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Reviews of judgments

Every Issue

Cite as: (2008) 82(9) LIJ, p. 56

High Court Judgments

Cite as: (2008) 82(7) LIJ, p. 56

By Thomas Hurley

Administrative law

Review by AAT of decision that person not “fit and proper” to be migration agent – whether AAT to consider evidence as at date of its decision – powers of AAT
In Shi v MARA [2008] HCA 31 (30 July 2008) the High Court concluded that in reviewing a decision of the MARA that a person was not fit and proper to be a migration agent the AAT did not err in having regard to the circumstances as at the date it had to determine the question. The Court also concluded the AAT had power to substitute its decision for that of the MARA. Appeal allowed.

Contempt of court

Difference between civil and criminal contempt – use of information received in court proceedings other than for those proceedings
In Hearne v Street [2008] HCA 36 (6 August 2008) the High Court considered whether documents provided to a party in litigation had been disclosed in breach of any implied undertaking only to use the documents for the purposes of the litigation. The Court also doubted whether the distinction between civil and criminal contempt had any utility [2], [132]: Gleeson CJ; Kirby J; Hayne, Heydon, Crennan JJ. Appeal dismissed.


Crown copyright – survey plans
In Copyright Agency Ltd v NSW [2008] HCA 35 (6 August 2008) the High Court in a joint judgment concluded that the statutory scheme regulating Crown access to copyright material in ss176–183F of the Copyright Act 1968 (Cth) applied to survey plans produced for public registration and that copyright was not regulated by any implied contractual term in the agreement whereby the surveyor was engaged: Gleeson CJ, Gummow, Heydon, Crennan and Kiefel J. Appeal from Full Court of Federal Court allowed.

Freedom of information (Vic)

Legal professional privilege – waiver – public interest override
In Osland v Secretary Department of Justice [2008] HCA 37 (7 August 2008) O sought access under the Victorian FOI Act to legal advice presented to the state governor in response to her petition for mercy. The government of the day had released to the public the effect of the legal opinions but not their content. VCAT concluded legal professional privilege in the contents of the advices had not been waived, but because of differing advice being received from different sources the public interest required release under s50(4) of the FOI Act. The Court of Appeal and the High Court both rejected submissions that public release of the fact of the advices and their effect constituted waiver of legal privilege. The Court of Appeal concluded, without reading the documents, that release in the public interest was not called for. The majority of the High Court concluded this was not open to the Court in the light of the suggestions in the decision of VCAT that there were differences in the advices without reading the documents: Gleeson CJ, Gummow, Heydon, Kiefel JJ; Kirby J; contra Hayne J. Appeal allowed. Matter remitted to Court of Appeal.

Income tax

Contesting assessment on administrative law grounds – when assessment not “bona fide”
In C of T v Futuris Corporation Ltd [2008] HCA 32 (31 July 2008) the High Court considered when challenging a tax assessment on the ground that the assessment was not made “bona fide” could be made out, and when relief in proceedings under s39B of the Judiciary Act 1901 (Cth) would be withheld because proceedings seeking review of the same assessment were pending.


Professional indemnity insurance – “known circumstances” – knowledge of reasonable person
In CGU Insurance Ltd v Porthouse [2008] HCA 30 (30 July 2008) the High Court, in construing a policy of professional indemnity insurance, considered how the exclusion for “known circumstances” was to be interpreted in light of a contractual term referring to what a reasonable person would have thought. Appeal allowed: Gummow, Kirby, Heydon, Crennan, Kiefel JJ.

Native title

Tidal waters – rights of persons licensed under Fisheries Act (NT) to fish in tidal waters covering native title land
In Northern Territory v Arnhem Land Aboriginal Land Trust [2008] HCA 29 (30 July 2008) the High Court concluded that the grant of a licence under the Fisheries Act (NT) to fish did not without more authorise the holder to enter, remain or fish in tidal waters covering land held by traditional owners under native title: Gleeson CJ, Gummow, Hayne, Crennan JJ; Kirby J; Heydon J; Kiefel J. Appeal allowed only to amend form of declarations.

THOMAS HURLEY is a Victorian barrister. 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

Federal Court Judgments

Cite as: (2008) 82(9) LIJ, p. 57

By Thomas Hurley

Administrative law

Judicial review – procedure – discovery – “fishing”
In O’Sullivan v Parkin [2008] FCAFC 134 (18 July 2008) the primary judge ordered security authorities give discovery of documents, including the adverse security reports on the appellants that were challenged. The Full Court concluded this was not in error and dismissed the appeal. Consideration of the distinction between discovery and production and consideration of discovery where national security is claimed to be involved.

Administrative law

Power of AAT to require additional documents to be lodged – claim that assessment of tax not made in good faith
In Kennedy v AAT [2008] FCAFC 124 (4 July 2008) a Full Court concluded the taxpayer had not established a basis for requesting the AAT require the Commissioner lodge further documents on the basis the assessment was made in bad faith.

Administrative law

Refusal of passport on grounds of national security – refusal to allow representatives of holder to see material
In Hussain v Minister for Foreign Affairs [2008] FCAFC 128 (15 July 2008) a Full Court concluded the AAT did not err in refusing the legal representatives of a person seeking review of a decision to cancel his passport access to material and submissions filed in the proceedings because of certificates under the ASIO Act. The Court observed the certificates had not been challenged in terms by AD(JR) Act proceedings and the AAT was required to act on them. A submission that the AAT orders and proceeding were unconstitutional because a Federal Court judge constituted the AAT was also rejected.


Misleading conduct – statement in relation to shares in a company
In ASIC v Narain [2008] FCAFC 120 (3 July 2008) a Full Court concluded the trial judge had erred in finding statements by a director of a listed company as to its operations were not “in relation to” the shares of the company within s1041H of the Corporations Act 2001 (Cth). The Court also found the statements were made by the director where he instructed the company secretary to issue the statements.


Public interest immunity – identity of informers
In ASIC v P Dawson Nominees Pty Ltd [2008] FCAFC 123 (4 July 2008) a Full Court allowed an appeal against a decision of the primary judge allowing a subpoena to produce documents that would identify those who had provided ASIC with information.

Freedom of information (Cth)

Request of court
In Bienstein v Family Court of Australia [2008] FCA 1138 (5 August 2008) Gray J considered what aspects of a request under the FOI Act (Cth) were required to be dealt with on the basis that they “related to matters of an administrative nature”.

Industrial law

Registration of industrial association
In Australian Education Union v Lawler [2008] FCAFC 135 (18 July 2008) a Full Court considered the effect of an application by an industrial association for registration under the Workplace Relations Act 1996 (Cth) whose rules allowed persons who had ceased to be employees to be members.


Cancellation of visa of long-term resident – which visa – whether absorbed person a “holder” of a transitional visa
In Sales v MIC [2008] FCAFC 132 (17 July 2008) a Full Court concluded that a long-term resident of Australia of English origin was not the “holder” of a transitional visa granted by operation of the law but held an absorbed person visa.


Jurisdictional error – notification to applicant
In SZIZO v MIC [2008] FCAFC 122 (3 July 2008) a Full Court concluded the RRT made a decision involving jurisdictional error where it sent the s425 invitation to appear to the husband and not to the authorised recipient at the same address.


RRT – failure to provide “information” – status of SZKTI v MIC
In SZKCQ v MIC [2008] FCAFC 119 (27 June 2008) a Full Court concluded that the decision in SZKTI v MIC [2008] FCAFC 83 was not plainly wrong and should be applied in deciding whether the RRT had discharged the duty of providing adverse information imposed by s424 of the Migration Act.


In Austral Ship Sales Pty Ltd v Stena Rederi Aktiebolag [2008] FCAFC 121 (3 July 2008) a Full Court concluded that a patent for design of hulls of multi-hulled ships that referred to the design in terms of “substantial portion” and “narrow waisted” was not void for lack of clarity.


Opposition proceedings – when one proceeding should be adjourned because of appeal in other proceedings between the parties
In Cadbury UK Ltd v Registrar of Trade Marks [2008] FCA 1126 (1 August 2008) Finkelstein J set aside a decision of a delegate of the registrar who had adjourned opposition proceedings for an indeterminate time because of appeals in other proceedings between the parties. Consideration of when it is appropriate to adjourn a case that is ready for trial because appeals on questions of law are pending in other proceedings and what weight an administrator can or should give to findings of fact in court proceedings between the same parties.


Delegated legislation – regulations limiting protest at public event – whether unconstitutional
In Evans v NSW [2008] FCAFC 130 (15 July 2008) a Full Court concluded regulations under the World Youth Day Regulation Act 2006 (NSW) that authorised authorities to remove persons causing “annoyance” to attendees at the World Youth Day event
were ultra vires the Act because they infringed the constitutional guarantee of freedom of speech recognised in, inter alia, Theophanous v Herald and Weekly Times (1994) 182 CLR 104.


Charities – Women Lawyers’ Association
In Victorian Women Lawyers’ Association v C of T [2008] FCA 983 (27 June 2008) French J concluded the VWL was a “charitable” institution for the purposes of the ITAA.

THOMAS HURLEY is a Victorian barrister. The full version of these judgments can be found at


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