach of the lessee’s covenant not to make any substantial alteration to premises without the consent of the landlord: French CJ, Gummow, Heydon, Crennan, Kiefel JJ jointly.

Procedure – fairness – court holding a precedent incorrectly decided – when court required to allow parties to be heard on correctness of earlier non-binding decisions

In Parker v Comptroller-General of Customs [2009] HCA 7 (12 February 2009) the High Court concluded that, while the NSW Court of Appeal should have given notice to the parties that it would in the course of its decision decide that a decision relied on by one party was incorrectly decided, the result was not affected. Appeal dismissed: French CJ; Gummow, Hayne, Kiefel JJ; Heydon J contra.

Criminal Law
Abuse of process – accused convicted of wounding with intent – victim dying after this – whether subsequent charge of murder an abuse – double punishment

In PNJ v Q [2009] HCA 6 (10 February 2009) PNJ was convicted in 2003 with wounding with intent to cause a victim grievous bodily harm. The victim died in 2004. PNG was then charged with murder. His application for a stay on the ground the murder charge was an abuse that exposed PNJ to double punishment was refused at first instance and by the SA Court of Criminal Appeal. His application for special leave (taken as the hearing of the appeal) was refused: French CJ, Gummow, Hayne, Crennan, Kiefel JJ jointly. Consideration of what constitutes “abuse”.

Criminal Law
Accessories etc. – common intention to commit an unlawful purpose

In Q v Keenan [2009] HCA 1 (2 February 2009) the High Court considered when an offence committed as part of an undertaking to commit another rendered the perpetrators liable as having committed the second offence under the Criminal Code (Qld): Kirby J; Hayne, Heydon and Crennan J each agreeing with Kiefel J. Appeal allowed.

THOMAS HURLEY is a Victorian barrister, ph 9225 7034, email The full version of these judgments can be found at

Federal Court Judgments

Cite as: (2009) 83(04) LIJ, p.61


Winding up – claims on assets – claim by litigation funder over proceeds of litigation in hands of corporation being wound up

In IMF (Australia) Ltd v Meadow Springs Fairway Resort Ltd (In Liq) [2009] FCAFC 9 (6 February 2009) a Full Court considered where a claim by a litigation funder for access to the proceeds of successful litigation received by a corporation being wound up ranked.

Practice – bias – action remitted to primary judge for rehearing

In Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2009] FCAFC 8 (5 February 2009) a judge heard a matter including certain evidence. On appeal it was held that evidence ought to have been excluded and the matter was remitted to the judge. On rehearing, the judge reached
the same result. On a second appeal the Full Court considered whether the fact that
the judge had reached the same result indicated bias.

Federal Court
Practice – appeal from interlocutory order – summary dismissal – further evidence

In Wills v ABC [2009] FCAFC 6 (6 February 2009) a Full Court considered when it would allow further evidence on appeal from an order dismissing a proceeding as having no reasonable prospects of succeeding.

Validity – Admiralty – whether Marine Orders under Navigation Act 1912 (Cth) relating to livestock sewage valid

In AMSA v Livestock Transport & Trading [2009] FCAFC 10 (10 February 2009) a Full Court considered whether the parts of the Marine Orders that related to livestock sewage were invalid as conflicting with the Navigation Act 1912 (Cth). The Full Court allowed the appeal and concluded the Marine Orders were valid. It considered whether the Act gave power for regulations that authorised orders that the structure of ships be altered.

Petroleum resources rent tax – assessable receipts – expenses payable – net receipts after allowing for expenses payable in relation to the sale – costs of hedging contracts

In Woodside Energy Ltd v C of T [2009] FCAFC 12 (12 February 2009) a Full Court concluded that the losses arising from hedging contracts entered into by a petroleum producer were not expenses payable in relation to the sale of the petroleum within s24(b) of the Petroleum Resource Rent Tax Act 1987 (Cth).

Veterans’ affairs
Statement of Principles – ability to obtain appropriate clinical management

In Repatriation Commission v Money [2009] FCAFC 11 (13 February 2009) a Full Court considered the operation of the Statement of Principles in relation to idiopathic fibrosing alveolitis and when inability to obtain appropriate clinical management rendered the condition service-related.

THOMAS HURLEY is a Victorian barrister, ph 9225 7034, email The full version of these judgments can be found at

Supreme Court Judgments

Cite as: (2009) 83(04) LIJ, p.62

Public interest immunity and documents held by the Law Institute of Victoria

Law Institute of Victoria Ltd v Deputy Commissioner of Taxation [2009] VSC 55 (unreported, 26 February 2009, No 10547/2008, Pagone J).

The Deputy Commissioner of Taxation (the Commissioner) served a notice under s264(1)(b) of the Income Tax Assessment Act 1936 (Cth) on the Law Institute of Victoria (LIV) in relation to a member solicitor. That section is in the following terms:

“The Commissioner may by notice in writing require any person, whether a taxpayer or not, including any officer employed in or in connexion with any department of a Government or by any public authority ...

(b) to attend and give evidence before him or before any officer authorized by him in that behalf concerning his or any other person’s income or assessment, and may require him to produce all books, documents and other papers whatever in his custody or under his control relating thereto”.

The LIV objected to the production of documents relating to the solicitor principally on the basis that to do so would contravene s6.4.5 of the Legal Practice Act 2004 (Vic). That section is in the following terms:

“6.4.5 Confidentiality

(1) This section applies to a person who is or has been –

(a) a member of the Board; or

(b) the Commissioner; or

(c) an employee in the office of the Commissioner; or

(d) a consultant engaged by the Commissioner; or

(e) a mediator; or

(f) a person to whom the Board or the Commissioner has delegated functions under this Act.

(2) A person to whom this section applies must not, directly or indirectly, make a record of, disclose or communicate to any person any information relating to the affairs of any person or Law practice acquired in the performance of functions under this Act, unless –

(a) it is necessary to do so for the purpose of, or in connection with, the performance of a function under this Act; or

(b) the person to whom the information relates gives written consent to the making of the record, disclosure or communication.

Penalty: 120 penalty units”.

It was argued for the Commissioner that s6.4.5 of the Victorian Act was in conflict with s264(1)(b) of the commonwealth Act under the Commonwealth Constitution (s109), that is, that there was an inconsistency between the two Acts such that the commonwealth Act should prevail.

In Pagone J’s view the inconsistency argument was misconceived. [4] The real question was whether the Commissioner’s notice could extend to documents if they attracted public interest immunity. Reference was made to the decision of Nathan J in Middendorp Electric Co Pty Ltd v Law Institute of Victoria [1994] 2 VR 213 and to Jacobsen v Rogers (1995) 182 CLR 572.

Pagone J noted:

“The general rule concerning the application of public interest immunity was enunciated by Gibbs ACJ in Sankey v Whitlam where his Honour said:

‘The general rule is that the court will not order the production of a document, although relevant and otherwise admissible, if it would be injurious to the public interest to disclose it. However the public interest has two aspects which may conflict. These were described by Lord Reid in Conway v Rimmer as follows: “There is the public interest that harm shall not be done to the nation or the public service by disclosure of certain documents, and there is the public interest that the administration of justice shall not be frustrated by the withholding of documents which must be produced if justice is to be done”.

‘It is in all cases the duty of the court, and not the privilege of the executive government, to decide whether a document will be produced or may be withheld. The court must decide which aspect of the public interest predominates, or in other words whether the public interest which requires that the document should not be produced outweighs the public interest that a court of justice in performing its functions should not be denied access to relevant evidence. In some cases, therefore, the court must weigh the one competing aspect of the public interest against the other, and decide where the balance lies’. [footnotes omitted]

“In applying these principles to any given document it will always be necessary to ask whether the particular document sufficiently attracts the public interest against disclosure for the immunity to be invoked. That will ordinarily require a consideration of the document and its characteristics to determine whether the doctrine is attracted by the information in the document, or by the class of documents to which it belongs.

“The Court’s duty is ultimately to ‘weigh the one competing aspect of the public interest against the other, and decide where the balance lies’ and that may require the Court to consider the circumstances and extent of disclosure. In some instances the immunity may be attracted to protect the basis upon which information was first given to the person from whom the disclosure is sought, as may be seen in

Middendorp and Jacobsen v Rogers. In the latter case the High Court said, with respect to search warrants, that the principle ‘does not appear to depend upon the encouragement of candour but rather upon the consideration that the public interest is best served by preserving the basis upon which the information was given’. In Middendorp the principle was held to apply to whistle blowers as against the Commissioner’s exercise of statutory powers of investigation”. [endnotes omitted] [8]–[9]

Pagone J examined the duties of the LIV and noted that those duties were of public importance and significance. [11] Documents from the solicitor’s own file which were not subject to public interest immunity could not gain such an immunity in the possession of the LIV. [14]

There was insufficient evidence available to Pagone J to enable him to decide whether the documents the subject of the notice, or any, and which of them, attracted public interest immunity. It could not be concluded that the obligation to address the question of immunity was that of the LIV seeking to so assert or of the Commissioner seeking to contend that there was no immunity.

The proceeding would be relisted for directions to enable the question to be determined whether public interest immunity extended to particular documents.

PROFESSOR GREG REINHARDT is executive director of the Australasian Institute of Judicial Administration and a member of the Faculty of Law at Monash University, ph 9600 1311, email The numbers in square brackets in the text refer to the paragraph numbers in the judgment. The full version of this judgment can be found at


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