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High Court Judgments

Every Issue

Cite as: March 2014 88 (03) LIJ, p.58

Competition law

Misleading and deceptive conduct

In Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2013] HCA 54 (12 December 2013) the primary judge in the Federal Court found that certain of the respondents advertisements in 2010 as to using the consumer’s telephone landline to achieve internet connection were misleading and deceptive contrary to ss52 and 53C(1)(c) of the Trade Practices Act 1974 (Cth) because of the disparity between a prominent headline showing an attractive price and the fine print that qualified the offer. The primary judge in the Federal Court accepted the advertisements failed to disclose a single price for the service and imposed a penalty of $2 million. These conclusions were set aside on appeal and the fine reduced. The appeal by the ACCC was allowed by the High Court by majority; French CJ, Crennan, Bell, Keane JJ jointly; contra Gageler J.

Constitutional law

Marriage power

In The Commonwealth v Australian Capital Territory [2013] HCA 55 (12 December 2013) the High Court in a joint judgment accepted that interpretation of s51 (xxi) of the Constitution was not restricted to the meaning of “marriage” at Federation and the federal parliament could enact a law for same sex marriages. The Court concluded the Marriage Equality (Same Sex) Act 2013 (ACT) which purported to provide for same sex marriages in the ACT was invalid as being entirely inconsistent with the Marriage Act 1961 (Cth). Answers to questions stated accordingly.

Constitutional law

Implied freedom of communication – whether limitations on political donations justified

In Unions NSW v New South Wales [2013] HCA 58 (18 December 2013) s96D of the Election Funding Expenditure and Disclosure Act 1981 (NSW) prohibited a political party or election candidate from accepting a donation unless it was from an individual enrolled on the roll of voters. By s95G(6) the Act aggregated the amount spent on “electoral communication” by a political party as including that spent by its associates for the purposes of capping the expenditure. These provisions were stated to apply to state and local government elections only. In an action in the original jurisdiction various entities connected with the Australian Labor Party sought declarations these provisions were invalid as imposing a restriction on the implied right of political discussion arising from the Constitution recognised in Lange v Australian Broadcasting Commission (1997) 189 CLR 520. The High Court concluded the provisions were invalid: French CJ, Hayne, Crennan, Kiefel, Bell JJ jointly; sim Keane J. The Court concluded that it was not possible to identify a purpose in the provisions that was connected to the anti-corruption purposes of the Act that were said to justify them. Answers to questions stated accordingly.

Corporations law

Winding up – insolvency - disclaimer of property – lease - whether lease granted by corporation is “property”

In Willmott Growers Group Inc v Willmott Forests Ltd (Receivers and Managers Appointed) (In Liquidation) [2013] HCA 51 (4 December 2013) the High Court concluded that s568(1) of the Corporations Act 2001 (Cth) was to be construed as giving a liquidator of a company power to disclaim a lease granted by the company to a tenant and such a lease was “property” for s568(1)(f). The Court concluded the provision was not restricted to leases where the company was the tenant: French CJ, Hayne, Kiefel JJ jointly; sim Gageler J; contra Keane J. Appeal against decision of Court of Appeal (Vic) dismissed.

Criminal law

Whether jury verdict supported by the evidence – reasons of Court of Appeal

In BCM v The Queen [2013] HCA 48 (27 November 2013) B was convicted by a jury of unlawfully dealing with a child. His appeal to the Court of Criminal Appeal (Qld) contending there was insufficient evidence to support the conviction was dismissed by that Court. His further appeal to the High Court was also dismissed: Hayne, Crennan, Kiefel, Bell, Keane JJ jointly. The Court concluded that whatever criticisms were made of the reasons of the Court of Appeal in explaining its decision there was evidence on which the jury could reach its conclusion. Appeal dismissed.

Criminal law

Malicious infliction of grievous bodily harm – unauthorised surgical procedure – when miscarriage of justice

In Reeves v The Queen [2013] HCA 57 (18 December 2013) R was a surgeon. In 2002 a patient CDW was referred to him for excision of a lesion in CDW’s left labia minora. In the operation R performed a simple vulvectomy and removed CDW’s genitals. R was convicted of a charge of malicious infliction of grievous bodily harm by performing a procedure without consent and benefit to the patient. The trial judge sentenced R on the basis that the jury had found he had operated without consent rather than that the surgery was unwarranted. R’s appeal to the Court of Criminal Appeal (NSW) was dismissed: this Court found that R’s guilt had been established beyond reasonable doubt on the “consent” basis regardless of the error of the trial judge in referring to the concept of “informed consent”. As this Court found there was no miscarriage of justice it dismissed appeals against conviction and sentence. R’s appeal to the High Court failed: French CJ, Crennan, Bell and Keane JJ jointly; sim Gageler J. The High Court concluded the Court of Criminal Appeal had not erred in the result it reached and that misdirection on a critical element of liability did not actually occasion a miscarriage of justice. R’s appeal against sentence was allowed as the prosecution accepted material had been overlooked. Appeal allowed in part.


Breach of contract

In Clark v Macourt [2013] HCA 56 (18 December 2013) in 2002 a medical practice involved in assisted reproduction (Dr C) entered an agreement to purchase assets from another practice (St George) for a total of $386,954. M guaranteed the performance of the vendor. The assets included 3513 “straws” of frozen sperm. Due to breach of warranty by the vendor only 1996 were usable. By 2005 the appellant purchaser had run out of usable straws. At this time the amount still outstanding and payable by the purchaser (Dr C) was $219,000. The vendor sued for this. The purchaser counter-claimed for the cost of acquiring usable straws. The primary judge assessed the purchaser’s loss at $1.2 million being the hypothetical cost of obtaining 1996 warranty compliant straws at the date of the completion of the contract in 2002. On appeal the Court of Appeal (NSW) viewed the agreement as a sale of business rather than a sale of goods. It concluded the loss was calculated as the cost of acquiring replacement stock less what had been recouped from patients but noted the purchaser had not sought this. It reduced the damages on the counter-claim to nothing. The purchaser’s appeal to the High Court was allowed by a majority: Hayne J; Crennan with Bell JJ; Keane J; contra Gageler J. The majority agreed with the primary judge that the loss was the value of what was not received at the date of completion. Appeal allowed.


Whether extradition “unjust or oppressive”

In Commonwealth Minister for Justice v Adamas [2013] HCA 59 (18 December 2013) the effect of s22(3) of the Extradition Act (Cth) and article 9(2)(b) of the Treaty annexed to the Extradition (Republic of Indonesia) Regulations 1994 (Cth) was that Australia could refuse to order extradition to Indonesia if in the circumstances extradition would operate in a way that was “unjust, oppressive or incompatible with humanitarian considerations”. A was an Indonesian banker. In 2002 he was convicted in Indonesia in absentia of corruption crimes; his appeal against this was dismissed in 2003; a warrant for his arrest was issued in Indonesia; following a request for extradition he was arrested in Australia in 2009; in 2010 the appellant Minister determined A be surrendered to Indonesia. The primary judge and the majority of the Full Court of the Federal Court considered the Minister had erred by not analysing the question of oppression etc by reference to “Australian standards”. The High Court in a joint judgment concluded these Courts were in error and that while Australian standards were relevant they were not determinative: French CJ; Hayne; Crennan; Kiefel; Bell; Gageler; Keane JJ jointly. Appeal by Minister allowed.

Freedom of Information (Cth)

Documents not covered by the Act – when documents of the Governor General are of an “administrative nature”

In Kline v Official Secretary to the Governor General [2013] HCA 52 (6 December 2013) s6A of the FOI Act 1982 (Cth) provided the FOI Act did not apply to the official secretary to the Governor General unless the “document relates to matters of an administrative nature”. The High Court concluded the Full Federal Court and Administrative Appeals Tribunal had not erred in concluding documents relating to the administration of the Australian honours system were not documents relating to matters of an administrative nature and thus were not subject to the FOI Act: French CJ, Crennan, Kiefel, Bell JJ jointly; sim Gageler J. Consideration of when the functions of the Governor General are of an administrative nature. Appeal dismissed.


Migration – detention – detention for purpose of removal from Australia – whether detention lawful when removal unlikely

Administrative law – declaration – decision of Minister based on unlawful policy – decision sustained on other ground – person affected entitled to declaration

In Plaintiff M 76-2013 v Minister for Immigration, Multicultural Affairs and Citizenship [2013] HCA 53 (12 December 2013) P and her children were citizens of Sri Lanka and involved with the Liberation Tigers of Tamil Eelam. In May 2008 they arrived in Australia by boat and were detained; in July 2010 they applied for recognition as refugees under the Refugees Convention; if accepted as refugees the Minster was enabled by s46A(2) of the Migration Act 1958 (Cth) to authorise them to make a valid visa application; in March 2011 the Minister authorised detention in the community; in September 2011 they were found to be refugees; in December 2011 ASIO provided a negative security assessment; in April 2012 the plaintiffs were advised that because of the assessment they would never pass the public interest test in Public Interest Criterion (PIC) 4002; in May 2012 the plaintiffs were again detained under ss189 and 196 of the Act. These provisions authorised detention pending removal of unlawful non-citizens. Various countries declined to accept the plaintiffs and it was accepted before the Court that removal was not likely. The plaintiffs commenced an action in the original jurisdiction of the High Court and questions were stated for determination by a Full Court. The Full Court generally concluded that the detention of the plaintiffs for the purpose of removing them was lawful notwithstanding that purpose may not be achieved in the short term. The Court considered when it would re-open or depart from earlier decisions and declined to re-open its decision in Al–Kateb v Goodwin [2004] HCA 37. The Court noted that the decision not to invite the Minister to consider exercising the power under s46A was based on the effect of PIC 4002 which was found to be unlawful in September 2012 in M 47/2012 v Director General of Security [2012] HCA 46 and therefore this decision was affected by legal error. However the members of the Court found that while the fact of the security assessment justified what had happened (so the error was of no consequence) the plaintiffs were entitled to a declaration that there had been an error of law: French CJ; Hayne J; Crennan, Bell, Gageler JJ jointly; Kiefel, Keane JJ jointly. Questions answered and declarations made accordingly.

Military law

Offences – creating a disturbance

In Li v Chief of Army [2013] HCA 49 (27 November 2013) the High Court considered what was required to establish the offence of “creating a disturbance” for s33(b) of the Defence Force Discipline Act 1982 (Cth). The High Court concluded a “disturbance” was the non-trivial interruption of order: French CJ, Crennan, Kiefel, Bell, Gageler JJ jointly. The Court concluded the judge advocate had not correctly directed the court martial as to the mental element of the offence which required a belief on the part of the accused that the actions would result in a disturbance. Appeal from the Full Court of the Federal Court allowed; matter remitted to Defence Force Discipline Appeal Tribunal.


Patentable invention – treatment or prevention of human disease

In Apotex Pty Ltd v Sanofi-Aventis Australia Pty Ltd [2013] HCA 50 (4 December 2013) the High Court concluded by majority that methods of preventing or treating human disease (such as surgery and the administration of drugs) can be patentable inventions for the Patents Act 1990 (Cth): French CJ; Crennan with Kiefel JJ; Gageler J; contra Hayne J. The majority concluded that to depart from the law as accepted in Bristol-Myers Squibb Co v FH Faulding & Co Ltd (2000) FCR 524 would be too great a departure from precedent. Appeal from the Full Court of the Federal Court dismissed.

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


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