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High Court judgments

Every Issue

Cite as: December 2011 85(12) LIJ, p.58

Administrative law

Difference between “appeal” and “review”

In Tasty Chicks Pty Ltd v Chief Commissioner of State Revenue (NSW) [2011] HCA 41 (5 October 2011) the High Court in a joint judgment concluded that by providing in s97 of the Taxation Administration Act 1996 (NSW) a taxpayer with a right to seek “review” of a decision of the Commissioner, the Parliament intended the body to exercise all the powers and functions of the decision maker and was not limited to grounds of “appeal”: French CJ, Gummow, Crennan, Kiefel, Bell JJ. Appeal allowed.


Appeal to Supreme Court – leave – reasons of arbitrator

In Westport Insurance Corporation v Gordian Runoff Ltd [2011] HCA 37 (5 October 2011) the High Court considered the extent of the duty of an arbitrator appointed under the Commercial Arbitration Act 1984 (NSW) to give reasons and whether that duty equated to the reasons expected of judges. Appeal from the NSW Court of Appeal allowed by majority: French CJ, Gummow, Crennan, Bell JJ jointly; contra Heydon J; Bell J in part. Appeal allowed.

Constitutional law


In Queanbeyan City Council v ACTEW Corporation Ltd [2011] HCA 40 (5 October 2011) the High Court considered when fees charged by a publicly owned corporation amounted to an excise. Appeal from the Full Court of the Federal Court dismissed: French CJ, Gummow, Hayne, Kiefel and Bell JJ jointly; sim Heydon J. Appeal dismissed.

Constitutional law

Taxation – charge on employers who fail to provide prescribed level of superannuation – whether a private benefit or a tax

In Roy Morgan Research Pty Ltd v C of T [2011] HCA 35 (28 September 2011) all members of the High Court concluded that the provisions of the Superannuation Guarantee Charge Act 1992 (Cth) and the associated Superannuation Guarantee (Administration) Act 1992 (Cth) that authorised the Commissioner to collect from employers as a debt due to the Commonwealth the difference between what the employer had paid for an employee’s benefit and what was required was a “tax” authorised by the Constitution s55(i): French CJ, Gummow, Hayne, Crennan, Kiefel, Bell JJ jointly; sim Haydon J. Appeal dismissed.


Dispute resolution – dispute to be determined by expert – whether court may order that expert give reasons

In Shoalhaven City Council v Firedam Civil Engineering Pty Ltd [2011] HCA 38 (5 October 2011) the High Court allowed an appeal from a decision of the NSW Court of Appeal that an expert appointed under contract to resolve a building dispute had given reasons that were inconsistent. The Court considered when a court can order an expert appointed under contract to give reasons. Appeal allowed.

Criminal law

Sentencing – mentally retarded person

In Muldrock v Q [2011] HCA 39 (5 October 2011) the High Court (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel, Bell JJ jointly) reviewed authority as to the sentencing of mentally retarded offenders. Appeal allowed; order that appellant be resentenced.


Hearsay – business records containing lay opinion – notes of ambulance officers – use of circumstantial inference to establish causation

In Lithgow City Council v Jackson [2011] HCA 36 (28 September 2011) J sued the council after he was found at the bottom of a drain in a park at night. He had no recollection of how the incident occurred. Section 76 of the Evidence Act 1995 (NSW) provides that “evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed”. By s78 the opinion rule does not apply where the opinion is based on what the person saw or the opinion is necessary to obtain an adequate account of the person’s perception. The NSW Court of Appeal concluded notes made by ambulance officers (who were not called) as to how J “fell” into the drain were admissible under s78. The High Court concluded this was in error. The Court also considered that causation of the accident in question, and liability, could not be inferred from the few known circumstances: French CJ with Heydon and Bell JJ; sim Gummow J; Crennan J. Appeal allowed.


Gender reassignment

In AB v Western Australia [2011] HCA 42 (6 October 2011) the High Court in a joint judgment considered the operation of the Gender Reassignment Act 2000 (WA) and what constituted “gender characteristics” for s15(1)(b)(ii). The Court concluded the WA Court of Appeal had erred by focusing on physical characteristics: French CJ, Hayne, Crennan, Kiefel, Bell JJ. Appeal allowed.

THOMAS HURLEY is a Victorian barrister, ph 9225 7034, email The numbers in square brackets in the text refer to the paragraph numbers in the judgment. The full version of these judgments can be found at


The September 2011 High Court judgments column included a short summary of the Court’s decision in Maurice Blackburn Cashman v Brown [2011] HCA 22. The High Court ruled that a medical panel opinion did not bind the parties in a related common law claim for damages. The summary mistakenly suggested the opinion was required by the Wrongs Act 1958 (Vic). In fact, the opinion was obtained under the Accident Compensation Act 1985 (Vic) such that Brown could bring a common law claim for injury arising out of employment. Further, it is not a requirement that a worker obtain a medical panel opinion as a prelude to bringing a common law claim.


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