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High Court Judgments

Every Issue

Cite as: March 2015 89 (3) LIJ, p.58

Administrative law

Standing – “person aggrieved” – economic effects of planning decisions

In Argos Pty v Corbell, Minister for the Environment and Sustainable Development [2014] HCA 50 (10 December 2014) Appellant 1 held the lease on Crown land in the ACT. The respondent gave permission under planning legislation for nearby land to be developed as a supermarket. Appellant 2 conducted a shop on a sublease of Appellant 1’s land. Appellant 3 also operated a shop on other land near the permitted development. The Appellants sought judicial review of the decision. At first instance and on appeal the ACT Supreme Court found that while the revenues of the shops of appellants 2 and 3 would be affected, this was the economic effect of increased competition. These courts found none of the appellants were “persons aggrieved” by the decision of the respondent for s3B(1)(a) of the Administrative Decisions (Judicial Review) Act 1989 (ACT). This defined a “person aggrieved” as one “whose interests are adversely affected by the decision”. The appeal by Appellants 2 and 3 was allowed by all members of the High Court but only Gageler J allowed the appeal by Appellant 1: French CJ with Keane J; Hayne with Bell JJ; Gageler J. The Court concluded that the text of the provision did not support a gloss that excluded economic interests from other interests but the evidence did not support a finding that Appellant 1’s interests as lessor would be affected. Orders accordingly.

Crimes confiscation

Provenance of gifts

In Henderson v Queensland [2014] HCA 52 (16 December 2014) by s68(2) of the Criminal Proceeds Confiscation Act 2002 (Qld) a court could not only, but must, exclude property from a confiscation order if it was more probable than not that the property was not illegally obtained property. H was involved in criminal activities. He sought to have the proceeds of the sale of jewellery that had been given to him by his father excluded from a confiscation order. The primary judge accepted H obtained the jewellery from his father but it was not clear where the father had obtained it. H’s application was refused by the primary judge in the Supreme Court and H’s appeal to the Court of Appeal (Qld) was dismissed. His appeal to the High Court was also dismissed by majority: French CJ; Bell J; Kiefel J; Bell J; Keane J. In dissent, Gageler J considered authority as to burden and degree of proof, and inference, and found H had discharged the burden imposed by s68. Appeal dismissed.

Stamp duty

Consideration for the dutiable transaction – transfers as part of large multi-stage development

In Commissioner of State Revenue v Lend Lease Development Pty Ltd [2014] HCA 51 (10 December 2014) s20(1) of the Duties Act 2000 (Vic) provided that duty was payable on the higher of the “consideration (if any) for the dutiable transaction” or the unencumbered value of the land. The respondent was the developer of the Docklands area of Melbourne which had been developed in stages under a master plan. Seven parcels of land were transferred to it or its associates and it received payments at various stages of the development. The Commissioner assessed the transfers by reference to the total cost divided between the parcels; the developer contended the payment at the relevant stage was the consideration. The primary judge found for the Commissioner but was overturned by the Court of Appeal. The High Court in joint judgment reversed the decision of the Court of Appeal: French CJ; Hayne, Kiefel, Bell, Keane JJ. The High Court generally observed that the “consideration” for each transaction was discerned from the entire set of agreements as varied. Appeal allowed.

Tax

GST – “taxable supply” – “creditable acquisition” – continued observance of terms of lease after sale of premises

In Commissioner of Taxation v MBI Properties Pty Ltd [2014] HCA 49 (3 December 2014) the High Court in joint judgment considered whether the continuing observance by the lessor/taxpayer constituted the making of input taxed supplies for A New Tax System (Goods and Services) Tax Act 1999 (Cth). Appeal from Full Court Federal Court allowed.

Trade marks

Foreign words – whether words “inherently adapted to distinguish” the goods

In Cantarella Bros Pty Limited v Modena Trading Pty Limited [2014] HCA 48 (3 December 2014) the High Court concluded the Full Court of the Federal Court had erred in concluding Italian words alluding to “gold” and “five stars” would be understood by traders in coffee as having a connection to certain goods. The decision of the Full Court to remove two of the appellant’s trade marks from the register under the Trade Marks Act 1995 (Cth) reversed by majority: French CJ, Hayne, Crennan and Kiefel JJ jointly; contra Gageler J. Appeal allowed.


THOMAS HURLEY is a Victorian barrister, ph 9225 7034, email tvhurley@vicbar.com.au. The full version of these judgments can be found at www.austlii.edu.au.

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